Guest Post: Crack Down on Those Who Don’t Vaccinate?: A Response to Art Caplan

As of Friday, June 28, this post is closed to further comments. We want to thank the many readers who have engaged in a vigorous and civil discussion on the recent posts to the Bill of Health that engage questions related to the debate over vaccines. In general, we do not moderate discussions on the site. However, due to an increasing number of comments that violate our policies regarding abusive and defamatory language and the sharing of personal information, we are closing these posts to comment.

By Mary Holland, J.D.

Mary Holland is Research Scholar and Director of the Graduate Legal Skills Program at NYU Law School. She has published articles on vaccine law and policy, and is the co-editor of Vaccine Epidemic: How Corporate Greed, Biased Science and Coercive Government Threaten Our Human Rights, Our Health and Our Children (Skyhorse Publishing, 2012). 

Dr. Art Caplan recently posted an editorial, “Liability for Failure to Vaccinate,” on this blog. He argues that those who contract infectious disease should be able to recover damages from unvaccinated people who spread it. If you miss work, or your baby has to go to the hospital because of infectious disease, the unvaccinated person who allegedly caused the harm should pay. Dr. Caplan suggests that such liability is apt because vaccines are safe and effective. He sees no difference between this situation and slip-and-fall or car accidents due to negligence. Arguing that “a tiny minority continue to put the rest of us at risk,” he suggests that public health officials can catch the perpetrators and hold them to account through precise disease tracing.

Dr. Caplan’s assertions to the contrary, vaccines are neither completely safe nor completely effective. In fact, from a legal standpoint, vaccines, like all prescription drugs, are “unavoidably unsafe.”  [See, e.g., Bruesewitz v. Wyeth, 562 U.S. __ (2011).‎] Industry considered its liability for vaccine injury so significant that it lobbied Congress for the 1986 National Childhood Vaccine Injury Act, providing doctors and vaccine manufacturers almost blanket liability protection for injuries caused by federally recommended vaccines. [See Authorizing Legislation.] The liability risk was so serious that the federal government created a special tribunal under the 1986 Act, the Vaccine Injury Compensation Program, to pay the injured. Moreover, the Supreme Court in 2011 decided Bruesewitz v. Wyeth, prohibiting any individual from filing a civil suit for a defectively designed vaccine in any court in the country. Industry’s extraordinary protection against liability for vaccine injury does not correspond with glib statements, like those of Dr. Caplan, that vaccines are safe and effective. On the contrary, the law acknowledges that vaccines cause injury and death to some, with no screening in place to mitigate harm. Dr. Caplan notes that public health officials have “tried to debunk false fears about vaccine safety.” Yet the Institute of Medicine, one the country’s most prestigious health organizations, has acknowledged repeatedly that there are many known vaccine injuries, such as seizures from the measles-mumps-rubella vaccine, anaphylaxis from the meningococcal vaccine, and encephalitis from the varicella vaccine. Even more troubling than the identified injuries is the number of potential vaccine adverse effect relationships for which the evidence is not sufficient to either prove or disprove causality. [Committee to Review Adverse Effects of Vaccines, Institute of Medicine, Adverse Effects of Vaccines: Evidence and Causality (Kathleen Straton et al. eds., 2012).]

Dr. Caplan seems to suggest a peculiarly narrow kind of civil liability, allowing claims only by those who have been vaccinated and become sick against those who lawfully refused vaccination. What if a vaccinated person spreads disease? Presumably, she would bear no liability because she would not have been negligent. Yet vaccinated people do spread disease, as in the case of Tenuto v. Lederle Labs., 907 NYS.2d 441 (2010). Mr. Tenuto, a father, contracted paralytic polio from his infant daughter while changing her diaper after the infant had received the live virus oral polio vaccine. Although the vaccine protected the infant from polio, it exposed her father to disease through viral shedding, causing him severe, lifelong harm. Despite proven causation, industry litigated for over thirty years to avoid paying for the damages that occurred before the 1986 liability protections took effect.

And what if disease breaks out in a highly vaccinated population, with no unvaccinated person to finger? There have been numerous outbreaks of mumps, measles and pertussis with no initial cases traced to unvaccinated individuals. [See, e.g., Nkowane et al, “Measles Outbreak in a Vaccinated School Population: Epidemiology, Chains of Transmission and the Role of Vaccine Failures,” AJPH April 1987, 77, no. 4.] Presumably, Dr. Caplan would argue no liability should inure to industry because the sale of ineffective or defectively designed vaccines does not constitute negligence.

Dr. Caplan’s interest to hold liable families lawfully exercising religious freedom while letting industry have almost complete liability protection seems peculiarly asymmetrical and unjust. Overall, Dr. Caplan seems to suggest an implied duty to vaccinate on all members of society. Yet the legal foundation for such a duty is shaky, as there is no clear analogue in tort or criminal law for a duty to rescue, even if a person may do so at little or no cost to herself. [See, e.g., Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247 (1980) (evaluating the case for imposing a duty to rescue).] If the common law has been unwilling to impose a duty to rescue, Dr. Caplan is likely wrong as a matter of law to suggest that civil liability is a viable work-around for limiting religious vaccination exemptions.

New York State law permits people to refuse vaccines for “genuine and sincere religious beliefs.” [N.Y. Pub. Health Law Section 2164(1)(a) (Consol.2011).] The rationale behind this is that some people have deeply held religious and ethical convictions that conflict with vaccination. Freedom of religion is the first civil right in the First Amendment to the U.S. Constitution; it is the bedrock of U.S. law and culture. Similarly, religious tolerance is a cornerstone of New York State’s historic peace and prosperity. The right to affirm a religious objection to vaccination is part of New York’s heritage. To repeal that, or to subvert it through civil liability, would be to unravel some of the bonds that hold together New York’s extraordinarily diverse society.

