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The Swine Flu Affair: Decision-Making on a Slippery Disease
defend against or assist in the defense or settlement of such claim ….
E. In the event of the Government's breach of, or failure to carry out its responsibilities … any measure of resulting damages to the Contractor shall include, but need not be limited to, damages (including money judgments … and reasonable attorneys' fees …) sustained in connection with claims against the Contractor caused by the breach or failure.15
Counsel for the manufacturers expressed themselves as nearly satisfied and talked to the insurers on July 9. But the latter’s representatives were not so sanguine. They found protection still inadequate; besides, to the extent the clause did satisfy, it violated the spirit if not the letter of the Anti-Deficiency Act.
Mathews thereupon insisted that executives of the insurance firms meet with the manufacturers and him. They did so July 13, in his office. The drug companies took a friendly stance which they could well afford; the insurers were firm. Some observers now believe that Mathews could have budged them had he locked the door, with cameras just outside, and kept them there until they compromised. He scoffs at this. The insurance representatives were not at the right level. Besides, by July 13 his lawyers had found merit in their argument. He soon left the meeting for Cooper to run. Nothing of substance occurred. Mathews met instead with congressional staff: legislation now was of the essence again. Afterwards he called in the press: “… the question which has been paramount in these discussions [is] … who pays for suits that prove to be baseless? That is the point of great concern in this matter ….”
Mathews then made a date with the President. They met July 19. In preparation for that meeting Cooper sent the Domestic Council an options paper longer, more varied, and calmer in tone than Sencer’s action-memorandum of four months before. We find nothing to suggest that it had any influence on Cavanaugh, O’Neill or Ford.
What influenced Ford was a simple answer to a simple question. He met with Mathews, Cavanaugh and Cooper and asked Cooper, as they all recall, if anything had changed since March in their assumptions about the disease. Cooper told him no: a pandemic remained “possible,” with probabilities “unknown.” The lack of cases since changed neither term. In fact, that lack had changed the feelings of most specialists who sensed that odds were dropping week by week. But there can be no fall-off from “unknown.” So Cooper was correct. For Ford this was conclusive. The program must continue; he decided that it should. Congress had to be brought back into the act and he would help with that.
After the meeting Ford talked to the press:
… we are going to find a way, either with or without the help of Congress, to carry out this program that is absolutely essential, a program that was recommended to me unanimously by 25 or 30 of the top medical people in this particular field.16
He also asked Mathews to call Rogers and to draft him a letter for Rogers, which Cavanaugh actually did. Ford sent it July 23, in time for a new set of hearings.