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The Obscure Federal Court: National Vaccine Injury Compensation Program

Lady justiceBy Louis Conte and Wayne Rohde

National Law Review published an article on the National Vaccine Injury Compensation Program (NVICP) on 10/13/14. The author, Jenna Greene, did a thorough job of interviewing people who have worked in the program and reported on concerns that many people concerned about vaccine injury have been pointing out for years.

We recommend that people read the full article here: 

The article noted how contentious the program has become. Many of the comments in the article are remarkable. Here is a sampling:

"I'm so disappointed in it," said Michael Hugo, senior litigation counsel to Khorrami Boucher's Boston office…it makes me sick to try to do these cases because I've seen how bad it has become."

It wasn't supposed to be difficult. The National Vaccine Injury Compensation Program was originally created as a bail-out 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.

"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 complete opposite."

Once again, HRSA’s David Bowman comments about autism cases:

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.

These would be cases that read like this one Bailey Banks v. HHS (02-0738V):

“The Court found that Bailey's ADEM was both caused-in-fact and proximately caused by his vaccination. It is well-understood that the vaccination at issue can cause ADEM, and the Court found, based upon a full reading and hearing of the pertinent facts in this case, that it did actually cause the ADEM. Furthermore, Bailey's ADEM was severe enough to cause lasting, residual damage, and retarded his developmental progress, which fits under the generalized heading of Pervasive Developmental Delay, or PDD [an autism spectrum disorder]. The Court found that Bailey would not have suffered this delay but for the administration of the MMR vaccine, and that this chain of causation was... a proximate sequence of cause and effect leading inexorably from vaccination to Pervasive Developmental Delay.”

Once again, the federal government concedes that vaccine injury that results in brain damage can also include autism.

The Vaccine Court bookBut vaccines don’t cause autism, so we are told. The Autism War_revised cover

Will Congress ever hold hearings on the NVICP and call people like Bowman in to ask a simple questions like “Would these children have autism if they didn’t suffer vaccine injuries?”

Or, will Congress continue to cave into the pharmaceutical industry lobbying?

Louis Conte & Wayne Rohde

The Autism War  available at Barnes & Noble and Amazon.

The Vaccine Court  pre-order at Barnes & Noble and Amazon.

 

Comments

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katie

Do you have a copy of the article you can publish? It isn't accessible.

Beth

Three year statute is a joke! All those years I wondered if my son's MMR caused his debilitating gastro-related issues, beginning almost immediately after his pre-kindergarten round of shots. Media constantly peddled headlines "vaccines are safe" bs. Impossible to find data back in 1992. Now pharma-wh*r@s admit vaccines have caused gastro-related illness. My son has no compensation for a stolen childhood.

