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Case 5:21-cv-00393 Document 7 Filed 07/30/21 Page 1 of 21 PageID #: 94

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

STEPHANIE MCCUTCHEON,

Plaintiff,

v. Civil Action No.5:21-cv-00393


Honorable Frank W. Volk
ENLIVANT ES, LLC, a foreign
limited liability company, d/b/a
SEASONS PLACE ASSISTED
LIVING FACILITY,

Defendant.

PLAINTIFF’S RESPONSE TO MOTION TO DISMISS

Comes now the Plaintiff, Stephanie McCutcheon, by and through counsel, John H.

Bryan, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and moves the Court to

deny the motion to dismiss filed by the “Enlivant” defendants. In support hereof, the Plaintiff

states as follows:

INTRODUCTION

Plaintiff, Stephanie McCutcheon was employed at Seasons Place Assisted Living, located

in Lewisburg, West Virginia, for the past five years. She was recently terminated for violating the

defendant’s corporate policy mandating their employees to receive one of the Emergency Use

Authorization (“EUA”) vaccines for COVID-19. Plaintiff asserted a state law claim for

retaliatory discharge against “Enlivant” based on pursuant to the exception to at-will

employment created under Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270

(1978). Plaintiff also asserted a count for declaratory relief in Count Two of the Complaint, as

well as a petition for injunctive relief in County Three. Plaintiff has now been terminated from

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her employment. She no longer wishes to pursue injunctive relief under Count Three and hereby

withdraws the same. As such, Plaintiff will not address Count 3 in her response. Examining the

allegations in the Complaint under Rule 12(b)(6), Plaintiff has stated a plausible claim for relief,

which at the very least presents issues of material fact surrounding the termination of the

Plaintiff, and whether the defendant employer’s motivation for the discharge was to contravene

some substantial public policy principle applicable under State law, so as to be liable to Plaintiff

for damages.

DEFENDANTS’ ARGUMENTS

A. Retaliatory Discharge

Defendants argue that 21 U.S.C. § 360bbb-3(e)(1)(A) (“Section 360bbb-3”) is

unenforceable as to a private employer. However, they disregard the fact that state law

incorporates Section 360bbb-3 within the scope of relevant public policy applicable to a state law

claim for retaliatory discharge. West Virginia law provides a cause of action for an employer

discharging an otherwise at-will employee, where the employer’s motivation for the discharge is

to contravene some substantial public policy principle. Section 360bbb-3 provides that EUA

vaccines are prohibited from being mandated.“Public policy” is a broad concept under West

Virginia law, as compared to other states, and includes Section 360bbb-3, whether or not directly

enforceable by private sector employees.

Seeking to temper the otherwise harsh results that would obtain where a discharge from

employment was impelled by the employer's desire to contravene public policy, an exception to

the common law doctrine of at-will employment was established. See Frohnapfel v.

ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015); See also Wright v.

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Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459, 468 (1955)

(recognizing that at- will employees serve at will and pleasure of their employers and may be

discharged at any time, with or without cause). That exception, created in Harless v. First

National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), provides:

The rule that an employer has an absolute right to discharge an at will employee must be
tempered by the principle that where the employer's motivation for the discharge is to
contravene some substantial public policy principle, then the employer may be liable to
the employee for damages occasioned by this discharge.

Id. at 116, 246 S.E.2d at 271, syllabus; Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165,

772 S.E.2d 350 (W. Va. 2015). The Court has identified the areas from which public policy may

be gleaned:

‘The sources determinative of public policy are, among others, our federal and state
constitutions, our public statutes, our judicial decisions, the applicable principles of the
common law, the acknowledged prevailing concepts of the federal and state governments
relating to and affecting the safety, health, morals and general welfare of the people for
whom government—with us—is factually established.’

“To identify the sources of public policy for purposes of determining whether a retaliatory

discharge has occurred, we look to established precepts in our constitution, legislative

enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel, 188

W.Va. at 372, 424 S.E.2d at 607. “Substantial public policy” has been defined by the Supreme

Court as “not just recognizable as such but be so widely regarded as to be evident to employers

and employees alike.” Id. at 745, 559 S.E.2d at 718. The Court recognized in Syllabus Point 3 of

Birthisel that ““[i]nherent in the term ‘substantial public policy’ is the concept that the policy will

provide specific guidance to a reasonable person.” 188 W.Va. at 372, 424 S.E.2d at 607. The

Court has looked to whether regulations or licensing statutes contained specific provisions that

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addressed the allegedly improper conduct by the employer. Frohnapfel v. ArcelorMittal USA

LLC, 235 W.Va. 165, 170 (W. Va. 2015).

