Stuck in the Middle with Andy Jorgensen

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Andy Jorgensen:

Stuck in the Middle with me, Andy Jorgensen. Thanks for tuning in. I don’t know about you, but every time you turn the news on, you run a really good chance to hearing all about vaccines. And whether they have to do with the flu, which is a vaccine that’s available right now, or COVID-19, which may or may not be available by November 3rd. And then there’s all kinds of questions that come after that. Will people take those vaccines? Do they trust them? That kind of thing. A lot of things just don’t meet the eye, a lot of unanswered questions when it comes to that topic. And to help us sift through it, I would like to introduce Jon Groth from the Groth Law Firm. How you doing, Jon?

Jon Groth:

I’m great, Andy. How are you?

Andy Jorgensen:

I’m fine, thank you. Vaccines. They are a daunting subject these days because they have turned into a political football, haven’t they?

Jon Groth:

They have, yes. It’s something that, gosh, I don’t think I’ve heard the words herd immunity more than I have these past few months. That’s something I never thought I’d hear in my life.

Andy Jorgensen:

How about herd mentality? Do you ever think you’d hear that?

Jon Groth:

Mentality. Well, that’s politics. That’s politics, right?

Andy Jorgensen:

I think that’s a slip of the tongue, actually. But let me ask you about vaccines. When it comes to vaccines, what’s a common misunderstanding that people have about them?

Jon Groth:

Boy. The thing that we hear a lot is just that they weren’t aware that there was this federal program that you can get compensation for a vaccine injury. And a lot of times you think, “Well, if it’s the anti-vaxxers or whatever political bent your with, does it cause autism?” Along those lines, different things that you’re looking at or that you’re thinking about.

Jon Groth:

So you look at those things, but then you look also just in general about the real injuries that occur, frozen shoulder, SIRVA injuries, Guillain-Barre, all these different things that really are directly related to vaccines. So it’s really something that people really don’t know exactly what can be caused from a vaccine and whether there’s any compensation that you can get from it. It’s just such a unique part of the law that it’s really interesting to me.

Andy Jorgensen:

Yeah. And while we’re talking about COVID-19 vaccines. The flu vaccine, a lot of people are getting that right now. And a lot of the experts, heard them say it, say, “You should get it, if you can. That would be a good idea.” But that confuses things because those numbers will run parallel sometimes in the next few months. Right?

Jon Groth:

Oh, sure. Yeah. And this is a, I can say, it’s a real life example from my world. I have three kids. One of my kids got sick last week, and it was a sinus infection. But went to the doctor and the doctor said, “Okay, we’ve got to look at COVID-19.” So you do the COVID test. And until you hear back with a negative test, everything is thrown for a loop. Because you don’t know what you need to do, and should the kids stay home? And in our world, we said, “Okay, kid has to be in their room and making sure that they’re quarantined.”

Jon Groth:

But that’s unique because now we’re coming into October, and there’s what, 87 million doses of the flu vaccine out there, which means they’re anticipating there to be a pretty large flu season. So when you have that on top of the sniffles on top of whatever else you can think of, mold or whatever else that gets into your nose and makes you sneeze, those things really makes it complex because you don’t know what you’re treating. The doctors are looking for the differential diagnosis. Is it flu, something else, allergies, or COVID? And what they want to do is make sure that you get your flu vaccine so we can take that out of the mix. So now we’re looking more at what’s really on all of our minds, and that’s COVID.

Andy Jorgensen:

All right. So I mentioned that when it comes to the COVID-19 potential vaccine that we can assume it’s going to come at some point, I mentioned that it’s a political football. We’ve got the president talking about how just it’s going to happen, miraculously I guess, by November 3rd, which is Election Day. What does the law say about all this, Jon? How does that apply to this? When you’ve got a politician that, I’m not a doctor, but then when I hear somebody, whether it’s the president or anybody up in the cheap seats say, “It’s going to happen right now.” Or, “It’s going to happen by November.” I don’t think that’s how it works. What is the law saying to stuff like this? In our minds we’re thinking, “Well, how does that happen? Are we going to be skipping some parts to rush that politically? And what are you looking at? And what’s concerning to you?