Richard Williams Obanion

I have personally suffered through a reaction that had 3 parts,
1 ) I was given a Flu shot, pneumonia shot after receiving one the previous year within 2 to 3 days of each other while under maintenance therapy for hepatitis C which included interferon and ribavirin with the status of the hepatitis being undetectable.
This was the second attempt to eradicate the hepatitis C after waiting a full year and later finding out that I was shorted medicine due to my weight. In less than a week my hepatitis count went from negative to positive with a 2 million count with the day after the pneumonia shot being my last day of work, I have never worked again.
I live in extreme pain and ADD but I’m an adult and the respondent attempting to confuse the situation was able to deny me benefits due to the fact that the HMO did not want to admit that the flu shot triggered my symptoms which is black labeled never to be given along with immune suppressing therapies, in which hepatitis C is one of the most immune suppressing therapies you could go through. I found out about the government site that tracks the symptoms and it read like my medical records that have been tampered with by purging incriminating documentation. I was given time off slips for a year and a half while under the care of the same HMO with the first two weeks of slips showing no reason and the first reason there after was that I was not able to multitask omitting the pain that I was going through and the inability to walk any distance. Full documentation of my symptoms and their progression were written up later by the same HMO but because of the timing being a reviewed years later they would not be considered even though I was finishing arbitration with the HMO as my case with the federal vaccine program began his process. My records were held back, this violated my HIPA rights and most records were obtained immediately after a prestigious law firm decided to drop my case in the middle of the proceedings now seeking to be paid for what they told me they could not obtain, which were the records in which I was blamed for not obtaining when they had the power to force the HMO to hand over my entire medical record.
It was my insurance company they gave me the documents they connected the dots and reporting the incident myself to the CDC and the doctors response yet even though I had proved the connection to or three different ways I received a one sentence denial after seven years of litigation representing myself for the most part and being denied representation by any new attorney because of how famous the firm that drop me was. Built on that reputation alone no other attorney would take my case in the place of those that were lazy and verbally abusive and now are seeking money from the court or myself as it is hard to understand why they would be seeking money at all when the case went on three times further than their participation. All players in the court were changed throughout the process and the concern withered with these changes. I do not recommend this course as I believe it is kangaroo court. To allow my attorneys did just dropped my case in the middle after receiving almost my entire file to my insurance company was not only heartbreaking but I pushed on only to receive a one line denial due to the HMO waiting to disclose what they had done. I had been virtually cured from hepatitis C and started feeling symptoms of the flu shot the next day which grew to being paralyzed every morning for months with the HMO trying to treat every symptom individually when they had me on so many medications that the side effects in the eyes of the court could not be separated yet Rocha supplied me with free medicine eradicating the hepatitis C several years later without complications added, but this was not enough proof for the court. Being disabled immediately after the flu shot was not enough for the court. Being given a pneumonia shot 10 years early was not enough. Being given all this after eradicating hepatitis which was unnecessary and extremely large blunder on their part yet this was not enough. What is?

Jeannette Bishop

Birgit,

I'm asking similar questions. I haven't been through the program, but everything I hear about it and how it treats even those who "win" gives me the suspicion the money is being used elsewhere (this combined with some things I'm hearing about non-transparent funding transfer mechanisms in our government that admittedly go well over my head).

Something to that effect may explain why families are treated like pariah if awarded "compensation" (which does nothing to help the image of the program nor inspire vaccine confidence) and then warned that speaking out might result in loss of such "compensation," and might also explain some of the incentive to aim for high vaccine coverage and seemingly no reticence against expansion of the "recommended" schedule under which each vaccine dose is taxed.

Though the liability protection and desire to keep up an exaggerated image of vaccine benefits & safety may account for just about all of it, but not the rudeness ...

Jim Moody

Several points in response to earlier comments. First, Congress authorized the special masters to “replace” the usual rules of civil discovery. They have the power to order discovery, they just never do, a good example being not allowing access to CDC’s VSD in the OAP. Second, because of all the medical information, Congress required confidentiality. Even if petitioners want transparency HHS can block it, and has always done so to hide the “true” reasons for compensation, for example the Zimmerman report in the Poling case. Third, the evidentiary standard set by Congress is actually quite low. But in off-table causation cases, it is very hard to meet, absent a very short interval of time between the vaccine and the injury, because there is no baseline data [or CDC still hides it in VSD] on unvaccinated children. Normally liability in so-called “toxic tort” cases requires a relative risk greater than 2.0. The original Verstraeten findings of a 7.62x risk based on Hg exposure and the 2.49x relative risk for early MMR found by the DeStefano team [per CDC whistleblower Thompson] were concealed by CDC, yet would have been sufficient for liability. Not only did CDC suppress these key results, it funded a bogus pile of epidemiology, much of which is now discredited, to exonerate vaccines of any causal relation to autism. CDC and Insel have blocked every proposal to do a vax vs. unvax study. Compensation for the autism cases, potentially well exceeding $1 trillion will not happen until there is “beyond reproach” epidemiology confirming this excess risk. But even the “big money” in the community, Autism Speaks, refuses to fund such an essential study, and it an expensive one. Conspiracy theories abound.