Section 564 of the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 360bbb-3,1

authorizes the Food and Drug Administration (“FDA”) to issue an “emergency use

authorization” (“EUA”) for a medical product, such as a vaccine, under certain emergency

circumstances. This authorization permits the product to be introduced into interstate commerce

and administered to individuals even when FDA has not approved the product for more general

distribution pursuant to its standard review process. Section 564 directs FDA—“to the extent

practicable” given the emergency circumstances and “as the [agency] finds necessary or

appropriate to protect the public health”—to impose “[a]ppropriate” conditions on each EUA.

FDCA § 564(e)(1)(A). Some of these conditions are designed to ensure that recipients of the

product “are informed” of certain things, including “the option to accept or refuse administration

of the product.” Id. § 564(e)(1)(A)(ii)(III) (emphasis added).

Thus, Congress created a scheme in which potential users of an EUA vaccine must be

informed that they have “the option to accept or refuse” the vaccine. That inconvenient fact was

recently observed in apparent frustration by the Department of Justice in their recent guidance

letter to the President on the legality of EUA vaccine mandates.1 Defendants are asking the Court

to conclude that despite Congress’ express requirement and intention that there be an “option”

for the EUA vaccine’s intended recipients, that in practice no such option exists, due to the

1
See Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use
of a Vaccine Subject to an Emergency Use Authorization, Memorandum Opinion for the Deputy Counsel
to the President, July 6, 2021 (“Our reading of section 564(e)(1)(A)(ii)(III) does not fully explain why
Congress created a scheme in which potential users of the product would be informed that they have “the
option to accept or refuse” the product. The legislative history of the 2003 statute does not appear to offer
any clear explanation.”)

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absence of an enforcement mechanism for private employees. The issues of applicability and

enforceability of Section 360bbb-3’s option requirement have apparently perplexed the executive

branch for some time. However, Plaintiff’s claims do not turn on federal application and

enforceability of Section 360bbb-3, as she asserts West Virginia’s public policy exception to

state-law at-will employment. West Virginia’s broad definition of the scope of public policy

includes Congress’ express prohibition of EUA mandates - whether or not enforceable by private

employees.

On a few occasions, the FDA has made statements that could be understood as saying that

the condition described in section 564(e)(1)(A)(ii)(III) prohibits entities (particularly the U.S.

military) from requiring the use of EUA products. In 2005, for instance, FDA issued an EUA that

permitted the use of a vaccine for the prevention of inhalation anthrax by individuals between 18

and 65 years of age who were deemed by the Department of Defense (“DOD”) to be at

heightened risk of exposure due to an attack with anthrax. As a condition of that authorization,

the agency required DOD to inform potential vaccine recipients “of the option to accept or refuse

administration of [the vaccine].” Authorization of Emergency Use of Anthrax Vaccine Adsorbed

for Prevention of Inhalation Anthrax by Individuals at Heightened Risk of Exposure Due to

Attack With Anthrax; Availability, 70 Fed. Reg. 5452, 5455 (Feb. 2, 2005). That EUA continued:

With respect to [the] condition . . . relating to the option to accept or refuse


administration of [the vaccine], the [immunization program] will be revised to give
personnel the option to refuse vaccination. Individuals who refuse anthrax vaccination
will not be punished. Refusal may not be grounds for any disciplinary action under the
Uni- form Code of Military Justice. Refusal may not be grounds for any adverse
personnel action. Nor would either military or civilian personnel be considered non-
deployable or processed for separation based on refusal of anthrax vaccination. There
may be no penalty or loss of entitlement for refusing anthrax vaccination.

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Id.; see also id. (allowing DOD to inform recipients that “military and civilian leaders strongly

recommend anthrax vaccination, but . . . individuals [subject to the vaccination program] may

not be forced to be vaccinated” and that “the issue of mandatory vaccination will be reconsidered

by [DOD] after FDA completes its administrative process.”). FDA included the same information

in its later extension of that EUA. See Authorization of Emergency Use of Anthrax Vaccine

Adsorbed for Prevention of Inhalation Anthrax by Individuals at Heightened Risk of Exposure

Due to Attack With Anthrax; Extension; Availability, 70 Fed. Reg. 44,657, 44,659–60 (Aug. 3,

2005).

