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 were 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 the 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 on 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." 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 of an employer-mandated vaccination program. Does the government mandate do anything to insulate an employer or alter the potential 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 a religious exemption from vaccination by insisting they also "swear off" other remedies that have a 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 it 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 a 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 Nuremberg 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 Nuremberg 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.'" Amid 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 the judicial process, came definition and protection.

The Nuremberg Code is now being cited by some who oppose the mandatory vaccination against SARS-CoV-2. Reuters reports that various propaganda on 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 acknowledgment 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 Nuremberg 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 knowledge 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 a discussion of the individual, risks to the 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 Nuremberg 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.

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-CoV-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 canceling "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 the 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 who has had a third shot, that should surprise you. The boosters have been administered in various instances already, including for 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 no other reason, in its premise of a "global supply." That implies a communal ownership of resources, 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":

1. in August when it was announced that everyone could get a booster starting in September?
2. when the CDC concluded vaccine protection wanes?
3. when the FDA panel concluded that only some people need boosters?
4. 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 am not 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 an explanation that is perhaps of assistance: your immunity is diminishing, and a booster is in your future, but not yet. OK, why not? How diminished must one get?

Are decisions being made based on 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 you 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 Massachusetts.  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. 

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 linked 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, and 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, facsimiles were 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 its expenses 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 facsimiles, the main objection has long been that medical professionals prefer facsimiles. 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-19. 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 to converting those paper submissions into database information, sifting for duplicates, and maintaining records. In a time that put significant demands on medical practices, the absence of effective, modern, data management was a distraction and detriment to the practice of medicine. The medical community and regulators apparently have 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, a 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 the 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 are 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 exception to the rule. Rule 60Q6.108(1)(a).

 

Technology too Good to be True?

Years ago, in 2003, a 19-year-old wunderkind burst onto 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 a miracle. Salespeople peddling miracles is nothing novel or surprising, but this one had a potentially striking magnitude. And, perhaps there are none among us who 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, and then reactive tablets. In the 1970s, the microprocessor came to bear on that illness, and the glucose monitor evolved into a commonality. Those diagnosed with the malady became 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 pinprick 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 pinprick 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, innovative 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 delivered opening statements. She stands accused of fraud and manipulation. Gone are the private jets, the 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 reportedly be tried for his involvements 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 Bluetooth. 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-19 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 flash drive-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 about 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 report notes that the 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 dropout. 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?

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 Nuremberg 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 who 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 Nuremberg courtroom. The trial process was unprecedented. 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 defendants 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 Nuremberg. 

The National World War II Museum does an admirable job of summarizing the legacy of the Nuremberg 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 Nuremberg. 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 Nuremberg 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 Nuremberg, 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 Nuremberg. It was the structure and process they built that established the precedent of responsibility under international law. In Nuremberg, history was made through innovation and perseverance.  

And, history is forgotten. I found myself at both Nuremberg 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 Nuremberg 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 the 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 an 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 past? 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, and 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?

Remembrance

I wing my way across the Atlantic as the world I know slowly arises from slumber. I have departed Germany mid-day, but it is 6 hours earlier in Paradise and will be a long day. It is only the second time I have departed the continent on a transatlantic flight west. The pandemic still surrounds me. Precautions remind me. But, history draws me back to a time more troubled, more trying, and direr. The recent news reminds me of the sacrifices of many in Afghanistan in the preceding decades, but my mind is otherwise focused. 

I spent time recently in Nuremberg; more on that in a future post. Last December in Lessons from History (2020), I described some of my interactions with a Frenchman at the famed Maginot Line. My visit there in 2019 will forever resonate with me. It was built in the 1920s and 1930s, a response to the extended trench warfare of WWI, and was supposed to keep the Germans out of France. I studied it in many history classes. 

I would love to return one day to Ouvrage Schoenenbourg and the various remnants of the Maginot thereabouts. They are a testimony and remembrance. Germany responded with the construction of the Sigfried Line, likewise primarily in the 1930s. Following the German invasion of the rest of Europe in 1940, it fell into disrepair but was significantly reinforced around 1944 as the war finally turned against Germany. By 1944, many young Americans of the Greatest Generation drove Nazism back west from the brutal defenses of the French coast and toward oblivion.  

