Liability: The Legal Revolution and Its Consequences

IN JANUARY 1976 four U.S. Army recruits at Fort Dix, New Jersey, contracted a severe new form of influenza. One died. Some months later, a mysterious disease struck American Legion conventioneers in Philadelphia. Over 200 men fell seriously ill and 34 died. A new strain of the influenza virus, later labeled swine flu, was identified as the source of the Fort Dix infection. Alarmed public health officials suspected (incorrectly, it later turned out) that the lethal Legionnaire's disease had also been caused by the Fort Dix virus. And there were ominous parallels between the virulence of the Fort Dix disease and the virus implicated in the great flu epidemic of 1918, which killed 675,000 in the United States alone and 20 million worldwide. The surgeon general, the secretary of health and human services, and the national Centers for Disease Control advised President Gerald Ford to launch an emergency national immunization program.

Pharmaceutical companies quickly developed a swine flu vaccine. The president requested funds from Congress for mass production and distribution. Everyone was ready to go--except the insurance companies. They had been shocked a few years earlier by a series of judgments against vaccine manufacturers, based on the tortured new theories of inadequate warning, misdesign, and reversed-proof causality. Insurers now flatly refused to touch swine flu vaccine in any way or form. And no drug

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