Last updated on May 19th, 2017 at 10:46 am
The documentary Vaxxed uses misrepresentation to scare people from vaccinating and protecting their kids from disease. For example, it strongly suggests that MMR causes autism, and doesn’t mention that studies from all around the world show otherwise. Scientific research solidly refutes any link between vaccines and autism. I think it is time to examine if there are any legal remedies for those harmed by Vaxxed misinformation.
The documentary claims that there is a conspiracy by the CDC to hide the link between MMR and autism, even though the documents supposed to support that conspiracy do not support such accusations. In spite of the fact that even if the CDC wanted to hide such a link, it couldn’t control studies done in other countries looking at the issue (and finding no link). It makes untrue statements about vaccine testing, like falsely claiming that vaccines are not tested in combination.
In addition, in several cities, the Vaxxed team – discredited scientist Andrew Wakefield, his collaborator Polly Tommey, and producer Del Bigtree, and occasionally others – followed certain screenings with a question and answer session. In those sessions they made false claims that could mislead parents away from protecting their children by vaccinating.
The Vaxxed team claimed that preventable diseases were not prevented by vaccines. Among other things they claimed that vaccines were both ineffective and unsafe, ignoring abundant research showing the opposite: modern vaccines are extremely safe and effective.
Del Bigtree falsely described the hepatitis B vaccine – that protects against a virus that can cause liver disease and cancer – as “injecting a sexually transmitted disease”, potentially scaring parents off protecting their children against this dangerous infection. Finally, the Vaxxed team warned listeners against seeing pediatricians, because they can’t be trusted (see here and here for more of their misrepresentations and misinformation).
If a viewer watches Vaxxed and listens to the team’s advice, decides not to vaccinate based on this misleading information, and their child gets a preventable disease and is harmed by it, can they sue for money damages in torts?
What if their unvaccinated child infected a third party who was harmed?
Vaxxed misinformation – legal analysis
It would be better if a legal remedy were unnecessary. It would be much better to counter the misinformation before it causes harm. But some people will probably be misled by the movie. If that leads to harm, shouldn’t the people whose misrepresentations caused the harm pay for it?
It turns out that there is a tort that appears custom-made for this situation.
Sections 310 and 311 of the Restatement (second) of Torts address “misrepresentation involving risk of physical harm”. Section 310 addresses conscious – knowing – misrepresentation, and section 311 addresses negligent misrepresentation. Could they cover this situation? The short answer is, as often with the law, maybe – but a pretty strong maybe. The good news is that this is a possible route for the victims of Vaxxed’s claims. The bad news is that it is not an easy claim to prove, and certainly not a sure win.
It goes without saying that if anyone is considering this they should talk to a lawyer about their case, and not rely on this abstract discussion.
Tort of misrepresentation – physical harm
The tort of misrepresentation involving risk of physical harm was used, for example, when a physician misrepresented his skill in performing ankle surgery and the ankle had to be amputated (Bloskas v. Murray, 646 P.2d 907, 915 (Colo. 1982)). It’s not a common type of claim, but it’s a valid one, and seems very appropriate in these circumstances. If parents don’t give a one-year-old the MMR after seeing Vaxxed, and at the age of two the child gets measles and suffers a complication – and young children are more vulnerable to measles complications – the parents may have a strong case.
To start with, there is a good argument that the Vaxxed creators and team either know that their statements are false or are negligent in that regard. To give very few examples, if they do not know there are many studies examining whether MMR causes autism, they should know.
Wakefield, at least, has been involved in the MMR controversy since 1998 and has to know of the studies. Yet they were not mentioned in the film, which implies that the study it focuses on is the only one which found no link. The makers of the film should also have known that their claims about vaccine testing are untrue. And if Mr. Bigtree does not know enough about vaccines to know that the hepatitis B vaccine is not “injecting a sexually transmitted disease”, he should know he lacks the expertise to speak on the topic. Many other examples are possible, but these would do.
Further, listeners to the claims may rely on them. The documentary and the talks are both designed to convince people the claims are valid, and to discourage them from vaccinating and from, as mentioned above, even seeing pediatricians.
Here there is a difference between the two torts. If you can show that the Vaxxed creators and team knew the claims were false – or, in the case of, say, Mr. Bigtree, knew “that he has not the knowledge which he professes” – you could use the intentional version of the tort, and any reliance on the claims could lead to liability.
