Hoeg v. Newsom

• Decision Date: 25 January 2023
• Docket Number: 2:22-cv-01980 WBS AC,2:22-cv-02147 WBS AC
• Parties: TRACY HOEG, M.D., Ph.D.; RAM DURISETI, M.D., Ph.D.; AARON KHERIATY, M.D.; PETE MAZOLEWSKI, M.D.; and AZADEH KHATIBI, M.D., M.S., M.P.H., Plaintiffs, v. GAVIN NEWSOM, Governor of the State of California, in his official capacity; KRISTINA LAWSON, President of the Medical Board of California, in her official capacity; RANDY HAWKINS, M.D., Vice President of the Medical Board of California, in his official capacity; LAURIE ROSE LUBIANO, Secretary of the Medical Board of California, in her official capacity; MICHELLE ANNE BHOLAT, M.D., M.P.H., DAVID E. RYU, RYAN BROOKS, JAMES M. HEALZER, M.D., ASIF MAHMOOD, M.D., NICOLE A. JEONG, RICHARD E. THORP, M.D., VELING TSAI, M.D., and ESERICK WATKINS, members of the Medical Board of California, in their official capacities; and ROB BONTA, Attorney General of California, in his official capacity; Defendants. LETRINH HOANG, D.O.; PHYSICIANS FOR INFORMED CONSENT, a not-for profit organization; and CHILDREN'S HEALTH DEFENSE, CALIFORNIA CHAPTER, a California Nonprofit Corporation; Plaintiffs, v. ROB BONTA, in his official capacity as Attorney General of California; and ERIKA CALDERON, in her official capacity as Executive Officer of the Osteopathic Medical Board of California; Defendants.
• Court: U.S. District Court — Eastern District of California

TRACY HOEG, M.D., Ph.D.; RAM DURISETI, M.D., Ph.D.; AARON KHERIATY, M.D.; PETE MAZOLEWSKI, M.D.; and AZADEH KHATIBI, M.D., M.S., M.P.H., Plaintiffs,
v.
GAVIN NEWSOM, Governor of the State of California, in his official capacity; KRISTINA LAWSON, President of the Medical Board of California, in her official capacity; RANDY HAWKINS, M.D., Vice President of the Medical Board of California, in his official capacity; LAURIE ROSE LUBIANO, Secretary of the Medical Board of California, in her official capacity; MICHELLE ANNE BHOLAT, M.D., M.P.H., DAVID E. RYU, RYAN BROOKS, JAMES M. HEALZER, M.D., ASIF MAHMOOD, M.D., NICOLE A. JEONG, RICHARD E. THORP, M.D., VELING TSAI, M.D., and ESERICK WATKINS, members of the Medical Board of California, in their official capacities; and ROB BONTA, Attorney General of California, in his official capacity; Defendants.

LETRINH HOANG, D.O.; PHYSICIANS FOR INFORMED CONSENT, a not-for profit organization; and CHILDREN'S HEALTH DEFENSE, CALIFORNIA CHAPTER, a California Nonprofit Corporation; Plaintiffs,
v.
ROB BONTA, in his official capacity as Attorney General of California; and ERIKA CALDERON, in her official capacity as Executive Officer of the Osteopathic Medical Board of California; Defendants.

Nos. 2:22-cv-01980 WBS AC, 2:22-cv-02147 WBS AC

United States District Court, E.D. California

January 25, 2023

MEMORANDUM AND RE: PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION

WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.

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Plaintiffs Tracy H0eg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski, and Azadeh Khatibi (collectively, “H0eg plaintiffs”) brought a § 1983 action against Gavin Newsom, in his official capacity as Governor of California; Rob Bonta, in his official capacity as Attorney General of California; Kristina Lawson, in her official capacity as President of the Medical Board of California (the “Medical Board”); Randy Hawkins, in his official capacity as Vice President of the Medical Board; Laurie Rose Lubiano, in her official capacity as Secretary of the Medical Board; and Michelle Anne Bholat, David E. Ryu, Ryan Brooks, James M. Healzer, Asif Mahmood, Nicole A. Jeong, Richard E. Thorp, Veling Tsai, and Eserick Watkins, in their official

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capacities as members of the Medical Board. (H0eg Compl. (Docket No. 1).) The H0eg plaintiffs are physicians licensed by the Medical Board.

Plaintiffs Letrinh Hoang, Physicians for Informed Consent, and Children's Health Defense, California Chapter^[1](collectively, “Hoang plaintiffs”) brought a § 1983 action against defendants Rob Bonta, in his official capacity as Attorney General of California, and Erika Calderon, in her official capacity as Executive Officer of the Osteopathic Medical Board of California (the “Osteopathic Board”). (Hoang Compl. (Docket No. 1).) Plaintiff Hoang is a physician licensed by the Osteopathic Board. The remaining two plaintiffs are organizations representing the interests of doctors and patients.

