How to win in Vaccine Court

In 1988 the US Health and Human Services set up the "National Vaccine Injury Compensation Program" (VICP) to compensate those people and families who were injured through the use of childhood vaccines.

Between 1989 and July 1, 2014, 3,645 compensation awards have been made by VICP, totaling over $2.7 billion dollars in awards, and $113.2 million in legal costs. Another 9,786 claims were dismissed by the courts. So out of a total of 13,431 claimants, a little over 27% won awards.

In the mid-1980s British researchers found a possible link between the pertussis portion of the diphtheria-pertussis-tetanus (DPT) vaccine and neurological harm to children. This claim was later discredited by better studies, but British families were so alarmed that they refused the pertussis vaccine - resulting in a dramatic incidence of whooping cough which directly led to the death of 70 children.

In the United States, several parents sued the manufacturers of the DPT vaccines. And even though scientists and public health officials believed the claims of neurological side effects were unfounded due to lack of evidence, many of these parents won substantial awards through sympathetic juries who were convinced otherwise during trial.

As a result, most companies who made the DPT vaccine ceased production. Only a few major manufacturers remained in the business of producing this vaccine, and they were planning to exit the business too.

One of the benefits of a well-vaccinated community is an effect known as "Herd Immunity". This form of immunity happens when enough of a community is immune to infection that it breaks chains of infections therefore preventing the spread of infection. When a larger portion of the community is resistant, there is a smaller probability that someone susceptible to infection will come into contact with disease. As community resistance to infection decreases it becomes more probable, and even likely, that susceptible individuals will succumb to disease.

Health officials in the USA feared the loss of herd immunity, and Congress responded by creating VICP to remove the burden of lawsuits against vaccine manufacturers.

The VICP program provides for compensation to children who have severe adverse effects from any childhood vaccine. Compensation includes medical expenses, loss of future income, and up to $250,000 in “pain and suffering”. Claims paid on vaccines received before 1988 came directly from the U.S. Treasury, and later claims are paid by a VICP trust fund of over $2 billion dollars, created by a $0.75 per-vaccine patient fee. It takes the VICP about 2 years to process and resolve a petition.

In order to win an award through VICP, the claimant is not required to provide proof of causation to the extent of scientific certainty.

Instead the VICP uses the civil-law standard of, “the preponderance of the evidence”. According to the legal definition this standard is met if the proposition is “likely to be true” - it is satisfied if there is a greater than 50 percent chance that the proposition is true.

The VICP standard of certainty is far from the scientific standards of error. In science, propositions are said to be “statistically significant” if the percent of error is less than 5%, and “statistically likely” if the percentage of error is 1% or less. A drug with a significance level of 50% would never make it through FDA approval, and may get the lead scientists fired for even trying!

Even in criminal law, “the preponderance of the evidence” is not enough to convict. Instead, clear and convincing evidence is required to judge a person “guilty.” So it is very obvious that the VICP sets a very low bar for payout of compensation claims.

Before 1998, there were few claims in VICP against autism-related adverse effects from immunization. In 1998, Andrew Wakefield published a fraudulently created research paper in support of a link between the MMR vaccine and the appearance of Autism and bowel disease. No scientist since then has been able to reproduce his results. Britain's “The Sunday Times” was able to reveal that Wakefield had changed and misreported the results in his research in order to create the appearance of a link between autism and the MMR vaccine. It showed that Wakefield had falsified data, and the paper also showed that Wakefield had plans to sell home diagnostic kits for the condition he posited in his study, “autistic enterocolitis”. Wakefield predicted that he could make more than $43 million a year selling these kits.

As a result of this paper, the reporting of the “Sunday Times”, and investigation by medical, scientific, and legal officials, “The Lancet” retracted the paper, Wakefield's co-researchers withdrew their names from the paper, and Wakefield was stripped of his license to practice medicine.

A more unfortunate result was reduced vaccination of children due to the general public being scared of a non-existent link between vaccines and autism. For some reason, bowel disease has not made it to general public awareness in this vaccine scare.

In the early 2000's, the VICP started receiving claims of autism as an adverse effect of immunization. The first payout of an autism-related claim happened in 2008, and the largest payouts happened in 2013, in two separate cases that resulted in the award of tens of millions of dollars.

But these cases were not rewarded on the basis of autism.

