Editorial
Don't Immunize Vaccinators
by Fred E. Foldvary, Senior EditorThe Homeland Security law passed by Congress includes a privilege granted to makers of vaccines. Limited liability protections that exist for vaccines have now been expanded to include vaccine components, such as the preservative thimerosal, which contains ethylmercury. People who get vaccinated might not be able to sue the producer in a State court for alleged damages even if the manufacturer is negligent. The law also limits liabilities for airport screening companies and developers of equipment for domestic security.
Such a limitation for damages violates the fundamental ethical principle that those who cause damage to others should compensate them for that. People have a natural right to be free from harm, and to be compensated when harm occurs, otherwise this becomes theft. The 9th Amendment of the US Constitution, and similar provisions in many State constitutions, recognize the natural rights of the people even when they are not "enumerated" or explicitly stated. An immunity from damage payments is therefore not only immoral and contrary to the principles of a free market, but also violate the U.S. Constitution.
The provision grants pharmaceutical companies immunity from liability for adulterated drugs and vaccines if they are designated by the head of the homeland security department as "necessary for security purposes." But this legislation could and probably will be used for cases not related to protecting Americans from the effects of an attack, such as from possibly damaging mercury in vaccines. Complaints would be handled by a federal program funded by a tax on vaccines to compensate, up to a maximum of $250,000, those injured by such vaccines.
An argument can be made that litigation in the US is out of control and juries can impose arbitrarily huge penalties on drug makers, much of the loot going to trial lawyers rather than the victims, and that this prevents the development of life-saving drugs. Clearly tort (lawsuit) reform is needed, but two wrongs do not make a right, and the right thing to do is to make any manufacturer liable for damage caused by negligence and other factors that the maker knows about or should know. Insurance can then further protect the producers and customers from damage from causes not known at the time. There should be a cap on punitive damages, and also co-payments by plaintiffs for costs such as the copying of documents for the "discovery" of facts related to a lawsuit. But sheltering drug makers from full damage liability helps prevents such tort reform. The best policy is to remove interventions and fix problems, not add to them. If the tort system is broken, then fix that, rather than breaking something else.
Many critics of corporations point to the limited liability of share holders as a problem. Why not first deal with the limited liability or no liability granted to corporations by governments? That is a far clearer and much worse problem. It sometimes seems like the critics of limited liability are not so much concerned with that but rather use that as a proxy to attack private enterprise.
Huge bills like the Homeland Security act often serve as carpets under which to sweep special-interest protections, privileges, and subsidies. The White House as well as Congress get huge campaign contributions from special interests, who then get privileges in return. What is broken most of all is democracy itself, and until our voting system is fixed, we will continue to get all the other problems, including privileges for trial lawyers, churches, unions, and corporations.
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Copyright 2002 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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