by Gerard V. Bradley, Professor of Law at the University of Notre Dame.
Last month Superior Court Judge Jeffrey Lanphear ruled against a group of school parents who sought to enjoin enforcement of Governor McKee’s school-mask mandate. Judge Lanphear’s legal analysis was seriously flawed and his conclusion to uphold the mandate was mistaken. I expect that the parents’ appeal of his ruling will be successful. At least it should be.
My aim in writing now is not, however, to criticize the whole of Judge Lanphear’s ruling. It is instead to rebuke him for his biased and insulting evaluation of the plaintiff parents’ scientific expert witness, Dr. Andrew Bostom, and his 24 years as faculty at Brown University. Dr. Bostom is in fact a splendidly credentialed and highly accomplished expert on epidemiology. He has scholarly publications too numerous to count. Bostom has, more specifically, emerged over the last eighteen months or so as a recognized scientific expert on the course of the pandemic, the effectiveness of vaccines against COVID, the comparative efficacy of natural immunity acquired by prior COVID infection, and of the worthwhileness of various courses of treatment. In my own published work on the government’s response to the pandemic, I have relied extensively upon Dr. Bostom’s many statistical studies of the disease and its treatment. He is, in my judgment and in the judgment of many other legal, medical, and public health experts, a leading light in the field. Courts should rely upon Dr. Bostom’s research at every opportunity they have.
Judge Lanphear did not. He finally accepted Dr. Bostom as a qualified expert witness (not to have done so would have been laughable). But then Judge Lanphear proceeded to undermine Dr. Bostom’s testimony at nearly every turn. He did so based not on fact and sound analysis, but upon misstatement and bias. Lanphear wrote in his opinion, for example, that Dr. Bostom “does not appear to be currently certified in any field”. Incorrect: Bostom is board certified through 2024 in internal medicine. “Lanphear also wrote that Bostom “claimed” to work at The Brown University Center For Primary Care and Prevention (BUCPCP), though (Lanphear added) “his present role became unclear during cross-examination”. Readers of Lanphear’s opinion would likely draw the conclusion that the judge seemingly intended, namely, that Bostom might be lying about his 24 years as medical faculty at Brown, and his current affiliation with the BUCPCP. Even minimal effort to get at the truth here would have shown the judge that Dr. Bostom was an assistant then associate professor in the medical school at Brown for 24 years, and still employed by the BUCPCP. Judge Lanphear made a big deal out of the fact that Dr. Bostom has not treated COVID patients personally. But that is a red-herring when it comes to the scientific issues at hand in the case, which have to do with broad statistical truths about what works across whole populations against COVID, and what does not.
I have in the course of my professional career litigated many cases. I have myself appeared as an expert witness in many others. I taught Trial Advocacy at the university law school level for almost thirty years. I think I can say what was going on with Judge Lanphear. It appears that he decided for some reason that he did not want to credit Dr. Bostom’s testimony, perhaps because he did not want to rule for the plaintiff parents. He wanted instead to bolster the government’s expert witness. But rather than justify that choice in an upright professional way, he chose to take the easy, and unbecoming, path. He chose to discredit the messenger rather than the message. He chose to denigrate Dr. Bostom’s expertise rather than to refute Bostom’s expert findings. And for that, Judge Lanphear deserves to be rebuked.