Wednesday, November 09, 2005

HERE WE GO AGAIN

I suppose I should be grateful to Paul Offit. It seems that any time I start to worry that I won’t be able to think of anything to write about in this blog, Dr. O goes and says something that cries out for a response. Well, he’s done it again.

Not too long ago I posted my thoughts on Dr. Offit’s paranoia about the American legal system. Once again, he has seen fit to pontificate on that subject, and once again he shows just how little he knows about the law and how little he thinks of lay people.

In an editorial called “Vaccine Courts,” published in the Long Beach Press Telegram, Dr. Offit discusses why he thinks the so-called “vaccine court,” which is really part of the United States Court of Claims, is far superior to the court system to which any other defendant would be subjected. And he does it in the most irrational manner.

Dr. Offit devotes the first six paragraphs (of a 16 paragraph article) to an absurd comparison between the American court system and the Instant Replay system used by referees in the National Football League. In Dr. O’s opinion, submitting cases against vaccine manufacturers to civil juries is akin to submitting instant replay decisions to 12 non-football fans.

The first reaction to a comparison between a foot ball game and a serious matter concerning the legal rights of our children is to take offense, but it’s really just Dr. O’s rather clumsy way of saying he too considers legal proceedings to be serious:
Few football fans would accept this. Yet we're perfectly willing to accept this scenario when it comes to complex questions about pharmaceutical products and medical wrongdoing. Jurors, without any knowledge in these fields, are specifically asked to determine their validity. They often explain their verdicts by first saying ‘‘The science was way over my head, but ...”

For a guy who supposedly doesn’t become involved as an expert witness, Dr. Offit seems to think he knows what happens with jurors. With all due respect, Doc, I think I have a little better idea.

For over 20 years, I have litigated civil cases, almost exclusively defending corporations and insurance companies. Most of those cases have involved technical evidence of one sort or another, including issues of medical causation, engineering, and various scientific fields. Customarily, after a verdict is rendered, informal discussions tend to spring up between lawyers and jurors in the courthouse hallways. The lawyers like to hear what they did right and what they did wrong, and the jurors always have questions about those little things that can’t come out in the courtroom. Not once have I heard jurors declare after a trial that the technical information was over their heads. Rather, what I usually hear is gratitude that the evidence was presented in such a way that they were able to understand the subject; they genuinely appreciate having learned something.

Another thing jurors appreciate is someone who does not talk down to them or patronize them. People always want to know about courtroom tricks; what successful litigators know is that there are no “tricks.” There is just careful preparation. That includes assuming the people on the jury will understand a technical explanation that is clearly expressed, and then mapping out an easily-understandable presentation. It also means retaining an expert witness who not only understands the field, but can communicate that understanding by neither talking over juror’s heads nor talking down to them. Most lawyers who complain that “jurors are too stupid to get it” are merely trying to deflect attention from their own laziness.

Doc Offit’s football analogy misses the mark. In a courtroom, we don’t bring in 12 people who know nothing and expect them to make a decision without guidance. The situation is more akin to watching the replay with able commentators telling us why the ruling on the field should be upheld or overturned.

Jurors have a judge to guide them in applicable legal principles, and expert witnesses are used to guide them in technical areas. In admitting expert testimony, courts are guided by what has come to be known as the Daubert rule to keep “junk science” out of the courtroom, a process which involves the expert showing that his opinion was derived in a scientifically acceptable manner before the jury ever sees the witness.

That is not to say that miscarriages of justice do not occur, but they are not as common as many people seem to think, and those ridiculous jury verdicts the press loves to report are more often than not reversed by the trial court or the court of appeal. In general, however, referring disputes to the common wisdom of 12 (or sometimes six) disinterested (which is not the same as “uninterested”) individuals works quite well.

The whole idea of the jury system is to bring in people from a broad cross-section of our society, and choose a group of 12 who can take a fresh look at a dispute. Over 20 years of practice has left me jaded and cynical about many aspects of the American legal system, but not about the role of the jury in that system. That’s because those 12 people are rarely jaded and cynical when they step into the courtroom and take their seats in the jury box. Most are eager to serve and do their best to learn about why a dispute exists, and what can be done to resolve the dispute. In short, jurors listen. A special master, a magistrate, or even the finest judge, on the other hand, is far more likely to have formed a definite opinion before formal evidence is presented. The more specialized the tribunal, the more likely the fact finder is to have formed a premature opinion.

