Judges Keep Questioning Herd Immunity Advocate’s Credibility

"At this stage of the proceedings, the Court is simply unwilling to trust Dr. Bhattacharya."

Throughout the COVID-19 pandemic, when right-wing lawmakers needed an expert voice to defend rolling back public health interventions to mitigate the spread of the virus, they could reliably turn to Stanford University professor Dr. Jay Bhattacharya. 

Bhattacharya, a health economist and senior fellow at the right-wing Hoover Institution housed at Stanford, is one of the most recognizable opponents of government efforts to contain the spread of COVID. An author of the October 2020 mass infection-based herd immunity strategy called the Great Barrington Declaration, Bhattacharya has consistently argued that the virus poses little real threat to most people.

To date, COVID has killed more than 1.1 million Americans and left millions more suffering long-term health side effects. Emerging evidence suggests the virus takes a toll on the heart.

Bhattacharya’s ideas were rejected by the mainstream of public health—fmr. National Institutes of Health Director Dr. Francis Collins called the professor and his declaration co-authors “fringe epidemiologists,” 14 major public health organizations published an open letter denouncing the document, and World Health Organization Director-General Tedros Adhanom Ghebreyesus called it “unethical.” Still, the professor’s heterodox views have made him a favorite of billionaires like Elon Musk, right-wing and business-aligned groups that fought against public health measures, Republican politicians, and their media allies.

Bhattacharya has personally advised the Trump administration, Florida Gov. Ron DeSantis, and other GOP-led states on their COVID responses. He has served as an expert witness for Republican lawmakers in multiple congressional hearings and court cases.

In an ongoing lawsuit against the Biden administration for allegedly censoring dissenting voices amid the pandemic, the State of Missouri noted that it had relied on the professor, who is also a party to the suit, as an expert witness in multiple cases. The complaint in Missouri v. Biden claims that “censorship” of Bhattacharya by social media companies acting at the behest of the federal government reduced the “message and impact” of Missouri’s expert witness.

But in several other high-profile legal battles, the Stanford professor’s expertise has come under fire—and there is no one to blame but Bhattacharya, himself. Multiple judges have questioned the reliability of his testimony.

“Little Specific Knowledge”

The latest blow for Bhattacharya in court came at the end of last month in a case out of Alberta, Canada. The legal proceedings centered around public health restrictions the province had imposed to address the spread of COVID and where statutory authority rested to enact such measures. While Court of King’s Bench Justice Barbara Romaine ultimately found that the restrictions had been unlawfully imposed, she had some choice words in her written opinion about the Stanford professor, who served as an expert witness for the applicants bringing the legal challenge.

Romaine pointed out major problems with Bhattacharya’s testimony that deeply undermined his credibility, including the basic fact that he “had little specific knowledge about the events and public health measures taken in Alberta.” 

She also noted that during cross-examination, “[h]e denied that his main expertise pre-Covid-19 was in financial issues as they relate to patient care and outcomes, but a list of his publications pre-2018 belied this denial.”

Romaine’s opinion paints an unflattering portrait of a man who has advised governors and even a president on public health policy. It portrays him as someone incapable of acknowledging his own errors—even when confronted with them. 

For example, in his written testimony, the professor claimed that flu deaths and COVID deaths were counted differently by the Canadian governmental agency Statistics Canada, resulting in the latter being overly inflated. During cross examination, however, Bhattacharya was confronted with a report from a senior mortality classification specialist with Statistics Canada contradicting his claim, and yet he was unmoved.

“[Bhattacharya] stubbornly refused to admit that his statement with respect to Statistic Canada method of counting Covid-19 deaths was inaccurate, suggesting that he would have to have a conversation with Ms. Wood before he would accept her opinion,” Romaine wrote. “Dr. Bhattacharya was reluctant to accept any evidence or opinion that may cast doubt on his opinions.”

At another point in his testimony, Bhattacharya had pointed to Sweden, which initially rejected broad public health measures in line with the recommendations of the Great Barrington Declaration, as a model of a strong pandemic response. When confronted with the fact that Alberta’s COVID mortality rate was a fraction of Sweden’s, the professor stated that an age-adjusted analysis was necessary to make the comparison. However, when asked if he had conducted such an analysis, he acknowledged that he had not.

In his testimony, Bhattacharya had also referenced a retracted article to justify his position, but as Romaine noted in her opinion, he failed to disclose the fact of its retraction until cross examined about it.

“He conceded that he [was] aware that the article had been retracted…on December 14, 2021, but he did not raise that fact until he was cross-examined on it,” she wrote.

Romaine ultimately came to the conclusion that Bhattacharya was “advancing a personal agenda,” explaining that his evidence "was contradictory with previous published opinions and as was not based on an analysis of events and health care initiatives as they actually unfolded in Alberta."

