Rebuttal Declaration of Marcus Zervos, M.D. — Norris v. Stanley

Record facts

Full text

1 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF MICHIGAN 
 
 
JEANNA NORRIS, on behalf of herself and   ) 
all others similarly situated, 
) 
 
) 
 
Plaintiffs, 
) 
Case No. 1:21-cv-00756 
 
 
) 
vs. 
 
) 
 
 
) 
PRESIDENT SAMUEL L. STANLEY, JR., ) 
in his official capacity as President of 
) 
Michigan State University; DIANNE  
) 
BYRUM, In her official capacity as Chair  
) 
of the Board of Trustees, DAN KELLY,  
) 
in his official capacity as Vice Chair  
) 
of the Board of Trustees; and RENEE  
) 
JEFFERSON, PAT O’KEEFE, 
) 
BRIANNA T. SCOTT, KELLY TEBAY,  
) 
and REMA VASSAR in their official  
) 
capacities as Members of the Board of  
) 
Trustees, 
 
) 
 
 
) 
 
Defendants. 
) 
 
 
REBUTTAL DECLARATION OF MARCUS ZERVOS, M.D. 
 
1. 
I have reviewed the second declaration of Dr. Hoorman Noorchashm, dated 
September 15, 2021 and updated September 16, 2021. ECF Nos. 11-3 & 12. I have also reviewed 
Plaintiff’s Reply Brief in Support of Motion for a Preliminary Injunction. ECF No. 11-2.  
2. 
This declaration reflects my response to the opinions and assertions expressed in 
those documents. 
3. 
Ms. Norris references an opinion piece by Dr. Marty Makary to support her view 
that the CDC has exhibited “ineptitude throughout the pandemic.” ECF No. 11-2, PageID.569. I 
disagree with Dr. Makary. The CDC acts on the best available scientific evidence, and for 
vaccine recommendations relies on a very transparent process that includes the relevant research, 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.675   Filed 09/20/21   Page 1 of 18

 
2 
FDA review, and review and recommendations by the Advisory Committee on Immunization 
Practices (ACIP) panel of the CDC. All these agencies have a combination of experts in the field 
with relevant and complimentary areas of expertise. I also note that Dr. Makary published 
another opinion piece in the Wall Street Journal back in February predicting that “We’ll have 
Herd Immunity by April.” Marty Makary, We’ll Have Herd Immunity by April, Wall St. J. (Feb. 
18, 2021, 12:35 PM), https://www.wsj.com/articles/well-have-herd-immunity-by-april-
11613669731. As of September, the United States still has not achieved herd immunity. Instead, 
we continue to experience extremely high rates of COVID-19 infection and death.   
4. 
Dr. Makary further describes the non-peer reviewed Israeli study (Gazit study) as 
“powerful” and “rigorous.” ECF No. 11-2, PageID.570. As described in my initial declaration, 
this study’s numerous flaws and deficiencies make it not usable for public health or individual 
patient care decisions. The strength and significance of the Kentucky CDC study referenced by 
Dr. Makary were also addressed in my prior declaration and discussed further below. 
5. 
I disagree with Ms. Norris that “immunity is immunity is immunity,” ECF 
No. 11-2, PageID.575, particularly as it pertains to preventing the spread of COVID-19. As I 
outlined in my prior declaration and below, there is much stronger evidence of the effectiveness 
of vaccines versus natural immunity at generating an antibody response that is effective at 
reducing the risk of reinfection in individuals previously infected with COVID-19 and reducing 
transmission of COVID-19. Unlike natural immunity, the studies of the vaccines’ effectiveness is 
not based only on presence of antibodies, and, as I discuss below, other studies show that the 
antibody response from natural immunity does not generate as much protection from COVID-19 
as the vaccines do. It is important to recognize that antibody testing is not recommended by the 
CDC or FDA to assess immunity, as it is not possible using conventional antibody tests to 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.676   Filed 09/20/21   Page 2 of 18