Concerns about infectious disease outbreaks are real, however. In the event of an outbreak, unvaccinated children must remain home from school until the outbreak subsides. Such lawful quarantines during public health emergencies respect the rights of all, including the unvaccinated.

Despite sharp disagreement about civil liability, on one important point Dr. Caplan and I agree. He notes in his post that “newborns can’t benefit from vaccines.” Dr. Caplan is correct that there is no compelling science suggesting that newborns’ undeveloped immune systems can benefit from vaccination. Given this acknowledgement, I expect that Dr. Caplan agrees that the federal recommendation that newborns receive the hepatitis B vaccine while still in the hospital is unwise. Dr. Caplan appears to agree that the infant hepatitis B vaccine recommendation and its associated mandates are irrational and violate the Constitution’s 14th amendment equal protection and due process clauses. [See Mary Holland, Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, 12 Yale J. Health Pol’y L. & Ethics 39 (2012).]

Dr. Bernadine Healy, the late Director of the National Institutes of Health, wrote, “Vaccine policy should be the subject of frank and open debate, with no tolerance for bullying. There are no sides – only people concerned for the well-being of our children.” [book cover blurb, Vaccine Epidemic.] In that spirit, I commend Dr. Caplan for initiating an important debate about civil liability, religious freedom and vaccination.

57 thoughts on “Guest Post: Crack Down on Those Who Don’t Vaccinate?: A Response to Art Caplan

  1. It’s difficult to craft respectful and yet dissenting opinions in response to someone else’s take on an issue. Regardless, you’ve done that well here in response to Mr. Caplan’s stance on vaccination. You cannot force people to get vaccines, as you remind the audience, and vaccines are not fail-safe! And yet you still find a bit of common ground. Thank you for a well-written and diplomatic editorial.

    • How does one address the enigmas that are present in medical science and its applications to paediatric populations ?

      For instance science now understands that children defined by psychologists and psychiatrists as having Autism Spectrum Disorder (ASD )are not only a product of behavior but have a physiology, neurology, and genetics that have to be understood in formulating a complete medical overview of that child.

      As to ASD children, their physiology shows quite clearly a number of immune system dysfunction biomarkers and also biomarkers for chronic inflammation.

      Their genetics show key immune system pathways that are at the heart of ASD pathology. Of particular note genes surrounding bacterial, viral clearance and the Major Histocompatibility Complex (MHC).

      At this time and evidenced by various established researchers in ASD, children will also co-morbidly have a 40% – 50% incidence of epilepsy.

      Researchers have also begun to show clear interactions and relationships with allergy and atopic diseases.

      Medical research has begun to understand a number of paediatric conditions to be interlinked with the immune system and it’s function or dysfunction as the case may be … this includes anxiety , depression , ADHD and even conduct disorder.

      The questions on ASD etiology and pathology are open. That they have not been answered thus means that one should proceed with due caution … taking into account the research noted previously.

  2. Extremely well written. Vaccines are not safe. Disregarding the testimony of thousands of families who have witnessed injury first hand is a dangerous practice that has become all too common. Holding vaccine injury reports to an impossible standard of proof puts many children at risk and shuts down a debate that needs to be had. I’m sorry some feel as Art Caplan does but being punitive, litigious and dismissive of people with vaccine safety concerns who simply want medical freedom will not make the reality and prevalence of vaccine injury go away.

    • “Disregarding the testimony of thousands of families who have witnessed injury first hand is a dangerous practice that has become all too common.”

      Are you talking about the 5,000 cases decided by the Autism Omnibus Proceedings?

    • Have you got any studies to prove that the exceedingly rare serious adverse events that have been documented as actually associated with the administration of a vaccine, are by orders of magnitude greater than the consequences of not vaccinating children? I didn’t think so.

      Here…try and refute these facts about the consequences of not immunizing children against serious, sometimes deadly, vaccine-preventable diseases:

  3. Some old-fashioned torts analysis would be helpful here.
    From a torts perspective, the fact that vaccines bear some risk is not determinative — since all behavior bears some risk. (That’s the B for “Burden” under BPL.) Instead, the fact of risk (or burden) is only one factor to consider against the benefits to society. The negligence analysis requires people to take reasonable risks. And the textbook example of negligence is one where an individual seeks to avoid imposing burdens on self and thereby externalizes risk to others.

    Additionally, the fact that some vaccinated people may spread disease is completely irrelevant to whether unvaccinated people are acting unreasonably and thus should be liable. Likewise, drivers may cause accidents non-negligently, but that is no bar to liability for the negligent drivers. (That’s why causation and fault are separate elements. Causation is necessary but not sufficient.)

    The closest that this fact would come to being relevant would be if one were claiming that the risk of spreading disease is equally as high for those vaccinated and unvaccinated. That claim would undermine causation. But of course, that’s generally not true.

    The First Amendment point also seems to be a red herring when we are talking about health and safety laws of general applicability, such as tort liability. Suppose someone has a religious opposition to internal combustion engines, and then takes their horse and buggy out on the interstate causing a huge accident. Or suppose a truck driver has a religious opposition to the use of brakes, preferring to leave stopping in God’s hands. I’m not expecting a court to grant tort immunity to those persons.

