Thursday, September 30, 2021

Two Emails and Two Stories

This post is about remembrance, and perhaps celebrations. 

The end of September brought two messages to my inbox. I found each poignant, and somewhat disturbing. One was a retirement and the other more permanent.

Years ago, I traveled from Pensacola one week and heard cases in Miami, likely sometime in 2007 or 2008. I walked into that district office and presented my identification, explaining to the guard the point in purpose of my trip. He welcomed me effusively, and graciously. He then looked at me quite seriously and said “I’m gonna have to look in your bag."

That was the first time that I remember meeting meeting Hugo. I had many opportunities there after to be in his presence. Hugo provided the primary security for the Miami district office for almost 20 years (his goodbye note says 19 years, 279 days to be exact). On each of my visits, he was welcoming and gracious, but consistently made every effort to search my computer bag. I’ll never be certain if he was serious about that or not. I got the persistent impression that he had a good nature, some humor, but he meant business when it came to protecting us all. 

In his departure, he described his service there as an "honor and privilege," described that group of coworkers as "family." Day in and day out, for twenty years, he provided security, cordiality, humor and more to that office and those it served. He was a foundational element of the Miami practice, knew everyone, and became part of the fabric of the practice. 

I am somewhat sad to announce his retirement. I say somewhat because I find myself also excited for him as he moves into the next chapter of his life. Certainly, when you reach that moment, there’s perhaps no greater reward than the ability to turn the page and begin anew. Despite that, I will miss him, As so many of you will. Hugo was a consistent presence and was ready with a smile. I am certain that both the OJCC and the Miami public will miss him. I wish him the very best in his retirement and we are all grateful for that 20 years.

On a much sadder note came news reminding me of the halcyon days of my early legal experience in Jacksonville. I’ve had a great many lawyers in Jacksonville, and thereafter across the state, influence me in so many ways. I have had innumerable mentors, they (likely you) continue to affect me so profoundly. I often take a fair amount of entertainment from the fact that none of you seem to realize how much I depend upon you, learn from you, benefit from your comments, admire your professionalism, and so often revel in your spirit. You really should appreciate yourselves more. 

In September, Douglass Myers passed from our number after almost 50 years of practice in the Jacksonville community. I do not ever recall him as a carefree person. He had challenges from my earliest recollections. His obituary noted that he had suffered "a long illness," which is consistent with my recall. I also do not recall him in private practice, but only as the workers' compensation attorney at the  Office of General Counsel. But, I am sure that I only came to know him later in his life. Mr. Myers was 77 when he passed. Certainly by the time I met him he was a seasoned practitioner of more than 20 years, and I was new to the law, the workers' compensation community, and the town. 

He was known and respected, by lawyers, mediators, and adjudicators. Mr. Myers seemed perpetually ready with a kind word. He commiserated with his peers in an easy and comfortable way. It was easy to speak with him and he was a ready ear. I admired his perseverance and aplomb. It seems lawyers tend to know the opposite side of their practice better than the lawyers on their own (defense lawyers work more with and therefore tend to know claimant's lawyers more, and vice-versa). Despite that, it seemed everyone knew Mr. Myers. 

I never knew of Mr. Myers' history, his education and path to being an attorney. Our conversations were about workers' compensation. Until reading his obituary, I was unaware of details of his service in the Air Force, and the dangerous tasks he undertook decades ago, a world away, in Viet Nam. How often do we fail to express our gratitude for the service and sacrifice of those who serve? In a broader context, how often do we take time in our busy days to simply tell someone that their presence has mattered to us?

What I was aware of was his involvement in the Jacksonville legal community, Bar, and later the E. Robert Williams Inn of Court. Mr. Myers was engaged in the workers' compensation community, dedicated, and professional. He was quick with a smile and a kind word. Through scholarship, hard work, and engaging personality, he was a successful advocate for his client. 

In 2011 the Inn awarded him the John J. Schickel Professionalism Award. That honor is a significant recognition from a community of peers. I was not there, but I can picture him demurring and deflecting. In my experiences with him, he was persistently a humble and gracious professional. I suspect that when he was told of that award, he likely mentioned others whom he thought deserved it more. He was persistently supportive of, praising, others. Mr. Myers, in my experience, was persistently and consummately, the professional.

As we become long in the tooth, we may tend to view the world differently. Youth, vigor, enthusiasm, and more may sometimes refract, but as we age our perspectives seemingly become clearer. As I reminisce this morning, I am grateful to have known both Mr. Myers and Hugo. They were each positive members of the workers' compensation community, in different roles and geography. I could have said that to each of them, found time to be more grateful for their presence in those busy days. I wish Hugo the best in his next chapter. And, I wish the best for Mr. Myers' grieving family, and many friends and colleagues.

Each of them contributed to a community that is workers' compensation. Each of them will be missed. I encourage reflection on that this morning. If you have a moment to share with someone that you appreciate their involvement in this community of ours, I encourage you to do so. So many that I know are lately reaching that retirement moment, and too many are passing on. Though it seems a banality, life is short. Tell someone today that their presence, kindness, intellect, humor, professionalism, or otherwise is noted, appreciate, and valued. Simply stated, you never know when your chances may expire to communicate such thoughts. 

Tuesday, September 28, 2021

A New Law on Riots

There is a lawsuit brewing in Florida regarding a new law passed last spring. This, like so much in our society seems to be dividing us. The law is a reaction, in part, to demonstrations in the summer of 2020. Those events illustrated that there are very different views or perspectives on our world. It would, perhaps, be beneficial if we could all be more empathetic of others around us. It is reality, however, that a great many of us are caught up in our day-to-day and really don’t spend large blocks of time striving to understand the struggles of our fellow travelers.

One may struggle to understand how busy a household can get with a couple of careers, a couple of kids, a couple of school schedules, a couple of extracurriculars, sprinkled with work projects, homework, sport practices, grass to mow, a house to clean, and I could go on but you get the picture. How often do we step back and view the “big picture” of society (whether that is our neighborhood, town, metropolitan area, nation, or world)?

I experienced a demonstration in Paradise in the summer of 2020. Here in paradise there is a railroad bridge that has likely stood since Don Tristan DeLuna built the first east-west railroad to the second Florida settlement in St. Augustine back in 1565 (OK, clearly that is an exaggeration, but now you know Paradise was first; before Roanoke in 1585, Jamestown in 1607, the Pilgrims in 1620). De Luna landed in Pensacola in 1559, but the group was decimated by a four-day hurricane soon thereafter. Yes, a "four-day hurricane" event.

This railroad trestle is painted persistently with the perspectives of anyone that chooses to express. The messages have at times been inspirational, humorous, and even confusing. People here in Paradise used to drive through the bridge periodically just to see what its latest paint job portrays. Not so much lately due to the construction on the new U.S. 98 bridge nearby. In 2020, someone put George Floyd on it (I think freehand, which speaks to the artist’s talent; I envy the skill to be able to convey emotion in such a format).

That railroad bridge, known here in Paradise as the “graffiti bridge,” became the situs of gatherings during that time. It had a convenient location before they started building this new bridge, see If you Were Half the Bridge I Am (2021)). There is parking at a nearby boat launch, and the traffic is manageable. For whatever reason, some portion of those attending one such demonstration event elected to move down the street to U.S. Highway 98 (which crosses that new bridge). And, there a small crowd got in the way of traffic on a road that which many, even in the absence of a demonstration, are afraid to drive on, more or less walk on. 

How and why remain in dispute, but the news reported that somehow one of the pedestrians ended up on the hood of a vehicle. There may be dispute as to whether the driver got in the pedestrian’s way or vise-versa, But, what is known is that the driver did not stop and proceeded across that bridge (affectionally referred to as the “three mile bridge,” guess how long it is) with the pedestrian perched on the hood. There were allegations each way; there was mention of “stand your ground,” and in the end the hood-riding passenger was taken into custody. He alleged that he was entitled to the protection of Florida's "stand your ground" law. One report alleged that the driver "forced his way through the picket line," which perhaps was not on the pedestrian way but in the driving portion of the highway. Perhaps, the protestors obstructed a highway with their picket line?