And that brings us to “Vaccine Court.” Vaccine Court operates as part of the United States Court of Claims, which ordinarily handles claims arising out of government actions. Before a claim can be brought against a vaccine manufacturer in a state or federal district court, the plaintiff must first file his/her claim in Vaccine Court.

The selling point for the creation of Vaccine Court was that it would handle the claims more quickly than most courts. Of course, “quickly” can be a relative term. And “quickly” is not always the right thing. The “Master Autism Petition” in Vaccine Court is now in a bit of a holding pattern, which will hopefully allow the science of the controversy to get a little more settled. A more-settled science in this case should make true justice more possible, at least in theory. But justice always becomes problematic when you put it into the hands of an elite group.

Almost every commercial endeavor one can undertake in this world carries with it the risk that one may be sued for a bad outcome. It is simply part of the cost of doing business. Sometimes, groups with very good lobbyists get a little extra protection. For example, here in Louisiana (generally considered a plaintiff-friendly state) before a patient can sue his/her doctor for medical malpractice, the claimant must first file a claim with a state agency. That claim is heard by a panel of three physicians, with an attorney guiding them. Even if the panel determines that there was no malpractice, the plaintiff can still file an ordinary suit. Plaintiff lawyers refer to the panel as a “speed bump.”

Vaccine Court is also a speed bump. If that body determines there is a valid claim, an award is made. If the plaintiff is dissatisfied, an ordinary suit can be filed. That is, a suit can be filed if the plaintiffs and their attorney still have the money and fortitude to fight a defendant who, to that point, has not incurred one penny of cost in the fight.

That’s right. In Vaccine Court, the plaintiff is technically suing the government, so government lawyers vigorously defend the claim at taxpayer expense. And where does the money come from if the Vaccine Court makes an award? It comes from a fund that was created by per-dose taxes on vaccines, a cost that was passed on to the patients who received the shots.

In his editorial, Dr. Offit doesn’t directly describe all the current legislative moves by which the industry with the sweetest immunity deal ever seeks to throw a little more honey into their jar. He simply mentions that it makes sense to have flu shots included “in advance of the next pandemic.” But the tone of his writing makes it clear that, like some others, Paul Offit would be very happy to see Vaccine Court become the only avenue of available “justice.”

Paul Offit is ready to discard over 700 years of legal tradition because he thinks only doctors are intelligent enough to understand science. His arrogance is breathtaking.

12 Comments:

Blogger Anne said...

Be that as it may, the claimants in the Omnibus Autism Proceeding in the U.S. Court of Claims (there are 5,000+ of them, if I recall correctly) are now free to prosecute their civil actions in other courts because the Vaccine Court didn't decide the claims within the prescribed time limit.

So anyone who wants to present their case to a jury can now go for it.

But they're not. Instead, they are *staying* in Vaccine Court.

I don't know about Louisiana, but here in California plaintiffs are discouraged from filing cases and letting them sit there until the evidence develops. The plaintiff would have the case involuntarily dismissed for failure to prosecute. Likewise I can't imagine going in front of a U.S. District Court Judge and asking if my case could be put on hold because there isn't enough evidence to prove it yet, but more studies are underway, so maybe something will turn up.
No way. Somebody would file a motion for Rule 11 sanctions.

I think Vaccine Court must have something to offer or else those thousands of claimants would be so out of there.

11/10/05, 6:22 PM  
Blogger Wade Rankin said...

Anne,

I do not totally disagree with you. I think Vaccine Court serves valid interests for both sides, including more flexibility in cases where the science is not complete. For many people, waiting for the science of causation to be definitive means having claims extinguished by the statute of limitations.

My disagreement with Dr. Offit is not over whether we should have a Vaccine Court; that is a public policy question that has already been answered by Congress. My disagreement concerns whether Vaccine Court should be the ONLY game in town, a notion that offends traditional notions of due process. There is simply no valid argument for taking that route.