Plaintiffs in these related cases (see H0eg Docket No. 21; Hoang Docket No. 9.) allege that Assembly Bill (“AB”) 2098^[2] is unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution. Plaintiffs filed separate motions seeking a preliminary injunction to enjoin the State of California from enforcing AB 2098. (H0eg Notice of Mot. and Mem. In Support of Mot. for Prelim. Inj. (“H0eg Mot.”) (Docket No. 5); Hoang Mot. for Prelim. Inj. and Mem. of Law (“Hoang Mot.”) (Docket No. 4).)

I. The Challenged Statute

A. Statutory Provisions

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AB 2098, codified at Cal. Bus. & Prof. Code § 2270, took effect on January 1, 2023. The statute provides that “[i]t shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.” Cal. Bus. & Prof. Code § 2270(a) (emphasis added).

The statute defines “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Id. § 2270(b)(4) (emphasis added). The statute defines “disinformation” as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.” Id. § 2270(b)(2) (emphasis added).

The misinformation or disinformation must be conveyed “[by] the licensee to a patient under the licensee's care in the form of treatment or advice.” Id. § 2270(b)(3). Physicians and surgeons licensed by the Medical Board or the Osteopathic Board (the “Boards”) are covered by the statute. Id. § 2270(b)(5).

The Boards are tasked with enforcing AB 2098. The statute augments the definition of “unprofessional conduct,” id. § 2270(a), which is a pre-existing basis for disciplinary action by the Boards, see id. § 2234. Unprofessional conduct also includes, but is not limited to, “gross negligence,” “repeated negligent acts,” and “incompetence.” Id.

B. Legislative Findings

At the time AB 2098 was enacted, the California

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Legislature made several findings. The Legislature found that “[t]he global spread of the SARS-CoV-2 coronavirus, or COVID-19, has claimed the lives of over 6,000,000 people worldwide, including nearly 90,000 Californians.” AB 2098, 2021-22 Reg. Sess. (Cal. 2022) § 1(a). The Legislature also found that “[d]ata from the federal Centers for Disease Control and Prevention (CDC) shows that unvaccinated individuals are at a risk of dying from COVID-19 that is 11 times greater than those who are fully vaccinated.” Id. § 1(b). It further stated that “[t]he safety and efficacy of COVID-19 vaccines have been confirmed through evaluation by the federal Food and Drug Administration (FDA) and the vaccines continue to undergo intensive safety monitoring by the CDC.” Id. § 1(c).

The Legislature then addressed the policy problems the bill was designed to remedy. The bill first states that “[t]he spread of misinformation and disinformation about COVID-19 vaccines has weakened public confidence and placed lives at serious risk,” with “major news outlets [reporting that] some of the most dangerous propagators of inaccurate information regarding the COVID-19 vaccines are licensed health care professionals.” Id. §§ 1(d), 1(e). The bill states that in response to these concerns, the Legislature previously “declared health misinformation to be a public health crisis, and urged the State of California to commit to appropriately combating health misinformation and curbing the spread of falsehoods that threaten the health and safety of Californians.” Id. § 1(g). The Legislature also noted that “[t]he Federation of State Medical Boards has released a statement warning that physicians who

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engage in the dissemination of COVID-19 vaccine misinformation or disinformation risk losing their medical license, and that physicians have a duty to provide their patients with accurate, science-based information.” Id. § 1(f).

II. Preliminary Injunction Standard

To succeed on a motion for a preliminary injunction, plaintiffs must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 2011). “[I]njunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. At 22.

III. Article III Standing^[3]

To determine whether plaintiffs are entitled to a preliminary injunction, the court must first determine whether they have standing to challenge AB 2098. “In order to invoke the jurisdiction of the federal courts, a plaintiff must establish ‘the irreducible constitutional minimum of standing.'” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992)). Article III

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standing has three elements: “(1) injury-in-fact--plaintiff must allege concrete and particularized and actual or imminent harm to a legally protected interest; (2) causal connection--the injury must be fairly traceable to the conduct complained of; and (3) redressability--a favorable decision must be likely to redress the injury-in-fact.” Barnum Timber Co. v. U.S. EPA, 633 F.3d 894, 897 (9th Cir. 2011) (citing Lujan, 504 U.S. At 560-61) (internal quotation marks omitted).

Challenges that involve First Amendment rights “present unique standing considerations” because of the “chilling effect of sweeping restrictions” on speech. Ariz. Right to Life Pol. Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). “In order to avoid this chilling effect, the Supreme Court has endorsed what might be called a ‘hold your tongue and challenge now' approach rather than requiring litigants to speak first and take their chances with the consequences.” Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (internal quotation marks omitted). Accordingly, when the challenged law “implicates First Amendment rights, the [standing] inquiry tilts dramatically toward a finding of standing.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000).

A. Individual Physician Plaintiffs

In the context of a pre-enforcement challenge to the constitutionality of a law, “a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.'” Susan B. Anthony List v. Driehaus,

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573 U.S. 149, 159 (2014) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)); see also Valle...