Before I joined the corporate world, I spent many years as a litigator. One of my most frustrating experiences in the courtroom came when a judge (who was well past his prime) allowed the other side’s expert testify in technical areas well beyond his expertise. I have much the same reaction whenever I hear Paul Offit speak.
Dr. Offit, of course, is a specialist in infectious diseases. My understanding is that he does not have a private practice. Indeed, he would have almost no time for it. He spends his time working on the development of new vaccines, acting as a spokesman for the vaccine industry, writing books, and generally holding himself out as an expert in a variety of fields regardless of any expertise he may have in those fields.
Reportedly, he is presently at work on a book about autism, although I doubt he has ever treated a single patient for autism. And without really understanding what autism is, does he really have the qualifications to expound on what may trigger ASD?
Of course, Doc O has never let a little thing like lack of qualifications stop him before. It is his repeated pronouncements on the deficiency of the American legal system ⎯ an area I know a little about ⎯ that drives me crazy.
Doc O recently presented at a teleconference for pediatricians sponsored by the Pennsylvania Immunization Education Program. It’s
now available on-line. The subject was how to reassure parents that they should continue to rigidly adhere to the official vaccine schedule in the post-
Poling era.
Although he spent time discussing his opinions on the theoretical dangers of the number of vaccines (or in Offit’s opinion, the absence of any potential danger at all), most of the presentation was devoted to a hysterical rant about the manner in which the legal system deals with cases alleging vaccine damage.
Keep in mind that Doc O was speaking as an expert in public policy and the legal system, yet he insisted on parading his ignorance of that system by continually referring to the “decision” made by “the court” in the
Poling matter. There was no decision by the court; there was a concession by the attorneys representing the government (i.e., the defense), which has paved the way for the Poling family to recover damages (an award has not yet been determined). Offit repeated that mischaracterization of what happened several times, to the point of specifically criticizing the special masters (attorneys appointed by the Court of Claims to hear the matter in much the same way as a judge does and to make findings of fact). Finally, when the floor was opened for questions, one of the doctors listening corrected Doc O, the “expert” brushed aside the distinction as mere “legal language” and pronounced that it was a “decision” because they had to decide to concede. Huh?!?!
Offit’s believes the vaccine compensation system once served a purpose, but has now gone into dangerous turf because the court is having to address claims that do not fit neatly into the vaccine compensation injury table. Parenthetically, I have to admit to getting the giggles when I heard Doc O extol the virtues of the table, which in his own words, “includes injuries, which clearly have been shown either biologically or epidemiologically to be caused by vaccines.” In criticizing the hypothesis of a vaccine connection to ASD, Offit has relied almost exclusively on epidemiology, especially since the mounting biological evidence does not support his beliefs.
In any event, Doc O’s thesis is that we shouldn’t have lawyers making medical decisions. Indeed, there is always a danger of empowering courts of law to determine broad scientific or technical issues. Nobody should believe that the issue will be decided simply because a legal decision is made. The only thing that can happen is that the court will attempt (or not, if one remains skeptical) to reach a just decision based on an understanding of the present state of scientific knowledge. The court’s understanding, of course, may be right or wrong.
The answer, though, is not to take the decision-making power away from the courts. That is the answer Paul Offit clearly wants: to take the issue away from courts of law altogether, and hand such cases over to some kind of body run by the mainstream medical community. That solution puts us on the slippery slope of removing the power entrusted by the founding fathers to the judiciary simply because the subject matter is technical.
There is no doubt that the system is a mess. By mandating the filing of claims within a short temporal window, we are seeing the Court of Claims trying to make sense of a scientific question that is far from settled. There s no easy solution. The interests of potential claimants, dealing with a relatively short period of limitations, have to be balanced against the interest of potential defendants (the industry and/or the Vaccine Compensation Fund) in a reasonably certain period in which they must face liability. But Dr. Offit advocates a lack of balance.
