Vaccines and The National Vaccine Injury
Compensation Program
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Vaccines and The National Vaccine Injury Compensation Program (2000 Third Year Paper)

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66“Well, we had us a misfortune.” Tom turned eyes sad as a trout. . . “Thething was, damn, we had these here ‘noculations. You ever been ‘noculated?”
The man swore earnestly. Tom nodded. “Well, then, you know. Only thing
was, we wound up sick, half the dang regiment. And come time for the fightat Chancellorsville our Surgeon Major—that’s a stumble-fingered man named
Wormy Monroe—he up and reported us unfit for combat. So they went ahead
and sent us back to mind the dang telegraph wires. We wasn’t allowed to ‘sociatewith nobody. Old Lawrence there he went on up and argued, but wouldn’t nobody
come near us. It was like he was carrying the plague. Lawrence said hang it,
we ought to be the first ones in, we’d probably give the Rebs a disease and be
more useful than any other outfit in the whole army. Matter of fact, way things
turned, we probably would’ve been more use than most of them people. Anyway
we wasn’t in it.”
–From Michael Shaara’s The Killer Angels, a novel about the Battle of Gettysburg.

1Introduction
Although not always aware of it, Americans feel the great benefits of vaccines
everyday. For the past two centuries, since Edward Jenner’s development of thesmallpox vaccine, children have been successfully vaccinated against some of theworld’s most deadly diseases. Most Americans agree that the use of vaccines toprevent infectious diseases represents “one of the most spectacularly effective
public health initiatives this country has ever undertaken.”1 Because of theenormous benefits of vaccination to society as a whole, all fifty states requirechildren to be vaccinated against the seven common childhood diseases—polio,
measles, mumps, rubella, diphtheria, pertussis (whooping couch) and tetanus.2
Some states also require vaccination against hepatitis B, Haemophilus influenzae type b, and varicella (chicken pox). Mandatory vaccination has resulted ina dramatic decrease of the incidence of these deadly diseases.
The success of mass immunization, however, comes at a price. Many children,and sometimes their parents, suffer major injuries and death from the administration of vaccines. Although only a small percentage of the entire population
experiences an adverse reaction to vaccination, this number of vaccine injury
sufferers is not small. Since 1988, 5,773 people have claimed a vaccine-related
injury or death.3 As science progresses, physicians and researchers will continue
to establish connections between vaccines and certain adverse reactions. In re1 H. Rep.

99-908 (1986) at 4, reprinted in 1986 U.S.C.C.A.N. 6344, 6345; Comm. Print
99-LL (1986), Subcomm. On Health and the Environment of the House Comm. On Energy
and Commerce, Childhood Immunizations, at 1 (hereinafter “Childhood Immunizations”).
2 H. Rep. 99-908, at 4, reprinted in 1986 U.S.C.C.A.N. at 6346.
3 Monthly Statistics Report (through March 7, 2000), National Vaccine Injury Compensation Program. Available at http://www.hrsa.gov.bhrp/vicp. (Hereinafter “Monthly Statistics
Report”).

2sponse to the many injuries now known or suspected to be caused by vaccines,
parent groups challenge the national and state objectives of universal vaccination.4 Questions of fairness arise as to how to compensate those who suffer
injuries or die in order to further the larger societal good of mass immunization.
How can we reduce the number of adverse reactions suffered because of mandatory vaccination? How can we compensate those who experience these adverse
reactions?

The National Childhood Vaccine Injury Act of 1986

The federal government plays a leading role in vaccination by funding vaccine administration and by integrating the immunization efforts of the public
and private sectors on national, state and local levels.5 Congress repeatedly
reaffirms this role of the federal government in order to ensure that the UnitedStates maintains a consistent national policy on childhood vaccination.6 In
1986, Congress passed the National Childhood Vaccine Injury Act7 (“VaccineAct”). This legislation establishes a National Vaccine Program “to achieve
optimal prevention of human infectious diseases through immunization and toachieve optimal prevention against adverse reactions to vaccines.”8 The Vaccine Act also institutes the National Vaccine Injury Compensation Program
4 Such groups include the National Vaccine Information Center, formerly known as DPT,
Dissatisfied Parents Together, and Freedom of Vaccination Choice.
5 Childhood Immunizations, supra note 1, at 43.
6 Id.; H. Rep. 99-908 (1986), at 5, reprinted in 1986 U.S.C.C.A.N at 6346.
7 42 U.S.C. 300aa et seq, P.L. 99-660, 100 Stat. 3755. The statute was enacted on November
14, 1986, and became effective on October 1, 1988.
8 42 U.S.C. 300aa-1.

3

(“NVICP”), a federal, no-fault compensation system which awards money tothe victims of vaccine-related injuries and death.9

This paper describes the FDA’s role in ensuring the safety of vaccines, thecivil litigation alternative to compensation, and the events leading up to thepassage of the Vaccine Act. The paper, however, focuses on the NVICP, theactual operation of this compensation program, and the program’s effects on thecompensation and prevention of adverse reactions to mandatory vaccinations.
The paper also examines whether Congress’s goals in passing the Vaccine Act
have been achieved and what reforms may be necessary in order to further thesegoals.

9 42 U.S.C. 300aa-10.

4Chapter I.
The Food and Drug Administration:
Regulation of Vaccines and Vaccine Manufacturers

A.
History of the FDA Regulation of Vaccines andVaccine Manufacturers.

The federal government has licensed and regulated the vaccine industry sincethe 1902 Virus Serums and Toxins Act (“Virus Act”).10 This Act required theregulation of “the sale of viruses, serums, toxins, and analogous products. . . ”
in interstate and foreign commerce.11 Congress passed the Virus Act because
one contaminated diphtheria lot caused the deaths of ten school children in St.
Louis, Missouri.12 The Act was passed four years before the Food and Drug Act
of 1906, the precursor to the Federal Food, Drug and Cosmetic Act, and theVirus Act may have been the first consumer health law in the United States13
Under the Virus Act, the Secretary of the Treasury issued licenses to vaccine
manufacturers and regulated vaccines according to standards promulgated byan interagency board.14 This board authorized the Public Health Service’s Hygenic Laboratory to inspect vaccine manufacturing facilities, to issue and revoke
licenses, and to “ensure, in whatever ways possible, the safety and efficacy of
10 Childhood Immunizations, supra note 1, at 44.
11 Id.
12 William R. Pendergast, Biologic Drugs, in Food and Drug Law, Food and Drug Law
Institute, 1991, at 306.
13 Id. at 303, 308.
14 Childhood Immunizations, supra note 1, at 44..

5

biologics.”15 The National Microbiological Institute of the National Institutesof Health (NIH) took over the regulation of the vaccine industry in 1948 and,in 1955, the NIH Division of Biologics assumed the regulation of biologics.16 In
1972, responsibility for regulating the vaccine industry was finally transferredto the Food and Drug Administration (FDA) and its Bureau of Biologics.17 Although now under a new name—the FDA Center for Biologics Evaluation andResearch—the FDA continues to bear primary responsibility for the regulationof vaccines.

B.
The Review of Biological Products.

Immediately after the FDA assumed responsibility for regulating vaccines,
the FDA announced that all biological products licensed before July 1, 1972,
including vaccines, would be reviewed for safety, purity and potency.18 This
biologics review was also intended to determine whether pre-1972 biologicalproducts were effective for their labeled uses and not misbranded under the
FDCA.19 The FDA set forth regulations20 assigning the task of reviewing thesebiological products to six independent advisory review panels.21 The panels
15 Id.
16 Id.
17 Id.
18 37 Fed. Reg.16,679, Biological Products, Procedures for Review of Safety, Effectiveness,and Labeling (August 18, 1972).
19 Id.
20 These regulations can be found at 21 C.F.R. 601.25.
21 39 Fed. Reg. 21176, Certain Biological Products, Request for Data and Information
Regarding Safety, Effectiveness, and Labeling Review (June 19, 1974).

6

consisted of non-FDA qualified experts and each panel reviewed a specific category of biological products. Panels reviewed the following types of vaccines: (1)bacterial vaccines and bacterial antigens with “no U.S. standards of potency”;(2) bacterial vaccines and toxoids with “U.S. standards of potency”; and (3) viral and rickettsial vaccines.22 Each advisory committee was required to classify
the reviewed vaccines into one of three categories:(1.)
Category I: Biological products determined by the panel to be safe, effective
and not misbranded;23(2.)
Category II: Biological products determined to by unsafe, ineffective or misbranded;24 and,(3.)
Category III: Biological products determined not to fall within either Category I or II because insufficient data exists for classification and, therefore,
further testing is required.25

Category III biologics were divided into two subcategories:

22 Id.
23 21 C.F.R. 601.25(e)(1).
24 21 C.F.R. 601.25(e)(2).
25 21 C.F.R. 601.25(e)(3).

7

(a.)
Category IIIA: Biological products recommended for continued licensing,
manufacturing and marketing while further study is being conducted.

(b.)
Category IIIB: Biological products that a panel recommends should not bemarketed or licensed for general use while further studies are being conducted.26

The results of these studies show that most pre-1972 vaccines were safe andeffective. However, the FDA revoked a substantial number of vaccine licenses
as a result of this biologics review. The Panel on Review of Viral Vaccines
and Rickettsial Vaccines evaluated the safety, effectiveness and labeling of 72
such viral and rickettsial vaccines.27 This review included the evaluation ofmany manufacturers’ variations of the smallpox, measles, mumps and rubellavaccines.28 The panel concluded that: (1) 45 products be placed in Category I;(2) 6 products be placed in Category II; (3) 5 products be placed in Category
IIIA; and (4) 16 products be placed in Category IIIB.29 The FDA revoked thelicenses of those biologics in Categories II and IIIB.30
The Panel on Review of Bacterial Vaccines and Toxoids, which evaluated such
vaccines as diphtheria, pertussis and tetanus, placed many vaccines in Cate26 Id.
27 47 Fed. Reg. 24696, Viral and Rickettsial Vaccines; Implementation of Efficacy Review(June 8, 1982).
28 Id.
29 Id.
30 Id.

8gories I and IIIA, and only one vaccine in Category IIIB.31 The panel, however,devised a new category, Category IIIC, in order to clarify that certain of its
recommendations for revocations of licenses were based on administrative andprocedural problems rather than scientific evaluation of the products.32 The
FDA placed the panel’s “Category IIIC” vaccines in Category IIIB because theavailable data was insufficient to confirm the safety and effectiveness of thesevaccines. Thus, another 16 vaccines, mostly variations of the DPT vaccine,were added to Category IIIB. The Panel on Review of Bacterial Vaccines andBacterial Antigens placed no vaccines in Category I and listed eight vaccines
in Category IIIA.33 Following the publication of the results of these panels, the
FDA required that all Category IIIA products be reclassified as Category I or
Category II products according to certain procedures.34

C.
FDA Regulation of Vaccines and Vaccine Manufacturers.

The FDA regulates vaccines as “biological products” subject to the provisions of the Public Health Service Act (“PHSA”)35 , a statute which revised andincorporated the Virus Act of 1902.36 A “biological product” is “any virus,
31 50 Fed. Reg. 51002, Biological Products; Bacterial Vaccines and Toxoids; Implementation of Efficacy Review (December 13, 1985).
32 Id. at 51106.
33 44 Fed. Reg. 1544, Bacterial Vaccines and Bacterial Antigens with “No U.S. Standardof Potency” (January 5, 1979).
34 21 C.F.R. 601.26. Reclassification procedures to determine that licensed biological products are safe, effective and not misbranded under prescribed, recommended, or suggested
conditions of use.
35 42 U.S.C. 201-300.
36 Pendergast, supra note 12, at 310.

9

therapeutic serum, toxin, anti-toxin or analogous product applicable to the prevention, treatment or cure of diseases or injuries of man. . . .”37 The FDA also
regulates vaccines as “drugs” under the Federal Food, Drug and Cosmetics Act(“FDCA”).38 Originally, the drafters of the FDCA were not going to apply
the FDCA to biological products covered by the Virus Act;39 but, because six
women died in early 1938 from tetanus after receiving injections of a biologic,
the FDCA drafters dropped language stating that the FDCA would not “beconstrued. . . as in any way applying to the products to which the [Virus] Act
is applicable.”40 Thus, the FDCA does extend to vaccines, in addition to thecoverage provided by the PHSA.
In order to ensure the safety and efficacy of the vaccine supply, the FDA comprehensively regulates the clinical trials, manufacturing, licensing, labeling andreporting of adverse experiences of vaccines.41

1.
FDA Regulation and Licensing of Vaccine Manufacturers.

The FDA inspects the facilities of vaccine manufacturers and investigates
all aspects of the manufacturing process.42 “Establishment Standards” reg37 21 C.F.R. 600.3 Definitions.
38 21 U.S.C. 301-392.
39 Pendergast, supra note 12, at 309, citing N.Y. Times, March 31, 1938, at L25, col. 6.
40 Id., citing Comm. Print 4, Federal Food, Drug, and Cosmetic Act, 75th Cong., 3d Sess.
§1001(c), March 5, 1938.
41 21 C.F.R. 600 et seq, Chapter I—Food and Drug Administration, Department of Healthand Human Services, Subchapter F—Biologics.
42 21 C.F.R 600.20 Inspectors; 21 C.F.R. 600.21 Time of inspection; 21 C.F.R. 600.22 Duties
of inspector.

