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.