Dr. Offit is doing nothing more than perpetuating a mythology about runaway juries that has very little basis in fact. And unfortunately, Dr. Offit is not alone; the press for years has fed the public with stories about outrageous verdicts, but never gets around to reporting how those verdicts were overturned either by the trial judge granting a new trial or judgment notwithstanding the verdict or a reversal by the court of appeal.

Some venues are more liberal than others. That liberalism tends to become legend because losing defense lawyers (and, once again, I AM a defense lawyer) want to blame someone else for their lack of preparation. So they help to create the mythology that the press and people like Dr. Offit feed off of. That mythology can sometimes take on very ugly racist or class-based overtones.

The truth is that jury awards from liberal and conservative venues take their places at the ends of a relatively narrow scale, a fact that has to be taken into account when evaluating a claim for possible settlement. The real question in any suit is liability, and both liberal and conservative venues react the same way. The side with the stronger evidence wins.

As I tried to say in my post -- and you haven’t stated any disagreement with this point, Anne -- jurors are rarely as stupid as Dr. Offit seems to believe. Any watering down of the fundamental right to have a jury determine the outcome of a legal dispute is just plain wrong.

The real motivation behind the industry’s desire to keep things in Vaccine Court is the fact that they will not bear any of the cost of a judgment in favor of a successful claimant. Instead, that is paid for through taxes passed on to the patients who are vaccinated. I hate to sound like a (gulp!) plaintiff lawyer (ugh!!!), but one of the values of our tort system is it imposes a penalty for persons or entities who fail to act responsibly. Giving an industry a free ride invites a lack of caution on the industry’s part. And can any of us think of an industry that needs to exercise caution?

11/10/05, 10:51 PM  
Blogger Anne said...

Ironically, Wade, the same argument about where the money for the awards comes from fuels tort reform attempts too. The cost of large jury verdicts gets passed to the consumer, etc. They get paid by insurance anyway, and we all take the hit in our premiums. Blah blah blah, who cares.

I'm against this tort reform stuff; 700 years of legal tradition and 300 dollars an hour make me right. When we're on the defense side it's even sweeter because we get paid even if we lose, and our bills are just a normal cost of doing business for the liability carriers. Jury trials are big money makers for us. However, very few cases ever get that far, more's the pity.

And one more thing. Forget Vaccine Court, what about California's Medical Injury Compensation Reform Act? Check this out -- if you sue a doctor for medical malpractice, your general damages are limited to $250K and you don't even get your medical expenses if they were covered by your health plan.

So, for example, if somebody's child died during a dangerous experimental procedure and I brought suit against the doctor on their behalf, I could only get them up to $250K. Even after a jury trial! Oh, and my fee would be limited, too -- I could only take 25% of any amount over $50,000. How do you like that? Do you call that fair? I don't! Do you know how small my fee would be compared to the defense lawyer's fee? Even if I won the case? Doesn't my client have a fundamental right to recover all damages and give me 40% of it? Sheesh. It's a good thing I never practice personal injury law!

And all this happened because the insurance industry (which for all I know is engaged in a secret conspiracy with Paul Offit; nobody has ever proved that they aren't) convinced a bunch of legislators that runaway jury verdicts were making their medical malpractice products too expensive!

Oops, did I just say all that out loud? Um, I meant, yeah, Paul Offit sucks, he hates juries and is an enemy of the American legal system, and therefore an enemy of America. He thinks jurors are riff raff, which makes him an enemy of the American people! Yeah, he's probably, you know, some kind of terrorist. A guy like that probably poisons babies just to cut down the jury pool. Hey, nobody has ever proved that he doesn't.

11/14/05, 11:20 PM  
Blogger Wade Rankin said...

Gee, Anne. Do I detect a subtle note of sarcasm. First of all, where are you that the defense lawyers are making 300 per? Damn, just tell me and I am so there. I'll even endure another bar exam.

Unfortunately, where I am, a good plaintiff lawyer (and "good" is most definitely a relative term) can make a LOT more than a great defense lawyer.

I'm not against tort reform. Here in Louisiana, we had some pretty good examples of tort reform get passed in our Legislature a few years back, including a virtual repeal of what had been the most liberal strict liability laws in the nation, and the institution of a very sensible products-liability act. None of those instances of tort reform have involved taking away the right to have an otherwise eligible case heard by a jury.