10

ulate the personnel and work place of the vaccine manufacturer,43 providing
specific rules for live vaccine work areas44 and live vaccine processing.45 Vaccine manufacturers must make and retain records so that “successive steps in
the manufacture and distribution of any lot may be traced by an inspector” at
any time during the process.46 Moreover, vaccine manufacturers must retain
samples of vaccines because the FDA tests the samples for safety and efficacy.47
In order to ensure that vaccine supplies remain safe, the FDA goes so far as
to regulate the specific temperature at which certain vaccines are shipped, i.e.,
the live measles and rubella virus vaccine must remain at 10 degrees Celsius orcolder during shipment.48
The licensing of vaccine manufacturers is a detailed process with specific requirements,49 although the FDA is trying to “reduce unnecessary burdens forindustry without diminishing public health protection.”50 Before December
1999, a vaccine manufacturer had to apply to the FDA for two licenses—one forthe manufacturing plant, an establishment license, and a license for the vaccine,a product license. Currently, a vaccine manufacturer only has to file a single“biologics license” in order to market a biological product in interstate commerce.51 The manufacturer submits an application for a biologics license to the
43 21 C.F.R. 600.10 Personnel; 21 C.F.R. 600.11 Physical establishment, equipment, animals
and care.
44 21 C.F.R. 600.10(c)(4).
45 21 C.F.R. 600.11(e)(4).
46 21 C.F.R. 600.12 Records.
47 21 C.F.R. 600.13 Retention samples.
48 21 C.F.R. 600.15 Temperatures during shipment.
49 21 C.F.R. 601 Licensing.
50 64 Fed. Reg. 56441-01, Biological Products Regulated Under Section 351 of the Public Health Service Act; Implementation of Biologics License; Elimination of Establishment
License and Product License (October 20, 1999). Effective December 20, 1999.
51 Id.

11

Director of the Center for Biologics Evaluation and Research at the FDA with,among other information, “data derived from nonclinical laboratory and clinical studies which demonstrate that the manufactured product meets prescribedstandards of safety, purity and potency. . . .”52 After approving a license, the
FDA may also revoke or suspend licenses granted to vaccine manufacturers.53
In addition, the FDA must approve any changes in the labeling of a vaccine54
and any “major changes” in the product, production process, quality controls,
equipment, facilities, or responsible personnel.55

2.
FDA Regulation of Vaccines.

Even after the FDA licenses a product, every lot of the vaccine must be
tested for conformity with vaccine standards before release to the general public.56 The FDA regulates the safety of vaccines rigorously, requiring a generalsafety test for the detection of extraneous toxic contaminants,57 and tests forthe sterility of the vaccine,58 the purity of the vaccine,59 and the identity of thevaccine (after all labeling requirements are met).60 The FDA regulates the potency standards of vaccines,61 as well as the limits of potency. For example, the52 21 C.F.R. 601.2 Applications for biologics licenses, procedures for filing.
53 21 C.F.R. 601.5 Revocation of license; 21 C.F.R. 601.6 Suspension of license.
54 21 C.F.R. 601.12(f)(1)-(4). Labeling changes.
55 21 C.F.R. 601.12(b) Changes to an approved application.
56 21 C.F.R. 610.1 Tests prior to release required for each lot.
57 21 C.F.R. 610.11 General safety.
58 21 C.F.R. 610.12 Sterility.
59 21 C.F.R. 610.13 Purity.
60 21 C.F.R. 610.14 Identity.
61 21 C.F.R. 610.20 Standard preparations

12

potency of the pertussis vaccine cannot be less than 12 units per total immunizing dose.62 The FDA also sets dating periods for licensed biological products sothat a vaccine will produce the intended effect and “retain its safety, purity, andpotency. . . .”63 For example, the inactive poliovirus vaccine can be stored for
one year by the manufacturer at a specific temperature and for two years fromthe date of manufacture after the vaccine has left the manufacturer’s storage.64
Between 1985 and 1995, the FDA issued only three vaccine recalls—one for particulates in a vaccine lot, one for mislabeling, and one for violations of good
manufacturing practices at a plant.65

3.
FDA Regulation of Vaccine Labeling.

Regulation of vaccine labeling is one of the most important parts of the
FDA’s regulation of vaccine manufacturers because Congress integrates theselabeling requirements into the NVICP, and absolves from liability the manufacturer who complies with these labeling regulations. The FDA ensures thatthe vaccine manufacturer provides both a complete container and package label.66 A container label must include such information as the proper name ofthe product, the name, address and license number of the manufacturer, the lot
62 21 C.F.R. 610.21 Limits of potency.
63 21 C.F.R. 610.53 Dating periods for licensed biological products.
64 Id.
65 Isadora B. Stehlin, How FDA Works to Ensure Vaccine Safety, FDA Consumer (December 1995). Located at www.fda.gov/cber/vaers/articles.htm.
66 21 C.F.R. 610.60 Container label; 21 C.F.R. 610.61 Package label.

13

number and the expiration date.67 The FDA requires more information on the
package label, i.e., the preservative used, the recommended storage temperature, the route of administration recommended, the inactive ingredients when asafety factor (i.e., mercury in vaccines), and the identity of each microorganism
used in manufacture.68

4.
FDA Monitoring of Adverse Events.

Finally, the FDA monitors and records reports about adverse events associated with vaccines in order to determine whether any vaccines or vaccine
lots have a higher rate of adverse effects. By law, vaccine manufacturers must
report to the FDA any adverse experience within 15 days of receiving information about the adverse event.69 The FDA, in conjunction with the Centers for
Disease Control and Prevention (CDC), manages the Vaccine Adverse Event
Reporting System (VAERS) to keep track of the information provided by vaccine manufacturers, as well as reports made by physicians, patients or parents ofpatients. About 85% of the reports to VAERS describe only minor adverse reactions to vaccines, such as fever or swelling; while 15% of the reports document
serious adverse events, such as seizures, life-threatening illnesses, or deaths.70
Because about 10,000 VAERS reports are received each year, the FDA focuses
67 21 C.F.R. 610.60(a) Full label.
68 21 C.F.R. 610.61(e)(h)(k)(n) and (q).
69 21 C.F.R. 600.80 Postmarketing reporting of adverse experience.
70 What is the Vaccine Adverse Event Reporting System (VAERS)?
http://www.fda.gov/cber/ vaers/what.htm.

14

Located atmost of its attention on the serious adverse reactions to vaccines.71
The FDA and the CDC developed VAERS in response to the Vaccine Act’s
requirement that administrators and manufacturers of vaccines report specified
adverse events occurring within specified time intervals after the administrationof vaccines.72 Although the Vaccine Act requirements and the Code of Federal
Regulations overlap, licensed manufacturers of vaccines need not submit duplicate reports to VAERS and the FDA.73 However, manufacturers of vaccinesmust comply with the more expansive requirements of §600.80 of the C.F.R.74
Because VAERS is a passive reporting system, many adverse reactions to vaccines may not be reported.75 Moreover, the Department of Health and Human
Services (HHS) has stated that one cannot reliably establish causation betweena vaccine and an injury without “substantial analysis” of VAERS data.76 In
fact, HHS describes VAERS reports as “anecdotal” evidence.77 Although HHS
recognizes the usefulness of VAERS, “it is unwilling to overstate its importanceby using temporal relationships to define a new [Vaccine Injury] Table,”78 atable which lists the vaccines covered by the Vaccine Act and the injuries presumed to be caused by those vaccines.

D.
71 Id.
72 42 U.S.C. 300aa-25 Recording and reporting of information.
73 59 Fed. Reg. 54034, 54035, Adverse Experience Reporting Requirements for Licensed
Biological Products (October 27, 1994).
74 Id.
75 Kristine M. Severyn, Jacobson v. Massachusetts: Impact on Informed Consent and Vaccine Policy, 5 J. of Pharmacy and Law 249, 268 (1996).
76 60 Fed. Reg. 7678, 7685 (Feb. 8, 1995).
77 Id.
78 Id.

15

Conclusion: Limited Effect of FDA Regulation.

Even after all of the above-described FDA regulation of vaccines and monitoring of adverse events, vaccines are still not 100% safe. Adverse reactions tovaccines will always occur simply because of the nature of vaccines. Vaccines
create an artificial immunity in the human body by introducing “small amountsof disease-causing agents which stimulate the immune system to produce antibodies specific to that disease.”79 These antibodies attack invading viruses
or bacteria and protect the vaccinated person from infection.80 A physician
cannot predict whether a particular child will suffer an adverse reaction to avaccine and, therefore, vaccine-related injuries or death are extremely difficult
to prevent.81
Because vaccines must be administered in order to protect the general population from disease and because some children will definitely be injured as a resultof mandatory vaccination, the question arises as to how vaccine-injured children
should be compensated for their adverse reactions to vaccines.

79 Childhood Immunizations, supra note 1, at 4.
80 Id.
81 H. Rep. 99-908, at 6, reprinted in 1986 U.S.C.C.A.N., at 6347.

16

Chapter II.

How Do We Confront the Adverse Effects of Vaccination?
One Alternative: The Civil Tort System

The civil tort system offers one means of compensating children and adults
who suffer vaccine-related injuries or death. A person damaged by a vaccine
can sue or seek a settlement arrangement with the vaccine manufacturer. As
with all product liability litigation, the process of receiving compensation fora vaccine injury is lengthy and extremely expensive. As the history of vaccine
litigation demonstrates, the civil tort system is unsatisfactory for both vaccineinjured persons and vaccine manufacturers, and also presents a real threat tothe supply of vaccines in the United States.

A.
Theories of Liability.

State law governs almost the entire area of product liability law, and, therefore, a person injured by a defective vaccine must bring a product liability action
in a state court. Most people injured by a vaccine seek to hold a vaccine manufacturer strictly liable for the defective vaccine. The Restatement Second of
Torts (§ 402A) provides that a vaccine manufacturer “who sells any productin a defective condition unreasonably dangerous to the user or consumer. . . issubject to liability for physical harm thereby caused to the ultimate user or17consumer”, even though the vaccine manufacturer “has exercised all possible
care in the preparation and sale of his product. . . .”82
Comment k to § 402A of the Restatement, however, provides an exception tothis rule of strict liability.83 Comment k addresses the problem of unavoidably
unsafe products, such as vaccines.84 Because vaccine manufacturers “supply the
public with an apparently useful and desirable product,” vaccine manufacturers will not be held strictly liable for defective vaccines when the vaccines havebeen properly prepared and accompanied by correct directions and warnings.85
According to one court, the comment k exemption for unavoidably unsafe products “is premised on the ground that it would be ‘against the public interest’to apply strict liability to unavoidably dangerous products because of ‘the very
serious tendency to stifle medical research and testing’.”86 Thus, vaccine manufacturers often defend themselves against strict liability claims by arguing that(1) they manufacture products which are extremely useful to the general public
but come with a small degree of risk and (2) the vaccines were properly preparedand the correct warning accompanied the vaccine.
Under the learned intermediary doctrine, a vaccine manufacturer satisfies its
duty to warn the recipient of a vaccine by providing an adequate warning to thetreating physician, not the actual vaccine recipient.87 Therefore, a patient cannot hold the vaccine manufacturer liable for failure to warn if the manufacturer
82 § 402A Restatement (Second) of Torts (1965).

83 § 402A Restatement (Second) of Torts, Comment k (1965).
84 Id.
85 Id.
86 Shackil v.

Lederle Laboratories, 116 N.J. 155 (N.J. 1989), citing White v. Wyeth Laboratories, 40 Ohio St.3d 390, 533 (1988).
87 Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir. 1974).

18

adequately warned the prescribing doctor. The learned intermediary doctrine
does not apply, however, when vaccines are administered in mass immunization
programs “where no individualized medical judgment intervenes between the
manufacturer. . . and the ultimate consumer. . . .”88 Because many vaccines are
given in such mass immunization programs,89 manufacturers still face some liability for failing to provide direct warnings to the consumer.
Although plaintiffs bring most vaccine cases under a theory of strict liability,
plaintiffs also sue vaccine manufacturers for negligent manufacturer or administration of vaccines90 , breach of warranty, and failure to provide safer alternatives
to a vaccine.91

B.
Failure of the Tort System.

During the 1980s, attention focused on the links between vaccines and certain injuries, especially neurological problems. For the first time, information
about the possible harmful effects of vaccines became widely available. The
sources primarily responsible for exposing the problem of vaccine injury to theAmerican public include an award-winning 1982 television documentary entitled“DPT: Vaccine Roulette” (WRC-TV) and an 1985 book by Harris L. Coulter
88 Id., at 1276.
89 Childhood Immunizations, supra note 1, at 60 (stating that “as much as 50% of certain
vaccines are purchased and administered through public sector programs”).
90 Kearle v. Lederle Laboratories, 172 Cal.App.3d 812, 218 Cal.Rptr.453 (1985).
91 Johnson v. American Cyanamid Co., 239 Kan. 279 (1986); Tomer v. Lederle Laboratories, 828 F.2d. 510 (9th Cir. 1987).

