PAUL OFFIT: THE DISINGENUOUS SALESMAN

Many writers have “muses,” people who inspire us to write even when we think we have run out of things to say. In a rather demented way, my muse is Paul Offit, the Chief of Infectious Diseases at Children’s Hospital of Philadelphia. I would really like to ignore him, but any time he opens his mouth, he says something that cries out for comment.

Friday morning, C-Span 2 aired a live panel discussion at the conservative American Enterprise Institute featuring Dr. Offit. (The video of the forum may be viewed here.) The subject of the forum was Dr. Offit’s book, The Cutter Incident. Although I admit to not having actually read the book lest I do anything to further enrich Dr. O (perhaps if I see it at a rummage sale . . .), I previously have discussed the deficiencies of his thesis, which one does not need to read the book to understand given the author’s proclivity for self-promotion.

In short, Paul Offit believes that a health-care crisis arose out of an incident in the 1950s after an early polio vaccine, manufactured by Cutter Laboratories, not only failed to prevent polio in certain patients, but actually caused the patients to contract the disease. As is known to happen in America, even the America of the fifties, lawsuits resulted, and at least one case uniquely resulted in the imposition of liability without a showing of negligence on Cutter’s part.

In the paranoid view of Dr. Offit, that verdict against Cutter resulted in a scare among pharmaceutical companies who jumped out of the vaccine business in fear of the legal profession. In a previous post, I took a stab at explaining how the legal developments occurring after the Cutter verdict do not support an exodus from vaccine manufacturing. If there are less manufacturers in the vaccine business, it is far more likely to be the result of other market forces, particularly the consolidation of the industry. But Dr. Offit has never been one to let logic get in the way of selling his bill of goods.

And what is Dr. O selling? He wants to effect a wholesale change in public policy concerning vaccine injuries. In short, he is not satisfied with the present state of affairs in which the federal vaccine court acts as a speed bump on the way to seeking compensation for vaccine-related injuries. He doesn’t even want vaccine-court decisions to come from the special masters that now judge the cases. Dr. Offit wants a whole new decision-making process in which the question of liability is made solely by scientific and medical specialists (i.e., industry insiders). There would be no recourse to the ordinary court system. After all, in Paul Offit’s opinion, most of us are just too simple-minded to understand science.

There was nothing new about what Dr. O was selling this time, but he did pull a couple of new sales tools out of his sample case. His theme has always been fear, and primarily fear of the legal profession in particular. In his presentation before the American Enterprise Institute, Offit used two visual aids that say much about his pandering.

First, Dr. O wanted to make sure we all understood how evil the Cutter suits were to begin with, and the best means of illustrating that was to demonize the architect of the legal strategy. The plainitffs’ legal team had been led by the self-proclaimed “King of Torts,” Melvin Belli. As a self-respecting defense lawyer, I was not a big fan of Mr. Belli, but Offit’s ham-handed attempt to damn the message by damning the messenger was too much for even me. He decided to show a photograph of Mr. Belli. He could have chosen from hundreds of pictures of one of the most-photographed lawyers of all time, and many of the images from his later life would have depicted Belli’s flamboyant nature. But those would have made the lawyer appear clownish rather than evil, and evil was what Dr. O wanted to convey. So he showed a picture of Belli taken during one of his relatively rare forays into criminal law: his representation of Jack Ruby. The implicit message was that great harm was done to a noble cause by the defender of murderers.

The other visual aid Dr. O used was the recent full-page ad placed in USA Today, on behalf of Put Children First. Never mind that the ad criticized the CDC’s apparent stonewalling of the truth about a connection between thimerosal and the autism epidemic, rather than directly attacked the vaccine manufacturers. In Dr. Offit’s opinion, the ad could only have one purpose: poisoning the minds of any potential jurors in suits against vaccine manufacturers. (That opinion ignores the fact that the voir dire process in a jury trial would help to eliminate anyone who formed an opinion by reading an ad.) What was the basis for Offit’s opinion? Well it was obvious to Dr. O: the ad was placed by the same advertising agency that once worked with plaintiffs’ lawyers in breast-implant litigation. Puhleeze!!! Any good advertising agency is going to have a wide variety of clients. And some agencies are going to specialize in public-interest ads. That does not mean that every client they have will be allied. What one must look at is the identity of who is paying for the ad. In this case, it was J.B. Handley, who has not filed suit in either a district court or the vaccine court. He has no stake at all in any litigation.

In selling his goods, Dr. Offit relies on irrational fear rather than the inconvenient (for him) truth. But the fear he’s using is not the fear he really has. I suspect Dr. O is not so much afraid that the legal system won’t do the right thing as he is afraid that justice will actually be done.

I’m afraid too. I’m afraid that some people actually seem to be buying Paul Offit’s bill of goods.