Thread by @EvanDonovan

😷FLORIDA MASK TRIAL STARTS TODAY😷
Good morning! I'll be covering the trial, which begins today and is expected to wrap up by Wednesday.

Several Florida families (at least 4 from Tampa Bay) are suing @GovRonDeSantis and state agencies over the ban on mask mandates.

1/x

You can watch along with me at the link below.

I will also be live tweeting as much as possible throughout the day, with video whenever I can pull it off!

I will also have reports on @WFLA in this evening's news.

Here is a link to the trial documents so far — the initial complaint from plaintiffs/Florida families, the defendants' (DeSantis et. al.) motion to dismiss—denied last week, hence trial today—and the plaintiffs' memorandum of law in opposition to the MTD

nexstartv-my.sharepoint.com/:f:/g/personal…

Here's a thread from last week's motion to dismiss hearing, which will give you a baseline of the arguments each side is presenting.

https://twitter.com/EvanDonovan/status/1428418762395602947?s=20

In brief summary —

Plaintiffs argue they have a right to "safe, secure" public schools under the aptly-named Safe Schools amendment to the Florida constitution that was passed by voters in 1998.

They also argue school districts have a right to govern themselves.

Defense argues that the new state law creating a "Parents' Bill of Rights" allows parents to make these types of decisions.

flsenate.gov/Session/Bill/2…

However, @GovRonDeSantis issued an executive order that uses that law to implement a ban on mask mandates.

Open question as to why the EO was needed if the state law already gave parents the right.

flgov.com/wp-content/upl…

In addition, state agencies (Health, Education) issued rules around mask mandates, which defense argued last week is what actually implements the ban.

However, defense later argued that the "ban" isn't actually a ban — an argument judge shot down

https://twitter.com/EvanDonovan/status/1428481010061217800?s=20

Attorney Barry Silver is trying to add another party to the lawsuit or intervene in the case — he has sued @GovRonDeSantis and the State of Florida — but Judge John Cooper is denying the motion.

Cooper: It's too late. First day of trial. Haven't even seen the motion.

Cooper: Different parties, different issues, could be problem with that. Causes more problems than it solves.

I hardly ever deny motion to intervene. But I've never had one on the 1st day of a trial. Asks Charles Gallagher (lead plaintiffs' attorney) to speak with Silver.

People you can expect to hear from:

Judge - John Cooper

Plaintiffs' (families) attorneys: Charles Gallagher (lead), Craig Whisenhunt, Maria Pitelis

Defense (DeSantis et. al.) attorneys: Michael Abel (lead), Daniel Bean, Jared Burns, Jacqueline Van Laningham

Cooper denies motion by Barry Silver to join/intervene.

Silver argues suing Florida is like suing DeSantis. Judge doesn't agree, neither does DeSantis attorney Abel

Gallagher invokes rule so that potential witnesses can't stay on zoom or watch youtube link until after they give their testimony.

First witness for plaintiffs is Dr. Thomas Unnasch. He has to log off and then log back on since rule was invoked.

health.usf.edu/publichealth/o…

Judge Cooper - keep opening statements to 30 mins aside. Wanna move quickly but give everyone enough time. Notes time 9:49, August 23.

We start with plaintiff opening.

Charles Dodson will make opening statement for plaintiffs.

Dodson: Thank you for expediting this hearing, it's certainly an emergency.

Already horrible pandemic is made drastically worse by #DeltaVariant. Drastically different than original strain. Hospitals nearing capacity.

Neither vaccinated individuals nor children are immune.

CDC, American Academy of Pediatrics and numerous other groups want mandatory masking in schools. Kids under 12 can't vaccinate.

Not asking @GovRonDeSantis to mandate masks, just for him to allow local school districts to do so if they want.

Florida Constitution article 4 section 9 says school boards can operate and control schools in the district. Doesn't say "unless governor wants to."

Only school boards can decide if masks mandatory. You'll hear from parents, doctors, etc.

Kids are catching and spreading delta

This is all Dodson opening statement FYI

Masks are important for children

Also gonna be hearing about Florida Constitution Article 9 Section 1: paramount duty of state to make adequate provision for safe and secure system of free public schools.

Because of #delta, not safe unless everyone masked. Private schools can mandate masks, but public schools cannot.

But children in public schools are just as precious as those in private school.

Governor's EO is "arbitrary and capricious"

Governor's EO states "Whereas..." there is no well-rounded justification for CDC student mask order.

EO also refers to Brown University study (by Emily Oster) that shows masking doesn't help.

Link to that study FYI:
medrxiv.org/content/10.110…

Dodson: EO was before #DeltaVariant. And EO is dangerous to children.

Not only can kids contract Delta strain of Covid, but they can spread it.

Hospitals are overwhelmed.

At end of hearing we will request you enjoin Gov and Ed Commissioner from banning mask mandates

Dodson ends opening.

Cooper goes to defense opening.

Mike Abel will present.

Abel: We don't fault or criticize plaintiff families for any action they're taking.

You love your children, wanna protect them, wanna do everything possible to help them. Despite raging political debate, we believe you have principled disagreement.

When it comes to masking, ongoing debate over whether it helps or hurts.

Gov made policy decision to protect freedoms and rights of students and parents by leaving decision to parents.

This dispute centers around what goes on the face of a school child.

Cooper: isn't it about keeping kids safe?

Abel: We'll present evidence to support our view. In this context, freedom for parents to choose what to put on kids faces.

EO was data driven and follows the science. We'll show EO was enacted in accordance with constitution

Must be presumed the EO and law is constitutional. Plaintiffs have burden of proof to show unconstitutionality.