    The religious exemptions we do have are creatures of statutory law — not the First Amendment. And they generally don’t require any sincerity in religious belief. In many (perhaps most) cases, those who refuse to vaccinate do so for non-religious reasons anyway. If there really were an exemption only for religious people, in my view, that would violate the establishment clause.

    I’d say that the best argument against tort liability for those who refuse to vaccinate would actually be the non-feasance rule. Of course, that problem could be (and perhaps already is) rectified by a statute that imposes a duty.

    • I do not have nearly as much understanding of the law as you obviously do, but you may want to do some additional research on your third paragraph. In many many instances, the risk of spreading disease is equally as high (sometimes higher) in vaccinated indivuals. Take a look at pertussis first, then all the live virus vaccines- as the author states the case where a man caught polio from his recently vaccinated daughter. In fact, the only strain of polio which has been documented in the states in the last 30+ years has been the vaccine strain. In that case, it can always be traced to a vaccinated person.

    • Vaccination is not a behavior. It is a medical intervention that is marketed as preventative medicine to individuals by profit making corporations that have been convicted of criminal fraud and paid billions in fines in the last decade for introducing to the market drugs that they knew were causing morbidity and mortality and for continuing to sell those drugs until they forced to stop. These same entities propose to have vaccines, other drugs in their product line, mandated from cradle to grave. It is a $30 billion dollar a year business and growing, while these entities enjoy no legal liability for the efficacy or safety of these products. These same manufacturers control the ingredients and testing without adequate oversight. Potential recipients, consumers of these products, should have the choice to accept or reject these products, just as with any other product, based upon full informed consent, without bias and without exclusion of known and unknown adverse effects. Further, researchers should have to divulge to the public and to the medical community, results of all studies, not just those that have corporate friendly outcomes, as it is now.

      It bears repeating: Vaccination is not a behavior.

      • I agree that the decision to not vaccinate is plausibly not a behavior, which thus gives rise to my point at the end about nonfeasance. But going into public is a behavior, and if doing so without vaccination is unreasoanble, then that’s a behavior subject to liability.

    • “Additionally, the fact that some vaccinated people may spread disease is completely irrelevant to whether unvaccinated people are acting unreasonably and thus should be liable.”

      Vaccine-strain antigens on the US schedule are presently either killed or weakened.

  4. Dr. Caplan’s narrow interpretation of liability, would also presumably, exclude Dr. Caplan. Given his age, it is reasonable to presume that he has only been immunized with a tiny portion of the 70+ vaccines currently scheduled. A person Dr. Caplan’s age would have received less that 10 vaccines. Making Dr. Caplan a threat to so-called ‘herd immunity.’

  5. Mary, excellent refutation of Art Caplan’s (don’t have it in me to call him a doctor…one who first does no harm…one who heals…one who cares about patients and their health) article, which appears to be borne of complete ignorance, pathetic arrogance, blatant falsehoods, and shall I just say sheer stupidity. His article is so awful that it truly deserves no comment. Yet, in our Big Pharma-owned country where dangerous and ludicrous ideas like his are spewed forth in the Big Pharma-owned media, articles and ideas such as his must be countered and refuted. Truth must be put forth for the public. Your article is spot-on, intelligent, well-written, and truthful. Thank you, Mary, for doing what you can to protect the public from dangerous, foolish men like Caplan.

  6. I’m curious crobertson about a claim you make.
    “The closest that this fact would come to being relevant would be if one were claiming that the risk of spreading disease is equally as high for those vaccinated and unvaccinated. That claim would undermine causation. But of course, that’s generally not true.”
    Do you have any data to back that up? Are you sure that many if not most illnesses that we have vaccines for aren’t transmitted from the vaccinated to the unvaccinated as described in the article above as well as here:
    I’d be curious to see your response since you don’t cite your sources and I’m not sure you have any for your claim which would completely undermine the rest of your argument.

      • Autism newsbeat

        Obviously vaccine have effect, that is quite undeniable. We also know they have adverse effects and we now also know through the works of infectious disease specialists that they have non specific effects on overall mortality in low income countries and non specific effects even in third world countries.

        Interestingly there seems to be an association between vaccine implementation and the prevalence of autoimmune disease and atopic diseases that needs to be unpacked.

        There is also the work undertaken by Italian epidemiologists focusing on childhood infectious disease and leukemia in adulthood. Some infectious diseases seems to be protective

        “A protective effect of at least one infection (OR = 0.66, 95%CI: 0.45-0.97), measles (OR = 0.57, 95%CI: 0.39-0.82) and pertussis (OR = 0.66, 95%CI: 0.45-0.98) was observed for chronic lymphoid leukaemia (CLL).”

        Interesting times indeed as this is not the first or last piece of medical science that indiactes a complex relationship between bacteria / virus and human disease / mental health outcome.

  7. If you are vaccinated you shouldn’t have to worry about the unvaccinated because you are vaccinated and vaccines are supposed to effectively protect those who are vaccinated. If the unvaccinated give all the unvaccinated the disease and it kills them then the vaccinated have nothing to worry about because “all the unvaccinated nut jobs” will have killed themselves off leaving the vaccinated to rule the world. I do hope there will be people around be around to take care of my vaccinated son with autism.

    • No, Cheryl, vaccinations do not provide 100% immunity. They reduce the odds of infection. Think of them like seatbelts. They don’t provide a 100% survival rate in car accidents but they reduce the chance of death. Your argument is similar to saying that drunk drivers should not have liability because seatbelts should keep all their victims safe.