“Advancing a Personal Agenda”

The Alberta decision was not the first time a judge had made unflattering observations about Bhattacharya as an expert. In October 2021, for example, U.S. District Judge Waverly D. Crenshaw offered up harsh criticisms of Bhattacharya in his decision temporarily blocking Tennessee Gov. Bill Lee’s executive order to allow parents to opt their children out of school mask mandates on the grounds that it violated federal law. In fact, Romaine referenced Crenshaw’s statements about the professor in her ruling.

Bhattacharya had served as the key expert for the state of Tennessee, defending the order. The professor argued: 1) that children were at low risk from COVID; 2) that children were inefficient spreaders of the virus; 3) that no high-quality evidence existed supporting requiring children to wear masks; 4) that masking harms child learning and development. 

In his 36-page opinion, Crenshaw called Bhattacharya’s testimony “troubling and problematic for several reasons,” and explained that it was “replete with contradictions that undercut his credibility.” 

For example, to justify his position that masks were ineffective, Bhattacharya had cited a study out of Bangladesh. However, the study’s author, Dr. Jason Abaluck, testified that the professor reached the wrong conclusion about the findings. 

“Dr. Bhattacharya stressed that the absence of evidence is not the same as claiming evidence has ‘no impact.’ Yet, his opinions regarding the Bangladesh study clearly violate this scholarly principle,” Crenshaw wrote. “Dr. Bhattacharya concluded there was ‘no measured difference in hospitalization or mortality.’ But Dr. Abaluck credibly explained that the study, in fact, did not examine hospitalization or mortality because such data does not exist.”

Crenshaw ultimately concluded that “the court is not persuaded by, or confident in, Dr. Bhattacharya’s expert opinion,” noting that the professor had oversimplified the conclusions of the study, “suggesting he may have been apt to do so with other studies upon which he relied.”

“He offered opinions regarding the pediatric effects of masks on children, a discipline on which he admitted he was not qualified to speak,” Crenshaw wrote. “His demeanor and tone while testifying suggest that he is advancing a personal agenda. At this stage of the proceedings, the Court is simply unwilling to trust Dr. Bhattacharya."

“Outside the Mainstream Consensus”

Another October 2021 court ruling containing criticism of Bhattacharya cited by Romaine came out of Manitoba. The lawsuit, which was brought by a group of seven churches and three individuals, dealt with COVID restrictions imposed by the province, which they alleged interfered with their right to hold religious gatherings. Bhattacharya had served as an expert witness for the group.

In his opinion, Court of Queen’s Bench Chief Justice Glenn Joyal, did not mince words, writing that “questions can be and were raised respecting the weight that should attach to some of [Bhattacharya’s] opinions and views on the specific topics of immunology and virus spread,” noting the professor’s “absence of a more consistent and more specialized long-term academic focus and a more obviously rooted practical and clinical experience.”

Joyal wrote that “many of Dr. Bhattacharya’s opinions and prescriptions on the subject of the preferred and most effective public health responses to the pandemic fall outside the mainstream consensus that has developed amongst most medical and scientific experts and governments the world over.”

“No One Advocated For Any CDC Recommended Policy”

Two months earlier, in August 2021, a Florida judge in a lawsuit over an executive order by Gov. Ron DeSantis banning the imposition of school mask mandates, had noted that the state’s expert witnesses, which included Bhattacharya, represented a minority view in public health.

The case hinged on whether mask mandates were exempted under a newly passed Florida law giving parents ultimate authority to oversee issues related to their children’s health with exceptions for limited government actions that are necessary to protect public health. Bhattacharya, a longtime ally and adviser of DeSantis, had served as one expert witness for the state.

Leon County Circuit Judge John C. Cooper did not single out Bhattacharya in the opinion he delivered from the bench that DeSantis had exceeded his statutory authority. However, he did note that “the CDC, Centers for Disease Control, the American Academy of Pediatrics, and the wide majority of the medical and scientific community in this country recommend universal indoor masking for all schools, students, staff, teachers, and visitors to K through 12 schools, regardless of vaccination status and social distancing.”

Cooper pointed out that Bhattacharya had been a participant in a round table discussion DeSantis had organized to discuss school masking policies in late June 2021, and that “[n]o Round Table participant proposed a face mask mandate with no parental opt-out.”

“All participants present proposed or suggested a parental opt-out policy,” Cooper noted of the discussion,” he said. “No one advocated for any CDC recommended policy or guideline.”

He went on to add that the CDC, “by the overwhelming weight of evidence is considered the preeminent medical authority in this country about infectious diseases,” calling the body “the gold standard.”

Cooper’s ruling was ultimately reversed on appeal. The appellate court said it had "serious doubts" about legal issues in the case including standing and jurisdiction.

In response to our request for comment for this story, Bhattacharya would only say that “[w]ith lockdowns, school closures, and mandates, the Canadian and American ruling classes threw the working class under the bus.”