FILED IN THE CHANCERY COURT OF KNOX COUNTY, TENNESSEE 2020 JUL 24 PN 4: 9g HOWARD G. HOGAN STEVEN J SMITH, and JASON J. HALL, Plaintiffs CASE NUMBER: _ 2.00 6% -"> vs. PLAINTIFFS’ COMPLAINT FOR DECLARATORY AND INJUNCTIVE KNOX COUNTY, KNOX COUNTY RELIEF HEALTH DEPARTMENT, KNOX COUNTY BOARD OF HEALTH, MARTHA BUCHANAN, in her official Capacity as Director of the Knox County Health Department, and JACK GOTCHER ) in his official capacity as member and) Chair of the Knox County Board of Health, ) ) Defendants ) ) ) ) ) ) d ) ) ) ) ) ) ) ) ) d PLAINTIFFS’ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF COME NOW Plaintiffs, Dr. Steven J. Smith and Dr. Jason J. Hall, by and through counsel, submit this complaint seeking declaratory and injunctive relief against Defendants Knox County, Knox County Board of Health, Jack Gotcher, in his official capacity as member and Chair of Knox County Board of Health, and Martha Buchanan, in her official capacity as Director of the Knox County Health Department. Plaintiffs respectfully ask the Honorable Court for judicial review of the Knox County Board of Health’s ratification, enforcement, and adoption of the arbitrary and capricious rule Regulation No. 2020-1. Plaintiffs hereby submit the following: Page 1/8PARTIES 1. Dr, Steven J. Smith is a resident and citizen of Knoxville, Knox County, Tennessee and is a licensed physician inthe State of Tennessee. Dr. Smith is a Plastic Surgeon with an office in Knox County, Tennessee, and has been practicing for over 20 years. Dr. Smith is certified by the ‘American Board of Plastic Surgery and the American Board of Otolaryngology. 2, Dr Jason J, Hall isa resident and citizen of Knoxville, Knox County, Tennessee and is @ licensed physician in the State of Tennessee, Dr. Hall isa Plastic Surgeon with an office in Knox County, Tennessee. Dr. Hall is certified by the American Board of Plastic and by the American Board of Surgery. 3, Knox County is an incorporated municipality in the State of Tennessee with legislative authority granted by the Tennessee legislature. 4, ‘The Knox County Health Department is a public health agency, advisory board, and is @ division of Knox County Government in Knox County, Tennessee. 5, The Knox County Board of Health is a division of the Knox County Health Department in Knox County, Tennessee and is authorized to enact regulations on the citizens of Knox County, Tennessee. 6. Martha Buchanan, in her official capacity, is the Director of the Knox County Health Department in Knox County, Tennessee. 7. Jack Gotcher, in his official capacity, is a member and Chair of the Knox County Board of Health in Knox County, Tennessee.JURISDICTION AND VENUE 8, This Court has personal jurisdiction over the Defendants in that at all times relevant hereto, Defendants are government entities, boards, officials, or policy makers in Knox County, ‘Tennessee and Defendant’s conduct caused harm to Plaintifis in Knox County, Tennessee. 9, ‘The Court has subject matter jurisdiction over Plaintiff's claim in that the alleged claim arose under substantive law of Tennessee. 10. The Court has proper venue jurisdiction for this action in that the facts, damages, and claim arose from the Defendant's actions in Knox County, Tennessee. FACTUAL ALLEGATIONS 11, Dr. Steven J. Smith is a physician and resident in Knoxville, Knox County, Tennessee who is directly affected by the Knox County Board of Health's adoption and ratification of Regulation No. 2020-1. 12, Dr. Jason J. Hall is a physician and resident in Knoxville, Knox County, Tennessee who is directly affected by the Knox County Board of Health’s adoption and ratification of Regulation No. 2020-1. 13, On July 1, 2020, the Knox County Board of Health adopted and ratified Regulation No. 2020-1. (Plaintiff's Exhibit 1). 14, The adoption and ratification of Regulation No. 2020-1 relied on faulty and misleading data in support of its adoption. 15, The Knox County Board of Health relied on County, State, and nationwide data, opinions, and test results related to COVID-19. Page 3|816. According to the Untied States Food and Drug Administration website, “gerology/Antibody Tests - Tests that detect antibodies (e.g. IgM, TeG) to the SARS-CoV-2 virus, Serology/antibody tests cannot be used to diagnose a current infection.” 17, According to the United States Food and Drug Administration’s Molecular Diagnosis ‘Template for Commercial Manufacturers, page three (3), paragraph two (2) states, “clinical correlation with patient history and other diagnostic information is necessary to determine patient infection status, Positive results do not rule out bacterial infeetion or co-infection with other ‘viruses. The agent detected may not be the definite cause of disease.” 