2011.03.05 Q'uo on Vaccines

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Parents whose children are hurt by vaccination

How do we arrive at that conclusion?  How do we know the harm was from the vaccine?  And if... as is likely the case... it turns out to be a combination of genetic, and environmental factors that make a child more susceptible to vaccine harm... how do we know how much was the genes, how much was the environment, and how much was the vaccine?

If we look at the lot number of the vaccine in question, and see that ten thousand doses of the vaccine were produced in the same lot.  And we also see that the 9999 other doses did not appear to result in an injury... then what basis is there to claim that the vaccine was the primary cause of the harm?

want to feel valued,

I would 100% agree, but who the heck feels valued in a courtroom?  I mean... it would be nice if people could get that sense of being valued when interacting with their own government.  But what does that have to do, specifically, with vaccines?

properly compensated,

Properly is a vague term.  Reimbursed for medical expenses and other tangible losses?  Sure.   Millions of dollars for their grief?  Why?  Why should people be "compensated" when something horrible happens in their lives?  What would this actually accomplish in terms of improving the situation to the benefit of all?  And even if people get something to "compensate" for their grief... how much should that really be?  Is 250K enough?  No?  1 million?  10 million?  A billion?  

You know... if I were a judge awarding compensation for grief in a vaccine injury case (and actually had the power to do so) here's what I would do.  I would take that money and put it into a trust, with the beneficiary being the harmed or deceased child.  I would appoint the parents as trustees, and direct them to use that money to fund further vaccine and safety research at public universities.  I would also (if possible) direct the public university receiving the funds to issue scholarships at par value, to be used by people who have been determined to have been harmed by vaccines.

Here is the (sad) reality of the situation.  When people are systematically rewarded for being victimized, it creates a sort of perverse incentive for people to not look out for themselves, to further their victim bias, and to even fabricate (consciously or unconsciously) victim narratives, in order to seek further compensation from the system.

Is this a reflection of our spiritual values?  Is this truly the world we want to create?  And is it working?

and be heard about their loss.

Yes, though again is the courtroom the proper venue for this?  Wouldn't it be better if a grieving parent were given, say, a year's worth of counseling with a trained psychologist, to help them process their grief?  And what would this actually cost?  $5K maybe $10K?  

Why don't we do this?  And why aren't the aggrieved asking for this?

I think the issue is that much of this revolves around parents who are 'ex-vaxxers' - they vaccinated and killed or maimed their child due to the vaccination, however unlikely - are not satisfied with the compensation process, and thus really genuinely seek to raise the issue online.

Because... unresolved grief?  Could this possibly be the real issue here?  I think likely so.  

Truly, if you believe the vaccination system is safe enough, then these parents are heroes, having sacrificed their children for the betterment of all.

Yes, I can see that.  For sure.  Yet- once again- what does this specifically have to do with vaccines?   Don't we equally treat our other heroes like dirt as well?  Our veterans get treated like dirt.  Our police officers?  Our teachers?  

Why do we- as a society- treat all of these people like dirt, and then turn around and fawn all over sports and movie stars?  Why do we even call them "stars"?  (HINT:  Could it be... rabidness?)

Are we- as a society- to place our value... our money... our time... upon the things that really matter?  The things that will make a difference?

Or are we more focused on an insane competition to determine who is the "biggest victim" or who is the "biggest loser" and then showering riches upon them?

And if its the latter, whose agenda does this serve?  Could it be... Russian social media trolls?

Are we really surprised they and their friends are outraged at such treatment and get rabid?

No, I don't think it should be that surprising at all.  Put perhaps what IS surprising is our failure to recognize rabidity as a manifestation of unresolved grief.  While also keeping in mind that many, many, people go through very deep and painful grieving processes without becoming rabid.  

Angry?  Yes.  Outraged?  Perhaps. Hostile?  No.  Entitled to fat cash settlements?  Definitely not.  Sorry, I really don't mean to offend, however I feel totally repulsed by the attitude that people deserve outrageous sums of money for emotional distress.  All this does is reward people for choosing not to process their emotions, to become rabid, and to continue to not work on balancing their emotional nature with their intellectual one.

