Can Judges be Criminally Negligent?
The vaccine itself was judged unavoidably hazardous. The argument hinged on whether, if warned, Davis might reasonably have chosen not to be vaccinated. In answering it, the court wrote: "Thus appellant's risk of contracting the disease without immunization was about as great (or small) as his risk of contracting it from the vaccine. Under these circumstances we cannot agree with appellee that the choice to take the vaccine was clear."
They reached this conclusion by comparing the 0.9 in a million chance of getting polio from the vaccination with the 0.9 in a million annual rate of adult polio from natural causes. Since vaccination provides lifetime protection, the relevant comparison is to lifetime risk, not annual risk. The court thus made a mathematical error of more than an order of magnitude and by so doing set a precedent which discouraged future development of vaccines. While one cannot make any accurate estimate of the cost in lives of doing so, it was surely large.
I presume that a corporation which made an error that a bright high school student would have been ashamed to make, and as a result imposed enormous costs on other people, would suffer serious legal penalties. It is tempting to argue that what is sauce for the corporate goose should also be sauce for the judicial gander.