Judge to rule on Crack'd Egg restaurant closure order next week

An Allegheny County Common Pleas Court judge said he will rule next week whether the Crack’d Egg restaurant in Brentwood ought to be shut down for failing to follow the state-mandated covid-19 mitigation orders requiring masks and social distancing.

Judge John McVay heard three days worth of testimony, followed by closing arguments Friday afternoon.

“I want to rule soon,” he said. “I do believe both parties need this resolved.”

The Allegheny County Health Department ordered the Brownsville Road restaurant to close in August after repeated complaints that the staff and customers there weren’t wearing masks.

On Thursday, owner Kimberly Waigand testified that she would never require masks, as it violates her customers’ freedoms. Her attorneys argue that neither the governor nor the county health department had the authority to implement the mitigation orders on their own, and instead they needed to be passed by a legislative body.

Crack’d Egg attorney Dennis Blackwell said during his closing argument that the governor’s emergency proclamation was effective for 90 days. After that, legislation was required, he said.

“When does the emergency end?” he said. “ It’s been a year. It’s not legal.”

On Friday, the restaurant’s attorneys called two witnesses as experts.

Kelly Miller, who received her emergency medical technician training at Harrisburg Area Community College and teaches Occupational Safety and Health Administration standards in the workplace, testified about the efficacy of face coverings.

County attorney Vijya Patel objected to Miller testifying as an expert, arguing that she did not have the education or experience to testify about covid-19 mitigation measures.

McVay allowed the testimony.

Miller testified that surgical masks were designed to protect a sterile surgical field, and that while they reduce the transmission of large particles, they do not protect against fine spray caused by coughing or sneezing.

Upon another objection, McVay summarized Miller’s testimony as, “respirators are better than N-95, are better than cloth masks.

“I haven’t heard anything I didn’t already sort of know,” the judge said.

On cross-examination, Patel asked, “Is it better to wear a mask with 60% protection rather than no mask at all?”

“Not for every person,” Miller answered. “Every person is different.”

Then, when pushed, she conceded, “The consensus is they may help. The key word there is ‘may.’ It doesn’t say that they do.”

The second expert called by the restaurant was James Lyons-Weiler, a former research scientist at University of Pittsburgh, who has a Ph.D. in ecology evolution and conservation biology.

Again, Patel objected to Lyons-Weiler being permitted to testify as an expert. She cited two separate cases before the U.S. Office of Federal Claims where his credibility was questioned.

“Mr. Lyons-Weiler’s willingness to opine upon a topic on which he seems to possess no qualifications renders suspect his credibility,” wrote Special Master Christian Moran in an October opinion.

Moran further wrote that Lyons-Weiler’s “selective reliance upon questionable source material” was a problem.

Other claims that Lyons-Weiler has published relative to covid-19 have been disputed twice by PolitiFact, a fact-checking site operated by the Poynter Institute.

One specifically related to claims he made regarding the rate of serious side effects of the Moderna vaccine.

The other referred to testimony Lyons-Weiler gave on Friday. He told Judge McVay, who agreed to permit his testimony, that the World Health Organization has admitted that their covid-19 testing provides a large number of false positive results. But, again, PolitiFact discounted that claim on Jan. 22.

Lyons-Weiler testified that studies show the false positive rate for covid-19 testing is between 11% and 38%.

“The assumption is that more testing is always better, and it’s clearly not,” he said. “We’re definitely overtesting. We’re shutting down parts of society based on false positives.

“Society’s reaction to covid, leading to lockdowns, leading to closure of businesses, has had devastating effects in many ways.”

On cross-examination, Patel asked if Lyons-Weiler had any medical background or expertise in immunology and epidemiology. He said he did not.

When asked if the Centers of Disease Control and Prevention had overestimated the case count and death toll from covid-19, Lyons-Weiler answered “absolutely.”

Referring to that testimony, Blackwell, the restaurant’s attorney, told the judge in his closing that the lawyers in his firm joke that there is no cancer or heart disease anymore because covid-19 is so often ruled the cause of death.

“There’s comorbidity here,” he said. “These people may have been sick and were going to die anyway. The numbers are inflated.”