Jon Groth:

Sure. And I think, are you skipping some parts? It sounds like, no. Because we have all these different phases to bring a vaccine from research and development to market and implementation. So you’re going to have to go through, and this is what I hear it seems like every day that, Abbott or whomever, whichever, Johnson & Johnson, whoever is at phase X. Phase one, two, three, that are looking at administering it to mice because mice have similar lung structure to humans, things like that. So they are going through all the right channels it seems, what they’re telling us. And it’s a matter of, “How do you get it done so fast?” And I agree with you, Andy, that’s something that I don’t know how they’re able to get this done within a matter of months. Listening to Fauci and listening to others, it seems like maybe next year is more reasonable.

Jon Groth:

But just as an aside, if you look at HIV, with HIV they were looking for a vaccine, and they still are looking for a vaccine since the 1980s. So sometimes you don’t get vaccines. Sometimes you do. You go back to H1N1. Back 2000, 2005 ish, 2006, around there, with the H1N1, the various flus, the SARS, all those things. They had to pass a federal law to say that, “Okay, we’re going to make it so the drug manufacturers who make these vaccines will even want to continue to try to get these vaccines to market.” So what they did was they had this 2005 act, the Public Readiness and Emergency Preparedness Act, that said that if the government decides that a vaccine is really that important, they can say it falls under this act, which the COVID-19, this vaccine has already been declared, fall under this act, that they have pretty much immunity. So the vaccine manufacturers pretty much have immunity if anything goes wrong.

Jon Groth:

There is a case in New York, for example, back at the H1N1. This is, I don’t know, 10 or so years ago, maybe more than that. I’m showing my age. But there were a bunch of kindergartners who were vaccinated, and somebody literally took the kindergartners into the basement and vaccinated them all without parental consent. It went through, and the argument was that it was battery, just as basic as it gets, this is assault and battery of a minor. And the defense was, “Well, this is something that was immune from lawsuit because of the PREP Act, Public Readiness and Emergency Preparedness Act and they won.

Jon Groth:

So absolutely when you’re looking at this, they’re going to push this forward. They have immunity. And our hope is that you and I, I’m sure most everyone has the hope that there’s going to be enough tests out there, enough people who have gone through this process, that we’ll feel more comfortable. And that’s something that’s going to be on whichever governmental entity, if it’s the CDC along with the president, or somebody in legislature, to come out and say, “We will tell you that this is safe.” Because I know, and now you know, that if you are injured because of it, there’s not much of anything you can do.

Andy Jorgensen:

We’re talking about vaccines with attorney Jon Groth. If we do get a vaccine relatively soon, will you take it? Well, Jon, I think in the back of people’s minds they think that it’s coming too fast for some. And with that, they’re concerned that they just don’t got it right or aren’t going to get it right and it could harm you. If that should happen, and all this is a what if, but I think this is one of the things that’s juggling around in most peoples minds, who would be liable for that then? Would that be the drug company or would it be the government? who would be liable if it did indeed get you sick or did some harm to you?

Jon Groth:

That’s a good question. So, let’s go back to my first days in law school where they talked about torts. What’s a tort? It’s not something you eat. In my world a tort is something that when somebody’s negligence causes harm to somebody else, that’s a general negligent tort system. If you’re involved in a car crash, well, that’s obvious that the person that hit you is responsible to pay for your damages. So if somebody does that, you can go after their insurance pretty easy.

Jon Groth:

When you’re talking about vaccines, it’s different. So you have different ways portions of the world, of vaccines that are handled in different manners. There’s something politically now, Andy, that you’re talking about and that we fear during this kind of season, is tort reform, right? So tort reform is trying to figure out how do we make it so doctors can do their job and not be afraid to help out so drug manufacturers can do their job and not be afraid to research or just in general, that insurance companies in general can do what they’re supposed to do so people can get care. With vaccines, and you look at all the vaccines to the world, with vaccines, there is this big tort reform law that was passed that really it’s been successful.

Jon Groth:

It goes back to the 1980s where they said, “okay, we’re going to give up something, we’re going to give you something, we’re going came to this grand compromise. That if you are injured because of a vaccine you can go to court and you can seek some compensation from somebody and you don’t have to worry about showing causation or showing certain things. We have a proved case for that if the vaccine manufacturers pay 75 cents per vaccine and then that part of this billion dollar fund, that’s many, many billions of dollars now, that if you’re injured because of a certain vaccine you can go to the vaccine compensation board and you can get compensation for your injuries. And it’s interesting because the attorneys, the court decides or the attorneys dictate and the attorneys get paid separately. All the money that’s going to the injured party, goes to the injured party for the symptoms and the contingency fee. Like you see all the TV advertisers show that there’s no fee unless we win. Then the difference is that all the money that’s given to the injured party goes to the injured party and the government decides whether the attorneys earned their fee and that covers them. But that’s all because of this injury compensation program that’s been around for a long time now.