Plaintiffs disagree w/ policy -- not legally sufficient to set aside EO/emergency rule.

Plaintiffs can't carry heavy burden that there is no basis for EO and rule

Abel: evidence is straightforward in 3 parts

1) because it's grounded in science, you'll hear from Dr. Jay Bhattacharya

2) You'll hear comprehensive systme of care for safety

3) You'll hear from parents, who care equally about their children (but disagree w/ masks)

Abel offers powerpoint presentation, judge shares

Abel: Bhattacharya will say forced masking of kids has negligible impact on Covid spread

No high quality evidence supporting that it slows spread

He'll also say most studies show kids aren't big drivers of spread

Schools are low-risk environments of spread. In contrast to poor quality evidence of slowing spread, masks do harm:

speaking difficulties, mood changes, discomfort breathing, hurts kids w special needs

reduces ability to communicate, laughing, smiling - positive emotions harder to see
negative emotions amplified

Harms them physically and psychologically

EO states no statistically significant evidence that school districts w/ mask requirements fared better than those w/o

Abel: 67 school districts in Florida. 27 didn't have mandates last year.

State compiled their covid cases. Based on actual data -- 40 with mandates, 27 without - very minimal difference in mask mandate districts than those without

Cooper: who was higher/lower?

Abel: graph is busy but it shows not much difference

Cooper: I picked law not engineering on purpose, you're talking X and Y axis (joking)

But I'm color blind so I can't see difference in this graph (not joking)

Florida counties with 4 highest rates of Covid all had mask mandates.

Districts w/ mandates: 48 out of 1000
Districts w/o without mandates: 50 out of 1000

Difference was less than 1/2 %

Abel: These comments are representative of what you'll hear later in testimony - parents excited to have the choice

Abel: why does this matter?

Science, real situation on ground, and parental choice all has been assessed by legislature when passing Parents' Bill of Rights, and by governor when writing EO, and by surgeon general in writing emergency rule

Local school districts don't have plenary authority to establish school policy. Text and structure of Florida constitution shows legislature has primary and <pre-emptive? missed it> authority to enact school policy

Abel: Florida Constitution creates hierarchy -- school districts, then legislature

Dodson talking about infringement on school boards

Cooper: this is the previous case (?) where i was affirmed on substance but denied on standing

Abel: most importantly, legislature delegated to DOH within education code the authority to control communicable diseases within schools

DOH acted within authority when enacting emergency rule

State Board of Education can enforce rule

Cooper: As i recall, Parents Bill of Rights (I'll say PBOR from now on) is 1008.....

Abel: EO and rule give parents right to make most impt choices for their children in health & education. No matter how many parents and doctors testify, plaintiffs can't show unconstitutionality

Abel concludes.

Cooper: issues involving public debate and rational relationship are part of your "separation of powers" and "political question" defense?

Govt. entity exercises discretionary power, to be unconstitutional must have no rational basis?

<this part unclear>

Cooper: serious legal analysis here. Thanks for both sides staying well within limits on opening statement.

Let's take break then call first witness.

Whisenhunt asks for breakout room for attorneys to discuss. Abel suggests conf call number.

Lots of bad with tech jokes

Judge then mutes himself and continues talking

Realizes right away, unmutes, laughs over tech issues.

Break until 11

fin/ (for now)

We're back (missed first 3 minutes! due to tech issue, sorry)

Judge Cooper: I'll look over exhibits during lunch

Judge: Plaintiffs' exhibits 1-24 are admitted

You can see them all here:
filemail.com/d/legehhwefzyg…

Aside: Judge Cooper has a good sense of humor. He plays the local yokel role, but obviously has a keen intellect and is a serious judge.

I just appreciate people who don't take themselves too seriously, but are still good at their jobs.

Plaintiffs' first witness is Dr. Thomas Unnasch of @USouthFlorida

Unnasch is joining from vacation in Idaho, jokes about not being dressed appropriately

He's accomplished doctor, also on GEDI team at TGH, an awesome infectious disease center in Tampa

wfla.com/community/heal…

Unnasch impressive resume -- Case Western, U of Alabama, USF, Harvard, MIT

Being questioned by plaintiff counsel Erin Barnett

200+ submissions in peer reviewed publications

Barnett: Dr. Unnasch, have you read info on #COVID19 literature?

Unnasch: yes, I stay very current. On Emergency Response Group at USF. Principal investigator of lab where ALL #COVID research is being done at USF

What's that mean?

I'm guy in charge of running program, like CEO

Barnett: What's a variant mean?

Unnasch: Mutates at rate 30x lower than flu, but still high enough. Mutations will occasionally have selective advantage, will begin to take over and supplant other variants to become dominant or co-dominant.

Many variants now, 20-30 probably. Variants of interest have selective advantage, or variants of concern that exhibit some sort of trait making it much more dangerous.

Most die out, don't gain foothold, some do, take over, about 3-4 have done that so far, maybe 2-3 more we're 👀

Original variant of concern was alpha variant, started in UK, took over all other variants worldwide.

Beta variant originated in South Africa summer 2020, as vaccine breakthrough variant, never took off that much

Delta variant started in India in the spring, now dominant world

Unnasch: some subset, fairly random subset of people, positive test from RNA test gets sent off for genome sequencing

Majority of isolates earlier this year were alpha variant

Late May/Early June, delta variant took over. By far most predominant now. Over 80% in Florida

Viral load?

How much virus is being produced in respiratory tract. You can measure them, with Delta it's about 1000x more particles compared to Wuhan/original strain of #COVID19

So you cough, then more virus gets out?