Like I've said before, I'm not against a Vaccine Court per se, but I am against it being the only tribunal because then the only finders of fact are going to likely have preexisting opinions. It matters not to me whether those preexisting opinions result from financial interests or from honestly held beliefs. Litigants deserve to have the facts in their cases determined by a disinterested jury if that is their wish. That's the way it is in any other species of litigation. Why should a vaccine suit be any different? And please don't tell me vaccine cases are too complicated. I've been a part of many trials that presented complex medical, scientific, or engineering questions to lay jurors,and they have all been quite capable of understanding a clear presentation.

Your contention that it's all about the money is off the mark. If the case ain't good, the money won't be there no matter if the fact finder is a jury, a judge, or a "special master." As was told to me by the old plaintiff lawyer I clerked for in law school (an experience that convinced me my future was in defense law), "you can't turn lead into gold." Despite practicing in what is reputed to be a plaintiffs' paradise, Orleans Parish, he almost never asked for a jury, because he knew that jurors were pretty good at telling the difference between lead and gold. Unfortunately, he was very good at mining lead, so he always went with a bench trial, figuring that he was more likely to get the benefit of the doubt from a judge who was likely a little jaded by the whole process.

Yes, Paul Offit offends me with his elitest notion that jurors are too dumb to get it, just as he offends me with his notion that parents just don't understand the science behind this problem.

11/14/05, 11:55 PM  
Blogger Anne said...

No, I was kidding. I do agree with you about juries. I like 'em. In all candor, though, most of my clients through the years, who have been non-human entities, prefer a bench trial with a knowledgeable judge. It doesn't offend me; it's more efficient.

My point was that we lawyers sometimes sound a little arrogant ourselves when we have no right to be.

Anne

11/15/05, 9:20 AM  
Blogger Wade Rankin said...

I fear I may have proved Anne's last point about arrogance among lawyers by misreading her humor. I usually do a better job of keeping my arrogance in check, and I shall try to do better.

Anne does make some valid points, and,yes, a few (but not most) of my non-human clients prefer judge trials. I usually try to talk them out of it, at least in the beginning of litigation, because you never know if the case will be moved from that great judge you drew to another, less-friendly judge.

While the process may be more efficient with a judge, I'm not sure it's better.

11/15/05, 8:55 PM  
Blogger Anne said...

"Liability Protection is a Legal Condom that Allows the Rape of Our Children
for Profit "
-Lenny Schafer

Wade, my man. I hate to admit it, but Lenny Schafer has me beat in the absurdity contest.

Go ahead, picture it ... the big, hairy penetrating member of big pharma raping our children while wearing liability protection.

Lenny, what a guy.

11/17/05, 10:37 PM  
Blogger Wade Rankin said...

Although I might have chosen a different image, I think Lenny's point is pretty well-taken. Vaccine manufacturers will have no incentive to care about the safety of our children if there are no consequences for their negligence.

11/18/05, 10:53 AM  
Blogger JP said...

I think Offit's main point - that juries are sometimes swayed by scientific evidence that goes over their heads - has some validity.

I think a big, and underserved problem, is that that judges are supposed to ensure that parties use credible scientific experts. (as per, I believe, Daubert vs. Dow) However, I still contend that there's a lot of pseudoscience and/or unsettled science that gets presented as immutable facts in court.

I mean, let's get real. The science surrounding the thimerosal-autism issue is pretty complicated and controversial. If it's challenging to educated people like ourselves (I consider myself marginally educated, even with my journalism degree) imagine what it is to someone without a strong background in science. This isn't to say that people are "stupid", it's to say that with a subject like this the science is inordinately complex. And it's easy to get it muddled with "experts" touting theories that have little scientific credibility.

I, for one, like the idea of vaccine court, but I think the actual results have left a lot to be desired. Legitimate cases take too long to get settled. I think we need to ensure that the intent of that legislation (that children who suffer catastrophic reactions to vaccines are appropriately compensated) is upheld. Cases that can't be resolved in vaccine court have the option of being resolved in civil court, but that should be held out as "last resort".

11/22/05, 11:10 AM  
Blogger Wade Rankin said...

