Court filing
Deposition of Cole Beeler, M.D. — Klaassen v. Indiana University
Filed July 12, 2021 in Klaassen v. Trustees of Indiana University; one of 26 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Indiana |
|---|---|
| Filed | 2021-07-12 |
U.S. District Court for the Northern District of Indiana · No. 1:21-cv-00238-DRL-SLC · Doc. 31-29 · 2021-07-12 · Docket on CourtListener
Full text
1 (Pages 1 to 4)
Page 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
RYAN KLAASSEN, JAIME CARINI, )
D.J.B. by and through his )
next friend and father, )
Daniel G. Baumgartner, ASHLEE)
MORRIS, SETH CROWDER, MACEY )
POLICKA, MARGARET ROTH, and )
NATALIE SPERAZZA, )
)
Plaintiffs, )
)
-v- ) CASE NO.
) 1:21-cv-238-DRL-SLC
THE TRUSTEES OF INDIANA )
UNIVERSITY, )
)
Defendant. )
The deposition upon oral examination of
COLE BEELER, M.D., a witness produced and sworn before
me, Patrice E. Morrison, RMR, CRR, Notary Public in
and for the County of Marion, State of Indiana, taken
on behalf of the Plaintiffs at the offices of
Stewart Richardson & Associates, One Indiana Square,
Suite 2425, Indianapolis, Indiana, on July 7, 2021, at
1:02 p.m., pursuant to the Federal Rules of Civil
Procedure.
STEWART RICHARDSON & ASSOCIATES
Registered Professional Reporters
(800)869-0873
Page 3
1
INDEX OF EXAMINATION
2
PAGE
3
EXAMINATION
4
Questions By Mr. Bopp: 5
5
Questions By Ms. Ricchiuto: 147
6
Questions By Mr. Bopp: 162
7
8
INDEX OF EXHIBITS
9
NUM. DESCRIPTION PAGE
10
Exhibit 1 News at IU printout - 11
Cole Beeler Bio
11
Exhibit 2 CareDash printout 12
12
Exhibit 3 U.S. News Health printout 13
13
Exhibit 4 Cole Beeler CV 17
14
Exhibit 5 Thrive by IU Health printout - 23
15
Hand-washing tips from the
experts
16
Exhibit 6 Thrive by IU printout - Is it 23
17
Safe to Go Out? Helping
Hoosiers Navigate Reopening
18
Exhibit 7 Abstract - Seroprevalence of 38
19
severe acute respiratory
coronavirus 2 (SARS-CoV-2)
20
antibodies among healthcare
workers with differing levels of
21
coronavirus disease 2019
(COVID-19) patient exposure
22
Exhibit 8 Abstract - Clinical 44
23
characteristics, outcomes and
prognosticators in adult
24
patients hospitalized with
COVID-19
25
Page 2
1
APPEARANCES
2
3
FOR THE PLAINTIFFS:
4
James Bopp, Jr., Esq.
THE BOPP LAW FIRM
5
1 South 6th Street
Terre Haute, IN 47807
6
jboppjr@aol.com
7
FOR THE DEFENDANT:
8
Anne Ricchiuto, Esq.
9
FAEGRE DRINKER BIDDLE & REATH, LLP
300 North Meridian Street, Suite 2500
10
Indianapolis, IN 46204
anne.ricchiuto@faegredrinker.com
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 4
1
INDEX OF EXHIBITS (cont'd)
2
NUM. DESCRIPTION PAGE
3
Exhibit 9 Declaration of Peter A. 142
McCullough, M.D., MPH
4
Exhibit 10 Peter McCullough CV 142
5
Exhibit 11 Declaration of Cole Beeler, M.D. 10
6
Exhibit 12 Emails between Fauci and Angel 46
7
March 2020
8
Exhibit 14 Printout - CDC data shows that 52
COVID-19 survival rate for
9
adults is 99.98%; chances of
surviving coronavirus is over
10
99.9% for most age groups
11
Exhibit 17 Printout - Previous COVID-19 83
infection but not Long-COVID is
12
associated with increased
adverse events following
13
BNT162b2/Pfizer vaccination
14
Exhibit 20 Printout - SARS-CoV-2 111
Transmission From People Without
15
COVID-19 Symptoms
16
Exhibit 21 COVID-19 Treatment Guidelines 109
(Last Updated: June 17, 2021)
17
Exhibit 22 Hill's Criteria for Causality 123
18
Exhibit 23 Analysis of COVID-19 vaccine 123
19
death reports from the NAERS
Database
20
Exhibit 31 CDC Article - Test for Past 129
21
Infection
22
Exhibit 33 Report by Dr. Tess Lawrie 134
23
Exhibit 36 Printout of retweet by 103
Dr. Beeler
24
Exhibit 37 Email between Fauci and Burwell 106
25
February 2020
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 1 of 42
2 (Pages 5 to 8)
Page 5
1
THE REPORTER: My name is Patrice Morrison, an
2
associate of Stewart Richardson & Associates,
3
Indianapolis, Indiana. Today's date is July 7,
4
2021. The time is 1:02 p.m. This deposition is
5
being held at the offices of Stewart Richardson &
6
Associates, One Indiana Square, Suite 2425,
7
Indianapolis, Indiana. The deponent is Cole
8
Beeler, M.D.
9
Will counsel please identify themselves and
10
any persons present with you for the record.
11
MR. BOPP: James Bopp, Jr., for plaintiff.
12
MS. RICCHIUTO: Anne Ricchiuto for Indiana
13
University.
14
COLE BEELER, M.D.,
15
having been first duly sworn to tell the truth, the
16
whole truth, and nothing but the truth, was examined
17
and testified as follows:
18
EXAMINATION
19
BY MR. BOPP:
20
Q Can you state your full name, please.
21
A Cole Beeler.
22
Q And with whom are you employed?
23
A I'm dual employed by both the Indiana University
24
Health as well as Indiana University School of
25
Medicine.
Page 7
1
expert, that's Dr. Peter McCullough?
2
A That's the document that I received.
3
Q And what do you do for IU School of Medicine?
4
A I have a number of responsibilities. I am chiefly
5
employed in the division of infectious diseases. I
6
spend about 30 percent of my time seeing inpatients
7
and outpatients in clinic for a variety of
8
infectious disease-related syndromes and diagnoses.
9
About 50 percent of my time I serve as the
10
director of infection prevention at Indiana
11
University Hospital, which is the tertiary care
12
referral center for many of the state facilities as
13
well as our IU Health facilities across the state.
14
I also am the key clinical educator for the
15
internal medicine residency. I provide education
16
for internal medicine residents as well as medical
17
students as it relates to infectious
18
disease-related topics.
19
I'm also the associate fellowship director of
20
the infectious disease fellowship for postgraduate
21
internal medicine physicians.
22
Q Do you have any responsibilities to Indiana
23
University generally or is it just Indiana
24
University School of Medicine?
25
A For Indiana University, I also functioned as part
Page 6
1
Q And you've been designated as an expert witness in
2
this case. What were you asked to do? What was
3
your task that you were asked to assume?
4
MS. RICCHIUTO: Object to the extent it calls
5
for attorney-client privilege.
6
Q Yes, and you don't need to answer --
7
A Still answer?
8
Q -- about any communications you had with your
9
lawyer, so if you -- that is --
10
A So can you -- I'm having trouble understanding the
11
question. Can you rephrase or ask another way for
12
me?
13
Q Well, you've prepared an expert report; is that
14
correct?
15
A For this case. Is that --
16
Q Yes.
17
A Yes.
18
Q All right. And why did you prepare that report?
19
In other words, what was the task you were asked to
20
assume?
21
A I was asked to provide a rebuttal to the expert
22
witness on the plaintiffs' side and to address the
23
rationale behind the vaccine mandate at Indiana
24
University.
25
Q And when you say the, I think you said plaintiffs'
Page 8
1
of the medical response team, and I was the
2
director of symptomatic testing for that group that
3
functioned as a branch of the Indiana University
4
Restart Committee.
5
Q And what was the Restart Committee? What was its
6
charge?
7
A When COVID was discovered to have been an issue
8
related to potential constituents' illness and how
9
we're going to have to approach the semester, the
10
group was initially formed, without me actually
11
being part of it, to develop guidelines around,
12
after the initial shutdown, how the school could
13
safely restart with minimizing the amount of
14
infections moving into fall of, gosh, 2020 at this
15
point.
16
I joined the group as things were ramping up
17
in order to help with the approach to symptomatic
18
testing fairly short -- shortly after its
19
formation, specifically related to the needs around
20
the integration between the testing that at the
21
time IU Health was providing and the school's
22
constituency.
23
Q When was that, that you joined the committee?
24
A Oh.
25
Q Approximately.
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 2 of 42
3 (Pages 9 to 12)
Page 9
1
A Yeah. I'd have to look back for the exact number,
2
but I want to say it was probably around May of
3
2020.
4
Q Okay. And you were in charge of a subcommittee of
5
the committee which is involved with symptomatic
6
testing.
7
A That's right.
8
Q Go ahead.
9
A That's correct.
10
Q All right. And what is symptomatic testing?
11
A Symptomatic testing is the -- when we have
12
individuals who develop symptoms of upper
13
respiratory infection or really any symptoms that
14
are concerning to them at all, we needed to develop
15
infrastructure by which they were able to get COVID
16
testing, and then build that resulting
17
infrastructure so if they were positive or negative
18
into a contact tracing system.
19
Q And so then that was your area of responsibility
20
with the Restart Committee?
21
A Yes.
22
Q All right. Now, in looking -- well, let me show
23
you what's been marked as -- she will mark as
24
Beeler Exhibit 11. I'm afraid I'm going to jump
25
around a little bit, so Beeler Exhibit 11, please.
Page 11
1
MR. BOPP: You may answer.
2
A I'd have to rereview, to take a look at it.
3
Q We have the time, don't we?
4
A I mention my board certification in internal
5
medicine and infectious diseases, mention the
6
Restart Committee. I do not mention the infection
7
prevention.
8
Q Okay. Thank you. Now, I will represent to you on
9
IU's website where you're listed as a professor
10
that you have a bio. The problem is when you try
11
to copy it, it changes and you can't get what you
12
want. And it asks -- you list specialties, and it
13
says infectious diseases. Is that correct?
14
A That's correct.
15
Q Now, there are other sources of where you have
16
claimed expertise. Let me show you what's been
17
marked as Beeler Exhibit 1.
18
(Deposition Exhibit 1 marked.)
19
Q And of course I will represent to you that I
20
obtained this exhibit off the IU website. And if
21
you will look in the middle -- that is you; right?
22
A Yes.
23
Q Okay. And in the middle, it says "Areas of
24
expertise." It says "Infectious diseases,
25
infection prevention, influenza, flu, medical
Page 10
1
(Deposition Exhibit 11 marked.)
2
Q Is this the declaration you prepared as a
3
designated expert for IU in this case?
4
A Yes, sir.
5
Q Now, I note in the declaration that you don't claim
6
any particular area of expertise. Is that correct?
7
MS. RICCHIUTO: Objection. Misstates the
8
document.
9
A I have expertise in internal medicine, infectious
10
disease, public health, and hospital epidemiology.
11
Q But my question was about your declaration, that
12
you didn't claim any particular area of expertise
13
in your declaration. Is that correct?
14
MS. RICCHIUTO: Objection. Asked and answered
15
and misstates the document.
16
THE WITNESS: Do I still answer that?
17
MS. RICCHIUTO: Yes.
18
Q I'm sorry, I couldn't hear you.
19
A I have expertise in infectious disease, hospital
20
epidemiology, internal medicine, and public health.
21
Q And none of that is listed in the declaration, is
22
it?
23
A I would have to rereview.
24
MS. RICCHIUTO: Objection. Misstates the
25
document. Asked and answered twice.
Page 12
1
student education." Correct?
2
A Correct.
3
Q Let me also show you what's been marked as Beeler
4
Exhibit 2.
5
(Deposition Exhibit 2 marked.)
6
Q Are you familiar with your listing on CareDash?
7
A No.
8
Q Well, if you turn to page 2, toward the bottom you
9
will see Overview -- and by the way, on page 1, is
10
that you? Is that your picture?
11
A Yes.
12
Q All right. On page 2, under Overview, it says "is
13
an infectious disease specialist." That's in the
14
first line. And then in the third line, it says
15
"As an infectious disease specialist, he may
16
specialize in Acquired Immune D Syndrome (AIDS) and
17
Chronic" -- and I have no idea how to pronounce
18
that. How do you pronounce that?
19
A Rhinitis.
20
Q -- "Rhinitis, in addition to other conditions." Is
21
that correct?
22
A Infectious disease physicians are trained in a
23
broad spectrum of infections, including those
24
listed.
25
Q All right. And then let me show you what's been
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 3 of 42
4 (Pages 13 to 16)
Page 13
1
marked as Exhibit 3.
2
(Deposition Exhibit 3 marked.)
3
Q And this is the U.S. News Health website on
4
physicians. It says a Dr. Cole B. Beeler. Is your
5
middle initial B?
6
A Yes.
7
Q All right. And it says "Indiana University Health
8
Medical Center," the address, a list of experience.
9
You're a male, six to ten years of experience. Is
10
that all correct?
11
A Yes.
12
Q All right. It says an Overview. You're an
13
infectious disease specialist. Is that correct?
14
A Yes.
15
Q And then under Specialties, it says "Infectious
16
disease," and it says "Infectious disease
17
specialists deal with a broad array of diseases
18
caused by germs, ranging from flu to hospital
19
acquired infections to pneumonia." Is that
20
correct?
21
A Yes.
22
Q Now, you acknowledge that none of these listed you
23
having a specialty in COVID-19. Isn't that
24
correct?
25
MS. RICCHIUTO: Object to form.
Page 15
1
contribute to.
2
You can answer.
3
A I think these forms, to be honest with you, were
4
generated by someone outside that has no knowledge
5
of what my expertise actually is, and these are
6
probably stereotyped responses.
7
Again, infectious disease physicians take care
8
of every potential infection that could, and is
9
known to infect humans, and have to have expertise
10
in those areas. We are the only physicians that
11
have that accountability, and because of that it is
12
a subspecialty that we get board-certified in.
13
So even though they list these things, it's
14
within the realm of infections where we are
15
accountable to and have to be tested on and see
16
patients in relation to, but this is a very limited
17
list of all the diseases that we are trained in.
18
Q Now, how did you develop whatever information you
19
have with respect to COVID-19 virus and the
20
infections that it can cause? How did you gain
21
that information or knowledge?
22
A Okay. So I would say that understanding of the
23
virus first starts with training in virology and
24
the breadth of infectious diseases, so even though
25
this is a novel virus, we were trained, or we are
Page 14
1
A No.
2
Q Okay. Where on those exhibits does it say you're a
3
specialist or an expert on COVID-19?
4
A It says a broad --
5
MS. RICCHIUTO: Object to form.
6
A It says a broad array of diseases caused by germs.
7
Q So you're an expert on every single one?
8
MS. RICCHIUTO: Object to form. Misstates the
9
testimony.
10
A We have to be experts in all infections that can
11
infect pathogens in order to care for patients in
12
hospitals and outpatient sites.
13
Q So you're claiming a special expertise in COVID-19
14
infections?
15
A I'm board-certified --
16
MS. RICCHIUTO: Object to form.
17
A Sorry. I'm board-certified in infectious diseases
18
and have been trained in multiple different
19
pathogens, including COVID-19.
20
Q If you're a specialist in every single infectious
21
disease, why are you listed as having a specialty
22
in AIDS and chronic rhinitis?
23
MS. RICCHIUTO: Objection. Misstates the
24
testimony. Misstates the document, that the
25
witness said he has never seen before, didn't
Page 16
1
trained as infectious disease physicians on themes
2
and motifs related to how diseases transmit
3
themselves, how to protect the public with the
4
knowledge of those disease processes, how to
5
respond in general to viruses that do not have
6
clear treatment recommendations.
7
So on that foundation of virology, immunology
8
was built a consistent literature approach. My
9
personal strategy during the beginning of the
10
pandemic was to review literature on a daily basis,
11
usually in the morning. It was slow to start out
12
with. It was extremely fast as things ramped up.
13
But my special strategy was to review all
14
literature that had been released in the previous
15
24 hours with the use of a website called LitCovid.
16
LitCovid is a curated site that files new
17
literature as it's published into various
18
categories: Transmission, pathogenesis,
19
treatments, infection prevention, and epidemiology.
20
I used that to organize my -- and develop my own
21
literature base that was utilized by the division
22
of infectious diseases. I continued to use that
23
website in order to help grow my knowledge base.
24
I also read various journals that are maybe
25
tangentially related to COVID, specifically as it
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 4 of 42
5 (Pages 17 to 20)
Page 17
1
relates to virology and immunology, to continue to
2
develop those skill sets.
3
Q So have you treated COVID basic patients?
4
A Yes.
5
Q And how many?
6
A Oh -- approximately?
7
Q Yes. Of course.
8
A I'd say more than a hundred.
9
Q Have you treated them as outpatients or inpatients?
10
A Both.
11
Q And that is over the period of the pandemic to now.
12
A I did not treat COVID before the pandemic.
13
Correct, yes.
14
Q Okay. Let me show you what's been marked as Beeler
15
Exhibit 4.
16
(Deposition Exhibit 4 marked.)
17
Q Now, this Exhibit A that you attached to your
18
expert report, which is Exhibit 11, which is your
19
curriculum vitae.
20
A Yes, sir.
21
Q Now, this identifies your rank at IU School of
22
Medicine as assistant clinical professor. Is that
23
correct?
24
A That's correct.
25
Q Are you on a tenure track?
Page 19
1
going up for this year. It has to do with
2
qualifying, or explaining your service to the
3
university, what it is that you did that brought --
4
brought health to as many people as possible. It
5
also requires you to document how you approach to
6
the university's mission. You have to also have
7
qualifications in either research or education as a
8
secondary area of expertise in order to meet
9
criteria. And then the last part of that, from
10
going to assistant to associate, is that you need
11
to show promise for future development. So a
12
trajectory in your career path.
13
Q When were you first eligible for consideration for
14
promotion?
15
A This year.
16
Q Now, will the fact that you have provided an expert
17
report and testified in support of IU's mandate
18
policy be considered in whether or not you're
19
promoted?
20
MS. RICCHIUTO: Objection. Calls for
21
speculation.
22
A They don't -- they don't look at that.
23
Q Okay. Have you presented -- have you informed them
24
of that role that you are playing --
25
MS. RICCHIUTO: Objection.
Page 18
1
A I will go up through promotion instead of through
2
tenure.
3
Q And what is the difference?
4
A Tenure is for predominant bench researchers.
5
Promotion is for people who are focused on clinical
6
service. It has different -- it has different --
7
it has a different mechanism by which you're able
8
to meet criteria to rank up.
9
Q Now, is this the first position, I mean the entry
10
position, assistant clinical professor, or is there
11
a lower rank?
12
A No. This is --
13
MS. RICCHIUTO: Object to form.
14
A After graduation, the first job as an infectious
15
disease physician in the School of Medicine, you
16
start out as an assistant and then to associate and
17
then to full professor.
18
Q All with the clinical part of the name; right?
19
A Correct.
20
Q And what are the criteria that will be used to
21
promote you to associate clinical professor? What
22
would be --
23
MS. RICCHIUTO: Objection.
24
Go ahead.
25
A It's extremely complex, but it's a process I'm
Page 20
1
Q -- as part of your either application or the
2
consideration for your promotion?
3
MS. RICCHIUTO: Objection. I don't know who
4
them is.
5
A They -- if by "they" you mean the leadership for
6
the School of Medicine, they all know me. But I
7
have not spoken with anyone about this, and
8
actually I haven't even turned in my application
9
yet. It's due in October, November.
10
Q Okay. Will you include this in your application?
11
A No.
12
Q Are they aware that you're doing this?
13
MS. RICCHIUTO: Objection. Asked and
14
answered.
15
A I don't know.
16
MR. BOPP: And Anne, you're entitled to make
17
every objection you want, but I just want you to
18
know that you're adding at least about a third more
19
to the time that we are spending by your
20
objections. And frankly, Anne, you know, I can get
21
more time. If you're not making objections that
22
the court views as warranted and meritorious, I
23
would expect them to provide us more time. So I
24
just implore you to let us finish this today if at
25
all possible.
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 5 of 42
6 (Pages 21 to 24)
Page 21
1
MS. RICCHIUTO: We will be here until 6:00,
2
not counting breaks, Jim. I implore you to ask
3
unobjectionable questions if you want it to go more
4
quickly. I'm very comfortable with my objections
5
and I appreciate the coaching, but I think I've got
6
it handled. So thank you.
7
MR. BOPP: All right.
