The National Vaccine Compensation Injury Act:
A Compromise – not an
Injustice
Or: Why the Latest Video from the Canary Party is Misleading
By Dorit Reiss
In 1986, Congress passed the
National Vaccine Injury Compensation Act (NVICA) creating the National Vaccine Injury Compensation Program (NVICP). The program attempted to address two
problems: the government’s fears that vaccine manufacturers will leave the
market due to lawsuits, leaving children and adults vulnerable to preventable
diseases and plaintiffs’ desires for a simpler, cheaper, more certain process
for compensation. It was a compromise with something for everyone, created with
input from, among others, the
National Vaccine Information Center, an organization that criticizes vaccine
safety and emphasizes vaccine risks.
However, in a new
video narrated by actor Rob Schneider, the Canary Party claims that the only
reason there is doubt about the link between vaccines and autism is because the
NVICA created a system that discriminates against plaintiffs and works
completely in favor of pharmaceutical companies, and that it is run by a
corrupt government.
The video is wrong
pretty much from start to finish. This blog post will address three of its problems:
the claim that NVICA is the only thing hiding the link between vaccines and
autism; the inaccurate, incomplete depiction of NVICP; and why the claim that
using the regular courts instead will benefit plaintiffs is wrong.
No Credible Evidence Supports a Link Between Vaccine and Autism
The Canary Party’s video purports
to tell the story of a child named Eric who suffers from “vaccine-induced
autism” – but there is no credible evidence that there is such a thing as “vaccine-induced
autism.” The Canary Party video offers three pieces of evidence on this, none
of which really support the claim. First, it says that as more vaccines were
added to the recommended immunization schedule, autism rates “skyrocketed.” The
video does not explain why this temporal correlation alone shows causation, or
why it is a more convincing correlation than, say, increase in internet usage and raising rates of autism.
It also ignores
the evidence suggesting that the increase is because of the change of diagnosis
and of detection, not necessarily in incidence.
To back this up, the video refers to “dozens” of studies, and the link attached
to it refers to a list of studies compiled by Ginger Taylor, the Canary Party’s
Vice President.
However, that list does not support the claim either: the studies are either
seriously flawed, have nothing to do with vaccines, or otherwise do not support
the claim, as detailed in posts by blogger Liz Ditz,
who thoroughly debunked them.
In contrast,
numerous serious studies, some very large scale, have examined whether there is
a link between vaccines and autism. No credible study found one. (Here is a partial list.)
Third, the video
claims that NVICP compensated cases where a child had autism. But the NVICP
never compensated a case on the theory that vaccines caused a child’s autism.
Never. In fact, such a claim was soundly rejected by the program in the Omnibus Proceedings.
Bailey Banks, whom the video mentioned, was not compensated on a theory that
vaccines caused his autism but because vaccines may have caused another problem.
The video also refers to a study by Holland, et al, which found 83 children
compensated by the program who also had autism, but none of these children was
compensated because vaccines caused their autism – they were compensated for
other things (e.g. encephalitis). And, in fact, the rate of autism in the
population of children with severe vaccine reactions (“vaccine injury”) is actually lower than the rate of autism in the general population.
NVICP Offers Advantages both to Manufacturers and Plaintiffs
The video suggests that NVICA was
passed in 1986 as a result of pharmaceutical lobbying with the sole goal of
shielding manufacturers from liability, and that it does shield manufacturers from
liability. That claim is incomplete. The Act was passed to prevent companies
from leaving the vaccine business, because they were leaving, leading to
vaccine shortages, putting children and adults at risk. But that was not the
only reason. Plaintiffs were also
complaining about the adversarial, prolonged court process and the act looked
to simplify that process. In Bruesewitz v.
Wyeth, the Supreme Court explains the quid pro quo involved – somewhat
similar to the compromise represented in workers’ compensation
schemes: in exchange for
shielding manufacturers from liability for some kind of claims – design defects,
for example – the plaintiffs received substantial benefits: no show of fault is
required, and plaintiff does not need to show the product was “defective”
(which they would have to do in a design defect claim). The plaintiff does not
have to show causation when claiming one of the injuries listed in the “Vaccine Injury Table."
The process is
simplified. Attorney fees are provided for any claim that is not frivolous –
including losing claims (the video claims attorney fees are slashed and delayed
to “punish” claimants, but brings no evidence to that effect; in fact, the program paid out over 150 million dollars in attorney fees.
In return for the substantial
benefits given plaintiffs, manufacturers are shielded from liability for design
defects; but they are not invulnerable: they can still be sued for
manufacturing defects or warning defects. This is substantial: the worst vaccine-related disaster in modern history, the Cutter Incident, was
the result of a manufacturing defect, not a design defect: a vaccine designed
to include an inactivated – dead – virus actually included a live poliovirus,
permanently paralyzing 200 children and killing ten. That case could still be
brought in the regular courts today.
