W.D. v. Rockland Cnty., 19 Civ. 2066 (JCM)

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JUDITH C. McCARTHY, United States Magistrate Judge
• Citation: 521 F.Supp.3d 358
• Parties: W.D., on behalf of his minor children, A. & J. ; J. and E.E. on behalf of their minor children, A. & S. ; J.E. on behalf of his minor daughter, J.H.; J.J., on behalf of her minor child, R.; L.V.G., on behalf of his four minor children; P.J. and M.O., on behalf of his minor child, A.; D. and R.J., on behalf of their minor children, S. & O. ; K.K., on behalf of her minor children M. & G.; L.K., on behalf of his minor child, L.; M.K. on behalf of his minor child, A.; V.L., on behalf of her two minor children; V.M. and A.M. on behalf of their minor child, I.; T. and M.M., on behalf of their minor children, Y., N. & S.; K.M., on behalf of her minor children, R. & A.; J.O., on behalf of her minor child, T.; M.P., on behalf of his minor children, Tr. and Te.; L.P., on behalf of her minor child, M.; M.R., on behalf of her minor children, R. & E.; J.R., on behalf of her minor child, C. and T.T., on behalf of his minor child, M., Y.T., on behalf of her minor child, Y., Plaintiffs, v. ROCKLAND COUNTY, Dr. Patricia Schnable Ruppert, Commissioner, Rockland County Department of Health, and Ed Day, County Executive, County of Rockland, both sued in their individual and official capacities., Defendants.
• Docket Number: 19 Civ. 2066 (JCM)
• Decision Date: 22 February 2021

521 F.Supp.3d 358

W.D., on behalf of his minor children, A. & J. ; J. and E.E. on behalf of their minor children, A. & S. ; J.E. on behalf of his minor daughter, J.H.; J.J., on behalf of her minor child, R.; L.V.G., on behalf of his four minor children; P.J. and M.O., on behalf of his minor child, A.; D. and R.J., on behalf of their minor children, S. & O. ; K.K., on behalf of her minor children M. & G.; L.K., on behalf of his minor child, L.; M.K. on behalf of his minor child, A.; V.L., on behalf of her two minor children; V.M. and A.M. on behalf of their minor child, I.; T. and M.M., on behalf of their minor children, Y., N. & S.; K.M., on behalf of her minor children, R. & A.; J.O., on behalf of her minor child, T.; M.P., on behalf of his minor children, Tr. and Te.; L.P., on behalf of her minor child, M.; M.R., on behalf of her minor children, R. & E.; J.R., on behalf of her minor child, C. and T.T., on behalf of his minor child, M., Y.T., on behalf of her minor child, Y., Plaintiffs,
v.
ROCKLAND COUNTY, Dr. Patricia Schnable Ruppert, Commissioner, Rockland County Department of Health, and Ed Day, County Executive, County of Rockland, both sued in their individual and official capacities., Defendants.

19 Civ. 2066 (JCM)

United States District Court, S.D. New York.

Signed February 22, 2021

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Michael Howard Sussman, Sussman & Associates, Goshen, NY, for Plaintiffs.

Larraine Susan Feiden, Brigitte M. Nahas Botta, Katarzyna Magdalena Fine, Patrick John Fischer, Office of the County Attorney, New City, NY, Thomas Edward Humbach, County of Rockland Department of Law, New York, NY, for Defendants Rockland County Department of Health, Dr. Patricia Schnable Ruppert.

Katarzyna Magdalena Fine, Larraine Susan Feiden, Patrick John Fischer, Office of the County Attorney, New City, NY, for Defendants Rockland County, Ed Day.

OPINION AND ORDER

JUDITH C. McCARTHY, United States Magistrate Judge

Plaintiffs¹ commenced this action² against the County of Rockland ("Rockland County" or "the County"), Rockland County Department of Health ("RCDOH"), Dr. Patricia Schnable Ruppert, Commissioner of Health of the Rockland County Health District ("Dr. Ruppert"), and Ed Day, Rockland County Executive ("Day") (collectively, "Defendants") on March 6, 2019. (Docket No. 1). Before the Court is Defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 78, 79, 80, 81). For the reasons set forth below, Defendants’ motion is granted.

I. BACKGROUND

Unless otherwise noted, the following facts are undisputed and taken from Defendants’ Statement of Material Facts submitted pursuant to Local Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York, ("Defs. 56.1"), (Docket No. 80), Plaintiffs’ Response to Defendants’ Statement of Material Facts Pursuant to Local Rule 56.1 and Counterstatement ("Pl. 56.1" or "Pl. Counterstatement"), (Docket No. 84),³ the parties’ exhibits,⁴ and the briefs submitted by the parties in support of

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their contentions.⁵

A. An Infected Traveler Brought Measles to Rockland County

At all times relevant to this action, Plaintiffs were adult residents of Rockland County whose children were enrolled in Green Meadow Waldorf School or the Otto Spect School (collectively, "GMWS"), private sister schools located in Chestnut Ridge, Rockland County. (Defs. 56.1 ¶ 1; Pl. 56.1 ¶ 1).