8
Q I am looking at your resume, and starting on
9
page 1, and I'm looking for any indication that you
10
have specifically dealt with or did research in or
11
developed any expertise in the COVID-19 virus.
12
Would you point to the first entry that would
13
indicate that.
14
MS. RICCHIUTO: Objection. Misstates the
15
testimony and the document.
16
A So Indiana University School of Medicine, Director
17
of Symptomatic COVID Medical Response Team.
18
Q And where are you, sir?
19
A Sorry. First page still. Also --
20
Q Just a second because I want to find it on here.
21
A It's the maybe third from the last line. It's the
22
last thing in my appointments.
23
Q No wonder I can't find it. Sorry about that. All
24
right. Very good. You've already testified about
25
that, I think.
Page 23
1
have made about the COVID-19 virus, several of
2
which were published by IU Health. Let me show you
3
what's been marked as Beeler Exhibit 5.
4
(Deposition Exhibit 5 marked.)
5
Q And on the first page, I understand you to be
6
advising here -- correct me if I'm wrong -- is this
7
an important part of preventing the spread of
8
COVID-19 to wash your hands thoroughly enough? Is
9
that correct?
10
A I believe that hand hygiene is an important aspect
11
of control of COVID-19. It's probably not the
12
prime. It is not the prime aspect in prevention of
13
transmission, so this was commenting on a facet of
14
the prevention response.
15
Q Do you still advise that to be done?
16
A I advise good hand hygiene for all situations, not
17
just coronavirus 19.
18
Q Okay. Now, let me show you what's been marked as
19
Beeler Exhibit 6.
20
(Deposition Exhibit 6 marked.)
21
Q Now, do you recognize this article as well? It's
22
an interview of you.
23
A I'd have to review it.
24
Q Published by IU Health.
25
A I've read it. I can't tell you that I remember the
Page 22
1
A Yes. Well, I would say that it's assumed that
2
infectious disease doctors treat and care for COVID
3
patients. To me, it does not merit -- there's not
4
separate training in coronavirus. It is part of
5
being an infectious disease doctor.
6
Q I understand that's your position. Thank you.
7
Would you continue to look at your resume and
8
advise me where there is other entries that
9
indicate a special either research or training or
10
involvement in COVID-19.
11
A So there are no training courses in coronavirus 19
12
to my knowledge that have been developed. I have
13
done some research in coronavirus.
14
Let's see. So under Publications on page 9,
15
if you go -- actually, let's do page 10.
16
Q Okay. And where on page 10?
17
A I'm trying to find it. Sorry.
18
Q That's all right.
19
A Sorry. Page 11, third from the bottom. Page 10 on
20
the bottom.
21
Q Any other research specifically related to COVID-19
22
virus?
23
A That's all that's on this document.
24
Q Thank you.
25
Now, I found some public statements that you
Page 24
1
interview process. It's from a really long time
2
ago, back when we were talking about Stage 2.
3
Q So this is March 8, 2021, when this was published?
4
A Yeah.
5
Q If you turn to 6, you will see at the second to
6
last paragraph -- by the way, first let me ask, do
7
you still agree with the opinions you are stating
8
in this interview?
9
A The landscape of our understanding of COVID has
10
changed significantly, so I would have to be asked
11
on the specific opinions to see if the nature of
12
the science has changed around it. My
13
understanding and appreciation of the knowledge
14
base changes as the literature base changes.
15
Q All right. Now, in March of 2021, where were we on
16
the bell curve of the COVID-19 infection? Were we
17
on the deceleration side or the acceleration side?
18
MS. RICCHIUTO: Object to form.
19
A I would have to guess. I think that we were
20
decelerating in March.
21
Q Now, if you turn to page 6, second to the last
22
paragraph, you will see a list of smart things to
23
do. I think you describe wearing masks, keeping a
24
6-foot radius, washing hands, avoiding large
25
groups, disinfecting. These are all important
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 6 of 42
7 (Pages 25 to 28)
Page 25
1
things that you should do to protect yourself.
2
Is that what you thought at the time?
3
A Yeah.
4
Q All right. Do you still think that now?
5
A Now, yes, with the exception that we have the
6
vaccine that's also available.
7
Q Now, what you said at that time is the last
8
sentence. "We will only reopen successfully if
9
people follow these guiding principles," which I
10
think you are referring to the list I just gave
11
you: Wearing masks, keeping 6-foot radius,
12
et cetera. Is that right?
13
A Yes, I believe that if there was 100 percent
14
adherence to those, those principles, that we would
15
avoid infections.
16
Q Why do you say there has to be a hundred percent?
17
A Because breaches in any of those processes could
18
potentially lead to transmission of the virus.
19
Q Now, so when you -- okay. So when you say reopen
20
successfully, you mean with zero transmission rate.
21
MS. RICCHIUTO: Object to form. Misstates
22
this document.
23
A I think it comes down to what we had determined was
24
our level of success or what, at the time, my
25
understanding of level of success was, is that, in
Page 27
1
going to be transmissions because of breaches in
2
these infection prevention methodologies.
3
Q I understand what you just said, however, I'm
4
trying to find out what your words mean, okay, and
5
what you were thinking.
6
A Sure.
7
Q And it said -- they are quoting you here -- "We
8
will only reopen successfully," and I'm asking you,
9
when you say reopen successfully, do you mean that
10
there would be no -- that successful reopening
11
would be no transmissions of COVID-19, or what rate
12
of transmission would still rate you as a
13
successful reopener?
14
MS. RICCHIUTO: Object to form.
15
A Sure. Success to me would be -- and at the time
16
would be not having to close back down because of
17
uncontrolled outbreaks.
18
Q What would be an uncontrolled outbreak? What does
19
that mean?
20
A In the process of contact tracing, if we are not
21
able to quarantine with enough speed to stop
22
secondary transmissions, to me that's uncontrolled.
23
Our mechanisms by which we prevent aren't fast
24
enough to slow down the transmissions.
25
Q So if you have one, that would be unsuccessful.
Page 26
1
general, I don't think anyone was saying that we
2
could completely avoid or completely control
3
behavior so that everyone is a hundred percent
4
adherence. There's going to be breaks.
5
The goal would be to minimize transmissions to
6
the extent that when there were infections that
7
developed, they could be quickly contact traced,
8
quarantined to avoid essentially large-scale
9
outbreaks.
10
We had worked through the process of how we
11
were going to define a large-scale outbreak
12
internally, and even though we did see some of
13
these happen, the vast majority of them were able
14
to be controlled with the help of public health
15
departments and more aggressive measures, shutting
16
things down, et cetera.
17
Q Well, so reopening successfully includes the
18
likelihood, if you will, that there would still be
19
some transmission of COVID-19.
20
MS. RICCHIUTO: Object to form. Foundation.
21
Q Is that what you were saying?
22
A The ideal situation is that there are no
23
transmissions of COVID-19. I think human nature
24
and the fact that we can't 100 percent control
25
behavior, realistically, suggests that there's
Page 28
1
A If we had one uncontrolled outbreak?
2
Q No, one uncontrolled transmission you couldn't
3
control.
4
MS. RICCHIUTO: Objection. Misstates
5
testimony.
6
A Yeah, I think that, from our perspective, it would
7
be a trend of uncontrolled outbreaks.
8
So getting back, the success for us would be
9
how well does the infrastructure that we've built
10
hold up against human behavior.
11
Q I understand from the IU's briefing that there's
12
90,000 IU students in all campuses, all right, in
13
the system, 90,000, including graduate school.
14
How many infections within that population
15
would classify as an uncontrolled outbreak where
16
reopening was not successful?
17
MS. RICCHIUTO: Object to form.
18
A Don't have that data.
19
Q Well, do you have an estimate or percentage or --
20
MS. RICCHIUTO: Objection. Calls for
21
speculation.
22
A I couldn't. You know, I can tell you anecdotally
23
that we did see cases -- you know, I was part of a
24
team of four physicians that on a daily basis --
25
week daily basis reviewed all the positive COVID
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 7 of 42
8 (Pages 29 to 32)
Page 29
1
cases and then looked backwards to see where it
2
came from; did web -- contact tracing webs to
3
figure out if we could identify where things had
4
developed. I would say it would be the minority
5
that we felt, either we couldn't explain where they
6
got it or that we weren't able to move fast enough
7
to prevent a secondary transmission.
8
I'd say that not being able to explain where
9
the patient got it was much more common than not
10
being able to move fast enough in order to slow it
11
down, even though that did become an issue maybe
12
around the wintertime, as Indiana was surging. In
13
the fall, wintertime period, we got slowed down by
14
the volume, and there were secondary transmission
15
cases.
16
Q If because of uncontrolled transmissions of the
17
virus that you can't control, secondary
18
transmissions, and you said you don't have a
19
measurement of when you would say the reopening is
20
unsuccessful, I mean, do you have any way of
21
measuring that or an opinion on what you would say
22
if somebody asked you has our opening, reopening
23
been successful? And I mean how many secondary
24
transmissions would you need to say no?
25
MS. RICCHIUTO: Objection. Vague. Compound.
Page 31
1
before they were being transmitted, usually because
2
of parties, and we just weren't able to fully trace
3
based on the amount of people that were exposed.
4
And in addition to that, the athletics
5
departments, or the games themselves became a -- or
6
practices became a setting where infection was
7
likely to propagate.
8
So after building a case and trying to
9
identify the amount of people who had gotten
10
infected by these procedures, made the decision
11
with leadership to slow down athletics practices
12
and events as things were worsening.
13
We then tested that hypothesis over that time
14
interval, we tested the athletes more aggressively.
15
As the epidemiology and as they came out of their
16
infection windows, we were able to restart the
17
athletics.
18
So to me that is a successful approach to a
19
pandemic, where as long as you've got
20
countermeasures that are working and you're able to
21
stamp out, I guess, the embers of a fire before it
22
turns into a conflagration and would force campuses
23
to shut down, then that's successful.
24
I think my main fear at the beginning was that
25
we were going to see widespread transmission that
Page 30
1
Asked and answered. Misstates testimony.
2
A Yeah, I don't really know how to answer that. You
3
know, from my perspective, this was a moving target
4
throughout the semester. Our strategy was to be as
5
flexible as we possibly could be as it relates to
6
additions of more aggressive intervention measures
7
but also subtraction if they weren't necessary or
8
were no longer necessary.
9
And we met weekly with not only amongst --
10
well, we met daily amongst the medical response
11
team but also met weekly with leadership to discuss
12
what the themes were that we were seeing and try to
13
respond to those with directed countermeasures.
14
So I thought that the process and that
15
flexibility and our mechanism by which we were able
16
to test, I say test hypotheses, but what I really
17
mean we identify a problem, we come up with
18
countermeasures, and we check to see if those
19
countermeasures are working was very successful
20
throughout the school year.
21
We did have, as an example of that,
22
large-scale athletics outbreaks that happened in
23
some of our regional campuses. This was identified
24
during contact tracing. We quickly found out that
25
we were not able to move fast enough on the cases
Page 32
1
we weren't going to have the personnel available to
2
be able to quarantine and isolate, we weren't going
3
to have enough beds available, we weren't going to
4
have a true appreciation for how much spread was
5
going on just due to lack of data availability, and
6
it never came to that head.
7
I think, you know, obviously before the
8
semester starts, there's a lot that's unknown, but
9
as we worked through that process we developed a
10
system whereby we were able to control these things
11
as they developed.
12
Q So your methodology, your decision-making, all the
13
things you just mentioned, resulted in successful
14
strategies in reducing COVID infections at IU?
15
MS. RICCHIUTO: Object to form.
16
A Yes, I would say that we were successful in
17
avoiding infections of COVID. It could have been
18
much, much worse.
19
Q Now, when was the IU mandate on requiring COVID
20
vaccinations for all students announced?
21
A I don't know that date. I'm sorry.
22
Q I wish I could remember it too. I think it was
23
around March -- I mean May 20th, but... End of
24
May, we could say, I guess.
25
What was the state of the infection rate for
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 8 of 42
9 (Pages 33 to 36)
Page 33
1
IU students at that time?
2
A We were -- I would have to know the date and I
3
would have to look back at our data, but I believe
4
we were essentially in alignment with the state and
5
were seeing decreasing epidemiology.
6
Q Not just -- I was asking more of not the
7
trajectory; I was asking you at what level were we
8
at IU.
9
A I would need clarification on what the levels are.
10
Q Well, what percent of infection rate was there of
11
students at the time that the mandate was
12
announced?
13
A I would have to look back at those numbers.
14
Q Was it high? Medium? Low? Very low? What was
15
it?
16
MS. RICCHIUTO: Object to form.
17
Q Do you have an estimate?
18
A Well, I don't know where you would set a high
19
versus a medium versus a low threshold. Is it
20
relative to where we were previously? Is there a
21
set cutoff? I mean, I can't give you an idea on
22
slope, but that's probably all the data I have. I
23
would have to pull up the dashboard and tell you
24
exact percentages.
25
Q If I said that we had an infection rate comparable
Page 35
1
I report multiple times a week on numbers that
2
week. This is moving so fast that in order to give
3
you an accurate response, I would really feel more
4
comfortable going to the data itself as opposed to
5
guessing.
6
Q In your opinion, was the infection rate of IU
7
students such in the end of May 2021 that requiring
8
vaccinations for every student was warranted?
9
A Yes.
10
Q Why?
11
A Because there's still COVID out there. We were
12
still seeing infections, still seeing
13
transmissions.
14
In addition to that, and this is probably more
15
of a factor in relation to uncertainty in the
16
future, coupled with national guidance that vaccine
17
was the most important thing that we could do for
18
prevention, led to these discussions on the
19
mandate.
20
Q Does the CDC recommend vaccination mandate for
21
anyone?
22
A They do not recommend -- they do not comment on
23
mandates. They do recommend vaccination for --
24
Q Do they recommend mandating vaccinations for
25
everyone?
Page 34
1
to what there was at the beginning of March 2020,
2
if I said that, would that be, in your view, high,
3
low, medium, what?
4
MS. RICCHIUTO: Object to form.
5
A What was the rate in March of 2020?
6
Q It was at the very beginning when we just found
7
out.
8
A I don't know the rate back then. I would have to
9
go back and look at what the rolling averages were.
10
Q Did you advise this committee about the trajectory
11
of the COVID-19 virus and whether and where they
12
were and, you know, as a result of severity and
13
therefore what measures needed to be taken?
14
A I advised the Restart Committee as well as the
15
Executive Leadership Committee.
16
Q You were the one that advised them about the
17
infection rates?
18
A Yes.
19
MS. RICCHIUTO: Objection. Asked and
20
answered.
21
Q But you don't know anything about the infection
22
rate?
23
MS. RICCHIUTO: Objection. Argumentative.
24
Misstates testimony.
25
A This is obviously a very rapidly changing pandemic.
Page 36
1
MS. RICCHIUTO: Objection. Asked and
2
answered.
3
A They do not recommend vaccine mandates.
4
Q Does the CDC?
5
A None comment on vaccine mandates.
6
Q So they haven't recommended it because they haven't
7
commented on it; right?
8
A They haven't recommended for or against.
9
Q Okay. Do they require -- does the CDC or the FDA
10
require their own employees to be vaccinated?
11
A I don't know that.
12
MS. RICCHIUTO: Objection.
13
Q All right. Is there any state in the United States
14
that has mandated vaccinations for college students
15
for the COVID -- mandate COVID vaccinations for
16
college students or above?
17
MS. RICCHIUTO: Object to form.
18
A You're talking about state governments mandating it
19
for a college?
20
Q Yes. State governments.
21
A Not to my knowledge. But I'm not confident there.
22
I know there are many universities that are
23
mandated.
24
Q Well, there's 10 percent, I understand there are,
25
at least. 10 percent of the colleges have done
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 9 of 42
10 (Pages 37 to 40)
Page 37
1
this.
2
Is there any county that has mandated
3
vaccination for the population?
4
A Not to my knowledge.
5
MS. RICCHIUTO: Objection.
6
Q Is there any city that has mandated vaccinations
7
for their citizens?
8
A Not to my knowledge.
9
Q Other than a few colleges and a few employers, who
10
has mandated vaccinations for their people under
11
their authority?
12
MS. RICCHIUTO: Objection. Mischaracterizes
13
the evidence and lack of foundation.
14
A Businesses, I would say.
15
Q I said other than employers.
16
A Oh, sorry.
17
Q Other than employers, some employers and some
18
colleges, who has mandated COVID vaccination?
19
MS. RICCHIUTO: If you know, Cole. There's
20
been no establishment that you know every
21
organization.
22
MR. BOPP: Don't coach him.
23
A I'm trying to think of who would be left out of
24
that group, so no employers, no -- so we're talking
25
about government entities? Is that -- I'm not
Page 39
1
healthcare workers.
2
We felt that if there were failures in the
3
mask, meaning if the mask, the surgical mask was
4
suboptimal for protection over N95s, then we would
5
see more COVID in hospitals that had higher
6
prevalence of COVID in the hospitals than in
7
hospitals that had lower prevalence of COVID.
8
One of the big debates related to healthcare
9
worker infections is related to, if they are COVID
10
positive, are they getting it in the hospital
11
related to their care for patients or are they
12
getting it at home related to what they're doing
13
outside.
14
And this study suggested that you were equally
15
likely, if not less likely, in high prevalence
16
hospitals, to have a COVID positive healthcare
17
worker, and effectively said that, to me, that
18
masking was a potential viable strategy for
19
protection of healthcare workers caring for COVID
20
patients.
21
Q And what kind of -- you said surgical masks. What
22
kind of mask is that? Or N95. I'm familiar with
23
N95. What did you mean by a surgical mask?
24
A Surgical or medical masks usually have ear loops or
25
ties -- sorry, gesturing over there -- but they're
Page 38
1
aware of any government entities that have mandated
2
the vaccine.
3
Q Now, you mentioned you had two publications
4
regarding COVID-19. Let me show you what's been
5
marked as Beeler Exhibit 7.
6
(Deposition Exhibit 7 marked.)
7
A Yes, this is one.
8
Q Do you recognize -- this is an abstract of one of
9
your papers. Is that this?
10
A Yes.
11
MS. RICCHIUTO: Object to form.
12
A Oh, yep. Yep. I'm a co-author on this paper, yes.
13
Q Okay. What was the research study that you were
14
doing here? Could you describe it, please?
15
A Yes. The main question with this study was in
16
relation to whether or not surgical masks were
17
protective against COVID-19, was our main question.
18
At the time, before this was published, there
19
was still many hospitals that were still using N95
20
masks for care of their COVID patients and just in
21
general kind of day-by-day work.
22
As the CDC started shifting what their
23
recommendations were, we decided to look at this
24
more systematically. All of our hospitals use
25
surgical masks for coronavirus prevention of the
Page 40
1
usually two to three ply. They've been certified
2
by OSHA. And there's a limited number~-- there's
3
actually a large number of different varieties that
4
you can get of these masks, but like your blue or
5
yellow surgical mask.
6
Q Is that one right there that Anne is wearing?
7
A Yes, that one is a medical mask, yes, or a surgical
8
mask. They have different names, but medical or
9
surgical or isolation mask.
10
Q Okay. Great. And they worked as well as the N95?
11
Is that what you said?
12
A We didn't --
13
MS. RICCHIUTO: Objection.
14
A Sorry. We did not compare the surgical masks to
15
N95s.
16
Q Now, what's the protocol for wearing a surgical
17
mask or an N95 mask in a healthcare facility?
18
A Well, each facility has different protocols.
19
Q Well, what's IU's, let's say?
20
A IU Health's protocol for using surgical masks as
21
opposed to N95, we use surgical masks for all
22
patient care activities. And any patient care
23
areas, healthcare workers are to have surgical
24
masks on at all times.
25
The N95s, which have a higher filtration
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 10 of 42
11 (Pages 41 to 44)
Page 41
1
efficiency, are used in situations where there are
2
going to be large aerosols created, and those are
3
related to specific procedures like bronchoscopy,
4
intubation, CPR.
5
Q Now, you described -- and maybe I'm using the wrong
6
word when I say protocol, but you described when
7
they use it. Is there a protocol about how they
8
use it? In other words, are they reused? I mean,
9
what are they supposed to do? You know, they come
10
into the hospital, they put one on, and then when
11
they're done, what do they do? I mean, are they
12
reused? That's what I'm trying to find out.
13
MS. RICCHIUTO: Object to form. Compound.
14
MR. BOPP: Because I don't know the right
15
word.
16
A We do have a reusable protocol both for N95s as
17
well as surgical masks that was adopted from the
18
CDC guidance on this question. There was serious
19
questions about mask availability at the beginning
20
of the pandemic, and we had local shortages as
21
well, so it was something that we had to work
22
through.