Now, to be fair, I learned in high school that getting on the hood (or roof) of a moving car is not a great idea. I will never forget the time my old friend Horace Middlemier jokingly jumped on the roof of Kimmy Clark’s Cutlass’ T-top (disclaimer: Kimmy Clark is fictitious name, any similarity to any real person is purely coincidental, the T-top is, however, real). First, his weight bent the roof rendering reinstallation of the glass panels dependent upon a local body shop. 

But second, in a less-than-Olympic-quality dismount, Horace left the vehicle over the rear deck lid when Kimmy concluded that she’d had enough of his antics. Horace had spots on his legs and arms that looked like hamburger, and a bump on the head that some of us thought might oughta be looked at by a doctor. I digress, but the point is riding on the top of cars can both aggravate the driver and lead to injury. Some may struggle to see climbing onto a vehicle as standing your ground, but that is for the courts. 

The bill passed in Florida this spring is a broad approach to "combating public disorder," according to the bill. It provides definitions and prohibitions. There is currently a lawsuit underway by groups that allege it will have a chilling effect on demonstrations, that its language is not sufficiently specific (referred to by lawyers as "vague,"), and that some people might be penalized by mere presence in a place despite their personal lack of involvement in any specific act of mayhem or violence (referred to by lawyers as "overbroad").   

Various groups filed a lawsuit striving to block the implementation of this new law, naming as defendants the Governor, Attorney General, and three Florida county sheriffs. In August, the Tallahassee Democrat reported that a federal judge had declined to dismiss the suit, except that the Attorney General was dismissed as a party. The challengers allege that the definition of "riot" is too "vague and overbroad," that the law imbues law enforcement with too much discretion, and that First Amendment expression could be hindered or hampered. 

At what point do your rights end and those of others begin? In my classroom lectures, I ask students whether they have a right to use their property as they wish; most see an easy answer there. Then, I query, shouldn't it be their own decision if they wish to have Van Halen play at their birthday party (Jeff Spicoli, Fast Times at Ridgemont High, 1982)? I generally get good agreement with the concept, though this generation is not as into Van Halen as you might think. Then I ask how they would feel if instead it was their neighbor with Van Halen playing in their back yard? Well, we continue, how about if it is 02:30 and you have to work tomorrow? 

You see, we all have rights in this country. Our founding fathers believed that these rights were "truths," and not theories. They believed that they were "self evident" and obvious. Despite their honorable and principled Declaration, there is likewise no doubt that they had rather hypocritical views regarding the "all men" portions of this document, and we need not explain further the utter absence of "all women" from their sentiments. That said, recognizing that there are flaws in our foundation and history, the fact is that our rights (mine to quiet enjoyment and yours to Van Halen) conflict periodically. Our laws are persistently challenged by the need for a society which protects our rights, recognizing that we are all very different individuals with competing and sometimes conflicting rights. 

So, HB1 recognizes that demonstration can yield to more. Peaceful protest can yield to rioting, looting, destruction of property, and injury to persons. Each person has the right to be safe from injury, assault, and battery. Each property owner has the right to her/his property. This conflict between the right to protest and the rights of others is not new. In any society, government will be tasked to address the balancing of various rights and responsibilities. 

In the Paradise example above, did the motorist have the right to operate his motor vehicle on a public roadway? Did the protestors have the right to stand in the street and impede the motorist? Does a protestor have the right to jump atop Kimmy Clark's Cutlass causing her discomfort or fear? Does the protestor have the right then to damage Kimmy's car? May Kimmy drive away with the protestor perched atop the car? If the protestor, having chosen a precarious and unsafe perch, falls to the pavement should Kimmy be responsible for the injuries or should that fall to the protestor that chose that perilous perch?

House Bill One (2021) provides an array of provisions striving to address these questions. It includes definitions for "crimes of affray, rioting, and inciting a riot." There are enhanced penalties for those who incite riot, or commit "assault or battery . . . in furtherance of a riot." There are penalties for those who elect to strike or touch (battery) a police officer in such a riot, strive to intimidate  or forcefully compel others. There are penalties for "defacing, damaging, destroying," or otherwise interfering with historic property, and for theft of property in the course of such a protest. 

The new law imposes new or increased "minimum sentence(s) for specified crimes committed in furtherance of a riot," and limits the ability for rapid bonding out following arrests for various crimes. This is not to say bonding out is precluded, but that it is delayed until there is a court hearing, which could require a day-long jail stay. In the midst of various news stories about decisions to "defund the police," this bill allows objection to such local budget changes for consideration at a state level. 

The law of sovereign immunity makes many government officials immune to civil lawsuits. However, this new law removes that protection for government officials when "tort claims aris(e) from a riot or unlawful assembly" and the local government has "breache(d) its statutory duty to allow law enforcement to respond appropriately to protect persons and property." And, for the demonstrator injured by jumping upon someone's automobile, this law "creates an affirmative defense" if the "plaintiff's injury or damage was sustained as a result of participating in a riot."

The trial judge has concluded that the new law violates the First Amendment, and its protections of speech and assembly. That decision was made in granting an injunction in September 2021. The trial judge concluded that the law is vague and that this "vagueness permits those in power to weaponize its enforcement against any group." That is unlikely to be the last word, and as the decision comes from the Federal District Court, the next analysis will be by the 11th Circuit Court of Appeals. 

As the case moves forward, there may be discussion of where protest ends and riot begins. There may also be discussion of the rights of people to be secure in their own person and property. Can there be a balance between your right to Van Halen and your neighbor's right to a night's sleep?  

Sunday, September 26, 2021

The (un)Masked Man?

In the Halcion days of my youth, there was an entertaining television distraction, the "re-run." While we enjoyed the new and modern on our three broadcast networks, there were also opportunities for reviewing older offerings, and among the best was The Lone Ranger. From its days as a radio show (early 19030s to 1950s) through the early age of television (late 1940s to 1950s), the vigilante cowboy would often depart with a "hi yo Silver," and as he faded from the screen some bit character would ask "who was that masked man, anyway?" The hook was for the viewer; we had superior knowledge of the masked man, his identity, and were thus, ourselves, intertwined into the show. 

Masks remained exceptional in America. Wearing one was seen as troublesome. As I noted early in the SARS-CoV-2 pandemic, there are even laws that preclude the wearing of masks. See Masks Illegal? Not Generally (April 2020). But, you will tell your grandchildren, there was a time that masks were virtually unheard of in America, outside of medical facilities. In fact, when we encountered someone in a mask, we tended to give them wide berth.

As an aside, I spoke in the summer of 2020 with an older person that suffers medical fears. She has worn masks throughout flu season for several years due to various medical conditions. She enjoyed that people would perceive her mask and stay distant in the supermarket and other settings. She laments that with masks becoming ubiquitous, that distancing has discontinued. The safety she perceived from semi-isolation in public places has evaporated as her "exceptional" mask use has faded into the commonplace in our COVID world. In a larger sense, masked or not, why not give us all a little personal space back?

There have been those who rushed to masking, and those who have not. The same has been true of the miracle vaccine, of which readers will likely know I am a big fan. See Vaccination Tribulation (February 2021); Vaccination Implications (February 2021); Its Simple Economics (March 2021); and The Futures' so Bright (February 2021). I am a big fan of vaccination, but mask use continues to present questions. 

We are currently in the midst of evolution of the vaccination, with the President moving to mandate vaccine acceptance. Mandatory vaccination is not new in America, and that subject is addressed in another post. With the mandates, however, come objections. There are those who have both medical and philosophical objections to taking the vaccine. Those issues are beginning a path through the courts. 

