vaccine court

Vaccine court myths – instead, here are facts about the NVICP

by Michael Simpson
2022-11-03
2 Comments
Autism, COVID-19 vaccine, Law, Smallpox vaccine, Tdap/DTap vaccine, Vaccines

The anti-vaccine world loves its myths, because, lacking any real scientific evidence supporting their outlandish claims, fairy tales are all they have. Not that I like picking and choosing the worst of the anti-vaccine urban legends, but the vaccine court myths are among the most egregious and ridiculous.

Although there are a lot of vaccine court myths, I wanted this article will focus on just three critical points:

The vaccine court vs. civil courts for plaintiffs.
Vaccine manufacturers are immune to lawsuits.
Billions of dollars have been paid out to “victims.”
The vaccine court said that vaccines cause autism.

Let’s get to the article.

COVID-19 vaccine liability – what are the legal facts and limits

This article about COVID-19 vaccine liability was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

I have been getting many questions about vaccine manufacturers and liability. Here is a short answer. There are limits to the ability to sue manufacturers for injuries from routine vaccines given to children or pregnant women. They are not absolute and are accompanied by a compensation program that is easier to win in than the regular courts.

There are very strong limits on the ability to sue manufacturers of emergency products – not just vaccines. Those are accompanied by a very hard to use compensation program, that provides limited compensation.

Ideally, I would like to see COVID-19 vaccine liability moved to the routine compensation program.

Vaccine Court – causation and administrative discretion

A recent case provides insight into how the decisions of the Special Master in the National Vaccine Injury Compensation Program – also known as the Vaccine Court – are reviewed by the appeals system. There are two issues I hope readers can take from this story:

There is an elaborate system for appealing NVICP decisions. Next time someone tries to claim there is no appeal, or that the petitioners are not given a hearing, remind them they’re very wrong.
The legal standard used to assess the Special Master’s findings of facts – what it is and how it works. What we see is that both the judge in the US Court of Federal Claims and the Circuit Court gave the Special Master’s decision pretty close scrutiny.

Vaccine injury compensation and autoimmune syndromes

This post examines the treatment by the National Vaccine Injury Compensation Program (NVICP) of the second of two claims (see first one here) heard from those claiming vaccines cause more injuries than acknowledged in recent days. This article will focus on vaccine injury compensation and autoimmune syndromes.

The Special Master’s decisions – as many decisions in NVICP are – are long, complex, and examine the evidence closely and in detail. They address factual debates, expert disagreements specific to the case and expert disagreements on the science.

This post won’t cover them – that’s not my goal. All I will address are the Special Master’s conclusion about two hypotheses raised by those who believe vaccines injured their child (and also promoted by anti-vaccine organizations).

The NVICP (commonly called the Vaccine Court) is a no-fault program created by Congress to serve two goals: to protect the vaccine supply by offering limited liability protections to vaccine manufacturers and providers and to help those injured by vaccines – or even those who may have been so injured – be compensated more easily than in the regular courts.

As I addressed in the past, NVICP provides petitioners – as claimants are called – with substantial breaks compared to the regular courts. Petitioners do not have to prove a product defect or any kind of fault; the requirements for proving causation are relaxed; evidentiary rules are relaxed, allowing the introduction of evidence and experts that would not be allowed in a regular court.

NVICP is not, however, a benefits program. Its goal is not providing any parent with a child with a problem support. The United States certainly needs to offer more support to families of children with disabilities, but NVICP’s aim is different: it focuses on compensating injuries that may, at least, have been caused by vaccines.

To be compensated by an NVICP decision a petitioner does need to meet minimal standards suggesting a possible connection between a vaccine and an injury (a settlement does not require similar proof; parties settle for all kinds of reasons, including a view that the case isn’t worth litigating). At the very least a petitioner needs to show an injury, and provide expert testimony (expert testimony is generally needed when someone claims medical causation in the courts as well – that a medical act, device, drug etc. caused harm – with very narrow exceptions).