In addition, although it is less than clear, certain FDA guidance could be read as saying

that section 564 confers an affirmative “option” or “opportunity” to refuse EUA products. See

EUA Guidance at 24 n.46 (implying that the condition in section 564(e)(1)(A)(ii)(III)—which is

subject to waiver for the armed forces under 10 U.S.C. § 1107a—protects “the option for

members of the armed forces to accept or refuse administration of an EUA product”); Guidance

Emergency Use Authorization of Medical Products, 2007 WL 2319112, at *15 (July 1, 2007)

(stating that “[r]ecipients must have an opportunity to accept or refuse the EUA product”).

Section 564(e)(1)(A)(ii)(III) also raises a question about how to understand its cognate

provision regarding the use of EUA products by the armed forces. As noted above, in the same

2003 legislation that first created section 564, Congress also added the following provision to

title 10 of the United States Code:

In the case of the administration of [an EUA] product . . . to members of the armed
forces, the condition described in section 564(e)(1)(A)(ii)(III) . . . and required under
paragraph (1)(A) or (2)(A) of such section 564(e), designed to ensure that individuals are
informed of an option to accept or refuse administration of a product, may be waived
only by the President only if the President determines, in writing, that complying with
such requirement is not in the interests of national security.

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10 U.S.C. § 1107a(a)(1). The conference report on the legislation that created both section 564 of

the FDCA and section 1107a of title 10 described the latter provision in the following way:

[This provision] would authorize the President to waive the right of service members to
refuse administration of a product if the President determines, in writing, that affording
service members the right to refuse the product is not feasible, is contrary to the best
interests of the members affected, or is not in the interests of national security.

H.R. Rep. No. 108-354, at 782 (2003) (Conf. Rep.) (emphasis added). This language indicates

that the conferees believed that section 1107a concerns some “right” of members of the armed

forces to refuse the use of EUA products. And that belief may help to explain why section 1107a

allows only the President to exercise the waiver authority. The DOD has understood section

1107a to mean that DOD may not require service members to take an EUA product that is

subject to the condition regarding the option to refuse, unless the President exercises the waiver

authority contained in section 1107a.2 There can be no doubt that Congress enacted the

legislation, and did so for the purposes of protecting the public health from unapproved medical

products.

The Mandatory COVID-19 Vaccination Directive issued by the Defendant is in direct

violation of Federal law, specifically 21 U.S. Code § 360bbb-3 – Authorization for medical

products for use in emergencies. That law states that where a medical product is “unapproved”

then no one may be mandated to take it. At Section (e)(1)(A) of the aforementioned statute it

states:

With respect to the emergency use of an unapproved product, the Secretary, to the extent
practicable given the applicable circumstances described in subsection (b)(1), shall, for a
person who carries out any activity for which the authorization is issued, establish such

2 See DOD Instruction 6200.02, § E3.4 (Feb. 27, 2008) (“In the event that an EUA granted by the
Commissioner of Food and Drugs includes a condition that potential recipients are provided an option to
refuse administration of the product, the President may . . . waive the option to refuse for administration
of the medical product to members of the armed forces.”).

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conditions on an authorization under this section as the Secretary finds necessary or


appropriate to protect the public health, including the following:

(i) Appropriate conditions designed to ensure that the health care


professionals administering the product are informed – 


(ii) of the significant known and potential benefits and risks of the
emergency use of the product, and of the extent to which such benefits
and risks are unknown; and 


(iii) of the alternatives to the product that are available, and of their
benefits and risks. 


(iv) Appropriate conditions designed to ensure that individuals to whom


the product is administered are informed— 


(v) that the Secretary has authorized the emergency use of the product; 


(vi) of the significant known and potential benefits and risks of such use,
and of the extent to which such benefits and risks are unknown; and 


(vii) of the option to accept or refuse administration of the product,


of the consequences, if any, of refusing administration of the product, and
of the alternatives to the product that are available and of their benefits
and risks (emphasis added) 


Thus, Congress provided that, in order to “protect the public health,” members of the public

being administered an EUA vaccine must have “the option to accept or refuse administration of

the product….”

Plaintiff was deprived of that choice in total disregard of her freedom to make her own

personal health choice in regards to an experimental vaccine. Plaintiff was not given a choice;

she was given a mandate. Plaintiff communicated this information to her employer, as evidenced

by a letter dated May 4, 2021, wherein she specifically cited Section 360bbb-3 and the provision

forbidding the mandating of the vaccine. See Exhibit “D” to the Complaint. In response, Plaintiff

received a letter from Defendant dated May 7, 2021 from Nate McBride, Senior Human

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Resources Manager, which stated that “all Enlivant employees must be vaccinated or have an

approved accommodation.” See Exhibit “E” to the Complaint.