The VICP has a list of possible injuries and conditions that are presumed by science to be caused by vaccines. This list is known as the “Vaccine Injury Table”, and it not only lists symptoms, but the time period in which these symptoms are supposed to occur.

Since there is no scientific evidence that autism can be caused by vaccination, the VICP does not list it as a possibility on this table.  

There is a range neurodevelopmental disorders in the autism spectrum, and although these disorders share symptoms, they may have unrelated causes. Little is known for sure - that autism is highly heritable, and likely to be triggered by both environmental factors and genetics.

The hypothesis that vaccines cause autism has been well tested in many scientific studies, none of which show a link.  Therefore, they are not on the VICP's “Vaccine Injury Table.”

So how does a claimant with autism win at vaccine court? They claim encephalopathy, which can occur within 5-15 days after a MMR vaccine. Encephalopathy is another way of saying, “a disease of the brain” - which doesn't refer to a single disease, but refers to a brain disorder that could have different causes. Encephalopathy is a broad term, and therefore it could refer to disorder that is curable, or permanent, or degenerative.

Encephalopathy is medical shorthand for saying, “We don't know what happened”.

The two largest payouts in 2013 were fought in the VICP court for years, with the first hearings happening in 2005. The government finally agreed to settle, and the U.S. Department of Health and Human Services offered to pay millions over the life of the two claimants, whose families accepted the offers.

During this settlement, HHS did not admit that vaccines caused autism, or even encephalopathy. They merely decided not to dedicate any more resources to defend the case. In other words, it was cheaper for them to settle the case than it was to fight it.

HHS has never concluded in any case that autism was caused by vaccination. This is in-line with scientific studies that show no link between autism and vaccines.

How do you win at vaccine court for a condition that time and again can NOT be linked to vaccines?

You wear them down until it is cheaper for them to just give you what you want.

Checking in on Ronald Lee Darsey again...

Notice the cameo jacket?  He got that from Army Surplus!
Just checked in on Ronnie again.  He's still in Conroe, still at the same halfway house.  He's got a new photo - in it you can see he's grown out his beard again.  Ronnie grows a beard to hide his weak chin.  Now, he just looks homeless.

One of the things I learned very quickly when Ronnie came into our lives was that he used to be in the Army.

He loved the Army, and told us about his enlistment.  He was stationed in Germany, he had to work hard, he was part of the motor pool.  He had a dog while in Germany.  Boot camp was tough.

And of course he said I would never make it in "real life", that the military was tougher than I could handle.  He usually called me "Boy" while saying this.  He pronounced "Boy" with two syllables.

He wasn't in the Army for long... about 2 years if I recall correctly.  He was not a combat vet, he had a cushy assignment in Germany.  He bragged about his time in the military, but he didn't have much to say about it.

After Ronnie and Mom married, he got a dog and named her Fräulein -  the German word for "young lady".  It was another reminder that he was a world-traveling ex-soldier.

Ronnie always wore Army jackets.  It was another reminder that he was in the Army.  He told us that they were issued to him by the Army.  They didn't have insignia or name tape on them.   They were the standard olive drab jackets that were common before the US military adopted the camouflage battle dress uniform in the 1980's.

Ronnie has been wearing military jackets for as long as I can remember.  And after I joined the military I realized he was just another wannabe military poseur.  The cameo jacket he's posing in during his latest court mandated sexual predator mugshot is "US Woodland" - part of the Battle Dress Uniform that wasn't issued by the US Military until the early 1980's, almost a decade after Ronnie's very brief stay with the Army.

Ronnie has always tried to cultivate this image of a capable person, experienced, a veteran who can handle himself in a fight.  It's all a facade... a fake.  And when he encounters someone with real ability or power Ronnie folds up like a wet newspaper.

Ronnie's longest commitment was the 15 years he's spent in prison for molesting children.  He should be wearing an orange jacket.

A License to Carry along with liability insurance is supported by the Second Amendment

In my previous posts, I’ve discussed the problem with gun violence in America, and I’ve pointed out that it would be impossible to remove guns from the American population.

Unless something changes, gun violence will continue to be a problem.

Let us add to this problem the current trend toward the Open Carry of guns, the recent episodes of armed bystanders firing upon unarmed and fleeing suspects, and my already stated case that possessing a gun is more likely to result in the escalation of aggression.