Yes, probably up to 1000x more

What's an R-naught?

Simple concept - if person is infectious, on average how many people susceptible people does that person infect. Virus with R-naught of 2, each person infects 2 more people.

That pertains in totally susceptible population -- that's what the 'naught' is

What was R-naught for original Wuhan virus?

Original strain had 1.5 - 2.

Next most potent was UK alpha?

That one was 50% greater, so R-naught around 3

What's average R-naught for #DeltaVariant?

Somewhere north of 2x as bad as Alpha, so somewhere between 6-8

One infection gives rise to 6-8 more infected people

Imagine you have 3 islands in Pacific Ocean that have never seen #COVID19

August 1, somebody gets off on island A with Wuhan strain

Island B with Alpha

Island C with Delta

1 month later

A would have 65 infections a day

B would have 1079 new cases a day

C would have 46,656

Miracle of compound interest -- it's what you want to see in your retirement account

But in this case it's of a terrifying infection

Exhibit 5 has numbers

Defense objects, data is from August 6, anything after signing of EO on July 30 is irrelevant to proceedings

Judge overrules

Unnasch: deaths/hospitalizations lag, you can see unfortunate exponential rise in cases, we're seeing R value of 1.4, doubling once every 2 weeks

Earlier in July R was ~ above 1.5, with doubling time about once every 8 days

In July, before EO, R-naught was highest ever?

Yes

Exhibit 6 - CDC #COVID stats for week ending August 5, page 8 FLDOH breaks down stats for kids under 16

Showing 8 deaths for kids <16 with mortality rate of 0.2%

Unnasch: that means this infection above children leads to a mortality rate that's about 2x the normal seasonal flu

Is that increase over alpha mortality rate?

Unnasch: Can't speak to that data, but report from MedLine over weekend showing that #DeltaVariant is 2x more deadly to under 16 kids than Alpha

Unnasch: everything so far shows #DeltaVariant is more pathogenic in ALL age cohorts and vaccinated

Pathogenic?

More hospitalizations, more deaths, more severe illness

So even with Delta, most kids who have virus will be fine?

Objection - leading witness

Sustained

Barnett re-asks

Unnasch: more pathogenic virus, showing more illness in all age groups, incl children

Barnett: gov's EO cited @ProfEmilyOster Brown Univ. study

Does Oster study reference #delta?

No, conducted this year, references data in spring 2020 semester, #delta took off in June/July

What about masks?

Unnasch: Brown U study was trying to disentangle lots of factors that could lead to results. They were up front about limitations of study. Didn't take into account levels of community transmission.

Total cases among student pop. was rather low

Couldn't control for differences in class density, ventilation -- tried to tease it out, but they couldn't, they were up front about this

Seemed to be higher level of COVID in classrooms with fewer kids, they didn't understand why

Showed masking of school staff was more effective than masking all the students. That doesn't make common sense either. Adding masks wouldn't add to INCREASE in covid levels.

Not enough real cases (<100) to isolate these factors and determine what was going on

What does it mean when you get results that defy common sense?

Either you're opening a new paradigm in research, like Einstein did in relativity, or data is not constructed and analyzed in way that gets to reality

Brown U study peer reviewed?

No

What's that mean to layperson?

Indiv can put together study, put out whatever they want, but to be accepted by scientific community, they send to peer-reviewed journal. They send it to 3-4 experts in field. They look through methodology, analysis, conclusions, etc.

Either they get rejected outright as not scientifically sound

or sent back for revisions for analysis and experiments to get better quality

You familiar with primary author?

no

Epidemiologist background?

Don't know

(Oster is an economist, that's what Barnett is getting at)

Unnasch: doesn't matter, don't need to know that to assess data for peer review

Unvaccinated at greater risk?

Yes, not sure how much, but greater

Unvaxxed greater risk to transmit to others?

Yes, likely they will be

Any data that masking will harm children?

Not aware of any, no

Based on evidence you've reviewed, canyou say with reasonable degree of scientific certainty that absence of mandatory masks is likely to result in serious illness or death in others?

Yes it likely will, unfortunately

Accurate to say mask wearing is negligible in slowing spread of virus?

I don't necessarily agree with that. Several peer-reviewed studies at beginning of pandemic showing it was effective. But now we're in #DeltaVariant era -- uncharted territory

For under 12 population that can't get vax, what's best thing to do to mitigate spread?

Get vaxxed, but not available until FDA approves. So we're back to what we know works for reducing aerosol viruses. Masking, which has shown to be effective, improved ventilation, air changes

And trying to reduce close contact among students, do as much distancing as possible. Because density of virus particles from infected students decreases as you get further away

Including not having children's desk touching each other in group?

Yes, those sorts of things

Unnasch: good info that level of disease due to #Delta or other #covid variants has a lot to do with amount of virus they're exposed to

And double-cloth masks shown to reduce ~75-80% of aerosol particles. You will be reducing exposure by wearing one

When a person breathes in, 80% of particles are reduced. So if two people wear masks, you get about 96% overall removal.

Unnasch: statewide positivity rate is alarmingly high and continuing to climb.

Is it safe for kids to attend school without mask mandates.

Unnasch: <sigh and pause> In ideal world, we wouldn't need masks and people would do the right thing. But not ideal world.

Without mandate, you'll have more kids without them, will give virus a lot more opportunity to spread.

Cross-examination begins

Daniel Bean questioning Unnasch now

Bean: Would you agree that #COVID19 science is evolving?

Absolutely yes

Know more tomorrow than today?

Yes

So you disagree with CDC study in May 2021 that said school mask use was negligible.

You need to be comparing amount of masks being worn.

