Thursday, May 18, 2006

Can Judges be Criminally Negligent?

I have just reread an interesting law case: Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir.(Idaho) Jan 22, 1968), in which the Ninth Circuit found Wyeth liable for the failure to adequately warn of the risk of polio vaccination.

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.


At 11:39 PM, May 18, 2006, Anonymous Anonymous said...

Is there a mechanism in our legal system to repair this sort of error? That is, when someone makes a factually wrong ruling that isn't caught at the time, but later somebody realizes the mistake, can the ruling be reversed, even without someone germaine to the original case appealing? Or do you have to wait until another vaccine case comes up and then say "Precedent X is wrong because the judge got the math wrong" and hope the new judges understand the mistake?

At 12:54 AM, May 19, 2006, Blogger David Friedman said...

Tom asks about mechanisms for reversing such error. So far as I know, there is no practical mechanism for doing so in such a case. The best one can hope for is that, when the same issue comes up in another circuit, the judges there will refuse to follow the precedent because they recognize the mistake.

So far as I can tell, that didn't happen--the case was accepted as a precedent. Indeed, so far as I know, nobody noticed the mistake until I pointed it out in _Law's Order_ a few years ago. If anyone does know of an earlier reference, I would be interested.

At 6:02 AM, May 19, 2006, Anonymous Anonymous said...

Shouldn't at least the indictee's attorneys put some thought into things like this?

At 9:55 AM, May 19, 2006, Blogger David Friedman said...

Anonymous asks about the responsibility of the defendant's attorneys. I don't know if they were also negligent, or if they made the argument and the judges ignored it.

At 9:13 PM, May 19, 2006, Anonymous Anonymous said...

My limited experience suggests that most lawywers are really not all that good at math in general, and especially not at statistical reasoning.

At 10:06 PM, May 19, 2006, Anonymous Anonymous said...

I remember being given the polio vaccine in a sugar cube as a very young child. Little did I know that I was a guinea pig. It has occurred to me that from a what's best for the individual not society standpoint that vaccines are probably a bad idea. For example, if everyone else is vaccinated then what's the point in your being vaccinated.

I'm not so sure that the only risk from the polio vaccine is in contracting polio. By definition, a vaccine has to stimulate an antibody response from the recipient's immune system. There are a host of auto-immune diseases that show what harm can be done by an immune system out of whack. What happens in the worst case when the immune system is destroyed, we know only too well from the AIDS epidemic.

In L.A., you are supposed to give your dog a rabies shot annually as part of renewing your dog's license. When was the last time a dog got rabies around here? It enriches vets, pharmaceutical companies, the coffers of the city, as well as making a criminal out of me because I won't be part of their paternalistic plan. I've seen dogs' health distroyed by the nasty effects of the rabies shot. I love my dogs and won't be party to such utter nonsense.

By the way, I like your blog a lot and I'm glad you find the time to make a contribution to it from time to time. Even when I don't fully agree with you, I usually see your point.

At 9:15 AM, May 20, 2006, Blogger SheetWise said...

If the defendants attorneys brought it up, and it was ignored -- then there was evidence presented which the court refused to recognize. That's a clear and provable error. If it was never brought up, the judge ruled on what evidence he had.

The problem is a lot bigger than the criminal negligence of an individual judge -- it's systemic. To have a level playing field we would need civil RICO laws with the same teeth as the criminal RICO laws.

At 6:50 AM, May 21, 2006, Anonymous Anonymous said...

This isn't that surprising. I taught law for 33 years at fairly "prestigious" schools. I regularly had students tell me they couldn't calculate two percent of 100 without using a calculator. Some of those students become judges.

At 1:32 PM, May 21, 2006, Blogger David Friedman said...

Alan comments on the mathematical limitations of law students. I agree that legal professionals, including both judges and law professors, are a good deal more likely to be innumerate than, say, engineers, although I think the situation is improving a little.

What I'm not sure of is whether that is the reason for the particular decision I described, or whether the judges knew what result they wanted and didn't much care how plausible their justification was.

At 9:44 PM, May 21, 2006, Blogger dave meleney said...

I realize economists are often reluctant, with good reason, to make rough judgements about imponderable and mysterious quantities. But without some estimate of how many lives this decision cost, how do we expect any substantial discussion to ensue? And why would we expect judges to avoid the kindly path in which they take a few pennies from Wyeth for the tragic victim in front of them?

The experts at Michael Milken's annual bash seem to expect bird flu to get real serious... and so the issue becomes quite timely...perhaps engendering loss-of-life estimates for various flu scenarios.

At 9:51 PM, May 21, 2006, Anonymous Anonymous said...

David asks "Can judges be criminally negligent?"

Well, we know they can be criminal...and we know they can be negligent...


At 12:07 AM, May 22, 2006, Blogger David Friedman said...

dave meleney raises the question of decision making without estimates of costs. I think the answer in this context is that a large part of a judge's business is applying existing legal rules.

Even if one believes that the rules are to be judged by economic efficiency, it doesn't follow that the individual case is--most obviously because judges are unlikely to have the information to do the job.

In this case, the judges clearly stated their rule and then made a wildly mistaken calculation that resulted in reversing the rule's implication.

At 3:40 PM, May 22, 2006, Anonymous Anonymous said...

So why are you making this post without trying to shame the judge by naming him?

At 10:36 AM, May 23, 2006, Blogger David Friedman said...

Dave S asks about the name of the judge. It was a panel:

"Hamlin, Merrill and Duniway, Circuit Judges. Hamlin, Circuit Judge, dissenting."

The dissent did not mention the mistaken calculation.

At 5:43 AM, May 24, 2006, Blogger Eric Rasmusen said...

An interesting case. I blog at length on it in response to this post and the comments, at

Two thoughts:
1. What ought the defense lawyers to have done in response?
2. Let's return to the original question, modified a bit: *Should* judges (or government) be legally liable for negligence?

At 5:46 AM, May 24, 2006, Blogger Eric Rasmusen said...

Let me try again with the link:

This work? or

At 2:12 AM, May 25, 2006, Blogger Carlotta said...

Whilst I thoroughly appreciate the thrust of David's argument, I wonder as to the accuracy of the assertion that one polio vaccine provides lifetime protection.

When last I was responsible for providing vaccinations, ie: from mid 80's to the early 90s, polio vaccine was considered effective for approximately ten years only - which of course is still a serious consideration in the maths of the case.

At 10:16 AM, May 25, 2006, Anonymous Anonymous said...

"and by so doing set a precedent which discouraged future development of vaccines"

Surely the only future cost imposed by the court's error was the unnecessary labelling of safe vaccines?

At 12:05 PM, May 25, 2006, Blogger David Friedman said...

"Surely the only future cost imposed by the court's error was the unnecessary labelling of safe vaccines?"

It wasn't that simple. At the point when the number of firms producing vaccines was down to three--I think it had been about twenty--the federal government passed a law making it liable, in order to prevent the number from falling to zero.

To begin with, the vaccines were labelled with a warning--the argument was that the vaccine manufacturer didn't make sure that the public health people actually handing out the vaccine passed the warning on to the people getting the vaccine.

The more general message was that even if a company did what they reasonably believed, on past precedent, they were obliged to do, they could get hit with massive liabilities as a result of the courts changing the rules of the game on them after the fact. I believe one of the vaccine companies ended up with legal costs an order of magnitude or two larger than their profits from selling vaccines. Under those circumstances, it's prudent not to risk having the same thing happen again.


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