Democrats Challenge Vaccine Injury Compensation Law
By Jeff Johnson
CNSNews.com Congressional Bureau Chief
January 09, 2003

Capitol Hill (CNSNews.com) - Democrats in the House and Senate introduced legislation Wednesday to repeal what they call a "liability exemption" for vaccine manufacturers passed as part of the homeland security legislation at the end of 2002.

Supporters of the provision claim it is absolutely necessary to ensure the availability of vaccines in the future, including remedies that could be used after biological attacks by terrorists.

Rep. Dennis Kucinich (D-Ohio) said Wednesday that including the provision in the homeland security bill "represents everything that is wrong with this government."

"In the closing hours of the Congress, an act occurred, which did violence to thousands upon thousands of American families; which did violence to our Constitution; which did violence to our legislative process," Kucinich charged.

"Inserted in homeland security was a provision that enabled drug companies to get away from their responsibility to make certain the products they make are safe," he said.

The provision in question clarified the rules of the federal Vaccine Injury Compensation Program (VICP), which was created "to give people injured by childhood vaccines a way to obtain prompt and fair compensation without the delay and expense of the traditional tort system."

The 1986 Vaccine Act required that complaints first be filed with the VICP, which offers to pay unlimited medical expenses, "reasonable" attorneys' fees and up to $250,000 for pain and suffering when it determines a claim to be legitimate. Money for the payments comes from a tax on vaccines.

One provision of the 1986 law exempted illnesses, injuries or deaths "associated with an adulterant or contaminant" in vaccines from the VICP. Personal injury trial lawyers began suing the manufacturers of the additive thimerosal, claiming that the mercury-containing preservative was an "adulterant or contaminant," and that it, rather than the vaccines, had caused the illnesses, injuries and deaths for which they were suing.

As of December 2002, there were approximately 190 individual or class-action lawsuits with millions of plaintiffs claiming thimerosal-related injuries, according to the U.S. Advisory Commission on Childhood Vaccines.

As CNSNews.com previously reported, some people believe that there is a link between exposure to thimerosal and autism, a neurological disorder that causes life-long disability in human interaction and communication skills, along with other disorders. Supporters of the VICP additives provision claim there is no conclusive proof of a link.

Rep. Dan Burton (R-Ind.) Wednesday introduced legislation to repeal provisions of the Homeland Security Act that limit the rights of families of autistic children to sue for damages.

"I want to remind my colleagues in the House that as we set our priorities for the first session of the 108th Congress, we have a looming crisis," Burton said.

"It is an economic crisis to the education system, to health care systems, to long-term housing and care for the disabled, to un-addressed research needs and most especially to an increasing number of families across the country. This crisis is the Autism epidemic," he said.

Sen. Debbie Stabenow (D-Mich.) Wednesday accused Republicans of denying parents of children allegedly injured or killed by thimerosal their day in court.

"In the dark of night, language [was added] that takes away the rights of parents, their legal standing in court to protect their children and make their case about additives to vaccines -- in particular thimerosal that has mercury in it," Stabenow claimed while announcing her bill to repeal the provision.

But the change made by the homeland security law does not deny access to the courts, according to tort law experts Victor Schwartz and Leah Lorber.

"Requiring claimants to first file the claims in VICP does not deprive them of their right to a civil suit," the pair wrote in a report for the Washington Legal Foundation. "Claimants unhappy with their VICP recovery can reject the award and then proceed in state or federal court, and attempt to recover punitive damages."

Punitive damages, said Schwartz and Lorber, are the real issue in the debate. The VIPC does not allow punitive damages, but civil courts do. The attorneys claim the VIPC, including the clarification passed as part of the homeland security law, must protect vaccine makers - including companies that make additives such as thimerosal - from "excessive liability ... and legal costs."

"Otherwise, contingency fee personal injury lawyers who desire to proceed outside VIPC will keep seeking judicial forums where they can successfully sue the manufacturers of vaccine components," Schwartz and Lorber concluded. "If they are successful, it will culminate in the disappearance of vaccine manufacturers."

Senate Majority Leader Bill Frist (R-Tenn.), the only practicing physician in the Senate, had previously sponsored legislation to move the thimerosal lawsuits to the VIPC. Promoting the measure on the Senate floor Nov. 15, 2002, he bemoaned the threat to America's national security should vaccine manufacturers disappear.

"Then who is going to make the vaccine for the Ebola virus, which our federal government, through intelligence, has identified as one of the six agents of which we are at risk?" Frist asked. "The threat of liability should not become a barrier to the protection of the American people.

"We can have the greatest research in the world and know how to do it," he continued. "But unless we can produce it and produce it quickly, the know-how does not do us any good."

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