Vaccine laws and debates are spreading like a contagion. Measles, once thought nearly eradicated in the United States, has experienced outbreaks in Minnesota, New York, California, and other states. These outbreaks have been caused primarily by undervaccinated communities. The resurgency of measles and other vaccinable diseases has flamed the already virulent vaccination debates between public-health advocates and officials and anti-vaccination communities and organizations. These debates have played out in state politics, highlighted, for example, by California’s recent tightening of exemptions for school-mandated vaccines.
In the shadow of these public-law efforts, UC Hastings Law Professors Dorit Reiss and John Diamond query what role private law has to play in disease-related harms caused by undervaccination. In a new article titled “Measles and Misrepresentation in Minnesota: Can There be Liability for Anti-Vaccine Misinformation that Causes Bodily Harm?,” forthcoming in San Diego Law Review, Professors Reiss and Diamond argue that disease-stricken victims can, under certain circumstances, use tort law to seek compensation from those whose misrepresentations about vaccines’ link to autism caused them not to vaccinate against the disease.
Professors Reiss and Diamond ground their argument in a deep understanding of tort law, and specifically the tort of negligent misrepresentation, a theory of liability embodied in Section 311 of the Second Restatement of Torts. They interrogate the principal challenges to making out such a claim in the vaccine context, including the existence of a duty, reliance, and free speech protected by the First Amendment. Using the recent Minnesota measles outbreaks as a case study, Professors Reiss and Diamond track the vaccination-autism misrepresentations that led to the 2011 and 2017 outbreaks in undervaccinated Somali communities. They then apply the general principles of negligent misrepresentation to conclude that certain misrepresentations could have given rise to liability in tort.
Professors Reiss and Diamond then expand their scope to the tort law itself. How far can (should) negligent misrepresentation go in addressing the harms of vaccine-related misinformation? They explore legal, practical, and political limits to tort law’s role, and though they generally support the application of tort law to the most egregious misrepresentations, they carefully identify circumstances that present cases that should fall outside tort’s domain.
In an era of strongly held views and highly public conversations about vaccines and public health, Professors Reiss and Diamond have offered a thoughtful contribution on the role of tort law. Conversants should read—and heed—their paper.