  8. Hi Jaffleck — I’m just providing a legal analysis, not intending to make scientific claims either way. I didn’t take Prof. Holland to be claiming that vaccinated and unvaccinated people are equally likely to spread disease. And, I don’t see the non-peer-reviewed website you linked making that general claim either. My point was just that tort liability’s causation element would require the plaintiff to prove that the defendant’s decision not to vaccinate substantially increased the plaintiff’s risk of infection. Without such proof of causal efficacy of vaccine, then no tort liability would apply. I could imagine specific cases where a vaccine didn’t work — notwithstanding proof of efficacy to the FDA. But, given the scientific studies required by the FDA approval process, I would generally presume that FDA-approved vaccines reduce the risk of transmitting disease.

  9. Caplan’s editorial is a chicken neck attack on freedom – too many of which the people of the world have had to suffer from disgusting Eugenicist’s of his ilk. This man should be shunned from the community and revealed as the water-boy for the Pharmaceutical industry that he so clearly and desperately is…..what a sad excuse for a human being…..Doctors are supposed to heal – not lobby for punishment!!!

  10. My son has had both doses of the MMR. His titers test results are zero. I imagine that he could contract and transmit those diseases. The results are the same as if I had never vaccinated him; save for the vaccine injuries.

    But let’s say I hadn’t vaccinated him and he contracted and transmitted measles. I am to be sued even though as I now know, vaccination wouldn’t have made a difference? It’s just a guess to say unvaccinated people if vaccinated, would have protection or would protect anyone else. And isn’t it really a matter of faith when we accept the efficacy claimed by the pharmaceutical companies? ( see whistleblower suit regarding the efficacy of the mumps portion of MMR)

    I don’t think these types of lawsuits would fly but if they did, perhaps we would then see the real rate of failure for these vaccines.

    • Cut and paste Spam directly from Age of Autism, because you were directed to Spam this comment section to “support Mary”.

      • These facts remain:
        There is no guarantee of immunity through vaccination as our experience illustrates.
        There are risks involved in vaccination.
        Not all vaccines prevent carriage or transmission.
        Some vaccines (live virus) cause shedding.
        The same companies that make vaccines have been fined (amazingly no one has been jailed) for acts of fraudulent behaviour regarding their other products.
        With a guaranteed market and no liability, vaccine manufacturers are not compelled to improve the safety of their products.

        • Those are “factoids”, not facts.

          How about providing links to citations from first-tier peer-reviewed medical and science journals to backup your statements?

          • Here are the links to support the facts mentioned in a previous post:

-There are risks involved in vaccination.

            Links to package inserts:

            This is from the MMR package insert: “The health-care provider should inform the patient, parent, or guardian of the benefits and risks associated with vaccination. For risks associated with vaccination see WARNINGS, PRECAUTIONS, and ADVERSE REACTIONS.”

            If there were no risks there would be no need for a compensation fund set up by the government:

            “The Vaccine Injury Compensation Trust Fund provides funding for the National Vaccine Injury Compensation Program to compensate vaccine-related injury or death claims for covered vaccines administered on or after October 1, 1988.”

-Not all vaccines prevent carriage or transmission.

            Pertussis is considered an endemic disease, characterized by an epidemic every 2–5 years. This rate of exacerbations has not changed, even after the introduction of mass vaccination – a fact that indicates the efficacy of the vaccine in preventing the disease but not the transmission of the causative agent (B. pertussis) within the population. (2006)

            “The second is that all pertussis vaccines tend to modify duration and severity of disease rather than completely preventing illness.” (1999)

-Some vaccines (live virus) cause shedding.
            Available data indicate that both children and adults vaccinated with live-attenuated influenza vaccine (LAIV) can shed vaccine viruses after vaccination

            -The same companies that make vaccines have been fined (amazingly no one has been jailed) for acts of fraudulent behaviour regarding their other products.

            • Package inserts are lawyer written screeds that do not contain relative risk. They are more CYA drivel than data.

              NVICP has awarded less than 3400 cases in over twenty years. About four million children are born in the USA each year, that makes the number of vaccine doses given to children in those years in the billions. The ratio of compensation to vaccine doses is very very tiny (like you need at least six zeros to the right of the decimal point). And injury from vaccine is much much less than any of the diseases.

              The pdf for pertussis presents as “This page cannot be found.” The main page is in Hebrew. In the future stick to PubMed Identification Numbers.

              The next pertussis bit is not all that surprising. It shows that even if you get the disease, the vaccine makes the length of suffering less. Why is that bad? Also, getting the actual disease and coughing your lungs out does not confer permanent immunity (common with bacterial diseases):
              Pediatr Infect Dis J. 2005 May;24(5 Suppl):S58-61.
              Duration of immunity against pertussis after natural infection or vaccination.

              Wow, you found exactly one vaccine on the current American pediatric schedule that sheds. Woo hoo. It is just one type of influenza vaccine, a vaccine that very few children actually get. The CDC page also says this: “In rare instances, shed vaccine viruses can be transmitted from vaccine recipients to unvaccinated persons. However, serious illnesses have not been reported among unvaccinated persons who have been infected inadvertently with vaccine viruses.”

              Um, it is seriously not like getting a secondary vaccinia or polio infection, is it? So, again, what are the relative risks?

              Oooh, a website reference called “fierce pharma.” Now it this is about vaccines. What kind misdeeds did Johnson and Johnson (A Family Company) commit? Did they adulterate some baby oil? It does not mean a thing unless you are specific to a product. Otherwise the term for this tactic is called “poisoning the well.” You are inferring misdeeds without any specifics.

        • “Some vaccines (live virus) cause shedding.”