19and Barbara Loe Fisher, “DPT: A Shot in the Dark.”92 During this time, parents of children who suffered adverse reactions to vaccines became involved in
the dissemination of information, forming groups such as Dissatisfied Parents
Together (DPT), now know as the National Vaccine Information Center. It
is not surprising that the publications and parent groups of the 1980s focusedon the DPT or diphtheria, pertussis and tetanus vaccine. The pertussis component of the vaccine has more confirmed and suspected side effects than any
other vaccine.93

Because of this public awareness about vaccine injuries, many parents brought
lawsuits against vaccine manufacturers to recover for injuries and deaths allegedly caused by vaccines. Between January 1980 and March 1985, parents
filed 299 suits against vaccine manufacturers, requesting $2.52 billion in compensatory damages and $960 million in punitive damages.94 One vaccine manufacturer, Lederle Laboratories, testified before Congress in late 1984 that Lederle
faced lawsuits amounting to 200 times its annual sales of the DPT vaccine.95
The case of Johnson v. American Cyanamid 96 provides a perfect example ofthe enormous liability faced by vaccine manufacturers. The jury in that caseawarded $10 million in damages, including $8 million in punitive damages.97 Be92 Harris L. Coulter and Barbara Loe Fisher, DPT: A Shot in the Dark, Harcourt Brace,
San Diego, 1985.
93 Institute of Medicine, Adverse Effects of Pertussis and Rubella Vaccines, National
Academy Press, 1991.
94 Childhood Immunizations, supra note 1, at 85-86.
95 Id. 72-73. Lederle, and other vaccine manufacturers, testified before the House Energy
and Commerce Comm, Subcomm. On Health and the Environment. Hearings on H.R. 5810,
98th Congress, 2d Sess. Sept. 10 and Dec. 19, 1984.
96 239 Kan. 279 (1986)(reversing the jury verdict on the basis that the manufacturer provided adequate warnings to the learned intermediary).
97 Id. at 280.

20

cause of this and future lawsuits, vaccine manufacturers had difficulty obtaining
and retaining product liability insurance to cover the losses related to vaccine
injury cases. Insurance companies raised premiums, reduced policy limits, andeven stopped insuring vaccine manufacturers.98 One manufacturer, Connaught
Laboratories, briefly withdrew from the market because of a lack of insurance.99

Plaintiffs had both strong incentives and disincentives to bring a claim for a
vaccine-related injury or death. On the one hand, because courts were not deciding vaccine cases consistently, the potential liability of vaccine manufacturers
appeared limitless and, therefore, plaintiffs had an incentive to seek multi-million
dollar judgments from sympathetic juries. On the other hand, because plaintiffs
often had to litigate a technical claim, the process of pursuing an action against
a drug manufacturer was extremely long and expensive. Therefore, many people
injured by vaccines did not take the chance of litigating their claims and, those
who did often found themselves without compensation.

The costs and risks associated with the increase in litigation against vaccine
manufacturers caused vaccine prices to rise dramatically. Between 1981 and1986, the price of the polio vaccine increased from 40 cents to $1.56 per dose;the measles vaccine from $1.32 to $3.43; the measles and rubella vaccine (MR)from $1.89 to $5.20; and the measles, mumps and rubella vaccine (MMR) from
$3.12 to $8.47.100 The DPT vaccine saw the greatest increase in price. In 1982,
98 Childhood Immunizations, supra note 1, at 73.
99 Id.
100 Id. at 61.

21

the DPT vaccine cost just 10 cents to 12 cents per dose. In 1984, the cost of
the DPT vaccine was $1.00 to $2.80 per dose and, in 1986, the price of a DPT
shot was $3.01.101 This increase in the cost of vaccines threatened the vaccine
supply, especially since the CDC’s recommended level of six-month’s supply had
never been reached.102
Because of the possibility of large civil damages, the loss of insurance, and therise in vaccine prices, vaccine manufacturers simply left the market. In 1986,
there was only one manufacturer of the polio vaccine, one manufacturer of themeasles, mumps and rubella vaccine (MMR), and two manufacturers of theDPT vaccine.103 Two state health departments, one in Massachusetts and one
Michigan, produced their own DPT vaccine for use within their own jurisdictions.104 Congress warned that “the loss of any of the existing manufacturers ofchildhood vaccines at this time could create a genuine public health hazard inthis country. . . The withdrawal of even a single manufacturer would present thevery real possibility of vaccine shortages, and, in turn, increasing numbers of
unimmunized children, and, perhaps, a resurgence of preventable diseases.”105

Obviously, the tort system could not ensure the supply of vaccines to the general public, nor satisfactorily compensate the victims of vaccine-related injuries
or death. Legislation was necessary to address (1) “the inadequacy—from boththe perspective of vaccine-injured persons as well as vaccine manufacturers—
101 Id.
102 Id.
103 H. Rep. 99-908, at 7, reprinted in 1986 U.S.C.C.A.N., at 6348.
104 Id.
105 Id.

22

of the current approach to those who have been damaged by a vaccine”; and(2) “ the instability and unpredictability of the childhood vaccine market.”106
Congress responded to these problems by passing the National Childhood Vaccine Injury Act of 1986,107 which established the Vaccine Injury Compensation
Program. The NVICP was designed to protect vaccine manufacturers fromstrict liability for injuries due to the unavoidable risks of their products, andto compensate individuals injured by certain vaccines under a nofault federal
program.

106 Id.
107 42 U.S.C. 300aa et seq.

23

Chapter III.

The National Vaccine Injury Compensation Program

The National Childhood Vaccine Injury Act of 1986 consists of two programs: (1) the National Vaccine Injury Compensation Program (NCIVP) and(2) the National Vaccine Program. This chapter will focus on the NCVIP and
its attempt to remedy the compensation problems of injured vaccine recipientsand the high prices and vaccine shortages created by the increased liability ofvaccine manufacturers.
In order to ensure that manufacturers continued to produce vaccines necessary for the safety of the general population, the United States government
assumed liability under the NVICP for injuries or deaths associated with particular vaccines. The NVICP also hoped to make the pursuit of compensation
for a vaccine-related injury or death more attractive to plaintiffs by making theprocess faster and less adversarial. The House Report on the Vaccine Act called
for a compensation program that administered awards “quickly, easily, and withcertainty and generosity.”108 The system of compensation was intended to be“fair, simple and easy to administer” and “to compensate persons with recognized vaccine injuries without requiring the difficult individual determinationsof causation of injury.”109 An analysis of the NVICP will reveal the extent to
108 H. Rep. 99-908, at 3, reprinted in 1986 U.S.C.C.A.N., at 6344.
109 H. Rep. 99-908, at 12, reprinted in 1986 U.S.C.C.A.N., at 6353.

24

which these goals have been accomplished.

A.

25

The Design of the NVICP.

1.
Location of the NVICP in the Court of Federal Claims.

Congress located the NVICP in the United States Court of Federal Claims,
a court established by Congress in 1855 as the U.S. Court of Claims.110 The
Court of Federal Claims has nationwide jurisdiction in suits against the federal
government for money judgments not sounding in tort.111 In this way, Congress
does not have to pass private bills to resolve claims against the United States.
Some examples of claims heard by the Court of Federal Claims include: claims
for compensation for the taking of property, claims arising under construction
and supply contracts, claims by civilian and military personnel for back pay andretirement pay, and claims for the refund of federal income and excises taxes.112
The Court of Federal Claims also has exclusive jurisdiction of cases involving
patent and copyright infringement by the federal government and appellate jurisdiction of decisions made by the Indian Claims Commission.113
One may wonder why Congress placed the NVICP under the jurisdiction of acourt of law when the NVICP clearly resembles other administrative compensation programs, such as that employed for delivering workman’s compensation.
NVICP claims are adjudicated by a court of law rather than an executive branch
110 The American Bench: Judges of the Nation, 10th ed., Forster-Long, 1999, at 7. The U.S.
Claims Court was renamed the U.S. Court of Federal Claims on October 29, 1992, pursuant
to the Federal Courts Administration Act of 1992, P.L. 102-572, 106 Stat. 4506, 4516 (1992).
111 Id.
112 Id.
113 Id.

26

agency because the parents of children with vaccine-related injuries worried thatthe Department of Health and Human Services (HHS), which is the logical place
for the administration of the NVICP, was “too heavily involved in overseeing
childhood immunization programs to administer the NVICP objectively.”114

Under the Act as it was originally passed, Congress placed jurisdiction of the
NVICP with the United States District Courts. However, the District Courts
were created as part of the “judicial Power” of the U.S. government under Article III of the Constitution.115 Because the NVICP allows petitioners to either
accept or reject the judgment of the decision-maker, the American Bar Association and the Judicial Conference of the United States questioned whether
placing the NVICP in the District Courts violated the “case or controversy”
requirement of the Constitution.116 Article III, Section 2 of the Constitution
provides that the “judicial Power shall extend” to enumerated “cases” or “controversies.117 Thus, courts created under Article III can only rule on concrete
disputes and they may not issue “advisory opinions,” namely opinions on theconstitutionality of legislative or executive actions that do not result from adefinite case or controversy.118 In order to avoid Article III District Courts issuing advisory opinions on NVICP cases, Congress amended the Vaccine Act in
114 Molly Treadway Johnson, Carol E. Drew, and Dean P. Miletich, Use of Expert Testimony,Specialized Decision Makers, and Case-Management Innovations in the National Vaccine
Injury Compensation Program, Federal Judicial Center, 1998, at 9.
115 U.S. Constitution, Article III, Section 1.
116 H. Conf. Rep. 100-495, at 771 (1987), reprinted in 1987 U.S.C.C.A.N. 2313-1245, at
2313-1517
117 U.S. Constitution, Article III, Section 2.
118 Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, ConstitutionalLaw, 3d ed., Little Brown, 1996, at 88-90.

27

1987119 to transfer jurisdiction for vaccine injury claims to an Article I court,
the U.S. Court of Federal Claims. Article I courts are created by Congress under the Necessary and Proper Clause of the Constitution and are not boundby Article III’s case or controversy requirement. Therefore, no constitutional
problem arises regarding the Court of Federal Claims possibly issuing advisory
opinions. Moreover, the Constitution does not require Article I courts to use
juries as the Constitution requires of Article III courts.120 Therefore, juries
do not decide vaccine injury cases in the NVICP. No NVICP cases were ever
heard in the District Courts as the NCIVP did not hear any claims until 1989.121

2.
The Special Masters.

The Court of Federal Claims employs eight special masters to decide the eligibility of applicants for compensation under the NVICP.122 One of these eightspecial masters serves as the chief special master and administers the office ofspecial masters.123 The special masters have jurisdiction to determine whether apetitioner is entitled to compensation and the amount of such compensation.124
According to the Vaccine Rules of the Office of the Special Master,125 the special
119 This amendment to the Vaccine Act was made as a part of the Omnibus Budget Reconciliation Act of 1987, P.L. 100-203, 101 Stat. 1330 (1987).
120 H. Conf. Rep. 100-495, at 771 (1987), reprinted in 1987 U.S.C.C.A.N. 2313-1245, at
2313-1517.
121 Johnson, Drew and Miletich, supra note 114, at 9.
122 42 U.S.C. 300aa-12.
123 42 U.S.C. 300aa-12(c)(1) and (6).
124 42 U.S.C. 300aa-12(a).
125 Rules of the United States Court of Federal Claims, Appendix J—Vaccine Rules of the
Office of Special Master of the United States Court of Federal Claims. (Hereinafter “Vaccine

28

master “shall determine the nature of the proceedings, with the goal of making
the proceedings expeditious, flexible, and less adversarial, while at the sametime affording each party a full and fair opportunity to present its case. . . .”126
The decisions of special masters are final, subject only to the appellate procedure set forth in the statute.127
As of 1998, every special master in the NVICP has been an attorney,128 eventhough Congress originally noted that “[n]o-fault vaccine compensation proceedings raise fewer legal issues than issues of medicine and masters need not
be lawyers by training.”129 Congress recommended that special masters be“well-advised on matters of health, medicine and public health.”130 Despite
this concern with the expertise of the special masters, the eight special masters
appointed at the beginning of the NVICP only attended a two-day educational
program to familiarize themselves with the complex medical questions at issue
in vaccine injury cases.131 The special masters appointed since the beginningof the program have received no such special training.132 Special masters serve
for a term of four years, subject to removal for “incompetency, misconduct,or neglect of duty or for physical or mental disability or for other good cause
shown.”133
Rule.”)
126 Vaccine Rule 3(b).
127 At the inception of the NVICP, special masters’ decisions had to be reviewed by the Courtof Federal Claims which made the final decision in the case. The Vaccine Injury Compensation
Technicals of the Omnibus Budget Reconciliation Act of 1989 transferred final decision-making
authority to the special masters. P.L. 101-239, 101 Stat. 2285 (1989).
128 Johnson, Drew and Miletich, supra note 114, at 14.
129 H. Conf. Rep. 101-386, at 515 (1989), reprinted in 1989 U.S.C.C.A.N 3018, 3118.
130 Id.
131 Johnson, Drew and Miletich, supra note 114, at 15.
132 Id.
133 42 U.S.C. 300aa-12(c)(2) and (4).