So you disagree with their report?

No, but possibly disagree with results. Statistically insignificant may still be significant

Have you ever conducted a science-based test on kids wearing masks in classroom?

no

anyone at USF done that?

Not aware of that no

Bean: do you believe #delta particle is different in size than predecessors?

No

Bean: cloth masks have efficacy rate of 75-80%?

Roughly 80% yes

Based on what studies?

A few recently published, can give you reference files from my lab

Has every credible medical association issued opinion on mask wearing by kids in classroom?

Can't answer, dn't know what all of them are doing

Island hypothetical you gave -- would it be important that the variables were all identical?

Yes of course, everything same

Bean: Any study that's done that?

No of course not, it's a thought experiment

Bean: You attack the Brown Univ study, principally on common sense

Many of limitations of the study I testified to were explicitly pointed out by the authors of the study by @ProfEmilyOster

What data is CDC relying on for its mask recommendation?

Don't know, I don't work for CDC

Same for AAP?

Yes

So doctor to be clear you have not conducted mask study of kids in school?

Still no

Your opinion here today that everyone should wear mask?

yes

So which studies of classroom students are you aware of?

Would have to check reference list

Are you aware of 1964 Helsinki declarations.

yes, have to do with IRB and human use

And patients right?

yes

You're familiar with PBOR passed by state of Florida?

Yes

Do you disagree with Parents Bill of Rights?

No, but my proviso is as long as parent decision doesn't have impact on others.

Judge: Bean, you didn't read whole sentence. It says parents have right "...unless otherwise prohibited by law"

Bean: would you concede there are differences of opinion on efficacy of masks in children?

Yes

Bean: would you say results are inconclusive?

yes, that's probably correct in children

Bean: Are you aware of studies that say mask wearing does not harm a child.

Unnasch: Yes, there are. Shows mask wearing does locally increase CO2 around face, but does not affect blood gas numbers in individuals

Effect of CO2 around mouth?

Makes you stuffy.

Have you done psychological studies about effects of masks?

I'm not a psychologist

FULL STORY HERE @WFLA:

bit.ly/3DcK7xW

Are you familiar with Santa Clara study shared by Dr. Jay Bhattacharya?

What studies does CDC or AAP rely on to say mask wearing is helpful?

I can pull some references. I think CDC produced a slide deck that's publicly available explaining rationale

Would you consider Dr. Jay Bhattacharya a leader in epidemiology?

No I would not. He's a health economist

Have you read his studies?

No I have not

Bean: You're quoted we'll get to herd immunity through infection and vaccination?

Yes

You expect to be done with #COVID19 by October 2021?

Current models were predicting, but they didn't account for rise of #DeltaVariant. But yes current modeling says we should on back end

Bean: Now I don't place much faith in media reports, but....

Judge: Mr. Bean, I don't need your opinion on the media. Just ask questions.

Unnasch says he has to go because brother has conf call and he's on his computer

Bean says questioning is finished

Cooper: before you go, what is CDC and its function?

Unnasch: make public health recommendations, etc.

Judge: Is CDC consider reputable source of info?

Unnasch: the premier source in this area

Barnett: a moment ago Mr. Bean asked if you disagreed with CDC study from May -- did that rely on #delta data?

Unnasch: No

Unnasch is done and drops off

Judge says we'll take 1-hour lunch break

fin for now/

Video of @USFcoph Dr. Thomas Unnasch's thought experiment (NOTE: corrected from earlier tweet)

Introduce 1 #COVID19 patient onto 3 Pacific islands
Same variables (pop., density, etc.)

Cases one month later:
Island A (Wuhan): 64
Island B (Alpha): 729
Island C (Delta): 46,656

https://twitter.com/EvanDonovan/status/1429844511581220865?s=20

Judge is back from lunch break

Next plaintiffs' witness - Amy Nell

Questioned by plaintiffs' counsel Erin Woolums

Nell is a Tampa attorney, criminal defense

She has 2 kids (I'm withholding their names and schools) but both are under 12

Last year started remote e-learning, then went back to in-person after Thanksgiving

"Any e-school for a 6 year old is gonna be challenging"

Learned 1 kid has learning disability

When they came back (last year), under mask mandate, and had more social distancing because lots of kids still e-learning

They excelled once they went back, no problems

Nell: This year, we were emailed a form a few weeks ago with option to opt-out of mask mandate

How is capacity at school different this year?

School accommodates 7-hundred some students, and last year's numbers were above 800. This year it's more because no e-learning option

Nell: Open House was just before school, I think I saw maybe 50% people wearing masks. Teacher in class was not wearing hers. We were wearing ours. She put hers on then.

Desks?

They were setup in pods -- 4 pushed together.

Spacing?

None in pods, but some in between pods

FYI they're discussing the situation at a Hillsborough County middle school, I don't want to disclose more because this is the internet and that's all you need to know to make it relevant.

What about staff in office with masks?

About 80%, most were but some weren't

**SORRY -- elementary school**

We get emails/texts only when there's at least one positive case at the elementary school

So far this year, we've gotten one every day, including on weekends.

Been to lunch this year?

Yes -- all office wearing them, and most kids.

Does that school require uniforms?

yes

Opt out?

No only for religious reasons I think

Let's talk about your other child (6 year old)

She's now in private school, gets tutoring which helps with her learning ability

Does that school have mask mandate?

Yes mask mandate, some considerations made for young kids (mostly 3-5yo), but from 1st through 8th grade->masks

Your kids mask outside school?

yes

Any delays, psych issues, other due to masks?

none

Any issues last year due to masks?

yes. Both tutor and my kid wore masks, and still brought her up in reading levels from probably early K level to 1st grade level

Do you know what a hijab is?