          Citation needed. That means a PubMed indexed study that this is common with a vaccine on the American pediatric schedule.

          “There are risks involved in vaccination.”

          Please provide a PubMed indexed study that clearly shows the risk of a vaccine on the American pediatric schedule exceeds that of the disease.

  11. I thought about my response and there is no way to put it other than Art Caplan needs to keep his thoughts in the medical profession and leave the legal issues to the lawmakers, lawyers and insurance professionals! If we could hold the vaccine makers and those who are vaccinated pay up if they caused injury or illness, then I would be all for holding those who don’t vaccinate liable. Not ever going to happen and if it did, the only ones who would more than likely be able to pay would be the vaccine makers. What private individuals carry insurance to protect them from injury due to their personal negligence? A small number, I am sure!

    Another thought that I have is how would someone go about proving which individual that they caught a specific disease or illness from? Caplan represents a greedy bunch of people called Big Pharma. He thinks that people are so stupid as to be afraid of this threat and go get their kids vaccinated and that is the only reason he is writing such ridiculous articles. He also seems like the type who needs attention and this gets him attention.

    At the end of the day, I seriously doubt this will ever happen, because it just is not practical. Either the judicial system is going to be tied up with small value lawsuits or health carriers are going to have to waste lots of time and money trying to pursue subrogation against allegations that will be hard to prove and if it is proven, will never be able to collect upon!

    Just the thoughts of an autism parent and Claims Adjuster of 20+ years!!!!

  12. I have 4 kids oldest fully vaccinated no probs..2nd oldest born perfect met milestones before his peers…

    He then had the MMR as his older brother had and hey presto! Adverse reaction to the jab,temp of 103 ..head the size of a baloon, green puss coming out of his ears, and covered head to toe in a red rash…now aged 15 years old with a school assessed age of around 2 years at best.

    I also have a boy aged 9 years old and a girl aged 7 they have had no vaccines whatsoever, oral or otherwise…they have never been to the doctors not once for any illness both have had measles and chickenpox. Which looked worse than the inconvenience was to them ..they weren’t ill..

    Thats my own little study sadly to late for my 2nd oldest.


  13. On the other side of Caplan’s view, under current levels of mass uneducation, society remains without compulsion to rescue the vaccine injured (and others will iatrogenic injuries), and tolerates, even compels the injury, tolerates denial efforts that blame the victim, blame the parent, or blame God/nature/genes the consequences, and also tolerates and compels sometimes enslaving lifelong mainstream medical maintenance that is sold under the appellation “healthcare,” and tolerates the intensive campaign to keep us as ignorant as possible of other options.

    I can’t argue for compulsion to rescue the vaccine injured, but without sincere efforts to prevent and recover such injuries, to at least seek to know and openly acknowledge the full extent that injury occurs, I also can’t be persuaded that ethics are behind calls for compulsory vaccination.

  14. If Mr. Caplan wasn’t friends with vaccine pusher extraordinaire, Paul Offit, I might buy that he actually believed his own B.S. Because of his relationship with Mr. Offit, he just comes off as disingenuous. Thank you Ms. Holland, for your response to another attempt to protect his friend from what he wrought but cannot admit to himself.

    • On this sort of ad hominem analysis, do we need disclosures about every person that Professor Holland may be friends with?

  15. Ms. Holland, I am not a lawyer, so I will not argue the legal citations you used in your rebuttal to Dr. Caplan; Dorit Reiss has done a superb job in her rebuttal to you.

    I am wondering why you chose a citation dating back to 1987 to back up your claim that children vaccinated against measles have been implicated in measles outbreaks:

    “And what if disease breaks out in a highly vaccinated population, with no unvaccinated person to finger? There have been numerous outbreaks of mumps, measles and pertussis with no initial cases traced to unvaccinated individuals. [See, e.g., Nkowane et al, “Measles Outbreak in a Vaccinated School Population: Epidemiology, Chains of Transmission and the Role of Vaccine Failures,” AJPH April 1987, 77, no. 4.] Presumably, Dr. Caplan would argue no liability should inure to industry because the sale of ineffective or defectively designed vaccines does not constitute negligence.”

    You do realize, don’t you, that, that particular measles outbreak, was in a group of children who had only received one measles vaccine? You do realize don’t you, that outbreak and other measles outbreaks, peaking 1989-1991, caused the CDC to investigate the immunity conferred with just the one measles vaccine? The ACIP and the CDC, through careful monitoring and testing for IGG measles antibodies caused the ACIP and the CDC to make a recommendation for a second MMR vaccine, to ensure that effective herd immunity against Rubeola?

    “…Measles vaccine produces an inapparent or mild, noncommunicable infection. Measles antibodies develop in approximately 95% of children vaccinated at 12 months of age and 98% of children vaccinated at 15 months of age. Seroconversion rates are similar for single-antigen measles vaccine, MMR, and MMRV. Approximately 2%–5% of children who receive only one dose of MMR vaccine fail to respond to it (i.e., primary vaccine failure). MMR vaccine failure may occur because of passive antibody in the vaccine recipient, damaged vaccine, incorrect records, or possibly other reasons. Most persons who fail to respond to the first dose will respond to a second dose. Studies indicate that more than 99% of persons who receive two doses of measles vaccine (with the first dose administered no earlier than the first birthday) develop serologic evidence of measles immunity….”

    That Pace Law School Study (EBCALA), that you published of children who “supposedly” received compensation from the Vaccine Court for vaccine-induced-autism was dissected by a number of science bloggers…who found that you somehow changed the criteria for the awarding of damages for encephalitis into the awarding of damages for autism.