29

3.
Petitioners Under the NVICP.

Any person may file a petition for compensation under the NVICP if (1) heor she sustains a vaccine-related injury; or (2) is the legal representative of aminor or disabled person who suffers a vaccine-related injury; or (3) is the legal
representative of any person who dies as a result of one of the vaccines specified
in the statute.134 A petitioner may file only one petition with respect to eachadministration of a vaccine.135 Petitions are filed with the Court of Federal
Claims which immediately forwards the petition to the chief special master forassignment to a special master.136
The Secretary of the Health and Human Services (HHS) is the respondent in allproceedings brought under the NVICP137 and is represented by a team of about
eighteen attorneys in the Vaccine Litigation Group of the Office of Constitutional and Specialized Torts at the Department of Justice.138 Petitioners may
proceed under the NVICP either pro se or with counsel; however, almost all petitioners retain attorneys to help them navigate the complexity of the NVICP.
A vaccine manufacture can never be a party in a NVICP proceeding.139
Congress provided specific rules for NVICP petitioners who filed for compensation when the Vaccine Act became effective—October 1, 1988. A vaccine134 42 U.S.C. 300aa-11(b)(1)(A).
135 42 U.S.C. 300aa-11(b)(2).
136 42 U.S.C. 300aa-11(a)(1).
137 42 U.S.C. 300aa-12(b)(1).
138 Johnson, Drew and Miletich, supra note 114, at 12.
139 42 U.S.C. 300aa-11(a)(3).

30injured person with a civil action pending at this time could drop the lawsuit
within two years of the effective date of the Act and then file a petition under the NVICP.140 Any plaintiff who did not drop a lawsuit against a vaccine
manufacturer could not file a petition under the NVICP.141 Plaintiffs who sued
vaccine manufacturers before the effective date of the Act and recovered nothing for a vaccine-related injury or death could still seek compensation under the
NVICP.142 However, if a plaintiff brought a civil action against a vaccine manufacturer and recovered damages, or settled with the manufacturer, that plaintiff
could not file a petition under the NVICP.143 Finally, Congress ruled that for
vaccine injuries and deaths occurring after the effective date of the Vaccine Act,a civil action could not be filed against a vaccine manufacturer unless a petition
for compensation was first filed and adjudicated under the NVICP.144 Therefore, presently, all claims for compensation must proceed through the NVICP
before the possibility of a civil suit against the manufacturer is even possible.
Originally, the Vaccine Act did not allow petitioners to file with the NVICP unless the petitioner incurred over $1,000 in unreimbursable expenses as a resultof a vaccine-related injury.145 Congress eliminated this requirement on October
21, 1998146 in order to ensure that Medicaid recipients, military and Indian
Health Service dependents and others unable to meet the $1,000 requirement
140 42 U.S.C. 300aa-11(a)(5)(A).
141 42 U.S.C. 300aa-11(a)(5)(B).
142 42 U.S.C. 300aa-11(a)(4).
143 42 U.S.C. 300aa-11(a)(7).
144 42 U.S.C. 300aa-11(a)(2)(A).
145 Formerly 42 U.S.C. 300aa-11(c)(1)(D)(i).
146 P. L. 105-277, § 1502, 112 Stat. 2618-741, reprinted in 1998 U.S.C.C.A.N. This section ispart of the “Vaccine Injury Compensation Program Modification Act.”31

could still file for compensation under the NVICP.147

4.
The Vaccine Injury Table.

The Vaccine Injury Table represents one of the most controversial elementsof the NVICP because the Table lists the vaccines covered by the NVICP andspecifies the injuries presumed to be caused by these vaccines.

a.
Listed Vaccines.

Under the NVICP, petitioners can only recover for injuries or deaths caused
by a vaccine listed on the Vaccine Injury Table.148 The Table includes the following vaccines: diphtheria, tetanus, pertussis, measles, mumps, rubella, polio,
Hepatitis B, Haemophilus influenzae type B, and varicella (chicken pox) vaccines.149 Congress recently added Rotavirus for coverage under the NVICP.150
In addition to listing these vaccines, the Table also includes the injuries presumed to be caused by the vaccine if they occur within a certain stated periodof time.151 A petitioner need not show negligence by the vaccine manufacturer
or establish causation if she can demonstrate that she developed one of the
147 National Vaccine Injury Compensation Program, Summary of Current Issues, Legislative
Updates, July 1999, http://www.hrsa.dhhs.gov/bhpr/vicp/sumcur.htm#7.
148 42 U.S.C. 300aa-11(c)(1)(A).
149 42 U.S.C. 300aa-14(a).
150 Rotavirus was added to the Vaccine Injury Table on October 22, 1998.
151 42 U.S.C. 300aa-14(a).

32listed vaccine injuries within the stipulated time. For instance, a petitioner who
suffers from encephalopathy within 72 hours of a vaccine containing pertussis
is entitled to a presumption that the pertussis vaccine caused the petitioner’s
injury.152 Petitioners can also recover for injuries that are suffered as a complication of a Table injury if the injury occurs within the specified time period.153
For example, if the petitioner who suffered encephalopathy from the DPT vaccine also suffers kidney failure as a result of the encephalopathy, then that
petitioner can receive compensation for the costs of the kidney failure.154
The medical information in the Vaccine Injury Table comes from reports of theAmerican Medical Association and the American Academy of Pediatrics, as well
as studies on the adverse reactions of the listed vaccines.155 The presumption
provided by the Vaccine Injury Table is particularly important in light of thelimited information available and difficulty in proving that certain vaccines cause
certain injuries. Congress recognized the inaccuracy of the Table, stating that“the deeming of vaccine-relatedness adopted [in the Table] may provide compensation to some children whose illness is [sic] not, in fact vaccine-related.”156
Because of this inaccuracy, Congress specifically mandated in the Vaccine Act
that studies be conducted of the pertussis vaccine and its related risks, and of
the measles/mumps/rubella (MMR) vaccine and its related illnesses and conditions.157 Congress also required a study of the possible adverse effects of other
152 Id.
153 42 U.S.C. 300aa-11(c)(1)(D).
154 This example was given in H. Rep. 99-908, at 19, reprinted in 1986 U.S.C.C.A.N., at
6360.
155 Johnson, Drew and Miletich, supra note 114, at 13.
156 H. Rep. 99-908, at 18, reprinted in 1986 U.S.C.C.A.N., at 6359.
157 P. L. 99-660, § 312 (1986). This study was done by the Institute of Medicine and pub-33

vaccines administered during childhood.158b.
Burden of Proof.

If the NVICP petitioner can show that a Table injury occurred within thetime period stated in the Table, the petitioner is entitled to a presumptionof causation. The burden of persuasion then shifts to HHS, the respondent,
to prove by a preponderance of evidence that the “illness, disability, injury,
condition or death described in the petition is due to factors unrelated to theadministration of the vaccine.”159
Petitioners injured by a Table vaccine outside the stated period of time, or injured by a non-Table vaccine, can still receive compensation under the NVICP.
Such petitioners have the burden of showing by a preponderance of the evidence that the vaccine caused the petitioner’s injury or death.160 Congress
noted that “simple similarity to conditions or time periods listed in the Table isnot sufficient evidence of causation; evidence in the form of scientific studies orexpert medical testimony is necessary to demonstrate causation for such a petitioner.”161 Thus, it is far easier for a petitioner to proceed under the NVICP
if the petitioner can show a Table injury that occurred within the stated timelished in 1991. See Institute of Medicine, Adverse Effects of Pertussis and Rubella Vaccines,
A Report of the Committee to Review the Adverse Consequences of Pertussis and Rubella
Vaccines, National Academy Press (1991).
158 P. L. 99-660, § 312 (1986). The Institute of Medicine conducted this report which was
published in 1994. See Institute of Medicine, Adverse Events Associated with Childhood
Vaccines: Evidence Bearing on Causality, National Academy Press (1994).
159 42 U.S.C. 300aa-13(a)(1)(B).
160 42 U.S.C. 300aa-13(a)(1)(A).
161 H. Rep. 99-908, at 15, reprinted in 1986 U.S.C.C.A.N., at 6356.

34

period.
The Vaccine Injury Table also includes “qualifications and aids” to interpreting
the Table.162 These qualifications and aids to interpretation provide definitionsof such terms as “anaphylaxis”, “encephalopathy”, “residual seizure disorder”,“convulsion” and “brachial neuritis”. Symptoms and signs of these conditions
are provided, as well as what information is necessary to prove the connection
between the vaccine and the disease.

c.
Revision of the Table.

Modifications can and have been made to the Vaccine Injury Table. The
Secretary of HHS has the authority to add injuries to be compensated under
the NVICP or to delete listed injuries.163 The Secretary may also change thetime periods set forth in the Table.164 Before being made, these changes must
be reviewed by the Advisory Commission on Childhood Vaccines (ACCV).165
This Commission is composed of health professionals, members of the public,
including representatives of children who have suffered a vaccine-related injury
or death, and federal officials, including the Director of the National Institutesof Health, the Director of the CDC, and the Commissioner of the FDA.166 Anychange made to the Vaccine Injury Table applies only to petitions filed after the
162 42 U.S.C. 300aa-14(b).
163 42 U.S.C. 300aa-14(c)(3).
164 Id.
165 Id.
166 Charterof the Advisory Commission on
http://www.hrsa.dhhs.gov/ bhpr/vicp/ charter.htm.

35

Childhood

Vaccines,

locatedat

modification has been made.167
On February 8, 1995, the Secretary of HHS made changes to the Vaccine Injury Table, severely curtailing the presumption of causation for those injuredby the DPT vaccine.168 The Secretary redefined “encephalopathy” so that thediagnosis of this disease requires more than 24 hours of diminished level of consciousness, “a criterion which is far more restrictive than that of the leading
epidemiological study of pertussis vaccine injury.”169 The Secretary also eliminated “residual seizure disorder” and “hypotonic, hyporesponsive episodes” ascompensable injuries following the administration of the DPT vaccine.170 Parents of an injured child challenged this revision by the Secretary of HHS, but
the First Circuit Court of Appeals held that the Vaccine Act grants the Secretary the authority to change the Vaccine Injury Table.171 Barbara Loe Fisher,
the President of the National Vaccine Information Center, argues that “[t]heSecretary’s action to remove signs and conditions long recognized by the medical community as being vaccine-related has fatally compromised the system’s
concept of presumption of causation and has unfairly increased the burden of
proof for claimants.”172

167 42 U.S.C. 300aa-14(c)(4).
168 60 Fed. Reg. 7678-1, National Vaccine Injury Compensation Program Revision of the
Vaccine Injury Table (February 8, 1995). The regulation became effective March 10, 1995.
169 Testimony of Marcel Kinsbourne, a pediatric neuologist, before the House Government
Reform Comm., Subcomm. On Criminal Justice, Drug Policy and Human Resources, September 28, 1999.
170 60 Fed. Reg. 7678-1, supra note 168.
171 O’Connell v. Shalala, 79 F.3d 170 (1st Cir. 1996). See also Terran v. Secr. of HHS,
195 F.3d 1302 (Fed. Cir. 1999)(holding that the section of the Vaccine Act authorizing theSecretary of HHS to modify the Vaccine Injury Table does not violate the presentment clauseor the nondelegation doctrine).
172 Testimony of Barbara Loe Fisher, before the House Government Reform Comm., Subcomm. On Criminal Justice, Drug Policy and Human Resources, September 28, 1999.

36

In order to ensure compensation for all children who suffer injuries by Statemandated vaccines, Congress requires that the Secretary amend the Vaccine
Injury Table to include any vaccine recommended by the CDC for routine administration to children.173 Before the Secretary adds additional vaccines to
the Table, Congress must approve an excise tax for each new vaccine in orderto ensure the financial stability of the NVICP.174

B.
The NVICP Proceedings.

1.
Conduct of Proceedings.

In passing the Vaccine Act, Congress specified that the rules applicable to
NVICP proceedings must:(a)provide for a less-adversarial, expeditious, and informal proceeding for the
resolution of petitions,(b)
include flexible and informal standards of admissibility of evidence,
173 42 U.S.C. 300aa-14(e)(2).
174 Id.

37

(c)include the opportunity for summary judgment,(d)include the opportunity for parties to submit arguments and evidence on therecord without requiring routine use of oral presentations, cross examinations,or hearings, and(e)provide for limitations on discovery and allow special masters to replace theusual rules of discovery in civil actions in the United States Court of Federal
Claims.175

The special masters replaced the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with the more streamlined Vaccine Rules of the Officeof Special Master of the U.S. Court of Federal Claims.176 These Vaccine Rules
attempt to make the process of receiving compensation for vaccine-related injuries much more informal than the traditional litigation route. The Rules callfor an “off-the-record conference” with orally presented tentative findings and175 42 U.S.C. 300aa-12(d)(2).
176 Rules of the United States Court of Federal Claims, Appendix J—Vaccine Rules of the
Office of Special Master of the United States Court of Federal Claims. (Hereinafter “Vaccine
Rule.”) These rules can be located: (1) on Lexis in the LITGAT; CLRUL and GENFED;
CLRUL databases; (2) on Westlaw in the US-RULES database, (3) in the United States Code
Service (USCS) in one of the “Court Rules” volumes covering “Special Courts”, and (4) inthe United States Code Annotated (USCA) in the Title 28 “Rules” volume.