More recently, I was privileged to visit remnants of the Sigfried Line in Wallendorf, Federal Republic of Germany. The Germans call this the "Westwall." For much of my life, one had to be specific regarding which Germany one referenced. It was a different age before the Soviet Union fell on December 31, 1991. Unfortunately, there was no similarly gregarious German there, like the Frenchman I met at the Maginot. There were minimal signs. In fact, finding the Wallendorf relics was a tremendous challenge. Rumor has it that there would be no signs at all but for the efforts of neighboring Luxembourg. 

In Wallendorf, I stood in front of a small (called a "c-werks") bunker and looked across a stone bridge into the Grand Duchy of Luxembourg. That is a nation too often forgotten in recollections of WWII. Perhaps only historians remember that it and Belgium are the site of Germany's last real gasp, the beginning of the end that came to be infamously called the Battle of the Bulge. Here, the Germans had purportedly maintained an eye westward in case of invasion by Luxembourg. In retrospect, I struggle with anyone anticipating a Luxembourger invasion.

The Internet included descriptions of other sites in and around Wallendorf, but the directions were not good and the details were sparse. We had to search for a larger ("b-werks") bunker (hint if you go, follow signs for the "Sportsplatz," up a road that looks like a paved path). Several Internet sites suggested driving up the hill behind the town for the "b-werks," but none mentioned leaving the main road, or provided specific instructions. There were no directional signs on the road, no "Turn here for the bunker." 

Frustrated in our search, we had to ask directions in Wallendorf, a town of about 400 people. Some denied understanding our English questions. One denied knowing the "b-werks" bunker location. On our third try, we got directions to a cemetery, which led us eventually to the larger bunker. In that cemetery lie 326 young German victims of that war, nearly equal to the present-day town population. There are no American dead interred there.  

I was surprised at the local reaction to our presence. Unlike the ebullient Frenchman, the locals seemed at best grudging to our presence, and perhaps unwelcoming. The signs were minimal, old, and unkept. The relics were hard to find. In fairness, there remains a pandemic, and tourists are perhaps less than welcome generally. And, it is said that more preserved examples of the Siegfried exist to the south at Besseringen. Perhaps one day I will wander there. But in Wallendorf, there is little evidence of a desire to commemorate and remember. Of course, this little village was nearly cleansed from the map as the war turned against Germany. Perhaps such memories are too hard?

We drove from Wallendorf to the city of Hamm in the Grand Duchy of Luxembourg. Here, on 17 manicured acres, rest 5,070 Americans that fell in the Second World War, many in that Battle of the Bulge. Included is also George S. Patton, leader of America's Third Army, which was so critical to the success of that battle. Here, there were guards. No American military, but guards. The grounds were immaculate, the premises secured. And, astoundingly, it was nearly deserted. We walked the grounds with no more than 30 other people, though admittedly it was late in the day. 

Now, I wing my way west. I last took off for home from the European mainland in the midst of another war, which I was too young to comprehend. We were then in a Cold War. Superimposed on that, Vietnam was a war that wasn’t (only Congress can declare war), and back then there were two Germanies. The world of my youth was troubled and I was repatriating, though without my comprehension. However, the memories remain and are indelibly imprinted upon me. 

My seat that day in the 1960s faced aft, and I can see the craft today as vividly as any memory. The cabin was loud. The take-off was unsettling. We rose repeatedly only to return to earth with a jolt. Reflecting later, I have wondered whether that plane was too heavy, the pilot inexperienced, or the craft merely old and tired. But, we eventually gained lift and departed. It took me decades after that to return to Germany, a united Germany. 

