More science than Solomonic wisdom

As far as court decisions go, it was more scientific than the wisdom of Solomon. I am not a heretic or belittling King Solomon’s legendary wisdom, but safe to say, his wisdom was guided by divine intuition.

In contrast, the decision of QC-RTC Judge Cleto Villacorta on the cases of Reckless Imprudence versus DOH officials in the controversial Dengvaxia case was all about jurisprudence, science and straight up facts, that all lawyers and law students and communicators should study.

Many people have been sharing parts of the decision online, particularly portals such as abogado.com.ph and politico.com.ph and I also got a briefing from one of the respondents and others in public health. So, allow me to do likewise before such excellent work gets drowned by Typhoon Enteng’s aftermath.

The most significant point that Judge Cleto Villacorta made was that “there was not enough evidence presented to support the argument that Dengvaxia contributed to the deaths of children and that the officials acted recklessly in the mass vaccination program against dengue.”

From there, Judge Villacorta spread out in detail why the case brought against the DOH won’t stick. He began with the claim of Reckless Imprudence made by prosecution witnesses. Judge Villacorta stated that “when I make this conclusion, I am limited by what the elements of criminal recklessness require.”

The judge said that a standard or a basis of comparison or “comparator of evidence” was needed to establish the charge beyond reasonable doubt. But there is no such thing in the books, or as presented to the court.

The prosecution witnesses against secretary Janet Garin had never held the position of DOH secretary, who has to consider many factors when deciding on a health initiative. Therefore, they were in no position to define what was “reckless” nor did they qualify as “expert witnesses.”

The judge pointed out that the prosecution’s witnesses did not meet the status of expert witnesses and their opinions are not “evidence.”

“I cannot rely upon Dr. Cairo, Dr. Leachon and Dr. Erfe because their respective opinions on what demurrant Garin should and should not have done is not in evidence.”

“They should first be qualified as an expert witness on what a Secretary of Health ought to have done or ought not to have done in similar circumstances.”

The court explained that for “an expert opinion to be admissible as evidence, must come from a credible expert who has special knowledge, skill or training; it must be derived using sound scientific principles and methodology; and must not be based on hearsay and, in this case, there is no such evidence on record.” (In other words, having an opinion does not necessarily make you an expert witness.)

Judge Villacorta said that the expert witnesses presented gave no evidence showing their areas of study, training, experience and peer review to qualify them as experts in dengue, Dengvaxia and vaccines in general. The judge added that “the underlying science” for the witnesses’ opinions on Dengvaxia is unreliable, given that this has not been tested or subjected to peer review, and there is no consensus in the medical community and the theory or technique used has not been generally accepted.”

Secretary Garin and Dr. Lecciones could not be directly linked with the mass vaccination since their involvement was ministerial in nature and not directly involved with the actual implementation of vaccination on the ground. There was also no “comparator evidence” concerning Dr. Lecciones, whose role was limited to the bidding and purchase of vaccines, not their administration.

The court also said that it cannot be proven that the cause of death of the eight children was due to Dengvaxia as before the vaccination, these children had underlying conditions. “It appears though from evidence that the children had other diseases, pre-existing or otherwise, that the death certificates and the pathologists were able to document.”

The court also pointed out that immunization guidelines on Dengvaxia issued by the DOH requiring screening of a child before inoculating the vaccine were not followed, as well as the DOH instructions that health professionals should conduct the vaccination and not barangay workers.

The part that resonates was when Judge Cleto Villacorta stated:

“It is a curious case that the law is asked to provide scientific explanation and justification for a case focusing on medical knowledge rather than the other way around.”

The identified risks associated with Dengvaxia, as disclosed by its manufacturer Sanofi Pasteur, also do not make prosecution’s “novel science” reliable. While risks have been identified, there is no evidence regarding the magnitude of these risks causing the demise of the young persons. There is no evidence that Dengvaxia is a significant contributor to the deaths involved.

The judge also noted the prosecution’s argument that Dengvaxia is the “very and most plausible explanation for the occurrence of the serious illness and eventual death.” But Judge Villacorta said “criminal cases are not judged using probabilities or likelihood.”

Consequently, the court has dismissed all the cases as well as the Motions for Reconsideration. Meanwhile, the defendants wait on the Sandiganbayan to settle the similar or associated matters brought before the court.

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I’m glad that Judge Cleto Villacorta III wrote the judgement the way he did, because it strongly addressed all the allegations as well as the disinformation that ultimately hurt public health policies and vaccination programs in the Philippines.

If anything, the Dengvaxia controversy and case should serve as a lesson and a warning to national leaders, government officials as well as members of the media, to put in the extra work to learn, understand and consider the long-term consequence of giving space to “issues” or claims we ourselves do not fully know or understand.

Public health involves lives, often our children’s.

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