    Did you in fact, submit that study to the Institutional Review Boards of Columbia University and Pace University-School of Law?

    Do you think that your lead investigator Louis Conte, who is an ex-cop and who has triplets diagnosed with ASDs, is qualified as a medical researcher? Mr. Conte is also a frequent guest blogger on the Age of Autism, a notorious anti-vaccine, anti-science blog.

    Do you yourself, consider yourself to be a trained and qualified medical researcher and, do you have any undeclared conflicts of interest?

  16. The lack of good faith behind the present vaccination programme is demonstrated by the use of nasal flu vaccine which under normal circumstances sheds and puts the vulnerable unvaccinated at risk:

    This is completely at odds with principle of vaccinating one population to protect another (although that is dubious enough), as in the instance of pertussis vaccination. The only principle which links them is the great benefit to the industry and its cronies.

    • There are many ways of scientifically ascertaining that a child whose parents deliberately did not vaccinate their child, and infected a child who was too young to be vaccinated…or a child who has real medical contraindications to receive a vaccine.

      You are responsible, under the law, for a tort injury, due to your negligence and most people have coverage for their negligent acts…covered under the homeowner or home renter policy. If you are found guilty of a negligent act and are under-insured, the plaintiff can seek a judgment against you and execute that judgment by liens against your personal property and your future earnings. You’re a “claims adjuster of over 20+years!!!!”, why don’t you know that.

      lilady, R.N.,BSc-Nursing, Public Health Nurse/Clinician-Epidemiologist (retired)

    • Tacky, Tacky Mr.Stone….linking to your own blog Age of Autism.

      How many vaccines have you ever administered? Have you ever screened a patient for valid medical contraindications? You do know, don’t you, that doctors and nurse intently screen each and every vaccine recipient for existing medical contraindications and prior medical history of an allergic reaction to vaccine components?

      The only “vulnerable” populations which have a “theoretical risk” to become infected with the live attenuated intranasal seasonal flu vaccines are those that are listed in the screening tool…which includes those in “protective isolation” a.k.a. reverse isolation who are undergoing extensive immune suppressing treatments such as bone marrow transplants. Doctors and nurses who care for such patients do not receive the intranasal flu vaccine, because of that “theoretical risk”.

      How about citing an actual case of flu transmission associated with receipt of the intranasal vaccine?

    • “The lack of good faith behind the present vaccination programme is demonstrated by the use of nasal flu vaccine which under normal circumstances sheds and puts the vulnerable unvaccinated at risk.”

      Just what sort of virus might be transferred to “the vulnerable unvaccinated” via exposure to virus shed following nasal influenza vaccination?

      That’s right, a mutated, weakened virus that can replicate only at the relatively low temperatures in the nasal passages but cannot replicate at the higher temperature in the lungs: that is, a virus that CANNOT CAUSE THE FLU.

  17. It’s amazing the lengths vaccine manufacturers go to exempt themselves from this debate. A parent cannot sue a manufacturer if a child gets injured by vaccines b/c the law exempts the manufacturer from lawsuits. If Dr. Caplan has his way, a parent should be able to sue another parent if their child gets sick from an infectious disease but not sue the manufacturer if a vaccine fails to protect in the first place- again exempting manufacturer. By pitting parent against parent, the vaccine manufacturers keep the focus off themselves, protect their product and, most importantly, their bottom line. Furthermore, they can use fear of lawsuits to ensure compliance- meaning they will sell more product. A perfectly Macchiavellian business strategy.

    • If the vaccine fails to to protect in the first place, then there would be no liability against the person who refused to vaccinate, because there would be no causation. Thus, this random hypothetical doesn’t undermine the case for liability.

  18. Ms. Holland: “Yet the Institute of Medicine, one the country’s most prestigious health organizations, has acknowledged repeatedly that there are many known vaccine injuries, such as seizures from the measles-mumps-rubella vaccine, anaphylaxis from the meningococcal vaccine, and encephalitis from the varicella vaccine.”

    And what are they compared to actually getting measles, mumps, meningicoccal disease and chicken pox? I ask as a parent of a permanently disabled adult who had seizures from a now vaccine preventable disease. So what is the risk of seizure from the MMR versus measles? Can you say? Is it one in a thousand (which is the risk of encephalitis from measles), or is it more like one in more than a million? Be honest.

    Since you are all good at lawyer like research, can you answer a few questions that no one seems to want to answer? The USA approve a Jeryl Lynn mumps containing MMR vaccine in 1971, and it was the preferred vaccine for the 1978 Measles Elimination Program. So there is more than a decade of MMR use in the USA, the third most populous country on this planet, yet Wakefield used less than a decade of MMR use in the UK (a much smaller country) to suggest one of the three UK approved MMR vaccines caused autism.

    First question: Which of the three MMR vaccines approved for use in the UK between 1988 and 1992 was Wakefield studying? And why did he include an American kid who had a completely different MMR vaccine?


    What research dated before 1990 shows that the American MMR vaccine caused autism?

  19. Mary Holland’s response to Dr. Caplan is both brilliant and well written. Many of the comments questioning the ethics of Dr. Caplan, the pharmaceutical industry, the medical establishment, the various Governmental agencies like the CDC and state governments mandating vaccinations and the major media who continuously promote the so-called benefits of vaccination while ignoring the very real risks need to be shouted from the rooftops. The economic and political power of this quartet is enormous and the lack of power of the parents of children who have been damaged by vaccines is sad and frightening. I don’t foresee that all of this will change anytime soon.