On that trip home decades ago, I witnessed the return of some of the fallen from Vietnam. They had, at the command of their leader, paid the ultimate price for all we have. Lifting off from the western portion of a divided Germany, I was blessed with the ignorance and naïveté of youth. I was unaware of the efforts of these heroes, and the significance of this return flight for them. But, returning the remains of our fallen has been a persistent effort, as described in detail by the Wall Street Journal. By 2010, about 5,000 such heroes had been returned from Afghanistan and Iraq for burial; that is eerily similar to the number interned in Hamm. 

I wing my way west this morning. I have remembered the many whose flights home have been tragic and sobering. I recall my first exposure to such efforts during the Vietnam conflict. I note my comfort and freedoms as I fly west toward home. In my mind, I see those coffins of my youth. I think of those who strive to remember, and those who unfortunately seem more inclined to forget. In another generation, will there ever be any crowds at the cemetery in Hamm? Will there be any visitors for the 

"124,909 fallen American troops from conflicts dating back to the Mexican-American war . . . buried at a network of 24 permanent cemeteries in Europe, Panama, Tunisia, the Philippines and Mexico."

That 125,000 is about the population of Athens, Georgia. 

My thoughts are absorbed by the many fallen. They lie today in modest graves across the breadth of our country and under foreign soil. They died answering calls that may have confounded logic, escaped explanation, or even defied reason; for you and me. Because, in whatever context, their Commander in Chief said go. And go they did, despite us, our ambivalence, our anger, or our vacillation. They go because they are told. They go, they suffer, and they too often perish so that we may live in safety and peace. We are all too inclined to forget that on Veteran's Day, Memorial Day, and every day. 

I think of the fallen and maimed of Iraq and Afghanistan. I struggle with the sacrifices they made, and I commiserate with the families left behind or impacted in ways I cannot effectively articulate. We are quit of these wars, declared or not. And yet, so (too) many paid the ultimate price. Not because they necessarily understood, but because our nation called and they selflessly answered.

I wing west to the U.S. and I reflect, remember, and honor. Not about workers comp (this blog is usually about workers’ compensation), but about the blessing of liberty and those who stand between us and those who would do us harm. I am grateful to have had a brief moment recently to visit these places. I am troubled that history is too soon forgotten. I am thankful for these fallen and their service. I am hopeful that we keep them in our thoughts; that they and their sacrifice are not forgotten. 

It’s not workers comp. But to those who sacrificed, and the families they loved, thank you for the world I enjoy at your expense. Know that I remember, and lament your loss. I wing my way west, free. By no right or sacrifice of my own, but yours. My thanks to those who served, in whatever year, theater, or capacity. Bless you, and yours for the freedom you have bought me. I wing my way west, through COVID and our challenges, but remember the great sacrifices and far greater challenges of so many.

Pandemic Regulation a World Away

I am grateful this week to be trekking and experiencing new things. Long vacations have been rare during my career. In fact, my first two-week vacation ever was in 2019. I had planned a similar European excursion for the summer of 2020, but COVID came to call, and, as they say, the rest is history. But, 2021 brought some respite from the challenges. It brought a vaccination, promise, and opportunity. I got the vaccine as rapidly as I was able, and have been glad to have it.

My trip was made possible by the vaccination. With proof of vaccination, I was able to travel into Germany. Thereafter, I have progressed city to city, country to country, a veritable "Planes, Trains, and Automobiles" (Paramount, 1987). Just before I departed, the airline emailed to advise me that while vaccination is good enough for getting into Europe, I would need a negative test result within three days of flight time to re-enter the U.S. It is harder for an American citizen to travel into the U.S. than from the U.S. More on the adventure of the testing in a future post.

Prior to outbound boarding, the Federal Republic of Germany required me to upload photographs of my vaccination card and various passport details. It made somewhat dire warnings on the internet about the penalties for failing to do so. That website generated confirmations; I printed them and carried them across the Atlantic as instructed; something else I had to care for an monitor.

Before I departed, I noted in the news that France and Italy had adopted a "green passport," Wall Street Journal: "France, Italy Require Covid-19 Passes for Restaurants, Bars." France was toward the end of my trek. Arriving in early September, I anticipated their "passport" to be well underway. Officially, the French are reportedly very serious about the passport. The Journal reports:

"French establishments that don’t check the health passes risk a €1,500 fine, the equivalent of about $1,763, which can rise to €9,000 and a year in prison following the third violation within a month."