 
3 
determine whether a protective immune response has developed. The level of antibody or other 
markers of immune function that are needed for protection are not known. 
6. 
I agree that simply possessing higher serum antibody levels does not translate into 
prevention of infection. ECF No. 11-2, PageID.577. However, mere presence of an antibody, 
such as Ms. Norris demonstrated in August of 2021, also does not translate into prevention of 
infection. There are a variety of other factors that are of importance in prevention of infection. 
As outlined in my earlier declaration to the Court and below, these include exposures, behavioral 
factors, and clinical experience. It is incorrect to say that reinfection is rare, as it has been 
reported in up to 10 percent of people with prior infection, as described in my prior declaration 
and below. ECF No. 9-1, PageID.410-411. How often reinfection actually occurs is difficult to 
ascertain as earlier studies have too short of follow up time, are retrospective and observational, 
have difference in risk factors and exposures in groups, or do not do the testing or strain analysis 
and clinical analysis needed to properly ascertain how often reinfection happens. This is 
particularly important with asymptomatic individuals where reinfection can occur. This will not 
be recognized in retrospective observational studies. The consequence of these infections can be 
devastating as the infection can spread to others. 
7. 
The vaccines MSU are accepting as evidence of immunization are endorsed for 
use by the WHO or FDA. All vaccines have varying efficacy demonstrated in the clinical trials 
and real-world experience, depending on virus strains and population studied. But all 
vaccinations are of benefit against disease to have gained WHO or FDA acceptance.  
8. 
Multiple studies indicate that the duration of natural immunity is not completely 
known and varies from individual to individual. However, it is not disputable that various studies 
show some patients do not develop an antibody response at all, or antibody levels can drop off 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.677   Filed 09/20/21   Page 3 of 18

 
4 
quickly or be ineffective. It also is still unknown whether or how significantly antibodies 
developed in response to COVID-19 infection from one virus strain will protect an individual 
with respect to a different strain of COVID-19. So even if Ms. Norris were positive for antibody 
in August 2021, it does not mean that level of antibody is protective against delta variant, or is 
even present today. Since her infection was months earlier, when the delta variant was not 
present, there can be no reliance that the antibody she may have is protective. It is correct that 
antibody levels can fall in vaccinated individuals, this is being evaluated in ongoing studies and 
by the FDA to evaluate need for boosters in some patients. Whether boosters are needed and in 
whom is an area of ongoing debate and scientific inquiry, and the FDA recommendations will 
shape public health policy. It is correct that all arms of the immune system are important in 
immunity, however the role of cellular (T and B cells) for COVID-19 prevention is not known. 
SARS-Co-V2 is a coronavirus, similar to SARS and other coronaviruses in some ways. We have 
learned much about these viruses over the last several decades and know that reinfections with 
these agents occur commonly and are seasonal. Coronaviruses include the common cold which 
not only occur very commonly, but for which we also know that cellular immunity has little role 
in protection. Just because someone has had an infection does not mean they are protected 
indefinitely, there are many examples of that for a variety of infections. 
9. 
The reason for vaccination is to protect the individual from serious infection from 
COVID-19 and to protect the spread to others. Contra ECF No. 12, PageID.610 ¶ 1. Vaccination 
is our best measure to control COVID-19 and save lives. As of September 15, 2021, there were 
983,109 cases of COVID-19 and 20,597 deaths. Michigan remains in an area of high 
transmission with multiple daily outbreaks occurring including on college campuses. There are a 
variety of short and long-term complications of COVID-19 that affect all ages. One in three 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.678   Filed 09/20/21   Page 4 of 18