Thereafter Plaintiff was discharged in retaliation for her refusal to take the unapproved

and non-mandatory vaccine, as well as for her insistence that defendant comply with existing

federal law and public policy. Such conduct is in violation of a substantial public policy of West

Virginia, as defined by the State Supreme Court, and is the basis for an exception to the at-will

employment doctrine. The federal statutes and regulations discussed herein are sufficient so as to

provide guidance to a reasonable person to understand that non-mandatory unapproved vaccines

should not be mandated by employers in West Virginia - especially after more than 1.5 years

have elapsed since the event giving rise to the emergency which formed the basis of the

emergency use authorization occurred.

Defendants argue that West Virginia policy favors mandated vaccination.3 However,

that’s not the case. Several days ago, West Virginia News reported that Governor Jim Justice

announced that he opposes vaccine mandates for state employees. See West Virginia Gov. Jim

Justice opposes vaccine mandate for state employees, July 26, 2021.4 West Virginia Attorney

General Patrick Morrisey was interviewed by radio host Tom Roton on the same day and

declared that West Virginia should not require vaccine passports, in order to travel or participate

in certain activities.5 The state’s largest university, WVU, as early as March of 2021, announced

3
Def.’s Mem. 8-10.
4 https://www.wvnews.com/news/wvnews/west-virginia-gov-jim-justice-opposes-vaccine-mandate-for-
state-employees/article_37d27e14-ee23-11eb-8df3-97c0f363507a.html ; see also https://www.wboy.com/
news/health/coronavirus/watch-live-wv-gov-justice-sets-tuesday-covid-19-briefing-for-100-p-m/ ; https://
www.wdtv.com/2021/07/27/wva-officials-react-covid-19-vaccine-mandates-employees/
5
See https://www.iheart.com/podcast/269-the-tom-roten-morning-show-70632979/episode/ag-patrick-
morrisey-wv-should-not-85197550/

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that they would not be mandating vaccines for students and staff.6 As of the date of this filing,

WVU policy provided that, “[a]t this time, students and employees are not required to be

vaccinated,” but that the “University will reevaluate vaccination requirements upon FDA

approval.”7

Defendants argue that Plaintiff’s counsel has previously provided the opinion to local

television news that employers may mandate vaccines.8 However, if the undersigned counsel

could effect changes in law by virtue of providing public opinions, individual citizens in West

Virginia would live much more closely to the state motto, Montani Semper Liberi. Counsel was

addressing the issue of whether employers could compel vaccinations in general, assuming FDA

approval. There is no legal precedent authorizing any entity to mandate vaccines unapproved

vaccines still in the testing process. In any event, counsel would still argue that Jacobson v.

Commonwealth of Mass., 197 U.S. 11 (1905), upon which defendants rely, has been implicitly

overturned several times over.

Proponents of governmental overreach in the COVID era have consistently pointed to

Jacobson as justification for whatever measures the government is undertaking for the purported

goals of protecting the health and safety of their citizens, which in turn is utilized by both public

and private employers to attempt to mandate vaccines on their employees. Jacobson opined on

the role of the U.S. Constitution in controlling state police powers, as understood in 1905,

granting states and local governments an affirmative carte blanche to engage in state disease

control efforts. The reliance upon Jacobson fails to recognize the implicit overruling that modern

6
https://www.washingtonpost.com/health/2021/05/21/employers-colleges-vaccine-mandates/
7 https://www.wvu.edu/return-to-campus/what-you-need-to-know/vaccine
8
See Def.’s Mem. at 6.

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civil liberties jurisprudence enacted, including the right of bodily integrity. Jacobson’s rationale

led to the case of Buck v. Bell, the infamous 1927 U.S. Supreme Court decision that found no

restriction was placed on states’ police powers by the U.S. Constitution regarding a state’s public

policy initiative to engage in involuntary sterilization of a woman who was purported to be of

low intelligence. 274 U.S. 200 (1927). Recently - but prior to the pandemic - the U.S. Supreme

Court lamented and lambasted its prior holding in Buck, noting that the Court at that time had

offered a “full-throated defense of forced sterilization,” quoting the opinion written by Oliver

Wendell Holmes, Jr.:

We have seen more than once that the public welfare may call upon the best citizens for
their lives. It would be strange if it could not call upon those who already sap the strength
of the State for these lesser sacrifices, often not felt to be such by those concerned, in
order to prevent our being swamped with incompetence. It is better for all the world, if
instead of waiting to execute degenerate offspring for crime, or to let them starve for their
imbecility, society can prevent those who are manifestly unfit from continuing their kind.
The principle that sustains compulsory vaccination is broad enough to cover cutting the
Fallopian tubes. Three generations of imbeciles are enough." Id. , at 207, 47 S.Ct. 584.

Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S.Ct. 1780 (2019). The Court noted that the

decision “gave the eugenics movement added legitimacy and considerable momentum” and that

by 1931, 28 out of 48 states had adopted eugenic sterilization laws. Id. at 1786.

Long before the Supreme Court’s lamentation in Box, the Sixth Circuit noted in Fieger v.

Thomas, that Buck’s ruling has been repudiated. 74 F.3d 740, 750 (6th Cir. 1996). To repudiate

Buck is to repudiate Jacobson and the concept that the state’s police power, from a federal

constitutional perspective, is legitimate so long as the regulation bears a real or substantial

relation to the protection of the pubic health and public safety. Buck simply carried the rationale

of Jacobson to its logical conclusion. The Buck court said specifically that the principle

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established in Jacobson sustaining compulsory vaccination was in turn broad enough to cover the

cutting of fallopian tubes. Buck, 274 U.S. at 207. If courts now recognize that Buck has been

repudiated, then courts must recognize that which breathed life into the Buck decision also is

repudiated.

Jacobson left the door open for future refinement, conceding that state or local

government could exercise police powers in an arbitrary or unreasonable manner. 197 U.S. at 28.

The ensuing future refinement came in the form of 20th century civil liberties which were

recognized and developed by the courts. Since Jacobson, the Supreme Court has recognized

numerous limits on health and safety regulations, including the right against involuntary

restraint9, decisions about marriage10, contraception 11, procreation12, family relationships 13,

sexual relationships14, child rearing and education15, as well as the right to refuse life-saving

treatment16. This evolution is recognized, and the implicit overruling of Jacobson is suggested in

the recent opinion in Cnty. of Butler v. Wolf, 486 F.Supp.3d 883 (W.D. Pa. 2020).

In addition to the rights itemized supra, the Supreme Court recognized, and continues to

recognize, the right of bodily integrity, which was the category of freedom from government

9 Addington v. Texas, 441 U.S. 418 (1979); O’Connor v. Donaldson, 422 U.S. 5563 (1975).
10 Loving v. Virginia, 388 U.S. 1 (1967).
11 Griswold v. Connecticut, 381 U.S. 479 (1965).
12Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833
(1992).
13 Prince v. Massachusetts, 321 U.S. 158 (1944); Moore v. City of East Cleveland, 431 U.S. 494 (1977).
14
Lawrence v. Texas, 539 U.S. 558 (2003).
15 Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin
v. Yoder, 406 U.S. 205 (1972).
16
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).

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action, the higher order, under which the specific rights described in Roe, as well as Cruzan, fell.

E.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 915 (1992) (“One aspect of

this liberty is a right to bodily integrity, a right to control one’s person.”). In Cruzan, Chief

Justice Rehnquist reiterated in his majority opinion, “every human being of adult years and

sound mind has a right to determine what shall e done with his own body….” Cruzan, 479 U.S.

at 269.

West Virginia has also recognized the right to bodily integrity as a fundamental right. In

the recent decision in Kruse v. Farid, 835 S.E.2d 163 (W. Va. 2019), the West Virginia Supreme

Court noted that “all competent patients have the right to refuse medical care,” and that such

right “has been recognized by both the United States Supreme Court and by the Legislature of

this State.” Id. at 168. The Court cited the U.S. Supreme Court at length:

[a]t common law, even the touching of one person by another without consent and
without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn
of the century, this Court observed that "[n]o right is held more sacred, or is more
carefully guarded, by the common law, than the right of every individual to the
possession and control of his own person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law." Union Pacific R. Co. v. Botsford,
141 U.S. 250, 251[, 11 S. Ct. 1000, 1001, 35 L. Ed. 734] (1891). This notion of bodily
integrity has been embodied in the requirement that informed consent is generally
required for medical treatment. Justice Cardozo, while on the Court of Appeals of New
York, aptly described this doctrine: "Every human being of adult years and sound mind
has a right to determine what shall be done with his own body[.]" Schloendorff v. Society
of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) [, superseded by
statute on other grounds as stated in Retkwa v. Orentreich , 584 N.Y.S.2d 710, 154 Misc.
2d 164 (N.Y. Sup. Ct. 1992) ]. The informed consent doctrine has become firmly
entrenched in American tort law. See Keeton, Dobbs, Keeton, & Owen, supra, § 32, pp.
189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990).