38

conclusions within the first few months of the case,177 informal telephone status conferences,178 and informal discovery.179 The special master is expected
to disregard all statutory and common law rules of evidence and to consider
all relevant, reliable evidence, governed by principles of fundamental fairness toboth parties.180 Furthermore, the special master may receive evidence or argument by telephone181 and may decide the case without holding an evidentiary
hearing.182

2.
Petition Content.

A petition to the NVICP must include almost all of the information necessary
for the special master to rule on the case. Petitioners in the NVICP term thisrequired initial production of documents “front-end loading.”183 The practiceof front-end loading was instituted in order to speed up the processing of claims
and to avoid formal rules of discovery.184 In addition to providing an affidavit
and supporting documents demonstrating the alleged vaccine injury, the petitioner must also submit certain medical records specified by statute. This list ofrequired medical records is quite expansive, including prenatal and birth records,
medical records prior to vaccination, post-injury in and out-patient treatment
177 Vaccine Rule 5.
178 Vaccine Rule 6.
179 Vaccine Rule 7(a).
180 Vaccine Rule 8(b).
181 Vaccine Rule 8(b) and (c).
182 Vaccine Rule 8(d).
183 Johnson, Drew and Miletich, supra note 114, at 25.
184 Id.

39

records, vaccination records associated with the vaccine allegedly causing the
injury, and, if applicable, a death certificate and autopsy results.185 The petitioner must also identify any required records which are unavailable and thereason for their unavailability.186
The respondent, HHS, must review these medical and other records within 30
days and determine whether the HHS can evaluate the merits of the claim
based on the submitted documentation. HHS must then file a report which“set[s] forth a full and complete statement of respondent’s position as to why
an award should or should not be granted.”187 This report must contain HHS’s
medical analysis of the petitioner’s claims and any legal arguments HHS may
have in opposition to the petition.
Special masters and respondents’ attorneys find that front-end loading is helpful
because the main issues of the case are apparent from the outset.188 A few petitioner’s attorneys, however, are not satisfied with the front-end loading process
because it is difficult and time-consuming to gather all the required documents,
some of which are not even relevant to the claim.189

3.
Experts.

Expert testimony is extremely important to the NVICP because a special
185 42 U.S.C. 300-11(c)(2).
186 42 U.S.C. 300-11(c)(3).
187 Vaccine Rule 4(a) and (b).
188 Johnson, Drew and Miletich, supra note 114, at 26.
189 Id. at 27.

40

master may not award compensation to a petitioner “based on the claims of thepetitioner alone, unsubstantiated by medical records or by medical opinion.”190
Determinations of compensability often require expert testimony on the timingof petitioner’s symptoms, on the medical evidence showing causation, and on
the absence of factors unrelated to the administration of the vaccine that may
have caused the injury. Because special masters often rely on experts in the
NVICP, affidavits of experts must accompany both the petitioner’s and respondent’s initial filings.191
Special masters hold hearings with expert testimony in a “high percentage of
their cases, with estimates ranging from 30% to 80%.”192 Experts often testify on both the entitlement and damages issues.193 Usually, the petitioner
and respondent have one expert witness for each issue.194 Most petitioner experts at the entitlement hearings are the treating physicians of the injured child,although some attorneys for petitioners retain experts who have previously testified at an NVICP hearing.195 The experts who prepare the respondent’s initial
expert report often testify for the respondent, or the respondent hires experts
gained through referrals from the Division of Vaccine Injury Compensation at
HHS.196 Special masters, respondents and petitioners all find pediatric neurologists to be the most useful type of testifying witness for the entitlement
hearing.197 Life-care planners and rehabilitation consultants are the experts
190 42 U.S.C. 300aa-13(a)(1).
191 42 U.S.C. 300aa-11(c); Vaccine Rule 4(b).
192 Johnson, Drew and Miletich, supra note 114, at 30.
193 Id.
194 Id.
195 Id. at 31.
196 Id.
197 Id.

41

most likely to testify on the question of damages.198
Although special masters have the authority to retain “independent medical experts to assist in the evaluation of medical issues associated with eligibility forcompensation,”199 special masters have never appointed an expert.200 One special master explained that special masters don’t utilize court-appointed experts
because special masters have the scientific and medical expertise necessary to
make a decision, unlike generalist judges.201 Special masters can also consult
sources not presented by the parties, such as medical textbooks and other medical literature.202 Thus, the special masters of the NVICP feel they do not needcourt-appointed experts.
Expert witnesses are not only examined and cross-examined by the attorneys
for the petitioner and respondent, they are also questioned by the special master, usually after the direct and cross-examination.203 Sometimes, however, thespecial master will ask all the questions of an expert witness.204 A majority ofboth petitioners’ and respondents’ attorneys believe that this direct examination of experts by the special master is an efficient procedure, so long as the
special master waits until after the direct and cross-examination and only asks
questions to clarify previous testimony or bring out particular issues.205 A few
attorneys find this practice of questioning experts inappropriate because the
198 Id.
199 H. Conf. Rep. 101-386, at 516 (1989) reprinted in 1989 U.S.C.C.A.N 3018, at 3118. See
also 42 U.S.C. 300aa-12(d)(3)(B)(iii).
200 Johnson, Drew and Miletich, supra note 114, at 33.
201 Id.
202 Id.
203 Id. at 35.
204 Id.
205 Id. at 36.

42

special master acts as an advocate for one side during the hearing.206

C.
Compensation Recoverable.

1.
Financing of Compensation.

Petitioners in the NVICP are compensated differently depending on when
they suffered a vaccine-related injury.207 Damage awards for injuries occurring
after the effective date of the Vaccine Act are much more generous than thoseawards for injuries occurring before October 1, 1988.208 This distinction between pre-Act and post-Act cases is based on the funding provided by Congress.
Pre-Act cases are funded by appropriations to HHS.209 Congress appropriated$80 million per year for fiscal years 1989 to 1992, and $110 million per year until
pre-Act cases no longer require compensation.210 Payments for post-Act cases
are made from the Vaccine Injury Trust Fund, a fund supported by an excise
tax on vaccine sales.211 This excise tax of 75 cents per dose is imposed on eachvaccine covered under the NVICP.212 About $1.4 billion is currently available
in the Trust Fund to compensate victims who suffer post-Act vaccine-related
206 Id.
207 42 U.S.C. 300aa-15(a) and (b).
208 Monthly Statistics Report.
209 42 U.S.C. 300aa-15(i)(1).
210 42 U.S.C. 300aa-15(j).
211 42 U.S.C. 300aa-15(i)(2).
212 Testimony of Thomas E. Balbier, Jr., Director of the NVICP, before the House Government Reform Comm., Subcomm. On Criminal Justice, Drug Policy and Human Resources,
Sept. 28, 1999.

43

injuries.213

2.
Conventional Damages.

Compensation available under the NVICP can be divided into four different
types: (1) medical and rehabilitative care, (2) death benefits, (3) lost wages or
earnings, and (4) pain and suffering.214
First, the NVICP provides compensation for a wide range of both past and future medical care, including the expenses of “rehabilitation, developmental evaluation, special education, vocational training and placement, case management
services, counseling, emotional or behavioral therapy, residential and custodialcare and service expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary.”215 In its report to Congress,
the House Committee recognized that “injured children often have special or
unusual health care and education needs” and, therefore, the Vaccine Act provides “flexibility in compensation awards by its broad description of compensable care.”216 Moreover, Congress specifically provided that “the amount ofcompensation for residential and custodial care. . . shall be sufficient to enable
the compensated person to remain living at home.”217 Both pre-Act and postAct petitioners can be compensated for these actual unreimbursable medical
213 Id.
214 H. Rep. 99-908, at 21, reprinted in 1986 U.S.C.C.A.N., at 6361.
215 42 U.S.C. 300aa-15(a)(1)(A)(iii)(II) and (a)(1)(b)(iii).
216 H. Rep. 99-908, at 21, reprinted in 1986 U.S.C.C.A.N., at 6361.
217 42 U.S.C. 300aa-15(c).

44and educational expenses.
Both pre and post-Act petitioners can receive only $250,000 for a vaccine-related
death.218 The post-Act petitioner can receive compensation for actual and anticipated loss of earnings,219 as well as $250,000 for actual and projected pain
and suffering and emotional distress from the vaccine-related injury.220 Likewise, the pre-Act petitioner can receive compensation for lost earnings, pain
and suffering, and reasonable attorneys’ fees and costs, but the combination ofthese three expenses cannot exceed $30,000.221
The NVICP completely forbids compensation for punitive or exemplary damages.222 In fact, the NVICP disallows any form of compensation that does notcover the health, education or welfare of the injured person.223

3.
Costs of Proceedings.

a.
Attorneys’ Fees.

The NVICP awards compensation to petitioners’ attorneys for “reasonable”
fees and expenses incurred in bringing a claim for compensation.224 Even where
218 42 U.S.C. 300aa-15(a)(2).
219 42 U.S.C. 300aa-15(a)(3)(A) and (B).
220 42 U.S.C. 300aa-15(a)(4).
221 42 U.S.C. 300aa-15(b).
222 42 U.S.C. 300aa-15(d)(1).
223 42 U.S.C. 300aa-15(d)(2).
224 42 U.S.C. 300aa-15(e).

45the Court of Federal Claims finds the petitioner ineligible to receive compensation under the Program, the petitioner’s attorney may recover fees and costs, solong as the petition for compensation was “brought in good faith and there wasa reasonable basis for the claim. . . .”225 The determination of the reasonableamount of attorneys’ fees and costs is entirely within the discretion of the special
master, and a special master may use her knowledge of attorneys’ billing practices in comparison with those of other attorneys regularly engaging in NVICP
compensation proceedings to help determine the reasonableness of claimed fees
under particular circumstances.226

Attorneys’ fees are calculated in the NVICP by using the lodestar methodof multiplying the reasonable amount of hours expended by a reasonable rate
per hour depending on the facts of the case.227 Awarding between $90 and $300
per hour, courts determine the reasonableness of an attorney’s hourly rate in aparticular case by looking at the normal compensation rates for attorneys, thedifficulty of the work in question, the skill level of the attorney involved, andother like factors.228 Even though all petitioners’ attorneys with a good faithbasis for a claim receive money for fees and expenses, those attorneys who suc225 42 U.S.C. 300aa-15(e)(1).
226 Saxton v Secretary of HHS, 3 F.3d 1517 (1993).
227 See Monteverdi v. Secretary of HHS, 19 Cl. Ct. 409, 414 (1990); Dunham v. Secretaryof HHS, 18 Cl. Ct. 633, 641 (1989).
228 See Willcox v. Secretary of HHS, 18 Cl. Ct. 870 (1989)(awarding $125 per hour for anAnderson, Indiana attorney); Clark v. Secretary of HHS, 19 Cl. Ct. 113 (1989)(awarding$292.30 per hour for partners in a law firm); Whitledge v. Secretary of HHS, 19 Cl. Ct.
144 (1989)(awarding $225 per hour for Boston attorneys); Doe v. Secretary of HHS, 19 Cl.
Ct. 439 (1990)(awarding $90 per hour for a general practitioner in Vermont); and Holton v.
Secretary of HHS, 24 Cl. Ct. 391 (1991)(awarding $200 per hour for an experienced litigation
partner from Sacramento, California and $100 per hour for an inexperienced associate of thesame firm).

46

cessfully bring a petition for a vaccine injury receive more compensation thanthose attorneys who lose claims in the NVICP.229 Based on 786 petitioners
whose requests for compensation generated published opinions, successful attorneys received a mean fee of $22,052 (+/-8671), while unsuccessful attorneys
received a mean fee of only $14,053 (+/-8749).230 Attorneys may not charge
the petitioner any additional fees in order to supplement the award made by
the special master.231

The awarding of attorneys’ fees has been the subject of dispute in more
NVICP decisions than any other aspect of the Program.232 More than 250, or
28%, of the published special master decisions address questions about allowable
attorneys fees and expenses.233 Five appellate court decisions discuss attorneys’
fees as well.234 Attorneys in the program complain that the fees are inadequate
and take too long to process, and the procedure under which government attorneys review and comment on petitioners’ attorneys’ fees is unfair.235 Attorneys
comment that “[b]ecause of the restrictions on attorneys’ fees there are few experienced attorneys willing to handle these unusual cases” and that “[t]he low
fees awarded to attorneys discourage claims under the [Vaccine] Act.”236
Because attorneys are not adequately compensated for their work in the NVICP,
there exists a real threat that attorneys will not be available to litigate these229 Derry Ridgeway, No-Fault Vaccine Insurance: Lessons from the National Vaccine Injury
Compensation Program, 24 J. Health, Pol. Pol’y & L. 59, 75 (February 1999).
230 Id.
231 42 U.S.C. 300aa-15(e)(3).
232 Ridgeway, supra note 229, at 75.
233 Id.
234 Id.
235 Johnson, Drew and Miletich, supra note 114, at 45.
236 Id.

47

vaccine-injury claims, and that the ones who are available will not be the mostcompetent or successful attorneys.237 The court is, in essence, prescribing alower level of attorney quality by setting attorney fees at such reduced rates.238
Moreover, because the Vaccine Act establishes a $30,000 cap on pre-Act compensation for loss of earnings, pain and suffering and attorneys fees,239 an attorneys’ interest in being paid is in direct conflict with her client’s interest inreceiving compensation for an injury.240 This cap may force attorneys to limit
hours spent on a pre-Act injury case or to forego an appeal.241b.
Fees of Experts.