A year in prison is significant. 

Upon arrival in Germany, I am fairly sure I could have just walked out the "departure" doors of the terminal without bothering with customs or immigration. The airport was seemingly unsecure in this regard. I didn't. Instead, I stood in line for 30 minutes to present those critical papers. I immediately noticed there was very little regard among travelers for "social distancing" in that part of Germany. Everywhere, there are reminders to "please keep your distance," but they were persistently ignored. 

There are assiduous mask requirements, but people habitually crowd together. I have noted the incongruity of that repeatedly during this pandemic (I hear Sting: "Don't stand, Don't stand so, Don't stand so close to me," 1980). The immigration officials glanced at my vaccination card, scanned my passport, and looked dismissively at those confirmation prints about which Germany's website seemed so adamant. They seemingly put far less importance on them than the website had.

On my first day in Germany, I ate out twice without incident. There was no "every other table" or other attempt at distancing. On the second day, walking into a train station food court, I was confronted by the janitor. Perturbed at my lack of a mask, he loudly berated me. He expressed anger, but his eyes showed fear. I purchased food and sat down; the same janitor demanded to know if I was vaccinated. I assured him. He loudly demanded to see proof. I showed him. Then he demanded that I complete a "tracing" card for identity, address, and more. He took no steps, however, to verify the information I provided.

Thereafter, I was not asked for proof of vaccination again in Germany, over the course of several days. I rode trains, stayed in hotels, ate at carry-outs, at upscale restaurants, and more moderate sit-down spots. All requested masking inside (until seated), but nothing more. All had "distancing" stickers, but did not enforce them. 

In Switzerland, I was asked at each lodging to prove vaccination status upon check-in. Each lodging and restaurant similarly required masking indoors, in common areas, and until seated in a restaurant. Restaurants commonly inquired "are you vaccinated," "bist du geimpft?" However, there was no consistency in asking to see vaccination proof.

I saw many crowds. I frequently walked into very populated squares and plazas, though the news reports tourism remains diminished this year. I found myself inadvertently in one French festival with a band, rides, food, and vendors. I later found myself in a large and thriving German wine-tasting celebration, including music, a fashion show, and very dense crowds. 

After Germany and Switzerland, I arrived in France. There, I saw many customers showing their registration, or "passport" to restaurateurs. It was a QR code, convenient on their mobiles. I was assiduously asked for vaccination proof in France; in the food establishments as required, but also even in one retail store. Having strolled many shops and boutiques in France, being asked for vaccination proof in that one was surprising. The requirement of the "passport" mandate in France was palpable. Restaurants seemed very concerned about compliance.  

There were inconsistencies. In one town, I found that I could buy carry-out food from a variety of vendors without proof. However, one familiar fast food vendor in that village had elaborate signs and an employee checking everyone at the door. There was no distinction between dining in or carry-out. I concluded that this was a "better safe than sorry" effort at compliance. 

I was struck by that business' increased effort compared to the other local establishments. By the time I encountered it, I had made various carry-out food purchases, with none requiring vaccination proof. This was the only business I encountered with an employee dedicated to the task of vaccination monitoring. 

Then, I encountered an odd bakery that allowed anyone into their store, masked, and you could purchase for carry-out without challenge. But to eat at one of their few outside sidewalk tables, things became complicated. "Carry-out" meant leave. To sit at their outside tables, vaccination proof was required. Without menu's you had to mask, enter, and select; then you had to exit, unmask, and sit at their table. Your choices were then brought outside to the table and served. Intriguingly, one might as easily sit a few feet or yards away on a wall or fountain and more simply eat carry-out, but at these outside tables, vaccination proof was required. 