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[T]he common-law doctrine of informed consent is viewed as generally encompassing


the right of a competent individual to refuse medical treatment. Cruzan by Cruzan v. Dir.,
Mo. Dep't of Health , 497 U.S. 261, 269-70, 277, 110 S.Ct. 2841, 111 L.Ed.2d 224
(1990). Accord Collins , 517 S.W.3d at 92 (" ‘All competent adults have a fundamental
right to bodily integrity. ... Included in this right is the right of competent adult patients to
accept or reject medical treatment.’ " (quoting Church v. Perales , 39 S.W.3d 149, 158
(Tenn. Ct. App. 2000) ) (additional citations omitted)). Likewise, the West Virginia
Legislature has recognized this personal right to make health care decisions: "Common
law tradition and the medical profession in general have traditionally recognized the right
of a capable adult to accept or reject medical or surgical intervention affecting one's own
medical condition[.]" W. Va. Code § 16-30-2(b)(1) (LexisNexis 2016).

Kruse v. Farid, 835 S.E.2d 163, 168-69 (W. Va. 2019).

A peer reviewed article in the American Journal of Public Health from April of 2005,

forecasted future constitutional arguments surrounding Jacobson, concluding that mandatory

vaccinations in the face of a public health threat would probably be justified, so long as FDA

approved:

Given the changes in constitutional law, public health, and government regulation, what
kinds of public health laws that address contagious diseases might be constitutionally
permissible today? A law that authorizes mandatory vaccination during an epidemic of a
lethal disease, with refusal punishable by a monetary penalty, like the one at issue in
Jacobson, would undoubtedly be found constitutional under the low constitutional test of
“rationality review.” However, the vaccine would have to be approved by the FDA as safe
and effective, and the law would have to require exceptions for those who have
contraindications to the vaccine.…

On the other hand, if a vaccine were investigational, compulsory vaccination would not
be constitutional, and people would be less likely to accept it voluntarily. Likewise, a
state statute that actually forced people to be vaccinated over their refusal, such as
Florida’s new “public health emergency” law, would probably be an unconstitutional
violation of the right to refuse treatment.17

Thus, the jurisprudence of the West Virginia Supreme Court, as well as the U.S. Supreme

Court, are consistent in their establishment of a fundamental right to bodily integrity, as well as

17
Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, American
Journal of Public Health, April 2005, Vol. 95, No. 4, by Wendy K. Mariner JD, LLM, MPH, George J.
Annas JD, MPH, and Leonard H. Glantz JD.

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the public policy principle that individuals must not be subjected to medical procedures or

intrusions into their body, without their informed voluntary consent. This is consistent with

Section 360bbb-3’s prohibition of EUA mandates. Congress intended for anticipated recipients of

EUA products to have an “option,” rather than a mandate.

Defendants cite Bridges v. Hous. Methodist Hosp. (S.D. Tex. 2021) in support of their

arguments. However, the distinctions between Texas law and West Virginia law distinguishes the

District Court’s opinion in Bridges, from the matter sub judice. In that case, the Court noted that

“Texas law only protects employees from being terminated for refusing to commit an act

carrying criminal penalties to the worker,” and that “[t]o succeed on a wrongful termination

claim, Bridges must show that (a) she was required to commit an illegal act - one carrying

criminal penalties, (b) she refused to engage in the illegality, (c) she was discharged, and (d) the

only reason for the discharge was the refusal to commit an unlawful act.” Id. at 1-2. The Court

observed that Texas law does not recognize a public policy exception to at-will employment. Id.

at 2. To the contrary, West Virginia law does recognize such an exception to the general at-will

employment doctrine, as explained supra.