    • Please post the PubMed indexed study showing those “very real risks” from vaccines are more than caused by any vaccine on the present American pediatric schedule? Is the American MMR vaccine, that has not changed since 1978 (different rubella strain) cause more encephalitis than measles (which is one in a thousand)? If it is so terrible, how come there have been less than five hundred cases of compensation in the past 24 years for any measles vaccine, when at least (23 years* approx 4 million children/year) 95 million children have been vaccinated (.0005%)?

      And how much more does it cost to provide each child two MMR doses compared to treating one out of ten children in the hospital for measles? At the present time, as noted in Wales and France, about one in ten get hospital, mostly from pneumonia (and from my experience, hospital care for a child on a respirator is not cheap!). Measles is so contagious that before there was a vaccine 95% of children had it by age fifteen. Here is what a citation looks like:
      J Infect Dis. 2004 May 1;189 Suppl 1:S131-45.
      An economic analysis of the current universal 2-dose measles-mumps-rubella vaccination program in the United States.

      • Correction: “are more than caused by any vaccine on the present American pediatric schedule?”

        Should be: on the present American pediatric schedule are more than caused by the disease?

    • You wouldn’t happen to be the Michael B. Schachter, MD, CNS, who is an “alternative medicine psychiatrist” and who is a frequent poster on Age of Autism, would you?

      That Dr. Schachter advertises chelation *treatments* on his web page, and has posted on AoA that he tests all patients “for heavy metal toxicities…including mercury toxicity, caused by amalgam fillings and vaccines”.

  20. Chris you would be interested in this research undertaken by Japanese researchers in 2003. Those researchers were trying to establish a relationship between MMR Vaccine, Monovalent Vaccine and Autism.

    The results were quite interesting when they used MMR as the reference point.

    1. monovalent measles immunization (odds ratio [OR] = 5.33)

    2. non-mumps immunization (OR = 8)

    3. non-rubella immunization (OR = 8.57)

    with development of autistic spectrum disorders (ASD) were significantly increased.

    What this research seems to indicate ?

    1. There is a relationship between the mumps virus and autism

    2. There is a relationship between rubella virus and autism

    3. There is a relationship between measles vaccines and autism.

    4. MMR is safer than monovalent vaccine in terms of its relationship to Autism.

    Thus there is need for further robust study to untangle the varying relationships between a vaccine and autism, considering that monovalent vaccine is still in widespread use particularly in the Third World.

    • So where is the citation? I just have your word for it, where is the PubMed Identification Number? What is the title? What journal is it in? Who did the study? And which DSM was autism diagnosed with? And the Japanese MMR was one with the Urabe mumps strain, it has nothing to do with the American vaccine that has been in use for over forty years.

      Where is the PubMed indexed study for the American MMR dated before 1990? It would go a long way to show that Wakefield had some real data to go on, and not the UK taxpayer funds (Legal Aid) flashed in front of his eyes by a lawyer, Richard Barr.

    • It’s strange that you and the authors of the study that you mentioned but did not cite differ so completely in their interpretation of their work.

      Takahashi et al. wrote: “In conclusion, the former Japanese MMR and other immunizations have demonstrated no harmful causal association with ASD in Japanese children.” [Jpn J Infect Dis. 2003 Jun;56(3):114-7.] The authors also discuss why their results might be, as they suggested, “exaggerated”: for example, they comparisons in the small study group was based on only FOUR children in the small case group that received MMR. That’s right: four.

  21. A lot of anti vaccination people were directed here by links on the Age of Autism page. I think it’s important for those parents to realize, if your child did become autistic right after vaccination, with a dramatic change, first, the fact you find other parents, even hundreds, reporting the same experience does not prove much. People are able to find each other through the Web and form groups even when they are a very small percent of the population.
    Also, the mitochondrial disease researchers believe, or some suspect, it’s immune stimulation that causes the problem. Your kid could have gotten a fever with the same result most likely. The fact overall autism rates are very close in vaccinated and non vaccinated indicates one or both of the above are likely true.
    Either it’s rare for vaccines to cause autism, or the people who got it from vaccine would have gotten it next time they got sick with fever or both.
    But a point about vaccination – I recognized there is herd immunity and protection of a population is highest when all people have been immunized. But there is no reason to think the vaccine “takes”, confers immunity, any more or less often in the anti vaccine person than a pro vaccine person. You can get vaccinated, and you will be protected most of the time except when it fails. But if Jenna McCarthy’s kid makes you sick, it’s because the vaccine failed in your body. It might just as easily have failed in her kids. Why is she responsible for the vaccine not working for you? I don’t think we should extend personal liability to things as unprovable in an individual case as whether herd immunity might have prevented something. That would be a very bad world to live in because so many innocent non-reckless actions are more likely to cause a problem. We would be liable for everything, and in the case of infectious disease, to everybody, (your kid gets whooping cough, no one knows from who but you find an unvaccinated person with the same strain (if they can do genetic testing on it, not sure) and you sue him, even though there is no proof he gave it to your kid)
    It’s frightening to me anyone can seriously suggest such a legal theory.

  22. I would like to also point out with regard to herd immunity, if vaccines were 100% effective then we would not care what anyone else does, after all we get the shot and are safe.
    If they were 100% ineffective then we would not care. As for the elderly being vulnerable, can they get an extra shot? I thought that was fairly reliable, if not the forced vaccination makes more sense I guess. I am not at all against vaccines I just think making people liable for everything is a nightmare world.

    • You raise some good points, especially about Age of Autism sending people here to copy paste their comments.