If it was impossible to show that – and it may be: the people involved may truly believe the misinformation they promote, and hence be acting negligently, rather than intentionally, in promoting it. In that case, you would have to show not just reliance, but reasonable reliance. That’s trickier. Is it reasonable to rely on a discredited, disgraced scientist like Andrew Wakefield, or on people with no medical or scientific background like Del Bigtree or Polley Tommey?
There is a good argument such reliance is unreasonable, and plaintiffs should have not taken their information from such bad sources. But the Vaxxed creators and team worked hard to present themselves as an authority on the matter. From the point of view of community members, Wakefield is someone with medical and scientific background and the others claim to have done substantive research. All three are well spoken, and speaking on a complex topic about which most people in the community would not be sufficiently well informed to counter their claims.
And think about it for a moment. To argue against reasonable reliance, the defendants would have to claim that they shouldn’t have to pay for damage caused by people trusting them because people should have known they’re untrustworthy. That’s an unappealing argument.
The tort covers both the direct person relying and third persons that may be expected to be put at peril. In this case, both the infected child and another person they infect would be a third party: the parents relied, and the child was hurt – or another person was. So if Vaxxed convince a parent not to vaccinate their child and, like an incident San Diego in 2008, that unvaccinated child infected an infant with measles and the infant was hospitalized, the infant’s parents may have a claim.
Here is an example of a similar case, Randi W. v. Muroc Joint Unified School District. A school district represented in a recommendation letter to another school that a teacher is “an excellent teacher”. They knew he had sexually assaulted students. The school district was held liable for an “affirmative omission” – saying he was excellent while implying they had no information that he was a molester. But it was a two step analysis: the court examined whether the school misrepresented information, and whether there liability to a student, a third party, if they did. So, there would have to be two steps here too – was there misrepresentation to the parent, and is there liability to the child or another.”
In short, if someone is harmed because they decided not to vaccinate because of the claims in Vaxxed or by the Vaxxed team, this tort could provide a remedy.
What about 1st Amendment protection?
Let’s start by reminding ourselves that this is a speech-based tort to start with, and it has been applied before. The first amendment is not, then, a complete barrier. But vaccine safety is an important matter of public policy, where free speech operates at its strongest. Could it limit the application of the tort to Vaxxed? The answer is maybe, but it’s far from certain, and it’s worth testing this in court.
There are two lines of cases that could suggest the first amendment prevents this suit. First, in a case from Pennsylvania a publisher was found protected by the first amendment when a plaintiff died, allegedly, from following one of the publisher’s books (Smith v. Linn, 526 Pa. 44747 (Pa. 1991)). But the emphasis there was on the role of the publisher and whether there is precedent for finding publishers liable. If this precedent were followed, it would probably provide protection to theater owners against application of the tort.
A theater is like a publisher in that it does not produce the content but does showcase it and give it an audience, and like a publisher, we can argue that demanding that a theater verify the content of each movie is asking too much. But that line of thought does not support exempting the creators of the content – the creators of Vaxxed and the Vaxxed team.
And note that the decision in Smith has been criticized, and there are, to my knowledge, no similar cases.
The other relevant case is Snyder v. Phelps, 562 U.S. 443 (2011), in which the Supreme Court overturned liability imposed on the Westboro Baptist Church for inflicting intentional infliction of emotional distress on Snyder by picketing his son’s funeral. In an 8 to 1 decision the court found that since the speech was on a matter of public concern, there can be no tort liability. But while vaccine safety is certainly a matter of public concern, the Supreme Court justified its decision, in part, on the fact that the statement in question “were not provably false[.]” That’s not true here. Snyder, too, does not prevent tort liability for misrepresentation.
Summary
So will a court find the Vaxxed creators and the Vaxxed team liable? Are there legal consequences for the team that’s pushing Vaxxed misinformation?
It’s hard to say. But what is clear is that if their irresponsible, misleading claims lead to harm, this tort may be a way to impose financial responsibility for it where it should lie: with those that led others into not vaccinating based on false claims.
Editor’s note – this article was first published in June 2016. This revision includes a slight revision of the text for clarity, improved formatting, and added information on misrepresentation.
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Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