23
Do you want me to work through -- do you want
24
me to explain those protocols?
25
Q No. I'm interested in what instruction the
Page 43
1
potentially infectious patient room.
2
Q And at the end of the day, do they take the mask
3
home or is it disposed of, you know, in a sterile
4
way?
5
A Sterilely discarded.
6
Q Okay. Now, what did the -- what are healthcare
7
workers told about touching the mask? In other
8
words, is it okay to touch it with your bare hands
9
and go about your business, or do you need to use
10
gloves to protect yourself against what might be on
11
the front of the mask?
12
A So the first recommendation was that we advised
13
against touching your mask but acknowledged that
14
that's almost impossible for anyone who has worn a
15
mask. And if that were to happen, hand hygiene
16
would have to be completed quickly thereafter,
17
ethanol-based hand hygiene, to make sure that
18
anything that got transferred to the hands was
19
neutralized.
20
Q All right. What role did you play in this study?
21
I mean, when I published Law Review, I always used
22
to put my name first but I may not have written it,
23
you know what I'm saying? Truth be known.
24
(Discussion held off the record.)
25
Q But, anyway, what role did you play in the study,
Page 42
1
healthcare worker is given in terms of mask use.
2
Do they, as a matter of routine, reuse them without
3
them being cleaned or processed?
4
A Gotcha. So, in general, for the surgical masks,
5
the recommendation was to, as you come into the
6
building -- and this has obviously changed over
7
time. So IU Health just recently switched their
8
protocols, and surgical masks aren't necessary now
9
for vaccinated team members who are in non-patient
10
care areas. So that's a little bit different.
11
But the expectation back then was that you
12
would come in, you would get a surgical mask, you
13
would perform all your patient care duties until
14
the surgical mask was either visibly soiled, became
15
wet, or there was any concerns related to the --
16
from the individual related to the integrity of the
17
mask.
18
In addition to that, anytime the healthcare
19
worker was exiting a room with either a coronavirus
20
patient or another viral infection that required
21
masking, they were to doff the mask, take the mask
22
off and get a new mask afterwards.
23
So the masks were continued throughout the day
24
with the exception of the fact that it was changed
25
over with integrity issues or if they had been in a
Page 44
1
this study?
2
A I did a few separate things. One, I was part of
3
the conceptual design for the study to start out
4
with. My partner, Lana Dbeibo, functioned as the
5
implementer. I did manuscript review and editing.
6
Q All right. Let me show you what's been marked as
7
Beeler Exhibit 8, which I think this is your other
8
published research paper.
9
(Deposition Exhibit 8 marked.)
10
MS. RICCHIUTO: I'd just like the record to
11
reflect that Exhibit 7 and 8 are just the first
12
page.
13
MR. BOPP: Right. Right. The abstract.
14
MS. RICCHIUTO: Yes.
15
MR. BOPP: Correct.
16
Q Is this the abstract for your other paper on COVID?
17
A Yep.
18
Q Okay. What was the research that you were trying
19
to conduct that you report in this paper?
20
A This study was just looking at patient demographics
21
and laboratory findings as it relates to trying to
22
predict what tests are associated with poor
23
outcome.
24
Q What do you mean what tests are associated with
25
poor outcome? What does that mean?
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 11 of 42
12 (Pages 45 to 48)
Page 45
1
A Which laboratory findings or patient demographic
2
findings.
3
Q Oh, okay. And what were your conclusions?
4
A That age and gender may impact outcome in COVID-19.
5
D-dimer, procalcitonin, and lactate dehydrogenase,
6
and BNP may serve as early indicators of disease
7
trajectory.
8
Q Now, when you say "age," what are you referring to?
9
A So age, older age, may be associated with worsening
10
outcome.
11
Q And when you say "older" -- this is becoming
12
personal, but when you say older, what do you mean?
13
A In general, the risk factors for severe disease
14
increase after 65. Some studies say 60. At this,
15
we found it at 72.7.
16
Q Okay. Now, did you examine younger people in this
17
study?
18
A Younger people.
19
Q Well, let's say college-age people.
20
A I'd have to look back on what our lowest age group
21
was or what our lowest age individual was. But
22
college, we were just looking at patients who were
23
admitted to the hospital.
24
Q Oh.
25
A So that could have been anywhere from, you know, 18
Page 47
1
Let me show you what's been marked as Beeler
2
Exhibit 12, and at the bottom, you'll see an email
3
from Tony Fauci to a Ms. Angel, a March 4, 2020,
4
which says "The severe complication of COVID virus
5
are heavily skewed towards the elderly and those
6
with underlying conditions."
7
Now, that statement, then, is consistent with
8
your study, isn't it, that you published and is
9
Exhibit 8?
10
MS. RICCHIUTO: Objection to the extent it
11
misstates the date of Exhibit 8.
12
MR. BOPP: The date of what? I'm sorry.
13
MS. RICCHIUTO: Exhibit 8.
14
MR. BOPP: His email was on March 4, 2020.
15
Oh, okay. I'm just looking up -- okay.
16
Q Will you look at Exhibit 8.
17
A A?
18
MR. BOPP: 8.
19
MS. RICCHIUTO: 8.
20
A Yes.
21
Q What's the date of the publication of your paper?
22
A February 2021.
23
Q All right. Thank you. I think that's what I said,
24
but I could be wrong.
25
All right. So back to Exhibit 12. Your study
Page 46
1
usually to whatever. Maximum.
2
Q What was your role in this study?
3
A Manuscript review and editing.
4
Q Now, if you would pull out your report,
5
Exhibit 11 -- before we get to that, let me show
6
you what's been -- well, in your report, you cite
7
the CDC's recommendations fairly frequently.
8
That's my characterization. Is Dr. Fauci the one
9
who is the head of the agency, part of the CDC you
10
frequently cite to? Is that right? Is that --
11
what's his role?
12
A What's the role of Dr. Fauci?
13
Q Yes.
14
A Dr. Fauci's the adviser to the president and head
15
of the NIH, NIAIDS. So to my knowledge, even
16
though he does discuss things with the CDC because
17
of their overlapping relationships, he does not
18
come up with CDC guidelines.
19
Q Okay. Let me show you what's been marked as Beeler
20
Exhibit 12.
21
(Deposition Exhibit 12 marked.)
22
Q Now, your paper -- I'm sorry, your study, which is
23
Beeler Exhibit 8, concerning the indicators of risk
24
for COVID infection, was published February of
25
2021.
Page 48
1
is consistent with Dr. Fauci's opinion?
2
A I apologize. Can I go back?
3
Q Sure.
4
A So actually, I would need -- I would need to look
5
back at this text, because the Epub date is
6
July 2020, and I think we put this together before
7
the new year, so I would have to go back and
8
confirm. I'm not entirely sure when we submitted.
9
Q Okay. All right. Fair enough.
10
So my question was, your paper, Exhibit 8, is
11
consistent with the statement made by Dr. Fauci in
12
this email. "The severe complication of
13
coronavirus are heavily skewed towards the elderly
14
and those with underlying conditions." Is that
15
correct?
16
A I don't think that our paper identified all of
17
those risk factors, but I agree with Dr. Fauci's
18
statement.
19
Q Okay. Now, is it also true that the data supports
20
the proposition that college-age students are one
21
of the least -- one of the age populations with the
22
least risk of COVID-19, of adverse effects of a
23
COVID-19 infection?
24
MS. RICCHIUTO: Object to form.
25
A Relative to other age groups, college-age students
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 12 of 42
13 (Pages 49 to 52)
Page 49
1
have less chance of mortality than other age
2
groups.
3
Q Now, the only other age group that has less is,
4
isn't this true, is those younger than people of
5
college age?
6
A That's my understanding.
7
Q Okay. And that it goes up, the risk of an adverse
8
effect of a COVID-19 infection goes up as you go
9
through the age groupings toward the highest level,
10
which is people over 85. Is that correct?
11
A The risk of mortality goes up.
12
Q Okay. And then what's the relative risk of
13
mortality between college-age students and those
14
over 85?
15
A Are you looking for an exact number?
16
Q An estimate.
17
A The relative risk?
18
Q Uh-huh.
19
A Can I say lower?
20
Q Lower among college age?
21
A What's the relative risk of a college-age person
22
having a bad outcome versus an elderly person
23
having a bad outcome?
24
Q Yes. The way I hoped to say it was how much of a
25
greater risk does people over 85 have from a COVID,
Page 51
1
younger you are?
2
A Certainly.
3
Q Okay. And an examples of those would be?
4
A Sexually transmitted infections, HIV, suicide, car
5
accidents.
6
Q Polio?
7
A There's really no polio anymore so I can't speak to
8
that. Potentially back then it was associated with
9
that, but that's multifactorial.
10
Q All right. Now, when you determine strategies
11
regarding how to deal with infection rates among
12
populations, do you take into account the relative
13
risk?
14
A Among populations, we take into account the risk to
15
the population that we're serving, yes.
16
Q Now, is there any governmental agency that is
17
recommending a vaccination mandate for everyone
18
over 85?
19
A There's no governmental agency that I know of
20
that's recommending for or against a mandate.
21
Q Has any state or local government imposed a mandate
22
that everyone over 85 get vaccinated?
23
A Not to my knowledge.
24
Q What is the survival rate of college-age students
25
who have been infected by COVID-19?
Page 50
1
adverse effect of a COVID infection than do
2
college-age students?
3
A The average older individual has a much higher risk
4
of mortality than the average college-age
5
individual.
6
Q Isn't it true that in the state of Indiana it's 600
7
times more greater risk of those over 85 than those
8
who are college age?
9
MS. RICCHIUTO: Object to form.
10
A That number seems reasonable to me, but I would
11
have to confirm. I don't know that number.
12
Q And isn't it true that in the United States, as a
13
whole, that the risk of mortality for those over 85
14
is 800 -- over 800 times more than college-age
15
students?
16
A I'd have to look at that, those numbers. I don't
17
know it off the top of my head.
18
Q So what I -- I don't want to know your opinion on
19
this, but the way I look at that is, people who are
20
older -- you have a, what would you call it, a risk
21
profile. The older you are, the greater the risk.
22
And we're talking orders of magnitude greater risk.
23
Hugely greater risks.
24
Now, are there other diseases that have kind
25
of the reverse? In other words, greater risk the
Page 52
1
A I would say extremely, extremely high. 99 percent
2
or more.
3
Q Is the rate less for those as you get older?
4
A Is the survival rate less for individuals based on
5
age?
6
Q Yes.
7
A Yes.
8
Q Let me show you what's been marked as Beeler
9
Exhibit 14.
10
(Deposition Exhibit 14 marked.)
11
Q This is an article in techstartups.com, and -- but
12
they're reporting on CDC data of survival rates for
13
adults and other age groups. Is this rate
14
reported -- and please take a look at it --
15
accurate at the time, which was November 21, 2020?
16
A These numbers seem consistent with my
17
understanding.
18
Q If you can go to the bottom of page 2, and you'll
19
see the summary, quick summary of the CDC COVID
20
survival rate. Age 0 to 19, 99.997 percent,
21
then -- oh, my, this printing isn't very good, is
22
it? Well, because the printing screwed up, sorry,
23
there's a second chart which is the R0. What is
24
the R0? What is R0?
25
A The R naught is a statistical term usually used for
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 13 of 42
14 (Pages 53 to 56)
Page 53
1
a static phase illness, so an illness that when
2
introduced into a population isn't mutating at a
3
high rate. That is the average amount of people
4
who will be infected after an individual is exposed
5
to the population.
6
So an R naught of two means that for every one
7
infected person, two other people will become
8
infected.
9
Q Okay. For me to understand that, are you referring
10
to the rate of infection? The spread of the
11
infection? Is that what you're referring to?
12
A You know, I think kind of a layman's way of looking
13
at it is how infectious a virus is at a given point
14
in time. The R naught changes over time. And that
15
value, called an Rt, or an effective reproductive
16
number, can go up and down depending on the,
17
essentially efficacy of control of the epidemic, or
18
pandemic in this case.
19
If it's less than one, it typically means
20
things are getting under control. If it's greater
21
than one, it typically means things are going to
22
continue to spread.
23
Q So the chart we see regarding the R0 numbers on
24
page 2 at the top, is that consistent with what you
25
understood those numbers to be in November of 2020?
Page 55
1
A I have no doubt that the CDC did the math, but I
2
think all the math needs to be taken with a caveat
3
that the amount of uncertainties with the virus
4
lead to potentially problematic calculations and
5
wide confidence intervals around these numbers.
6
Q So you would agree, I gather you would agree that
7
the CDC information can be subject to proper
8
analysis on whether or not it's accurate or not
9
based upon other data.
10
A I think the CDC is an advising agency that is
11
making recommendations based on the current state
12
of the evidence. I think they do a fair to
13
excellent job in acknowledging their limitations.
14
And I think that as far as national guidelines go,
15
it's probably the highest quality that we could use
16
given the expertise in those areas.
17
Q But you can still question them, I gather.
18
A Oh, absolutely. Yeah. Yeah. I mean, and I think
19
it's -- you know, part of the response to a growing
20
pandemic is that there needs to be questions and
21
challenges throughout all these processes.
22
Q All right. Now, finally I'm going back to your
23
report, which is Exhibit 11. If you turn to
24
page 2, paragraph 9, here you are mentioning
25
increased risks of certain types of individuals,
Page 54
1
A I think this is highly debatable, even though I
2
understand the source, but I think the methodology
3
behind calculation of the R naught really from the
4
beginning of the pandemic has been questionable.
5
The original numbers that came out of China have
6
been challenged.
7
The effective reproductive number is the
8
foundation for how we set what the herd immunity
9
threshold is. Given the -- I would -- I would
10
trust these numbers a lot more if we understood
11
with certainty what the asymptomatic fraction of
12
the disease is.
13
But, unfortunately, since we don't have -- a
14
lot of this math and a lot of these equations came
15
from measles data, data where we have clear
16
physical manifestations in the vast majority of
17
people who get infected, or herds that get infected
18
with rinderpests.
19
In situations where there's a large
20
asymptomatic fraction where patients never develop
21
symptoms but potentially are infectious, that
22
number falls apart and can be inaccurate compared
23
to how infectious the virus actually is.
24
Q Now, this article is claiming to report CDC
25
numbers.
Page 56
1
and of course you list adults over 45 as having an
2
increased risk.
3
How reliable is that, that there's an
4
increased risk? Do we have enough data to be able
5
to say that is the case?
6
A Just the age over 45 or all factors?
7
Q Well, the age ranges, you know, that you've already
8
testified it increases and all that.
9
A Right. Exactly. There's a gradient as age goes
10
higher. I would say the quality of evidence is
11
very high in this area, and has been duplicated and
12
reproduced on large scale.
13
Q Now, paragraph 10, COVID-19 more often affects
14
children less severely than adults. Are you --
15
when you're talking about less severely, are you
16
limited to mortality or are you also talking about
17
other injury that could be attendant as a result of
18
the infection?
19
A Sure. I think the spectrum of morbidity --
20
certainly mortality is less in this age group, but
21
the spectrum of morbidity is just different in this
22
age group. And if you talk about hospitalizations,
23
I would say they're at much lower chance of being
24
hospitalized but they might have a higher
25
probability of having long COVID syndromes, where
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 14 of 42
15 (Pages 57 to 60)
Page 57
1
certain symptoms related to their COVID persist for
2
months, years, after -- not years, we don't know
3
yet, but long duration after their initial
4
infection.
5
Q Do we have data on that or is this a concern?
6
A No, we have data on this.
7
Q And you're saying the symptoms. I guess I was
8
being more specific than symptoms, you know,
9
injury.
10
A Well, I would --
11
MS. RICCHIUTO: Object to form.
12
Q I know that's not a technical term. Sorry.
13
A What's the question? I think I interrupted you.
14
Q I wasn't talking about symptoms that you can
15
recover from. I was talking about any long-term
16
adverse injury.
17
A Well, I think, you know, form and function symptoms
18
probably are -- relate to some sort of damage
19
that's happened related to the virus. I just don't
20
think we have a hundred percent understanding of
21
what that damage is and how to treat it, how to
22
reverse it at this point.
23
But these COVID long haulers or long COVID
24
syndrome patients do have major changes to their
25
life. They do present -- that's actually one of
Page 59
1
what it was.
2
A The New York Times since the beginning of the
3
pandemic has been tracking campus-related COVID
4
cases since the beginning.
5
Q Oh, themselves?
6
A Yeah. And, I mean, they're using publicly
7
available information through the dashboards that
8
we present from the universities.
9
Q Okay. That's an explanation. Thank you.
10
The next section you're discussing herd
11
immunity. What is the basis -- turn to
12
paragraph 21. What is the basis for your statement
13
that the scientific community had not yet
14
determined the percentage of people needed to
15
achieve herd immunity for the COVID?
16
A The basis of it was the fact that the original
17
calculations related to the R naught from the
18
Chinese was highly suspect. Because of that, it's
19
been challenged. R naught recalibration was
20
attempted, and this led to varying numbers that
21
were reported based on the math calculations on how
22
infected -- how infectious the virus was in the
23
asymptomatic fraction. So I've seen anything from
24
60 to 80 percent for being herd immunity
25
thresholds.
Page 58
1
the more common outpatient COVID questions that we
2
get in infectious diseases, is how to manage these
3
long-term symptoms. We actually have separate
4
clinics that handle that just because of how
5
prevalent it is specifically in the younger age
6
groups.
7
And, unfortunately, right now it's just
8
symptom control since we don't have a good
9
understanding of the pathophysiology.
10
Q What's the incidence of this, long-term symptoms?
11
A I had read that 30 percent of some college-age
12
students develop -- after infection with COVID
13
develop long COVID symptoms, syndromes.
14
Q Okay. How about other age groups?
15
A I don't remember off the top of my head. Certainly
16
any age group it's possible, but I don't have those
17
numbers.
18
Q Paragraph 17, you're referring to a New York Times
19
report. Do you know the basis of the report, what
20
study or scientific basis they had for that?
21
A I would need to go back and review. Are you
22
talking about what the primary article was that
23
they're citing?
24
Q Yes. I assume there was. I don't know that there
25
is, but I wondered if you knew if there was and
Page 60
1
But, again, the issue with herd immunity --
2
Q 60 to 80 percent of what? I'm sorry.
3
A Individuals immune.
4
Q Oh, okay.
5
A So herd immunity is the theory that if a certain
6
percentage of the population is immune to a given
7
pathogen -- and this is a static pathogen that's
8
not evolving -- then the immune fraction will
9
protect the nonimmune fraction. And it's different
10
depending on how infectious the virus is.
11
Generally the more infectious the virus is, the
12
lower threshold for herd immunity because the more
13
people will benefit.
14
In the case for COVID, we don't really have a
15
good understanding of how infectious the virus is
16
because it's so hard to diagnose asymptomatic
17
disease.
18
The other thing that makes herd immunity
19
philosophy difficult to apply to COVID is because
20
of the evolution of the virus and the variants
21
leading to potential breakthrough infections even
22
despite antibody presence or neutralizing antibody
23
presence.
24
So if immunity was static, if we knew that
25
immunity was durable for this virus over time, then
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 15 of 42
16 (Pages 61 to 64)
Page 61
1
we could trust the percentage of the population
2
that has been exposed to coronavirus being immune.
3
But we're learning, and have learned, that immunity
4
is not static with this virus, and things do change
5
specifically as it relates to variants of concern.
6
There's also ample substrates. The longer
7
that the coronavirus remains in the population,
8
each vulnerable individual that gets infected is
9
the opportunity for further mutations in the virus.
10
And eventually, just by evolutionary theory, the
11
virus will develop ways to bypass the current
12
immune stress.
13
We see that with other coronaviruses as well.
14
That's why you get the common cold multiple times
15
in your life.
16
Q Does an acceptable calculation of herd immunity
17
include those that have been previously infected
18
and have antibodies?
19
A That's what I challenge. I don't know for this.
20
Because, since the immunity to the virus after a
21
natural infection is suspect and could change over
22
time depending on how the variants spread, the math
23
that you did three months ago might not be the same
24
math today with a different variant circulating in
25
the population.
Page 63
1
cases over a one- to two-week period as a rolling
2
average.
3
I would expect to see zero or very close to
4
zero percent positivity in those testing, with
5
adequate testing going on, so there wouldn't have
6
to be zero testing.
7
And even then, I think that's error prone
8
because we don't know if there's reservoirs yet for
9
this, even nonhuman reservoirs for this infection
10
that may, like flu, set up shop and produce
11
substrate for further divisions, further
12
replications that could lead to mutations that
13
could reinfect us like seasonal influenza virus.
14
Q So zero or close to zero reinfections.
15
A Infections and percent positivity.