 
5 
people with COVID-19 infection have long duration symptoms. Kyle Yomogida et al., Post-
Acute Sequelae of SARS-CoV-2 Infection Among Adults Aged ≥ 18 Years – Long Beach, 
California, April 1—December 10, 2020, (Sept. 17, 2021), 
https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7037a2-H.pdf. There is very clear 
consensus and evidence that the risk of vaccine is less than infection. There is also clear 
consensus that secondary transmission is common in a variety of settings and is less with vaccine 
than in people that are infected and not vaccinated. Victoria Chu et al., Letter to the Editor, N. 
ENG. J. MED. (Sept. 2, 2021) 
https://www.nejm.org/doi/pdf/10.1056/NEJMc2031915?articleTools=true; Ross J. Harris et al., 
Letter to the Editor, N. ENG. J. MED. (Aug. 19, 2021) 
https://www.nejm.org/doi/full/10.1056/NEJMc2107717; Anoop S.V. Shah et al., Letter to the 
Editor, N. ENG. J. MED. (Sept. 8, 2021) 
https://www.nejm.org/doi/full/10.1056/NEJMc2106757; Monica Gandhi et al., Asymptomatic 
Transmissions, the Achilles’ Heel of Current Strategies to Control Covid-19, N. ENG. J. MED. 
(May 28, 2020) https://www.nejm.org/doi/pdf/10.1056/NEJMe2009758?articleTools=true; 
Hannah Fung et al., The household secondary attack rate of SARA-CoV-2: A rapid review, 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7665336/pdf/ciaa1558.pdf (last accessed Sept. 
17, 2021). 
10. 
It is not merely an assumption that natural immunity is inferior to that acquired 
through vaccination. ECF No. 12, PageID.610 ¶ 3-8. There is clear evidence that the immune 
response in a vaccinated person is more robust than in someone with immunity from an 
infection. Several studies have compared the strength of antibodies in blood from people who 
were vaccinated with those who previously had COVID-19. For instance, a study by researchers 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.679   Filed 09/20/21   Page 5 of 18

 
6 
from Emory University and the University of Texas Medical Branch published last March 
showed immune response in vaccinated individuals to be almost ten times greater than in 
someone who had recovered from infection. Venkata Viswanadh et al., Neutralizing Antibodies 
Against SARS-CoV02 Variants After Infection and Vaccination, (Mar. 19, 2021) 
https://jamanetwork.com/journals/jama/fullarticle/2777898. The same study also found that the 
immune response in someone who had previously had COVID-19 was about twice as variable as 
compared with the response in someone who had not previously had COVID-19 but was 
vaccinated. In fact, a number of people who even had symptomatic COVID-19 illness when the 
study was occurring did not mount a measurable immune response at all.  
11. 
Not everyone with COVID-19 develops antibodies after natural infection and a 
very large study involving over 30,000 cases found that even in those with an antibody response 
that is persistent, only about 90% of those that had an antibody response developed immunity. 
Weimin Liu et al., Predictors of Nonseroconversion after SARS-CoV-2 Infection, (June 30, 
2021), https://wwwnc.cdc.gov/eid/article/27/9/21-1042_article; Ania Wajnberg et al., Robust 
neutralizing antibodies to SARS-CoV-2 infection persists for months, SCIENCE (Dec. 4, 2020), 
https://www.science.org/doi/10.1126/science.abd7728. Also, the likelihood of mounting a strong 
antibody response is related to the severity of disease. In a study looking at the relationship of 
antibodies to disease severity, only 12 out of 15 (80%) asymptomatic patients showed detectable 
levels of neutralizing antibodies, compared with 46 out of 49 (94%) patients with mild cases and 
100% of patients with pneumonia. Jae-Hoon Ko, et al., Neutralizing Antibody Production in 
Asymptomatic and Mild COVID-19 Patients, in Comparison with Pneumonic COVID-19 
Patients, (July 17, 2021),  https://www.mdpi.com/2077-0383/9/7/2268.  This compares with 
100% antibody response to vaccination in the COVID-19 mRNA vaccine studies, and over 94 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.680   Filed 09/20/21   Page 6 of 18

