From: National Law Journal - Jenna Greene, The National Law Journal
In fiscal year 2014, the special court in Washington, D.C., ordered $202M be paid to 365
October 13, 2014
Until he was 4 months old, Braden Lerwick was a normal, healthy baby. But in the days and
weeks after he got a routine vaccination, he began crying inconsolably, grew unresponsive and
suffered seizures. Now age 10, he is profoundly handicapped, unable to speak or feed himself.
The likely cause: the diphtheria-tetanus-acellular pertussis, or DTaP, vaccine.
This is not a horror story from an antivaccination group. It is a finding of fact by a special master
at an obscure federal court that decides when vaccines have injured or killed people and
awards them compensation. In Braden’s case, it will be millions of dollars for a lifetime of
As the antivaccination movement grows—and with it, outbreaks of diseases such as whooping
cough, mumps and measles—the eight special masters at the so-called vaccine court within the
U.S. Court of Federal Claims are under increasing pressure. What was intended to be a quick
and easy program for awarding compensation when it was created 28 years ago has become
markedly adversarial, with dueling medical experts offering complex theories about injuries
caused by vaccines.
To some, the court is a failure, an experiment in no-fault tort reform gone awry. “I’m so
disappointed in it,” said Michael Hugo, senior litigation counsel to Khorrami Boucher’s Boston
office. In 1986, he lobbied alongside pharmaceutical companies to pass the National Childhood
Vaccine Injury Act, which created the vaccine compensation program. Now, he said, “it makes
me sick to try to do these cases because I’ve seen how bad it has become.”
The fight these days isn’t about autism, at least not much. In 2010, the U.S. Court of Appeals
for the Federal Circuit upheld two decisions by special masters rejecting a causal connection
between vaccines and autism. Since then, 4,926 of 5,637 autism cases have been dismissed
by the vaccine court, according David Bowman, a spokesman for the Health Resources and
Services Administration. The court “has not compensated any cases based upon autism alone
in the absence of sudden serious brain illness after vaccination,” he wrote in an email.
But hundreds of cases alleging other injuries fill the docket. In fiscal year 2014, which ended on
Sept. 30, the court’s special masters handed out $202 million to 365 vaccine injury victims, plus
another $21 million in attorney fees, most of it for cases brought by people who had bad
reactions to flu shots. In many instances, they developed Guillain-Barré Syndrome, in which the
immune system damages nerve cells, causing muscle weakness and sometimes paralysis.
Still, plaintiffs lawyers acknowledge that vaccines are rarely dangerous. “I always say to
everyone the risk is infinitesimal. If you give a million of anything to anyone, someone will have
an adverse reaction,” said Peter Meyers, who directs the Vaccine Injury Clinic at George
Washington University Law School.
For example, since 2006 the fund has paid 831 claims stemming from the flu vaccine, “far more
than for any other vaccination,” Bowman said. “This isn’t surprising though.” That’s because
during that same period, 944 million people got flu shots.
Neither do lawyers in the small bar that practices before the court come across as antivaccine.
Many said they’ve vaccinated their own children, or would do so if they had them. “People
should get vaccines,” said Renee Gentry, president of the Vaccine Injured Petitioners Bar
Association. “But [vaccines] should be as safe as possible.”
For the court, the key point of contention is what proof is necessary to show that a vaccine
caused a person’s injury.
It wasn’t supposed to be difficult. The National Vaccine Injury Compensation Program was
originally created as a bailout for pharmaceutical companies, which during the 1980s were
being hammered in court by juries sympathetic to brain-damaged children, even if the vaccine
makers had properly produced the product. By the end of 1984, only one company was still
making the diphtheria-tetanus-pertussis vaccine and shortages loomed.
Congress responded with legislation that made it practically impossible to sue drug companies
over adverse vaccine reactions. The 1986 vaccine act mandated that all cases must be first
brought in the newly created forum, a component of the U.S. Court of Federal Claims, whose
judges review the special masters’ decisions. The secretary of the U.S. Department of Health
and Human Services, represented by the Department of Justice, serves as the defendant and a
75 cents-per-vaccine tax covers the payouts. Today, the trust fund has a surplus of about $3.5
There are no punitive damages, and awards for pain and suffering or death are capped at
$250,000, unchanged since the legislation was passed. However, awards covering lifetime
medical care and lost wages can easily top $10 million.
“Since the vaccine program’s inception, nearly $3 billion has been awarded by special masters
to petitioners,” Lisa Reyes, chief deputy clerk of the Court of Federal Claims, wrote in an email.
“In contrast and as expressed by a former president of the Vaccine Injured Petitioners Bar
Association, most vaccine program petitioners are unlikely to have received any compensation
through the traditional civil court system.”
VIPBA’s Gentry, a partner at Shoemaker, Gentry & Knickelbein, said it’s not so simple. “Under
the current state of the law, individuals injured by covered vaccines have little or no chance of
success in the civil arena, nor do they even have access to it unless they go through this
program first and lose or, rarer still, win and reject their award,” she said. In almost all circumstances, the plaintiffs’ legal costs are directly paid by the trust fund regardless of whether the claim succeeds or fails. The court recently approved rates of $275 to $413 per hour for Washington, D.C., lawyers, though bills are subject to intense scrutiny.
More important, Congress created a table of injuries associated with vaccines. To win money, plaintiffs simply had to show they were administered the vaccine and experienced a recognized
adverse reaction within the relevant time, for example, developing chronic arthritis within seven
to 42 days after getting a vaccine containing the rubella virus.
“The table was designed by Congress to resolve close calls of vaccine causation in favor of
petitioners. It was based on existing science at the time and, if there was a doubt, the table
decided the causation issue in the petitioner’s favor,” said Gary Golkiewicz, who served as chief
special master of the court from the day it opened its doors in 1988 until 2010, retiring in 2012.
“The table worked as Congress intended.”
In the beginning, 90 percent of the cases involved table injuries. Hearings lasted a few hours
and there was little need for expert witnesses. But in 1995, the HHS revised the table,
eliminating some injuries and narrowing others. Furthermore, while nine new vaccines such as
human papillomavirus have been added to the table over the years, no corresponding injuries
(other than immediate anaphylactic shock) accompany any of the listings. However, lawyers
say Guillain-Barré Syndrome is likely to be added soon for the flu vaccine.
MORE PROOF NEEDED
Today, 98 percent of the cases do not involve table injuries, according to Reyes of the Court of
Federal Claims. As a result, the cases are significantly more challenging, requiring plaintiffs
lawyers to prove by a preponderance of evidence that the vaccine caused the person’s injury.
Experts in areas such as genetics and neurology, in which considerable scientific uncertainty
remains, are essential to winning cases.
“It was supposed to be a friendly, fast alternative program that didn’t require the protections
plaintiffs would have in civil litigation,” such as discovery or trial by jury, Gentry said. “It’s the
Nonetheless, most people who bring claims get some money. Between May and August 2014,
for example, 104 of 152 petitioners got an award through a settlement or a decision on the
merits, according to the most recent Justice Department statistics.
Danielle Strait, a vaccine injury attorney at Maglio Christopher & Toale who spent three years
working at the court as a clerk, said that “a lot of the claims settle for peanuts,” with amounts
ranging from several thousands to $30,000. “It misses the mark at being a kinder, gentler
program than civil litigation,” she said.