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"Anthrax and Lawyers":

Interesting piece by Peter Huber in this week's Forbes magazine on efforts by the federal government to spur development and acquisition of an anthrax vaccine, "Anthrax and Lawyers." According to Huber, fears of product liability litigation have deterred major pharmaceutical companies from bidding to produce an anthrax vaccine and similar fears have forced efforts to distribute the vaccine through a regulatory command-and-control distribution system rather than a market distribution system.

One interesting point he makes that I hadn't previously considered is that the higher the vaccination rate, the lower the likelihood that terrorists will launch an antrax attack (because the damage will be smaller). Ex post it will then occur that administering the vaccine will have been unnecessary in light of those who inevitably will be harmed by it. This doesn't, of course, mean that we should administer the vaccine widely, which should be a matter of ex ante risk analysis. But it does raise an interesting question about precautions, side-effects, and ex post risk analysis, an issue that Huber seems to believe the products liability system is ill-equipped to process.

I wasn't familiar with all this, so I can't vouch for all the details of what Huber describes. But assuming it is true, it raises some interesting questions about the relationship between the products liability system and national security questions.

PatHMV (mail) (www):
This really isn't much of a different issue than regular vaccines. The more people who get the measles vaccine, the fewer people who will actually get the measles. If everybody but 1 person is vaccinated, then that 1 person should not get vaccinated, because there's no risk of him catching the measles from any other person, so the non-zero risk of harm from the vaccine is greater than the zero-risk of harm from measles.

But if 10 people or 100 or 1 million people don't get the vaccine, then it's a different calculus.

Really, vaccine liability is a risk which cries out for a workers compensation-like solution rather than a negligence/tort solution. We know in advance that there will be some adverse reactions to the vaccine, but it's good for society as a whole for everybody to be vaccinated. Those who reap the benefit of having the vaccine should pay just a little extra to compensate those who suffer the adverse reactions.
10.6.2006 4:53pm
Richard Aubrey (mail):
I talked to a doctor who said smallpox is a worse threat, since it can be spread from person to person. We haven't been doing smallpox vaccinations for more than twenty years, and that's about as long as they're good for. When most of the population was within the period when the vaccination was effective, those whose time was up were safe because they weren't going to be exposed.

The doctor said that, in his opinion, there would be no mass smallpox vaccination because the invariable side effects and their accompanying lawsuits would be too expensive for the companies to bear.
Stockpiling, say, 100,000,000 million doses in case smallpox showed up would be too expensive, since they probably wouldn't be used/purchased.
Perhaps we could have a no-liability trigger. Let's have a law or regulation that says when the administration announces that the disease in question has shown up and everybody should get poked, then no liability lawsuits will be allowed.
10.6.2006 5:02pm
Anderson (mail) (www):
"Anthrax and lawyers" ... there's a lawyer joke in there somewhere.

As for smallpox, isn't it surviving only in half a dozen lab samples worldwide? I wonder if al-Qaeda would find it easier to buy some smallpox from the Russians than some plutonium?
10.6.2006 5:35pm
Freddy Hill (mail):
This is reminiscent of the Y2K scare. In the years leading up to 1/1/2000, many thousands of programmers spent millions of hours shifting through billions of lines of programming code in order to "inoculate" critical computing systems against millenium bugs.

When "nothing" happened on that day, the public assumed that the whole thing was another overblown scare fueled by the media. The programmers went home, opened a beer, and remembered the old adage that doing a good programming job is like wetting your pants in a dark suit: It gives you a warm feeling but nobody notices.
10.6.2006 5:36pm
Molechaser:
Generally, lawsuits for liability for injury or death stemming from vaccination programs are not allowed except under the National Vaccine Injury Compensation Program, which sets up a no-fault compensation scheme administered by special masters in the Court of Federal Claims.