 
7 
percent initial efficacy in the mRNA vaccine studies. Pinja Jalkanen et al., COVID-19 mRNA 
vaccine induced antibody responses against three SARS-CoV-2 variants, (June 28, 2021),  
https://www.nature.com/articles/s41467-021-24285-4; Fernando P. Polack et al., Safety and 
Efficacy of the BNT162b2 mRNA Covid-19 Vaccine, N. ENG. J. MED. (Dec. 10, 2020)  
https://www.nejm.org/doi/full/10.1056/NEJMoa2034577; Lindsey R. Baden et al., Efficacy and 
Safety of the mRNA-1273 SARS-CoV-2 Vaccine, N. ENG. J. MED. (Dec. 30, 2020)  
https://www.nejm.org/doi/full/10.1056/nejmoa2035389; 
12. 
Also, as outlined in my prior declaration, the duration of a previously infected 
individual’s immune response is variable. ECF 9-1, PageID.412 ¶ 49.  See also, Alexis R. 
Demonbreun, et al., Patterns and persistence of SARS-CoV-2 IgG antibodies in Chicago to 
monitor COVID-19 exposure, 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7685344/pdf/nihpp-2020.11.17.20233452.pdf 
(last visited Sept. 17, 2021). This study by Demonbreun also showed that recovering from 
COVID-19 does not guarantee antibodies or confer immunity to reinfection. Their finding 
directly contradicts the assumption that contracting COVID-19 will make someone immune to 
reinfection. For people who had mild or asymptomatic disease, their antibody response was 
essentially the same as someone who had not been previously exposed. 
13. 
With the rise of genetically distinct strains of SARS-CoV-2, there is also the 
possibility that some strains of the virus will “evade” the immune response acquired from a 
natural infection. Vaccination of people previously infected with SARS-CoV-2 increased the 
immune response to the new variant by approximately 1000 times. Leonida Stamatatos et al., 
mRNA vaccination boosts cross-variant neutralizing antibodies elicited by SARS-CoV-2 
infection, SCIENCE (June 25, 2021) https://www.science.org/doi/10.1126/science.abg9175. 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.681   Filed 09/20/21   Page 7 of 18

 
8 
14. 
Therefore, so-called hybrid immunity — that is, natural immunity from an 
infection combined with the immunity provided by the vaccine — appears to result in stronger 
protection than just infection. Against some of the most concerning variants, it is literally 1000 
times better levels of antibodies after vaccination compared to before for somebody with natural 
immunity. That is not a small difference, especially when we know natural immunity is not as 
effective as vaccination at protecting against COVID-19.  
15. 
Vaccination has also led to increased levels of antibodies against variant forms of 
the coronavirus in people who had been previously infected with other strains. Han C. Leier, et 
al., Previously infected vaccinees broadly neutralize SARS-CoV-2 variants, 
https://www.medrxiv.org/content/10.1101/2021.04.25.21256049v1 (last viewed Sept. 17, 2021).  
Importantly, antibody levels are variable after recovering from infections, and those at the lower 
end of the spectrum might be more susceptible to reinfections.  
16. 
Researchers at Rockefeller University in New York City also looked at how 
different types of immunity would protect against potential variants. To do so, they designed a 
modified version of the coronavirus spike protein with 20 naturally occurring mutations to test 
how antibodies would work against it. Fabian Schmidt et al., High genetic barrier to escape from 
human polyclonal SARS-CoV-2 neutralizing antibodies, 
https://www.biorxiv.org/content/10.1101/2021.08.06.455491v1 (last accessed Sept. 17, 2021). 
These modified spike proteins were tested in lab dishes against antibodies from people who had 
recovered from COVID-19, from those who had been vaccinated, and from those who had 
hybrid immunity. The spike proteins were able to evade the antibodies from the first two groups 
but not antibodies from people with hybrid immunity.  
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.682   Filed 09/20/21   Page 8 of 18

 
9 
17. 
In response to Dr. Noorchashm’s statement that “when assessing the clinical 
equivalency of vaccination vs. natural infection, the only metric that can correctly be used is the 
said group’s clinical susceptibility to subsequent COVID-19 infection,” (ECF No. 12, 
PageID.611 ¶ 4), I agree that susceptibility to infection is one appropriate metric, along with 
prevention of serious disease. There is clear evidence that the vaccines have remained highly 
effective in preventing hospitalization and death. New studies become available every day, 
several new studies show evidence of long-term safety and efficacy of the vaccine. 
18. 
I disagree that it is “incorrect and irrelevant to claim that any additional level of 
protection afforded the subset/class of COVID-recovered persons by an added vaccination 
justifies a mandate.” ECF No. 12, PageID.611 ¶ 6. The mandate is justified on basis of 
prevention of infection and reinfection. As I have explained, previously infected individuals can 
be reinfected with COVID-19 and spread it to others. Reinfection can have an impact on the 
health of oneself, but of relevance for the mandate is that infection, through transmission, can 
have serious health implications for others. 
19. 
Dr. Noorchashm cites the Goldberg, et al., study to support his statement that “it 
is a serious scientific, analytical and clinical error to conflate increase in antibody levels with the 
unsubstantiated theory that vaccination of COVID-recovered individuals is needed to achieve 
immunity equivalent to that attained through vaccination of COVID-naïve persons.” ECF 
No. 12, PageID.612 ¶ 8-12. This study has not yet been peer reviewed and is subject to numerous 
flaws. Most importantly, it is retrospective and observational, and there was a short-term 
evaluation for possible reinfection. Also, there are behavioral (such as distancing and masks), 
population (level of transmission in the community), and potential patient risk factor differences 
(such as underlying disease) that were not accounted for. Also, there may have been different 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.683   Filed 09/20/21   Page 9 of 18

