In this post I explain how one goes about proving a case in the National Vaccine Injury Compensation Program (NVICP), and how that differs from proving a case in the civil courts, focusing on what it means to have a no-fault program and proving causation. I will use a case that started with the tragic death of a young child after a vaccine to illustrate the complexity and operation of the program, and also to address the idea of federal preemption, and how it limits the ability of those claiming vaccine injuries to use state courts for their claims.
On Thursday May 9, 2014 the United States Court of Appeals for the Federal Circuit ruled that Christopher Wynn (pdf), in the case of Price v HHS (US Department of Health and Human Services), could not be compensated through the National Vaccine Injury Compensation Program (NVICP) – even if he proved a vaccine injury – because his mother, Chandra Price, waited too long to pursue his claim. The court ruled against Ms. Price and Christopher on jurisdictional grounds, but also decided that there was no reason to use equitable tolling, a legal doctrine that allows the court to set aside a technical objection for reasons of fairness. Continue reading “Price v HHS – statute of limitations, tolling, vaccines and autism”
On 19 July 2016, New York Attorney Patricia Finn filed a complaint in a federal district court against the pharmaceutical firm Merck, officials in the Department of Health and Human Services, and Julie Gerberding (formerly director of the CDC, and currently Merck’s Executive Vice President for Strategic Communications, Global Public Policy and Population Health). This Merck vaccine lawsuit, called Doe v Merck, is an amended complaint that was filed on 20 July, and will be the one examined in this article.
While the complaint was filed in the name of a Jane Doe and Baby Doe, the text of the complaint made it very clear that Jane Doe is in fact Maria Dwyer, and Baby Doe is her son Colin Dwyer. Colin Dwyer’s case was one of the test cases in the Omnibus Autism Proceedings (OAP) for the National Vaccine Injury Compensation Program (NVICP). The Dwyer case, like the other five test cases in the OAP, was rejected.
The Doe v Merck complaint makes two demands. First, that Merck’s license to produce the measles, mumps, rubella vaccine (M-M-R®II ) be revoked.
Second, it asks for damages for Colin’s alleged vaccine injuries. The complaint is problematic from three aspects:
- The story it tries to tell is full of holes;
- as a legal matter, it makes no case; and
- it includes many factual inaccuracies.
In short, the Merck vaccine lawsuit is bad work. However, the complaint is being shared widely, and a discussion of its shortcomings might be of value to many readers. Continue reading “Merck vaccine lawsuit – implausible narrative, bad law and facts”
In a recent blog post, anti-vaccine activist Ginger Taylor criticized doctors for calling out Donald Trump for his misleading comments about vaccines and autism. Ms. Taylor claimed that doctor’s are immune from vaccine liability and that because of that they have no right to criticize. With a few exceptions where her claims were only incomplete, her claims are simply incorrect. Continue reading “Doctors’ vaccine liability and autism”