In addition to attorneys’ fees, the Vaccine Act specifically awards compensation for costs incurred by an attorney in any proceeding on a petition.242 Thus,
the fees of expert witnesses are expenses of the petitioner’s attorney and, therefore, paid in the same manner as attorneys’ fees. Because of the importance ofexpert testimony from doctors and other highly trained medical professionals
in proceedings for compensation under the NVICP, one court held that the $30
per day cap on recoverable expenses for expert testimony contained in Federal
Rules of Civil Procedure would not apply to the NVICP.243 However, special
237 See Lisa J. Steel, National Childhood Vaccine Injury Compensation Program: Is This theBest We Can Do for Our Children? 63 Geo. Wash. L. Rev. 144, 164 (Nov. 1994); Ridgeway,supra note 229, at 75.
238 Id.
239 42 U.S.C. 300aa-15(b).
240 Steel, supra note 237, at 165.
241 Id.
242 42 U.S.C. 300aa-15(e)(1).
243 Strother v. Secretary of HHS, 18 Cl. Ct. 816, at 826 (1989), on remand, 1990 WL 299273

48

masters may completely deny compensation for an expert medical witness if
the special master deems the testimony of the expert to be unreasonable.244
The special master may also reduce a requested fee found to be unreasonable
under the circumstances of the case.245 These restrictions on compensation forexpert medical witnesses may prevent petitioners from hiring the most qualified
experts246 and, therefore, hurt the ability of petitioners to recover for vaccinerelated injuries.

4.
Process for Appeals.

Both the petitioner and the respondent can apply to the U.S. Court of Federal Claims for review of the special master’s decision.247 The Court of Federal
Claims may then take one of three actions: (1) sustain the special master’s
decision; (2) set aside the special master’s decision as “arbitrary, capricious,
an abuse of discretion. . . ”; or (3) remand the petition for further action.248
If neither party objects to the special master’s decision, the Court of Federal
Claims immediately enters judgment in accordance with the decision of the(Cl. Ct. 1990), order entered by, 21 Cl. Ct. 365 (Fed. Cir. 1990), aff ’d, 950 F2d 731 (FedCir. 1991).
244 See Perreira v. Secretary of HHS, 27 Fed. Cl. 29 (1992), aff ’d, 33 F.3d 1375 (Fed.
Cir. 1994)(finding that the petitioner had no definitive medical evidence to support the claim
and, therefore, the testimony of the medical expert was found to be unreasonable and notcompensable).
245 See Estrada v. Secretary of HHS, 29 Fed. Cl. 78 (1993)(approving the special master’s
reduction of the reimbursement for fees paid to a lifecare planner in establishing the projected
expenses of care for the petitioner’s son because the special master found the expert’s role inthe case to be minimal).
246 Steel, supra note 237, at 166.
247 42 U.S.C. 300aa-12(e)(1).
248 42 U.S.C. 300aa-12(e)(2).

49

special master.249 However, if either party disagrees with the decision of the
Court of Federal Claims, an appeal can be made to the Court of Appeals for
the Federal Circuit.250 The Court of Appeals applies de novo review of thedetermination of the Court of Federal Claims as to whether the special master’s
decision was arbitrary, capricious, an abuse of discretion, or otherwise not inaccordance with law.251 Two cases refer to this standard of review as a “highly
deferential”252 and, therefore, it is very unlikely that a special master’s decision
will be overturned.
After the Court of Federal Claims enters its judgment, or the Court of Appeals
for the Federal Circuit rules on an appeal, the petitioner must elect either (1)to accept the judgment, whether compensation is awarded or not, or (2) to filea civil action for damages for the vaccine-related injury or death.253 An “election” must be made within 90 days of the judgment.254 If a petitioner accepts
the compensation awarded or the judgment of the court, the petitioner is thenbarred from bringing a civil action for damages against a vaccine manufacturer
or administrator.255 Therefore, after the whole process of the NVICP, a petitioner may ultimately reject the judgment of the Court of Federal Claims andproceed with a civil action against the manufacturer of the vaccine that caused
the injury or death. However, as will be seen in the next chapter, the Vaccine
249 42 U.S.C. 300aa-12(e)(3).
250 42 U.S.C. 300aa-12(f).
251 Cucuras v. HHS, 993 F.2d 1525, 1527 (Fed. Cir. 1993); Jay v. HHS, 998 F.2d 979, 982(Fed. Cir. 1993); Hellebrand v. HHS, 999 F.2d 1565, 1569 (Fed. Cir. 1993).
252 Cucuras, 993 F.2d at 1527; Munn v. Secretary of HHS, 970 F.2d. 863, 869 (Fed. Cir.
1992).
253 42 U.S.C. 300aa-21(a); Vaccine Rule 33(a).
254 Id.
255 Id.

50

Act limits the liability of vaccine manufacturers sued by petitioners who reject
the NVICP judgment.256

D.
Program Statistics.

1.
Petitions Filed.

As of March 7, 2000, a total of 5,773 petitions have been filed under the
NVICP.257 Petitioners filed 4,254 petitions for pre-Act injuries, while 1,519 petitions have been filed for post-Act injuries.258 Almost all of the pre-Act claims
have been fully adjudicated, and all remaining pre-Act claims are in the adjudication process. Of all the claims filed under the NVICP, the largest percentageof the petitions (around 70%) allege an injury or death caused by the pertussis
vaccine.259 Although adults can receive compensation under the NVICP, thevast majority of claims have been filed on behalf of children injured or killed by
vaccines.2602.

256 42 U.S.C. 300aa-22.
257 Monthly Statistics Report.
258 Id.
259 Johnson, Drew and Miletich, supra note 114, at 19.
260 Ridgway, supra note 229, at 64.

51

Adjudication.

The special masters of the NVICP adjudicated 5,083 cases as of March
7, 2000.261 The special masters found 1,515 petitions eligible for compensation, while 3,568 cases have been dismissed or found not compensable.262 TheNVICP, therefore, dismisses more than two-thirds of all petitions filed. This
staggering statistic has led many to believe that the NVICP is not working andis unfair to petitioners.263

3.
Awards.

So far, $1,115 million has been paid in awards and attorneys’ fees—$821.6
million for pre-Act cases and $293.4 million in post-Act cases.264 Individualawards range from one hundred and twenty dollars to $8.4 million.265 Compensation is more frequently awarded in post-Act cases as compared with Pre-Actcases.266 For example, the 1999 pre-Act injury award average was $855,474(58 cases), while the 1999 post-Act injury award average was $1,433,319 (33cases).267 Obviously, the highest award amounts are in vaccine injury cases
since compensation for death is capped at $250,000 plus reasonable attorneys’
fees and costs.
261 Monthly Statistics Report.
262 Id.
263 Elizabeth A. Breen, A One Shot Deal: The National Childhood Vaccine Injury Act, 41
Wm & Mary L. Rev. 309, 320 (December 1999); Steel, supra note 237, at 173.
264 Monthly Statistics Report.
265 Id.
266 Johnson, Drew and Miletich, supra note 114, at 21.
267 Monthly Statistics Report.

52

Chapter IV.
The Liability of Vaccine Manufacturers after
the National Vaccine Injury Compensation Program

Congress could have made the Vaccine Act the only avenue of compensation
for people injured or killed by vaccines. Instead, Congress leaves vaccine manufacturers liable under state law for damages to those petitioners who reject the
judgment of the NVICP. In this way, Congress preserves the traditional authority of states to hold manufacturers liable for defective products.268 The Vaccine
Act, however, does place certain restrictions on the civil actions brought bypetitioners rejecting the judgment of the NVICP. The Act limits the liability ofvaccine manufacturers in four important ways.

A.
NVICP Limitations on Manufacturer Liability.

1.
Unavoidable Adverse Side Effects.

268 See Abbot v. American Cyanamid, 844 F.2d 1108 (4th Cir. 1988)(holding that the federal
law regulating vaccine design and labeling does not preempt state common-law liability fordesign defect or failure to warn).

53

First, the Act relieves manufacturers from liability for injuries caused by
the unavoidable side effects of vaccines, as long as the vaccines are properly
prepared and accompanied by adequate warnings.269 In this way, the Act adopts
comment k to § 402A of the Restatement of Torts, which provides an exception
to the strict liability doctrine for unavoidably unsafe products.270 Congress
decided to apply comment k to every vaccine covered by the Act because of
the fear that sympathetic juries will “find it difficult to rule in favor of the‘innocent’ manufacturer if the equally ‘innocent’ child has to bear the risk of loss
with no other possibility of recompense.”271 By providing immunity for vaccine
manufacturers who adequately prepare and label vaccines, Congress sought tofulfill one of its main goals of the Act—the protection of the vaccine supply andthe few remaining manufacturers of vaccines. Congress argued that because the
Vaccine Act includes a compensation program, “comment k is appropriate andnecessary as the policy for civil actions seeking damages in tort.”272
Criticism has been made that the blanket application of comment k removes
incentives for vaccine manufacturers to improve the design of their products.273
By insulating manufacturers who properly prepare and label their vaccines, “theVaccine Act implicitly announces that the Federal Government is satisfied withthe current state of vaccine safety, and that the Government will not use thetort system to encourage manufacturers to improve their vaccines.”274
269 42 U.S.C. 300aa-22(b)(1).
270 H. Rep. 99-908, at 25-26, reprinted in 1986 U.S.C.C.A.N., at 6366-67.
271 Id. at 26, reprinted in 1986 U.S.C.C.A.N., at 6367.
272 Id.
273 Daniel A. Cantor, Striking a Balance Between Product Availability and Product Safety:

Lessons From the Vaccine Act, 44 Am. U. L. Rev. 1853, 1896 (June 1995).
274 Id.

54

In fact, the scientific history of the DPT vaccine illustrates that the government has known about a safer pertussis vaccine since the 1950’s, but has notmandated the production of this non-cellular version of the vaccine.275 Currently, most vaccine manufacturers only make the whole-cell pertussis vaccine,a vaccine from which the disease-causing element of pertussis is not removed.
However, in 1961, the FDA approved the non-cellular pertussis vaccine of Eli
Lilly & Company.276 Tests done in 1967 comparing the non-cellular and wholecellular pertussis vaccines showed that the whole-cellular vaccine had a muchhigher rate of adverse effects that the non-cellular vaccine.277 Eli Lily stopped
producing the non-cellular pertussis vaccine in 1971, and Wyeth Laboratories
attempted to purchase Eli Lilly’s license; but, because FDA regulations require
manufacturers of the same vaccines to have separate licenses, Wyeth could notpurchase the license from Lilly.278 Wyeth, instead, produced its own non-cellular
pertussis vaccine, which the FDA refused to license due to possible toxicity anda lack of evidence proving that the non-cellular vaccine was better than thewhole cell pertussis vaccine.279 More recently, the FDA licensed a purified, lessreactive acellular pertussis vaccine, DtaP, and the CDC recommended its use forolder children in 1991 and for infants in 1996.280 Thus, in light of this history,
the pertussis component of the vaccine may not be an “unavoidably unsafe”
275 Id. at 1891.
276 Id.
277 Id.
278 Id.
279 Id. at 1892.
280 Testimony of Barbara Loe Fisher, President of the National Vaccine Information Center,
before the House Government Reform Comm., Subcomm. On Criminal Justice, Drug Policyand Human Resources, September 28, 1999. (Hereinafter “Testimony of Fisher”).

55

product deserving comment k protection.281

2.
Statutory Presumption of Due Care in Packaging and Warning.

Second, the Vaccine Act creates a presumption that a vaccine is properly
labeled and accompanied by adequate warnings if the vaccine manufacturer canshow that it complied with FDA standards governing the approval and labelingof the vaccine.282 Thus, a vaccine manufacturer will not be held liable if it
can show that it followed all requirements under 21 U.S.C. § 301 et seq. of theFederal Food, Drug and Cosmetic Act (described in chapter I above) and under
41 U.S.C. §262 of the Public Health Service Act.283
This presumption can be overcome, however, but only upon a demonstrationthat (1) the manufacturer engaged in fraudulent conduct or intentionally withheld information in obtaining premarket approval from the FDA;284 or (2) the
manufacturer intentionally withheld information relating to the safety or efficacyof the vaccine after its approval;285 or (3) it is shown by clear and convincing
evidence that the manufacturer failed to exercise due care notwithstanding its
compliance with the FDCA and the PHSA.286 Congress explained that the establishment of this presumption was intended “to make clear its view that only
281 Cantor, supra note 273, at 1892.
282 42 U.S.C. 300aa-22(b)(2).
283 Id.
284 42 U.S.C. 300aa-22(b)(2)(A); 42 U.S.C. 300aa-23(d)(2)(A).
285 42 U.S.C. 300aa-22(b)(2)(A); 42 U.S.C. 300aa-23(d)(2)(B).
286 42 U.S.C. 300aa-22(b)(2)(B).