Yes, kid's teacher wears one and a mask

Any issues?

Nope, she says my kid "keeps her on her toes"

Woolums: do you wear masks at home?

Nell: we take them off in the home

What do you do in home?

Homework, board games, cooking, card games, normal family things

Woolums: have you or family traveled since March 2020?

Nell: Massachusetts this and last summer, Philly, DC.

Woolums: sightsee in DC?

Nell: of course, monuments not open, just started to reopen, went to zoo, did go to spy museum

Woolums: what do you think of spy museum requiring masks and your governor preventing them in schools

Bean: Objection - relevance

Overruled

Nell: it doesn't make sense. They make things safer, we should do them

Know anyone with Covid?

Dozens

Symptoms?

Some asymptomatic, some flu-like, a few hospitalized, one died

Woolums: know of nut allergy restrictions, nut-free class?

Nell: yes, kids have been in them before

Did you comply?

Of course, i don't want to be the parent who's responsible for harming other children

Woolums: Familiar with CDC, AAP requirements?

Yes, I think they require them for little kids

Woolums: What's harm to you of no mask mandate?

Nell: We don't want our kids to get sick. Losing kid parents' worst nightmare. I know risk is relatively low, but lots we don't know

Nell: there's just lots we don't know about long-term effects, etc.

Woolums: Requirements of parents in Hillsborough when kid has COVID?

Nell: I think quarantine 10 days.

Options for e-learning?

Nell: I think you have to go to school and pick up self-guided packet. Not sure.

Woolums: how did they do with self-guided last year?

Nell: as well as expected with self-guided education and kids under 10.

Relationship with daughter was strained, I had to be 'mean mommy' looking over her shoulder

E-learning option for other kid?

I think there's an e-learning option, but it doesn't line up with curriculum he's currently learning. If we did that, he'd lose out on social development. He's in X grade, so big man on campus this year

Woolums: you're a plaintiff, why did you bring this lawsuit?

Nell: because I didn't think the governor was protecting my kids' safety. And I teach my kids to stand up when something is wrong

Nell: one-sized fits all policy on masking doesn't make sense. School board has better ability to respond.

Woolums: do you believe masking is parents' choic issue?

Nell: if your choice puts others in harm's way, then it's more of community issue than what i want to do issue

Nell: I take "my brother's keeper" seriously. It's about the community.

Plaintiffs' attorney done

Cross-exam beings

Bean: anything in @GovRonDeSantis EO that precludes your child from wearing mask in school?

no

Does your kid wear mask when he plays tennis?

No

Does he play with other people?

Yes

Judge: We're all aware of the size of a tennis court, Mr. Bean

Do they wear masks?

Sometimes yes, sometimes no

Do they wipe tennis balls down?

No, but he doesn't lick them

Right but the other player touches them right?

Nell: yes

Bean: does governor's EO tell you to wear a mask?

Nell: No

Judge: Are you going to ask every plaintiff questions of law? Because that's my job

Bean: i intend to ask every plaintiff their understanding of EO

Bean: do other people's parents know their kids better than you?

Nell: yes

Judge: I understand everyone's kids are different, learn differently, we all get that

Bean: why is social component important to you?

Nell: well-established that kids need that.

Bean: is school uniform a medical device do you think?

Nell: same way a mask is not, no. it's something you wear to school

Bean: so you disagree with FDA that it's a medical device?

Nell: no i think it's like a seat belt

Bean: On what basis or medical training do you disagree with FDA?

Woolums: Objection -- getting to legal conclusion

Sustained

Bean: part of your lawsuit is that @GovRonDeSantis violated constitutional authority. Your school district did what you wanted, right?

Nell: school board did what it wanted, but yes i agreed

Cross-exam done. No redirect

Next witness: Kristen Thompson

Questioned by plaintiffs' counsel Tracey Sticco

Thompson lives in Alachua. Has two kids, 7 and 3.

3yo is in preschool, not public

7yo is in public, 1st grade

Does 7yo suffer from health/med issues that make her more vulnerable?

Thompson: doesn't suffer, i hate that word, but has medical complexities that make her distinct

Thompson: 7yo diagnosed at birth with #Trisomy18, also causes several other medical conditions, including development delays

She has 10 different specialists.

How does her school accommodate her needs?

IEP, zoned for different school, but better-suited at the school she's at, special program there.

Her class is all kids with specific IEP and need more intense services.

7yo learning math or reading/writing isn't goal, has diff goals

Quite a few parents this year withdrew children, doing home-bound now

Sticco: You've kept 7yo there during these surges, why?

Thompson: she's gone since she was 3, etc.

How do masks play in for her?

She can't wear one bc of developmental delays. Because she breathes through trach/neck, mask doesn't work so it's crucial that others wear them

I tried to get her to wear one, but it was too hard. But the more other people wear one, the less it will affect her

Do kids in her class wear one?

Lots of those kids are similar in their abilities, not as familiar bc brand new school and classroom. But we know another child wheelchair bound, as my 7yo is

Any other indiv. who have access to her classroom throughout day?

Yes, lots of different therapists. They see kids in other parts of school, and other schools, roaming throughout district seeing children.

So when 2 people are wearing mask, it prevents spread more. So if student and therapist wear mask, it's most effective way of protecting

What about home?

In-home nursing care, everyone in our home has to wear masks, wash hands, if they have allergy or sneeze or anything, you cannot come in my house

When family and friends come over...?