Likewise, two days after defendants filed their motion to dismiss, another vaccine

mandate opinion was released by the U.S. District Court for the Northern District of Indiana,

denying a motion for preliminary injunction filed by eight students against Indiana University,

challenging the university’s vaccine mandate. See Klaassen v. The Trustees of Indiana

University, No. 1:21-cv-238 DRL (N.D. Ind. 2021). This opinion too is distinguishable from the

Plaintiff’s cause of action. At issue in Klaassen was whether the students were entitled to a

preliminary injunction, which the Court boiled down to the basic issue of whether their asserted

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rights were entitled to anything more than rational basis review, which the Court opined that they

were not. Id. at (3). The Court made clear that the opinion “isn’t a decision after a final trial on

the merits” and that the litigation would proceed to develop the factual record. Id. at (D).

Moreover, the Court warned the university that the Fourteenth Amendment doesn’t give the

university carte blanche authority to do as it pleases so long as it acts in the name of addressing

COVID-19; that the students indeed have a liberty stake and that the university must act

reasonably. Id. Ultimately, the Court adopted a similar justification being made by the defendants

in their memorandum, that depriving students of the ability to attend a semester of school still

provides the student with a technical “choice,” even if that choice may prove “difficult”:

This university policy isn't forced vaccination. The students have options - taking the
vaccine, applying for a religious exemption, applying for a medical exemption, applying
for a medical deferral, taking a semester off, or attending another university. This policy
applies for the fall 2021 semester only. Students may make their choice after being
advised of the risks and benefits of the vaccines, thereby giving informed consent. The
court recognizes that for certain students this may prove a difficult choice, but a choice
nonetheless. The choice isn't so coercive as to constitute irreparable constitutional harm.
Although it proves a condition to attend this fall, it is reasonable under the Constitution.

Id.

The so-called “choice” available to the Plaintiff was substantially more “difficult” than

the option to take a semester off from school, but rather to be discharged from one’s sole source

of income. That’s no choice at all, and distinguishable from the reasonableness analysis adopted

by the Court in Klaassen. Although this case involves a private employer, rather than the

government, the issue over whether a “choice” exists is the same. As the Western District of

Pennsylvania noted in Cnty. of Butler v. Wolf, pursuing one’s chosen occupation, or rather not

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being discharged from it, even in the middle of a pandemic, is deeply rooted in our constitutional

jurisprudence:

The Due Process Clause of the Fourteenth Amendment includes a substantive component
that bars arbitrary, wrongful, government action "regardless of the fairness of the
procedures used to implement them." Zinermon v. Burch , 494 U.S. 113, 125, 110 S.Ct.
975, 108 L.Ed.2d 100 (1990). Contrary to Defendants’ argument, the right of citizens to
support themselves by engaging in a chosen occupation is deeply rooted in our nation's
legal and cultural history and has long been recognized as a component of the liberties
protected by the Fourteenth Amendment. Over a century ago, the Supreme Court
recognized that "[i]t requires no argument to show that the right to work for a living in
the common occupations of the community is of the very essence of the personal freedom
and opportunity that it was the purpose of the [Fourteenth] Amendment to secure." Truax
v. Raich , 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (holding that a state anti-alien
labor statute violated both equal protection and due process). Later, in striking down a
law banning the teaching of foreign languages in school, the Supreme Court observed
that the Fourteenth Amendment guaranteed the right, inter alia , "to engage in any of the
common occupations of life ...." Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67
L.Ed. 1042 (1923). The emphasis given to economic substantive due process reached its
apex in the Lochner era, Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937
(1905), and was considerably recalibrated and de-emphasized by the New Deal Supreme
Court and later jurisprudence. Nevertheless, our Supreme Court has never repudiated the
recognition that a citizen has the right to work for a living and pursue his or her chosen
occupation.

Cnty. of Butler v. Wolf, 486 F.Supp.3d 883, 920 (W.D. Pa. 2020).

Defendants argue that Plaintiff is not being “mandated” to take a vaccine because she

technically has the “choice” of being discharged from her employment. However, such a

“choice” has been demonstrated in other areas of jurisprudence as nothing but raw coercion. For

instance, voluntary consent is one of the few specifically established and well-delineated

exceptions to the per se prohibition of warrantless searches under the Fourth Amendment. See

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). "Whether an individual's consent was

voluntary, or the product of duress or coercion, is a question of fact to be determined from an

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assessment of the totality of the circumstances. U.S. v. Crews, 30 F.3d 131 (4th Cir. 1994),

quoting United States v. Mendenhall, 446 U.S. 544, 577 (1980); Schneckloth, 412 U.S. at 227.”