Thus, the "French distinction," seemed to be on-premises sitting. If you would sit, inside or outside, at a vendor's premises, then the proof was requested. The thought occurred to me that perhaps sitting on a fountain wall was not the best idea. Of course, that is where the pigeons congregated, but also where your chances of sitting next to someone "non-vaccine." Of course, not everyone is vaccinated. France claims a 70% rate among adults, which is significant. The US is said to be about 64%. Despite the slow pace, the vaccination is making progress. 

But, in France, one may also eat in a restaurant with proof of a negative test within the prior 48 hours (compared to the U.S. immigration policy of a negative test within the prior three days, which does not mean 72 hours). 

I thought, upon hearing of that 48-hour test result exception, of the challenges of finding and scheduling testing in the early days of COVID-19. But, as I walked those winding old-world streets, I ran across various opportunities for free testing. People were lined up in some instances. A couple of people even looked as if they might be socially distancing as they waited. Despite being outside, most around the free test sights even wore masks.

It was therefore somewhat of a relief to depart France, but a last incongruity awaited. Having entered the train station there without incident, we had a ticketing question. An animated group in matching T-shirts seemed convenient, so we approached them. We got our answer but were then asked for vaccination proof. Having checked our cards, they adorned us with colorful wristbands. This "checkpoint" was checking only those who approached them. We noticed the vast majority of travelers neither stopped there nor wore such wristbands. This was the first and only time that vaccination was a concern in hundreds of miles of train travel throughout various countries. 

The environment in the next area of Germany was less onerous. Upon arrival back there, it was a notable difference in the atmosphere. Though proof of vaccination was required for hotel check-in, the dining was simpler. More logically, the dining there also included the social distancing to which I was more accustomed. However, in this region, the "contact tracing" sheets were a fixture at every sit-down restaurant.

In a very short detour through the Grand Duchy of Luxembourg, I found their requirements and practices very similar to France's, but without the "passport" cell phone presentations to which I had become accustomed. I was once again asked for proof of vaccination even to sit outside, but noticed the establishments there positioned tables to observe social distancing. 

In all, the efforts at combating COVID are noticeable across the continent. Every hotel checked for vaccination. Restaurants were a mix of vaccination checking, contact tracing, and distancing. Some were adamant, others less so. Most were only concerned if you sat in their establishment, while others were as concerned about their tables on the sidewalk. None were concerned about sitting next to their sidewalk tables, a distinction that is hard to comprehend. Train travel was utterly unconcerned with vaccination except for the singular, lackluster wristband example above. Thus, travel seemingly remains largely unconcerned with either vaccination or testing status. Might not trains be more confined and concerning than restaurants?

Thus, various countries have different approaches despite the seemingly unifying effects of the European Union. Within countries, various regions and states have different approaches and requirements. And, within various communities, businesses seemingly have various perspectives on the laws and requirements they face. In all, there is as much difference in perception, perspective, regulation, and enforcement across Europe as I have seen across the States. The one unifying feature of COVID reaction seems to be the very inconsistency of concerns, regulations and approaches.

Thus, in the efforts of governments and businesses, there seems variation, inconsistency, and at times confusion. Europe is no exception to the variety and assortment. But, the food and wine are fantastic. I'm here 'til Thursday, try the veal. 

Vaccines and Movies

Our culture is full of references to things we have come to accept as true or real. An amazing proportion of the next generation gets the majority of its news coverage from skewed and challenged sources like social media. There is a naivete evident periodically regarding the Internet; a great commercial years ago noted “They can’t put it on the Internet if it isn’t true (not true).

This came back to me recently when I ran across a news story from the British Broadcasting Corporation (BBC) “I am Legend screenwriter dismisses anti-vax claims based on film’s plot.” The film from 2007 features Wil Smith living alone in New York. No, I mean “alone,” “alone” in New York City, following the onset of a great cataclysm that has turned a great many people into zombies. He lives in a fortified house, kept company only by his dog. It is a worthy film. Hint, for everyone’s comfort and reassurance, it is a fictional movie.