I recently heard about a business that is supposedly separating everyone that is not vaccinated; one employee at lease complained that there were not religious or other exceptions honored. Thus, the issue may be coming soon to someone you know. This will be a difficult legal issue for businesses. Should business mandate vaccines, masks, and other pandemic responses? In the courts, will it matter that there are or are not particular governmental regulations or orders that support or detract from such decisions?

Similarly, there have been many settings in which mask use has been mandated. Some have been excluded from businesses for refusal to wear a mask. Others have been arrested for such refusal at banks, stores, entertainment venues, and otherwise. Generally, it has been up to businesses to decide whether they will require masks, but a fair few elected leaders have ventured into mask mandates with varying reactions from applause to ridicule. 

Despite the airlines mandating masks reasonably uniformly throughout their pandemic efforts, the government saw some imperative to add its imprimatur. Early in 2021, the Transportation Security Administration imposed a mask mandate for all airline travel, according to the Washington Post. There have been many reports of poor passenger behavior over masks. Some fear violence over the topic. Some airlines have seen a connection between the contentiousness and alcohol, electing to discontinue serving it in some instances. 

In June 2021, Business Insider reported "Man sues 7 airlines including JetBlue, Southwest, and Delta, which he accuses of discriminating against travelers who can't wear masks because of medical conditions." That is a lengthy headline, and almost relieves one of the need to read the actual article. But, some detail helps. The Plaintiff claims that he his "anxiety condition means he can't wear a mask." And, after visiting his mother in Florida, he says he is "stranded" and unable to return home to Washington D.C.

He accuses the various airlines "of discriminating against travelers who can't wear masks because of medical conditions." This may be a similar issue to the one discussed above with vaccine mandates. Some may also see similarities in airline reaction to the comfort "cats, ferrets, spiders, and pigs" noted by the Wall Street Journal in "Emotional Support Animals are Banned on Airplanes but Service Dogs can Still Fly Free." You just have not lived until someone's dog spreads out at your feet and leaves you without the tiny bit of leg room modern air travel sometimes provides.

These issues all run into the concept of public accommodations and various federal laws regarding the rights and responsibilities of people in those settings. Is employment really any different regarding exceptions?

So, this plaintiff is suing both the airlines, and "government agencies, including the Centers for Disease Control & Prevention" for their mask mandates. These mandates are in place, according to one former small town mayor "as a 'matter of respect' for flight crews and others." Curiously, the Transportation Safety Administration, and others, have not been quick to provide any science regarding the benefits of masks.

In fact, some airlines have banned certain masks, such as cloth, according to the Washington Post. What is the science behind that distinction? If cloth masks are not effective, then why does wearing one equal compliance in any setting at all? In other words, why is a fabric mask good enough for some states with mandates, but not for a particular airline? The Post article says that these airlines have concluded: “fabric masks are slightly less efficient at protecting people from infection than surgical masks.” 

One may wonder "how slightly?" How "slightly" is "slightly enough?" More on masks in The Science of Consensus and Masks Again (June 2021). Some will remember when the U.S. Surgeon General said not to wear masks. Others will remember when the Surgeon General published an August 2020 video to show people how to make their own mask, out of fabric if you can believe it. Is fabric effective? Are masks effective? Perhaps like the famous Tootsie Pop question, "the world may never know."

Back to this Plaintiff, he bought tickets for eight flights in his attempt to reach home in Washington (the article later clarifies he really wants to get to "the Rocky Mountains - or anywhere else"; essentially, he wants out of Florida. He asked the various airlines for "a mask waiver" based on the medical condition he alleges. He apparently met with no success. The Plaintiff alleges that the airlines' "no exception" mask posture "violate(s) the Air Carrier Access Act, which protects passengers with disabilities from discrimination."

Some will see a question, "why not catch a train to D.C.? or rent a car?" However, in the world of disability accommodation that is our modern era, the question is not whether one can find viable alternatives when denied accommodation, but simply whether there was such a denial. That there are reasonably simple alternatives does not excuse discrimination. Does a pandemic excuse discrimination? So, in coming months, he may get his day in court. The legal issues of discrimination, mask mandates, and perhaps even science will potentially be laid bare to a court. It will be curious to see how the story ends. 

Perhaps, as he departs the courthouse one day, someone will even utter those now infamous words: "who was that (un)masked man?"

In the meantime, for the rest of us, maybe we could just give each other a little space, masked or not? And, while the rest of us wait for clearance for the third shot, why not reconsider getting your first? It is a small thing, but would likely be a benefit. 

Thursday, September 23, 2021

Alzheimer and Driving

There are insurance companies that will potentially offer you a lower rate if you agree to their persistent, if not constant, monitoring. According to Pew Research, there is no consensus as to the appropriateness of such monitoring. Because you would be electing such consciously, there is also the probability for the Hawthorne Effect bias to impact the validity of any data that is collected by such a study of your driving. 

The Hawthorne is simply that "people behave differently because they know they are being watched." Retailers and others have relied on the implications of this for years with faux video cameras, potentially one-way mirrors, and more. Thus, if you want to study driver behavior, there is detriment or challenge in the subject knowing s/he is being studied. But, if you want someone to drive more carefully, there is perhaps benefit in the driver believing they are being watched. 

The bottom line for the auto insurances is the belief that drivers will be safer and more careful if they believe the device installed on their vehicle is both tracking and reporting their activity. With the volume of information available today, such a device can not only discern where you are and your speed, but it can also compare that to the posted speed limit, note your consistency (or lack), and more. Thus, you will rationally be more conscious of speed and driving because Hawthorne is watching.

The potential for Hawthorne came to me recently in the research context, however, when perusing an article on Alzheimer's published by the British Broadcasting Corporation (BBC): "How your driving might reveal early signs of Alzheimer's." It describes an interesting intersect of technology, medicine, and our anticipations.

They hypothesize that we all see an alteration of our driving as we age. This reminded me of a recent conversation in which my friend Horace Middlemier described a ride with an 86 year old neighbor. The description included slow driving in the left lane, long periods of turn signal flashing with no intention of a turn, and the passing by of various cars whose drivers were expressive in both auditory and hand signal communications. The BBC acknowledges that may people's "driving changes as they age," that this is normal. However, it reports on a study that may suggest our driving could foretell potentials for more serious issues such as Alzheimer's.

The experiment begins with a very small group (139) of drivers over 65 years of age in Missouri. They volunteered "to have their driving closely monitored for one year." Thus, they knew they were being watched (see Hawthorne, supra). About half of the volunteers had been diagnosed with "preclinical Alzheimer's disease," which is not necessarily the disease as much as a potential precursor or predictor. The drivers' habits were monitored by a group at Washington University in St. Louis as they went about the daily business of their lives.

The study concluded that "those with preclinical Alzheimer's" exhibited driving tendencies that the others in the group did not. This included diving slower, "making abrupt changes" more often, as well as "travel(ling) less at night, and" driving "fewer miles overall." The study also found pertinence in the variety of "visited . . .destinations" and the manner in which they kept to "slightly more confined routes." From this, perhaps we readily see some Hawthorne as to frequency, duration, or timing of trips? Perhaps this also implicates the slower speed? But, perhaps the “abrupt changes” might not be such a reaction?

From the collected data, the researchers believe they can "forecast someone's likelihood of having preclinical Alzheimer's" based on driving habits. From their calculations, they concluded this predictive modelling "to be 86% accurate." The size of the study raises caution, and the researchers concede "larger, randomized studies are needed to show a definitive link between the detected driving behaviors and preclinical Alzheimer's disease." 

Randomized, perhaps to also study subjects not subject to Hawthorne’s? Is there any methodology in which the driving habits might be observed without the subjects knowledge? This is not, as yet, a definitive predictor. In drug trials, there is uncertainty introduced by some subjects getting a placebo. Might they study a larger group and at least tell them that everyone gets a device on their car, but not all of the devices work?