Don't do a lot of playdates. But my 3yo has 1 other family we play with

Obviously my husband and I don't wear masks around her. But when we're out, we take every precaution possible because of her. 2 masks in crowded area, etc.

How do you approach this year vs. last year?

District had masks last year. Summer started getting scary.

Have you observed changes in demeanor or communication with others due to masks?

Not really. She has her own way of doing things, hard to explain, she uses body language. I havne't noticed anything, nurse with her hasn't either, teachers use alternative ways bc of their masks

No concern from any of her specialists?

No

Has she been exposed to COVID?

Yes. Was on quarantine only once. Paired professional (IEP teacher aide) tested positive last year. Nobody else in classroom did, which is good.

This year, in her classroom, 2 people have tested +

Sticco: why did you file this lawsuit?

Thompson: lot of reasons. Protecting my child, her mortality has been front and center since birth. Many people don't know #Trisomy18 because 50% who have it pass away in first X weeks, 90% die in first year.

Fact she's 7yo is a miracle

And I just care about other children, I care about their well-being. I'm in that class of parents who knows what it's like to see their kid on a ventilator.

I know parents send their kids to school sick, district has sent out several messages not to, but they're still doing it

Sticco: do you have any other option for her academic needs?

Thompson: no. we tried virtual school, i just gave up, quit trying because it wasn't working

Sticco: if all kids could virtual learn instead of masks, wouldn't help her?

Thompson: no, and no private school works

Could do home-bound, but it's not the same as being in school. More like home schooling than actual school.

What harm will your or other families suffer if Alachua can't enact mandate?

Objection - speculation

Overruled

Daughter could get COVID. Child nearby died recently

Thompson: I've heard availability of services are limited.

Bean: Objection - hearsay

Thompson: i heard them directly, at school board meeting

Judge: Overruled

Thompson: developmentally delayed use those services more often.

Exam over

Cross-exam?

Bean: Does Alachua have mandate right now?

Thompson: yes

Bean: That's all

No redirect

Judge: 15 minute break

fin for now/

Here's video of Kristen Thompson, mother of 2, one of whom has #Trisomy18, on why she filed this lawsuit.

"Since birth, her mortality has been front and center... Also, I just kinda care about other children. I care about their well-being. I've seen my child on a ventilator."

We're back.

Next witness: Dr. Pattie Quigley, practices pediatric hospital medicine.

Questioned by plaintiffs' counsel Joshua Sheridan

Quigley: Wisconsin undergrad, Tufts med school, pediatric residency at Wisconsin, chief residency at same, Masters Med Educ at Iowa, etc.

Going to apologize now -- I have to begin putting stories together for the evening news so tweets will be slightly less regular

But I am listening and will tweet important info

What regard do you hold CDC and AAP?

Extremely high regard

Quigley: I hear my kids, they're home bc they have #COVID19

Thoughts about long term effects of #COVID on kids?

One concern is #longcovid, studies show anywhere between 10 to 40% of kids have lasting impact >4 months

Any unexpected side effects from kids contracting #COVID?

Quigley: I've noticed some brain effects: seizures, encephalitis, seen that more over the last month. One patient in particular hospitalized for at least a few weeks, intractable headaches, slurring speech, diff. walking

Lost any patients to #COVID?

I have not

You recommending masking to parents?

Yes, because it's one thing we can do to mitigate the spread of the virus.

Important for someone who has it and might catch it for both to wear mask? Why impt?

Because may have #COVID and not know

Some other small questions, then it's over

Cross-exam by Bean

Bean: Aware of any scientific studies that mask wearing by kids in class is NOT harmful?

Quigley: No

Bean: You aware of May CDC study on Georgia students?

Quigley: Not that specific study no

Bean: Not aware that it found no appreciable difference between kids masked and not?

Quigley: Not specifically no

Bean: Aware of publication Frontiers in Psychology?

No

NIH?

yes

Bean: You took off mask before testifying -- agree it makes it easier to communicate?

Yes

Bean: Aware of studies of kids masking in schools suffering depression?

No

Bean: You've seen uptick in cases, any studies supporting your view it's from #Delta?

Multiple studies showing it's more contagious.

Bean: But any studies show that?

No but predominant strain in FL rn

Bean: Have you seen defendants' exhibit 18 showing difference between counties with mask mandates vs. without — what's your opinion on why such a negligible difference?

Dr. Quigley: Very hard to assign causal relationship. Many factors.

Cross-exam over.

Sheridan: when you took off mask -- anyone within 6 feet of you?

Quigley: No

Mask study Bean keeps bringing up -- any significance that it was done in May?

Yes, no delta variant then

Sheridan: Are you aware of studies showing masks are effective?

Yes, but can't give you exact names

Do doctors, patients, visitors to hospital have to wear masks?

Yes

Treated any patients who suffered from depression from masks?

No

Sheridan: Turnaround time from testing positive to hospitalization?

Dr. Quigley: Recently, almost immediately. Coming to hospital shortly after showing symptoms.

Witness released

Judge: "Good luck with your kids."

Plaintiff's next witness: Dr. Juan Dumois

Charles Gallagher will question

Background: USF medical degree, residence at USF, fellowship in DC and NIH, came back as attending physician in pediatrics and infectious diseases. In charge of continuing medical education

Dumois says something about 50 fold increase -- I'll come back to this

Compare prior school year to this one.

Similar proportions of majority of children are sent home. Minority of them are being hospitalized. Overall numbers are higher though, because infection numbers higher

R-naught figures now?

Delta is major variant, estimated between 6-8, compared to original, at least 2-3x more

Gallagher: Comparison of R-naught of different diseases?

Dumois: Chicken pox is bad, got much better after 1995 vaccine.

