Legal Matters, Briefly

I apologize that this post is not really a review of Dr. Offit's book (I don't know how your Monday has been going but mine has included a boy with a bad cold who had to stay home resulting in immediate rearrangement of my schedule of classes etc., and my needing to meet the deadline for an important document). Much of the exchange here at the Science Blogs Book Club has been about science, vaccines, and the media's role in keeping public discussions of autism overly focused on vaccines. Dr. Offit also devotes a chapter of Autism's False Prophets: Bad Science, Risky Medicine, and the Search for a Cure to legal matters, and specifically to "science in court" (the title of the book's 8th chapter). Just today I was glad to have his book for background about the National Childhood Vaccine Injury Compensation Act (VICP). Another book, Do Vaccines Cause That?!: A Guide for Evaluating Vaccine Safety Concerns, by Martin G. Myers, M.D., and Diego Pineda has also been of use to me (as a non-scientist) writing about a ruling by the Georgia Supreme Court that allows a family to proceed with a civil lawsuit against vaccine maker American Home Products; more details here.

And come to think of it, here is a reason why I think antivaccinationists really need to read Dr. Offit's new book. Autism's False Prophets has a proverbial wealth of information about vaccines and their history and the whole vaccine-autism issue. Antivaccinationists should be grateful that Dr. Offit has put all that---all that evidence---into one book that they can so to speak "rip apart."

But they have to open the cover first.

For much more extensive coverage of vaccine-injury litigation, see Kathleen Seidel's blog, the many postings at Left Brain/Right Brain, and Orac at Respectful Insolence.

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Anti-vaxers often say that they would rather bring their vaccine injury claims in state court, and Dr. Offit took them at face value when he said, in Chapter 8 of his book, that Omnibus Autism petitioners would much rather have argued their cases in state court. But the majority of the Omnibus Autism petitioners in fact *could have* taken their cases to state court, because their claims weren't decided within 240 days, but they elected to stay in the vaccine program instead. "Vaccine court" seems to be the preferred forum for these claimants, so I don't know how big of a victory the Ferrari case really is, except maybe for people who missed the vaccine program statute of limitations.

After a quick look at the Ferrari decision, available here, I think that the Georgia Supreme Court's reading of the vaccine injury act's preemption language was reasonable. The vaccine injury act preempts claims for injuries resulting from "side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." I think that the construction of this language as not including a claim based on an allegedly avoidable side effect was probably consistent with the legislative intent behind the preemption clause of the vaccine injury act.

The Ferrari decision opens up a forum for vaccine litigants in Georgia, but it doesn't mean that the scientific evidence that the plaintiffs want to put in will actually get to the jury. Georgia's rule on admissibility of expert testimony is based on the federal rule, so the judge can apply the Daubert standard to keep unreliable expert testimony away from the jury. As we saw in Kathleen Seidel's article on the Maryland case of Blackwell v. Sigma Aldrich, state court judges can also recognize unqualified "experts" and junk science, and exclude them from a jury's consideration.

Kristina, thanks for linking to my site, and Anne, thanks for the link to Ferrari, I hadn't had a chance to read it yet. You can bet there'll be another big Daubert hearing coming up; the Blackwell hearing ran a full two weeks.

Certainly Vaccine Court is the preferred forum for clients with marginal claims, since there's next to no litigative risk involved; an attorney in a VICP case is likely to get paid regardless of whether a client is eligible for compensation. The court generally imputes good faith to petitioners, and this is generally warranted; from my reading of hundreds of VICP decisions, it seems that most sincerely believe that they or their children have been harmed by vaccines. This belief is cultivated and perpetuated by attorney- and plaintiff-led groups such as National Vaccine (Mis)Information Center, SafeMinds and Coalition for Mercury-Free Drugs, which publicly exaggerate the risks of vaccines, the prevalence of vaccine-injury, and the likelihood that chronic conditions of uncertain etiology are the consequence of "long-onset" vaccine reactions.

Whether a claim has a "reasonable basis" is another matter. As can be seen from the recent decision in Barber v. HHS, a case that starts reasonably may become unreasonable if the petitioner (or in this case, the petioner's expert) fails to acknowledge valid evidence simply because it fails to advance his or her claim.