16
Q And -- all right.
17
A Over time too is the other important thing. It
18
couldn't be just like one day where herd immunity,
19
it would have to be durable.
20
Q Right. So what size population are you talking
21
about when you're talking about zero or one or very
22
small number? You're talking about 90,000
23
students? Are you talking about 3.5 million in the
24
state of Indiana? 300 million in the United
25
States? 350 million? What --
Page 62
1
So it's really, really hard to tell, and since
2
it's a changing, complex, non-closed system -- I
3
mean, herd immunity was developed in rinderpests,
4
right, in cows, which you had a set group of cows
5
and you knew you needed to vaccinate this many cows
6
in order to protect the rest of them.
7
This is a much more complex virus with a large
8
asymptomatic fraction that's developing mutations
9
that are associated with viral breakthrough.
10
Q What are other infectious diseases that manifest
11
mutation and new variants? What are other ones?
12
A Influenza, HIV. All living organisms develop
13
mutations to bypass stressors. It's evolutionary
14
theory. So everything that is a living organism
15
has the potential to do this, not just pathogens.
16
But some notable examples where it makes these
17
calculations very challenging are things like HIV,
18
things like influenza where you have massive
19
genetic changes in mutations that prevent us from
20
really being able to document how -- how likely
21
control is.
22
Q What would you look to, to try to determine if herd
23
immunity had been achieved? What kind of evidence,
24
empirical evidence or whatever would you look for?
25
A I would expect to see zero or very low new positive
Page 64
1
A Yeah, I think it would be any population that you
2
decide to look at, because each individual
3
population, it could eventually reach a local herd
4
immunity.
5
So if you look at a church, for instance, like
6
my church, if everyone got vaccinated at my church,
7
we could pretty safely go to church and not have to
8
do anything, and we could compensate for the small
9
amount of individuals who didn't manage to mount an
10
immune response to the vaccine.
11
If you make that group bigger, we would still
12
need those same numbers. We would need a certain
13
number of functional immunity that would be
14
manifested by no infections and a low positivity
15
rate and testing that proves that we aren't seeing
16
breakthrough or new mutations, so surveillance of
17
some sort.
18
It doesn't really matter the size of the
19
population, but you could effectively have focal or
20
local herd immunity in a population with high rates
21
of immune protection.
22
Q Turn to page 5, paragraph 24. You say that each of
23
the COVID-19 vaccines have been proven safe and
24
effective. What is the measure of, let's start
25
with effective. How do you measure its
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 16 of 42
17 (Pages 65 to 68)
Page 65
1
effectiveness? That's a value term so --
2
A It is.
3
Q -- what would be the measure of effectiveness of
4
the COVID vaccination that would lead you to this
5
conclusion?
6
A So --
7
THE WITNESS: Go ahead.
8
MS. RICCHIUTO: Object to form.
9
A You're right, it is a judgment call. But I think
10
that I would compare it to other vaccines that are
11
also widely available and recommended and even
12
mandated. To me, an effective vaccine would be
13
something that was at least as good as a flu shot,
14
which I would say is, from any year, 40 to
15
60 percent protective against morbidity and
16
mortality from the infection, from influenza.
17
Q Okay. So you could still get the infection, but
18
you just -- it would ameliorate the effect. Is
19
that what you're saying?
20
A Well, so there's two pieces of the coin for the
21
influenza vaccine, and probably with any vaccine,
22
but it's been studied most in influenza, where the
23
immunity that is provided by the influenza vaccine
24
not only decreases your probability of the virus
25
setting up shop and causing infection, but it also
Page 67
1
Q Okay. So that means, though, that there's a range,
2
depending upon the vaccine, of, say, 5 to -- what
3
did you say? 70 percent for Johnson & Johnson?
4
A Oh, Johnson & Johnson was like 70 percent and then
5
95 percent was Pfizer. That's the range right now,
6
uh-huh.
7
Q So it would be a 3 to 30 percent chance that the
8
vaccine would have no beneficial effect.
9
A So those --
10
MS. RICCHIUTO: Object to form.
11
A Those numbers for viral efficacy are specifically
12
looking at avoidance of clinical presentation with
13
COVID. And it's different in each study on how you
14
define that.
15
It does not comment on, necessarily, even
16
though we have more data in this specifically with
17
Pfizer, on if you do get infected what does the
18
vaccine do to protect you against dying from the
19
infection, from spreading it to other people.
20
So there are other variabilities outside of
21
mortality and even presentation to the hospital
22
that I would consider to also be beneficial aspects
23
of the vaccine even beyond what was reported in
24
that area. And those numbers for all the vaccines
25
are generally higher than the viral efficacy.
Page 66
1
decreases your probability if you get infected for
2
having to go to the hospital sick and dying from
3
the infection.
4
So there's two benefits. One, one is more
5
encompassing; the other is another secondary
6
benefit even if the vaccine doesn't prevent you
7
from getting infected.
8
Q So you believe, it's your opinion that the three
9
COVID vaccinations, vaccines have achieved that
10
level, 40 to 50 percent level, that makes them
11
effective.
12
MS. RICCHIUTO: Objection. Misstates
13
testimony.
14
A Yeah, I believe that the three available
15
coronavirus vaccines way outpace the influenza
16
vaccine in effectiveness.
17
Q What percentage would you place -- you mentioned
18
the 40 to 50 percent for the influenza vaccine.
19
What would you place the COVID vaccinations at?
20
A Depends on the vaccine. The viral efficacy of the
21
Moderna vaccine is about, gosh, what was it, like
22
90 percent; 95 percent for the Pfizer; like
23
70-something percent for Johnson & Johnson. Which
24
I think are all above what I would consider to be
25
an average successful influenza vaccine season.
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1
So Johnson & Johnson, even though it's only
2
70 percent, there's benefit up 80 to 90 percent,
3
depending on the study you're looking for, for
4
preventing some of those other things.
5
Q So what about the 10 percent or whatever that are
6
left over, that it's not effective with, in
7
providing any benefit. What -- what about them?
8
A Yeah. I mean the vaccine is not a hundred percent
9
effective. There's some people who get the vaccine
10
that are just not going to mount an immune
11
response. And the risk factors for those are
12
patients with bad immune systems, patients who are
13
on immunosuppressant medications.
14
In that group, I would include the extremes of
15
age. We know most about the elderly, and you can
16
define that range really -- it probably is like a
17
gradient, like you mentioned before, is the older
18
you get, the lower probability you're going to not
19
respond to the vaccine.
20
And in those situations, those individuals, as
21
far as we know, have a lower chance of developing
22
antibody response, seems like a lower chance of
23
developing protection against the virus, so
24
clinical manifestations of infection.
25
And then the other thing that I would mention
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18 (Pages 69 to 72)
Page 69
1
is that they're also more likely to present to the
2
hospital and die despite vaccination.
3
Q How effective -- I'm taking you back to your
4
Exhibit 6, your interview, March 8, 2021. If one
5
observed the things you recommended at that
6
point -- wearing a mask, keeping 6-foot radius,
7
washing hands, avoiding -- this is on page 6 again,
8
avoiding large groups, disinfecting -- what
9
effectiveness -- how effective would that be?
10
MS. RICCHIUTO: Objection. Asked and
11
answered.
12
A So I would say just from experience in having to
13
interview all of these cases and to look through,
14
talk through all the cases, that it's the
15
Swiss cheese model of, you know, system failure,
16
where each, each system that you add, or each
17
protective mechanism that you have is additive
18
towards the total net protection that you have.
19
And all of these individual factors are much
20
less potent than actually having an immune
21
individual. So masking by itself, even though it's
22
a great step in the right direction, it was the
23
only tools we had available here to prevent
24
infection, we learned that, and continue to learn
25
that it is not -- it is not 100 percent effective.
Page 71
1
50 percent protection, it really is so setting
2
dependent it would almost have to be carried out in
3
a lab, which is not real world. It would need to
4
all be in vitro, it would need to be experiments on
5
mannequins, and I wouldn't trust that data to be
6
actually representative of what would happen in
7
real life, so you can't really compare.
8
All we know for sure is that you're going to
9
get transmissions despite your best policies as
10
application of these preventative measures because
11
none of them, even in concert, are going to be able
12
to really effectively account for human behavior,
13
and they're not going to account for the fact that
14
there's still a lot unknown about how transmissible
15
this disease is and in which ways it's able to
16
spread from person to person.
17
Q Well, of course there's a failure rate. You said
18
there's a failure rate involving vaccinations too.
19
So, I mean, I'm just trying to find out if you have
20
an opinion on the degree of success or
21
effectiveness that implementing, if people actually
22
did implement these, which you were suggesting, we
23
could reopen successfully.
24
A Yeah, I would say --
25
MS. RICCHIUTO: Objection. Asked and answered
Page 70
1
It's probably not even close to that.
2
Q Well, and I'm trying to get you to put the number
3
on what you've put on the vaccinations, you know.
4
I mean, you have an opinion of that back in March
5
of 2020. You said if we observe these general
6
guiding principles, we could successfully reopen.
7
So how successful can that be?
8
A Right. Again, and, you know, going back to that
9
discussion, the success was with the knowledge that
10
we weren't going to prevent all infections because
11
we knew that these mechanisms were not perfect.
12
But we knew that these mechanisms, whenever they
13
couldn't be applied -- it's a big problem of human
14
nature; right? So the reason that I can't give you
15
a number here is because no one can study how
16
adherent people are to these regimens and what
17
happens in the systems.
18
And in addition to that, we still don't have a
19
great understanding on how COVID spreads. We have
20
very good data. We don't have excellent, you know,
21
clear data on aerosol route versus droplet routes.
22
If the ventilation systems are going to change how
23
that works. Given all the unknown variables as
24
relates to that, even if a study was to say if you
25
implement all these measures, you can have
Page 72
1
multiple times.
2
A I'd say pragmatically, you know, real world,
3
presenting all of these things is -- and getting
4
everyone to adhere to it at all times is not
5
reasonable.
6
I can say that encouraging it and coaching to
7
it and doing the best you can on this, which is
8
probably what the average college student is going
9
to do, is going to be much, much, much less
10
successful than a fire and forget, like a vaccine.
11
There's no, you know, maintenance that's
12
required for a vaccine, there's no decision that an
13
individual has to make after they've gotten the
14
vaccine to whether or not they pull their mask off
15
or, you know, cluster together or go to a party.
16
It takes all of those factors off the table.
17
Q Now, your study involved surgical masks or N95
18
masks.
19
A Sorry, we did not include N95. We just looked at
20
surgical masks.
21
Q Oh, sorry, I misunderstood then. Thank you for
22
that correction.
23
Have you studied the use of masks by the
24
general population and the -- you know, so have you
25
studied that?
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19 (Pages 73 to 76)
Page 73
1
A I have not done a study where I've been an author
2
but there have been numerous studies that have
3
compared the efficacy of cloth masks, which is what
4
the general public is wearing, to surgical masks
5
and N95s, and that's the gradient of benefit.
6
Q So what do they say?
7
A The least effective masks by usually orders of
8
magnitude are the cloth masks. Surgical masks are
9
in most studies a little bit better than cloth
10
masks. And then N95s are dominant.
11
Now, the conditions in which these studies are
12
performed is usually in a laboratory where they're
13
using mannequins that are breathing out known
14
concentrations of virus so they can measure exactly
15
how effective they are, so there is some doubt, to
16
be honest with you, related to the difference
17
between N95s and surgical masks.
18
But consistently throughout these studies, the
19
cloth masks, even though they do offer protection,
20
there's a wide range of protection based on the
21
material that's used, based on how it covers the
22
mouth and the nose, and based on the fit around the
23
face.
24
Q Well, what about, you know, when you get done for
25
the day? You know, you go home and you -- I mean,
Page 75
1
The main mechanisms are just a barrier. You
2
have a physical substance that's in place from the
3
droplets or the aerosols that are floating through
4
the air. They hit the barrier instead of hitting
5
your mucous membranes and therefore is not able to
6
set up infection.
7
The other thing that's a possibility is
8
electrostatic repulsions in the masks, so there is
9
a little bit of charge associated in the mask, and
10
the droplets and the variants, the small viruses,
11
might be pushed away from the masks due to those
12
gradients.
13
The other possibility is that the humidity
14
that's created between the masks and the face and
15
the mouth actually acts as a protective barrier
16
itself, so you almost have two layers of protection
17
there.
18
Now, the filter part of it is probably what
19
differs, I would say, the most between the masks.
20
And that's why we talked about filtration
21
efficiency. Filtration efficiency accounts for a
22
lot of those other things. How likely is it for a
23
particle, of whatever size that you're looking at,
24
to get through a particular material. In general,
25
they found that cloth masks let more things pass
Page 74
1
do I understand correctly that the idea of the mask
2
is that it would catch a COVID virus and prevent it
3
from going in and therefore you don't get the
4
infection? Is that the mechanism?
5
A Partially. So --
6
Q What else?
7
A The purpose of the mask is a barrier but it's a
8
bidirectional barrier. The mask is beneficial not
9
only for prevention of acquisition of the virus,
10
and it does that by a number of mechanisms, but
11
also by prevention of an infected individual who
12
doesn't know they're infected and infectious
13
spreading it to other people. So we also consider
14
it to be source control.
15
Q Now, let's set those people aside yet because I
16
want to talk about somebody protecting themselves
17
from others.
18
A Yes.
19
Q That side. So how does it work when -- to protect
20
you from obtaining the virus from the outside
21
environment?
22
A So actually when it gets down to it, each mask
23
probably -- each type of mask, cloth versus
24
surgical versus N95, probably works a little bit
25
different.
Page 76
1
than N95s and then surgical masks.
2
Q Now, does the virus get caught in the mask?
3
A Yes.
4
Q Adhere to it in some way or another?
5
A Yes.
6
Q All right. Now, if that would be the case, and you
7
take it off and don't dispose of it in a sterile
8
way like you described what healthcare providers
9
do, or workers do, I mean, if I grabbed ahold of
10
this cloth mask I'm showing you, you would put it
11
on your hands, I assume, right, and you could
12
introduce it by rubbing your eyes or --
13
A I think that's theoretically possible. And at the
14
beginning of the pandemic, this was one of the
15
areas -- and we've been very slow to change this in
16
the medical community, despite really strong
17
evidence and epidemiological data that does not
18
support what we consider to be a contact mode of
19
spread.
20
So contact transmission means that after you
21
touch something, you can inoculate it into an area
22
that can become infected and then you can set up
23
infections. We just haven't seen that bear out in
24
the epidemiology. In those situations, we would
25
see infections over long distances; right? Someone
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20 (Pages 77 to 80)
Page 77
1
touched a doorknob, I touched a doorknob and got
2
it. Really what we're seeing vast majority of the
3
time is someone is infectious and breathing on me
4
and I get exposed to them and I get infected.
5
Now, it's still, I guess, theoretically
6
possible, and because of that the CDC still
7
recommends, you know, doing hand hygiene after you
8
touch your mask. And in the hospital we wear gowns
9
and gloves to -- and wash our hands, obviously,
10
after we see patients who have COVID.
11
But the CDC, as well as my understanding of
12
the data and the current kind of approach to this
13
says that contact transmission is a very, very low
14
mechanism by which this can spread, if it's any
15
mechanism by which it can spread.
16
Q Okay. Interesting. All right.
17
Now, turn to paragraph 25, please. Over the
18
last month or so, has there been increased evidence
19
of side effects of vaccines in college age?
20
A I'm aware of a few datasets maybe over the last few
21
months that have suggested an association with
22
myocarditis, pericarditis, with an increased
23
prevalence of vaccine -- post vaccine fever and
24
systemic symptoms for 24 hours after vaccine. And
25
then the Johnson & Johnson association with the
Page 79
1
likely there will be such a thing, and so we test
2
it in order to find that out. Is that correct?
3
A All vaccines go through Stage III trials that
4
investigate that question.
5
Q Right. Because we know that there are very likely
6
to be unknown side effects that we don't know yet
7
that will manifest itself in the study.
8
MS. RICCHIUTO: Object to form. Lack of
9
foundation.
10
Q Is that correct?
11
A The point of Phase III trials is to identify the
12
side effect profile of the vaccine. Leave it
13
there, yes.
14
Q Did they do Phase III testing of these three
15
viruses?
16
A Large-scale Phase III testing -- sorry, of three
17
viruses or vaccine?
18
Q Vaccines.
19
A Yes. Large-scale, multicenter, international
20
trials on the three vaccines.
21
Q Why didn't they find these three side effects that
22
are now manifesting themselves? Why is that?
23
A Likely because they're occurring in very, very,
24
very small numbers.
25
Q Even despite widespread large-scale testing?
Page 78
1
cerebrovascular sinus thrombosis, or clotting
2
disorders, in college-age students.
3
Q And am I right that those manifestations of side
4
effects, if you will, of a COVID vaccination, are
5
particularly manifest in the younger age people
6
than the older age people?
7
A They have a higher probability of developing those
8
syndromes, both in response to COVID infection
9
itself, but also in response to the vaccine. But
10
in response to COVID, the prevalence after COVID
11
infection itself is higher than after the vaccines.
12
Q I've heard the concept of, in this area, of known
13
unknowns. In other words --
14
A (Inaudible) of some sort?
15
Q I know, it sounds like an oxymoron, but, anyway, it
16
took a while to understand it. But is that,
17
particularly when we start with a new vaccine, we
18
test it because we know that there will be -- it's
19
highly likely that there will be side effects, at
20
least some side effects?
21
A Sure.
22
Q So we test them to find that out, okay, that, in
23
other words, we don't know what they are at the
24
beginning, but we think it's, based on experience
25
and the science and everything else, it's highly
Page 80
1
A Testing --
2
MS. RICCHIUTO: Object to form.
3
A Despite testing?
4
Q Trials. That's the word I meant. Sorry.
5
A Yeah. I mean, this is really an unprecedented push
6
for vaccine, and we've got more people getting a
7
vaccine than could ever be expected with any other
8
vaccine in human history, so there's going to be I
9
would consider some extremely, extremely rare
10
potential consequences of the vaccine.
11
And I would say I'd be hesitant to even use
12
consequences because at this point right now we're
13
in the association versus causation kind of debate
14
with these things. We know that there seems like
15
there's an association around these vaccines. We
16
don't know exactly what's driving that. But given
17
that we're -- gosh, millions of people are getting
18
vaccinated with the vaccine, we have much tighter
19
lens than we normally would for any other vaccine
20
in history to identify some of those extremely rare
21
concerns.
22
Q Turn to page 6, paragraph 30. What do we know
23
right now about the immunity rate of those that
24
have already had COVID-19? What do we know right
25
now?
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 20 of 42
21 (Pages 81 to 84)
Page 81
1
MS. RICCHIUTO: Object to form.
2
A I'm not sure what an immunity rate is.
3
Q Well, if you have a hundred people that had the
4
COVID infection, how many would have a long-term
5
immunity?
6
MS. RICCHIUTO: Object to form.
7
A So I think the problem I have with the term is that
8
immunity is a complex assessment of someone. Do
9
you just use antibody response? Is it antibody and
10
T cell. Is it clinical immunity? Is it based on a
11
test that we're using?
12
So what we do know about the clinical immunity
13
from patients who are previously infected with
14
COVID is that it seems like it is pretty durable.
15
So that there's evidence of antibody that's around
16
for long durations of time.
17
Now, the issue that we are seeing with natural
18
infection is that it does wane over time, it does
19
go down. And it may be that the vaccines, we're
20
having some early data now, have a more durable
21
immunity that's set up in the memory cells than
22
natural infection.
23
The other reason that I just want to be clear
24
in that immunity is multifaceted is that breadth of
25
immunity is also important here, especially in an
Page 83
1
probability of having your 24 hours of fever and
2
systemic symptoms after your first dose as opposed
3
to your second dose.
4
So essentially you're getting three doses of a
5
vaccine, of an immune bolus. So your immune system
6
responds to your natural infection; the second time
7
it sees it, you develop your kind of fever; and the
8
third time you see it, you may develop a fever but
9
it tends to be mild.
10
These are generally self-limiting. And
11
actually there's a lot of talk right now about if
12
we should be doing three doses in everyone, at
13
least evidence mounting in people who, like solid
14
organ transplant patients who have
15
immunosuppressant drugs on hand.
16
Each subsequent exposure that we actually have
17
to the virus, each essentially booster we get,
18
whether it by natural sources or immunization
19
sources, is beneficial, we can see as it relates to
20
the degree of immunity that develops. But antibody
21
level-wise, T cell-wise, memory-wise.
22
Q Let me show you what's been marked as Exhibit 17.
23
(Deposition Exhibit 17 marked.)
24
Q There is a study by Rachael Raw. Are you familiar
25
with this study?