Currently, the anthrax vaccine is not listed among the vaccines eligible for the Program, but it could probably be added fairly quickly if a need were apparent. (I believe, although I am not certain, that adding or removing vaccines from the list eligible for the Program is up to the Secretary of Health and Human Services.)
10.6.2006 5:37pm
Steve:
Public health matters are typically best dealt with at a policy level, rather than by relying on the free market or the tort system. No news here.
10.6.2006 6:47pm
Luke 1152 (mail):
Peter Huber is just another tort reform propagandist.

Zero credibility.
10.6.2006 7:04pm
steveh2:
First, to reiterate what Luke 1152 said, Huber is pretty notorious for being anti-tort recovery, so whatever he reports must be taken with a chunk of salt.

Second, if vaccine manufacturers are relieved ab initio from tort liability, what incentive would they have to make sure that their product is safe?
10.6.2006 7:19pm
Lev:
"Anthrax and lawyers" ... there's a lawyer joke in there somewhere.

a solution and a problem
10.7.2006 3:32am
Public_Defender (mail):
The two earlier commenters were right--this cries out for a workers comp-like solution, and the National Vaccine Injury Compensation Program sounds like a good solution (although I don't know the details of the program).

What's interesting is that "tort-reformer" Huber apparently doesn't care that some people actually will get injured by this vaccine. ("Tort reform" usually means allowing people who cause injury to escape personal or corporate responsibility for their actions.)

The "bureaucrats, judges and lawyers" clearly do have a role, and it's not "clogging" the system. Their role is to efficiently get reasonable compensation to the few people who are hurt by a vaccine that makes us all safer. And I would guess that getting compensation to the injured would encourage people to use the vaccine.

The question is, why is Huber so hostile to people who get hurt by participating in a program that makes us all safer?
10.7.2006 6:24pm
Ted Frank (www):
why is Huber so hostile to people who get hurt by participating in a program that makes us all safer?

Because the fact of the matter is that the vast majority of people who bring suits for vaccine injuries aren't injured by vaccines at all, but are hoping to use the lottery-aspects of the litigation system for a jackpot. The pseudoscience over autism and vaccines is a good example.
10.9.2006 11:06am
Public_Defender (mail):
Because the fact of the matter is that the vast majority of people who bring suits for vaccine injuries aren't injured by vaccines at all, but are hoping to use the lottery-aspects of the litigation system for a jackpot. The pseudoscience over autism and vaccines is a good example.

What is your non-pseudo-science evidence that far more than 50% of Anthrax vaccine plaintiffs would be people 1) uninjured by vaccines who 2) just hoping for an undeserved windfall?

Even if that's true, the workers comp model would seem to work the best to make sure that real victims get reasonable recoveries. Unless, of course, you think that we all should benefit from the injuries of a few without giving those few some compensation.

In effect, the tort-reformers assert that a few plaintiffs have gotten unfair windfalls, therefore all corporations should get the unfair windfall of immunity from the consequences of their wrongful behavior. It's like saying that there have been a few wrongful convictions for rape and murder, therefore no one should be prosecuted for rape or murder.
10.9.2006 12:49pm
Ted Frank (www):
What is your non-pseudo-science evidence that far more than 50% of Anthrax vaccine plaintiffs would be people 1) uninjured by vaccines who 2) just hoping for an undeserved windfall?

The empirical experience that the vast majority of lawsuits against other vaccines are junk-science lawsuits blaming the vaccines for injuries they didn't cause.

If taxpayers want to fund a compensation scheme for legitimate vaccine injuries, that's their right. But the fact remains that the liability system is so inaccurate that it provides the wrong set of incentives, and results in vaccines that do far more benefit than harm being withheld from the market, and it's therefore better public policy to have vaccines and rare cases of uncompensated victims of vaccine than it is to have no vaccines and many more uncompensated victims of lack of vaccine.
10.10.2006 8:35am
Public_Defender (mail):
Question:

What is your non-pseudo-science evidence that far more than 50% of Anthrax vaccine plaintiffs would be people 1) uninjured by vaccines who 2) just hoping for an undeserved windfall?