Jon Groth:

It’s interesting, right? Because you’re looking at these things and you’re trying to figure out, well, what happens if I’m injured? And you’re trying to figure out, well, is it worth the risk? And everybody’s trying to make this as risk… Not risk free but as riskless as possible because they want to make that herd immunity. So we need to get enough people to take any kind of given vaccine feel like they’re going to be okay after it and in order for us to get past all these different diseases and viruses that are out there.

Andy Jorgensen:

Well, that’s a real problem isn’t it, because the president keeps talking about indeed he expects that we will have a vaccine this year. In the back of our mind, what little we know about it, we know that’s not how it works. So people aren’t going to have the confidence to go get that vaccine because of the rush job we feel is at hand here.

Jon Groth:

I agree. I agree 100% with that because it’s going to get more of a marketing thing, right? It’s whether you have the president, the commander in chief, he has to be the marketer in chief to give us the assurance through the power of the presidency that things are going to be okay. I can tell you that all these different manufacturers that are out there that are doing all this research and you can name any drug manufacturer probably that’s out there, they’re all trying to get into the vaccine, to the center of COVID-19. But they’re doing it because they know that when it comes down to it, they have immunity. We’re not able to get compensation from them because of this 2005 law that was passed saying that in certain situations, just like COVID-19 situation, that the drug manufacturers could really walk away scot-free. The only way that they can’t is if it’s willful and wanted, which you’re not going prove that. That’s almost impossible.

Andy Jorgensen:

All right. Well, we’re talking with Jon Groth, he’s an attorney, and we’re talking about vaccines. If you don’t mind, there’s a story that just popped up on my screen. I want to run it by you. Since you’re an attorney and it’s brand new, you may not have heard about it. But there’s a new social media challenge on TikTok, Jon, that has left at least one girl dead and others hospitalized. The challenge involves taking Benadryl. If you take a lot of it I guess you get hallucinations. So teens are trying it and recording what happens. The problem is, high doses of the allergy medicine could lead to serious heart problems, seizures, coma, or even death. In August an Oklahoma girl died from a Benadryl overdose in May. Three teens from Fort worth, Texas were hospitalized after they swallowed excessive doses of Benadryl as part of a challenge. The FDA has contacted TikTok and asked them to remove the videos from their platform.

Andy Jorgensen:

Let me ask you, is TikTok responsible for some of this or all of it, or how does the law see it?

Jon Groth:

Well, my guess is TikTok is going to come back and say, “We’re just the vessel that’s disseminating this, it’s like going on TV and doing it and you have to have proper supervision of your kids. The first two words that I thought of were negligent supervision. If this is a kid that’s at your house and they’re doing this Benadryl challenge or whatever the heck it’s called, and you’re not aware of it and they’re putting it on TikTok, I’d be concerned as a parent that you get sued, that you have a claim against your homeowner’s insurance for negligent supervision. You got to look at this way, Andy, TikTok’s got how many kajillions of dollars? They have a lot. So if there’s any lawsuits against them, they’re going to defend it and they’re going to have probably, they’re going to say immunity based on media type things just like you’re talking about somebody’s reputation or defamation and those kind of things. They’re going to say that they were just the vessel. They weren’t causing anybody to do it.

Andy Jorgensen:

There’s a reason the guy getting shot from the canon on your favorite variety show looks at the camera and says, “Kids, don’t try this at home.”

Jon Groth:

Don’t try this at home, exactly. Yeah, but I think the negligent supervision of parents, that’s the number one thing that I was looking at, just parents know what your kids are doing and know what your kid’s friends are doing that are in your basement because my goodness, this is terrible.

Andy Jorgensen:

Yeah, it is. Well, Jon, I want to thank you for joining me today. I sure appreciate it. And I’m sure this isn’t the first and last questions we’re going to have when it comes to vaccines. So I’d like to invite you back sometime soon. Thank you.

Jon Groth:

All right. Thank you, Andy.

Andy Jorgensen:

All right. Take good care. All right, that’s Jon Groth, he’s an attorney from the Groth Law Firm. 

 

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