Page 82
1
evolving virus. And there's early signal, there's
2
another study actually came out a few days ago,
3
that suggests that the virus does not induce
4
antibodies or types of antibodies that can respond
5
as well to variants, certain variants of concern.
6
The other thing I would mention is that in the
7
more recent study, those who have been vaccinated
8
tend to have higher levels of antibody than those
9
who have had asymptomatic disease or mild disease,
10
in particular, but probably all forms of natural
11
infection.
12
So even though we talk about immunity for both
13
natural infection and vaccine-induced immunity,
14
they are very much different, and there is a
15
difference expectation, I would say, developing
16
between the two mechanisms by which you develop
17
protection.
18
Q Have we seen that there is a risk of being
19
vaccinated if you have had a COVID infection?
20
MS. RICCHIUTO: Object to form.
21
A Yes. The only risk is that if you -- that I'm
22
aware of, based on my understanding of the data, is
23
that if you've previously had a COVID infection and
24
you're getting a two-dose series of vaccine, like
25
Pfizer and Moderna, then you have a higher
Page 84
1
A I need to review it.
2
Q You may of course.
3
A Yes, this is the study I was citing.
4
Q All right. Very good. Thank you.
5
A Can I make a caveat here, though?
6
Q Of course.
7
A It hasn't been peer reviewed yet. So -- I'm not
8
aware that it has been. I tend to watch
9
"med-archive" but -- but it's hard to say with
10
certainty until it really has been peer reviewed.
11
Q But as I understand it, you relied upon it in your
12
testimony you just gave.
13
A Yes. Sometimes it's the best data that we have and
14
sometimes we have to use "med-archive" which I
15
think is fine discussing these things and using it,
16
but it always has to come with that caveat, right,
17
that peer review process may change.
18
Q All right. Turn to page 7, paragraph 34. So if I
19
understand 34, as long as they have not had an
20
immediate or severe allergic reaction to a COVID
21
vaccine or its ingredients, then people, regardless
22
of their underlying medical conditions, can receive
23
the vaccination. Is that right?
24
A The only contraindication for the COVID vaccine is
25
an allergic reaction to the vaccine or the vaccine
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 21 of 42
22 (Pages 85 to 88)
Page 85
1
components. And even then, if you've had an
2
allergic reaction to Pfizer or even Moderna, you
3
could get the Johnson & Johnson. Or if you've had
4
allergic reaction to the Johnson & Johnson, you
5
could get the Pfizer or Moderna. They don't have
6
overlapping components.
7
Q Now, I'm assuming IU isn't claiming to be in the
8
position of making medical treatment decisions. Is
9
that right?
10
A Correct.
11
MS. RICCHIUTO: Object to form.
12
A Correct.
13
Q And so would it be your opinion that even though an
14
attending physician has advised a patient not to
15
have the COVID vaccine because of an underlying
16
medical condition other than this one, that IU
17
should just override that --
18
MS. RICCHIUTO: Object to form.
19
Q -- and require it anyway?
20
A What happens functionally is that our exemption
21
process takes into account not just
22
immunocompromising conditions but any condition
23
that the primary provider feels like would exempt
24
their patient from their list.
25
Now, we stay in alignment with what the CDC
Page 87
1
And even some of those patients may benefit
2
from getting the vaccine. If the provider who has
3
a relationship feels very strongly and they've got
4
a medical basis for their rationale, we work with
5
them in order to decide what's best.
6
Q What do you mean decide what's best? You have a
7
mandate, you're either going to enforce or not
8
enforce; right? You either have an exemption
9
you're going to grant or not grant.
10
A Right, this is the discussion we're going to have,
11
if we grant the exemption or not.
12
Q But ultimately IU decides that.
13
A By working with the provider.
14
Q I understand you want to talk to them but, I mean,
15
I'm getting down to like the legal state of affairs
16
here, that IU ultimately makes the decision, not
17
the attending physician, no matter; right?
18
MS. RICCHIUTO: Object to form. Misstates the
19
testimony. No foundation.
20
MR. BOPP: Go ahead.
21
A We review all medical exemptions. We apply the CDC
22
criteria and work with the provider in order to
23
decide if the patient meets exemption criteria.
24
Q And then that's the decision that IU makes.
25
A IU makes the decision on whether or not a patient
Page 86
1
recommends, but work with the provider in order to
2
provide education, because there's a lot of
3
providers that don't understand that certain
4
pathophysiologies are not necessarily
5
contraindications to the vaccine. Ultimately, we
6
work with them in order to help decide what's in
7
the patient's best interest.
8
Q "We" meaning IU?
9
A The medical response team, the four docs that are
10
part of the medical response team, review all of
11
the medical exemptions that are submitted and then
12
reach back to the provider who signs the sheet that
13
says I don't want my patient to get it because of
14
XYZ. Very frequently we ask for more information,
15
but it's -- we try to set up a dialogue to decide
16
and if they've got a good rationale.
17
I mean, there's going to be a bunch of things
18
like you mentioned that are good indications not to
19
get the vaccine. So if I've got a patient, for
20
instance, that's on retuximab, which is a
21
medication that doesn't allow antibodies to form,
22
doesn't make any sense to give the vaccine right
23
now, so we would 100 percent back that. But there
24
does need to be a dialogue since there are no firm
25
contraindications from the CDC.
Page 88
1
meets exemption criteria based on our conversation
2
with the provider.
3
Q Okay. So -- okay. So you just mentioned taking a
4
drug, which I don't remember the name of, that
5
would prevent the development of antibodies. That
6
would be a reason not to take a vaccine; right?
7
A Correct. Yeah.
8
Q Okay. So there are actually other conditions other
9
than severe and immediate allergic reaction that
10
can justify not taking the vaccine.
11
A So I think, I think it's probably semantics, which
12
is my fault, but retuximab, that medication, those
13
patients can safely get a COVID vaccine, but we
14
allow them to defer until there's a good time point
15
where they can get the vaccine to increase their
16
probability of developing antibodies.
17
And there's a number of different conditions
18
like that, including pregnancy and breast-feeding
19
and being on steroids and being on chemotherapy or
20
getting a solid organ transplant. I mean, there
21
are a lot of conditions where timing may not be
22
optimal, and we work through that based on what
23
their requested time is to get the vaccine or when
24
they felt like, with their provider, would be safe
25
to get the vaccine and usually work with them on
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 22 of 42
23 (Pages 89 to 92)
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1
that.
2
Q What other infectious diseases does IU require
3
biweekly testing?
4
A Bi --
5
Q Of the students for. What other infectious
6
diseases?
7
A There are no other infections that are of the
8
consequence of COVID-19 that require surveillance
9
testing to that level.
10
Q Of the consequence of COVID-19. What do you mean
11
by that?
12
A So in the setting -- so I think our ability to
13
control the virus is contingent on our ability to
14
identify asymptomatic individuals and quarantine in
15
order to prevent spread.
16
Failure to do that leads to spread, not only
17
within our community, the vulnerable populations,
18
but also outside our community to the counties and
19
other people who may be vulnerable.
20
So in order for us to understand where our
21
disease is at, what our prevalence is, what our
22
exposed or vulnerable groups are, testing is the
23
best way to diagnose and to understand.
24
Q Do IU students die from any other infectious
25
diseases than COVID?
Page 91
1
MS. RICCHIUTO: Objection to form. Misstates
2
the testimony.
3
A Yeah, they have not disappeared but they've become
4
very rare in the setting of vaccination.
5
Q Where and how do you measure rareness? By what
6
measure?
7
A You know, it's still possible. It's a lot less
8
than what it would be without vaccination. So last
9
year we didn't have any influenza virus, really,
10
that circulated. I'd have to look at the previous
11
year to tell you how low it was. But I would
12
define rare as comparing it to the county influenza
13
rates.
14
Q Okay. I'm sorry, what? County?
15
A The county influenza rates. So if the influenza
16
rate in the vaccinated college population was less
17
than the influenza rate in the county, I would say
18
that that is a protective intervention.
19
Q So Bloomington, Monroe County.
20
A Recently.
21
Q So IU, Monroe County in Bloomington.
22
A Right, right. Exactly, yeah, yeah.
23
Q Now, you mentioned protecting people in the
24
community as one of the goals, purposes. Does IU
25
prohibit students from going into the community?
Page 90
1
A Certainly.
2
Q What are they?
3
A Influenza kills college-age students every year.
4
Q Like how many at IU in the last year?
5
A We had almost no influenza at all because of the
6
COVID preventative measures.
7
Q Okay. How about the year before?
8
A I don't know those numbers.
9
Q What other infectious diseases do they die from?
10
A Meningococcus. I don't know those numbers, but
11
there's a lot of infections that are spread in the
12
college area that we try to protect them against by
13
vaccination. Influenza. We vaccinate against
14
meningococcus, we vaccinate against -- all of these
15
are usually diseases that are associated with close
16
cohorting, partying in dorms and living in
17
apartment buildings that just tend to be syndemic
18
with infectious -- with college-age groups.
19
So we don't test regularly for these because
20
it's challenging to test regularly for them and
21
also because our preventative measures with the
22
vaccines make that not necessary.
23
Q So they disappeared. All those infectious diseases
24
that disappeared as far as their infection rate and
25
morbidity and mortality rate, they disappeared?
Page 92
1
A We do not.
2
Q What is the current state of requirements in
3
Bloomington? For instance -- there's other
4
campuses; but, for instance, Bloomington, for the
5
community to protect themselves? What are they
6
requiring? Are they requiring masks --
7
A To my knowledge --
8
Q -- for unvaccinated people?
9
A Yeah, not to my knowledge, there's no measures in
10
place right now, with the exception of maybe group,
11
group size limitations.
12
Q Do they mandate vaccination?
13
A No.
14
Q Do they require social distancing?
15
A I don't know if individual businesses do, but the
16
government does not.
17
Q I'm talking about the government.
18
So is it your conclusion from that, that they
19
don't care about their own people that could get --
20
that there are vulnerable people that could get an
21
infection?
22
MS. RICCHIUTO: Object to form.
23
Q That they don't -- they don't care about them?
24
They don't what? They're not taking reasonable
25
measures to protect them? What would be your
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 23 of 42
24 (Pages 93 to 96)
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1
thought about what Bloomington is doing?
2
MS. RICCHIUTO: Object to form. Compound.
3
Lacks foundation.
4
A I am not privy to the discussions that go on in the
5
Bloomington government. From -- and I can't really
6
comment on the politics around whether a mandate is
7
reasonable and legal at that level.
8
From my perspective, and a public health
9
perspective, it makes sense to have the most amount
10
of people vaccinated as possible in order to
11
protect the people that can't mount an immune
12
response.
13
Q Can an individual who cannot mount an immune
14
response, the vulnerable people, one of the
15
categories you were talking about, what steps can
16
they take to protect themselves?
17
A I think we looked back at that original -- I forget
18
what the first article was when we talked about,
19
you know, 6-foot distancing and masking and
20
avoiding large crowds, which is what we would
21
recommend. But, again, those are going to be not
22
perfect and they're going to be incomplete. And if
23
they've got family members -- maybe they are able
24
to protect themselves, but if they've got family
25
members that are out in society, they could bring
Page 95
1
everyone over ten is equally likely to become
2
infected after a certain exposure, what we're
3
talking about is risks afterwards, after infection.
4
So, to me, those risk factors that we talked
5
about, you know, age being very common, is
6
something that's obviously outside of control and
7
very hyperprevalent in all of our communities. The
8
fraction of the population older than 65 grows
9
every year.
10
The other thing that I would say is that the
11
other risk factors for having severe disease and
12
bad outcomes include things that are as
13
hyperprevalent as high blood pressure,
14
cardiovascular disease.
15
So, I mean, a lot of these risk factors, I
16
would expect probably the majority of people in
17
Monroe County to have after they get to be 50, but
18
I don't know those exact numbers.
19
Q That's not what I asked you about. I asked you
20
about what you said. You said that there is a
21
population that cannot mount an immune response and
22
that getting vaccinated would not work with them.
23
Okay? So they don't have the ultimate protection
24
that you would hope a vaccination would perform.
25
A Gotcha.
Page 94
1
that back to them.
2
So despite our best efforts at creating
3
bubbles around vulnerable people, it's incomplete,
4
just like the previous interventions prior to the
5
vaccine were incomplete.
6
Q Now, what percentage of the population in
7
Bloomington, for instance, would you expect to be
8
in the category you're describing, who cannot mount
9
an immune response? What's the nature of that?
10
How do we measure that number?
11
MS. RICCHIUTO: Objection. Compound.
12
Q Let's say there's 60,000 people who are not
13
students that live in Bloomington.
14
A I've got no way of understanding the individual
15
comorbidities of a population of a county.
16
Q Well, or the state or the nation or whatever. I
17
mean, how serious a problem is this based on how
18
many people could be within the category of
19
vulnerable people?
20
A Yeah. I think that there's two ways of looking at
21
vulnerability, and I think it comes down to
22
infectiousness; right? So there's not really a
23
huge difference in infectiousness with the
24
exception of maybe less-than-ten-year-olds as it
25
relates to COVID itself. So if everyone is --
Page 96
1
Q How many people are there, I mean, in a population?
2
A So remember the main, the main --
3
Q Is this prevalent? I mean, is there one maybe in
4
Bloomington or is there a dozen or a thousand or
5
20,000? You know, half of the population? What
6
are we talking about?
7
MS. RICCHIUTO: Objection. Compound.
8
Q Of course it was. I threw out a lot of numbers but
9
I want you to pick one.
10
A Yeah, yeah, I get it. So it's a gradient with age;
11
right? So as you get older, your risk of not
12
mounting an immune response gets worse -- or your
13
risk of not mounting an effective immune response
14
gets more common. So the older you get the chance
15
that you're going to respond to a vaccine the same
16
that a younger person would respond to the vaccine
17
becomes less and less.
18
Q Okay, people over 65 then. What percentage?
19
A But even over 50; right? So it's going to be maybe
20
less over 50, it's going to be maybe less over 40.
21
Q I understand that, the comparison. What I'm asking
22
for is some number to measure how many people are
23
we talking about that are at risk. What percent of
24
the population?
25
MS. RICCHIUTO: Objection. Asked and
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 24 of 42
25 (Pages 97 to 100)
Page 97
1
answered.
2
A It's a gradient of risk depending on the age group.
3
And I would also say that --
4
Q Well, pick an age group and tell me.
5
A What percentage of Monroe County population is over
6
50?
7
Q No, of course I didn't ask that. I asked what
8
percentage of the population over 50 would you
9
expect not to be able to mount an immune response.
10
What are we talking about?
11
A It's not an exact answer.
12
MS. RICCHIUTO: Object to form.
13
A And that's why I'm trying to get clarity on the
14
question, because a person over 50 might develop
15
antibody response, it just might not be as much
16
antibody response as someone who is older. And is
17
that antibody response enough for them with their
18
other comorbidities that are going on that might be
19
listed, like decreasing their chance of developing
20
a response? I don't know.
21
Q Doctor, I used the words you used, so you must know
22
what words you used and what they mean. The
23
population that cannot mount an immune response. I
24
just want some idea of some percent of some -- of
25
the population that that would apply to.
Page 99
1
out there. Those people are vulnerable. And it's
2
probably a larger percentage of our population than
3
we appreciate.
4
Q Page 8, please, paragraph 42. Now, did you write
5
that paragraph?
6
A I did.
7
Q Do you literally mean that in your expert opinion
8
the degree of unknowns associated with all of
9
Dr. McCullough's statements, do you really mean all
10
of his statements? You don't agree with a single
11
one of his statements?
12
MS. RICCHIUTO: Object to form.
13
A I explicitly address the statements that I have
14
issues with.
15
Q Okay. All right. So we should -- okay. So we
16
should view that paragraph as referring to what
17
statements you've addressed in your report, not
18
every statement that's made in his report.
19
MS. RICCHIUTO: Object to form.
20
A I addressed my rebuttals to his concerns that I
21
disagreed with.
22
Q Okay. Very good. Page 9, this is at the end of
23
paragraph 45, "In total, calculations like those
24
set forth by Dr. McLaughlin -- McCullough, I'm
25
sorry, are highly error prone because of
Page 98
1
MS. RICCHIUTO: Objection. That has been
2
asked and answered.
3
A I cannot estimate that percent. I would guess that
4
it would be relatively high just because of all the
5
comorbidities that are associated.
6
Q I'm not talking about comorbidity.
7
A Comorbidities put you at risk for failing to mount
8
an immune response.
9
Q But some do and some don't.
10
A Right.
11
Q Okay. I'm asking for what you stated. How many
12
would be, whatever the cause, not be able to mount
13
an immune response?
14
MS. RICCHIUTO: Objection.
15
Q What percentage of the population?
16
MS. RICCHIUTO: Asked and answered.
17
Argumentative. Jim, I understand you don't like
18
the answer but you've gotten --
19
MR. BOPP: No.
20
MS. RICCHIUTO: -- an answer multiple times.
21
MR. BOPP: I've gotten no answer and that's
22
why I'm asking it.
23
A I can't give you an answer.
24
Q Okay. Well, then fair enough. Thank you.
25
A I think that from my perspective, those people are
Page 100
1
uncertainty related to the included variables."
2
Isn't what you are saying inherent in this
3
entire discussion? In other words, that you, for
4
instance, were just going on and on about all the
5
error prone or variables that we just don't have a
6
real certain handle on. I mean, isn't that one of
7
the problems with this area, is that there's so
8
much, you know, that we haven't precisely
9
determined? Okay?
10
A I think that there are --
11
MS. RICCHIUTO: Object to form.
12
Sorry, Cole.
13
Compound.
14
A I think that there are areas related to COVID that
15
remain uncertain. I think there are areas related
16
to COVID that we've built actually a really solid
17
evidence base of and we have more concrete and more
18
confident data. But I'd be remiss if I didn't say
19
that the scientific community is evolving and we
20
have to respond to new data as it comes about.
21
This particular comment was related to his
22
calculations, the long arithmetic he did for the
23
calculation of herd immunity. And like we talked
24
about previously, the herd immunity equation really
25
is based on a lot of variables that change over
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 25 of 42
26 (Pages 101 to 104)
Page 101
1
time. And a calculation today might be completely
2
different than a calculation tomorrow with an
3
evolving virus.
4
So there's assumptions that are built into all
5
of those modeling equations that I think we can't
6
take for granted, and I think that certainly we've
7
already seen how they can fall apart over time.
8
Q Well, what about the accuracy of that calculation
9
at the time he made it?
10
A The problem is that we don't have a really accurate
11
representation of the R naught, the effective
12
reproductive number.
13
Q And we also don't know how many have had COVID that
14
have immunity.
15
A Correct.
16
Q Right? We don't know how many who have had COVID
17
and also took the virus because there's a potential
18
big overlap; right?
19
A Wait. Sorry.
20
Q The vaccine.
21
A Okay. Okay.
22
Q Sorry.
23
A Yeah.
24
Q I'm sorry about that.
25
A You're right. Yes, we don't know that overlap in
Page 103
1
A Well, I think all decisions need to be made based
2
on what's happening with numbers. So, yes, it
3
could very well come back. I hope it doesn't. But
4
if we're seeing increased spread amongst
5
individuals that could be mitigated, or if we need
6
to add another, you know, wall of protection, then
7
masks would probably be the first thing to come
8
back.
9
Q Do you have a Twitter account?
10
A I do.
11
Q And you tweet and retweet?
12
A Occasionally I've been known to retweet in the
13
past.
14
Q What do you retweet?
15
A I usually will retweet medical-related stuff that I
16
think is either interesting or thought provoking.
17
Q Let me show you what's been marked as Beeler
18
Exhibit 36.
19
(Deposition Exhibit 36 marked.)
20
Q Now, I had trouble printing this, okay? So let me
21
describe. As you can see on the front page in the
22
upper left-hand corner, you see Cole Beeler
23
retweet. And it says the New England Journal of
24
Medicine. And then there's a statement and then
25
there's a blank space; right?
Page 102
1
the Venn diagram.
2
Q We don't. We don't know that. And which he
3
acknowledges, of course, I mean.
4
I think we already got into 45 about people
5
who -- you know, problems with their immune system.
6
Let me ask you about 55 on page 12. I
7
understand that IU announced yesterday that they're
8
lifting the mask mandate, making it optional for
9
fully vaccinated people. Do you understand that?
10
A Yep.
11
Q Did you participate in that decision or were
12
consulted in any way?
13
A The medical response team was involved. I wasn't
14
part of the main decision, but one of my
15
compatriots was.
16
Q Okay. What's the basis for that decision? It was
17
going to be lifted on July 31 --
18
A Right.
19
Q -- as I understand it.
