HARTFORD – A Superior Court judge expects to rule Monday on claims that requiring school children to wear masks in the midst of a pandemic represents an imminent threat to their mental and physical health.
Judge Thomas G. Moukawsher said he will take the weekend to weigh testimony presented during an all-day hearing Friday on an emergency injunction brought by two Republican state representatives on behalf of a group of Connecticut parents who claim that masks are harmful to children, do not slow the spread of the COVID-19 virus, and should not be required in schools.
The day of testimony played out Friday even as an increasing number of Connecticut towns considered reimposing stricter public health guidelines in response to rising COVID-19 cases in the state.
Lawyers for the state have rejected the idea that the mask requirement endangers children and on Friday they presented evidence suggesting that most students who request an exemption from the requirement receive one. A state Department of Education survey of more than 70% of local school boards found that school officials have granted 221 exemptions and denied only 37 requests.
“You asked us to focus on whether there is an emergency. Well there is an emergency. There’s the emergency of a pandemic,” Assistant Attorney General Darren Cunningham said during his closing argument. “This drastic, immense request of the court would no doubt result in the closure of our public schools.”
Doug Dubitsky, a state representative and attorney for the parents, disagreed. He questioned the Centers for Disease Control and Prevention guidelines that inform the state requirement and said the mask mandate has caused great suffering among students.
“They’re suffering from things like asthma, infections, panic attacks, depression, sleeplessness, and behavioral changes,” Dubitsky said.
“The mothers of these children cannot just trust the government. They believe their own eyes. They believe their own ears. They believe when they see a child that is suffering, that is having a panic attack when you put a mask near his face,” he said.
The Friday hearing was the culmination of weeks of efforts by the plaintiffs to identify expert witnesses to represent their views before the court. Moukawsher rejected two doctors previously proposed by the group as unqualified after state lawyers highlighted some of their controversial opinions on the pandemic.
The judge agreed to hear from two new witnesses for the group during the hearing and the state again drew attention to the experts’ past claims. The plaintiffs called Los Angeles-based child psychiatrist Dr. Mark McDonald and Knut Wittkowski, a New York epidemiologist with a Ph.D. in computer science. Both questioned the wisdom of enforcing mask requirements in schools.
During his testimony, McDonald called the practice an “immediate disaster and a catastrophe in the making.” He said some masks risk oxygen deprivation in children, which he said could result in brain damage. Meanwhile, facial coverings could stunt the developmental growth of kids as they strip words of their facial context, he said.
“Children who are forced to wear masks for extended period of time in school settings as well as outside the school settings are at imminent harm – meaning right now they are being harmed and that, based on the chronicity or the length of time of this requirement, they could be at future harm of permanent illness and developmental delay that can never be reversed,” McDonald said.
Cunningham objected to McDonald as a witness, saying the doctor’s views on the pandemic and the government’s response to it have colored his testimony.
McDonald acknowledged that despite public health requirements in the state of California, where he lives, he does not wear a mask while in public. He also acknowledged that he has been banned from flying on Delta Airlines until mask requirements are lifted as a result of an incident in which he spent “too much time drinking from a cup of water.” Meanwhile, McDonald defended his use of the term “Wuhan Flu” to describe the COVID-19 virus, saying, “There’s substantial evidence to show that it originated in a laboratory there, run by the government.”
“I think that sort of conduct, respectfully Doctor, demonstrates a viewpoint that will infect all of his opinions in this case. I don’t think he can possibly be expected to separate those views from the opinions he’s going to give to your honor,” Cunningham said.
State Representative Craig Fishbein, who also represents the plaintiffs, said the child psychiatrist should not be disqualified based on opinions arrived at through experience and readings.
“Certainly he has not discounted the pandemic, he says it’s real,” Fishbein said. “I don’t know that he’s unqualified, that he’s a ‘kook’ so to speak or something like that. He’s certainly not.”
Cunningham’s cross-examination of McDonald led to some testy exchanges. Cunningham asked directly whether a child who has tested positive for COVID-19 should be allowed in a school without a mask. McDonald called the question unclear. He said most positive test results were false positives.
“This is one of the problems we have when people who are laypeople are describing the state of infection, illness and progression of disease because they don’t know what they’re talking about,” McDonald said.
Later, Cunningham asked McDonald if he believed that opening schools with mask requirements was better for children than not opening schools at all.
“In the sense that chopping off a hand rather than the arm is better than chopping off the arm, yes,” McDonald responded.
“I didn’t ask you about chopping off anything,” Cunningham said. “I just asked which was better.”
“It’s a metaphor,” McDonald shot back. “So yes, losing a hand is better than losing an arm in the metaphorical sense.”
Wittkowski also found himself at odds with a state lawyer, this time Assistant Attorney General Timothy Holzman, who questioned the epidemiologist on his previous statements regarding forgoing many public guidelines like masks and social distancing in an effort to hasten herd immunity. Wittkowski acknowledged his own writings, but claimed people had largely taken his comments out of context.
During cross-examination, Holzman read a statement back to Wittkowski in which the epidemiologist was quoted as downplaying the danger posed by many diseases to children.
“‘So they should keep going to school and infecting each other’,” Holzman read. “You said that, right?”
Wittkowski said he never meant that children should be intentionally infected with the virus. Rather, he said he meant that the risk that they might infect each other was an acceptable one.
Holzman hadn’t asked for the clarification.
“The question was ‘Did you say that?’ So is it your testimony that you said that?” Holzman said.
Wittkowski considered the question before responding through a German accent: “Did you stop beating your wife? Answer with yes or no.”
Judge Moukawsher gently corrected Wittkowski.
“The state, at least, has a the right to ask you ‘Did you say those words?’”
“I said those words but that’s not a complete statement,” Wittkowski responded.
The state also provided two witnesses but their testimony was a tamer affair. Plaintiffs’ attorney Fishbein repeatedly questioned the mental health qualifications of New Britain-based pediatrician Robert W. Dudley, M.D., who said he’d seen no significant mental health problems occur as the result of masks in schools.
Meanwhile, Fishbein objected when Education Department Administrator Stephanie Knutson introduced the statistics on the number of exemptions granted by school boards.
“We can parade in parents that are afraid to put in the exemption or they’ve attempted to get the exemption and they can’t get the exemption,” Fishbein said.
Cunningham said the plaintiffs should be happy about having the new information.
“I would think, your honor, that if Attorney Fishbein was so concerned about an emergency, he would welcome this information because it’s direct communications compiled by the Department of Education,” he said.
Judge Moukawsher’s Monday ruling will be strictly on the plaintiffs’ request for an emergency injunction. The next steps in the overall lawsuit will depend on the judge’s decision.