In short,
presenting the program as tilting the law in Big Pharma’s favor is wrong. It
does protect manufacturers from some kinds of liability; but it offers
plaintiffs substantial benefits. The program is also subject to judicial
review: decisions can be appealed to the federal judiciary if a plaintiff does
not agree with the result.
NVICP Offers Plaintiffs Real Advantages over Regular Courts
The Canary Party's video tries to portray the
program as unfairly barring plaintiffs from the much better--as it suggests—
judicial process. The video portrays an idealized, inaccurate process of civil
court litigation proceedings: some of the problems it points out in the NVICP
process will be found in civil litigation too – and that process will include
other costs and disadvantages to plaintiffs.
Comparison of NVICP and Civil Litigation
One advantage the video suggests a
civil suit will have over the NVICP program is that plaintiffs will have their
own “private lawyer,” (although the lawyers representing the plaintiffs are,
like the lawyer in a civil suit, retained by the plaintiffs and are, in fact,
“private lawyers” too) who will not have to rely on being paid from the
program’s funds. But will that benefit plaintiffs? The video suggests that
payment through the program fund hampers getting representation. But the usual
arrangement in civil litigation for tort suits would be a contingency fee. Why
would lawyers be more willing to take vaccine injury cases when they only get
paid if they win than in a system that pays them even if they lose? And if a
plaintiff won, under the usual contingency fee regime, the lawyer would be
getting 30-50% of the award. Under NVICP, the plaintiff gets the entire award.
The video laments the lack of a
discovery process with the potential to find incriminating documents. Putting
aside the fact that discovery can be very costly for the plaintiff, the program
does not disadvantage plaintiffs on this count: since plaintiffs do not need to
show fault, they do not need incriminating documents.
The video suggests a special master
is not objective. But the special master is a lawyer appointed by the Judges of the United States Court of Federal Claims,
a federal court whose judges have life tenure.
There is no reason to think the special master is any less objective than a
federal judge. The video then
goes on to suggest that the lack of legal precedent is an issue for the court.
The court has issued inconsistent verdicts in the past; but then, civil courts
in the United States are not necessarily consistent either. Juries have been
known to reach differing verdicts on similar facts.
Courts in states across the U.S. reach differing results on matters of law.
There is no guarantee that a civil court will be consistent. Precedent only
applies within a given jurisdiction’s hierarchy, not across juries, and it does
not bind other jurisdictions, or even the highest court of the jurisdiction in
question. A move to the civil courts may reduce consistency in results rather
than increase it.
Challenges
of Civil Litigation
Winning a product liability suit is
not easy. A comparative view may be
instructive: as early as 1953, the German Federal Supreme Court, the
Bundesgerichtshof, of February 19, 1953 (BGHZ 9, 83), awarded no-fault
compensation to someone injured by a vaccine, because showing fault – as was
required for civil litigation – is very hard. A World Health Organization
report found 19 countries that adopted no-fault schemes for vaccine injuries –
and in several countries where this was left to the regular courts, “significant public
pressure” calls for similar no-fault schemes. It is simply hard to win such a
case in civil courts.
To win, plaintiffs would
have to show a vaccine’s design was defective, using one of the existing tests;
unlike manufacturing defects, design defects are handled under negligence principles, not strict liability. If the “unavoidably unsafe” category
is actually applied to vaccines (the Supreme Court – contrary to what the video
says – rejected its application to NVICA in Bruesewitz v. Wyeth, the plaintiff will have to show the manufacturer was actually negligent indesigning the vaccine, not an easy
thing to show (although the Idaho court took a different approach to this).
There would be no table injuries, so
plaintiffs would have to show causation in every case, using expert testimony.
Given the abundant amount of current studies against the claim that vaccines
cause autism, and the lack of credible studies supporting it, the plaintiff is
unlikely to be able to do that.
According to the
latest data I found, product liability claims focusing on asbestos win 53% of
times, but other product liability claims win 19.6% - and that includes
manufacturing defects, subject to strict liability. The chances are high, given the
causation challenges, that claims like the hypothetical Eric’s would do much
worse, losing the vast majority of the time.
So, exchanging a civil process for NVICP would be probably make it
harder for most plaintiffs to win, would not provide plaintiffs additional
process guarantees, and be unlikely to make it easier for them to find a lawyer—and
all that at the cost of potentially driving vaccine manufacturers out of the
market when some cases – probably not related to autism – do win.
It’s a great idea, however, if you want to
undermine vaccination and bring back vaccine-preventable diseases. It would
work great for the one in a million plaintiffs or less who will win and maybe –
just maybe - get a larger award than she would in the vaccine court (though even
then she would have to split it with her lawyer); but it would not help and may
well harm the majority of plaintiffs, and it would not help public health.
For the most part it’s a bad idea all around, based on faulty
premises.
Dorit
Reiss is a professor of law at University of California. She has published
writings on administrative law, and recently wrote "Compensating the
Victims of Failure to Vaccinate: What are the Options?" Dorit is a member
of Voices for Vaccines' Parent Advisory Board.
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