 
10 
levels of exposure to infection between the vaccinated and non-vaccinated groups that result in 
infection or risk of acquisition that was not accounted for. There were also testing differences not 
accounted for between groups.  
20. 
Dr. Noorchashm cites the study by Shrestha et. al. to support the claim of no 
reinfections in individuals with prior COVID-19. ECF No. 12, PageID.613 ¶ 13-14. This was an 
observational study in the context of occupational health, set at the Cleveland Clinic. This study 
is not peer reviewed. Its most important flaw is lack of asymptomatic or mild infection employee 
screening, such that previously infected subjects who remained asymptomatic might have been 
misclassified as previously uninfected. The study duration was also short (only 5 months). 
21. 
Dr. Noorchashm also cites a study by Lumley, et al. ECF No. 12, PageID.614 
¶ 15-17. This was also an observational study. Its weaknesses include differences in risk of 
infection between groups, such as exposures, underlying disease, inconsistent testing 
methodology between groups, and short follow-up period. There are numerous studies showing 
reinfection can occur in up to 10 percent of individuals with prior infection as outlined in my 
prior declaration. ECF No. 9-1, PageID.410-411 ¶ 46. See also, Alison Tarke, et al., 
Comprehensive analysis of T cell immunodominance and immunoprevalence of SARS-CoV-2 
epitopes in COVID-19 case, (Jan. 26, 2021) 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7837622/; Richard L. Tillett et al., Genomic 
evidence for reinfection with SARS-CoV-2: a case study, 
https://www.thelancet.com/action/showPdf?pii=S1473-3099%2820%2930764-7 (last accessed 
Sept. 17, 2021); Jan Van Elslande et al., Symptomatic SARS-CoV-2 reinfection by a 
phylogenetically distinct strain, (Sept. 5, 2020)  
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7499557/;  Belén Prado-Vivar et al., A case of 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.684   Filed 09/20/21   Page 10 of 18

 
11 
SARS-CoV-2 reinfection in Ecuador, (Nov. 23, 2020) 
https://www.thelancet.com/action/showPdf?pii=S1473-3099%2820%2930910-5;  Jae-Hoon Ko, 
et al., Neutralizing Antibody Production in Asymptomatic and Mild COVID-19 Patients, in 
Comparison with Pneumonic COVID-19 Patients, (July 17, 2020) https://www.mdpi.com/2077-
0383/9/7/2268.  
22. 
The Kentucky study does in fact justify that individuals with naturally acquired 
immunity receive a vaccine. The mandate is a separate question but related issue. ECF No. 12, 
PageID.614 ¶ 18. My understanding of the significance of the study is correct that, along with 
other information, the study provides evidence that reinfection is more common in people that 
have natural infection vs. immunization. The evidence provided by the CDC report shows 
vaccinated people are less likely to experience a breakthrough infection than people with a prior 
infection are to get COVID-19 a second time. According to the CDC report, we have direct 
evidence. Researchers collected data on people in Kentucky who were infected by SARS-CoV-2 
in 2020 and then infected for the second time in May and June of 2021. These data were 
compared with people who had also been infected in 2020, but not reinfected. Whereas only 
27.2% of the people who were reinfected had been vaccinated, 42.5% of people in the 
comparison group had been vaccinated. From these data, the researchers determined that the 
odds of a person being reinfected if they haven’t had the vaccine are 2.34 times greater than 
those of a person who got the vaccine after recovering from COVID-19. Larger studies are 
needed. However, in making medical and public health decisions, the entire body of experience 
and literature needs to be considered. 
23. 
In contrast to Dr. Noorchashm’s reliance on the Satwik, et al. small observational 
study (ECF No. 12, PageID.616 ¶ 24), there have been numerous studies showing long term 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.685   Filed 09/20/21   Page 11 of 18