      Having the 2-dose regimen of MMR confers immunity to 99 % of the people who receive that vaccine and the immunity lasts a very long time (most probably lifelong), because the CDC monitors the safety and efficacy of all vaccines, after they are licensed through the VAERS (Vaccine Adverse Event Reporting System) and through the VSD (Vaccine Safety Datalink) system.

      Having a highly immunized population (herd immunity) prevents outbreaks.

      You raised the question about determining who the “index case” was during an outbreak, through typing of the strain of measles (and other diseases). Here is a classic example of how “trace back” epidemiological studies are done by genotyping the strain of measles from the “index case” and in subsequent measles cases during the measles outbreak in Minneapolis, 2011.

      “On March 2, 2011, the Minnesota Department of Health (MDH) confirmed measles in a Hennepin County resident aged 9 months. As of April 1, investigation of contacts and heightened surveillance had revealed a total of 13 epidemiologically linked cases in Hennepin County residents. Of those cases, 11 were laboratory confirmed, and two were in household contacts of confirmed cases and met the clinical case definition for measles.

      The patients included children aged 4 months–4 years and one adult aged 51 years; seven of the 13 were of Somali decent. Eight patients were hospitalized. Vaccination status was known for 11 patients: five were too young to have been vaccinated, and six (all of Somali descent) had not been vaccinated because of parental concerns about the safety of the measles, mumps, and rubella (MMR) vaccine. The most recent rash onset was March 28. An additional, unrelated case of measles was confirmed in a Hennepin County resident aged 34 years who was exposed in Orlando, Florida, sometime during March 1–10.

      The investigation determined that the index patient was a U.S.-born child of Somali descent, aged 30 months, who developed a rash February 15, 14 days after returning from a trip to Kenya. The patient attended a drop-in child care center 1 day before rash onset; measles developed in three contacts at the center and in one household contact. Secondary and tertiary exposures occurred in two congregate living facilities for homeless persons (four patients), an emergency department (two patients), and households (two patients). A virus isolate from the index patient was genotyped at CDC as B3, which is endemic in sub-Saharan Africa.”

      There is a back story to this outbreak. Andrew Wakefield, the disgraced and discredited former medical doctor is funded by Jenny McCarthy’s “Generation Rescue”, and by its affiliated group Age of Autism…through Wakefield’s “Strategic Autism Initiative”. Wakefield made at least three trips to Minneapolis (that we know of); two trips before the measles outbreak amongst Somali children, and one trip during the outbreak, to meet with Somali parents to dissuade them from having their children immunized against measles…based on his own new “theory” that Somali children who are immunized against measles are at great risk for autism.

      So, I pose two questions to you.

      What if your infant who was too young to be immunized against measles, attended day care in Minneapolis and ended up hospitalized because of a deliberately unvaccinated older child infected your baby…would you want to sue the irresponsible parent?

      What if your infant, in spite of being hospitalized with excellent care, was the one in one thousand cases of measles, who was left with permanent neurological sequelae due to measles encephalitis…would you want to sue the irresponsible parent?

      • To say that not vaccinating your child is a personal choice is not a valid response to this issue. Because we live in a society where these diseases are very real, and because many of these disease are incurable, the personal choice has public consequences, so it’s not really a personal choice; further the choice endangers a large segment of the population (immunocomprimised people, infants, the elderly), so yes, these parents should be held accountable if their personal choice to not vaccinate affects other people.

  23. Thank you Mary Holland for providing a legal perspective. Most of us trying to cope with the catastrophe of an autistic child have devoted what spare time we have to finding out the medical issues involved in autism, especially what causes autism. Many of us have discovered that most “medical expertise” is badly flawed, and our questions evoke only hostility.

    It is interesting to find responses here from “lilady” which is clearly a pseudonym for a pharma-funded committee. Don’t trust any advice from a fictitious name with RN, BS etc. alphabet soup appended, and this committee clearly does not have its facts straight.

    • So what about us parents whose children are injured by an actual disease? Albeit, it was before the vaccine was available. But you do seem to forget that before measles is dangerous (encephalitis one out of a thousand cases), and that one actual known cause of autism is Congenital Rubella Syndrome.

      If the MMR vaccine actually caused autism then it would have been noticed in the 1970s and 1980s in the USA, since it was introduced there in 1971. Plus it was the preferred vaccine for the 1978 Measles Elimination Program. So that was at least a decade of data prior to the UK introducing three MMR vaccines in 1988. Where is the PubMed indexed study dated before 1990 that the MMR vaccine caused autism in the USA?

      And do try to answer honestly. Because the Pharma Shill Gambit is old, tired and worthless. It would perhaps work if you could actually come up some real data showing that giving two MMR vaccines is more costly than treating one out of ten children in the hospital for measles.

      The one of ten is from the recent measles outbreaks in Wales and France (in the latter is was closer to one in four), and measles is so contagious that before vaccination almost every kid had it by age fifteen (and several hundred ended up in cemeteries, and a few thousand institutionalized in places like Willowbrook).

  24. As a pediatrician who has seen unvaccinated chilcren brought up to Tucson from Mexico (where vaccination rates are lower) for treatment of vaccine preventable diseases (only to still die from them despite care from the best health care system in the world), I’d like to point out to all you folks who so stupidly belittle vaccines that we will soon be like third world countries if you keep driving down vaccine rates in the US. And, heaven help us if that should happen, I hope all those parents you lied to and duped into not vaccinating come hunting for your metaphorical heads and hold you liable for the harm you are causing to public health, and all the while not preventing a single damn case of autism.

    Chris Hickie, MD, PhD

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