Tort Reformer answer:

The empirical experience that the vast majority of lawsuits against other vaccines are junk-science lawsuits blaming the vaccines for injuries they didn't cause.


You make an assertion. I ask for evidence to back the assertion. You restate the assertion.

If taxpayers want to fund a compensation scheme for legitimate vaccine injuries, that's their right. But the fact remains that the liability system is so inaccurate that it provides the wrong set of incentives, and results in vaccines that do far more benefit than harm being withheld from the market, and it's therefore better public policy to have vaccines and rare cases of uncompensated victims of vaccine than it is to have no vaccines and many more uncompensated victims of lack of vaccine.

Why should the taxpayers fund it? It makes more sense to add it to the cost of the vaccine. That way, the people who benefit from the vaccine pay the people who are harmed by it. Of course, if you would prefer that the money come from a progressive income taxe, I'm all ears.
10.10.2006 8:17pm
Deoxy (mail):
"It makes more sense to add it to the cost of the vaccine."

Yes, but many (most?) vaccines have government-mandated price caps. Take a look into the flu-vaccine shortage of a coupl of years ago, and the factors what went into that, and you'll see.

And what other explanation do you have for all the large phsma companies opting out? They generally don't make vaccines AT ALL. The profit margin is close to 0, and that is easily wiped out just by th defense costs of one or two lawsuits, without even considering what happens if they lose.

What you propose (everyone pays, those who get hurt get some compensation from that) is fairly reasonable.

However:

It is ALSO reasonable to say that everyone benefits, and everyone takes the same risk (the risk of adverse reaction), and let the chips fall where they may. The cost in money is minor, the bnfit is significant, and the risk is small.

A generation ago (maybe 2, now), if you told somone that they could be innoculated against the flu, but there was a 1 in a million chance they'd get sick or a smaller chance that they'd die, they'd have said, "Give me 2!" without a moment's hesitation. The benefit is worth the risk, even without the chance of compensation.

Both of those are reasonable positions. Currently, we get something much worse than either of them - in our legal system's broken attempt at #1, we get (often) nothing, no vaccines at all (no new ones, anyway). Can we at least try option #2? I can't think of a way that we'd get less benefit than the current system...
10.11.2006 11:44am
Public_Defender (mail):
It is ALSO reasonable to say that everyone benefits, and everyone takes the same risk (the risk of adverse reaction), and let the chips fall where they may. The cost in money is minor, the bnfit is significant, and the risk is small.
The risk is small but possibly catastropic for the individuals involved.

The problem with trying to immunize anyone from liability is that when you close off one avenue, pressure will build on others. Unless you plan for a way to compensate the few injured by the vaccine, the makers will have to plan for the possibility that some other theory of liability will succeed.

Plus, lawmakers could change their mind and eliminate immunity if the Whitehouse and Congress changed parties. So, after making plans based on immunity, poof, it disappears and the drug makers are even more exposed.

The workers comp model makes the most sense. People get reasonable compensation, but don't have the chance for lottery recoveries. Everyone pays more for the vaccine, but everyone is protected in case they are one of the unlucky few.

I still think it's telling that Huber doesn't even consider the price that some will have to pay for the vaccine. You deal with the problem honestly, but many tort-reformers don't want to admit that their proposals would deny compensation to truly injured people..

Also, I'm not convinced that liability is the real reason no one wants to make vaccines. There is comparatively little profit in something that is taken once per person. The drug makers would rather put their money into another copycat statin that people will take every day for the rest of their lives (or at least until the patent runs out).
10.11.2006 4:30pm
Torts Anonymous (mail):
Vaccines are largely unprofitable because government is the single largest buyer for the ones with broad market appeal. Add that to the fact that for commone viruses, like flu, a new version must be produced each year, and there is only a three month selling window, and it's not surprising no one is in the business.

Ted's claim, per usual, don't stand up to any real scrutiny. I'd bet he can't point to even a dozen successful vaccine claims in the last decade outside the existing Vaccine Compensation Program.
10.13.2006 2:01am