This article offers practice tips regarding the use of expert testimony in cases pitting one parent’s wish to have a child vaccinated for COVID-19 pursuant to the FDA’s emergency            authorization of the Pfizer-BioNTech vaccine for children in certain age ranges and the CDC’s recommendation that children in those age ranges be vaccinated against the other parent’s  objection where the parents have shared legal custody of the minor child.

  • Hire an expert, do not assume that evidence crucial to the case can be admitted through a fact witness.

Unless a judge has signaled in pretrial proceedings that judicial notice will be taken of the FDA’s emergency authorizations for having children in certain age ranges receive the Pfizer-BioNTech vaccine and of the CDC’s recommendations that children in those age ranges be vaccinated, failure to call an expert is potentially fatal to the party seeking to have the child vaccinated. A fact witness’ testimony as to the FDA’s authorization and the CDC’s recommendation is subject to a hearsay exception, and there is no guarantee that the court would overrule the objection based on the public records exception to the hearsay rule. The better and admittedly more expensive practice is to retain an expert, thereby assuring that the most important evidence that the vaccine is safe are admitted. In a case tried by the author, the party seeking to have the child vaccinated retained an expert who was able to testify to the FDA’s authorization and the CDC’s recommendation without objection.

  • Don’t assume that the child’s physician will testify.