TALLAHASSEE, Fla. — Nanometers, droplets and fogged glasses emerged as themes during the second day of testimony in a court case that challenges Gov. Ron DeSantis’ ban against school mask mandates.

What You Need To Know

  • Defense attorneys in the case challenging DeSantis mask order ask judge to dismiss the suit

  • Leon County judge doesn't dismiss suit but removes as plaintiffs parents who did not testify 
  • Plaintiffs' lawyers focus on defense witness' research, extent of relationship with governor

Tuesday’s developments in Florida’s 2nd Judicial Circuit also saw Judge John Cooper remove as plaintiffs parents who did not testify in the case brought by parents who live in Hillsborough, Pinellas, Orange, Miami-Dade, Palm Beach and Alachua counties.

After plaintiffs called their last witness on Tuesday, attorneys for DeSantis, Education Commissioner Richard Corcoran, the Florida Department of Education and the state Board of Education presented Cooper with seven reasons why they thought he should dismiss the case.

Among other things, they claimed that the four plaintiffs who did testify failed to provide evidence to support their case. They also argued that plaintiffs who failed to testify lacked so-called standing in the lawsuit.

Cooper agreed with only the second point and didn’t dismiss the case.

On another count, defense attorney Jared Burns argued that the governor’s executive order that prevents school districts from requiring masks in schools “provides a rational basis for prohibiting local school districts from infringing on parents’ fundamental rights, that right to control their children’s upbringing, and plaintiffs have not and cannot negate this rational basis.”

On that count, Cooper said he would wait to see how “the case progresses.”

In all, the judge denied five of the seven counts.

The case resumes via Zoom at 9:30 a.m. Wednesday.

Growing number of districts ignore order

The lawsuit claims the governor's order preventing school districts from requiring masks violates Florida’s constitution, which grants power to local school boards to operate, control and supervise classes within their districts.

DeSantis maintains that school districts should leave it up to parents to decide whether their children wear masks in classrooms. Most Florida districts have left the question of masks optional.

But in defiance of the governor’s order, school districts in Sarasota and Leon counties in recent days joined Hillsborough, Alachua, Broward, Miami-Dade and Palm Beach counties in requiring students to wear masks.

In response, officials at the State Board of Education, a panel appointed by the governor, threatened to withhold district funds from those school districts.

Witnesses for the plaintiffs focused Tuesday on what you’d expect: the efficacy of masks.

“Please wear a mask … because the data supports doing that,” pediatric pulmonologist Dr. Tony Kriseman said during testimony.

Dr. Mona Mangat, a St. Petersburg-based allergist and immunologist, testified that "the COVID particle is anywhere from 50 to 150 nanometers" and that "an N95 mask will keep out 95 percent of particles that are under 300 nanometers."

Defense expert calls masking 'child abuse'

Defense lawyers countered with witnesses who emphasized, largely via a July video, a lack of studies or evidence to support the efficacy of masks in preventing the spread of COVID-19.

Dr. Jay Bhattacharya, a Stanford University professor of medicine who focuses on research, told the court that masks perform better against COVID particles than against aerosols.

“The masks that are in traditional use tend to do poorly with aerosols … because they’re not held tightly around your cheeks,” he said. The fog that you get on your glasses “is an aerosol escaping,” he said.

Bhattacharya appeared in person and in a 50-minute video that the defense team showed in court.

The video highlighted DeSantis' July roundtable conversation that included Bhattacharya, other health care providers, a school official, a parent and a student. All agreed with DeSantis’ position on masks in school.

Dr. Mark McDonald, a Los Angeles-based clinical psychiatrist, said during the roundtable that he had seen hundreds of child clients “who were coughing, spitting … panic attacks, all from masks.”

“My position is simple,” McDonald says in the video in response to a question from DeSantis. “Masking children is child abuse. There is no evidence to support the contention that masks prevent the transmission of respiratory illness through viruses at all. And there’s substantial evidence that shows that children have been medically, physical and psychologically harmed by mandatory mask mandates.”

Once the video ended, plaintiffs’ attorneys turned their attention to Bhattacharya — asking him about his analysis of research conducted by others, about his familiarity with Florida COVID-19 data and about the extent of his relationship with DeSantis.

Bhattacharya told attorney Charles Gallagher that he’d spoken with DeSantis about a dozen times since last year. That included about four appearances on DeSantis panels.

He told Gallagher that he last spoke with the governor “I think at the beginning of August” about “the evidence on Regeneron, on the monoclonal antibodies, the efficacy of their use as to outpatient treatment for patients with COVID …”

Cross-examination of Bhattacharya will continue on Wednesday, along with testimony from additional defense witnesses.