 
12 
efficacy of the vaccines in preventing hospitalization and death from COVID-19. In addition to 
the prior citations in my earlier declaration, almost daily there are new large studies showing the 
safety and efficacy of the vaccines. The following are a few examples of large studies not cited 
previously: Kristina L. Bajema et al., Effectiveness of COVID-19 mRNA Vaccines Against 
COVID-19-Associated Hospitalization—Five Veterans Affairs Medical Centers, United States, 
February 1 – August 6, 202, CDC (Sept. 17, 2021), 
https://www.cdc.gov/mmwr/volumes/70/wr/mm7037e3.htm; Heather M. Scobie, et al., 
Monitoring Incidence of COVID-19 Cases, Hospitalizations, and Deaths, by Vaccination Status 
– 13 U.S. Jurisdictions, April 4 – July 17, 2021, CDC (Sept. 17, 2021),  
https://www.cdc.gov/mmwr/volumes/70/wr/mm7037e1.htm; Shaun J. Grannis et al., Interim 
Estimates of COVID-19 Vaccine Effectiveness Against COVID-19—Associated Emergency 
Department or Urgent Care Clinic Encounters and Hospitalizations Among Adults During 
SARS-CoV-2 B.1.617.2 (Delta) Variant Predominance –Nine States, June—August 2021, CDC 
(Sept. 17, 2021),                                                                                                                                                          
https://www.cdc.gov/mmwr/volumes/70/wr/mm7037e2.htm; Robert W. Frenck, et al., Safety, 
Immunogenicity, and Efficacy of the BNT162b2 Covid-19 Vaccine in Adolescents, N. ENG. J. 
MED. (July 15, 2021), https://www.nejm.org/doi/full/10.1056/NEJMoa2107456.   
24. 
It is of interest that Dr. Noorchashm cites Dr. Paul Offit in his declaration. ECF 
No. 12, PageID.618-619 ¶ 30-31. I have reviewed Dr. Offit’s podcasts. Of note, Dr. Offit has 
acknowledged that the choice to not get vaccinated affects others. Conversations on Health Care, 
“A New Era of Vaccinology”: Dr. Paul Offit on mRNA Technology’s role in Vaccine 
Development, FEDERAL NEWS NETWORK,  at 03:50 (July 8, 2021) 
https://federalnewsnetwork.com/conversations-on-healthcare/2021/07/a-new-era-of-vaccinology-
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.686   Filed 09/20/21   Page 12 of 18

 
13 
dr-paul-offit-on-mrna-technologys-role-in-vaccine-development/. Dr. Offit does not state to not 
vaccinate individuals with prior infection. ZdoggMD, Vaccine Update & Q+A LIVE w/ Dr. Paul 
Offit, YOUTUBE (July 20, 2021) https://www.youtube.com/watch?v=v8eOQSRVh_s&t=460s. 
Dr. Offit says that getting a vaccine after COVID-19 infection is safe and boosts immunity. Id. at 
16:10-16:32. He is also in support of vaccination mandates. He states, “What do you do if 60 or 
70 or 80 million people in this country say ‘No thanks. I’m going to continue to allow this virus 
to reproduce itself, continue to allow people to suffer and be hospitalized and die, and continue 
to allow variants to be made which may become progressively more resistant to vaccine-induced 
immunity.’ What do you do then? And I think the answer to that question is you compel 
vaccinations, you mandate vaccines.” Id. at 23:05-23:31.   
25. 
That two large health systems in the US have elected to accept a history of 
COVID-recovery and acquired antibody immunity as grounds for exemption from a vaccine 
requirement is irrelevant, as many hospitals and universities have accepted the importance of 
mandates that do not exempt previously infected individuals and implemented them in the best 
interest of students, staff and for hospitals and their patients. Mandates are increasingly 
recommended by public health experts. 
26. 
The justification to vaccinate Ms. Norris and others with prior COVID-19 
infection is to protect her and others around her. The vaccines are safe and effective and are 
highly effective in preventing hospitalization and death. They also decrease the risk that an 
individual previously infected with COVID-19 will be reinfected and transmit it to others. Rare 
potential side effects such as myocarditis or clotting are more commonly seen in people that have 
natural infection than in those who receive the vaccine. Boosters are being now consider by the 
FDA and AACIO because of the potential for waning immunity in some people. However, as 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.687   Filed 09/20/21   Page 13 of 18

