RFK, Jr. hearing prompts reconsideration of civil, regulatory responsibility for vaccine misinformation

"Are you supportive of these onesies?" Sen. Sanders asks.
© C-SPAN (YouTube; license).

The showdown between Bernie Sanders and RFK, Jr., featuring anti-vacc onesies, got me thinking about articles published by a former student, later academic and bar colleague, positing tort and regulatory approaches to harmful vaccine misinformation.

I wrote in 2017 about physician-attorney Donald C. Arthur's Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10:1 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017). At the time, the article was behind a pay wall; it is now freely available.  Here is the abstract.

Some internet marketers offer for sale "vaccination substitutes" that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.

When Dr. Arthur and I first discussed the project in the 2010s, he was thinking about a tort theory for liability for publishers of vaccine misinformation. The tort theory is fraught, but feasible. There are problems of proof, such as the attenuated causation linking the publication of misinformation with later disease, and the inevitable First Amendment defense, which at plaintiff's most fortunate still might require culpability in excess of ignorance.

Dr. Arthur split his research into two works. He published in 2016, I didn't mention in 2017, Negative Portrayal of Vaccines by Commercial Websites: Tortious Misrepresentation, 11:2 UMass L. Rev. 122 (2016), also freely available. Here is the abstract.

Commercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites.

When Dr. Arthur wrote both these articles in 2016, it was before the first election of Donald Trump with attendant attempts to disarm and dismantle federal consumer protection systems. The tort theory looks better now. See Dorit Reiss & John Diamond, Tort Law: Liability for Anti-Vaccine Misinformation, 4 Judges Book 107 (2020) (not citing Arthur).

Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland. Dr. Arthur teaches adjunct at UMass Law and for seven years practiced of counsel with the Law Offices of Beauregard, Burke and Franco.

HT @ Melissa Colten, UMass Law public interest fellow, whose curiosity reminded me of these articles.

Suits over DCA disaster will struggle to overcome discretionary function exception to sovereign immunity

View on my approach to DCA on a 2020 Southwest flight.
RJ Peltz-Steele CC BY-NC-SA 4.0

Media coverage of the air disaster at Reagan Washington National Airport (DCA) is moving on to prospective litigation, and abundant news outlets are warning aptly that the road to compensation for victims' families will not be smooth.

Potential defendants include the Federal Aviation Administration (FAA), which employs air traffic controllers; the U.S. military, which owned and crewed the Black Hawk helicopter in the crash, and American Airlines, which bears responsibility for the regional jet in the crash.

As the facts have shaken out thus far, with black-box content yet to be reported at the time of this writing, it's hard to see any fault on the part of American Airlines or its commercial operator. The plane had banked to change runways per traffic control instructions and was on a lesser used but still ordinary approach when it collided with the Black Hawk. There's likely nothing the pilots could have done to avoid the collision, if they even saw it coming.

Responsibility on the part of air traffic control has focused on the fact that one controller was managing both helicopter and plane traffic, while sometimes there are two. Thus far, though, one- or two-person staffing of the two traffic streams seems to be a choice of practice, based on the volume of traffic, rather than a violation of any rule.

Early armchair analysis points to responsibility on the part of the military. The helicopter seems to have been above 300 feet, for reasons unknown, when it was required to be at or below 200 feet. The pilot said he saw the plane and would avoid it, though it's not clear he saw the right plane. 

My cousin is a military pilot and has flown in this dense D.C. thicket, inset from SkyVector (DCA). He told me that avoiding flight paths entirely would be prohibitive, but that following the 200' rule should have averted collision even if the pilot mistook the approach of the plane.

With government defendants in the sights of plaintiff lawyers, frantic analysis is no doubt underway in an attempt to circumnavigate federal sovereign immunity.  Within the statutory framework of sovereign immunity, the concept of "discretionary function immunity" looms large in this case. Some time back, I recorded a video for SCOTUSbrief about a case in which discretionary function immunity figured, if collateral to a problem of a federal agency that doesn't have it. Here, the defendants do.

The instant case, such as it is as yet, is reminiscent of United States v. Varig Airlines (U.S. 1984), in which, in 1973, a fire on board a trans-Atlantic Boeing 707 flight killed 123. The plaintiffs blamed in part the FAA, alleging negligence in the issuance of a safety certificate.  The Supreme Court held unanimously that the FAA was shielded by discretionary function immunity.

The purpose of discretionary function immunity—which is really an exception to waiver of sovereign immunity in the Federal Tort Claims Act—is to preclude the courts from second-guessing policy determinations by the political branches of government. The government is willing to concede liability when it negligently deviates from obligatory practices, the logic goes, but claimants ought not be able to challenge policy choices just because they turned out to be bad ones, that is, resulted in injury.

The DCA crash reminded me of an excellent article from seven years ago on sovereign immunity and discretionary function, discussing Varig, in Advocate magazine, by L.A. attorney Steven B. Stevens. He parsed the doctrine.

If the use of only one air traffic controller is indeed customary and not contrary to any rule, then probably that's a staffing decision shielded against liability as discretionary function. The military might be vulnerable, though, on the issue of the Black Hawk's altitude. The 200' limit is an FAA rule for the Potomac-DCA corridor, CNN reported, and my cousin confirmed.

Even upon circumvention of immunity, plaintiffs will have to prove the usual negligence elements of unreasonable carelessness and causation with the crash. Black-box data will help, and plaintiffs might as well avail of the doctrine of res ipsa loquitur. "RIL" can afford plaintiffs a favorable inference when evidence, such as the pilot's motive, is unascertainable, and plane crashes, historically, have been fertile ground for invocation of the rule.

All that said, litigation against the government might never reach an immunity determination. Reuters reported on the history of limited government settlements in such cases.

As a frequent traveler to DCA, I hope that the airport can be made safer while preserving convenient access to the capital.