18, Percontent current as of July 6, 2020, in a web positing, the United States Food and Drug ‘Administration issued a statement titled, “False Positive Results with BD SARS-CoV-2 Reagents for the BD Max System Letter to Clinical Laboratory Staff and Health Care Providers.” In their letter, the Food and Drug Administration alerted of an increase of false positive results regarding a manufacturer's tests. 19. Upon the adoption and ratification of Regulation No, 2020-1, Knox County residents including Plaintiffs were required to wear a mask in public places beginning July 3, 2020. 20. Under Tennessee law, Plaintiff Dr. Steven J. Smith's rights have been directly violated by Defendants arbitrary and capricious decision. 21. Under Tennessee law, Plaintiff Dr. Jason J. Hall’s rights have been directly violated by Defendants arbitrary and capricious decision to adopt 22, Plaintiffs seek judicial review, discovery ability, and other tools afforded to them under ‘Tennessee law and the Tennessee Rules of Civil Procedure. Page 4|8COUNT I- DECLARATORY RELIEF 23, Plaintiffs adopt and incorporate as if fully rewritten paragraphs 1-22 of this Complaint. 24, Defendants issued and authorized Regulation No. 2020-1 on July 1, 2020 requiring Plaintiffs to wear masks in public spaces as outlined in the regulation. 95, Plaintif's rights were violated because of the issuance and authorization of this regulation. 95, Defendants relied on county, state, and nationwide data relating to COVID-19 PCR testing for diagnosis. 26. Defendants relied on faulty data which includes false positives for the support and adoption of Regulation No. 2020-1. 26. Defendants’ issuance of Regulation No. 2020-1 is arbitrary and capricious. 97, Because Defendant's Regulation No. 2020-1 is arbitrary and capricious, judicial review, injunctive relief, and declaratory relief are appropriate. COUNT Il- VIOLATION OF PLAINTIFFS’ RIGHTS UNDER THE ‘TENNESSEE CONSTITUTION 28, Article I, Section I of the Tennessee Constitution slates, “, That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; forthe advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.” 29. Under Article 1, Section I ofthe Tennessee Constitution, Plaintiff's have aright to reform and participate in reform, dissent, and other peaceful protests against government actions. 30. By issuing and adopting of Regulation No. 2020-1, Defendants are violating Plaintiff's rights under the Tennessee Constitution. Page 5/831, Because Plaintiff's rights are being violated by Defendant's, Paintffs are entitled to judicial relief. COUNT Il - INJUNCTIVE RELIEF 52, Plaintiffs adopt and incorporate as if fully rewritten paragraphs 1-27 of this Complaint 93, Plaintiffs are directly affected by Defendant's Regulation No, 2020-1 which regulates their persons in Knox County, Tennessee. 24, Regulation No. 2020-1 violates Plaintiff’ rights afforded to them under the Tennessee State Constitution and Tennessee law. 436. Plaintifs rights are unjustfibly harmed by Defendants issuance and authorization of Regulation No, 2020-1. 36, Defendants issue and authorization of Regulation No. 2020-1 is based on faulty and misleading data. 37. Plaintif’s are entitled to injunctive relief seeking the nullification, voidance, evocation, or any other relief deemed fit by the Court regarding Regulation No. 2020-1. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for relief as follows: 1. Declaratory judgement that, forthe reasons alleged herein, Defendants have violated and continue to violate Plaintiff's rights under the Tennessee Constitution. 2, Declaratory judgement that, for the reasons alleged herein, Defendants’ Regulation No. 2020-1 violates Plaintiff's substantive due process rights. 3, Deolaratory judgment, for the reasons alleged herein, Defendant's adoption of Regulation No. 2020-1 bas violated and continues to violate Plaintif's rights under Article I, Sestion lof the ‘Tennessee Constitution. Page 6/84, Injunctive relief enjoining Defendants from enforcing Regulation No. 2020-1. ‘Such other and further relief as the Court may deem appropriate and reasonable. Respectfully submitted, Daniel A. Herrera (BPR# 038090) Law Office of Daniel A. Herrera, PLLC 200 Prosperity Drive Knoxville, Tennessee, 37923 Phone: (865) 219-3170 Email: daniel@attorneyherrera.com ‘Counsel for Plaintiffs Page 7/8(CERTIFICATE. OF SERVICE Thereby certify that a true and exact copy of the forgoing has been oA to Knox County Law Director, Richard E. Armstrong, counsel for Defendants, on this the a day of Daly, 2020 by USPS mail at: Richard Armstrong Knox County Law Director 400 Main Street, Suite 612 Knoxville, TN, 37902 exec Daniel A. Herrera (BPR: 038090) Law Office of Daniel A. Herrera, PLLC 200 Prosperity Drive Knoxville, TN, 37923 Email: daniel@attornevherrera.com Phone: (865) 219-3170 Page 8|8