20
A Very high percentage of vaccination uptake so far,
21
very, very low county epidemiology, and low amounts
22
of people on campus.
23
Q So is this temporary? In other words, they may
24
reinstate it when more people get back at campus?
25
Is that what --
Page 104
1
Well, in that blank space, as you turn the
2
next page, that's a screen shot that also shows
3
your -- the original statement about the New
4
England Journal of Medicine, and then what was in
5
the blank space, the yellow.
6
And --
7
A Do you know when this is from, if I can interrupt?
8
Q Well --
9
A Maybe April of 2020?
10
Q That sounds -- yes, there it is, down there, right.
11
A Okay.
12
Q Yeah, right. Is this -- do you agree, this is one
13
of the reasons masks are being used or required, is
14
that even though they may not be particularly
15
helpful in stopping COVID transmission, let's say,
16
that they make people feel safe?
17
MS. RICCHIUTO: Objection. Lack of
18
foundation.
19
A No, I don't believe that. I think -- I think this
20
is a very fascinating read because, at the time, it
21
was around the time that we were having a lot of
22
debates from the IU Health System perspective on if
23
we were going to be universally masking.
24
What we were seeing is actually asymptomatic
25
spread to our healthcare workers from patients who
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 26 of 42
27 (Pages 105 to 108)
Page 105
1
came in for syndromes unrelated to COVID, maybe
2
they were just getting a surgery or something. We
3
eventually found out that they were COVID positive,
4
and our healthcare workers were getting infected.
5
So we were having a lot of talk about universal
6
masking. But at the time, the culture and evidence
7
to support universal masking was not there.
8
And -- but when we switched over, there was a
9
lot of community praise for the universal masking.
10
I think a lot of it was because of perception that
11
I'm now protected because I'm wearing this mask and
12
everyone around me is wearing this mask.
13
So even though we know now that that's not the
14
main -- there's now data that suggests that
15
universal masking actually does protect in the
16
healthcare environment, and as much as you can mask
17
in the community, that's also protective and
18
decreasing the rates, I still think that there is a
19
cultural shift that's happened with masks where
20
people just feel safer wearing them, which I think
21
is fine. And we definitely support from the IU
22
side of things, if you're an individual feeling
23
safer of wearing a mask, regardless of your level
24
of risk, keep wearing your mask.
25
Q Now, the New England Journal of Medicine article,
Page 107
1
A Not anymore.
2
Q Would you have agreed with that in February of
3
2020?
4
A Probably. Again, we had really poor quality data.
5
We didn't have large-scale data. And the evidence
6
that we did have suggested it was more potent for
7
those who were infectious as source control as
8
opposed to those who were not infected. But this
9
is old.
10
Q Yeah. So what's the rate of protection that can be
11
afforded by a mask from an uninfected person
12
acquiring the infection?
13
A Can you rephrase? I'm sorry. What's the rate of
14
protection that you can get wearing a mask from --
15
like how much does a mask protect you
16
percentagewise?
17
Q Yes, let's say. Yeah. I mean --
18
A I think -- what type of mask are we talking about?
19
Q The ones the general public would wear, okay? And
20
we can start with surgical, as she does, and then
21
we can go to other forms. And what I'm talking
22
about is if you want to determine that, right, you
23
could do that.
24
In other words, you would take a population
25
that doesn't wear a mask, you know, hopefully in
Page 106
1
which is the one, two, three -- and go to the
2
second page at the top, it says "wearing a mask
3
outside health care facilities offers little, if
4
any, protection from infection."
5
Did you agree with that statement at the time?
6
A Yeah, at the time, there were large-scale studies
7
that suggested, usually during influenza season,
8
that looked at masking and did not show a benefit
9
in acquisition of influenza. And, actually, even
10
one of them showed worsening of influenza.
11
But since that time, just because of the COVID
12
pandemic, there's been large-scale studies that
13
have contradicted those studies, that have
14
suggested, at least for COVID, that mask wearing
15
protects against transmission.
16
Q Okay. Let me show you also what's been marked as
17
Beeler Exhibit 39 -- 37. Sorry.
18
(Deposition Exhibit 37 marked.)
19
Q Now, this was February 5 of 2020. This is another
20
email from Dr. Fauci to someone, Sylvia. "Masks
21
are really for infected people to prevent them from
22
spreading infection to people who are not infected
23
rather than protecting uninfected people from
24
acquiring an infection."
25
Do you agree with that statement?
Page 108
1
the same environment, and try to standardize all
2
the other factors, right, and see the infection
3
rate. And then you would take, in the same
4
environment and other equal size, who faithfully
5
wear a mask of whichever variety and you maybe
6
study both, okay, each, and you could come up with
7
a comparison; right?
8
A Those studies have been done.
9
Q So what is the --
10
A And I do not know the percent difference, but I
11
know that universal mask wearing did result in
12
decreases in COVID rates in populations that wore
13
masks versus populations that did not wear masks.
14
Q There was a statistically significant effect.
15
A Yes.
16
Q Okay. Do you remember the name of the study?
17
A I would have to find it for you. I don't. I'm
18
sorry.
19
Q Okay. Well, I'm not asking you to do that, of
20
course, but all right.
21
All right. Let's go to page 13, and this is
22
at the very end of paragraph 57 where it says
23
"Their use" -- and I'm going to ask you what you
24
meant by that, okay, what were you referring to --
25
"has been thoroughly discredited and discouraged by
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28 (Pages 109 to 112)
Page 109
1
the CDC and the NIH."
2
What is the antecedent to the "their use"?
3
Their use of what?
4
A So "their" refers to the treatment suggested by
5
Dr. McCullough and listed in bold above.
6
Q Oh, all of them.
7
A Yes. And the reference is for the treatment
8
guidelines from the CDC and the NIH.
9
Q So all of those have been discredited and
10
discouraged?
11
A None of those are supported by the CDC or the NIH,
12
and the literature base for them is weak.
13
Q Okay. Let me show you what's been marked as
14
Exhibit 21.
15
(Deposition Exhibit 21 marked.)
16
Q And I'll represent that I clicked on your link
17
here, and this is what popped up, all right, as
18
your authority for this statement. "Their use" --
19
meaning all of these therapies -- "has been
20
thoroughly discredited and discouraged by the CDC."
21
Where does it address that in here?
22
A Well, you actually haven't printed out the
23
guidelines, you've printed out the update to the
24
guidelines. There's a larger PDF that goes through
25
what the evidence-based criteria are for treatment,
Page 111
1
Q Well, but you can link to PDFs.
2
A Oh, I didn't know how to do that.
3
Q Oh, okay. Fair enough.
4
A I thought that people would be able to get there
5
based on the website.
6
Q Well, now with that instruction, thank you, but not
7
without it. All right.
8
MS. RICCHIUTO: Hey, Jim, I think your
9
reporter might be interested in a break.
10
MR. BOPP: Of course. Let's do that.
11
(Recess taken from 3:42 p.m. to 3:52 p.m.)
12
Q All right, Doctor, I got ahead of myself. Let's go
13
back to 53.
14
A Yes.
15
Q Now, this paragraph is about people who are
16
asymptomatic, who could have COVID and spread
17
COVID; is that correct?
18
A Correct.
19
Q And your authority for that was a Johansson
20
article. Let me show you what's been marked as
21
Exhibit 20.
22
(Deposition Exhibit 20 marked.)
23
Q Now, is this the article you're relying upon?
24
A Yes.
25
Q Now, as I read this article, and correct me if I'm
Page 110
1
the patient characteristics that need to meet those
2
criteria, which I delineate in my statement, and
3
the drugs that have been approved and not approved
4
for the treatment of COVID.
5
And what I mean by approved, since only
6
remdesivir has an EUA approval, should be used in
7
clinical practice based on expert assessment of the
8
literature.
9
Q So the reference here is not correct.
10
A No, the reference takes you to the site where you
11
get the PDF. This is just the first thing that
12
comes up.
13
Q Where is the reference to this PDF you're referring
14
to?
15
A I'd have to show you on the website. But this is
16
just the update to the guidelines; it's not the
17
guidelines themselves. And you could also click on
18
the link here where it says "full statement" on the
19
second page.
20
Q Oh, okay.
21
A And then the "Panel's statement" on the last page.
22
Both of those should link to the same resource,
23
which is what they recommend for treatment.
24
Q Why didn't you link to those rather than this?
25
A It's a PDF as opposed to a website.
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1
wrong, this is -- the conclusions in this article
2
is based on modeling, not empirical studies. Is
3
that right?
4
A Yeah.
5
Q Correct?
6
A Correct.
7
Q Haven't we discussed modeling, that it really has
8
to do with the assumptions you make, not -- are
9
there any empirical studies that have demonstrated
10
asymptomatic spread of COVID?
11
MS. RICCHIUTO: Object to form. Compound.
12
MR. BOPP: Yeah, let me just ask the second
13
one.
14
MS. RICCHIUTO: Okay.
15
A Are there any nonmodeling studies that have
16
documented asymptomatic spread?
17
Q Right.
18
A Yes, there's a plethora.
19
Q What would that be?
20
A There's various studies that have shown that viral
21
loads start peaking actually the day before
22
symptoms onset, and viral load is correlated to
23
infectiousness of the virus.
24
There are studies that show that completely
25
asymptomatic individuals have been documented to
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29 (Pages 113 to 116)
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1
spread to their family. I can also say that
2
anecdotally we see very frequently asymptomatic
3
spread.
4
In addition to that, asymptomatic spread's
5
supported by every public health intervention
6
across the world that suggests that individuals
7
exposed need to be quarantined regardless of
8
symptoms because they could spread the infection.
9
Q Why do you cite to a model, modeling study rather
10
than empirical data?
11
A This is the highest percentage that I've seen of
12
asymptomatic individuals being infectious. There's
13
a wide range here on how infectious -- sorry, what
14
percentage of asymptomatic individuals exist that
15
are infected and therefore infectious, but this one
16
at 30 percent was the highest one. It's a direct
17
rebuttal to the low estimate in Dr. McCullough's
18
citation.
19
Q Are there empirical studies that agree, agree that
20
it could be low?
21
A I think the vast majority of studies suggest that
22
it's over 10 percent. Epidemiologically what we
23
see is in alignment with around those rates.
24
Q So 10 percent, not 30 percent.
25
A Again, in my statement I'm highlighting the range
Page 115
1
A In general.
2
Q In general?
3
A In general, the composite studies are anywhere
4
between 10 percent and, you know, even as high as
5
40, 50 percent, but most of them, I would say, are
6
over 10 percent. And when you build a model off of
7
all of those empirical studies, it shows up around
8
30 percent. And that's around what most people
9
will cite as the asymptomatic fraction with this
10
infection.
11
Q Well, what have we learned since January 7, 2021?
12
Has there been empirical studies since then on the
13
amount of asymptomatic spread?
14
A Certainly there has, but I'm not aware of any large
15
ones that have -- that I could cite for you.
16
Q Page 15, paragraph 63, this says there's no
17
evidence -- now you'll have to tell me what all
18
these words mean, okay, or at least some of them.
19
Genotoxicity?
20
A So this list was taken directly from
21
Dr. McCullough's statement. Genotoxicity is damage
22
to genetic materials. Mutagenicity is essentially
23
the same thing but it's essentially a stressor on
24
the genetics that creates mutations.
25
Teratogenicity specifically is mutations of a fetus
Page 114
1
of potential for asymptomatic spread.
2
Q Well, you didn't give a low number, so you didn't
3
give a range. You just gave a high number; right?
4
A But it was to directly rebuttal the low percentage
5
that was in Dr. McCullough's statement, so...
6
Q So is the generally accepted number 10 percent? Is
7
that what you're saying?
8
MS. RICCHIUTO: Object to form.
9
A No. Generally accepted percentage is around
10
30 percent.
11
Q Is this percent? The highest number --
12
A Yes.
13
Q -- in a modeling study?
14
A Again, the assumptions in the model are built on
15
meta-analysis level data. So they're taking into
16
consideration multiple different studies that are
17
empirically based. So again, you're right,
18
modeling has a number of assumptions and you have
19
to, I think, critique those assumptions, but when
20
the assumptions are based on meta-analysis real
21
world data, I think that model is a lot more robust
22
than one that's not.
23
Q Then I didn't understand your reference to the
24
10 percent. That was what the empirical studies
25
have shown, approximately.
Page 116
1
during delivery. And oncogenicity are mutations
2
that lead to immortalization of cells, namely
3
cancer.
4
Q Isn't the reason there's no evidence of these
5
effects, because they weren't studied?
6
MS. RICCHIUTO: Object to form.
7
A All complications were studied in these areas. And
8
I think any concern we have about vaccines has to
9
come down to biologic plausibility, which is I why
10
I went into depth, I think in my next statement,
11
statement 64, about how RNA relates to the rest of
12
the cellular machinery.
13
I mean, we can make a lot of hypotheses about
14
vaccines doing XYZ, but whether or not they should
15
be tested should be based on generation of
16
plausible hypotheses; otherwise, you could make up
17
infinite questions. But based on our knowledge of
18
the science, the chances of RNA that is being
19
imported into the cell creating any sort of damage
20
to DNA, or the intrinsic code, which is separated
21
by a double membrane, is such a low probability
22
that anyone doing any sort of vaccinology research
23
isn't going to pursue this. It's not --
24
Q Okay. So --
25
A -- viable.
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30 (Pages 117 to 120)
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1
Q So you're justifying why it's not pursued, and my
2
simple question was it wasn't pursued, that they
3
did not specifically study for these items.
4
MS. RICCHIUTO: Object to form.
5
A So yes, you're right. Did they do an
6
individualized trial that looked at whether or not
7
the genes were damaged? No, they didn't. But they
8
also didn't do individualized trials to look at if
9
patients with lyme disease were at higher risk or
10
if patients with, you know, multiple sclerosis had
11
increased risk of outcomes.
12
But that's the point of large Phase III
13
randomized controlled trials, is that the point of
14
randomization is you account for all of these, you
15
watch it over time, and you see if there's a
16
difference between groups who got vaccine or not
17
vaccine.
18
So was this a direct aim? No. But they
19
account for this in study design by applying
20
placebo and applying randomization to the groups.
21
Q Let's go to 66. No, let's -- okay. I meant 67,
22
I'm sorry. Do we know the rate of -- and I wish I
23
could pronounce it -- myocarditis currently in the
24
age 12 to 39 male? Do we know?
25
MS. RICCHIUTO: Object to form.
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1
Q I just read that statement.
2
A You're on 69?
3
Q It's the second line at the end of the line.
4
A Oh. I gotcha.
5
Q And there is --
6
A Gotcha.
7
Q Okay? And there is no proof. How do you judge
8
causation?
9
A Yeah. I think this is extremely difficult area in
10
order to be able to define. I think it needs
11
robust large quality data, a biological
12
plausibility, and, you know, molecular biochemical
13
evidence to suggest that there's a pathway in which
14
this makes sense.
15
Q What do researchers use to measure causality?
16
A What do they use to measure causality?
17
Q Yes.
18
A So causality is a statement that you can make about
19
the burden of evidence that's available.
20
Q Well, what criteria would they use to determine if
21
there's causality?
22
A I just talked through it, I think. So there needs
23
to be biologic plausibility. There needs to be
24
molecular basis for it. There needs to be large
25
data that associates -- that creates a strong
Page 118
1
A We should be able to find that. I'm not aware of
2
those numbers. The limitations there,
3
unfortunately, are going to be reporting.
4
Q Well, and we're not testing for it, right, either?
5
I mean, we're not surveying every male that has
6
been vaccinated to find out if they have this.
7
A Right.
8
Q We have to rely on self-reporting.
9
A Right.
10
Q And as I understand it, that went through the VAERS
11
system?
12
A Yes. Vaccine event reporting, yeah.
13
Q And isn't it true that the estimate is 10 percent
14
reporting per, you know, for whatever have been
15
reported, that the reporting rate, because it's a
16
passive system, is about 10 percent?
17
A I don't know that. I would expect a wide range in
18
possibilities there.
19
Q But, you know, 10 percent is perfectly plausible;
20
right? It's only 10 percent?
21
A I don't know.
22
MS. RICCHIUTO: Object to form.
23
Q 69. The second line at the end, "there is no proof
24
of causation between vaccination and myocarditis."
25
A Sorry.
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1
association between the disease processes.
2
Q Are you familiar with the Hill's criteria for
3
causality?
4
A That sounds familiar.
5
Q I mean, are you?
6
A Yes, sounds familiar. I have heard the name Hill's
7
criteria. Could I recite it to you right now?
8
Probably not.
9
Q Did you use the Hill's criteria to make this
10
statement that there's no proof of causality?
11
A No proof of causality has been cited in any of the
12
literature to date. The association has been
13
cited.
14
Q Yes. But I'm asking you about your statement. You
15
said --
16
A I did not apply Hill's criteria. I used expert
17
opinion.
18
Q Okay. So you have no opinion on that other than
19
what maybe the CDC said?
20
A No, I'm very willing to acknowledge that it may be
21
causal. However, I think right now, based on
22
everything that I've seen, is that we have an
23
association, and have to be very cautious with
24
association until those criteria have been met.
25
At this point, to me, I think that it's still
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31 (Pages 121 to 124)
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1
such small numbers, in order to be able to pull out
2
causality by whatever criteria you want to use is
3
probably going to be difficult to do.
4
Q By the way, did we change -- did they change death
5
reporting with respect to COVID-19 from, I forget
6
now the exact, the word, from because of or due to,
7
I forget what it was, to with, from or with? I
8
think that was the change.
9
MS. RICCHIUTO: Foundation.
10
A Yeah, I don't know the exact answer for it, and I
11
think that that question was handled different by
12
different groups. So I don't know where it landed.
13
Q Because if you die with COVID, that doesn't mean
14
it's caused by it.
15
A I don't think we know that for sure. In theory,
16
that's possible. But I think we're still learning
17
about the associations with COVID.
18
That's why there's this huge political debate
19
about this, in my opinion, is that there's still a
20
lot of uncertainty related to people dying with
21
COVID versus of COVID, because we don't know the
22
extent to which the virus actually affects other
23
organ systems and might throw things out of whack.
24
Q But if we don't know, then what's the justification
25
for claiming it? If you don't know the effect of
Page 123
1
those numbers, to be honest with you, when I've
2
looked at them historically. But, in general, I
3
think that any sort of data gradient that we can
4
get there, or range that we can get there, is
5
probably helpful in the ultimate analysis.
6
Q Oh, let me just mark Exhibit 22.
7
(Deposition Exhibit 22 marked.)
8
Q This is, for your information, Hill's Criteria for
9
Causality, which --
10
A Take another look at this. Thanks.
11
Q -- I'm advised is the gold standard for trying to
12
figure out causality, but you may enjoy reading
13
that.
14
A Yeah, I think I mentioned a lot of these things.
15
Q There you go.
16
A Sounds familiar, that I just said it.
17
Q Some of them, uh-huh. All right.
18
Let me show you what's been marked as
19
Exhibit 23.
20
(Deposition Exhibit 23 marked.)
21
Q Are you familiar with this study?
22
A Yes, I've seen this before.
23
Q Okay. It purports to measure COVID vaccine death
24
reports from the VAERS system database, so it
25
analyzed that data up to April 2021, as I
Page 122
1
the COVID virus on death, what's the justification
2
for claiming that it was a COVID death, if you
3
don't know?
4
A I think there's very clear cases where COVID leads
5
to ultimate demise.
6
Q I know, but you were just talking about when we
7
don't know. That's what you were just talking
8
about. When we don't know.
9
A Sure.
10
Q But those are being claimed that. What's the
11
justification for that?
12
A I didn't make any justification there. I think to
13
me it's helpful to know both.
14
Q Sure.
15
A It would be nice to know which the provider thinks,
16
because, right, this is all coming from, I'm
17
assuming from death records. I would like to know
18
how much deaths were from patients who were COVID
19
positive. I'd also want to know how many of those
20
deaths were where the provider assessed that the
21
COVID was not associated with their ultimate
22
demise. And it's probably going to be somewhere in
23
the middle, would be my guess, so I would like to
24
know the gradient.
25
I don't think there's a huge difference in
Page 124
1
understand it.
2
A Yep.
3
Q Is this reliable, do you think?
4
A It's a reliable study looking at an unreliable
5
system. I do not think that the VAERS system is
6
reliable.
7
Q Okay. In what way is it not reliable?
8
A It's a passive reporting system from lay
9
individuals. So if someone got hit by a car and
10
they recently had a COVID vaccine, that would hit
11
the system if it was reported.
12
Q Are you aware that most of the reporting is done by
13
healthcare providers?
14
A Even in that situation, it's still passive
15
reporting. It's not validated through studies.
16
Q True. But it's not done by laymen. It's done by
17
healthcare providers.
