Supreme Court saves the vaccine system

Unbeknownst to most people, the Supreme Court heard a case last week that, had they ruled differently, might have destroyed the vaccine system in the United States. On February 22, the court ruled 6-2 to keep the special Vaccine Court system intact. In particular, they ruled against Russell and Robalee Bruesewitz, who were suing for damages on behalf of their daughter Hannah. But even though the system is saved for now, the two judges who voted in the minority demonstrated a frightening disregard for possible consequences, and encouraged those who would like to take us all back to an era when millions of children died each year from diseases like measles, polio, and whooping cough.

Hannah Bruesewitz's case is heartbreaking: she suffered a seizure in April 1992, within a day of receiving the vaccine for diphtheria, pertussis, and tetanus (DPT), and she had many more seizures in the following months. She was eventually diagnosed with with “residual seizure disorder” and “developmental delay" which she still has today. Her parents blamed the vaccine, and in 1995 they sued in Vaccine Court. They lost, although the Special Master of that court awarded them $126,800 for lawyer's fees and other costs. The Bruesewitzes rejected the award and sued in a state court in Pennsylvania.

The case last week wasn't about whether Hannah's disability was caused by the DTP vaccine. It was only about whether her parents could sue in state court after losing their case in vaccine court. The Supreme Court said no. Had they allowed the case, state courts across the country would have been flooded with thousands of vaccine lawsuits, and it is entirely likely that vaccine makers would simply stop selling vaccines in the United States. The ensuing loss of vaccines would be a public health disaster of enormous magnitude, leading to tens of thousands of deaths from diseases that we now have largely defeated in this county.

This sounds awfully dire. Why do I claim it could happen? Because it almost did, some 25 years ago.

Back in the 1980s, largely due to one incredibly irresponsible, inaccurate television documentary called DPT: Vaccine Roulette "started a firestorm" of panic, as Paul Offit explains in his latest book (1). It also caused an avalanche of lawsuits, and juries were soon making multi-million dollar awards. As Dr. Offit documents, jury awards in vaccine cases increased from $25 million in 1981 to $3.2 billion in 1985. Two of the three companies making the DPT vaccine stopped distributing it, leaving only one company, Lederle (now owned by Wyeth) supplying it.

It wasn't just DPT. Companies making measles and polio vaccines also dropped out of the U.S. market, leaving just one company for each. We were very close to a situation where we simply wouldn't have childhood vaccines in this country.

Then, remarkably, the federal government passed the National Childhood Vaccine Injury Act of 1986. This set up a special fund to compensate anyone damaged by vaccines, covered by a tax on all vaccines. It also created a special Vaccine Court to hear cases, and required that vaccine cases go through this court. The standard of evidence for the court was lower than regular courts: for some conditions, the parents merely have to show that their child suffered the condition soon after getting a vaccine, regardless of whether the vaccine was the cause.

The law also took juries and state courts out of the equation. Vaccine makers were protected, and the childhood vaccination system was saved. The Vaccine Court functions remarkably well, using Special Masters who become far more educated about vaccines and possible side effects than any regular judges can be. There is a very small but real risk of harm from vaccines, and the Vaccine Court has made thousands of awards to compensate victims. Meanwhile, millions of severe illnesses and countless thousands of deaths have been prevented by vaccines.

So I was very dismayed that two justices, Sandra Sotomayor and Ruth Bader Ginsburg, voted against the majority. I usually agree with these two, but their reasoning in this case was wildly off. Sotomayor's dissent shows her to be misinformed, confused, or just plain naive:
"Trial courts, moreover, have considerable experience in efficiently handling and disposing of meritless products liability claims, and decades of tort litigation (including for design defect) in the prescription-drug context have not led to shortages in prescription drugs. Despite the doomsday predictions of respondent and the various amici cited by the concurrence ... the possibility of a torrent of meritless lawsuits bankrupting manufacturers and causing vaccine shortages seems remote at best."
Apparently Sotomayor is unaware of the actual "torrent of meritless lawsuits" from the 1980s that forced Congress to create the Vaccine Court in the first place, although I cannot understand how she could fail to know this history. I am also disappointed by her naive faith in trial courts to quickly dispose of "meritless product liability claims." Perhaps in an ideal world, yes. But a smart lawyer, a sympathetic victim, and a complex medical case can easily confuse both judge and jury, leading to enormous jury awards regardless of what the scientific evidence shows.

Apparently Sotomayor can't bear to limit the ability of plaintiffs to sue wherever they choose. The Vaccine Court, although imperfect, is a much better model for handling complex medical claims than the roulette of a jury trial. We should all breathe a sigh of relief that the Supreme Court kept this system intact.

Of course, the anti-vaccination movement has been quick to attack the decision. Age of Autism, one of the biggest anti-vax sites, posted an article titled "Supreme Court Ruling Abandons Vaccine-Injured Children, Threatens Vaccine Safety" in which they call the decision "a crushing blow to the rights of every U.S. citizen." A coalition of anti-vax organizations including Generation Rescue issued a press release calling the decision "misguided" and making a number of incorrect claims about vaccine safety. But scientists and doctors, notably the American Academy of Pediatrics, applauded the decision.


