Page 37 - Tacoma-Pierce County Lawyer Magazine - September October 2018

Medieval Engraving. British Library, London. Source: Wikimedia Commons Public Domain
Did Dr. Rush get yellow fever himself?
Yes. In An Account of the Bilious Remitting Yellow Fever in Philadelphia in 1793, Dr. Rush describes yellowing while working long hours in total exhaustion. He gave himself the same treatment as his patients.
Dr. Rush calls mercury the Samson of medicine. In his hands and those of
his partisans, it may indeed be justly compared to Samson; for I verily believe they have slain more Americans with it than ever Samson slew of the Philistines. e Israelite slew his thousands, but
the Rushites have slain their tens of thousands.
Mercury Chloride: The Samson of Medicine, Source: www.nmni.com
Is that not all opinion or rhetorical hyperbole?
How did Dr. Rush react?
Not well. Dr. Rush was a proud man
who was greatly o ended. He considered settling matters with a duel but Cobbett had more recent military service and was probably a better shot.vi
How did the Pennsylvania Supreme Court get the case? Back then, the plainti had the right
to try a libel case in the Pennsylvania Supreme Court before a panel of three judges and twelve jurors.
Did the venue give either party an advantage?
Dr. Rush and Chief Judge omas McKean went back to the olden days when they signed the Declaration of Independence together in 1776.vii
What are the elements of a modern defamation claim? e publication of an unprivileged, false and defamatory statement of
fact with the requisite mental intent which proximately causes damages.viii
If the plainti is a public gure and the statements at issue concern public issues, the plainti must prove by clear and convincing evidence that the defendant knew his statements were false or made in reckless disregard of the truth.
Were the elements different in 1799?
e basics have not changed including the de nition of defamation.ix However, today’s jury instructions are far more precise and the jurors are no longer expressly authorized to ignore them. Additionally, the meaning of malice in the context of a defamation case is now completely di erent, as is the relevant burden of proof.x
How is “malice” different?
In Rush v Cobbett, the judge told jurors that “malice rests in the heart and is only to be judged by the words and actions of the party.”xi Today it is the exact opposite. Jurors are told that malice does not mean
Continued on next page. >>
Who was William Cobbett?
Dr. Rush claimed it was 90%
of depletion therapy, Cobbett
William Cobbett immigrated from
ere is a lot of rhetorical hyperbole andocpainlleiodnDirn.Rthuesrheabquutathcker,eanisalsoan underlying defamatory assertion of fact.v
effectivebuttheevidence
Britain to Philadelphia where he started
suggests a 46 to 56% mortality
a newspaper in 1794 called the Porcupine rate.iii
Gazette. Known for his sharp wit and
poison pen, Cobbett was one of the most
Was Dr. Rush following standard
as common since Yes. In An Account of the Bilious Blood, blood! Still they cry, More blood.
Taking mercury Remitting Yellow Fever in In every sentence they menace our poor
ommon until the Philadelphia in 1793, Dr. Rush veins. eir language is as frightful to the
Cobbett was attacked and satirized in the
ury when its
ears of the aldaremscerdibmesuylteiltluodweinags iws hthile
lly appreciatreadv.en’s croak to those of the sickly ock. working long hours in total
shed Dr. Rush from exhaustion. He gave himself the
Cobbett was attacked and satirized in the press,
as taking both to same treatment as his patients. composed nasty
d claiming it cured
ver.
vii. Judge McKean did not preside over the trial but appointed the person who did.
viii. Mark v Seattle Times, 96 Wash. 2d 43, 486 (1981), cert. den., 457 U.S. 1124 (1982).
Who was William Cobbett?
William Cobbett immigrated from
William Cobbett (1763 – 1835) Source:
ix. Defamatory words are those which incite hatred, contempt or ridicule.
press, but relished it. William Cobbett (1763-
um and audience and whether undisclosed facts are implied. Dunlap V. Wayne, 105 Wash.2d 59 (1986).
vi. Cobbett served as a sergeant in the British Army stationed in Nova Scotia from 1785 to 1791.
but relished it.
1835) Source: www.benelwes.co.uk
Source: Wikimedia Commons Public Domain
empiric and a bare-faced puff and
BY NIGEL MALDEN
popular and in uential writers of the
medical practice?
english speaking world in the 18th and 19th centuries.
Back then, there were relatively WhatdidfeCwosbtabnedatrtdsmaeydictahlaprtactices
triggeredfotrhaneytlhainwgsmuuicth?less treating a In a brutal series of articles attacking
viral infection like yellow fever.
the theory and practice of depletion
Dr. Rush had many vocal
therapy, Cobbett called Dr. Rush a quack,
supporters and detractors as was
an empiric and a bare-faced pu and
letting Instruments, common in the day.
ibrary, London,cWoemllcpomoesed nasty accompanying rhymes
and visuals: Did Dr. Rush get yellow fever get the idea ? e times are ominous indeed, when
himself?
quack to quack cries purge and bleed.
v. Whether the words at issue are an actionable assertion of fact is now a threshold question of law for the court which must consider context, medi-
www.benelwes.co.uk
x. The jury waBsreitmapinowtoerPehditloadelcpidheiaiswsuhesreofhfaect and law while the court had simultaneous trial and appellate court jurisdiction. xi. Neilson, Winthrop and Frances, Verdict for the Doctor, The Case of Benjamin Rush, Hastings House, New York (1958).
accompanying rhymes and
started a newspaper in 1794
called the Porcupine Gazette. visuals: September/October 2018 | PIERCE COUNTY LAWYER 37
Known for his sharp wit and
The times are ominous indeed, when
w t
w n
e
poison pen, Cobbett was one of
quack to quack cries purge and bleed.