There is no mention in the article of Hawthorne. Those who had been diagnosed with "preclinical Alzheimer's disease" might have in fact altered their behavior based on the diagnosis alone, age alone, or a variety of other reasons. Might you, with such an Alzheimer’s warning or diagnosis, drive more slowly? Might you limit your driving, your nighttime driving, or stick to familiar routes? As to routes, don't we all tend to stick to our familiar routes? Might you become more tentative in some situations? Could it be that caution comes from knowledge and diagnosis as well as it might from disease process itself?

There are those quoted in the story that think there is more study of this hypothesis needed. There is interest in longer studies. Some comments suggest that more focus on the ability to plan a trip from “A” to “B” and comparison of alternate routing elected spontaneously thereafter (getting lost) might be of interest as well. Another notes that “there is always the possibility that errors could creep into this analysis.” Despite these challenges, in the end, it is perhaps good news that medicine might spot “preclinical” disease process. But, the study authors admit “there is always the possibility that errors could creep into this analysis.”

Of course, the bad news is that there is little that can be done about such a condition. The sources cited note that “there are currently relatively few drugs available to treat early Alzheimer's disease.” Thus, unlike a condition such a “pre-diabetes,” knowing of a preclinical manifestation might not bring treatment at this time. However, knowing is half the battle in some contexts, and a diagnosis may be significant in one's personal battle. The implications of such study are intriguing and the potentials for earlier diagnosis is perhaps worthwhile. 

Perhaps our government will one day mandate such monitoring of all cars, strictly for safety? Perhaps without such privacy invasion, some of us might knowingly and willingly consent to have such data collected about us through some simple application on our cell phones, such as maps, Waze, or similar? Perhaps, the ability for our movement, pace, and path are already present and merely waiting to be mined and analyzed? 

Tuesday, September 21, 2021

Nuremburg Code

There is so much information circulating about the SARS-CoV02 vaccinations. We have been told we will all get a booster shot, then that an FDA committee recommends only those at higher risk get a booster shot, then that some of those at higher risk already got a booster shot, then that getting a booster is selfish in our world. Much of this is highlighted in a recent post, Show me the Science (September 2021). Many have been vaccinated, almost 6 billion doses administered worldwide and a daily rate over 30 million doses, and some of those want more. Others, are completely opposed to vaccination and would not accept it if was free (it is free, by the way). 

Not everyone is happy about the idea of being vaccinated. I respect their choice. I am vaccinated to protect myself from the virus. I continue to practice social distancing when people will allow me to. I do not frequent high-volume venues such as concerts and shows. And, frankly speaking, I mostly enjoy outdoor activities such as walking and there is simply minimal risk in those. Regrettably, however, any of us may become infected and thus have potential to spread this virus. Vaccination diminishes the probability of that, but not to zero. 

Why people object to the vaccine is interesting. There are reasons cited based upon science, religion, and more. In a legal sense, and this is a legal blog, there is an interesting argument being raised against mandated vaccination. The idea of mandates may have multiple societal and legal implications, and for the employer and employee in the workers' compensation community it is worthy of discussion.

In September 2021, the United States announced that vaccination against SARS-CoV-2 would be mandatory for "federal workers, large employers(,) and health care staff." The CNN characterized that as "a sweeping attempt to contain the latest surge of Covid-19." It explained that this dictate "could apply to as many as 100 million Americans," that is "close to two-thirds of the American workforce." In announcing the new dictate, President Biden said "we've been patient, but our patience is wearing thin, and your refusal has cost all of us." Clearly, there is blame being directed broadly at those who do not wish to, or cannot, be inoculated. 

CNN also notes that the safety of the vaccines has been proven and there is "full approval of one." Some of the workplace implications of this were recently addressed by Chitra Goel on WorkersCompensation.com. That is an interesting read. The Society of Human Resource Managers (SHRM) also has an interesting discussion of the potential liabilities from an employer-mandated vaccination program. Does the government mandate do anything to insulate an employer or alter the potentials for liability? Would legislation regarding liability for side effects of a vaccine be of use? Alabama is discussing that

Mandates are not new. There have been hospitals imposing such mandates, some have fired workers for refusal. Some mandates have reached the courts, and have been affirmed. Other employers are backing away from mandates, perhaps because of the potential for resulting labor shortages. With a national mandate, some have questioned whether labor shortages will be exacerbated, particularly in the healthcare fields.

One of the objections cited in refusing the vaccines has been religion-based. The fact is that all of the SARS-CoV-2 were tested using "cells grown in a laboratory based on aborted fetal cells collected generations ago," according to the University of Nebraska. Generations ago, and yet still aborted. The questions surrounding abortion "divides Americans more than any other issue," according to Fortune. There are avenues for religious exemption from government regulation and mandates. One hospital is responding to those seeking religious exemption from vaccination by insisting they also "swear off" other remedies that have connection to such cells. This seems like a litmus test, and is at best interesting. 

Others refuse the vaccine as it is "experimental." They contend that no "fully approved" vaccine is available in the U.S. They concede that Pfizer has been granted full FDA approval, but insist that approval is for a strain of vaccine produced by that company yet not available in the U.S. That allegation was published by The Defender. It contends that a designation of "experimental" is critical under both the Nuremberg Code and U.S. Federal law, in the context of any mandated vaccination. 

The Washington Post refers generally to allegations regarding theories about the vaccine not being approved as a "false claim." The USA Today has also provided a "fact check," in which it disagrees with contentions of non-approval. The Food and Drug Administration (FDA) has published that is has approved the Pfizer vaccine. However, it is fair to note that full approval came only in August 2021. Many of us received vaccines under emergency use authorizations (EUA). While that made their use legal, they were not (some remain under that, so "are not) FDA approved. Thus, there is at least one FDA approved vaccine. Recent research suggests that particular vaccine is not the best at retaining its efficacy, but it is FDA approved and the efficacy remains impressive.

As a premise for the remainder of this discussion, it is immoral to perform experiments on people without their knowledge. It is also illegal. Beyond that, there is the point that any consent to care or treatment must be voluntary and informed. 

Coincidentally, I was in Nuremburg recently, visiting the Palace of Justice. This is where the famous Nuremberg trials occurred in the 1940s, following World War II. The importance of those proceedings is discussed in History in the Making (September 2021). Obviously, part of the concern they sought to address back in the wake of that war was the horrendous mistreatment of people by the National Socialist Workers (Nazis). 

As noted by the National Holocaust Memorial Museum, there were various experiments conducted on prisoners: "without patient consent or any safeguards." A recent visit to Buchenwald reminded me of the National Socialist Workers' profound evil, of which such experiments were a part. I cherish so many moments of my recent time in Europe, but my days in Weimer (Buchenwald) and Nuremburg are so salient.

The United States Holocaust Museum notes that when the National Socialist's experimentation was discovered, "the Nuremberg Code was created." This specifically "included the principle of informed consent and required standards for research." That Code was an outgrowth of one of the Nuremberg trials, a "case known as the 'Doctors trial.'" In the midst of that trial, a memorandum of "six points that defined legitimate medical research" was prepared and proposed. That was later "revised . . . into ten" points which became known as The Nuremberg Code." From violence and evil, through judicial process, came definition and protection.

The Nuremburg Code is now being cited by some who oppose the mandatory vaccination against SARS-CoV-2. Reuters reports that various propaganda on the social media platforms now assert that the International Criminal Court has "'accepted' a complaint that claims Israel's COVID-19 vaccination program violates the Nuremberg Code." Reuters points out that "anyone can submit information about alleged crimes to the ICC," but the Court's receipt or even acknowledgement of such a filing is not "a decision on the merits of the information." Thus, the use of "accepted" may signal nothing other than delivery. 

The article includes a link to the allegations purportedly signed by two representatives of various "attorneys, physicians, public and general advocates" who have elected to forego the SARS-CoV-2 vaccine. Their entreaty is dated in January, and thus its representations that the vaccine has not received "approval," but only EUA was accurate at the time. These signatories contend that the government of Israel "signed an agreement with the Pfizer Company," to obtain "millions of vaccine portions." They contend that Israel was given "preference over other countries," in exchange for which "(residents of Israel) will serve as experimenters" for the pharmaceutical company." This seems to allege a defined quid pro quo that includes experimentation, but it is an allegation.