JP,

First, Daubert is not geared to shield juries form marginal experts; rather that inquiry goes to the method by which the expert’s opinion was derived (i.e., did the expert use the scientific method in an acceptable manner). The court doesn’t even reach that inquiry if the witness lacks sufficient qualifications to express an expert opinion.

Can you give me an example you may be thinking of regarding “pseudoscience and/or unsettled science [getting] presented as immutable facts in court.” Not only does any scientific presentation of evidence have to get past the judge, it must also stand up to cross-examination and the presentation of an opposing expert. I’d hardly call that “immutable.” Finally, courts of appeal may have the final say in the matter. Although I understand and agree that the system is far from perfect, I think the courts generally do a pretty good job of keeping junk science out of the courtroom. If you can give me an example of what you mean, I might be able to better respond.

I don’t disagree too much with your thoughts on Vaccine Court. The problem is that Dr. Offit implies and Dr. Frist pretty much says that Vaccine Court should be the ONLY option. Although this argument is based on a distrust of the jury system, I don’t think that is the real issue. My posts on this subject are intended primarily to show the fallacy of that argument, but the real issue is that keeping all cases in Vaccine Court means the manufacturers will not pay out one penny in either defense or indemnity costs. It is the sweetest deal that any industry in this country gets. Given your support for the vaccination program, I might assume that you would argue that the industry’s importance to the health of all Americans warrants that special treatment. I would instead argue that the stakes are so high whenever one of their products is injected into a child that safety must be paramount.

No matter how many reassurances the manufacturers give about how seriously they take product safety, the bad joke that comprises the only “safety studies” the industry ever performed on thimerosal (or at least the only ones they have ever admitted performing) shows that we need more than solemn reassurances. The best incentive for safety I know is to make a disregard for safety too costly.

11/22/05, 2:51 PM  
Blogger JP said...

Wade,

Trust me, I am no huge fan of Big Pharma. But I think with regards to vaccines, they've gotten it right a whole lot more than they've gotten it wrong.

Clearly, the federal government thought enough of the vaccine program to give pharmaceutical companies substantial liability protection. (Of course, I could also argue they then shot themsleves in the foot with the well-intentioned by competitive-draining VFC program, but I digress.) I don't think this was a case of Big Pharma "getting their way" (there are other large business sectors that have tried and failed to get increased liability protection) but rather an understanding that drug companies were scared - justly or not - to produce vaccines for fear of liability. And the federal government's response was to give them some protection, because they felt it was in the interests of the public.

Of course, that's the pollyanna-ish view, I admit. The answer is likely somewhere closer to the middle. But the reality is that if we are to mandate (at some level) vaccine programs in this country, we need to compensate the unfortunate few who suffer as a result. That compensation has to be swift and just.

11/22/05, 8:38 PM  
Blogger Wade Rankin said...

JP,

This thread is getting a little moldy, but a reasonably expressed comment deserves a reply. I genuinely appreciate the tone of your comment, but I think it was a little off-point.

The point is not whether vaccine manufacturers have gotten it right more often than they have gotten it wrong. When a potentially harmful product’s use is virtually mandated, there is no wiggle room; the manufacturer must take every precaution to get it right.

I have represented products-liability defendants, including some whose products arguably have as much social utility as vaccines. No other class of manufacturer, including those in other medical technologies, gets the level of protection afforded vaccine manufacturers. Is that a recognition of the value of the vaccine program, a function of having the most powerful lobby in Washington these days, or a combination of both? It makes for an interesting but useless debate.

I accept that Vaccine Court was created as a valid exercise of social policy making by Congress. Stepping back from my personal position, I can even see that the program has merit. But expanding the protection afforded the industry, as is being discussed now, to eliminate any other means of redress is wrong. That move would not only deprive claimants of the right to a jury trial (and we can debate that one for years and never agree), but it would also result in the complete indemnification of vaccine manufacturers without exception. In other words, making Vaccine Court the only game in town will virtually eliminate any economic incentive for vaccine manufacturers to “get it right.”

Finally, I must admit that you put a smile on my face when I read that you (the owner of www.supportvaccinationtion.org) are “no huge fan of Big Pharma.” Well, you are at least a huge fan of one of their products.

11/23/05, 10:09 AM  

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