The debate as to how we fix the system is legitimate, and it is important. All interested parties deserve to be heard, but having a spokesman like Paul Offit does nothing to foster a reasonable discussion.
Dr. Offit, in addition to apparently not understanding the most fundamental aspects of the legal system (
i.e., the difference between advocates and the finders of fact), continually resorts to utilizing the plaintiffs’ bar as a bogeyman to scare the bejeesus out of us all. He’s done it before in his well-accepted (an acceptance I don’t understand) book on
the “Cutter Incident,” in which he deconstructs a very bad court decision from a few decades ago, and then waves it around as a cautionary tale while ignoring some very real corrections the courts took upon themselves.
He’s still using the same scare tactics. In the recent presentation to the pediatricians in Pennsylvania, Doc O said one of the dangers of the
Poling “decision” is that personal injury lawyers will now be alerted ” to an area that might become “lucrative,” and they’ll take their claims to state courts.
Now, I am not a big fan of the plaintiffs’ bar. I’ve spent my professional life fighting those guys. I think I know pretty well what motivates them, and they’re not going to see a defense concession in a single case as being a green light on the road to riches. Those guys want easier pickings with a lot less waiting time. That’s why the vast majority of plaintiff lawyers who jumped on the bandwagon jumped off a long time ago.
But using scare tactics and misrepresenting his opponent’s position is what Paul Offit does best. He is finally acknowledging that the debate is broader than just the MMR or just thimerosal. But he does so by sneering about “shifting hypotheses.” Maybe I’m just a layman when it comes to science, but I thought the entire idea was to keep exploring until you find the truth. What we seem to be finding is that neither the MMR hypothesis nor the thimerosal hypothesis were wrong per se, but neither were right in an of themselves. Both appear to be part of a broader process that we are only starting to understand. Understanding the problem, however, may not be in Paul Offit’s interest.
My overriding interest in this question is the health and wellbeing of my son. That interest dictates that I constantly reexamine the validity of what I believe the truth to be, so that I may help my child. Paul Offit’s interest in seeing that the status quo is not disturbed seems to be a very curious approach for someone who constantly preaches science and the scientific method. Science, like the law, is not meant to be static. Our understanding must evolve as we continue to learn.
In a casual conversation, a pediatrician once told us that he really didn’t have the time to take a good look at issues like the potential connection between vaccination and the triggering of autism. Rather, he simply adopted the position of the AAP as a default. And that’s the same attitude demonstrated by some of the doctors who asked participated in the recent Pennsylvania teleconference. They wanted to know when they could get a “tear sheet” of talking points. One pediatrician bemoaned having to spend five minutes of uncompensated time whenever she was asked questions about vaccine safety. She said that Offit’s argument s would be convincing to “intelligent parents,” a comment which triggered a sarcastic, “yeah, good luck” from Doc O.
That’s the arrogance of Paul Offit. He refuses to use the words “intelligent” and “parents” in the same sentence. He refuses to acknowledge that lawyers and other laypersons are capable of understanding scientific explanations that come forth in a court of law. He refuses to acknowledge that he may not have a monopoly on “the truth.”
Paul Offit is an expert in the field of infectious diseases. Although one may disagree with his opinions in that field, he certainly deserves a respectful listen when he speaks on issues relating to his specialty. He is woefully ignorant, however, about autism, and he has demonstrated repeatedly a complete lack of understanding about the American legal system (which one would think is a lot easier to understand than infectious diseases). Why is it that he continually speaks as an expert on the issues he is least qualified to address.? Why is anyone taking this guy seriously?
ADDENDUM:After drafting this post, I found out that Paul Offit will be on a panel for the 2008 US Court of Federal Claims Judicial Conference. The session is entitled “Vaccine Compensation Under the Act: A Mix of Science and Policy?,” and it appears that Offit will be the only physician to participate. Could the conference coordinator not have done better?
