A federal judge has ruled that a lawsuit brought by the state's ex-vaccine chief against two of Tennessee's top health officials will go to trial May 8.
The ruling Friday clears the way for a jury to consider whether the reputation of Dr. Michelle Fiscus -- former medical director of the state's Vaccine-Preventable Diseases and Immunization Program -- was deliberately smeared by state officials amid political backlash over her efforts to provide guidance around vaccines for children during the COVID-19 pandemic.
The jury will have one key question to decide: whether Fiscus is entitled to a name-clearing hearing at which she and state officials will have a public airing about the circumstances leading up to her firing in July 2021. It's possible the case could be settled before then, Chris Smith, the attorney representing Fiscus, said after Firday's hearing.
In ordering the case set for a five-day trial, Chief District Judge Waverly Crenshaw Jr. denied competing requests from Fiscus and the state for summary judgment -- declining to rule on the case from the bench, with the legal filings already before him.
There are too many facts in dispute, Crenshaw said.
Top two state health officials named in suit
Fiscus filed suit in September 2021 against her former bosses, Dr. Lisa Piercey, then head of the Tennessee Department of Health, and Dr. Tim Jones, its medical director. Piercey has since left state government.
The lawsuit initially sought monetary damages, a claim the judge later dismissed after finding state officials have qualified immunity as a result of their official positions.
The lawsuit focuses on the set of circumstances leading up to Fiscus' firing.
Fiscus had circulated a memo to the state's health care providers in the weeks before she was fired about the state's so-called "Mature Minor Doctrine," outlining when health care providers are allowed to give vaccines to adolescents without their parent's permission. Soon after, Republican leaders contacted the department to complain.
Days after her firing, health department officials made her personnel file available to news outlets in response to public records requests. The file contained a memo that pointedly criticized Fiscus' performance with allegations that her attorneys called "false, slanderous stuff" in court. The memo suggested Fiscus had improperly directed state funding to a nonprofit she created and circulated the memo about the Mature Minor Doctrine without permission from her bosses.
The nonprofit, Immunize Tennessee, was similar to those already operating in other states, did not include Fiscus on its board or its payroll and Fiscus had previously been praised by her boss for taking the initiative to create it, court filings said. The Mature Minor memo was created with the assistance of a health department lawyer on the department's senior leadership team, court documents noted.
Angry emails, social media target Fiscus
The Fiscus termination memo, which was widely reported, subjected Fiscus and her family to public scorn, angry social angry media posts and voicemail messages, including one played in court Friday.
The unidentified male voice on a voicemail left with Brad Fiscus, Dr. Michelle Fiscus' husband, issued an obscenity-filled rant, criticizing both of the Fiscus' physical appearance and admonishing Brad Fiscus for being unable to control his wife.
The message ends with this: "Eat s--- Brad and get the f--- out of Tennessee, you pile of garbage. F--- you."
If not for state officials' decision to create the memo and then place it in Fiscus' personnel file -- a public record under Tennessee's law -- "we wouldn't be here," Smith said in court.
State attorneys on Friday contended the termination memo contained only factual statements and noted it was not "voluntarily published" -- a legal requisite for a name calling hearing to be convened. The memo was made public only after reporters requested copies of Fiscus' personnel files following her firing.
Stephanie Bergmeyer, senior assistant attorney general, reasserted the state's argument that the Mature Minor memo was circulated without senior health department officials' approval and disputed claims that Fiscus had suffered any reputation harm, noting that Fiscus had received job offers after her termination and that she currently holds a position in Virginia.
The examples produced in court of community backlash -- the voicemail and a critical tweet -- "is clearly not indicative of the community," Bergmeyer said.
Neither Fiscus nor state health department officials were present in U.S. Middle District Court on Friday.
Read more at TennesseeLookout.com.