Autonomous Vehicle Legislation Could Be Modeled After Vaccines

Matt Posky
by Matt Posky

Every time we write an article about autonomous vehicles, our comments section is quickly populated with discourse over how litigation would be handled in the event of a crash. Who do you sue?

You can’t fault the driver, because a truly self-driving car takes them out of the equation. Suing the manufacturer doesn’t work because, assuming the system functions properly, they’re still saving lives and shouldering all of the risk would discourage companies from bothering to pursue the technology.

However, autonomous accidents will happen and someone is inevitably going to appear in a courtroom. The justice system has to decide how that will be handled, but Automotive News’ Katie Burke has an interesting solution. It relates to how the United States deals with legal actions involving vaccinations.

During the 1970s and 1980s, a small number of children suffered severe brain injuries after getting the DPT vaccine (which protects against diphtheria, lockjaw, and whooping cough). Despite the vaccinations saving countless lives, it was believed to cause brain damage in a handful of rare cases. The families of affected children began suing pharmaceutical companies for millions of dollars, and companies began retreating from the marketplace.

Worried that the best defense against potentially fatal diseases — some of which also cause brain damage — was going to be sued into oblivion, Congress passed the National Childhood Vaccine Injury Act in 1986. The legislation created a court within the U.S. Court of Federal Claims, called the Office of Special Masters, with the sole function of hearing vaccine injury claims. It has awarded claimants billions since its inception so that vaccine makers can continue to persist.

With the development of the Office of Special Masters, pharmaceutical companies were no longer liable for the vaccines they produced. After 1986, claims could be filed against the Department of Health and Human Services, and a panel of judges determined the case’s legitimacy. Other countries have followed suit with similarly modeled court systems.

Burke’s proposed solution for autonomous vehicle litigation would be to model something akin to the National Vaccine Injury Compensation Program. The state would provide oversight for the standards and practices of autonomous implementation and, so long as manufacturers meet those guidelines and save most of the 35,000 people every year they intend to, the government would assume the financial risk.

However, there are a few gaps in this solution that would need to be filled. In vaccine cases, more families have been compensated since the special courts took over, though the damages paid have been smaller overall. Still, it wasn’t just the families that benefited after 1986 — the pharmaceutical industry turned a corner.

“Once the courts gave them protection, pharmaceutical companies started making a lot of money,” explains David Ratcliff, an American Association for Justice researcher.

The vaccine court provides an important function to ensure dangerous illnesses remain checked, it also takes some of the burden off drug makers. Giving special protection to vehicular safety technology would need to be carefully regulated. Ratcliff believes that allowing automotive companies to a free pass would be a mistake.

“Take the Takata airbags, for example,” he said. “They’re meant to protect you but could turn you into Swiss cheese. If a safety innovation turns deadly, you want the manufacturer to be held accountable.”

There is also the matter of autonomous cars sharing the road with human drivers. Insurance companies might deem it to difficult to decide who is at fault and not bother insuring self-driving cars, especially if the government is already handling those claims. In which case, the state becomes suddenly responsible for the analysis of complicated accident investigations involving living, breathing, operators.

It’s not a perfect solution, nor does it settle all legal the matters surrounding autonomous vehicles, but it does provide a judicial precedent for how we might protect the existence of a potentially life-saving technology.

[Image: Tesla Motors]

Matt Posky
Matt Posky

A staunch consumer advocate tracking industry trends and regulation. Before joining TTAC, Matt spent a decade working for marketing and research firms based in NYC. Clients included several of the world’s largest automakers, global tire brands, and aftermarket part suppliers. Dissatisfied with the corporate world and resentful of having to wear suits everyday, he pivoted to writing about cars. Since then, that man has become an ardent supporter of the right-to-repair movement, been interviewed on the auto industry by national radio broadcasts, driven more rental cars than anyone ever should, participated in amateur rallying events, and received the requisite minimum training as sanctioned by the SCCA. Handy with a wrench, Matt grew up surrounded by Detroit auto workers and managed to get a pizza delivery job before he was legally eligible. He later found himself driving box trucks through Manhattan, guaranteeing future sympathy for actual truckers. He continues to conduct research pertaining to the automotive sector as an independent contractor and has since moved back to his native Michigan, closer to where the cars are born. A contrarian, Matt claims to prefer understeer — stating that front and all-wheel drive vehicles cater best to his driving style.

More by Matt Posky

Join the conversation
3 of 15 comments
  • Garrett Garrett on Mar 27, 2017

    If we treat autonomous cars like vaccines, does that mean there will be a bunch of hack scientists and Jenny McCarthy claiming that autonomous vehicles cause autism?

    • Lou_BC Lou_BC on Mar 28, 2017

      @Garrett - *hack* scientists are always at work when truth/facts do not jive with one's beliefs aka world view. Ironically, presenting more facts just makes them entrench more deeply. One must first understand the reasons why one believes what they believe. That entails understanding their values and beliefs. One must then approach from their perspective and work through it emotionally. That is a difficult process that involves reassessing our own beliefs and then accepting someone else's beliefs. Until we do that, the chasm that exists in the USA today will only grow deeper and wider.

  • Jdmcomp Jdmcomp on Mar 28, 2017

    Like swine flu vaccine? Google it if you are too young. The risk are high, very high, and with limited liability, corners will be cut without having to think about the end result.

  • 28-Cars-Later Seriously, $85. GM Delta I is burning hot garbage to the point where the 1990 Saturn Z-body is leagues better. My mother inherited an '07 Ion with 30Kish otc which was destroyed in 2014 by a tipsy driver with a suspended license (driver's license enforcement is a joke in Pennsyltucky). Insurance paid out $6,400 when it was only worth about $5,800 IIRC, but sure 10 year later the "hipo" Delta I can fetch how much?
  • Buickman styling does not overcome powertrain, follow the money. labor/materials.
  • VoGhost It's funny, until CDK raises their prices to cover the cost. And then the stealerships do even more stealing because they're certainly not taking the hit - why do you think they make all those political donations? So who pays in the end?
  • VoGhost I was talking today to a guy who pulled up in an '86 Camry. Said it ran like a top, got 30 mpg, the AC was ice cold and everywhere he goes, people ask to buy it. He seemed happy.
  • VoGhost TL:DL. Younger people less racist.