Measles is most contagious disease they know of -- 90% of family members in the home with someone with it will also get measles

Alarming levels of R-naught right now?

Dumois: Yes, very. Just on phone with Tampa doctor who saw 11 patients this morning, 6 were positive

Positivity rating is % of tests coming back positive. When there's more virus activity in community, generally rating rises.

What happens when high positivity and higher R-naught?

Generally leads to higher outbreak until brought under control.

Compare #delta this year to #alpha or #Wuhan OG virus?

Seeing more children with inflammation of the brain this year. Was uncommon last year.

Another complication is MISC -- triggered by COVID, causes inflammation throughout body. Mostly in heart, requires careful monitoring, must treat aggressively.

CDC says universal masking best way to keep kids in person safe in schools.

Any credible scientific medical data that says masking causes physiological or psychological harm?

No. Only aware of difficulties in communication with children who are deaf or have autism. Here, we solve that with clear masks.

Aware of Dr. Jay Bhattacharya and his conclusions?

Yes, through this affidavit. He concludes masking offers no benefit in preventing transmission in or out of school.

Do you agree?

No.

What about Bhattacharya's conclusion about impact on kids?

He says kids generally have good results, and aren't as likely to spread COVID.

Do you agree?

Generally yes, though he leaves out that kids who do get it often have terrible results.

Have you lost kids to covid?

Yes

Gallagher: Have you reviewed Brown University study by @ProfEmilyOster?

Dr. Dumois: Yes, in Florida tried to compare counties with mask mandates vs. others that weren't.

Peer-reviewed or not?

Don't remember

Pre-print, what does that mean?

Not peer reviewed

What does that mean?

Could be potential problems w way data is analyzed or presented

So oversight not there?

Yes.

Any knowledge of parts of Brown study retracted by authors? What's significance of that?

Authors had issues with it, no longer confident in certain conclusions

Consensus generally on recommending masking?

Many studies have looked at how schools dealt with pandemic. By instituting multiple measures, schools were able to mitigate outbreaks

Practically, many couldn't do social distancing.

Agree that masks even more important for kids under 12 since they can't get vaccine?

Yes

Likely outcome of no mandatory masking?

Based on #DeltaVariant and effectiveness of masks, it's inevitable that #COVID19 outbreaks will lead to school closures and quarantining

I recommend it to every parent to mask kids.

End of examination.

Bean on cross-examination

School districts without mandate, why are their schools still open?

My understanding is thousands of kids are sick and quarantined.

But are you aware of any having to close?

No

(Author's note: there's at least one school closed today and tomorrow in Florida because of #COVID outbreak.)

wesh.com/article/brevar…

Bean: What scientific evidence exists that says mask wearing does no harm?

Dumois: there have been studies about whether it affects kids ability to learn showing no significant effect. Only showing bad for kids who already have breathing issues.

Bean: Which studies?

Dumois: Can't cite them here, but have read multiple studies to that effect over last year.

What about studies showing masks reduce spread of virus?

Dumois: various studies tried, looking at transmission of particles, diff kinds of masks....

...studies looking at infection rates in certain indoor environments.

One specific case study - two women in hair salon who were both asymptomaticlly infected with #COVID and wore masks, clients wore masks, saw 130 customers, no other infections.

NB: cdc.gov/mmwr/volumes/6…

Effectiveness of cloth masks?

Generally depends on thread count, thickness - i recommend holding up to light, can't see through then it's better, also how well it fits, should be snug on nose sides and chin. Mask with all those features is more effective than one that doesn't

Bean: masks should be tight around nose and cheek, reduces effectiveness if not?

Dumois: yes

N95 filters out 95% of particles?

Yes

Size of #COVID particles?

It is small, as are all viruses

How big?

Coronavirus could fit thousands of copies of itself in a single human cell. But still somewhat sizeable particle compared to Oxygen or CO2. Made up of ~5 billion atoms.

But must be worn tightly or reduces effectiveness, easier for virus to get in?

Yes

Cross-exam over

Gallagher on redirect

There was discussion of May 2021 CDC study. Can you refresh on timeframe of #DeltaVariant?

Became most common in July. Before that - introduced but increasing in frequency

Has CDC revised recommendations as conditions changed?

Repeatedly

Dearth or no data at all on Delta from May or earlier?

Yes

Witness released.

Judge wants to clarify what the Georgia study is. Found CDC study from May 2021 online. He's asking questions about it now.

Here's link I found, I think this is it:
cdc.gov/mmwr/volumes/7…

Judge is pointing out other passages that defense (DeSantis) team has not been mentioning, such as:

"findings in this report suggest universal and correct mask use is an important COVID-19 prevention strategy in schools as part of a multicomponent approach."

Next witness: Damaris Allen, another plaintiff.

She is a mom from Tampa. I spoke to her on @WFLA last week (story below)

For now -- 15 minute recess, then plan to go to 5 o'clock before finishing for today

wfla.com/news/politics/…

We're back

Plaintiffs' attorney Erin Woolums asking where supplemental exhibits are.

Bean says they were just sent 5 minutes ago. Exhibit 48 specifically.

Judge: We all agree those are going in?

Bean: Yes, 6 supplemental exhibits just submitted 5 minutes ago.

Discussions over the CDC report from May I mention above —

Plaintiffs' attorneys say it's not in exhibit or witness list

Judge: don't think it's fair to question any more witnesses without that in evidence. Now I know why none of these doctors have seen it.

There's a question defense attorney Bean has asked several witnesses that I haven't written in this thread —

Bean has asked if the size of a #COVID19 particle is "about the length that your fingernail grows in 90 seconds."