18
A Some are done by healthcare providers but a large
19
percentage are done by -- not large percentage but
20
a percentage -- anyone can report to VAERS.
21
Q So in analyzing the situation for IU's
22
determination that they're going to impose a COVID
23
vaccine mandate on students, did they consult the
24
VAERS system and the information available there?
25
A I would never recommend consulting the VAERS system
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 31 of 42
32 (Pages 125 to 128)
Page 125
1
since it's unconfirmed data.
2
Q I know. But did they?
3
A Did which group consult?
4
Q The committee that made the recommendation.
5
A So you're asking about what the deliberations were
6
and the discussion to make the vaccine mandate.
7
Q No, I'm asking about the data that was consulted.
8
A We looked at all relevant data to make the decision
9
on the vaccine mandate.
10
Q Is VAERS information relevant?
11
A I do not any think that the VAERS information is
12
relevant. As to whether or not anyone on the
13
committee looked at this, I can't speak to that. I
14
don't know what they looked at. There was a group
15
discussion amongst professionals.
16
The issue with this VAERS data, if I may, is
17
there would have to be some sort of explanation on
18
why we weren't seeing that in the trials, why we
19
weren't seeing that same mortality rate in the
20
trials. There's a huge difference between the
21
percentages associated with the study and what
22
we're actually doing when we're watching the
23
patients in a systematic controlled fashion.
24
Q Turn to page 18, paragraph 71. You make a rather
25
categorical statement here, if I may, saying "There
Page 127
1
with very, very low risk of harm, to suggest that
2
the bigger immune response you can get from this is
3
better.
4
We also talked about previously how if you get
5
infected, that's essentially just another booster
6
you're getting, and more boosters is probably
7
better, for any sort of infection, and in
8
particular for COVID, and we know that from looking
9
at people who don't mount a strong response to
10
start out with.
11
Q But you're still adherent to this statement; right?
12
A Yeah. I think what I would really like to see in
13
order to say that there's strong data for -- I
14
don't think there would be strong data against, but
15
what I would expect to see for strong data for
16
would be evidence of improved immune, either
17
duration or breadth of coverage when you look
18
specifically at immunized patients, infected and
19
immunized patients in real world.
20
Q Also on page 18, No. 73, with all due respect, you
21
use some very vague, you know, equivocal words
22
here.
23
A Okay.
24
Q Entirely possible, may be, et cetera. This
25
reflects what you were just saying, is there's no
Page 126
1
is no strong data for or against vaccination after
2
natural infection." Do you still stand by that
3
statement?
4
A To my knowledge, there has not -- since I put this
5
together, there has not been any other literature
6
that's come to my attention that has refuted that,
7
so I still stand by that.
8
Q As I understand it, IU requires students that have
9
had COVID infection to get vaccinated; correct?
10
A That is correct.
11
Q And you acknowledge that there is no strong data
12
for that requirement.
13
A I think that there's the data that suggests that
14
it's beneficial, but as far as that population, so
15
a population that has had COVID and then gets the
16
vaccine, I don't think there's really strong data
17
that says, yet, that the vaccine adds extra
18
benefit.
19
There is data that I think is very supportive
20
that I highlighted earlier that we previously
21
talked about related to the breadth of the immune
22
response in the vaccine versus natural infection as
23
well as the antibody levels in vaccine versus
24
natural infection.
25
I personally feel like that is adequate data
Page 128
1
strong evidence either way.
2
A There's just uncertain --
3
MS. RICCHIUTO: Object to form.
4
A It's just uncertain in the medical literature right
5
now.
6
Q I think we already looked at the Raw's, Rachael
7
Raw's paper.
8
A I don't think we've discussed it.
9
Q Oh, okay.
10
A Oh, we have. No, sorry. Was this the same one?
11
Are you talking about the one that I'm referencing
12
in 74?
13
Q Yes. Of course I don't see a cite to that.
14
A Yeah, yeah, yeah. Because McCullough referenced
15
it.
16
Q Right.
17
A It was his reference.
18
Q So we've already --
19
A You're right. This is the same, yeah.
20
Q Okay. I thought it was.
21
MS. RICCHIUTO: For the record, that's 17.
22
MR. BOPP: Thank you.
23
Q All right. 77. "Using a serologic test to equate
24
to immunity is not evidence-based and not
25
recommended by the CDC." You stand by that
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33 (Pages 129 to 132)
Page 129
1
statement?
2
A I do.
3
Q All right. You cite this article of the CDC. Let
4
me show you what's been marked as Exhibit 31.
5
(Deposition Exhibit 31 marked.)
6
Q And the way I read this CDC recommendation is that,
7
that antibody test may not show if you have a
8
current infection.
9
A Correct.
10
Q Well, your statement is way broader than that.
11
A What do you mean? So to --
12
Q Because of what they're saying is you need to wait
13
a week or two, or week to three, okay, before
14
antibodies are developed, and then you take the
15
test, and it will be valid; correct?
16
A So what -- incorrect. So what the CDC is referring
17
to, and they delineate this further, is that
18
there's high-risk for false-positives and
19
false-negatives. And that's the main problem with
20
antibody and why it's not clinically super helpful
21
outside of very specific situations.
22
The CDC recommends antibody testing in two
23
scenarios, where you have a very high pretest
24
probability of it being COVID, but you have
25
negative PCR serially.
Page 131
1
false-positives occur to the extent that if you are
2
negative, I couldn't really tell you for sure if
3
you are actually never -- if you are actually COVID
4
immune.
5
If you are positive, I also couldn't really
6
tell you with good reliability that you actually
7
saw COVID and not another maybe seasonal
8
coronavirus that created false reactivity.
9
So that's what's led to hesitancy from the
10
CDC's perspective, is using this as a primary
11
diagnostic. Otherwise it's much easier to use than
12
a nasopharyngeal PCR. It's a pain to get the
13
nasopharyngeal PCR. So if we could use this as a
14
diagnostic, even as a delayed perspective, we would
15
have a really good assessment of what our true
16
population protection was.
17
Q What are the false-positives with current testing
18
that IU is mandating?
19
A For PCRs?
20
Q To determine whether or not you have COVID.
21
A Oh.
22
Q The testing that is being required for people that
23
get an exemption, or mitigation testing, what is
24
the false-positives for that?
25
A Gotcha. So we're talking about the PCR testing
Page 130
1
(Discussion held off the record.)
2
So the CDC recommends antibody testing, which
3
is serology, in two clinical situations. One is if
4
you have a high pretest probability for
5
coronavirus, but you've had two serial PCRs, which
6
is the gold standard for diagnosis, that are
7
negative.
8
So it's a way of trying to get a positive to
9
decide if someone needs treatment. Because your
10
pretest probability is so high, even as
11
problematic, potentially, false-positive test has
12
higher positive likelihood ratio, or higher post
13
test probability if it's positive.
14
The other situation is with multisystem
15
inflammatory disease in children, which is because,
16
again, the syndrome, just by questioning the
17
syndrome, leads to a high pretest probability. So
18
you had someone with previous COVID infection and
19
you have a syndrome that fits with this
20
inflammatory syndrome, the positive tests is more
21
reliable in those situations because of your
22
pretest probability.
23
The problem is in the general public right
24
now, there's -- there's so much variation between
25
the antibody platforms that false-negatives and
Page 132
1
that we're using for diagnosis.
2
Q Right.
3
A We cannot comment on a false-positive rate because
4
we don't have a true positive. We don't have a
5
gold standard. And that's a problem with PCRs in
6
general, and with COVID diagnostics in general, is
7
there's not a true gold standard for diagnosis, so
8
we're forced to use the most sensitive test, which
9
is the PCR, with the knowledge that some of these
10
could be false-positives.
11
That's a problem that we've had in the past
12
with PCR tests in general, is that it picks up a
13
little bit of DNA, or RNA in this case; it
14
amplifies it to make it seem like you've got a
15
positive, but there's really not a whole lot of
16
virus around, or it might not even be infectious
17
virus.
18
Q What's the rate of false-positives?
19
A We don't know even in the literature because
20
there's no gold standard for the diagnosis of
21
COVID. I can't comment on --
22
Q Well, do you have a range? Are they estimating a
23
range?
24
A You can't get -- you cannot get false-positives and
25
false-negatives unless you have a true gold
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34 (Pages 133 to 136)
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1
standard. So a lot of these serologic tests are
2
being compared to PCR. And that's the functional
3
gold standard right now, but we don't know what the
4
actual true best test is for infectivity. Is it
5
viral culture? Is it viral antigen? Is it PCR?
6
We just don't know.
7
And in the setting of a pandemic, we want to
8
use the most sensitive test and act on the most
9
sensitive test because we would rather over isolate
10
and over quarantine as opposed to under doing it in
11
order to curb the spread.
12
Q On page 19, paragraph 79, there's -- are you
13
familiar with a report that -- as to the VAERS
14
system that 83 percent of the reporting persons are
15
either doctors or nurses?
16
MS. RICCHIUTO: Object to foundation.
17
A No.
18
Q Page 20, 83, please.
19
A Uh-huh.
20
Q Who is the British health regulator that you're
21
referring to?
22
A I don't know his name, but the concern from
23
Dr. McCullough's declaration in paragraph 48
24
brought up a statement from the UK that seemed to
25
imply that even the UK government or
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1
A So it might help to hear the rest of the list,
2
because this is in flux on what we're going to end
3
up doing. That's probably changing on how much
4
testing and what type of testing we're going to be
5
doing.
6
Q The three that I understood: Mitigation testing,
7
which is randomized.
8
A Yeah.
9
Q Testing of people that are symptomatic.
10
A Correct.
11
Q Which you're in charge of.
12
A That's my jurisdiction. Yeah, yeah, yeah.
13
Q And then twice-a-week testing of anyone that gets
14
an exemption, either the medical or the religious
15
exemption.
16
A So --
17
Q And I don't know what to call that.
18
A We're calling that, that's the mitigation testing
19
aspect, which is twice per week for those who have
20
not submitted to vaccine -- or sorry. Who have --
21
are not vaccinated.
22
Q Right. Right.
23
A And then there's surveillance testing, which is
24
still under debate, to be honest with you, but it's
25
testing of the general population that has been
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1
representatives of the UK government felt like the
2
side effects of the vaccine made it nonsafe, but
3
it's been reviewed by their appropriate governing
4
agencies and decided that it's still beneficial to
5
give the vaccine.
6
So I'm not sure what position the British
7
health regulator serves in the UK, but they are
8
still vaccinating there despite his concern in 48.
9
Q Now, of course there's a name at the end of your
10
citation here, who is --
11
A Tess Lawrie was the individual that brought up that
12
concern that said these vaccines have too many side
13
effects and are unsafe. Her concern was reviewed
14
and they've continued to vaccinate in the UK.
15
Q Let me show you what's been marked as Exhibit 33.
16
(Deposition Exhibit 33 marked.)
17
Q Is that the report you're referring to?
18
A Yes. This looks familiar.
19
Q By Lawrie that is referred to in paragraph 83?
20
A Yeah, I believe so.
21
Q Okay. Now, go to paragraph 84.
22
A My paragraph 84?
23
Q Yes, please. They're doing two forms of testing.
24
Well, maybe more, actually. Probably three.
25
Randomized mitigation testing; is that correct?
Page 136
1
vaccinated, randomized, to see if we're seeing
2
breakthrough, and that's optional.
3
And then there's symptomatic testing, you're
4
correct. Those are the three strategies.
5
Q Okay. Now, what -- are the results of those tests,
6
and I don't mean identifying individual students,
7
but I mean the results of the tests accumulated,
8
are they going to be shared with anyone like the
9
researchers, the CDC, whatever?
10
A The only intent of those numbers are for public
11
health purposes.
12
Q I understand that, but that's not what I was asking
13
you. I was asking you who outside of -- who is
14
going to receive access to that information?
15
MS. RICCHIUTO: Objection. Lack of
16
foundation.
17
A Only the individuals that need that data for public
18
health purposes.
19
Q Well, that could be a million people all over the
20
world.
21
A Right. We aren't consenting students for use of
22
their numbers or their data results. We have no
23
plan on publishing or submitting their data to
24
researchers.
25
Q Who are you referring to when you say to public
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35 (Pages 137 to 140)
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1
health people? Who are you referring to?
2
A The medical response team. The people who are
3
doing the contact tracing. So all the positives
4
have to be reviewed by people to say, hey, there's
5
an outbreak at the dorm. The people who need to be
6
able to respond to the outbreak on the dorm need to
7
know the numbers.
8
Q All right. That's good. Who else?
9
A Leadership, to see just global what the numbers
10
are.
11
Q But that's not for anybody at IU or any other place
12
for research purposes.
13
A Not -- no. I mean, that's not -- you know, they
14
would have to go through a separate IRB. They
15
would have to go through a complete separate
16
process in order to obtain that data.
17
Q I'm just asking whether you are doing that.
18
A We are absolutely not doing that. We've had that
19
data for the last year and haven't done anything of
20
the sort.
21
Q Okay. 85. Your second sentence there was really
22
curious to me. While the WHO recommended that
23
vaccinating children was less urgent than adults,
24
they still recommend the vaccination.
25
A This was in response to a very specific comment.
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1
MS. RICCHIUTO: Object to form.
2
A I think we have to define children first, and I
3
think we have to decide what the risk is. So it's
4
just --
5
Q Well, in relationship to older people, which is the
6
way you were describing it, it's astronomically
7
different; right? It's like 600 times more
8
riskful.
9
A I totally agree with what we had talked about
10
before, where, as it relates to mortality,
11
adolescents, college-age groups are at a much lower
12
risk than older individuals. I think they're
13
probably at higher risk than individuals who are
14
younger than a college-age group.
15
Q Slightly? Yes, agree with that.
16
A And probably even a higher risk than those who are
17
younger than a grade school age group, so children.
18
Not children, but babies. So I don't think they're
19
the lowest risk. I think they are very low risk
20
though.
21
Q Okay. Let's go to your Conclusion, 87. In the
22
second line, you're referring to "among our
23
students and our communities." What are you
24
referring to when you say community?
25
A I would say the area in which the education occurs.
Page 138
1
MS. RICCHIUTO: Do you have a question?
2
Q Yeah. What did you mean by that?
3
A This was in response --
4
MR. BOPP: Obviously he understood.
5
A This is in response to a very specific comment from
6
Dr. McCullough that said that the WHO said that
7
children shouldn't be vaccinated. That's actually
8
not accurate. The WHO said that if we have to
9
prioritize vaccination, we need to prioritize
10
vaccination -- if we have a limited supply of
11
vaccine, we need to prioritize those who are at
12
higher risk for bad outcome, which children are not
13
the highest risk.
14
So if there needs to be a triage strategy,
15
that triage strategy should start with a whole list
16
of lower, but it didn't say not to vaccinate
17
children or those who were available to get the
18
vaccine, so that would be 12 and up at this point.
19
What they said was that if there's limited
20
resources, then we should focus on those that are
21
highest risk first.
22
Q I was also curious what you said, that they're not
23
at the highest risk, children are not the highest
24
risk. A more accurate statement, wouldn't it be,
25
that they are at the least risk?
Page 140
1
So that's going to include faculty and staff,
2
that's going to include the county that comes in,
3
that's going to include the contractors that come
4
in that aren't IU constituents. Anyone that
5
potentially interfaces with our students or our
6
constituents.
7
Q So people in Bloomington. People who live in
8
Bloomington, work in Bloomington.
9
MS. RICCHIUTO: Objection. Misstates the
10
testimony.
11
Q Is that part of the community you're referring to?
12
A I would say that anyone who comes into contact with
13
our students. So that would include the people who
14
live in Bloomington that come in contact with our
15
students.
16
Q And there's a lot of those. I went to school
17
there; I came in a lot of contact, you know.
18
So don't you think a more effective strategy
19
for protecting people in the Bloomington community
20
as opposed to -- would be that they be required to
21
be vaccinated? Because you would, number one, get
22
older people that have an astronomically higher
23
risk of adverse effects by COVID infection, and
24
they would get more benefit from it as a result.
25
Isn't that -- if you were thinking about a public
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36 (Pages 141 to 144)
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1
health strategy for Monroe County, isn't the safest
2
and the most effective would be to require the
3
residents of Bloomington or Monroe County to be --
4
require them to be vaccinated, not IU students?
5
MS. RICCHIUTO: Object to form. Compound.
6
Calls for speculation.
7
A To me, I want as many people to be vaccinated as
8
possible, but I can only influence policy where I
9
have control of influencing policy, which is
10
advising the IU leadership.
11
The effect to the community, honestly, is
12
secondary to the -- sorry. The benefit to the
13
community is secondary to the benefit that we
14
perceive of being the entire IU constituent
15
population.
16
And even though the individual risk to an
17
average college-age student is low, we have a
18
community that we need to serve, and providing a
19
herd immunity threshold and still allowing people
20
to get back to classes and, you know, get in-person
21
learning, get into laboratories safely, requires a
22
protective bubble to be around those individuals,
23
whatever the number is, that can't mount the
24
effective immune response.
25
So, unfortunately, if it were 100 percent up
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1
Q Okay. Have you read that paragraph?
2
A I'll read it now. Yep.
3
Q Do you have any doubt that he is an expert on
4
COVID-19 virus and its treatment?
5
MS. RICCHIUTO: Object to the extent it calls
6
for a legal conclusion.
7
A I have serious doubt.
8
Q You do?
9
A Yeah.
10
Q Are you aware that he has published the leading
11
study in the world on the treatment of COVID-19?
12
MS. RICCHIUTO: Object to foundation.
13
A I would have to review that study, but based on his
14
testimony here recommending evidence that isn't
15
actually evaluated or suggested by our governing
16
epidemic control agency, the CDC, I'd have major
17
doubts related to that being the leading study in
18
the world. Anyone who is recommending
19
hydroxychloroquine at this point has their finger
20
way off the pulse.
21
Q I thought you testified earlier that you just don't
22
accept whatever the CDC says. In fact, you have
23
critiqued what they say because you looked at the
24
underlying data.
25
A Right. And in regards to the hydroxychloroquine,
Page 142
1
to me, I would advise every single individual to
2
get the COVID vaccine if they did not have an
3
exemption that -- or a contraindication that was
4
listed by the CDC or has been proven by the data.
5
At this point, though, the only control that
6
we have over the system as medical advisors is for
7
advising those who set policy for the school.
8
Q All right. Well, thank you. Oh, wait, wait, wait.
9
One other thing here. Make our record complete.
10
Let me show you what's been marked as
11
Exhibit 9.
12
(Deposition Exhibit 9 marked.)
13
Q Is this the McCullough report that you were asked
14
to write a report to refute?
15
A Yes.
16
Q Go to page 4, his curriculum vitae. Let me show
17
you what's been marked as Exhibit 10.
18
(Deposition Exhibit 10 marked.)
19
Q Have you reviewed his curriculum vitae,
20
Dr. McCullough's?
21
A I perused his very large curriculum vitae.
22
Q It is large. And now look at paragraph 11.
23
A On his curriculum -- oh.
24
Q No, on page 4 of his report, No. 11.
25
A Got it.
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1
all of their statements are backed by data that is
2
well done, high quality. And I think the treatment
3
algorithms, not only have I arrived at independent
4
conclusions about that, but the consensus medical
5
opinion has arrived at common conclusions.
6
Q Do you think you're more of an expert than he is?
7
MS. RICCHIUTO: Object to form. Foundation.
8
A I think my self-assessment didn't come into this at
9
all. I think that everything needs to come back to
10
the data. My personal assessment of the data is
11
what my statement is based off of.
12
I have not met Dr. McCullough, I haven't had a
13
chance to discuss these issues with him, but based
14
on his statement I think there's enough
15
inconsistencies with the medical literature to
16
suggest that he does not have a good grasp on what
17
the current approach to treatment of COVID or the
18
pathophysiology and epidemiology of the virus
19
actually is.
20
I acknowledge he has more publications, but I
21
was not able to publish as much as I would have
22
liked to during the COVID pandemic because I was
23
busy treating COVID patients, working through
24
policy with the hospital, taking care of sick
25
people.
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37 (Pages 145 to 148)
Page 145
1
Q Dr. Beeler, you described your two publications
2
that you are part of, that what you did was edit
3
the manuscript.
4
A Right.
5
MS. RICCHIUTO: Objection. Misstates the
6
testimony.
7
Q I can get law clerks to edit manuscripts.
8
MS. RICCHIUTO: Objection. Argumentative.
9
That's not a question, Jim.
10
A I would have loved to write more papers on my own,
11
but I was taking care of sick patients every day, I
12
was making policy, I was reviewing literature as
13
opposed to having a lot of free time to sit down as
14
a cardiologist and put together papers.