These people are in possession of a dangerous device. Most have little or no training in the use of this device. Few have the ability to assess the risk of owning and carrying these devices.

There is a comparable dangerous device that is owned by many Americans. The automobile.

Until 2013 Americans were more likely to die in a car crash than to be killed by a gun. The data are not in when I wrote this, but it has been projected that gun deaths and auto-related deaths were supposed to reach parity sometime in 2015.

There are no laws that restrict owning an automobile. Everyone in America can own as many cars as they can afford. Even if you are not allowed to drive a car, you are still allowed to own one.

But in order to operate a car, we must first demonstrate our knowledge of the law in regards to vehicle operation. We must also demonstrate our ability to operate a car. This is done through licensing. As part of licensing, we must also demonstrate our ability to minimize the risk of driving, and to hedge against loss due to accident. This is done through insurance.

America could apply this strategy to gun ownership and usage. Require licensing and insurance of individuals who carry a gun.

Licensing is already in effect in many states. For example, a concealed carry license in any state requires the possessor to attend training classes and pass a test. Texans who carry a handgun are required to have a License to Carry. Getting one involves training classes and a test.

Using a gun licensing strategy, states would issue licenses to carry, and state license requirements would meet or exceed minimal Federal standards. These standards would include classroom and practical training, along with an examination. I would suggest that there be a renewal requirement, with a period of renewal of every 5 years.

A firearm owner would also be required to demonstrate proof of liability insurance. Lack of insurance would be grounds to suspend or revoke the license to carry.

Insurance is an important part of this idea. In the case of accidental death, or homicide, some relief to the victims could be had through insurance. This would certainly motivate insurance companies to investigate each gun owner’s risk. Insurance companies are really very good at predicting the actions of people. Let us put that skill to use.

Similar to current driver’s laws, licensing would not apply on private property. In the same way that you don’t need a driver’s license to drive on your own ranch roads, unlicensed individuals could still “carry” their weapons lawfully in their own home. (Please note, there are usually city ordinances that make it a crime to shoot gun inside city limits. These are often ignored in the case where a gun is used to stop a crime in the home.)

License to carry laws could be written to allow the safe transportation of firearms by unlicensed gun owners. Inside a locked container, or with a trigger lock, for example.

Requiring a license and insurance to operate – or carry – a firearm does not restrict anyone’s Second Amendment right to own guns, or “bear arms” in the case of a military coup. Everyone would still be allowed to own as many guns and ammunition as they like. And they can be comfortable with the knowledge that they can ignore the law in the case of Federal overreach.

A license to carry and insurance requirements are not going to prevent gun violence. However, they will reduce it, and this requirement would work well together with background checks for gun ownership.

And finally, such a requirement could help answer a philosophical problem. How can I, or anyone, tell the difference between an armed law-abiding person with a gun, and a dangerous criminal with a gun?

The criminal is much less likely to be licensed to carry. And any establishment that checks licenses at the door is less likely to allow entry to such a person.

We can't take guns away from Americans for legal and practical reasons

In my last post, I discussed the problem with gun violence in America.  In this post, I'll discuss why we own guns, and why we can't take guns away from Americans.

Why do Americans own guns?

The stated reasons usually include personal protection, and to act as a check against military overreach by the United States Federal government.

I believe that these reasons are merely a fantasy.

First, owning a gun does not make you safer. Gun owners are more likely to act impulsively, and aggravate or escalate arguments. Populations with higher gun ownership are directly linked to higher gun murder rates. Studies have shown that for every time a gun in a household was used for self-defense, there were seven criminal assaults or homicides using guns.

There is also a popular American fantasy that violence in America is increasing, and that we should prepare against it. The opposite is true. There has been a steady decrease of violent crimes in America since the mid 1980's. Statistically, you are less likely to be the victim of a violent crime now, than 10 years ago, or 20, or 30.

Second, there is a myth that an armed population prevents tyranny.  There is no justification for this.  There is instead evidence that a militia will more likely support or even create a tyrannical government.

The Second Amendment to the United States Constitution states:
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Why should it be "well regulated"?  There were about 100,000 troops in the Continental Army during the Revolutionary War.  There were about twice that many serving in various militias.  Militias were used to defend the home front, to act as a police force, and they did some enemy surveillance.  When a militia company was summoned to active duty on the front lines, they were usually active for less than 90 days.