1. Paul A. Offit, M.D. Deadly Choices: How the Anti-Vaccine Movement Threatens Us All. Basic Books (2011). See especially pages 2-12.

Get football out of our universities

(In which I take on the football-industrial complex, and get myself in trouble)

The Super Bowl is over, finally. The college football* season is over too. Now we can be spared the breathless, hyperbolic stories about football for a few months, at least until next season. The culture of football in American universities is completely out of control. It is undermining our education system and hurting our competitiveness in technology, science, and engineering. If we keep it up, the U.S. will eventually be little more than the big, dumb jock on the world stage - good for entertainment on the weekend, but not taken seriously otherwise.

Too harsh? I don't think so. I think we need to eliminate football entirely from our universities if we want to maintain our pre-eminent position as the world's scientific and technological leader.

Why do we need to get football out of our universities? I've watched over the years as football has taken an ever-more prominent role in our high schools and colleges, as football coaches have been paid ever-higher salaries, and as football staffs and stadiums have been super-sized. All of this effort goes to the care and feeding of a very small number of (exclusively) male students, most of whom get a poor education and almost none of whom succeed as professional players. Our universities are providing a free training ground for the super-wealthy owners of professional football teams, while getting little in return.

This has got to stop. The core mission of our universities is to educate our students, not to entertain them with big-time sports events. Our political leaders, and all too often our university presidents, seem to have lost sight of this fact.

So I was very pleasantly surprised when President Obama, in his State of the Union speech on January 25, put in a plea for science over football:
"We need to teach our kids that it’s not just the winner of the Super Bowl who deserves to be celebrated, but the winner of the science fair."
Wow, not bad! Of course, as a politician he has to support football, so he argues only that the science fair deserves equal footing with football. (Even that is pretty radical for a politician.) I'll go a big step further: the winner of the science fair deserves far more praise and celebration than any winner of any football game. If football disappeared, we could get our entertainment from another sport, as we do every year after the football season ends. But if we stop producing scientists, other countries will make the discoveries that solve the technological, medical, and engineering problems of the future, and that form the basis for great civilizations.

Now that I've gotten myself in trouble with football fans (and there are many of them), let me get myself in even more trouble, with an example from my own university.

At the University of Maryland last year, the football coach fell out of favor with the athletic director, who wanted to replace him. (This despite the fact that the coach was very successful, with an overall winning record.) The problem was, he had one more year to go in his contract, and the university would have to pay him a cool $2 million if they fired him. U. Maryland doesn't exactly have money to burn: for three years running, it has imposed furloughs on all employees and prohibited all raises, including cost-of-living increases. So you'd think that blowing $2 million to pay a coach to sit on the sidelines, and paying who-knows-how-much to hire a new coach, would be out of the question.

Nope. The brand-new President of the university, in office just one month, announced the hiring of a new coach, along with a $2 million payout to the old coach.

What a bad move. That $2 million should have been spent on, well, how about educating the students? (And don't get me started on football coaches' salaries - they often make 3-5 times more than their own presidents.)

Do we want our universities to be known for their football teams? Or do we want them to be known as educational powerhouses? Apparently, the U. Maryland administration is more interested in building a better football team. Not surprisingly, many of the professors disagree. I can only hope that the students would side with the professors, but I honestly don't know.

Yes, I know the arguments on the other side. "Football makes a profit," some claim. To that I would say, so what? Universities could make a profit running a casino too - should they do that? If football is so profitable, then spin off the teams as private corporations, and let them pay the university a licensing fee to use the university logo. But let's stop pretending they have anything to do with education.

Don't get me wrong. I love sports - I've played them all my life - and I think students should participate in them. It's healthy and fun, and it's part of the college experience. But universities don't need big-time, pseudo-professional athletic teams with outsized coaching staffs. Look at the Ivy League, which comprises 8 of the best universities in the country. They play sports against each other, they don't award athletic scholarships, and their academic programs are the envy of the rest of the world.

The football-industrial complex has too much power over our universities. Nothing else can explain how we spend so much money and time on football, which contributes almost nothing to students' education, while academic departments are cutting faculty and staff. The culture of football worship has gotten so out of control that I think the only solution is to get rid of it entirely.

I don't expect any university to take my advice. But I'll end with another excerpt from President Obama's State of the Union speech, which we should take as a warning:
"Meanwhile, nations like China and India realized that with some changes of their own, they could compete in this new world. And so they started educating their children earlier and longer, with greater emphasis on math and science. They’re investing in research and new technologies. Just recently, China became the home to the world’s largest private solar research facility, and the world’s fastest computer.

So, yes, the world has changed. The competition for jobs is real. But this shouldn’t discourage us. It should challenge us. .... We’re the home to the world’s best colleges and universities, where more students come to study than any place on Earth."
President Obama is right: students do come from all over the world to study in our universities. But they don't come because of the football teams.

*Note to my friends in other countries: by "football" I mean American football, that game with the peculiar oblong-shaped ball - not the wonderful game of soccer, which almost all other countries call "football."

ADDENDUM: I've done two radio interviews about this blog post, which you can listen to at the following links: 670 The Score, a Chicago sports radio program, and 1560 The Game, a Houston sports radio show.