This, they contend, would be experimentation without consent if government mandated vaccination. And, the signatories contend that the agreement "was not published," and was not "subject to total transparency towards the wide public." The signatories take further issue with their contention that there are risks associated with the vaccine, and that a mandate removes an individual's ability to personally assess and determine the various risk benefit factors and make an informed decision. It is impractical in this age to determine if something on the Internet is genuine, but this entreaty is interesting reading. Under the Nuremburg Code, can a population be forced to inoculate? If it can, what disclosure and consent considerations are pertinent? The Code requirements are restated at the conclusion of this post, and are available on the website of the Holocaust Memorial Museum.

In the wake of the President's mandate announcement, some Governors are threatening legal action from another perspective. It is described in the press as "another major clash between federal and state rule." With little know as to the details of the dictate, some legal scholars have nonetheless weighed in with the conclusion that the rules "appear() to be on firm legal ground" because it is "in the name of protecting employee safety." One law professor noted "the degree of risk that (unvaccinated individuals) pose, not only to themselves but also unto others" is pertinent in evaluating whether federal authority is appropriately asserted in this context.

Traditionally, the "health, safety, and welfare" of U.S. citizens. This is discussed in an informative overview on the Cornell University School of Law website. Against the backdrop of state authority in these concerns is the undoubted power of the federal government to "tax and spend," which has been repeatedly affirmed by the courts in topics like a national speed limit and drinking age mandates. Two of the President's current mandates, regarding federal contractors and those who receive payments under Medicare, are seemingly squarely within that spending parameter.

In another vein, vaccination mandates are not new. An excellent overview published by the Center for Disease Control is in Malone, Kevin & Hinman, Alan; Vaccination Mandates: The Public Health Imperative and Individual Rights. There is discussion of the individual, risks to person and public, and more. In short, the mandatory process of inoculation is not new or novel to the SARS-CoV-2 pandemic or to America. 

In the end, there are some certainties with the idea of a mandate. The first: some people do not want to be told what to do. The second, for now, is that although widespread (100 million Americans), the federal mandate is not absolute. Those who wish not to inoculate have some choice for now, such as changing employment. The third is that this issue will remain contentious. Regardless of one's logic or conclusion for or against inoculation, it appears that opinions are entrenched and perhaps intractable. Finally, the situation for employees and employers will remain uncertain and litigation is a near certainty. How and when courts will sort out final conclusions on these objection questions remains to be seen. The process, however, is unlikely to be quick or inexpensive. 

The Nuremburg Code:

1. The voluntary consent of the human subject is absolutely essential.

2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.

3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.

4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.

6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.

7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.

8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.

9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.

10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probably cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

Sunday, September 19, 2021

Show me the Science

It is an interesting time right now with the pandemic that surrounds us. For at least eighteen months, the greatest scientific minds in the world have labored to comprehend this SARS-C0V-2 virus and its threats, characteristics, and avoidance. We have all heard the parroting of "follow the science," and that has become increasingly difficult as the populace confuses fact for fiction, see Vaccines and Movies (September 2021). There is some variety around the country regarding COVID reaction, and America is not alone in variety, see Pandemic Regulation a World Away (September 2021).

The ongoing nature of the threat has implicated workers' compensation in a variety of ways. Just last week, I heard of an instance of treatment delay due to COVID-19. Though I heard predictions that might occur again, this was the first concrete instance to reach me. A quick Internet search revealed that various hospitals have been cancelling "elective" surgeries since August: Broward, Hillsborough, and elsewhere.

Unfortunately, some may hear that and think they cannot get care. Hospital and government officials urge people to understand that if they are in need of care, they can get it. One administrator stressed
"Do not delay needed care. Hospitals across the state are open and they’re taking care of people that need health care."
The cancellations or delays regard "nonurgent procedures." Of course, there is also recognition that if such are "put off for too long, (that) could cause patients more issues down the road." There is, unfortunately, some delay occurring in delivery of some medical attention due to the immediate issues of COVID-19 treatment.

Back to the science. In August, we began to hear that everyone would soon be eligible for "booster shots" of the vaccine. I have been a big fan of vaccination. See The Future's So Bright (February 2021), Vaccination Tribulation (February 2021), and It's Simple Economics (March 2021). The moment I could get it, I signed up and lined up. If I were offered a booster, I would sign up again. Since the August promises, I have been anticipating it. After all, we were all promised its "a simple rule, eight months after your second shot, get a booster shot." I like simple.

Then last week, the Food and Drug Administration (FDA) weighed in. This FDA "advisory panel overwhelmingly rejected a plan Friday to give Pfizer COVID-19 booster shots across the board." That decision does not bind the FDA, and does not prevent boosters. If you do not already know someone that has had a third shot, that should surprise you. The boosters have been administered in various instances already, including people with serious potential immune issues, medical complication potentials, and of advanced age. In fact, the same FDA panel that rejected the "booster for everyone" proposal unanimously endorsed a third shot for those "65 or older or (who) run a high risk of severe disease."

According to the data submitted to the FDA, "vaccine protection against COVID-19 infection wanes approximately 6 to 8 months following the second dose." This is interesting for the many who received Moderna and Pfizer. One wonders if the outcome is different in the "one dose" paradigm of Johnson & Johnson. The data referred to is from "recent data from Israel and the United States."

This panel has been described in the press repeatedly as "influential." CNBC notes that the FDA has nonetheless not "always followed the advice of its committee, (but) it often does." The question on many lips, apparently, is whether the FDA will follow the recommendation. That news outlet posited on Friday afternoon that "a final FDA decision could come in a matter of hours." For some reason, I cannot get Judge Smails out of my mind as I note that.

Some are critical of the "third jab." The World Health Organization (WHO) has repeatedly voiced its opposition. That agency's head said in August "we cannot accept countries that have already used most of the global supply of vaccines using even more of it." The WHO, by its own description "dedicated to the well-being of all people and guided by science," has made its position in this instance upon either the politics or economics of vaccine deployment. Some WHO officials have more stringently "condemned countries offering boosters." The logic of this criticism is intriguing, if for not other reason, in its premise of a "global supply." That implies a communal ownership of resource, which some may advocate but is not necessarily held universally. 

Throughout this pandemic, with masks and more, there has been a similar lack of clarity as to the science. If the mantra is going to persistently be "follow the science," then perhaps consistently that science should be made clear to us all. In 2020 we were told not to wear masks, the science did not support them. Later, some of the same scientists admitted they misled us so we would not hoard the masks. They admitted their mask advice was not scientific. If science supports masks, show us. If it supports one kind, but not others (fabric), show us. If we are to "follow the science," tell us the science, and do not mislead us (it damages your credibility). If there is science that says boosters benefit some people but not others, show us.

The Centers for Disease Control has released a study that concludes the efficacy of vaccination may wane over time. The various vaccines are not consistent in that regard, providing the best news for those who received Moderna last spring. The reason for a distinction is unclear; some conjecture it "could be because of higher mRNA content in the Moderna vaccine or the difference between the timing between doses." The rates of protection from this study were: Moderna 93%, Pfizer 88%, and Johnson & Johnson 71 %.

However, as efficacy wanes, then it may be necessary for booster or repeated jabs to be undertaken. That vaccine efficacy can be varied, and that boosters may be required is not something isolated to SARS-CoV-2. In fact, boosters are not uncommon at all. Does efficacy wane for some people (over 65) and not for others? Or, is this decision based on supply and demand like the early mask advice?

As the world waits to hear whether the U.S. will undertake widespread third, or "booster," jabs, it is noteworthy that other countries have already done so more widely than the FDA committee recently recommended. Israel is a notable example. The plans of many nations are discussed here. Of course, those plans are as subject to change as our own might be. 

