DeSantis adviser takes (virtual) stand in lawsuit testing school masks policy

Jay Bhattacharya’s therories helped shape governor’s views on COVID

By: - August 24, 2021 7:35 pm
Teacher in her classroom

Teacher in her classroom. Photo by Dave Einsel/Getty Images

Lawyers for the DeSantis administration spent much of Tuesday afternoon trying to undermine the credibility of its key witness in the state court lawsuit challenging the governor’s policy against mask mandates for children in public schools.

The witness is Jay Bhattacharya, a researcher specializing in the economics of medicine at Stanford University. He is not an immunologist or epidemiologist but says he has studied COVID closely since the disease emerged early last year.

Gov. Ron DeSantis has built his policy — giving parents a veto over whether their children must wear masks against COVID transmission inside school buildings — around the opinions of Bhattacharya and people like him who buck the conventional wisdom on COVID.

Controversially, those opinions include the assertion that face masks are ineffective against coronavirus transmission and that even the more easily transmitted Delta variant threatens mostly elderly people, not schoolchildren.

Bhattacharya testified along those lines via Zoom on Tuesday, after attorneys representing the parents bringing the lawsuit rested their case and the administration opened its defense of the policy, which at least eight large school districts are disobeying by allowing mask opt outs only when a doctor says its medically necessary.

The Delta variant “is less deadly but perhaps more transmissible,” Bhattacharya testified.

“There’s no evidence that the masks — no randomized evidence, no high-quality evidence — that masks stop the disease spreading. The observational evidence, such as it is in schools in Florida and elsewhere, suggests that masked districts did no better than unmasked districts” — that is, those requiring masks versus those that did not, he said.

“That was for the less transmissible variant that preceded the Delta variant. If masks did not do a good job of stopping disease transmission with the less transmissible variants, it’s really unclear why one would expect they would have any different effect on a more transmissible variant like the Delta variant.

“So, the marginal benefit of masks, essentially, even with the Delta variant, is very close to zero,” Bhattacharya said.

On cross-examination, defense attorney Charles Gallahger made much of the fact that Bhattacharya’s research largely has consisted of reviewing clinical studies he didn’t personally conduct. The researcher insisted that’s standard procedure in the field.

Gallagher also raised a Buzzfeed report that Bhattacharya’s wife solicited participants for a study he did conduct in Santa Clara County, Calif., from among parents sending their children to the same school as their kids. Bhattacharya dismissed the publication as a “tabloid journal.” His wife didn’t consult him, he said, and it didn’t affect the outcome.

Defense motions

Bhattacharya took the stand after Leon County Circuit Judge John Cooper rejected a defense motion to dismiss the case on ground that the parents suing the state live in districts — Alachua, Broward, and Palm Beach — that have imposed mandates in defiance of the DeSantis administration. The parents allege that DeSantis exceeded his authority in imposing his policy.

“These plaintiffs cannot demonstrate that they have an injury that is caused by defendants’ actions and redressable by this court,” attorney Jared Burns argued for DeSantis, Education Commissioner Richard Corcoran, the Department of Education, and the Florida Board of Education, named defendants in the lawsuit.

“Their children go to schools with mask mandates, and therefore they have no harm,” Burns said.

“Which your client is trying to get them to dump,” Cooper observed.

Cooper denied the motion but did dismiss a group of parents because their legal team didn’t put them on the stand (or in the Zoom hearing) to testify that they live in Florida or submit affidavits to that effect. Without evidence that they live in the state, they can’t prove they’re suffering any harm from the governor’s policy, the judge said.

“I can’t assume they are — I need some evidence that they are,” Cooper said.

Four parents who did testify, among other matters, that they reside in Florida — and the husband of one of them, who’s also a plaintiff, can remain in the case, Cooper ruled, and so can their children.

The judge delayed deciding a defense motion that the case must be dismissed because the defendants are trying to overturn state Department of Health rule enforcing the governor’s policy but haven’t included that agency among the defendants.

Since the agency isn’t a party to the lawsuit, Cooper can’t order it to do anything, he said.

Before resting their case, plaintiffs’ attorneys elicited testimony from three pediatricians and a mom with two kids in a Palm Beach County school. (Additional parents testified on Monday.)