In or about late September 2018, an unvaccinated traveler from Israel exhibiting symptoms of measles arrived in Rockland County after landing in Newark, New Jersey. (Defs. 56.1 ¶¶ 8-9; Pl. 56.1 ¶¶ 8-9; Docket No. 79-9 at COR0000018).⁶ In the days and weeks that followed, RCDOH coordinated with the New York State Department of Health ("State DOH") to identify and test the traveler, as well as to implement contact tracing methods. (Defs. 56.1 ¶¶ 10-12). RCDOH and State DOH also recommended self-isolation at home for anyone who became infected or who was exposed to the traveler and lacked immunity.⁷ (Defs. 56.1 ¶¶ 13; 29). The traveler

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was officially diagnosed with measles on October 1, 2018. (Pl. 56.1 ¶ 17; Docket No. 79-11 at COR0001102).

B. The Health Risks and History of Measles in the United States and New York⁸

Measles is a highly contagious viral disease that is spread through the air and prevalent in some developing countries, but typically rare in the United States since first licensure of a vaccine in 1963 and intensive efforts to vaccinate preschool-aged children in the 1990s. (Defs. 56.1 ¶ 5; Pl. 56.1 ¶ 5; Docket Nos. 79-14 ¶¶ 4-5; 79-3, Ex. A at 18-19; 85-12 ¶ 5). Today, the measles vaccine is routinely recommended for all children over twelve months old in combination with the mumps and rubella vaccines ("MMR"), an attenuated version of the original vaccine. (Docket No. 79-3, Ex. A at 18-20). Symptoms of measles include fever, cough, coryza and/or conjunctivitis, as well as a red rash that can last five to six days. (Docket Nos. 79-14 ¶ 6; 85-12 ¶ 5). Measles may also cause blindness, pneumonia, croup, diarrhea and encephalitis, and in some cases, death. (Docket Nos. 85-12 ¶ 5; 79-14 ¶ 6). Children under five years old and immunocompromised individuals are especially susceptible to complications. (Docket Nos. 79-14 ¶ 7; 85-12 ¶ 5; 85-13 ¶ 7). The virus can also cause premature birth in pregnant women. (Docket No. 79-14 ¶ 7). It is communicable four days before onset of the rash, or twenty-four hours before the onset of prodromal symptoms, through four days after the rash appears. (Docket No. 79-3, Ex. A at 16, Ex. D at 47).

As noted above, the incidence of measles in the United States is low compared to that in other countries. (Pl. 56.1 ¶ 5; Docket No. 79-3, Ex. A at 17-18). The nation's drop in reported cases began in 1963 when the first vaccine was licensed. (Docket No. 79-3, Ex. A at 16-17). Between 1989 and 1991, however, states including New York experienced a resurgence, leading to 123 deaths nationwide. (Id. at 17). For example, the Court takes judicial notice that in 1991, New York experienced a total of

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2,306 reported cases.⁹ New York experienced another resurgence in 2013 and 2014, during which ninety-seven cases were reported.¹⁰ Between 2015 and 2017, the incidence of measles in the State dropped to seven or fewer cases per year.¹¹

To curtail the spread of measles, medical authorities recommend vaccination of non-immune individuals, post-exposure prophylaxis (i.e. , vaccination or administration of immunoglobulin to individuals exposed to the disease), and isolation of symptomatic individuals. (Docket No. 79-3, Ex. D at 44). During outbreaks, these authorities also direct jurisdictions to consider exclusion of persons most susceptible to the disease from "outbreak settings," as well as postponement of gatherings such as social or religious events. (Id. ). However, vaccination is considered the key strategy in limiting the spread in such situations. (Id. at 49). The CDC reports that for most individuals, the benefits of immunization are usually greater than the potential risks. (Docket No. 79-3, Ex. A at 26). Allergic and other adverse reactions to the vaccine are uncommon and usually mild and of brief duration. (Id. at 27-29). Moreover, although some parents have raised concern about a possible relation between the vaccine and autism, numerous studies have concluded that the available evidence does not support that theory. (Id. at 27-28).

C. The Incidence of Measles Increased and Rockland County Implemented School Exclusions

By October 14, 2018, RCDOH had confirmed two cases of measles and identified a suspected case in an unvaccinated thirteen-year-old boy. (Docket No. 79-9 at COR0000127-128). Upon RCDOH's request, due to staffing concerns, State DOH agreed to remain "directly involved in the outbreak management." (Id. at COR0000127).

On October 17, 2018, the State DOH Commissioner, Dr. Howard A. Zucker (the "Commissioner" or "Dr. Zucker"), authorized Dr. Ruppert to order schools in Rockland County with confirmed measles cases to take steps to protect their students from the virus pursuant to N.Y. COMP. CODES R. & REGS . tit. 66, § 1.10(a) (2018). (Defs. 56.1 ¶ 19; Pl. 56.1 ¶ 19). The next day, pursuant to instructions from State DOH, Dr. Ruppert ordered such schools to temporarily exclude from attendance any

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student who could not provide proof of vaccination, including those with religious or medical exemptions. (Defs. 56.1 ¶¶ 22, 24; Pl. 56.1 ¶¶ 22, 24). The orders required that the excluded students stay home until twenty-one days after the last "exposure" in the school. (Defs. 56.1 ¶ 25; Pl. 56.1 ¶ 25).

By the last week of October, the total number of cases in the County had risen to forty-five. NEW YORK STATE DEP'T OF HEALTH , NEW YORK STATE MEASLES WATCH , https://nyshc.health.ny.gov/web/nyapd/measles-watch (select "ROCKLAND" from "County Dropdown;" then select "Click for a Data...