15
Q You think his paper is not based upon his treating
16
of COVID patients?
17
A I think that the primary individuals responsible
18
for the treatment and approach to COVID in the
19
hospitals are the hospital epidemiologists and the
20
infectious disease physicians.
21
Q You don't even know what he was doing, do you?
22
MS. RICCHIUTO: Object.
23
A I would be very surprised if they were consulting
24
cardiology for care of COVID patients. ICU doctors
25
and hospitalists were the main workforce related to
Page 147
1
EXAMINATION
2
BY MS. RICCHIUTO:
3
Q I'm going to try to be brief, Dr. Beeler. We
4
really appreciate you being here today.
5
Really quickly, I want to take you back to
6
Exhibit 2 that Mr. Bopp showed you. This is that
7
CareDash Internet page.
8
A Let me find that. Yes.
9
Q Do you have any idea, like do you know anything
10
about CareDash? Is this an authoritative document
11
or source?
12
A I have never honestly heard about this, but when
13
you Google yourself, there's a bunch of these
14
websites that come up that have generic
15
explanations related to your profession that
16
usually is inaccurate.
17
Q So the bio that Mr. Bopp referred to on the
18
CareDash site, that's not a bio that you wrote or
19
contributed to; correct?
20
A Or -- correct, or anyone that I've worked with.
21
That makes no sense as a bio for an infectious
22
disease physician.
23
Q Mr. Bopp also showed you Exhibit 3, which was a
24
U.S. News summary. Is that the thing that you
25
specifically drafted as an exhaustive description
Page 146
1
COVID. Infectious disease was consulted on almost
2
all of those. So I can't speak to what he was
3
doing, but I know the realm of expertise of
4
infectious disease physicians versus cardiologists.
5
If I were -- if I were being asked --
6
certainly COVID is new. Anyone could catch up on
7
COVID literature. But if I was asked for the -- if
8
I was asking for an opinion and -- if I were being
9
asked to train up on echocardiography; right?
10
Yeah, I could probably learn echocardiography,
11
sonograms of the heart, but would you really want
12
me doing that when I don't know the same amount of
13
physiology as a cardiologist? I would want someone
14
that has the background in those areas. Infectious
15
disease has the background in those areas where
16
cardiology does not.
17
MR. BOPP: I don't have any more questions.
18
Thank you.
19
Do you?
20
MS. RICCHIUTO: I do.
21
MR. BOPP: Good. Good. We still have time.
22
We were shooting for six.
23
MS. RICCHIUTO: I know. I knew you could do
24
it, Jim.
25
Page 148
1
of your credentials?
2
A Absolutely not. And I don't know any -- any person
3
that would have contributed to this. This looks
4
like they just pulled data from some sort of area
5
and plugged it into a template.
6
Q So if someone were interested in your credentials
7
with respect to COVID or anything else, is this
8
where you would direct them, Dr. Beeler?
9
A Absolutely not.
10
Q Okay. Describe for me your credentials
11
specifically with respect to COVID.
12
A So I am the medical director of infection
13
prevention for Indiana University Hospital.
14
Functionally that means I'm responsible for the
15
protection of the healthcare workers and each
16
individual patient that comes in, specifically as
17
it relates to COVID.
18
From the beginning of the pandemic, we were
19
the main focal point for developing policy,
20
responding to numbers, developing infrastructure in
21
the hospital, and working with the multiple
22
different teams in the hospital in order to build a
23
response. That is part of it.
24
The other part is as it relates to the medical
25
response team through IU. That is all that
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38 (Pages 149 to 152)
Page 149
1
students, faculty and staff that develop COVID are
2
individually reviewed by our team, we developed the
3
policy with the IU Restart Committee, and then
4
implemented the policy as it was accepted after the
5
leadership.
6
Q Okay. Mr. Bopp expressed some concern about the
7
way that you had described your credentials, if you
8
will, in your declaration. Is there anything else
9
experientially that you would add to, you know,
10
help the judge understand why you are a person that
11
has credible relevant information on this subject?
12
A You know, there's not separate training in
13
coronavirus that is available. Everyone has been
14
building off of previous knowledge in order to gain
15
acumen in this area. I think that the other -- the
16
only things that I listed in there that are
17
applicable to this are the infectious disease board
18
certification.
19
Q And what's that process entail?
20
A Infectious disease board certification requires
21
three years of internal medicine residency with
22
board certification in internal medicine. It then
23
requires -- I did two -- I did, actually, four
24
years of internal medicine residency with an extra
25
chief residency year at Eskenazi Hospital. Then
Page 151
1
understands, recognizes, and is able to mount a
2
memory against.
3
If viruses are changing, or any pathogen is
4
changing what it looks like, how the immune system
5
interacts with it, then that could potentially
6
develop evasion of the immune system and therefore
7
a change in how the previous immunity is going to
8
relate to the new version of the virus.
9
So in the context of COVID, the reason that's
10
pertinent is because COVID continues to mutate,
11
it's mutating relatively rapidly, and it's mutating
12
in areas that are of high consequence. And those
13
areas are particularly in the areas that our immune
14
system likes to target for the immune response,
15
likes to use in order to get protection, which is
16
receptive binding domain of the virus, as well as
17
the spike domain of the virus.
18
If those weren't mutating at all, I would
19
consider that a static virus, and I would trust
20
your immunity three years ago to your immunity
21
today. That's like measles, mumps, rubella. We
22
get vaccines in childhood. Those viruses aren't
23
mutating, they're not changing, and because of that
24
your immunity yesterday is as good as your immunity
25
today, assuming nothing else changes as it relates
Page 150
1
went on to do an infectious disease fellowship for
2
two years, which included research, and then became
3
a practicing infectious disease physician.
4
Q And you maintain that practice today; correct?
5
A I maintain that, yes.
6
Q I just want to ask you about a couple, a few other
7
things that you said during your testimony. At one
8
point you referred to I think a scenario where you
9
were analyzing what could be possible with a static
10
pathogen. Those are words that I wrote down that
11
you said.
12
Can you explain what a static pathogen is --
13
I'm going to ask you a compound question and tell
14
you that it's one. What a static pathogen is and
15
whether COVID is considered a static pathogen.
16
A So I think the context behind that discussion was
17
related to questions about herd immunity thresholds
18
and trying to understand if we're at herd immunity,
19
if we were at herd immunity.
20
And the problem with herd immunity
21
calculations is that it implies that the immunity
22
that you develop yesterday will still be good three
23
months from now. Immunity is very much based on
24
whether or not the virus maintains its same shape,
25
its same structures that our immune system
Page 152
1
to immunosuppression.
2
So the reason that COVID is different from
3
measles and mumps and rubella, things like that, is
4
because it does not mutate at the same rates and in
5
as consequential areas as coronavirus is mutating.
6
The areas of change in coronavirus are in
7
areas that are of high consequence to the immune
8
system -- or the ones that come to public attention
9
are called variants of high consequence, or
10
variants of concern, are areas where we have
11
mutations in places that could potentially lead to
12
either failure of the immune response to be durable
13
or failure of any of our individual therapies to
14
target coronavirus.
15
Q I am clearly not an infectious disease specialist
16
but I have been reading and seeing things about the
17
delta variant, Dr. Beeler. Are you familiar with
18
that?
19
A I am.
20
Q Is that a variant of concern?
21
A Yes, it's been labeled as a variant of concern from
22
the CDC. I think it definitely is concerning for a
23
number of reasons.
24
One, the mutations in the spike domain seem to
25
imply, just based on their locations, that the
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39 (Pages 153 to 156)
Page 153
1
vaccines might not be as effective. And actually
2
we're seeing that play out. There was actually
3
just a release I think yesterday about how Israel,
4
due to the fact that they've switched over to delta
5
variant, is seeing a higher number of COVID
6
infections despite having a very large percentage
7
that has been vaccinated.
8
So I think that the jury is still out on the
9
consequences of some of these variants. We do know
10
that vaccines still work; it just might be to a
11
lesser degree on this. We don't have good data on
12
what this means for natural immunity. And it's a
13
very real possibility given the narrower breadth of
14
antibody response to natural immunity that if
15
there's not a variant now, there could be a variant
16
in the future that will allow repeat infections and
17
more morbidity to develop.
18
The only way to effectively eliminate variant
19
selection, or creation of more mutations, is to
20
squelch the virus, to get to herd immunity, to get
21
to zero infections, because each new person that
22
the virus infects, it's an opportunity to mutate.
23
And evolutionary principles, life finds a way, that
24
the virus will find ways to get around our
25
stressors if it's not completely eliminated.
Page 155
1
And I would have a much higher suspicion just
2
based on previous analogies to other viruses of
3
long-term complications from a chronic viral
4
infection, or a resetting of the viral infection to
5
the homeostasis of the body than I would for a
6
vaccine.
7
(Discussion held off the record.)
8
I would have much higher concerns for
9
long-term complications of a viral infection, a
10
chronic viral infection, than I would for long-term
11
complications of a vaccine based on historical
12
precedent with other viruses.
13
Q You gave some testimony about contraindications to
14
receiving the COVID vaccine. Do you remember that
15
testimony?
16
A Yeah.
17
Q And I think you said at one point -- I think you
18
and Mr. Bopp may not have been exactly on the same
19
page, and at one point you said you think there may
20
be a semantic issue, and I want to try to clear
21
that up if I can.
22
Is there a difference between a
23
contraindication that's been specifically
24
identified and, for example, another clinical
25
reason to delay the vaccine? Are those the same
Page 154
1
So from a public health perspective, since
2
there's so much uncertainty in the future, the
3
safest thing, given all the damage that it's
4
created so far to America and the world, is to get
5
things to zero as fast as we possibly can. It's a
6
race between our global immunity, our herd
7
immunity, and the ability of the virus to mutate.
8
Q One of the things that you were asked about, and I
9
think you said this a couple of times, this idea
10
that more boosters is better. Do you remember that
11
testimony?
12
A Yeah.
13
Q I want to make sure that there's not any
14
misunderstanding. Is it -- is it good or helpful
15
for individuals to be infected with COVID just
16
generally? Is that a good thing to have happen to
17
you?
18
A It's a bad thing to have happen to you. I would
19
say that the difference between bads between
20
different groups varies, as we discussed. But, in
21
general, it's much safer to become immune to the
22
virus through vaccination than through natural
23
infection because there's a lot of consequences to
24
natural infection that we know, and there's even
25
more that we probably don't know.
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1
concepts?
2
A That's good. And I apologize that I didn't clarify
3
that earlier. We call them two separate things.
4
We call them exemptions, meaning that you never
5
have to get the COVID vaccine because it's never
6
going to be a good idea for you because you have
7
some sort of threatening relationship to the
8
vaccine, and that's usually going to be allergy.
9
That's almost always going to be allergy.
10
The only -- and so the other group is what we
11
call deferrals. And like you mentioned, those are
12
patients who could get the vaccine, they don't have
13
a strict contraindication, like the vaccine's not
14
going to hurt them, but there's probably maybe a
15
more opportune time to consider it.
16
And the way we handle that behind the scenes
17
is that we set a date to reapproach the individual
18
and say, "Hey, you've told us that this date was
19
going to be a good time for you to get the vaccine.
20
Is it still a good time for you to get the vaccine?
21
Can we help you get vaccinated?"
22
Q And let's drill down that a little bit more,
23
because that doesn't -- you're not, in that
24
example, Dr. Beeler, I take it you're not talking
25
about like somebody's schedule when they're
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 39 of 42
40 (Pages 157 to 160)
Page 157
1
available to get the vaccine.
2
A No, this would be based on maybe a therapeutic
3
schedule. So, for instance, if they were getting
4
high dose steroids right now or chemotherapy
5
related to a cancer, we would probably set that
6
date with their physician out for when they were
7
done with their chemotherapy and their immune
8
system is reconstituted.
9
So that's the most common scenario that we're
10
getting, but there are going to be some people that
11
become functionally adept, exempt, because they've
12
got a chronic condition that always needs
13
immunosuppression and they can never come off it.
14
And even though we set an end date, it's just a
15
time to revisit to see if anything has changed and
16
if they might be now safer to get the vaccine or
17
might be more likely to develop a healthy immune
18
response to the vaccine.
19
Q So in your example, just to hopefully button up the
20
terminology, in your example, someone who has a
21
medical deferral basis because they're currently in
22
chemotherapy, for example, does that make
23
chemotherapy a contraindication for the vaccine?
24
A No.
25
Q One other place where you and Mr. Bopp maybe had
Page 159
1
that they would be as protected.
2
And that's going to be different for each
3
individual based on the complex interplay between
4
their comorbidities, their immune system, the other
5
stuff they've got going on in their life.
6
Stressors can even decrease the immune response to
7
vaccines.
8
So there's so many things that go into the
9
gradients behind a healthy response versus a
10
nonhealthy response, that change over time as well,
11
that it's really hard to bucket people and give an
12
exact number of what percentage are absolutely
13
vulnerable at any given time.
14
I would say that, in general, that percentage
15
is going to change over time. And that could
16
change on a daily basis for some people depending
17
on what else is going on in their lives, which is
18
why I think vaccination is still worth it for those
19
people, but also they need a little bit of extra
20
help from people around them to make sure that
21
they're also protected so they don't get infected
22
while they're vulnerable.
23
Q So is it accurate, Dr. Beeler, do I understand you
24
to be saying people could mount a different level
25
of immune response, even a single individual could
Page 158
1
just a smidge trouble understanding each other was
2
this idea about who can and can't mount an immune
3
response. And my perception, just sitting in the
4
room, was that perhaps Mr. Bopp's view was that
5
there are people who are a yes or a no, you know.
6
I can mount an immune response but Dr. Beeler
7
can't.
8
I thought I understood your testimony to
9
suggest that it might be more nuanced than that in
10
terms of there are yes people over here and there
11
are no people over here.
12
So that's a long lead-up to say can you say
13
more about, and try to clarify the record on this
14
concept of whom could or could not mount an immune
15
response, and are those fixed categories where a
16
person is labeled yes or no, or is it something
17
else?
18
A Yeah, I think it is a lot of gray area. And the
19
only other thing that I would mention is that it's
20
not binary. There's going to be a gradient. So,
21
for instance, you know, the 60-year-old that mounts
22
some antibody might have some protection. Maybe
23
it's enough protection to fend off, I don't know, a
24
certain amount of viral load. But that doesn't
25
necessarily, if they get a higher viral load, means
Page 160
1
mount a different level of immune response over
2
time?
3
A Yeah. Immunity wanes over time, and it depends on
4
what else is going on in their lives at the same
5
time. So it's very possible that even a healthy
6
person might not mount appropriate immune response
7
based on other things that might be going on at the
8
time.
9
Q Okay. I think this is my last question.
10
You talked to Mr. Bopp about the exemption
11
criteria, and the communication that your team has
12
with physicians when they have submitted an
13
exemption request on behalf of a student. Do you
14
remember that testimony?
15
A Yeah.
16
Q And I want to make sure that the record is clear
17
about this. Who decides whether an Indiana
18
University student gets vaccinated?
19
A Whether an Indiana University students gets
20
vaccinated?
21
Q Yes.
22
A The Indiana University student decides on the
23
vaccine. Even though there's a mandate, it's just
24
policy. So they do have options for other schools
25
that they could go to, even though I would hate to
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 40 of 42
41 (Pages 161 to 164)
Page 161
1
lose a constituent. And they have the option to
2
exempt. But, ultimately, they have to be the one
3
to choose to adhere to that policy or not.
4
Q And there's no circumstances, are there,
5
Dr. Beeler, where I think Mr. Bopp suggested that
6
IU was overriding the doctor, for example, and
7
requiring a student to get vaccinated. That does
8
not happen, does it?
9
A We work very closely with the physician, again, to
10
tailor the response to what the -- what's best for
11
the patient. And the reason I keep responding that
12
way is it's -- the most frequent scenario is we
13
reach out to the physician, we say, "Hey, this
14
actually isn't a contraindication."
15
They're, like, "Okay." Like, "I didn't know
16
that. I thought that it would be -- I thought it
17
would be one."
18
So, you know, I think there's still a lot of
19
misconceptions even in the medical community about
20
vaccination and about the COVID vaccine, because it
21
is new and it's hard to keep up on all the stuff
22
that's changing. But we do try to work with them
23
and do try and provide whatever evidence they need
24
in order to try to make the decision.
25
But very frequently we will, if they have
Page 163
1
get a vaccination and have not received an
2
exemption, their only choice is to leave the
3
university because they are not allowed to go to
4
class or do anything.
5
A There are pathways for which they can discuss with
6
the medical response team, have their physician
7
advocate for them.
8
Q They've done all the discussion and you've said get
9
a vaccination and they say no, I'm not going to do
10
it. They will be virtually expelled by -- they
11
can't go to class and everything else; correct?
12
A Yes. Those are the repercussions of the policy.
13
Q Yes. So love it or leave it; right?
14
MS. RICCHIUTO: Object to form.
15
A I don't know what that means.
16
Q You don't?
17
A Love it or leave it?
18
MR. BOPP: Okay. No more questions. Thank
19
you.
20
MS. RICCHIUTO: Okay.
21
(Deposition concluded at 5:08 p.m.)
22
23
24
25
Page 162
1
strong opinions on it regardless of what we say,
2
we'll adhere to their recommendations.
3
Q Correct. So there's no circumstance where Indiana
4
University makes the decision that a student will
5
get vaccinated.
6
A Correct.
7
MS. RICCHIUTO: That's all the questions I
8
have.
9
EXAMINATION
10
BY MR. BOPP:
11
Q Well, you make a decision that they will get
12
vaccinated or they have to leave.
13
A We have a policy that says that they need to have
14
proof of vaccination or exemption.
15
Q So that's a yes to my question. If they're not
16
willing to comply with the policy, then they have
17
to leave Indiana University.
18
A They have to adhere to all Indiana University
19
policies. It includes that.
20
Q Why don't you just answer my question, for heavens
21
sake.
22
MS. RICCHIUTO: Objection. Argumentative.
23
Q I mean, it's such a simple question.
24
MS. RICCHIUTO: You've gotten an answer to it.
25
Q If they don't comply with the requirement that they
Page 164
1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
2
3
RYAN KLAASSEN, JAIME CARINI, )
D.J.B. by and through his )
4
next friend and father, )
Daniel G. Baumgartner, ASHLEE)
5
MORRIS, SETH CROWDER, MACEY )
POLICKA, MARGARET ROTH, and )
6
NATALIE SPERAZZA, )
)
7
Plaintiffs, )
)
8
-v- ) CASE NO.
) 1:21-cv-238-DRL-SLC
9
THE TRUSTEES OF INDIANA )
UNIVERSITY, )
10
)
Defendant. )
11
12
Job No. 163715
13
14
I, COLE BEELER, M.D., state that I have read
the foregoing transcript of the testimony given by me
15
at my deposition on July 7, 2021, and that said
transcript constitutes a true and correct record of
16
the testimony given by me at said deposition except as
I have so indicated on the errata sheets provided
17
herein.
18
19
_________________________
COLE BEELER, M.D.
20
21
22
23
STEWART RICHARDSON & ASSOCIATES
Registered Professional Reporters
24
One Indiana Square, Suite 2425
Indianapolis, IN 46204
25
(800)869-0873
USDC IN/ND case 1:21-cv-00238-DRL-SLC document 31-29 filed 07/12/21 page 41 of 42
42 (Pages 165 to 166)
Page 165
1
STATE OF INDIANA
2
COUNTY OF MARION
3
4
I, Patrice E. Morrison, a Notary Public in and
5
for said county and state, do hereby certify that the
6
deponent herein was by me first duly sworn to tell the
7
truth, the whole truth, and nothing but the truth in
8
the aforementioned matter;
9
That the foregoing deposition was taken on
10
behalf of the Plaintiffs; that said deposition was
11
taken at the time and place heretofore mentioned
12
between 1:02 p.m. and 5:08 p.m.;
13
That said deposition was taken down in
14
stenograph notes and afterwards reduced to typewriting
15
under my direction; and that the typewritten
16
transcript is a true record of the testimony given by
17
said deponent;
18
And thereafter presented to said witness for
19
signature; that this certificate does not purport to
20
acknowledge or verify the signature hereto of the
21
deponent.
22
I do further certify that I am a disinterested
23
person in this cause of action; that I am not a
24
relative of the attorneys for any of the parties.
25
Page 166
1
IN WITNESS WHEREOF, I have hereunto set my
2
hand and affixed my notarial seal this 9th day of
3
July, 2021.
4
5
6
7
8
9
10
___________________________________
11
Patrice E. Morrison, Notary Public
12
13
My commission expires:
September 28, 2025
14
Job No. 163715
15
16
17
18
19
20
21
22
23
24
25
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