56

those significant failures to warn or provide directions that clearly pertain tovaccine safety and that clearly arise from substantial wrongdoing on the part ofthe manufacturer ought to result in liability.”287

3.
Direct Warnings.

Third, the Vaccine Act prohibits claims based on the vaccine manufacturer’s
failure to provide direct warnings to the vaccine recipient.288 Thus, the Act
adopts the learned intermediary doctrine described in chapter II above, whichstates that a manufacture is not held liable for any failure to warn if the manufacturer provides adequate warning to a learned intermediary such as a doctor,
nurse or pharmacist. This learned intermediary is expected to know about thevaccine and to take responsibility for informing the vaccine recipient about thebenefits and risks of the vaccine.289
There are, however, dangers to the NVICP’s adoption of the learned intermediary doctrine. First, as discussed above, most vaccinations are given at mass
immunization clinics. Therefore, the learned intermediary rule of the NVICP
does not protect children who do not have the benefit of a one-on-one relationship with a doctor when they are vaccinated.290 These children and theirparents may not be able to balance the benefits and risks of vaccination to them
287 H. Rep. 99-908, at 26, reprinted in 1986 U.S.C.C.A.N., at 6367.
288 42 U.S.C. 300aa-22(c).
289 H. Rep. 99-908, at 27, reprinted in 1986 U.S.C.C.A.N., at 6368.
290 Cantor, supra note 273, at 1868.

57

individually.291 Also, they will not have the requisite information to identify
the signs of an adverse reaction to a vaccine.292
Second, even in the private physician’s office, vaccinees and their parents may
not receive information about the vaccine to be administered because the lawof informed consent does not require the physician to disclose fully all the risks
associated with a vaccine. Informed consent means only that the physician
provides the patient with information ordinarily given as part of “customary
practice”.293 Often physicians will not warn patients about the risks of a vaccine because the child or parent may reject the vaccine, unreasonably fearing
the slight possibility of an adverse reaction.294 One doctor commented in adeposition:
My feeling. . . was that there is an extremely minute percentage of people whowill have the complications from the drug. I felt that, again, because I had neverexperienced [other practicing physicians] giving these warnings, it. . . wasn’t necessary for me to do it; and. . . I felt. . . that giving the warning. . . could scare off
parents from bringing children in for future vaccinations, which to me were much
more important that the warning itself for the few number of people who aregoing to contract the disease. . . .295
Also, in the context of managed care, where doctors have an average of 12
minutes to treat a patient, providing warnings of vaccines simply may not be
feasible within the given time restraints. Moreover, physicians may be swayedby the pro-vaccine environment of the United States, where all 50 states require vaccination to enter school and the President pronounces that vaccination
291 Id.
292 Id. at 1873-74.
293 Id. citing Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), cert. denied, 409 U.S.
1064 (1972).
294 Cantor, supra note 273, at 1869.
295 Plummer v. Lederle Laboratories, 819 F. 2d 349, 352 (2d Cir. 1987).

58

“ought to be like clean water and clean air. . . It ought to be part of the fabricof our life.”296
In Subpart C of the Vaccine Act—Assuring a Safer Childhood Vaccination Program in United States, Congress does attempt to remedy the fact that manufacturers are not required to provide direct information to the vaccine recipient.
By requiring physicians who administer vaccines to record and report information about adverse reactions to vaccines,297 the Vaccine Act helps to reestablish
individualized risk assessments regarding vaccines.298 For example, because of
the reporting requirements, the physician of a child who suffers an adverse reaction to the first administration of the DPT vaccine may not give, or may delay,
the second and third DPT doses.299
The Vaccine Act also requires the Secretary of HHS to “develop and disseminate
vaccine information materials for distribution by health care providers to the legal representatives of any child or to any other individual receiving a vaccine set
forth in the Vaccine Injury Table.”300 These materials must be published in theFederal Register301 and allowed 60 days of public comment.302 The Secretaryof HHS develops and devises the vaccine information materials in consultation
with the Advisory Commission on Childhood Vaccines, appropriate health careproviders and parent organizations, the CDC, and the FDA.303 The materials
296 Cantor, supra note 273, at 1855, citing Paul Richter, Child Vaccination Program is Pushed
Health, L.A. Times, Feb. 13, 1993, at A1.
297 42 U.S.C. 300aa-25(a) and (b).
298 Cantor, supra note 273, at 1874.
299 Id.
300 42 U.S.C. 300aa-26(a).
301 42 U.S.C. 300aa-26(a).
302 42 U.S.C. 300aa-26(b)(1).
303 42 U.S.C. 300aa-26(b)(2).

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must provide a concise description of both the benefits and risks of the vaccine,
as well as a statement of the availability of the NVICP.304 Health care providers
must directly furnish this vaccine information to any recipient of a Table vaccine.305 This information allows vaccine recipients and parents to weigh thebenefits and risks of vaccination, and also gives vaccinees the knowledge necessary to spot an adverse reaction to a vaccine.
One must question whether the recording and informational requirements of the
Vaccine Act adequately compensate for the protection lost by eliminating direct
failure to warn causes of action against vaccine manufacturers.306

4.
Punitive Damages.

Fourth, and finally, the Vaccine Act does not allow a claimant to recoverpunitive damages against a manufacturer who complied with the vaccine safety
provisions of the FDCA and the PHSA, unless the manufacturer engaged infraudulent conduct, or intentionally and wrongfully withheld information, or
engaged in other criminal or illegal activity relating to the safety and effectiveness of vaccines.307 Congress instituted this provision because “punitive
damages should be assessed only where particularly reprehensible, conscious
behavior is involved.”308
304 42 U.S.C. 300aa-26(c).
305 42 U.S.C. 300aa-26(d).
306 Cantor, supra note 273, at 1874.
307 42 U.S.C. 300aa-23(d).
308 H. Rep. 99-908, at 23, reprinted in 1986 U.S.C.C.A.N., at 6369.

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B.
Restriction on Evidence from the NVICP.

In any stage of a civil action, the Vaccine Act forbids the introduction inevidence of the Vaccine Injury Table, any finding of fact or conclusion of lawof the Court of Federal Claims or a special master, and the final judgment of
the NVICP.309 Thus, NVICP petitioners basically start over when they electto bring a civil action against a vaccine manufacturer. Congress excludes this
NVICP information because NVICP “[c]ompensation standards, evidence, andproceedings are sufficiently different from civil proceedings. . . that the findings
made in compensation are not likely to be based on the more rigorous requirements of a tort proceeding and might confuse such civil actions.”310

309 42 U.S.C. 300aa-23(e).
310 H. Rep. 99-908, at 29, reprinted in 1986 U.S.C.C.A.N., at 6370.

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Chapter V.

Has the NVICP Achieved Its Goals?

Proposals for Reform

Congress established the National Vaccine Injury Compensation Programin order to accomplish two goals: (1) protection of the vaccine supply and the
reduction of litigation against vaccine manufacturers and (2) compensation ofindividuals injured or killed by vaccines. How successful is the NVICP in achieving these two goals?

A.
First Goal: Protecting the Vaccine Supply and Reducing Vaccine Litigation.

There is ample proof that the vaccine supply is now stable. The Children’s
Defense Fund reports that between 1992 and 1997, immunization rates amongchildren increased dramatically.311 Since its institution, the NVICP has expanded to include four additional vaccines—Hepatitis B, Haemophilus influenzae type B, varicella, and rotavirus. Moreover, since 1990, no commercial manufacturer has left the vaccine market.312 In fact, there are more than 300 vaccines
311 Testimony of the Children’s Defense Fund before the House Government Reform Comm.,
on “Vaccines: Finding a Balance Between Public Safety and Personal Choice,” August 3,
1999.
312 Ridgway, supra note 229, at 76.

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in various stages of research and development, including an AIDs vaccine.313
Thus, the NVICP appears successful in ensuring access to vaccines.
Likewise, there has been a reduction in litigation against vaccine manufacturers.
Since the establishment of the NVICP, civil actions against vaccine manufacturers have all but disappeared.314 Because claims for vaccine-related injuries anddeaths are now channeled through the NVICP, and because petitioners who reject the judgment of the NVICP can only sue vaccine manufacturers on limited
theories of liability, very few claims have been filed in tort against vaccine manufacturers. In fact, before February 1999, not one post-NVICP civil case has
been decided at the appellate level.315 A vaccine-injured person who receives
an award from the NVICP is not likely “to give up that bird in the hand in
return for a larger, but more speculative, tort law award.”316 Moreover, petitioners who lose their claims in the NVICP under the relaxed rules of evidence,“may see no point in trying to overcome tort law’s more serious obstacles torecovery.”317 Likewise, losing attorneys who have already been compensatedby the NVICP have little incentive to pursue a civil action.318 Therefore, the
NVICP does appear to reduce the liability and litigation expenses of vaccine
manufacturers.
One case from the First Circuit Court of Appeals, however, provides a newtheory under which vaccine-injured people may sue vaccine manufacturers. The
313 Testimony of Thomas E. Balbier, Jr., Director of the NVICP, before the House Government Reform Comm., Subcomm. on Criminal Justice, Drug Policy and Human Resources,
September 28, 1999.
314 Ridgway, supra note 229, at 77.
315 Id.
316 Schafer v. American Cyanamid Co., 20 F.2d 1, 6 (1st Cir. 1994).
317 Id.
318 Ridgway, supra note 229, at 78.

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court in Schafer v. American Cyanamid 319 held that the families of those injured by vaccines can sue for loss of companionship and consortium even after
the vaccine-injured person has received an award from the NVICP. In Schafer,the mother of a child vaccinated against polio actually contracted the disease
and accepted an award of $750,000 from the NVICP.320 American Cyanamid
argued that to allow the child and father to sue in tort for damages would so
seriously interfere with the Vaccine Act’s basic purposes that the court must
read the Act as implicitly barring their claim, just as the Act bars a civil action
by the mother.321 The court reasoned that this interpretation of the Act does
not follow the text or the legislative history of the Act, and would impermissibly
preempt state law.322 It remains to be seen how many individuals actually use
this theory of liability as a means of recovering damages from vaccine manufacturers in addition to awards made by the NVICP.
On the whole, the NVICP has done a particularly good job at achieving thefirst goal of Congress in passing the Vaccine Act. Vaccines are available andat reasonable costs due to the reduction of litigation against vaccine manufacturers. Manufacturers continue to produce old vaccines and are developing new
vaccines for administration to the children of the United States. Unfortunately,
the NVICP has not been as successful in fulfilling Congress’s second goal.

B.
319 20 F.3d 1 (1st Cir. 1994).
320 Id. at 3.
321 Id.
322 Id. at 5-7.

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Second Goal: Compensating Injured Vaccinees.

Congress intended the NVICP to operate in a quick, easy and fair manner,with compensation awarded generously. The NVICP was also designed to be
non-adversarial and accommodating to the unique and tragic claims of children
injured or killed by vaccines. In many ways, the NVICP has failed to achievethese objectives. The September 28, 1999 testimony before the House Committee on Government Reform highlights this failing of the NVICP to compensate fairly, efficiently and adequately those who suffer because of the universal
vaccination policy of the United States. The hearing, entitled “Compensating
Vaccine Injuries: Are Reforms Needed?”, demonstrates the recent and ongoing
dissatisfaction with the compensation goal of the NVICP and suggests reforms
to correct the NVICP.323 Within the context of this hearing, this section will
discuss the major inadequacies of the NVICP and propose changes so that the
NVICP can achieve its original goal of generously compensating injured vaccinees.

1.
Length of NVICP Proceedings.

The Vaccine Act mandates that a special master’s decision “be issued as
expeditiously as practicable but not later than 240 days. . . after the date thepetition was filed.”324 Thus, Congress intended the proceedings of the NVICP
323 Testimony before the House Government Reform Comm., Subcomm. on Criminal Justice,
Drug Policy and Human Resources, September 28, 1999.
324 42 U.S.C. 300aa-12(d)(3)(A)(ii).

65to last no longer than eight months. However, many cases continue for years,
sometimes taking up to nine years to reach a final determination.325 One parent
testified that it took seven and a half years from the time she applied to the
NVICP to the time she gained access to the funds awarded.326 Moreover, of
the 67 petitioner’s attorneys responding to a questionnaire sent by the Federal
Judicial Center, 38% said that the time from filing a petition to disposition of
the case in a traditional civil action is “shorter” or “much shorter” than the
NVICP proceedings.327 31% said that the timing of NVICP proceedings andtraditional civil litigation is “about the same.”328 Only 27% responded thatcivil litigation takes “longer” or “much longer” than the NVICP.329 Thus, morethan two-thirds of the attorneys surveyed stated that the NVICP takes the sameamount of time or longer than traditional litigation.
The Deputy Director of the Torts Branch of the Justice Department, John Lodge
Euler, argues that lengthy NVICP proceedings can be attributed to the extreme
complexity of the medical issues, the difficulty in determining a “custom tailored plan of lifetime medical care”, and the unavailability of documentationfrom petitioners to support requests for specific items of compensation.330
In order to eradicate these time-consuming aspects of the NVICP, the establish325 Testimony of Comm. Chairman John L. Mica before the House Government ReformComm., Subcomm. On Criminal Justice, Drug Policy and Human Resources, September 28,
1999. (Hereinafter “Testimony of Mica”).
326 Testimony of Linda Mulhauser, parent, before the House Government Reform Comm.,
Subcomm. On Criminal Justice, Drug Policy and Human Resources, September 28, 1999.
(Hereinafter “Testimony of Mulhauser”).
327 Johnson, Drew and Miletich, supra note 114, at 47.
328 Id.
329 Id.
330 Testimony of John Lodge Euler, before the House Government Reform Comm., Subcomm.
On Criminal Justice, Drug Policy and Human Resources, September 28, 1999.