None of them have answered or understood relevance.

I bring it up now because the judge mentioned it in jest, and plaintiffs' attorney Joshua Sheridan said "I've been staring at my fingernails all afternoon."

Attorney Erin Woolums apologize for coughing, says she caught #COVID from her preschooler.

Judge: Everyone told me 3 days was enough for trial. You understand that half of that is 1.5 days, right?

Gallagher: we should be done before lunch tomorrow.

Sounds like plaintiffs will be calling Dr. Mona Mangat tomorrow, whom I've spoken to before.

wfla.com/community/heal…

Witness now is Damaris Allen. She's discussing her 14 year old, who attends school in Hillsborough County.

"Highly motivated, highly gifted student." Took multiple AP classes last year. Talks about challenges of doing them virtually last year.

Also has 17yo in college. Also gifted, not as 'extreme' as 14yo, who took classes at a local high school, community college, and online last year.

Running out of classes at his traditional high school.

Dress code there?

Yes but countywide. No tank tops, short shorts, etc.

Any opt-out to your knowledge?

No

How are you involved with his high school?

Allen: I'm president of PTA there. Also do work with school district, previous president of county PTA, passing referenda, founded with others a group advocating for safe return based on CDC guidlines

Allen: Also gone to Tallahassee to advocate, I'm a volunteer, etc. Anywhere from 15-70 hours a week.

Woolums: Open house this year?

Allen: Yes as PTA president.

Can you describe safety precautions?

Allen: Not much, a few with masks. Only freshman parents allowed on campus.

Allen: Hillsborough County voted last week for mask mandate with only medical exemption

I did public records request, found out 1,206 parents opted their kids out. So around half of the school isn't wearing masks.

Does your 14yo wear mask in school?

Yes

Negative effect?

Absolutely not

Traveled during pandemic?

A few times yes, when spread was low, and always to places where spread was low unless for work.

Went to Tally 4 times during legislative session

Rules in Tallahassee during session?

Florida Senate was virtual testimony, Florida House you had to wear masks.

If Hillsborough County didn't have mask mandate, what would be harm to you or your family?

Allen: would put my kid at higher risk, bring COVID home to my house, put the rest of our family at risk. Would also keep us from seeing grandmother and family members with health issues

Does Hillsborough County have online option for kids who are quarantined?

Traditionally through teachers uploading assignments, students then complete them on their own.

Why bring lawsuit?

Very concerned about my kids health and other kids health in my community

Why should school districts have authority here?

Because they know better than state. Parental choice is false narrative, bc ultimately you're saying one person's choice is more important than another.

My mask prevents you from getting what I have. It's a public health issue.

Bean very short cross-examination

No redirect

Judge thanks Allen, releases witness

Judge moves to recess for the day. Will begin again at 9:30 tomorrow

Judge: Reminder—it's never too late to resolve your differences instead of me.

Will post my story here later!

/fin for now

Got a live story coming up at 5:40 Central Time on @NewsNationNow — check it out wherever you live!

This exchange was interesting — all day, DeSantis' defense attorneys kept referring to a CDC report from May 2021 showing school masking wasn't "statistically significant." I linked to it above.

But when Judge Cooper found it, he noted the defense attorneys left a lot out (cont)

Defense attorneys kept referring to this part:

"The 21% lower incidence in schools that required mask use among students was not statistically significant compared with schools where mask use was optional."

Here's the link again:
cdc.gov/mmwr/volumes/7…

Judge Cooper:
"If I'm looking at the right report, it says 'findings in this report suggest universal and correct mask use is an important COVID-19 prevention strategy in schools as part of a multicomponent approach.'"

Judge Cooper: "Is this the report that also in the summary says—I just wanna make sure I'm looking at the right report—it says 'COVID-19 incidence was 37% lower in schools that required teachers and staff members to use masks and 39% lower in schools that improved ventilation.'"?

Florida data show 40 counties w/ mask mandates fared only 0.5% better than 20 w/o mandates last year (pre-Delta).

Why?

@USFcoph Dr. Thomas Unnasch: "That would probably have to do with a lot of the other confounding factors such as level of community transmission in the area."

I can't remember (long thread!) if I tweeted that part out yet — but defense plans to spend time on this later.

Defense brought up negligible difference between masked/unmasked counties a lot, and that 4 counties with highest rates of #COVID19 last year had mask mandates.

Dr. Unnasch also answered cross-examination about a media report of him saying the pandemic would be "done by October (of this year)."

Defense: Do you expect that?

Unnasch: "Models also didn't predict rise of #DeltaVariant. If all things do remain same, yes we should."

You heard @GovRonDeSantis defense attorney Daniel Bean take a shot at the media in that last question.

He did it again moments later...and Judge Cooper was having none of it.

"Mr. Bean, I don't need you to give me your opinion on the media... Just please ask questions."

Damaris Allen is the Tampa mom and plaintiff who testified last.

Attorney: Why is leaving masks up to parents a problem?

"Parental choice—it's really a false narrative. Because at some point you're ultimately choosing that one parent's choice matters over another."

Attorney: Why should local school boards choose whether to mask?

Damaris Allen, mom & plaintiff: "Because local boards have the ability to make the decision based on the needs of a local community."

All right y'all I'm out.

Check out the full story below and I'll be back tomorrow — trial kicks off at 9:30am again.

And don't forget to watch my weekly local political show #BattlegroundFlorida every Sunday 9:30am.

Have a great night!

bit.ly/3DcK7xW @WFLA

https://twitter.com/EvanDonovan/status/1430160162308898820?s=20