Even just in terms of time... how long does it take from the moment documents are filed for a civil suit until a judgment is attained.  1 year?  3?  5?  So basically, we are telling the plaintiff to NOT begin resolving the emotional trauma they suffered for at least amount of time.  For if a healed person even wanted to persist with showing up in court, it would be difficult to convince a jury that they still need lots and lots of money.

(Btw, I am drawn to causes of people whose voice isn't heard, or there is a large systemic power imbalance, if you haven't noticed  )

That's awesome!  I think that is very noble and commendable.  And if you are in a position of proximity to those whose voices haven't been heard, perhaps consider the value of helping these people learn how to think for themselves, in addition to however else you are serving them.

Sadly, while many anti-vaxxers truly believe that they are "thinking for themselves" they are not.  You cannot properly think for yourself, unless you are consciously aware of logical fallacies, and take every measure to avoid forwarding arguments based on false reasoning.

Helping people learn how to discern between a valid and false argument... this can only help them.  It will help them communicate.  It will help them to be heard, and also to better listen to others.  Perhaps, it will even help them to seek a real resolution to their grief rather than running into the arms of Russian social media trolls.  Surely, it cannot hurt?  Wouldn't you agree?

I don't think it's unreasonable to consider their #1 request, which is to undo the special law governing vaccine liability. Every single other industry in the US, from normal medicines to cars to planes to chemicals in food, has normal liability and its worked. You don't often see this 1986 NVIC act repealment actually parsed out and discussed on media or by people, for whatever reason. This really isn't that outlandish of a request, especially given the Supreme Court case that upheld federal preemption of immunity shield portion for manufacturers which also had a dissent by Sotomeyer (with Ginsburg) stating we should not allow the federal law to preempt new state law which wants to make manufacturers liable:

Personally, I don't think that is unreasonable at all.  But I also wouldn't know how to make the reasoning. Still I would imagine- if it is reasonable enough, and argued in the right way, then it should start changing the opinions of the courts.

But spinning into a courtroom and shouting "THEY KILLED MY BABY!" and then demanding a million dollars.... I just don't think that is an effective mechanism.  I can empathize with that person who is grieving, but that doesn't make their tactic any more successful.

And I don't know why people aren't more talking about this in the media.  Perhaps we are too busy being distracted by the latest antics by some fanatic.  Perhaps we are spending too much time listening to Russian social media trolls and their minions.  Maybe we have placed too much focus on how to condense our outrage into 140 characters, so that we can blast it out to the world on Twitter?

I really don't know why we aren't having more rational conversations about the validity of these laws.  But I do know that we could be. We are choosing not to.

In holding that §22(b)(1) of the National Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act), 42 U. S. C. §300aa–22(b)(1), pre-empts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its own bare policy preference over the considered judgment of Congress. In doing so, the Court excises 13 words from the statutory text, misconstrues the Act’s legislative history, and disturbs the careful balance Congress struck between compensating vaccine-injured children and stabilizing the childhood vaccine market. Its decision leaves a regulatory vacuum in which no one ensures that vaccine manufacturers adequately take account of scientific and technological advancements when designing or distributing their products. Because nothing in the text, structure, or legislative history of the Vaccine Act remotely suggests that Congress intended such a result, I respectfully dissent.

Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011)

I am no legal expert or attorney.  But here's where my thought process goes on this...

The specific kind of claim they are talking about here in this opinion is a "design defect" claim.  What does that mean?  Here is what I found:  

https://courses.lumenlearning.com/wmopen...d-damages/

Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured; this may be demonstrated either by showing that the product fails to satisfy ordinary consumer expectations as to what constitutes a safe product or that the risks of the product outweigh its benefits.

OK.  So the definition of a "design defect" rests upon showing that it is either "inherently dangerous" or "useless."   OK.  So "useless" is out, since vaccines do have a clear use.

What about "inherently dangerous"?  Well at first glance, I think anybody would say of course vaccines are "inherently dangerous".  Right?  But then again so is any medication.  I note that, technically speaking, the definition is about whether or not the product design is inherently dangerous, and NOT whether the product itself is inherently dangerous.  So we need to drill further to found out what- specific- legal definition applies here.