I know that, because the screenwriter responsible for adapting it has come forward to reassure everyone “I made that up. It’s. Not. Real.” Apparently, some of us struggle to discern fact from fiction. This revelation from Akiva Goldsman (the screenwriter) was apparently spurred by a New York Times story regarding a store owner struggling to convince employees to vaccinate. One was reluctant because of her perception that “a vaccine had caused the characters in the film” to “turn to zombies.” (apparently believing Hollywood can’t put it in a movie if it isn’t true?). Apparently, the references to “baseless” connections or conjectures about this movie have been bouncing around the great modern wasteland that is social media.

This led me to why people would be convinced that a movie plot is real or based on reality, rather than the wonderous extension of a vivid imagination. I think of movies like Inception (Warner Brothers, 2010), The Matrix (Warner Brothers, 1999), and Jurassic Park (Universal, 1993). Do people really believe this is real? Do they think Matt Damon actually grew potatoes on Mars, or that Nicholas Cage actually discovered the lost city of gold in South Dakota (of all places). Do they think that Harry Potter is actually battling Voldemort over in Britain? Is it safe for us to be out amongst people that think this is reality?

Possibly, our recent trend toward "reality television" may have caused some to more readily believe in fiction. But, some suggest that these "reality" shows may not be as real as they are portrayed. See What's Real about Reality Television. Others are more critical still, claiming that these programs actually mislead viewers. See Measuring the Digital and Media Literacy Competencies of Children and Teens. Perhaps the "reality" is an extension of the more established "based on a true story" perspective that has been in television and Hollywood for much longer?

It turns out that we may think we have a greater reaction to plots that are “based on a true story,” but science suggests this may be a fallacy. In 2014, a professor at Brandies International Business School led a study that concluded we are not more emotionally tied to the “true story” hook that we hear so often regarding some films or shows. The premise is that “consumers thought that watching a movie would be less thrilling if they knew it was completely fictional,” just like “winning a prize (is) less exciting if they had to wait weeks for it.” Our gratification, thus, is perhaps tied to our own predisposition about “psychologically distant events.”

The study debunked that, at least within its context. In surveying those who participated, the authors concluded that emotions and engagement remained similar regardless of their fictional nature or temporal distance (“a long time ago”). Thus, the stress on “based on a true story” is common not because that will make the story more impactful with the viewer or reader, but because people (us) tend to hear that and believe that it will make the story more impactful. We are more likely to consume based on this representation, despite the scientific possibility that our enjoyment, empathy, etc. may be as engaged with pure fiction.

This is not a new topic. The New York Times in 2010 published “How Real Does it Feel,” in which the author approaches the question not from the standpoint of what is, but what we might believe is. That is, whether it matters that a film “is” a documentary as opposed to our feeling that it is “like a documentary." The author makes multiple interesting points about our perceptions of, and acceptance of, what we see and hear. There are implications for us, and the coming generations, in the onset of “reality television,” and the generally malleable concept of “reality” that this brings to us. Some will remember a very low-budget film released a few years ago, “The Blair Witch Project,” which appealed to our “reality” drive as it was filmed without fancy equipment and special effects. It was intended to “feel” real, gritty, unpolished, and perhaps raw.

Thus, the answer to the question about vaccinations is perhaps simpler than we might think. No, the vaccines for SARS-CoV-2 are not going to turn you into a raving zombie, wandering the great desolation of New York City in hopes of drinking Wil Smith’s blood. No, avoiding the vaccines will not increase the likelihood of your “sole survivor” status (Wil is blessed to drive whoever’s car he wishes, at breakneck speeds through deserted streets, and thus enjoy society without all those pesky other people).

No, the movie is a work of fiction, despite our expectations that it might be more enjoyable if we perceive it as real or “based upon real.” No, the pandemic will not end with a fairy godmother waving a wand (Cinderella), a mystical evolution that inexplicably kills the virus while we sleep (War of the Worlds), or an amazingly lucky treatment connived by the star of the show who miraculously finds the right monkey in the last ten minutes (Outbreak).

