On Nov. 7, a Congressional briefing was held by the Canary Party, an anti-vaccine Political Action Committee, to attack the National Vaccine Injury Compensation Program (NVICP), the U.S. program that compensates vaccine injuries. The briefing was billed as part of the run-up to a hearing that will supposedly be held by the Committee on Oversight and Government Reform, although the hearing is not yet on the committee's calendar.
This article is reprinted with permission from the November 22, 2013 edition of The Recorder.
by Dorit Reiss
Mary Holland, speaking for the Canary Party, criticized the NVICP for being too adversarial and not providing plaintiffs—especially those whose children have autism—with proper compensation. She rejected the solution of reforming the program—what she called "tinkering at the edges"—and instead suggested completely abolishing or seriously curtailing it.
Holland's recommendation is misguided: while there may be room for improving the program, NVICP offers plaintiffs with supportable claims a less adversarial forum for compensation. It appropriately dismisses claims of plaintiffs who cannot demonstrate causation. While losing plaintiffs are understandably distressed about losing, their emotional response is no reason to dismantle a functional program. And dismantling the program will harm our society and children by potentially creating vaccine shortages and putting our children at risk of vaccine preventable diseases.
In the 1980s, the number of suits against vaccine manufacturers increased. Vaccine manufacturers were leaving the market, leading to vaccine shortages and the predictable disease outbreaks. At the same time, plaintiffs were dissatisfied with the existing litigation process. To address both problems—vaccine shortages and plaintiffs' need for swift, sure compensation—Congress enacted the National Childhood Vaccine Injury Act of 1986. The act created an administrative compensation program by which plaintiffs' claims were adjudicated by a Special Master in the Court of Federal Claims, with appeals first to a judge of the court, and then to the appropriate Federal Circuit.
Since 1989, the NVICP has decided 13,125 cases out of 14,924, compensating 3,447 for an overall rate of 26 percent cases compensated. Some vaccines, like rotavirus and Hepatitis B, are compensated at a rate of over 50 percent, while others, like the Inactivated Polio Virus Vaccine (IPV), have a very low rate of compensation. The program is financed by an excise tax on vaccines. It pays attorneys' fees for both winning and losing plaintiffs. Since 1989, over $2.7 billion in compensation and $150 million in attorney fees have been paid out.
In 2011, in Bruesewitz v. Wyeth, the Supreme Court interpreted the National Childhood Vaccine Injury Compensation Act to preempt design defect suits. Plaintiffs who are claiming a design defect can no longer reject NVICP's decision and sue in state courts: NVICP is their only forum for compensation.
Compared to the Courts
If the concern of those requesting a hearing is that the process is adversarial, abolishing NVICP and going back to the courts is the wrong solution. If the goal is to make the process less adversarial and more plaintiff-friendly, it may be appropriate to reform NVICP. But while many good things can be said about the United States civil courts—a source of new and exciting legal doctrines, a venue open to new claims—non-adversarial is not an adjective usually applied to them. I have described in detail elsewhere why plaintiffs with credible claims are probably better off in NVICP than in the regular courts, but will remind readers of some of the highlights.
Unlike regular courts, NVICP is a no-fault system: plaintiffs do not have to prove a design defect (or another type of defect, but these are usually design defect claims) to win their case. If they have a suffered what is called a "Table Injury," a condition acknowledged to be caused by the vaccine, causation is presumed and compensation is all but automatic. Rules of evidence are relaxed. It is a system designed to be more favorable to plaintiffs than the regular courts. It is doubtful that plaintiffs—especially those who lose—can appreciate the difference without extensive experience with the legal process, but it is certainly a system designed to provide plaintiffs with numerous advantages.
Inability to show Causation
Why, then, the Canary Party's demand to dismantle the NVICP? The answer is that the Canary Party and their allies believe their children's autism (and other ills) was caused by vaccination. In making the autism claim, they run into general causation problems and problems in specific cases.
The claim that vaccines cause autism has been examined in numerous large-scale studies focusing on various hypotheses (the studies are listed here and here). The first problem plaintiffs making the "autism as vaccine injury" claim face is that the science to support a causal connection is just not there.
Further, the NVICP has already addressed the "autism as vaccine injury" claim. Prior to 1996, there were no claims to the NVICP for autism as a vaccine injury. A combination of news reports, attorney marketing, and online parents' email lists began to advance the idea that autism is caused by vaccines, and the NVICP began to receive a flood of claims, most represented by a few law firms. In 2002, to manage the flood, the NVICP established a Petitioners' Steering Committee, composed of lawyers representing plaintiffs' families. The Petitioners' Steering Committee selected their six strongest test cases. The hearing for the six claims together was called the Omnibus Autism Proceeding.
Over several years, NVICP conducted hearings. Then, in a series of detailed, thoughtful decisions it rejected all six cases. The Special Masters carefully examined plaintiffs' evidence. They rejected each case because the evidence was "overwhelmingly contrary to the petitioners' causation theories."
It's easy to sympathize with the pain of a plaintiff who sincerely believes vaccines caused a child's disability, and with the plight of a parent with a disabled child. But anger at losing in the forum provided does not mean that forum was unjust, and does not entitle plaintiffs who cannot show causation to have another try in the civil courts, hoping they will be lucky enough to fall on a judge who misunderstands the science.
Cost to Society
Before NVICP, vaccine manufacturers were leaving the market. Within a few years, the U.S. went from 18 companies manufacturing vaccines in the 1980s to today's five. The concern about vaccine shortages is not theoretical. It has a historical basis.
Those opposing vaccines may not see that as a problem, but—as evidenced by the high vaccination rates in our society—most parents would rather not have their children left vulnerable to diseases like diphtheria, polio, HiB, measles, and the other diseases we currently have the means of preventing. Rise in exemption rates already led to higher levels of measles than the United States has seen in years, and while the whooping cough outbreak is to a large extent due to a vaccine that is not as effective as scientists expected, communities with high rates of unvaccinated individuals are more at risk of outbreaks and contribute to the problem.
Dismantling NVICP would not only be bad for plaintiffs with actual provable cases, it would be bad for the rest of us. We should oppose it.
Dorit Reiss is a professor of law at UC Hastings where she teaches public law, public administration, and law and politics.
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