Luckily, we have that as well.  OK so we can show that a product design is "inherently dangerous" if it can be shown that:

1.  The product fails to satisfy ordinary consumer expectations as to what constitutes a safe product.  (Vaccines DO satisfy ordinary consumer expectations about the safety of medicines, since all medicines may cause harm.)

2.  The risks of the product outweigh the benefits.  (The benefits of vaccines DO outweigh the risks.)

So then, with about 5 minutes of analysis, we can see why people will never be granted relief on this type of claim.  It's just simply an impossible avenue.  It is guaranteed to be fruitless.

Which is probably why Congress decided to pass a law giving a blanket exemption from bringing this kind of suit against a vaccine manufacturer.  They can never be won, and all that we would be doing by allowing these suits is to basically give permission for people to troll the companies with frivolous lawsuits, endlessly tying up and wasting resources in the process.

So it all appears perfectly sensible to me.  What do you perceive to be wrong with this finding?

Please understand, I am not questioning your feeling that some kind of injustice is happening here.  I am merely questioning the rational argument behind why people should be allowed to pursue these specific types of claims in court.  Perhaps there is another angle...

Let me keep looking... keep educating myself.  What do I find?

https://legaldictionary.net/tort-law/

OK.  So what are the types of tort claims we can pursue?  Which if these might apply to harm caused by a vaccine?

   Negligence  (No, not unless it can be shown that the harm was caused by a negligent event specific to that particular lot of vaccines.)

   Intentional Infliction of Emotional Distress  (No.)

   Assault  (No.)

   Battery (No.)

   Trespass (No... well maybe if the vaccination were received to being mandatory and was received against one's will, this could be considered a trespass.  Still seems like a stretch.)

   Products Liability (Maybe.  But probably not.  Consider, for example, a child dies from peanut allergy.  Assuming the presence of peanuts was properly disclosed, would the peanut manufacturer be held responsible?  No.. the allergy is caused by a defect in the child's immune system, not by a defect in the peanut.)

   Defamation Torts (No.)

   Nuisance Torts (No.)

   Privacy Torts (No.)

   Economic Torts  (Yes, but limited to actual medical expenses, funeral expenses, legal expenses, etc.)

   Intentional Torts – the causing of harm by an intentional act, such as intentionally conning someone out of his money.  (No.)

   Negligent Torts – the causing of harm through some negligent act, such as causing a car accident by running a red light.  (No, assuming the product was not defective.)

   Strict Liability Torts – the result of harm incurred due to the actions of another, with no finding of fault by the defendant.  (Hmm... MAYBE?!)

Let's drill down:

Strict Liability Torts

Strict liability refers to the concept of imposing liability on a defendant, usually a manufacturer, without proving negligent fault, or intent to cause harm. The purpose of strict liability torts is to regulate activities that are acknowledged as being necessary and useful to society, but which pose an abnormally high risk of danger to the public.

Such activities may include transportation and storage of hazardous substances, blasting, and keeping certain wild animals in captivity. The possibility of civil lawsuits under strict liability torts keeps individuals or corporations undertaking such dangerous acts diligent in taking every possible precaution to keep the public safe.

Hmm. Sounds pretty close. But it seems that the whole definition relies upon this phrase: abnormally high risk.

Vaccines are not high risk. And they are definitely not abnormally high risk.

However, maybe there is an angle here. Taken on an individual, case-by-case basis- vaccines do present an abnormally high risk.

If we had known- if we had the ability to know- in advance- that a baby would die for having received a vaccine dose.. then yes I think any reasonable person would agree that would be an unacceptable risk.

So, here's how I would angle it. I would argue that- as a society- it is our responsibility for the fact that we should have known by now the reasons why a vaccine might cause harm to a particular child, as compared to the overwhelming level of safety to the general public.

Surely by now... if we truly care for our children... surely we should have already dedicated enough resources to at least have some type of screening available to determine in advance if a particular child was at abnormally high risk of being harmed by a vaccine.