Could the Autonomous Industry Use a Dose of Big Pharma?

By: Bridget Clerkin March 30, 2018
Lawsuits over vaccines in the last century may influence how autonomous vehicle manufacturers handle liability issues with their cars in this century.
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In the wake of the first pedestrian death caused by an autonomous car, manufacturers are facing a hell of a catch-22: they need to test their vehicles on real-life roads in order to make the self-driving systems safer, but the self-driving systems need to be considered safe before it’s deemed acceptable to test them on real-life roads.

The technology involved may be novel, but the problem is nothing new: the pharmaceutical industry was plagued by similar issues for years as it strove to develop life-saving vaccines and medications through experiments that would inherently put patients at risk.

While the self-driving industry has so far largely benefited from a lax regulatory environment, the latest incident—in which a woman was struck and killed by an autonomous car while crossing the road in Arizona—has raised fresh concerns over safety and the absence of federal guidelines on the new-age transportation.

But if the lessons of the past are any indication, some congressional input could actually serve to aid the industry in its quest to perfect experimental technology through trial and error.

To ease the path for pharmaceutical companies, the governing body created legislation dictating exactly what drug producers and private citizens alike could expect in the wake of a worst-case scenario, attempting to balance personal grievances against the public good. Could a set of similar rules help pave the way for self-driving cars to more quickly take over the roads?

Ticking Time Bomb

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Carmakers are pushing vehicles with autonomous capabilities into action already—the 2018 Cadillac CT6 is one such vehicle with the features. Who exactly is at fault when a self-driving car causes an accident—and who will be on the hook for damages—is still an open question.

Time is not a small factor in the race for autonomous autos. Car manufacturers, technology firms, and the federal government alike have all spoken out about the importance of cracking the self-driving case as quickly as possible to solve the growing problem of roadway fatalities. (In 2016 alone, more than 37,000 Americans perished on the road, marking the second consecutive year that total automotive-related deaths were on the rise, after nearly a decade of decreasing fatalities behind the wheel.)

The idea is that the robocars—technically perfect drivers, tireless, and free from the distractions of the human mind—will become so safe that traffic fatalities will be all but eliminated once the autos become mankind’s permanent chauffeurs.

Still, the legal landscape in which the technology dwells is largely barren, which only compounds the current crisis of faith facing the industry.

With full implementation of the autos likely still decades away, there are precious few—if any—laws on the books concerning liability, insurance, and who will ultimately be deemed responsible in the case of any incident, let alone a fatal one.

Despite the legal vacuum—or perhaps because of it—thousands of the autos are currently crawling roads from New York to California, and the first deadly incident in Arizona almost certainly won’t be the last.

The lack of legal precedent means any lawsuits brought about in response to an accident could languish in court for years, likely confusing jurors and judges in the process, as they will essentially be tasked with creating the law as they go along.

Such legal limbo would also likely stymie self-driving development, as industry players would all be affected by any resulting case law, potentially discouraging them from making any major moves before a verdict is reached.

In the meantime, thousands more could die in accidents that Congress and the autonomous industry argue could be avoided once the technology becomes sophisticated enough to safely navigate the country’s roadways. It may seem like an impossible bind, but Congress has found its way out of the situation before.

Regulatory Cures?

In the late 1970s, the country was in the throes of an anti-vaccine movement.

Diphtheria had once been responsible for killing hundreds of thousands of children across the globe, but the deadly disease had been brought to heel after the development—and widespread disbursement—of a shot used to fight off the illness.

Still, one in 1 million children were found to have “severe allergic reactions” to the vaccine, which at the time were believed to lead to significant brain damage. (The cause has since been officially linked to an unrelated condition, infantile epilepsy.)

Furious that their children had been subjected to such a dangerous substance, many caregivers of those who became sick took their cases to court—and won.

The pharmaceutical industry bled out millions to settle round after round of lawsuits, leading many manufacturers to stop producing the vaccine. Those who continued distributing the drug struggled against the dual threat of legal action and skyrocketing liability insurance costs. By the mid-1980s, only one company continued making the vaccine, which drove up prices for the medicine exceedingly.

Congress stepped in to tip the invisible hand of the market in 1986, passing the National Childhood Vaccine Injury Act, which created a program specifically for handling such cases.

The law established what has become known as “vaccine court,” a program through which a shared pool of money is collected through a special tax on vaccines and set aside specifically for vaccine injury cases.

While the legislation shields pharmaceutical companies from being sued for any harm resulting from the shots, it assumes an at-fault stance for the drug industry in most cases, making it much easier for victims to be compensated by vaccine manufacturers. Since its official start in 1989, the program has awarded more than $1.8 billion in injury claims made in nearly 2,500 cases.

The Supreme Court recently reaffirmed the legality of the program in a case involving the vaccine court in 2011, ruling in favor of pharmaceutical company Wyeth as the business sought to protect itself against a product liability lawsuit.

A similar indemnity model already exists in the automotive world. Michigan requires all of its residents to acquire no-fault insurance in order to create a pool of shared dividends used to help those who suffer the most catastrophic injuries in car accidents there.

While the insurance program has saddled Michiganders with the nation’s most expensive car insurance, the national model created by the Childhood Vaccine Injury Act has been successful in tempering costs and keeping the pharmaceutical industry running. At the dawn of this new technological age—where more real-life sacrifices may be made in the sake of experimental progress—the concept could offer the autonomous industry, and any future victims of it, an opportunity to heal themselves.

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