So, as we follow our mantra and "follow the science," unfortunately we are left with questions. Were we "following the science":

in August when it was announced that everyone could get a booster starting in September?

when the CDC concluded vaccine protection wanes?

when the FDA panel concluded that only some people need boosters?

when the WHO concluded boosters are not necessary?

If so, with all due respect, "show me the science" (channeling Cuba Gooding, Jr., Jerry Maguire (Tristar, 1996). The CDC science seems to me (I amnot a scientist) to suggest that efficacy wanes and booster shots benefit. A panel of scientists says that boosters are not recommended for some, but are for others. Is that a scientific conclusion about efficacy and disease? 

Though largely lacking in national news, a local report here in Paradise approached an "infectious disease expert." He explained that the vaccine efficacy is waning, suggesting that boosters are a likely eventuality. Specifically, that "it is assumed at some point, that the third shot will be recommended for all." That is "assumed," and thus unlikely science. He adds that “the good news though is that the immunity hasn’t waned enough yet for the outside panel to recommend the booster dose to the general population." Thus, one expert provides explanation that is perhaps of assistance: your immunity is diminishing, a booster is in your future, but not yet. OK, why not? How diminished must one get?

Are decisions being made based upon something other than the science we are so often told to follow? If a booster is a good idea for people over 65, what is the science that demonstrates it is not a good idea for someone younger? Show me the science. If that conclusion is true, explain to us why the science was ignored in August with the announcement of widespread boosters. Or, if not, explain why the science is being ignored now with the recommendation against the boosters for all. Is the guiding force consensus rather than science? Or, is the decision one of supply and demand? Is it one of economics?

If the decisions are being made upon some standard other than science, then why can't that simply be admitted? Perhaps credibility could be bolstered by showing people the science? If the science does not exist, perhaps they could just say so? Maybe we shouldn't announce/proclaim coming boosters if the science does not support it, or deny boosters if the science does support them? And, in either instance, I know it would benefit me for a credible scientist to explain that science to us all. I appreciate the local expert's opinions in explaining the logic of the FDA committee decision, but I would still like to "follow the science." Show me the science.

If you are unvaccinated, while the experts debate whether I can get a booster, you can certainly get your first dose(s). I highly recommend it (not a scientist). Certainly, you can still become ill with COVID after vaccination, as demonstrated by the recent stories out of Massachussetts.  Yes, many vaccinated people still get COVID. But according to Healthline, "In all states, the rate of breakthrough cases among the fully vaccinated is below 1 percent." And, "fatal cases of COVID-19 among vaccinated people are either very low or virtually zero in 48 states." Doubt the vaccination if you wish, but this is actual data, from actual infections. This is science. 

Thursday, September 16, 2021

Outdated and Antiquated

Outdated and antiquated. First conceived in 1842 and patented by a Scottish inventor, it took decades for the facsimile machine to catch on. The history includes innovation by an Italian priest in the 1860s. Remember, it was not until 1869 that the golden spike driven at Promontory Point Utah completed America's first transcontinental railroad, according to the History Channel. The facsimile machine is truly 19th Century technology.

Certainly, it was not all that useful back then. It took decades for the machines to become accessible to the masses, the 1970s marked the real ascent of this technology, over 120 years after its invention. Along the way, there was innovation and improvement. Most readers will not remember that even in the late twentieth Century most of those machines printed on thermal paper that was specialized, expensive, and came on a roll. The pages produced would tend to curl up long after the print was created, and over time the text became difficult or impossible to read as it faded.

By the late 1980s, every professional office had a facsimile machine. They were fast, confirmable, and convenient. People liked that a "confirmation page" could be generated showing the time, date, and destination of a particular fax. We stapled those to the back of our file copy and stored them with other papers in our bulky files, file cabinets, and file rooms. It was a different era. 

But, since the early 1970s computers had been linking together in communication networks, mostly in academia. And by 1983, it can be said that the Internet was officially born. The sharing of information became more rapid, less constrained by special equipment, and innovation progressed rapidly. The 1990s brought electronic mail to the masses, but the Guardian assures us it also had its birth in the 1960s. Over the last 30 years, the email paradigm has gained prominence. Despite the other available options, it remains the standard communication tool of most professionals. 

Each OJCC District Office had a fax machine in the 1980s, but electronic mail had not yet come to call there. In fact, in the early 1990s, the OJCC did not even have personal computers (PCs). Documents were created on proprietary word processing machines, and the PCs were just beginning to enter the scene. It is fair to say the OJCC was behind the curve as to computers. 

Facsimile was "the" way to send a document rapidly in the workers' compensation world of the 1990s. They were so convenient that judge's offices began limiting their use; too many incoming faxes with their potential, yet too often illusory, urgency were disruptive of the office workflow. If people had been discrete and used the urgent tool only when urgency was real, perhaps that would have been different. Even today, many people periodically add the word "emergency" to the most mundane of motions. When the Rules were adopted, facsimile was addressed; Rule 60Q6.108(1)(d) requires permission for filing via a facsimile.

The Twenty-first Century brought electronic filing. The OJCC rolled out e-JCC in the fall of 2005 without fanfare. The early-adopters found the tool on their own, used it, provided feedback, and led the (r)evolution. The rules mandated e-filing in 2010, and the statute largely required it in 2011. The age of the Internet was well upon us a decade ago, and yet those fax machines remained. They were largely silent, except for the periodic advertisement or solicitation. 

With e-filing, noticeably, the use of fax machines diminished. The OJCC has discussed discontinuing their expense repeatedly over the last decade, and the time has come. The OJCC has eliminated all facsimile machines except the one in the OJCC Clerk's office in Tallahassee. That is logical. First, all documents filed with this Office are to be e-filed, Rule 60Q6.108(1)(a). There is an exception for those who self-represent. However, any paper filings are to be only filed in Tallahassee anyway: "Any document filed in paper form by U.S. mail, facsimile, or delivery shall be filed only with the OJCC clerk in Tallahassee." Rule 60Q6.108(1)(a).

There were those who occasionally faxed in some late-breaking document for a mediation, but even that has diminished. Thus, the consolidation is logical, cost-efficient, and frankly overdue. Any facsimile to the Florida OJCC should now be to the Tallahassee Clerk's facsimile number: (850) 487-0724, and the use of facsimile should remain exceptions to the rule. Rule 60Q6.108(1)(a).

The OJCC is not alone. The recent pandemic has driven reform in the medical community. As the OJCC has debated discontinuing facsimile, the main objection has long been that medical professionals prefer facsimile. We communicate with physicians largely due to the Expert Medical Advisor (EMA) statute. There are some doctors who describe that they "don't do" email. Our remaining fax number will accommodate their use of facsimile if they persist. 

The British Broadcasting Corporation (BBC) recently reported that the medical profession's reliance on facsimile was a challenge during COVID. In September 2021, it reported "The outdated machine hampering the fight against Covid-19." It says that the volume of facsimile transmissions increased with the pandemic, and medical staff was challenged to keep up. 

More troubling, they were forced to devote significant time converting those paper submissions into database information, sift for duplicates, and maintain records. In a time that put significant demands on the medical practices, the absence of effective, modern, data management was distraction and detriment to the practice of medicine. The medical community and regulators apparently has taken notice. 

The BBC reports that "the inefficient sharing of data has left a growing number of governments promising to finally abandon their use of fax machines." The Netherlands, Japan, and others are noted specifically. The article notes that the reliance on "outdated technology" in the medical profession persists beyond facsimiles, with pagers and other dated paradigms still relied upon. The seemingly singular strength attributed to the fax is security, facsimile is far harder to hack than an email, but the primary driver of continued reliance seems to simply be resistance to change in a general sense.

Before these machines can be permanently relegated to the scrap heap of history, there is work to do in compatibility and sharing of medical data and records. database evolution is needed in that profession. I spoke recently with a doctor who expressed frustration. Despite this physician having a robust data-system and electronic records, data from a patient's care elsewhere cannot be seamlessly added. The information from other providers is received in PDF format, printed, and then re-entered. The physician is confident that her records sent to other care providers is likewise being handled, interpreted, and re-entered by humans. Time-consuming and inefficient don't begin to describe that. But, that is not an argument for the facsimile, merely a criticism of how fast a profession is evolving. 