 
14 
stated earlier, all vaccines remain highly effective in preventing serious infection, hospitalization, 
and death. It is not unusual to have to re-immunize, which is why influenza (another respiratory 
virus) requires us giving flu shots annually.  
27. 
Dr. Noorchashm cites a new study in Nature for his opinion that Ms. Norris is at 
heightened risk of side effects from the vaccine. ECF No. 12, PageID.623 ¶ 51-54. That study 
has not been confirmed by other studies and has limitations of a relatively small sample size and 
issues with the matching procedures, and thus results in incorrect conclusions and does not 
represent the overall population. In addition, they studied COVID-19 infected individuals who 
were mildly symptomatic, with relatively low pre-vaccination antibody levels, so it does not 
address individuals with previously moderate and severe COVID-19 infections. Finally, their 
study did not include information on cell-mediated immunity responses, which would provide 
further insight regarding the immune response, especially in post-infected seronegative 
individuals. The authors themselves concluded that whether their safety conclusions could be 
generalized to previously moderate and severe COVID-19 infected patients has yet to be 
determined. 
28. 
The safety of the vaccine is well demonstrated even in people with prior infection. 
ACIP confirmed that the CDC had considered the effect of the Pfizer-BioNTech COVID-19 
vaccine on those previously infected with COVID-19 and that secondary analysis showed that 
the vaccine’s efficacy was similarly high for participants both with or without evidence of a 
previous COVID-19 infection. Sara E. Oliver, M.D., et al., The Advisory Committee on 
Immunization Practices’ Interim Recommendation for Use of Pfizer-BioNTech COVID-19 
Vaccine — United States, December 2020, Vol. 69, No. 50 (Dec. 18, 2020), and Erratum (Jan. 
29, 2021), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6950e2-H.pdf; 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.688   Filed 09/20/21   Page 14 of 18

 
15 
https://www.cdc.gov/mmwr/volumes/70/wr/mm7004a5.htm?s_cid=mm7004a5_w. Even people 
with prior COVID-19 with long haul symptoms in some studies have shown improvement from 
the vaccine, but at minimum no harm. If any symptoms do occur after vaccination in someone 
with prior COVID-19, the symptoms are mild and transient.  
29. 
There is strong consensus in the public health and medical community to 
vaccinate all eligible individuals, including those with prior infection. The recommendation for 
vaccination of persons with prior COVID-19 infection comes from majority of leading public 
health experts including the WHO, CDC, ACIP, and national societies. Some examples are as 
follows: 
• World Health Organization. “Even if you have already had COVID-19, you should be 
vaccinated when it is offered to you. The protection that someone gains from having 
COVID-19 will vary from person to person, and we also don’t know how long natural 
immunity might last.” World Health Organization, Coronavirus disease (COVID-19): 
Vaccines, https://www.who.int/news-room/q-a-detail/coronavirus-disease-(covid-19)-
vaccines?adgroupsurvey={adgroupsurvey}&gclid=Cj0KCQjw1ouKBhC5ARIsAHXNMI
8e7Ph3bZlLhPpxOhgl4Ib4IBMH7wfm5O6460Cd8awLTK_rFVHe7PkaApelEALw_wc
B (last updated June 22, 2021).  
• CDC. “Should I be vaccinated after COVID? Yes, you should be vaccinated regardless 
of whether you already had COVID-19 because: Research has not yet shown how long 
you are protected from getting COVID-19 again after you recover from COVID-19. 
Vaccination helps protect you even if you’ve already had COVID-19.” CDC, Frequently 
Asked Questions about COVID-19 Vaccination, https://www.cdc.gov/coronavirus/2019-
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.689   Filed 09/20/21   Page 15 of 18

