By Dorit Reiss, Stanley A. Plotkin, Paul A. Offit
A new tactic has emerged in a few recent family law vaccination cases: using arguments created by the anti-vaccine movement.
Lack of familiarity with anti-vaccine claims can trip up even the most qualified expert. But a new resource library at the Vaccine Education Center at the Children’s Hospital of Philadelphia aims to combat anti-vaccine rhetoric and by giving experts the information they need to respond.
When a health professional serves as an expert witness, it can be an uncomfortable, adversarial experience. The health professional’s credentials, subject-matter comprehension, and even his or her credibility will be questioned.
Expert witnesses are crucial to vaccine cases, however, and they perform a valuable service. Likewise, courts need the assistance of experts who can communicate complex subjects to assist judges and fact finders in navigating unfamiliar technical and scientific topics.
Experts may be called upon to testify in family disputes where one parent wants to vaccinate and the other does not. They may also be helpful in disputes where the state wants to vaccinate children in its care over the objection of parents found not fit, as well as cases examining statutes or regulations addressing vaccine exemptions.
Vaccines have tremendous benefits and low risks. Both for an individual child and for public health, vaccines are usually the safer, best choice.
The exception is a narrow category of children with medical conditions, such as immunosuppression, for whom vaccination is unsafe. Immunocompromised children, however, depend on those around them being vaccinated to protect against disease – this is called “herd immunity.” We need experts willing and capable of defending that position. We need experts willing and capable of explaining the science and benefits of vaccination.
But, even widely accepted science may face challenges created by the anti-vaccine or “anti-vaxx” movement, and expert witnesses must be ready to refute anti-vaccine arguments.
In our adversarial system, a capable and well-prepared lawyer can use anti-vaccine claims to make a knowledgeable expert appear uninformed by asking questions drawing on the dubious ideas found on anti-vaccine websites.
These blogs and sites use a variety of tactics and tropes to create a seemingly plausible, though factually specious, narrative to scare parents from vaccinating. These tactics include, for example, in the words of anthropologist Anna Kata, “skewing the science” – drawing on flawed studies in journals with inadequate quality control, or misrepresenting valid studies to dismiss their findings or present methods and results as unreliable.
This is not an easy problem. A doctor may be a qualified expert because she understands why vaccines are important, what they do and how, the safety literature on vaccines, and the global consensus supporting them.
But she may not be familiar with the specific claims raised by anti-vaccine sources unless she has had direct exposure to vaccine discussions – by counseling hesitant parents or by online activism, for example. Even basic familiarity would not necessarily prepare her to refute specific claims drawing on flawed and even retracted studies that are part of the canon of the anti-vaccine movement, or on misrepresentation or cherry-picking of legitimate sources.
In a recent Michigan case, a father wanted to vaccinate and the mother did not. The father’s lawyer called the head of the local chapter of the American Academy of Pediatrics as a witness. Aaron Siri, a New York lawyer who has previous experience litigating vaccine injury cases, traveled from New York to participate in the cross-examination, suggesting that anti-vaccine activists saw this family law case as an important one.
The doctor in question found herself, simply due to lack of exposure to anti-vaccine themes, unable to answer some of the questions from Siri, whose arguments matched many of those raised on anti-vaccine sites. In this case, the judge allowed the proceedings to be televised, so the cross-examination could be observed. While the decision in the case has not yet come out, the cross-examination video has already been edited and used by anti-vaccine groups to make a highly qualified physician appear inept.
In the same trial, the mother’s expert, Toni Bark, M.D., one of the few doctors participating in the anti-vaccine movement, could not support her credentials on the topic in which she claimed expertise. She was ultimately not permitted to testify as a vaccine expert.
But in another case in Indiana, Dr. Bark was allowed to testify, and the court ruled that the child should not be vaccinated. The decision was overturned on appeal for different reasons, but by then irreversible harm was done. Because the child, at the mother’s request, was unvaccinated, the child was not allowed to see an infant half-brother (from the father’s new marriage) with a serious heart condition that made him especially vulnerable to disease. By the time the appellate court overturned the decision and ordered the child vaccinated, the infant had died. His half-sister never met him.
To protect the interests of the child in those cases, experts need to be prepared to respond to at least the better-known anti-vaccine claims. To support their experts, attorneys must be able to alert them to major issues of controversy.
To help experts and lawyers prepare for such cases, the Vaccine Education Center at the Children’s Hospital of Philadelphia has prepared a library of the most recent and strongest articles on common safety issues that may arise, in order to provide an aide and refresher to experts testifying against these claims. The references were selected by Drs. Paul Offit and Stanley Plotkin.
Hopefully, this library, open to lawyer, physicians, and others, can help both lawyers and experts deal with ill-founded anti-vaccine claims, and better protect children and the public health.
Armed with such a resource, we hope doctors and vaccine scientists will be more willing to serve as expert witnesses and face the challenges of so doing.
Dorit Reiss is a professor of law at UC Hastings College of the Law.
Stanley A. Plotkin is emeritus professor of pediatrics at the University of Pennsylvania.
Paul A. Offit is director of the Vaccine Education Center at the Children’s Hospital of Philadelphia.