There will be an algorithm and artificial intelligence. There are already computer programs that scrape data from electronic records and reorganize and recategorize it. That innovation is coming. There will be truly integrated and seamless sharing of medical records in our lifetime. First, because it is practical for such a program to be developed, and second because the cost of manually re-creating all that data on a doctor-by-doctor basis is expensive. The profession will evolve, mark my words. As we see regulators mandating modernization with facsimiles, similarly we will see the mandate for such record integration and standardization. 

For now, the message is facsimiles have, after a century of obscurity, and decades in the limelight, faded like those old, curly, thermal pages. The OJCC will retain some capacity for now at the clerks' office, but gone are the various machines sitting, humming, and waiting throughout the state. This is progress, and a day will likely come when people you hire will know "facsimile" only because they looked it up on the Internet, or their grandparents had one. Welcome to the next step it the facsimile revolution, its end. 

Any facsimile to the Florida OJCC should now be to the Tallahassee Clerk's facsimile number: (850) 487-0724, and the use of facsimile should remain exceptions to the rule. Rule 60Q6.108(1)(a).

Tuesday, September 14, 2021

Technology too Good to be True?

Years ago, in 2003, a 19-year-old wunderkind burst on the scene in the unreality of Silicon Valley. With minimal academic credentials, and a reportedly infectious personality, she attracted believers to a fantastic cause. She had dropped out of Stanford University, and her name was Elizabeth Holmes, and she promised relief in the form of miracle. Salespeople peddling miracles is nothing novel or surprising, but this one had a potentially striking magnitude. And, perhaps there are none among us that have not been at least a little tempted to replace our boat bottom with a screen door just so we can experience such a miracle, "as seen on TV."

This miracle, however, was about testing blood. Around the world, people present for their periodic blood draws, and are relieved of tube after tube of this precious fluid. For a raft of conditions, blood draws become a periodic habit. In the United States alone, over 120,000 people make their living as phlebotomists (drawing blood). Not all tests are blood tests, but Medicare spent $4.6 billion on lab tests in 2019. It is fair to say that testing employs many people and presents significant expense.

Not so long ago, in the 1960s, the management of diabetes was far more complicated, and therefore unsuccessful, compared to today. According to the American History Museum, monitoring glucose used to involve boiling urine, then reactive tablets. In the 1970s, the micro processor came to bear on that illness, and the glucose monitor evolved into commonality. Those diagnosed with the malady came slowly accustomed to pricking a finger, drawing a drop of blood, applying it to a test trip and monitoring their glucose. I recall that evolution, and its description is “miraculous.“

And, if that development was not enough to illustrate the way science leaps, there are now many glucose monitors that help the diabetic manage without even the pin prick for blood, as described by Healthline recently. How far from the Star Trek medicine predictions can we be? We see it as science fiction, and persistently science and technology deliver progress to our front door. 

The promise of Theranos was no less potentially impactful. The wunderkind promised simple blood testing with a similar pin prick of blood. The machine was about the size of a small laser printer; convenient, unobtrusive, and fully automated. In a word, “miraculous.“ So miraculous, indeed, that the company "attracted hundreds of millions of dollars in investments," according to the British Broadcast Corporation (BBC), and soon became worth billions of dollars, according to Business Insider. It attracted investors from amongst the intellectual elite of America. The company made deals for pharmacy-based testing machine trials with healthcare icons. The company grew, and reported innovation after evolution.

The wunderkind "became the world's youngest self-made billionaire through her years-long pitch of Theranos," according to WNYC Radio. It was several years later, in 2015 that the Wall Street Journal began to ask questions for which there were not adequate answers. The publicity "spurred federal regulators to launch probes of the company." The billionaire who had soared too close to the sun came back to earth as the legendary Icarus of old. And, in the end, this promising, innovating, miracle turned out to be a disappointment at best. Some have used more stern adjectives. 

This week wunderkind Holmes is on trial. She was in the dock in San Jose as lawyers deliver opening statements. She stands accused of fraud and manipulation. Gone are the private jets, the a A-list investors, and the trademark turtleneck sweater (a la Steve Jobs). This week in San Jose, a young woman stands accused of misleading and misdirecting. She is accused, according to the BBC of engaging in a "fake it until you make it" practice that some attribute to Silicon Valley in a broad and general sense. She claims in defense that she was a pawn manipulated by a co-defendant. The two were in a relationship, and salaciousness may provide distraction during this prosecution. Her former lover will be reportedly be tried for his involvments at a later date.

I thought of this recently as I stared out across Germany’s Mosel River one morning, and spoke with “Benjamin“ across an app on my cell phone (I suspect that was not his real name). Benjamin was observing me inserting a probe into each nostril and slowly rotating around my nasal cavity. Having done so, he watched me place the probe into a pre-prepared re-agent, and pour the liquid into a device about the size of a USB flash drive. That device was communicating with my cell phone, and a second app, by blue tooth. That amazing little device determined that I was negative for the Covid-19 virus in about 15 minutes. That determination was a critical precondition of my government to gain readmission to my country, see Pandemic Regulation a World Away.

Recall when there were lines for COVID tests? Cars would line up like veritable parades in 2020. An excellent picture was published by CNN last year, wait times were sometimes hours. That CNN article said that around Thanksgiving 2020 the results might take "more than two days." I got mine on the Mosel river, a world away, on my Iphone, in 15 minutes. That, is, miraculous. Imagine when someone proposed and hyped the idea for that little flashdrive-sized device, the kit, and those apps. How miraculous and perhaps far-out that must have sounded. Did it sound too good to be true?

We will see how the Holmes trial progresses. Most recently, ironically, there was some delay due to concerns of COVID in the proceedings, as reported by NBC News. The trial is expected to last months, and could result in a twenty-year prison sentence, though CNBC suggests that she might serve less. One study reportedly supports "dramatic unexplained gender gaps in federal criminal cases." One reported notes that trial was delayed unexpectedly due to Ms. Holmes pregnancy and the birth of a child in July. Some posit that prison sentences for mothers are perhaps less stringent than for others. 

How the trial ends will be interesting. The disparity asserted in sentencing regarding men and women is interesting. But more interesting than any of this is the "fake it 'til you make it" allegation regarding Silicon Valley. Can investors blindly follow the intellectual elite, believing that investing must be safe because those really smart folks must have vetted such a wunderkind? Can investors demand to see results, peer reviews, and "behind the curtain," without such a start-up revealing too much and faltering as competition leverages its innovation?

There are lessons in the 19 year-old Stanford drop out. Lessons for business, for lawyers, for investors, and more. When the tech is truly innovative, revolutionary, and beneficial there is so much to be gained, so many lives to be improved. And, when it is false, there is so much disappointment and ruin; enough to go around. Is technology on trial? Is Silicon Valley? Or is it just the wunderkind?

Sunday, September 12, 2021

History in the Making

I stood recently in the Nuremberg Palace of Justice. In the law, there is perhaps nowhere more intriguing. Though many considered the murder trial of Orenthal Simpson to be the "trial of the century" (Every Hill Films, 2014), it was not even close. In the middle of the twentieth century, far more important trials occurred in Nuremberg. 

There is a historical museum with pictures and explanations. They are frustratingly presented only in German, which I speak haltingly. The Germans did not conduct these trials. They occurred here at the insistence of the three victorious allied powers. That the plaques included no English, Russian, or even French translations was surprising. 

The language barrier was mitigated with hand-held listening devices, but reading and re-reading would be more comfortable. The museum and courtroom are in a building that remains in active use in the twenty-first century, despite being built over a hundred years ago. Visitors are warned by apologetic signs that when the courtroom is in use, access will be limited to viewing through small windows.