 
16 
ncov/vaccines/faq.html?s_cid=11572:vaccine%20after%20covid%20infection:sem.ga:p:
RG:GM:gen:PTN.Grants:FY21 (last updated Sept. 9, 2021).  
o “If you have had COVID-19 before, please still get vaccinated,” CDC 
Director Rochelle Walensky said in a statement. “This study shows you are twice 
as likely to get infected again if you are unvaccinated. Getting the vaccine is the 
best way to protect yourself and others around you, especially as the more 
contagious delta variant spreads around the country.” CDC Media Statement, New 
CDC Study: Vaccination Offers Higher Protection than Previous COVID-19 
Infection, (Aug. 6, 2021) https://www.cdc.gov/media/releases/2021/s0806-
vaccination-protection.html.  
• American Medical Association.  “Yes, even if you have already had COVID-19 you 
should be vaccinated. Experts do not yet know how long you are protected from getting 
sick again after recovering from COVID-19.” American Medical Association Press 
Release, AMA in support of COVID-19 vaccine mandates for health care workers, (July 
26, 2021) https://www.ama-assn.org/press-center/press-releases/ama-support-covid-19-
vaccine-mandates-health-care-workers; American Medical Association, COVID-19 
vaccines patients’ frequently asked questions, https://www.ama-assn.org/delivering-
care/public-health/covid-19-vaccines-patients-frequently-asked-questions (last accessed 
Sept. 17, 2021).   
• The Infectious Diseases Society of America. “[T]here are accumulating data that 
vaccination after prior infection can boost immune responses against SARS-CoV-2 
variants of concern.”  Infectious Diseases Society of America, Vaccines FAQ, (last 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.690   Filed 09/20/21   Page 16 of 18

 
17 
reviewed Sept. 16, 2021), https://www.idsociety.org/covid-19-real-time-learning-
network/vaccines/vaccines-information--faq/#.  
• American Academy of Pediatricians. “The AAP recommends COVID-19 vaccinations 
for all children and adolescents 12 years of age and older who do not have 
contraindications using a COVID-19 vaccine authorized for use for their age.” 
Committee on Infectious Diseases, COVID-19 Vaccines in Children and Adolescents, 
OFFICIAL JOURNAL OF THE AMERICAN ACADEMY OF PEDIATRICS (May 12, 2021),  
https://pediatrics.aappublications.org/content/148/2/e2021052336. 
30. 
In conclusion, I strongly disagree with Dr Noorchashm that mandating 
vaccination of individuals with naturally acquired immunity violates principles of medical ethics 
or standard of care. The adverse effects of vaccine are clearly less than infection, that is not a 
disputable point. I am a frontline infectious disease physician caring for or supervising the care 
of hundreds of COVID-19 patients. I have seen first-hand the devastating effects the virus has 
had on lives of infected individuals, friends, families, caregivers and various first responders. In 
medicine, we weigh risks and benefits, and the benefits of vaccine including those previously 
with natural infection outweigh the risks. In summary, as stated in my earlier declaration, if Ms. 
Norris were my patient, I would recommend vaccination to her. It is in the best interest of her 
health and those around her. It is commendable that MSU is doing all it can to protect its 
students and staff from this potentially deadly disease. 
 
 
Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.691   Filed 09/20/21   Page 17 of 18

Case 1:21-cv-00756-PLM-SJB   ECF No. 17,  PageID.692   Filed 09/20/21   Page 18 of 18

File and source

File

gov.uscourts.miwd.102518.17.0.pdf

Size

278,550 bytes

SHA-256

f6f35618f62271ba0e57a878cad39b7572cffc2be763099f1a30fa7cdcbe4720

Our copy

gov.uscourts.miwd.102518.17.0.pdf

Original

archive.org