A model for resolving self-driving litigation

Across the street from the White House, there is a small court staffed by eight judges. Despite its high-profile location, few people know what this court does and why it exists.

Without it, the face of American health care could be radically different. And the structure of this court could hold the key to figuring out how the world of self-driving cars will unfold.

In the 1970s and 1980s, health care providers were seeing a troubling trend: Some children were suffering severe brain injuries after getting the DPT vaccine, which protects against diphtheria, pertussis (otherwise known as whooping cough) and tetanus.

The injuries put the pharmaceutical industry in retreat. The children's families had begun suing the vaccine manufacturers, some winning $5 million or more in settlements.

"There were a number of large verdicts against manufacturers, and they started to pull out of the market," said Anna Kirkland, a professor at the University of Michigan and author of the book Vaccine Court: The Law and Politics of Injury.

Fearing that the primary defense against these potentially fatal diseases was going to be sued out of existence, Congress passed the National Childhood Vaccine Injury Act in 1986. The legislation established a special court within the U.S. Court of Federal Claims, called the Office of Special Masters of the U.S. Court of Federal Claims, which is dedicated to hearing vaccine injury claims. 

That little court has awarded $3.6 billion to claimants over its 30-year lifetime. 

And it helped save vaccines.

There already has been some debate about how companies that make self-driving cars will deal with litigation.

Automakers, tech companies and safety experts tout the future technology as a way to drastically reduce the 35,000 fatalities that occur each year from traffic accidents. But people still will die in these cars as they adapt to a human-operated driving environment and as inevitable mistakes happen.

When people are injured, courts will have to decide who is at fault and how to appropriately assess damages. 

"There are various scenarios you could come across where you really don't know what could happen," said David Ratcliff, an American Association for Justice researcher. 

As the automotive industry attempts to address this regulatory snarl, the liability issue for vaccines shows that it's possible to find a workable solution to protect a lifesaving technology. 

With the development of the vaccine court, pharmaceutical companies no longer were liable for the vaccines they produced. Instead, claims could be filed against the Department of Health and Human Services, and a panel of three -- later to be expanded to eight -- judges, referred to as "special masters," would decide the legitimacy of the case. 

An excise tax on vaccines provides the money for damages and legal fees, which the government pays regardless of the case's outcome. Awards are capped at $250,000. 

The need for vaccine protections isn't unique to the U.S. Other countries were forced to address the issue of liability around the same time. Some turned to more executive procedures, such as a special council, while others relied on national insurance programs to cover the damages, Kirkland said. 

"We did this in the most American of ways," she said. "We made a court, and we put the lawyers in charge."

Though the vaccine court is technically a court, the rules are slightly different than for a typical trial. To begin with, it's much simpler.

There is no jury, and since cases are filed against Health and Human Services and not individual companies, plaintiffs don't have to prove fault on top of injury.

"The vaccine program does not really concern itself with the question "Did somebody do something wrong?'" said Isaiah Kalinowski, an attorney at Maglio Christopher & Toale in Washington, D.C., who handles vaccine injury cases. "They've cut a huge aspect out of a very complicated issue."

To determine whether a vaccine is responsible for the patient's condition, judges consult a table formulated from large-scale studies. If a case fits into the table -- for example, if a patient receives a vaccine containing a live polio virus and contracts polio within 30 days -- the case is open-shut. 

The straightforward nature of the court means more cases are heard in a shorter time period, and more families are compensated than when plaintiffs had to prove both fault and injury. To be sure, the damages paid out are much smaller than the few multimillion-dollar awards in the 1980s. 

"There are plenty of people who have been compensated who would never have been compensated in regular court," Kirkland said. 

In addition to helping more families, the court has benefited the pharmaceutical industry and public health. 

"Once the courts gave them protection, pharmaceutical companies started making a lot of money," Ratcliff said. 

And where there are profits, there is motivation to increase supply. In the late 1980s, vaccination rates dipped because of lower supply from manufacturers, leading to outbreaks of measles and similar preventable diseases, according to the College of Physicians of Phila-delphia. However, after the vaccine court began operating in 1988, vaccine production increased, and new immunizations for hepatitis A, chickenpox and rotavirus were licensed.

Despite the wide-ranging benefits of the vaccine court, it's far from perfect.

"It's really not a magic bullet," Kirkland said.

The trickiest, and most frequent, drawback happens when cases don't fit the table formula. In such situations, plaintiffs must present conclusive evidence, or the case is delayed until relevant scientific research becomes available.

As vaccines become more effective at preventing disease without damaging side effects, these edge cases are more frequent, Kalinowski said. And when patterns emerge -- as with SIRVA, which stands for Shoulder Injury Related to Vaccine Administration and can cause intense pain at the site of a vaccination -- it can take years for them to be formalized in the table.

"There was a whole time period in the 1990s and 2000s, and up until about 2015, where they were fighting for a lot more of these injuries to be recognized," he said.

These delays have affected those seeking relief from vaccine injury; the court sees about 600 cases a year, and less than one in three is compensated, on average, according to a report from Health and Human Services that was updated this month. However, many of those uncompensated petitions claim a vaccine caused autism, which is impossible to prove, Kirkland said. Excluding those cases, the compensation rate is closer to 50 percent. 

For more fundamental changes to the court's procedure, Congress has to pass an amendment to the act. This provision makes any kind of change virtually impossible, Kalinowski said. 

"It's last on the list for people to talk about," he said. "There's been one change to the law in 25-plus years." 

However, the court's low profile may keep it from being abused by bad actors -- and abate public fear of injuries from vaccines. 

"Only a very few number of things get this kind of liability protection," Kirkland said. "Without vaccines, all of these diseases would come back."

While the vaccine court may provide a structure that's tempting for self-driving cars to follow, giving special protection to automotive safety technology could have dangerous side effects, allowing companies to skimp on quality without fear of paying the price, Ratcliff said.

"Take the Takata airbags, for example," he said. "They're meant to protect you but could turn you into Swiss cheese. If a safety innovation turns deadly, you want the manufacturer to be held accountable."

While automakers may be able to survive liability issues without a special system, insurers could face a mess trying to determine who is at fault in a self-driving car accident, Ratcliff said. If insurers decide that covering self-driving cars -- or human-operated cars driving alongside autonomous vehicles -- is too risky, then accidents would have to be handled entirely by the justice system, which would further complicate the process.

"If there are no more insurance adjusters, no more insurance claims, then how do you deal with a rear-end situation?" he said.

In the end, liability protection for self-driving cars will be determined by their necessity to society and whether there are factors that could threaten their continued existence, Kirkland said.

"A company preferring to avoid liability is not a good reason to move it out of the tort system," she said.