The displays explain the challenge of this post-war trial process, and the perspectives of those involved. The museum concludes that "the trials had an enormous influence on the development of international criminal law right up to the present." The idea of "war crimes" was new in that era. There was a lack of clear precedent regarding the how, when, and where of such trials. There was a three-power (U.S., Britain, USSR), four-victor (add France) alliance involved, but that was a tenuous alliance that too soon (1947) evolved into a cold war.

According to History.com, there were "a series of 13 trials carried out in Nuremberg, Germany, between 1945 and 1949." There is no volume provided by that authority. However, according to the National World War II Museum, "24 of the most important military and political leaders of the Third Reich" were tried between "November 20, 1945 to October 1, 1946." On October 1, 1946, 19 were convicted, and 12 sentenced to death. Those were hanged in a courthouse gymnasium 15 days later. There was no right to appeal

That was the famous trial. But, as history marched forward, "in all, 199 defendants were tried, 161 were convicted, and 37 were sentenced to death," again according to the WWII Museum. There was far more to the Nuremburg trials than is covered in American high school history. In fact, short of an elective course in International Law, it is unlikely most lawyers understand or appreciate the significance of Nuremberg.

Nuremberg was a first for bringing the rule of law to war. There were some prosecutions for mass murder, accompanied with some defenses that accused the victor nations of similar atrocities (USSR). There were an estimated 75 million killed in WWII, and "in all, 199 defendants were tried" at Nuremberg. Though this was a huge undertaking, unprecedented, and innovative, it addressed a very small volume of German officials. It purported only to address crimes committed on an international scale, leaving those isolated to Germany to that nation's courts and processes. 

In 2021, a German court is planning to try a 100-year-old man in October on "3,518 counts of accessory to murder on allegations he served as a Nazi SS guard at a concentration camp." This is a man that has lived over 75 years since the war ended. How many of those engaged in the Nazi machine similarly escaped prosecution over the last decades? Is there truth to the maxim that "justice delayed is justice denied?" How that delay may influence claims will be the subject of another post soon. 

I stood in the wake of history in that Nuremburg courtroom. The trial process was unprecedented. But additionally, innovative efforts were made for public comprehension. Lights were installed to facilitate filming of the proceedings, such that some participants were said to wear sunglasses in the courtroom. Compromises were struck regarding process and procedure. An Anglo-American trial style was adopted, including cross-examination. That was a process alien to German law, unfamiliar territory for defense counsel and defendants.

Despite that, some cross-examination was seen as less than effective. Lead prosecutor Robert Jackson, a former United States Attorney General and sitting U.S. Supreme Court Justice cross-examined Hermann Goering for more than two days. It has been criticized and critiqued. Some question if it was "the worst cross-examination in history." That is very harsh, and in fairness, I have personally seen far worse. Perhaps it is so harshly critiqued because of the public focus and publicity it received? Perhaps it was the prominence of the examiner? 

There were defenses raised regarding responsibility. Many of the defendants explained that they merely followed orders. They asserted that only Adolph Hitler could be guilty because he gave the orders. Defendants were nonetheless made to answer for atrocities, policies, and even genocide. Having walked the grounds of Dachau and Buchenwald, I remain astounded at the 199 defendant total above. In the end, there were many convictions among the prosecutions. But millions of people were systemically imprisoned, dehumanized, enslaved, and exterminated. Millions of people were killed, and 199 were tried at Nuremburg. 

The National World War II Museum does an admirable job of summarizing the legacy of the Nuremburg trials. It acknowledges "mixed success." It notes the challenges of a country evolving into two: the Federal Republic of Germany (West Germany) and the German Democratic Republic (East Germany). It notes the end of allied occupation in the west within a decade, and included the release of many (3,300) incarcerated National Socialist Worker Party members, Nazis, in the process.

The two Germanies were very different. One in the east, behind the "Iron Curtain," and part of the Soviet-controlled territory ceded in the post-war reorganization of Europe. One in the west, recovering on its own path and striving for a democratic existence. Each Germany was scarred by two world wars, fascism, socialism, extremism, and more.  Despite their history, the Germans were divided into geographic sectors by the victors, and subjected to supervision and control. Just over 16 years after Victory in Europe day, the East German government threw up a barrier overnight to preclude its citizens from fleeing to the west. That quickly evolved from barbed wire and barricades into a concrete Berlin Wall. Perhaps that wall marks the only time in human history that a nation built a wall not to repel invaders but to mass-incarcerate its own?

The world, it seems, moved on from Nuremburg. The trial of the century was transcribed for posterity. It was printed in various languages. At the insistence of the four victors, copies were made available in many German libraries as the country(ies) rebuilt. There were policies established, and thus precedent. Upon the Nuremburg foundation, the International Criminal Tribunal for Yugoslavia was created in 1994, with a similar "ad hoc" tribunal regarding Rwanda soon thereafter. Despite its significance, its "trial of the century" label would later be hijacked by the media to describe a more mundane murder prosecution of a prominent ex-football player. 

Before Nuremburg, there had been international efforts as regards courts and disputes. Today, the International Court of Justice sits in The Hague, an "organ of the United Nations." Though that tribunal has a significant history dating to the League of Nations, it was the four victors that prosecuted the defendants in Nuremburg. It was the structure and process they built that establish the precedent of responsibility under international law. In Nuremburg, history was made through innovation and perseverance.  

And, history is forgotten. I found myself at both Nuremburg and the Berlin Wall recently. Memories are recorded and documented of those who died in each. I visited the Allied Museum in Berlin. I walked the Buchenwald death camp. I visited the famous site of the Nuremburg trials. I walked both sections of that infamous wall and various markers that memorialize its scars. 

I was not alone, but there were no crowds. In fact, the crowds at various historical sites were as disappointing as I found in Hamm, Luxembourg at the American Cemetery, discussed in Remembrance (September 2021). That war ended 76 years ago, the wall was erected 60 years ago and fell almost 32 years ago. The National Socialist Workers Party ceased to exist. The fallen, the tried, the convicted, the process, and the complexity fade from memory.  

I ponder whether anyone will visit these historic sites fifty years from now. As the atrocities of history fade into our past, will they be completely forgotten? Will we retain appreciation for the institutions and processes that the tribulations led to? The true constant in our world may be the law, process, and precedent. In the International Court there is perhaps that promise. In more recent times, we have perhaps witnessed a positive evolution in the adoption of due process and the solving of disputes according to a rule of law. There is, therefore, perhaps hope illustrated in our evolution. 

This blog is about workers' compensation, and the relevance of the foregoing may be lost on some readers, in that context. But, the resolution of disputes, great and small, is dependent upon due process. It is a matter of the utmost importance that adjudicators remain independent and impartial. It is as important that their decisions are consistent, and articulate reasoning as well as conclusion. It is critical that a right of appeal persists, for the sake of the parties and the workers' compensation community overall.  

Beyond due process, it is worthy to consider that history is important. There is attribution struggle regarding the phrase "you must learn from the mistakes of others, you will never live long enough to make them all yourself." Regardless of who first articulated this truth, it conveys much. Has the world learned from the lessons of the past? Seventy-five years on without another "world" war perhaps suggests yes. But, the plethora of smaller conflicts in that time perhaps suggests the lesson was less than absolute.

Similarly, have the workers' compensation systems learned from mistakes in their pasts? Is the history of this conglomeration of state systems studied, understood, and considered as innovation is proposed? Is there enough interest in considering the statutory vacillations within a jurisdiction as legislative reform is considered? Is there interest in learning from the challenges faced by other jurisdictions, their solutions, compromises, successes, and failures?

Some have seen these systems as critically important, see Singletary v. Mangham Construction, 418 So.2d 1138 (Fla. 1st DCA, 1982). These systems literally impact the entirety of employment relationships in the United States. Their effects are direct on the employers and employees required to participate, indirect on those who are not so required. But their impact is real. And one hundred years on, there are many lessons in the establishment, evolution, and reform of these laws. Will we find them worthy of study, or will their history similarly fall into disregard?