In 1986, Congress Passed the National Childhood Vaccine Injury Compensation Act, which, among other things, created the National Vaccine Injury Compensation Program (NVICP), commonly called the Vaccine Court. The program requires those claiming harm from vaccines to submit their claims first to adjudication through it, before suing in state (or federal) court. For one type of claims – design defects, where the claim is that the vaccine’s design was unreasonably dangerous – you cannot sue in state court at all. In 2011, the Supreme Court decided in Bruesewitz v. Wyeth, 562 U.S. 223 (2011) that Congress, in passing the act, intended to bar claimants from bringing any design defect claims against vaccine manufacturers to state courts. This post will examine the constitutionality of the lack of a vaccine court jury to decide claims.
The result is that some claims can go to state courts after going through NVICP, others can go to court without going through NVICP, but some claims cannot reach state courts.
One argument some anti-vaccine activists make is that the liability protections mean there’s no accountability. I have dealt with this argument in the past, and the simple answer is that there is substantial accountability. Another – and at first glance more plausible – argument is that requiring claimants to use NVICP rather than a court violates their right to a jury, a right protected by the Seventh Amendment. Our jurisprudence about the limits of the Seventh Amendment is confusing. But in this case, it is pretty clear that the claim is incorrect. Requiring people claiming that vaccine harmed them to go to NVICP does not violate the seventh amendment. That is because the right to a jury does not apply to public rights, i.e. rights between an individual and government that derive from a statutory scheme, which Congress has determined should be adjudicated outside the courts.
In creating NVICP, Congress did two things, and both of them are constitutional. First, it limited the right to sue manufacturers in tort for harm caused by vaccines. Second, it created a public right to be compensated for harms caused by vaccines – an entitlement for those who can meet the program’s criteria to be paid by the government for their damages — and that public right does not trigger the right to a jury, when administered outside a court.
The seventh amendment and its jurisprudence
The Seventh Amendment to the United States Constitution states:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Notice that the language is limited to suits at common law. This language is more complicated than this post requires. The short and simple version is that when there’s a common law right to sue a private party, there are limits on Congress’ ability to remove the case from the jurisdiction of regular courts. Most recently, this was applied to a claim for tortious interference in the context of an inheritance dispute, and in 2011 the Supreme Court ruled that Congress cannot authorize a specialized forum, bankruptcy court, which has no juries, to resolve that dispute, because that authority belongs to the regular Courts (pdf).
But that’s not the case here.
Congress (and state legislatures) can impose liability limits
Tort law, even today, derives to a large extent from court decisions, not statutes. The basic causes of actions in torts – especially at the state level – were created by courts. But while the courts are the more active partner in much of torts, the legislature is still the senior partner where it does choose to act. In other words, legislatures can set the limit and extent of causes of action, and change the substantive rights in tort law.
Congress has done this in several contexts. For example, Congress limited the ability of companies issuing credit cards to sue card holders in some situations of unauthorized use (15 U.S.C. §1643). Congress limited liability of railroads to passengers. Section 408 of the Air Transportation Safety and System Stabilization Act (“ATSSSA”) limits the liability of air carriers to passengers.
More similar to vaccine suit claims, the Supreme Court found that the Medical Device Amendment completely bars (“preempts”) suits against manufacturers of devices in state courts (Riegel v. Medtronic, Inc., 552 U.S. 312 (2008)).
There is nothing preventing Congress from limiting the ability to bring many other types of suits. It’s perfectly constitutional to do so, and the Seventh Amendment is not triggered by it. The Seventh Amendment is relevant when Congress does not change existing substantive rights, but merely tries to remove the right to a jury, which would be available otherwise.
In short, Congress could limit or completely bar the ability to sue vaccine manufacturers with no violation of the Seventh Amendment. In Bruesewitz v. Wyeth, the Supreme Court interpreted Congress to have done just that for design defects, to have completely removed the ability to sue for them in state courts. That is constitutional – the Breueswitz court clearly saw no issue with it – and does not violate the Seventh Amendment.
For the other suits, for example, a manufacturing or warning defect claim, the situation is a little more complicated. In a sense, the common law right here is not being eliminated entirely. The right still exists. But its use is conditioned on prior use of a regulatory scheme. In a sense, this is an exhaustion requirement – exhaust other remedies. It’s used in other administrative context and is a traditional requirement, with no problem. I don’t see how it violates the right to a jury when access to a jury is not barred, it’s just that a person would have to go through the program first.
Public rights are not subject to the seventh amendment
Congress could constitutionally (though not politically) have completely limited liability for vaccine harms claims, leaving no remedy. But Congress didn’t. Congress created a no-fault compensation program funded by an excise tax on each vaccine. The program provides compensation to claimants who meet its requirements. In other words, Congress created a statutory scheme entitling certain people to compensation from the government for harms caused by certain vaccines.
This is a classic public right: a right against the government created by a statutory scheme. (See Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), and Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)). The Seventh Amendment doesn’t apply to such cases:
“When Congress creates new statutory ‘public rights,’ it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment’s injunction that jury trial is to be ‘preserved’ in ‘suits at common law.’ That Amendment was never intended to establish the jury as the exclusive mechanism for factfinding in civil cases, but took the existing legal order as it found it, and hence there is little or no basis for now interpreting it as providing an impenetrable barrier to administrative factfinding under otherwise valid federal regulatory statutes.” Atlas Roofing Co. v. OSHA. 430 U.S. 442 (1977)
And it does not apply to NVICP. There is no right to a jury trial in this compensation program, and hence, no violation.
Decisions by the Special Masters in NVICP are subject to multiple appeals – by a judge in the United States Court of Federal Claims, then by the Circuit Court, and potentially by the Supreme Court, as well. The program’s procedures and the multiple appeals provide claimants with the due process they are entitled to.
In short, no constitutional rights are violated by National Vaccine Injury Compensation Program with respect to a vaccine court jury.