Dr. Mona Mangat, who runs a pediatric allergy and immunology practice in St. Petersburg, testified for the defense that the Delta variant reproduces more rapidly and produces significantly higher viral loads, meaning that it is much more infectious.

Gov. DeSantis’ July 30 executive order asserts that last year schools “did not drive community transmission of COVID-19.”

However, the Phoenix reported school data from September 2020 through May 2021, showing that there were about 91,000 student COVID cases related to K-12 public and private schools, according to the Florida Department of Health.

But any data regarding mask efficacy produced before Delta’s onset is meaningless now, Mangat said.

“My current understanding is that Florida is second only to Mississippi in the number of hospitalized children. My understanding is that there are about 50 children per day that are getting admitted to the hospital in Florida for COVID,” she said.

Additionally, Florida has reported at least 200 cases of MIS-C — that’s Multisystem Inflammatory Syndrome, which can cause long-term harm to the heart, blood vessels and other organs — Mangat testified.

Although Bhattacharya is well regarded in his field, in regard to COVID “he is hypothesizing many things that have been shown not to be true,” she said.

“He is not an epidemiologist. He is not an infectious disease physician. He is not a pediatrician. He is not an immunologist. And, in fact, he not a practicing physician, either. I review his words with great caution,” she said.

‘Human toll’

His theory that “natural herd immunity is the way to get out of this pandemic, she said, “doesn’t take into account the human toll and the loss of life, and the morbidity and mortality that will result from the millions and millions of infections that must occur to reach that level of herd immunity.”

A big part of the administration’s case is that masks are harmful to children, causing depression, learning difficulties, and behavior problems. Also, that, especially below age three, they interfere with their ability to pick up visual cues from other people.

Mangat said she is unaware of any good evidence of the former assertion, but confirmed the latter for very young children. She added, however, that as children age, they take cues more from people’s eyes than their mouths, so masks present less of a problem.

“We should be much more cautious with recommending masking for under the age of three, and we should be much less concerned about long-term effects on development in older children,” Mangat said.

Regarding their efficacy, a study conducted under lab conditions showed that surgical, N-95, and cloth face masks produced a 99 percent reduction in aerosolized particles spreading, Mangat said. That means virus expelled during breathing and speaking.

“I feel strongly that masking of any sort that you can get your hands on is better than not masking,” she said.

“It keeps me from sharing my germs with you and it keeps you from sharing your germs with me. Regardless whether I’m vaccinated or not, or you’re vaccinated or not, it’s protecting both of us.”

The CDC recommends a layered approach to COVID mitigation, including social distancing, ample ventilation, vaccination, and masking, Mangat said. The school environment in Florida isn’t conducive to the first two and the third is unavailable to children under 12.

“That leaves us with vaccinating when we can and masking everybody,” she said.

Lesley Abravanel, a Palm Beach County mother of 10-year-old twins, confirmed that point. Their classrooms lack social distancing or Plexiglas barriers to virus transmission. The kids, she said, “are literally on top of each other.” The school “is a petri dish right now,” she added.

Her son, she added, suffers anxiety about contracting the virus, even though she makes sure both children wear masks diligently.

“But I’m afraid of the kid who’s not wearing a mask who sits next to my kid who might somehow spread it,” Abravanel testified.

Dr. Grace Hunte, a Sarasota pediatrician, testified that she’s treated children as young as newborns for Delta who had no comorbidities that would have rendered them more susceptible to infection. Some have experienced “unexpected complications,” she said, including teenagers who developed pancreatitis, leukemia, and cardiac disease.

“The effect of one parent’s decision for their child is not only upon their child, it is on the greater community — it’s upon their immunosuppressed teacher, upon their immunosuppressed colleagues,” said Dr. Tony Kriseman, a pediatric pulmonary specialist in St. Petersburg.

“If this were a noncontagious disorder like tetanus, then you could say to a parent, ‘You’re free not to get a tetanus shot for your child.’ But the parent’s decision doesn’t only have an impact on their own child. It’s a global decision. It has an impact on society,” he said.

“So, how much of one’s individual liberty is society willing to interfere with, right?” asked defense attorney Daniel Bean.

Kriseman scoffed. “Sir, we could debate that for a long, long time,” he said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.