The Plaintiff’s Complaint alleges that such “choices” in-part qualify as against West

Virginia’s public policy by virtue of the fact that the mandate of an unapproved experimental

EUA vaccine violates the Nuremberg Code, in addition to Section 360bbb-3.18 In the case of In

re Cincinnati Radiation Litigation, 874 F.Supp. 796 (S.D. W.Va. 1995), the Southern District of

West Virginia found, in the context of a Section 1983 action, that the “constitutional law

controlling the invasion of an individual’s bodily integrity was clearly established between 1960

and 1972” for which the Court invoked the Nuremberg Code, which the Court quoted:

The voluntary consent of the human subject is absolutely essential. This means that the
person involved should have legal capacity to give consent; should be so situated as to be
able to exercise free power of choice without the intervention of any element of force,
fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion and
should have sufficient knowledge and comprehension of the elements of the subject
matter involved as to enable him to make an understanding and enlightened decision.
This latter element requires that before the acceptance of an affirmative decision by the
experimental subject there should be made known to him the nature, duration, and
purpose of the experiment; the method and means by which it is to be conducted; all
inconveniences and hazards reasonably to be expected; and the effects upon his health
and person which may possibly come from his participation in the experiment.
The duty and responsibility for ascertaining the quality of the consent rests upon each
individual who initiates, directs, or engages in the experiment. It is a personal duty and
responsibility which may not be delegated to another with impunity...

In re Cincinnati Radiation Litigation, 874 F.Supp. 796, 820 (S.D. W.Va. 1995). The Court wrote

in no uncertain terms that, “The Nuremberg Code is part of the law of humanity” and that “It

may be applied in both civil and criminal cases by the federal courts in the United States.” Id. at

821.

18
See Complaint at ¶ ¶ 10-11.

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Whether or not the Nuremberg Code can be directly enforced against the defendants, they

are certainly subject to West Virginia’s prohibition on the retaliatory discharge of employees in

contravention of substantial public policy as defined under West Virginia law. They own and

operate an assisted living facility in West Virginia, where they discharged the Plaintiff as a

consequence of her choice not to take the vaccine. Plaintiff was directed by Congress under

Section 360bbb-3 to be informed of her voluntary choice. To argue that the Plaintiff exercised a

voluntary “choice” whether to receive the EUA COVID vaccine is to ignore the coercion of

being forcibly discharged from employment as a consequence of that choice. West Virginia

public policy incorporates federal law. Plaintiff’s termination contravenes federal law, even

where Plaintiff has no legal right to enforce that federal law. As such, Plaintiff has plausibly

stated a claim for relief for retaliatory discharge under West Virginia law. Therefore the

defendants’ motion to dismiss should be denied.

CONCLUSION

While the applicability and enforceability of federal law surrounding the legality of

private businesses mandating the EUA COVID-19 vaccines is confusing and contradictory,

Plaintiff has sufficiently pled a plausible claim for retaliatory discharge under West Virginia law,

pursuant to the State’s public policy exception to the default at-will employment doctrine. Thus,

regardless of how the courts end up analyzing the applicability and enforceability issues, the

Plaintiff is entitled to proceed to discovery in order to develop the record on the factual issues in

dispute.

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Case 5:21-cv-00393 Document 7 Filed 07/30/21 Page 20 of 21 PageID #: 113

WHEREFORE, the Plaintiff respectfully requests that this Honorable Court deny the

Defendants’ motion to dismiss and for such other and further relief as this Court deems just and

fit.

STEPHANIE MCCUTCHEON
By Counsel

/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com

for the Plaintiff

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Case 5:21-cv-00393 Document 7 Filed 07/30/21 Page 21 of 21 PageID #: 114

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

STEPHANIE MCCUTCHEON,

Plaintiff,

v. Civil Action No.5:21-cv-00393


Honorable Frank W. Volk
ENLIVANT ES, LLC, a foreign
limited liability company, d/b/a
SEASONS PLACE ASSISTED
LIVING FACILITY,

Defendant.

CERTIFICATE OF SERVICE

I, John H. Bryan, do hereby certify that I have delivered a true copy of the foregoing

PLAINTIFF’S RESPONSE TO MOTION TO DISMISS has been served upon counsel of record

by using the CM/ECF System, this the 30th day of July, 2021, and addressed as follows:

Bethany S. Wagner, Esq.


OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.
One PPG Place, Suite 1900
Pittsburgh, Pennsylvania 15222
Counsel for Defendants

/s/ John H. Bryan


John H. Bryan (WV Bar No. 10259)
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com

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