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ment of causation should be simplified (more on this below). Moreover, oncethe special master determines eligibility for compensation, the Justice Department should step away from the case and not participate in the determinationof damages. One mother explains that after the special master deemed her
son eligible for compensation, she and her attorney had “an item by item fightto obtain even the smallest needs on [her son’s] life care plan.”331 The DOJ
attorney even contested such “petty matters” as whether the injured vaccinee
would benefit from a $10 special needs door knob.332 This mother described herexperience with the NVICP as “a totally exhausting and extremely adversarial
process of nickel and dime arguments.”333 This type of adversarial adjudication, especially when a child has already been found harmed by a vaccine, so
contradicts the original design of the NVICP that it must be changed. A fairand generous settlement should be reached soon after eligibility for compensation has been determined. Hearings during the damages phase of NVICP cases
should be strictly avoided. In his opening remarks at the hearing on vaccinecompensation reform, Committee Chairman Mica raised the possibility thatthe government favor and facilitate mediation in place of the present NVICP
litigation.334 Further investigation into this alternative may prove useful in alleviating the lengthy process encountered by NVICP petitioners stuck in thedamages phase of the proceedings.
One particularly troubling problem arises because of the extreme length of the
331 Testimony of Mulhauser.
332 Id.
333 Id.
334 Testimony of Mica.

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NVICP process. Attorneys are unwilling to take these vaccine injury claims because they are paid so little and paid after the case has ended. One petitioner’s
attorney stated that “[m]y fees and costs were handled in such a way that myfirm had to ‘carry’ me for years and we lost a great deal of money by virtue of
my participation in the Program.”335 NVICP attorneys will be paid no matter
if they win or lose the case. Why not allow petitioners’ attorneys to receive
interim payments for fees and costs during the entire compensation process?336
In this way, attorneys will not have to wait up to nine years to be paid fortheir work in the NVICP. Because NVICP proceedings take so long to resolve,
interim payments will allow petitioners’ attorneys to remain in the NVICP andwill level the playing field between these attorneys and the salaried attorneys
and experts of the respondent.337

2.
Adversarial Nature of Proceedings.

As pointed out above by one disappointed parent, the NVICP has been
anything but non-adversarial. Even the special masters who hear NVICP claims
believe that the attorneys for the respondent are “over-litigating” and “behaving
like adversaries,” contrary to what Congress intended.338 Petitioner’s attorneys’comments about the adversarial nature of the NVICP include:“The intent of the program has been lost because the government lawyers
335 Johnson, Drew and Miletich, supra note 114, at 45.
336 Testimony of Fisher.
337 Id.
338 Johnson, Drew and Miletich, supra note 114, at 44.

68want to defeat every claim at all costs and for any reason. . . .There is now nodifference in the level of litigation than if the case were in state or federal court.”“I feel the respondent has never embraced the spirit of the Vaccine Program
or tried to properly implement it in the manner Congress intended. Everyvaccine attorney has [his or her] own horror story about how the respondent hasperverted the system. The respondent has done everything he can to circumventand narrow the scope of the Program.”339
However, one attorney does believe that “[t]he respondents have made a goodeffort (in most instances) to minimize the adversarial atmosphere of the proceedings.”340 Although complementing the respondent, note that this attorney
still describes the “atmosphere” of the NVICP as adversarial.

Two experts who have participated in the NVICP, one who serves as anexpert for the petitioner and one who reviews claims for the respondent, also
agree that the nature of the NVICP proceedings is adversarial. The petitioner’s
expert, who also testifies for plaintiffs and defendants in vaccine injury civil
actions, notes that the “respondent’s defense against petitions. . . has become
increasingly stubborn and aggressive, to the point that in its spirit, it is now
indistinguishable from the adversarial manner in which some civil lawsuits are
conducted.”341 The expert for the respondent described the NVICP proceedings as a “contentious, vituperative, decibel-escalating exchange.”342
339 Id. at 45. Of the thirty-nine petitioner’s attorneys who provided narrative comments on
the NVICP, seven cited the litigiousness of the respondent’s attorneys as a problem. Sevenof petitioner’s attorneys also commented negatively on the length of time it takes for NVICP
claims to be processed. Attorneys most complained about the NVCIP’s handling of attorney’s
fees (12 out of the 39 providing comments).
340 Id. at 46.
341 Testimony of Marcel Kinsbourne, before the House Government Reform Comm., Subcomm. On Criminal Justice, Drug Policy and Human Resources, September 28, 1999. (Hereinafter “Testimony of Kinsbourne”).
342 Testimony of Arnold D. Gale, M.D., before the House Government Reform Comm., Subcomm. On Criminal Justice, Drug Policy and Human Resources, September 28, 1999. (Hereinafter, “Testimony of Gale”).

69Both experts state that attorneys for the petitioner and respondent seek todiscredit the other side’s experts by accusations of bias and ad hominem attacks, rather than appropriately challenging the medical testimony of the expert physicians.343 Experts will not voluntarily testify in the NVICP if theirprofessional credibility is constantly questioned. Medical experts are indispensable to the operation of the NVICP and resistance by such experts to testify
will severely curtail petitioners’ access to the NVICP. Note that in response to
the Vaccine Act’s mandate to review the adverse events associated with childhood vaccines,344 the Institute of Medicine found “many gaps and limitations inknowledge bearing directly and indirectly on the safety of vaccines,” including“an inadequate understanding of the biological mechanisms underlying adverse
events following natural infection or immunization.”345 Because of this medical uncertainty as to the adverse effects of vaccination, NVICP expert witnesses
should be allowed to present sound medical testimony without challenge to theirprofessional credibility.

3.
Loss of the Presumption of Vaccine Injury.

With the establishment of the Vaccine Injury Table, the Vaccine Act pro343 Testimony of Kinsbourne; Testimony of Gale.
344 42 U.S.C. 300a-1.
345 Institute of Medicine (Vaccine Safety Committee), Adverse Events Associated with Childhood Vaccines: EvIdence Bearing on Causality, ed. Kathleen R. Stratton, Cynthia J. Howe,and Richard B. Johnston, Jr., National Academy Press, 1994. This quotation is taken fromthe Executive Summary of Adverse Effects of Pertussis and Rubella Vaccines, published by
the Institute of Medicine in 1991 and included in the 1994 Report.

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vides a presumption that the administration of a certain vaccine caused a child’s
injury or death. The Vaccine Injury Table not only reflects scientific studies on
causation, but it also establishes a compensation policy.346 Congress designed
the original Vaccine Injury Table with a “cushion,” which compensates injured
vaccinees where science is unclear or uncertain.347 The Secretary of HHS, however, has tightened this Table, arguing that scientific studies disprove causation
between particular vaccines and injuries. Yet, as discussed above, there still
exists a lack of scientific data and understanding to prove conclusively which
adverse effects following a vaccination are actually caused by the vaccine andwhich are not. As argued by Barbara Loe Fisher, “the vacuum of scientificknowledge then and now demands that a no-fault vaccine injury compensation
system must err on the side of presumption in the absence of a biologicallydemonstrated alternative cause.”348
In its only hearing of a vaccine injury case, the Supreme Court increased the
difficulty of proving a table injury by requiring that a claimant who establishes
an injury during the table period must also show “that no evidence of the injury
appeared before the vaccination.”349 Such stringent standard of proof requirements violate Congress’s intention that injured vaccinees receive compensation
where scientific knowledge of the cause of the injury is uncertain. As mentioned
above, Congress explicitly noted that a few children may be compensated who
were not, in fact, injured by a vaccine.350 The Vaccine Trust Fund is not
346 Testimony of Mica.
347 Id. See also Testimiony of Kinsbourne.
348 Testimony of Fisher.
349 Shalala v. Whitecotton, 514 U.S. 268 (1995).
350 H. Rep., 99-908, at 18, reprinted in 1986 U.S.C.C.A.N., at 6359.

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strapped for cash. It presently holds $1.4 billion dollars for the sole purposeof compensating injured vaccinees. Why not give the “benefit of the doubt” tovaccine-injured children, as the federal government does for veterans and law
enforcement officials?351 The original Vaccine Injury Table was intended to be
inclusive, not exclusive.
A return to a strong presumption in favor of the injured vaccinee will not only
be fair to those children who suffer injuries because of mandatory universal
vaccination, but will also help to alleviate the extreme length and adversarial
nature of the NVICP because protracted battles over causation will occur lessfrequently.

C.
Eradicating the Tension Between the Two Goals of the NVICP.

A tension exists between the two goals of protecting the vaccine supply andcompensating those injured by vaccines. Because the NVICP rejects the petitions of so many claimants, there are a large number of individuals available
to sue vaccine manufacturers. Any restrictions on petitioner’s eligibility forcompensation, such as the tightening of the Vaccine Injury Table, “augments
the overall risk of civil action” against vaccine manufacturers and once again
threatens the stability of the vaccine supply.352 For this reason, as well as thosementioned above, the NVICP must utilize a presumption of causation that gives
351 Testimony of Mica.
352 Ridgway, supra note 229, at 81-82.

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petitioners the benefit of the doubt. In this way, fewer petitioners will be denied
compensation and fewer plaintiffs will exist to sue vaccine manufacturers.

D.
Eradicating the Tension Between the NVICP and the Safety Goal of the Vaccine Act.

In the third subpart of the Vaccine Act, Congress describes the necessary procedures for assuring safer childhood vaccines. Such procedures include recording
and reporting of information on adverse events,353 distributing vaccine information materials to health care providers,354 and mandating safer childhood
vaccines.355 This safety goal conflicts with the HHS Secretary’s addition of new
vaccines to the Vaccine Injury Table with one or no injuries presumed to becaused by that vaccine.356 This practice of adding a vaccine without presumed
injuries completely shields manufacturers from liability, while compensating few
or no individuals harmed by the new vaccine. Little scientific evidence establishes causation for vaccines that have been around for decades; and almost no
scientific proof of causation exists for new vaccines. Thus, with no presumptionof causation provided in the Vaccine Injury Table, petitioners will find it very
difficult to recover for their injuries. Plus, vaccine manufacturers will not be
penalized for unsafe vaccines because of the restricted liability attached to vaccine manufacturers following the NVICP proceeding. With the scant scientific353 42 U.S.C. 300aa-25.
354 42 U.S.C. 300aa-26.
355 42 U.S.C. 300aa-27.
356 42 U.S.C. 300aa-14. Only the injury of anaphylaxis is specified for Hepatitis B, and only
early-onset Hib disease is specified for Hemophilus influenzae type B. No injury is presumed
to be caused by varicella (chicken pox).

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information known about the adverse effects of new vaccines, the Vaccine Table
must either provide a very broad presumption of causation or not list these new
vaccines.
The addition of the Hepatitis B vaccine to the Vaccine Injury Table illustrates
this point. Hepatitis B was added to the Table on August 6, 1997 with only one
compensable injury—anaphylaxis.357 However, medical reports and VAERS
show that the Hepatitis B vaccine causes autoimmune diseases.358 Thus, every
petitioner with an autoimmune disease allegedly caused by Hepatitis B must
prove by a preponderance of the evidence that the Hepatitis B vaccine caused
the injury, even though persuasive medical evidence may be lacking. Either
autoimmune diseases must be included in the Table as a presumed injury of
the Hepatitis B vaccine, or the Hepatitis B vaccine should not be listed on the
Table and those injured by this vaccine should be able to sue the Hepatitis B
manufacturer under all possible theories of civil liability. Thus, the safety of thevaccine supply will be ensured and injured vaccines will be compensated.

357 42 U.S.C. 300aa-14.
358 Testimony of Fisher; Testimony of Kinsbourne.

74Conclusion

With its establishment in 1986, the National Vaccine Injury Compensation
Program solved the problems of vaccine shortages and costly litigation against
vaccine manufacturers. The NVICP has also provided compensation to many
children and adults injured and killed by vaccines. This Program, however, requires reforms in order to alleviate the length of the proceedings, the adversarial
nature of the proceedings, and the loss of the broad presumption of causation
provided in the original Vaccine Injury Table. With such reforms, the NVICP
will provide the fast and generous compensation envisioned by the Congressthat enacted the National Childhood Vaccine Injury Act.
Indeed, the NVICP provides a unique means of resolving the claims of vaccine
injury and death. By forcing the federal government to accept responsibility
for liability, the NVICP both protects the manufacturer and provides compensation to the injured consumer. Could the structure of the NVICP be used asa model for other types of tort cases?359 Would the informal proceedings, thefront-end loading, and the use of specialized decision-makers rather than juries
in the NVICP actually work when applied to other types of claims?360 Vaccines
are very different than other consumer products in that they are mandated by
the government and they benefit the whole of society.361 However, suggestions
have been made that the NVICP model, or parts thereof, be used to resolve
359 Johnson, Drew and Miletich, supra note 114, at 53.
360 Id.
361 Id.; See also Ridgeway, supra note 229, at 83.

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product liability and mass tort cases, such as breast implants, toxic shock, asbestos, Agent Orange and other toxic substance exposures.362
The NVICP offers one means of altering a tort system that many believe is outof control, and the NVICP compensates those individuals who suffer because of
the universal vaccination policy of the United States. Thus, because the NVICP
may serve as the prototype for other compensation systems, and because the
NVICP provides such a necessary service to the citizens of the United States,
efforts should be made to remedy the defects of the NVICP and to perfect those
aspects of the NVICP which work well.

362 Id. at 50; Ridgeway, supra note 229, at 84-86.

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