The pandemic will end because we, as a species, will ultimately adapt to it. See How Does the Story End (July 2021), in which the science is discussed. It turns out we, as a species, have been here before, in the real world. We have adjusted or evolved as have various viruses and illnesses. That is a fact. In the meantime, if you want to help move us in that direction, get the vaccine. If you don’t want to get the vaccine, that is your business. But if your reasoning has anything to do with what you saw at the movies or read on social media, you might want to reconsider the source. Hollywood is fiction. 

E-Filing Progress

Electronic filing made the news in June 2021. The Florida Bar News reported that the state court's "Filing Stats are Other Worldly?" In March 2021, the state court filing system received "1.8 million submissions." That is a great many documents. By comparison, the OJCC received 51,423 filings in the same period. That is about 3% of the state court filings. There are perhaps 1,000 Article V judges in Florida, and so the 31 JCCs are about 3% of that. Arguably, the filing volumes are reasonably similar judge by judge.

The point of the Bar News article is somewhat celebratory regarding filing volumes; March appears to be their best month ever. A few of us are old enough to remember when the naysayers insisted that this "electronic filing thing" would never work. I vividly remember an attorney laughing aloud while explaining to me that "some lawyers will never do that." His office soon thereafter excelled at the process saved money, and the lawyer later sheepishly conceded his error. It has been a journey, and to your credit, it has been a good one.

But, the civil filing portal is challenged by file format. Unlike the OJCC, the filing portal allows documents in a variety of formats including Word and two major categories of Portable Document Format (PDF). These are the "scanned" and the "preferred text-based" PDF, which the article refers to as PDF/A. There is a bit to unpack there. The critical distinction between scanned PDF and converted PDF is that the scanned document is not usually automatically ready for character recognition; the document cannot be searched for keywords. That is called "OCR" or "optical character recognition."

The Supreme Court adopted PDF/A as the standard for Article V. court proceedings in July 2019, but that was largely unnoticed. The court set a requirement for clerks to store using this document format by December 31, 2020. The announcement acknowledged that other types of documents would be filed, and thus required the clerks to "check each document . . . and convert documents that are filed in the other allowed formats." Thus, there is a workload on the court clerks to accommodate the variety of accepted format styles. Some are advocating education to alleviate that workload, and others are advocating a "service" charge for filers to pay the clerks to perform that conversion (or they could do the conversion themselves before filing). 

The filing portal officials have chosen the searchable, which they call PDF/A. However, the distinctions between PDF and PDF/A are deeper. For example, some kinds of content cannot be included in PDF/A, such as "embed(ed) audio, video, and executable files," according to DifferenceBetween.net. It will not allow "external references," and will require that "graphics and fonts be embedded" so that the PDF/A is freestanding and viewable in the future regardless of the continuing availability of other software, connections, fonts, or supports. And, PDF/A cannot be encrypted. It is a format intended for archiving accessible documents.

The OJCC has experienced some recent questions about the format. A very few lawyers who are embracing the PDF/A for the sake of the courts have experienced some fleeting and sporadic issues with e-JCC filing, but not a significant number have had issues. The e-JCC platform will accept any PDF document for filing. 

Therefore, the best advice for attorneys is to strive to convert documents from software like Word or WordPerfect. When that is not possible, using a program such as Adobe the lawyer can format a scanned document for "character recognition." Then click "file," "save as," "more options," and PDF/A. The resulting document should be useable for either the court filing portal or e-JCC. 

Of course, the Adobe program has a cost. There are many other programs available that allow conversion to the OCR format. EasePDF offers an article on their picks for the best free OCR. Wondershare offers a perspective. In fact, a simple web search for "a list of free software to convert scanned pdf to ocr" will produce a variety of sources to find free software for this purpose. Practitioners should both see the future, and begin to adapt. In the workers' compensation community, that means PDF in an OCR format is ideal. 

In the Florida court practice, that may soon mean a similar requirement. Lawyers would be well advised to transition to such a format before the courts and clerks become less forgiving. In short, now is a good time to gain this functionality, PDF in OCR, and be prepared for the future. This should not create any issues if the same OCR format is used for OJCC filings. In short, one adjustment in the process will aid in both court and OJCC practice.