There is a world of difference between armed civilians, common militia, and Minutemen, or "well regulated militia".  The difference can be seen in how armed citizens and poorly regulated militia threw down their weapons and fled in the 1776 battles of Long Island, and at Camden, South Carolina, versus their successes at Lexington and Concord.  The Revolutionary War has many examples of militia failures, and the few examples of militia successes are attributed to state-organized militias.

The modern National Guard is based upon the idea of a "well regulated militia".

Well armed individuals and poorly regulated militias are more likely to support tyranny and fascism.

Nationalism and fascism go together hand in glove.  The very patriotic idea that there is a superior form of national identity that should unify all of a nation's citizens is very attractive and dangerous.

When private militias form, or armed citizens gather, they most often do so out of nationalism and fascism.  This can be shown in the "Bleeding Kansas" border wars in the mid-1800's between the pro-slavery "Border Ruffian" militia and the anti-slavery "Jayhawk" militia.

This can be seen in the foundation of the Ku Klux Klan, who used armed citizens and KKK militia in campaigns of violence, murder, and political intimidation.  Other examples of unregulated militias in America include the Black Panthers and Neo-Nazis.

Armed citizens and militias have lead to tyranny in other countries.  Vietnam, Somalia, and Southern Lebanon are examples of this.  Militias and armed civilians most often gather to form tribes, to support warlords, and to engage in civil war.  Weak democracies are more often ripped apart by armed private citizens, than they are supported by them

Third, there exists a very popular "Red Dawn narrative".  That a strong government with a strong military can be overthrown by armed citizens and private militias.

This is completely false.

Let's look at the case of Iraq, before the American invasion.  Gun ownership by individuals was (and still is) one of the highest in the world, with up to 40 guns owned per 100 people.  (In contrast, Americans own up to 95 guns per hundred people).  Iraqis had a gun culture that "closely resembled the United States", and yet gun ownership did not prevent Saddam Hussein from committing atrocities on his own people.

Another example of an authoritarian dictatorship that oppresses its own well-armed population is Saudi Arabia.  Dissent in Saudi Arabia is routinely crushed.  Dissenters are beheaded.  There are no guarantees of human rights in Saudi Arabia.

A well-disciplined military armed with modern weapons is completely immune to militias and privately armed citizens.  In the case of America, a single 19-year-old drone pilot sitting at Nellis Air Force base can put an end to a full militia with the push of a button.

You have a closet full of AK-47's? Excuse me while I laugh at you.

A dictator backed by a well-regulated modern army is proof against armed civilians.  Muammaar al-Qaddafi of Libya is a good example.  His citizens could not kick him out without outside help from NATO.

The other side of the "Red Dawn narrative" is that an armed population can drive out an invading force.  Both Vietnam and Afghanistan are given as examples.  But in neither case were the invading forces "driven out" by armed populations.

In the case of American involvement in Vietnam and Afghanistan, public opinion in America were the deciding factors to get out of these conflicts.  By 1971 a large majority of Americans believed it was a mistake to be involved in Vietnam.  American opinion toward the occupation of Afghanistan has been polarized, but in 2014 a majority of Americans were opposed.

In neither war were American troops ever in danger of being "forced" out of the conflict by local militias or armed civilians.

The Afghan resistance movement, under the command of many regional warlords who were supplied and assisted by the United States, Pakistan, Saudi Arabia, the United Kingdom, Egypt and others were able to mount a guerrilla war against the occupying Soviets.  However the Soviet withdrawal from Afghanistan was due to the leadership of, and radical reforms initiated by, Mikhail Gorbachev.   Gorbachev withdrew Soviet forces from Afghanistan to assist in easing cold-war tensions, not due to an armed population, even one supported by other countries.

So if owning a gun doesn’t make us safer, if owning a gun is inherently risky, why should we have guns? If modern militias are no match for the American military, and our only hope of opposing a military coup is the goodwill of our American soldiers, then why would we bother to arm our militias? Again, why should we have guns?

We should have guns in America for two reasons.

First, as I said in my last post, amending the Constitution of the United States of America is somewhat perilous. Amending the Bill of Rights could have unintended consequences on other human rights held by American citizens. I think we should avoid amending the Constitution to support gun control. This means that the Second Amendment will apply, which means that we will have gun ownership in America.

