2011.03.05 Q'uo on Vaccines

[redchartreuse]

Your design defect analysis is a bit off. Here's a page that explains it better. https://injury.findlaw.com/product-liabi...esign.html

A company's liability for a design defect occurs when there was a foreseeable risk posed by the product when the product was manufactured as intended and used for its intended purposes.

In many states, plaintiffs also have to show that the risk could have been reduced or avoided by the adoption of a reasonable alternative design, which was:

• Feasible, in other words, the manufacturer had the ability to produce it;
  
  
• Economically feasible, in other words, it would not cost too much to make the product with the modification; and
  
  
• Not in opposition to the product's intended purpose, in other words, the product would still perform the function for which it was created.
  

Basically, if you can prove that something is economically feasible and can be made safer, then your claim stands. It's not an easy claim. But it does make us safer than not having that at all. And it allows for large damages in most states when the conduct by the manufacturer is egregious. Poor claims are adjudicated and often dismissed at an early stage of court, and remember the costs are born by the litigant, sometimes including the cost for the opposing lawyer. It's not perfect, but it's worked in every other field since the dawn of this country. A person getting their day in court is crucial to the closure process. You know that is partly why courts came about - so that people would use a public process to resolve their grievances and receive closure instead of taking matters into their own hands. On all these metrics, the vaccine court fails and people do not feel fairly treated or fairly compensated and thus continue to hold on their grief and get organized.

The problem is that without design defect liability, we can deem vaccines safe enough, or manufacturers can, and yet allow for known causes of death or injury as long as they are not statistically significant and have no incentive to reduce edge cases of injury, even if financially viable. 

If you really think there is a health crisis because of vaccine hesitancy, don't you think making vaccine manufacturers liable is a better solution than mandatory vaccination laws and/or pressuring social media sites to censor parents who lost children due to vaccines?

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 MAY present an abnormally high risk to some people. And since each life is of immeasurable value, we should make every effort to learn how to identify, and mitigate, those risks. Even if it is a tiny percentage of the population, we should do this.

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.

Let's go with your definition with the piece about reasonable alternative design.

OK now we're getting somewhere.  I would say that the "reasonable alternative design" of vaccine development itself should include ongoing investigative research into the factors which may make a child more susceptible to vaccine injury.

I would argue that saving even one life would provide an immeasurable value to society, as compared to the relatively paltry sum of money it would take to figure out, once and for all, how to properly identify a child who is at higher risk of vaccine injury, and then to provide that service free of charge.

What do you think?