Lawsuit challenging vaccine policy of schools dismissed

CLARKSBURG - A lawsuit against the West Virginia Department of Health & Human Resources has been dismissed from federal court.

Harrison County Health Department and Cabell County Health Department were also named as defendants in the suit.

On Nov. 20 an order granting the plaintiff's Rule 41 motion was filed in the U.S. District Court for the Northern District of West Virginia at Clarksburg.

The action was dismissed with prejudice and stricken from the docket of the court.

Jill Johnson, individually and as guardian of CJ, a minor; and Victoria Baker, individually and as guardian of IB, a minor, claimed their children were not allowed to attend public school because they have not had certain vaccinations that are not mandated vaccines with West Virginia code, according to a complaint filed Feb. 6, 2012, in the U.S. District Court for the Northern District of West Virginia at Clarksburg.

Baker's daughter has not received her Varicella vaccine, also known as the chicken pox vaccine, due to Baker's sincere and genuine religious beliefs, which prohibit her from subjecting her daughter to the Varicella shot, according to the suit.

Johnson claimed her son, who is a special needs child with an autism spectrum disorder, had blood tests done to see if booster shots were necessary.

The test results revealed that CJ was immune to measles, mumps, rubella, polio, diphtheria, tetnus and pertussis, according to the suit.

Johnson claimed the laboratory report of the test results was supplied to Harrison County Schools and was refused by Dr. Charles Arnett.

Both children have been home schooled since being prohibited from being able to attend public school, according to the suit.

The plaintiffs were seeking for the court to declare the defendants' policy unconstitutional; an injunction to enjoin the defendants from enforcing its policy by prohibiting the plaintiffs' children from attending public school within the school district until the students received state-required immunizations, in violation of the plaintiffs' sincerely held religious beliefs; an injunction enjoining the defendants from enforcing West Virginia code in such a way as to require children to receive immunizations in violation of plaintiffs' sincerely held religious beliefs; and award the plaintiffs nominal damages. They were being represented by Paul J. Harris and Joseph A. Wallace.

U.S. District Court for the Northern District of West Virginia at Clarksburg case number: 1:12-cv-00027