The second reason we should have guns in America is because this is what America wants. Sure, this is a “Tyranny of the Majority” situation. But that sort of tyranny is checked only when it infringes on the rights of others. Merely owning a gun does not infringe on the rights of others, and so this tyranny does not apply. Therefore, the will of the majority in our society should apply.

To put it more simply, I like my guns, and I won't give them up unless I'm forced to do so. I would resist any such attempt. And I think that over 40 million other American households would do the same thing. Vigorously.

These are two HUGE reasons why Americans should own guns. Americans like their guns, and taking guns away from Americans would be a big problem, legally and practically.

There is still unresolved the fact that gun violence in America is a serious problem that needs to be dealt with.

I’ll discuss a possible solution in my next post.

Gun Violence in America

America has a problem with gun violence.

In 2015 there were 331 mass shootings in America, that resulted in over 360 deaths and 1,300 injuries. There were over 11,000 murders with guns in 2015, and more than 54,000 people were treated for gun assault in emergency rooms.

The numbers are very clear. There is a direct correlation between gun deaths in a population, and the number of guns owned by that population. Guns are used far more often to threaten and intimidate than they are used in self-defense. More often, gun owners escalate arguments by using their guns in an aggressive manner. Homes that own a gun have a higher risk of suicide and accidental death.

No mass shootings in America have ever been stopped by an armed civilian.

More than a third of American households own a gun – about 43.5 million. There are as many as 310 million guns in the United States. And while a majority of Americans favor stricter background checks, a majority of Americans also support the lawful ownership of guns generally. And this support has been trending upward over the last few years.

With such broad support for gun ownership, it is unlikely that Congress or the President will be able to remove guns from the general population. It also seems likely that gun related deaths, and mass shootings, will continue to be “normal” if nothing else changes.

American support for background checks suggests that Americans are willing to do something to change this status quo.

Personally I like guns, and I own a few. I was given my first gun as a birthday present by my father, on my very first birthday.

Dad was a huge influence on me and my sister in regards to guns. He kept our guns well locked up, out of our reach. He has a lot of them, and never put them on display, preferring to only take them out when he was going hunting.

Dad’s training in gun safety came from his training as a combat vet in Korea, and from a lifetime of using guns. My sister and I have both jumped down the throats of those people who supposedly went through "gun safety" programs for being idiots about their guns. Really, neither of us have any patience for that sort of nonsense. And we're both pretty fair shots. I've got "Expert" ribbons in the M16 and M9 pistol from the military.

I'm also someone who believes strongly in the Constitution, and I take my oath of enlistment seriously. Americans have the right to "bear arms", and will continue to have that right unless there is a Constitutional Amendment.

The Bill of Rights, the first ten amendments to the Constitution, originally applied only to the Federal government. In other words, these rights could be overridden by state law. Only those laws enumerated in the Constitution belonged to the Federal government. This changed upon the ratification of the 14th Amendment, where the “Due Process clause” applies the Bill of Rights against the states.

On ratification of the 14th Amendment, the Federal government was given the power to enforce the Bill of Rights, and States’ Rights were much weakened. This is what nullified the Dred Scott decision. It gave us all equal protection under the law, and prevented States from creating laws to remove the rights of American Citizens.

The 14th Amendment has also been used to expand the rights of citizens, giving interracial couples the right to marry (Loving v. Virginia) making it impossible for states to arrest citizens for homosexual acts (Lawrence v. Texas) and giving homosexuals the right to marry (Obergefell v. Hodges).

A Constitutional amendment that outlawed gun ownership could easily go very wrong. An amendment to overturn the Second Amendment could possibly be used to weaken the 14th Amendment, which might in turn allow States to once again create their own laws about homosexuality and race. We would again be a nation of patchwork freedoms.

Last, I want to point out that we have passed the point where 3D printers can easily print a gun.  This was first accomplished in plastics.  3D printed guns are now available in metal using the direct metal laser sintering (DMLS) process.  As 3D printing prices fall, the availability of highly reliable printed guns will increase.  And there isn't much the government can do to prevent this.

From a purely practical position, outlawing gun ownership in America would be impossible without major changes in attitude. There is broad support for gun ownership, and there are inherent dangers in amending our Constitution to revise or remove the Second Amendment.  Finally, our increasing technological ability would make gun restrictions difficult, if not impossible.

It seems hopeless. Maybe there is something that can help.

But first, in my next post I'll examine why Americans own guns.