Congress wanted to resolve doubts in favor of petitioners and directed that the Secretary conduct research, i.e. the vax/unvax study to fill in gaps in the science. The legislative history explained: “The Committee recognizes that there is public debate over the incidence of illnesses that coincidentally occur within a short time of vaccination. The Committee further recognizes that the deeming of vaccine-relatedness adopted here may provide compensation to some children whose illness is not, in fact, vaccine-related. The Committee anticipates that the research on vaccine injury and vaccine safety now ongoing and mandated by this legislation will soon provide more definitive information about the incidence of vaccine injury and that, when such information is available, the Secretary or the Advisory Commission on Childhood Vaccines (discussed below in Section 2119) may propose to revise the Table, as provided below in Section 2114. Until such time, however, the Committee has chosen to provide compensation to all persons whose injuries meet the requirements of the petition and the Table and whose injuries cannot be demonstrated to be caused by other factors.” HHS continues to ignore both the required research and insists on an impossibly high standard of proof, arguing that “children will die” if compensation is awarded that undermines public confidence in vaccine safety.

Finally, Congress intended Vaccine Court as an quick family-friendly addition to civil litigation, not as a substitute, and that normal civil litigation remained completely available [but for the three-year statute of limitations trap] to those who were unsatisfied with their win or loss in vaccine court. Obama joined Wyeth in seeking much broader immunity than originally granted by Congress. You’d expect the political left to side with a child injured, even unintentionally by Big Pharma, letting the costs of “unavoidably unsafe” vaccines to be “socialized” through insurance [civil litigation] or the taxpayers [NVICP]. Did Obama need Pharma support for Obamacare? Or, was it the leftist meme that the “greater good” trumps individual rights? The arrogance of Obama’s argument to the Court was stunning: “Guaranteeing that a vaccine is potent enough to ensure that a disease is contained or eradicated in this way entails trade-offs between safety and potency. . . . The tort system—in which juries may pay little heed to this calculus, see ibid.—is poorly equipped to encourage such optimally safe and potent vaccines. That is why Congress recognized through the Act that expert regulators, in conjunction with the medical community, should control the availability and withdrawal of a given vaccine. . . . Studies on new versions of existing vaccines are all the more difficult because medical ethics and study design considerations generally preclude testing the new vaccine on a population that has enjoyed access to the proven old vaccine.”

Congress mandated quite a different policy in the Vaccine Act, saying in the legislative history: “The Federal government has the responsibility to ensure that all children in need of immunization have access to them and to ensure that all children who are injured by vaccines have access to sufficient compensation for their injuries.” Above all else, Congress was crystal clear in preserving the traditional access to tort litigation if Vaccine Court was not fulfilling its intended purpose of adequately compensating the vaccine-injured: “The bill establishes a compensation system for those persons injured by routine pediatric vaccines. The system is intended to be expeditious and fair. It is also intended to compensate persons with recognized vaccine injuries without requiring the difficult individual determinations of causation of injury and without a demonstration that a manufacturer was negligent or that a vaccine was defective. While the bill does not prohibit a vaccine-incurred person who has completed compensation proceedings from going on to court, the system is intended to lessen the number of lawsuits against manufacturers. Toward this end, the bill requires that a person with an injury resulting from a vaccine that was administered after the enactment of this legislation file a compensation petition and go through the compensation program before proceeding with any litigation against a manufacturer. If, however, after compensation proceedings are complete, a vaccine-injured person elects to reject the system's findings and award and go on to court, he or she is free to do so. The Committee anticipates that the speed of the compensation program, the low transaction costs of the system, the no-fault nature of the required findings, and the relative certainty and generosity of the system's awards will divert a significant number of potential plaintiffs from litigation. . . . Persons in the third group must complete the compensation proceeding and reject its judgment and its award before pursuing a civil action against a manufacturer for vaccine injury.” Since the Bruesewitz decision was simply a [wrong] construction of the statute, it can easily [and such cases routinely are] reversed by Congressional action to restore its original intent. This would go a long way to restoring some honesty to the program and would induce Pharma to add more injuries to the Table to socialize the risks and avoid litigation, precisely furthering the goal that all who are injured by justly compensated.

It is very significant that the HHS official admits, again, that vaccines do cause autism, albeit with the intervening sophistry of “brain illness:” “[the court] has not compensated any cases based upon autism alone in the absence of sudden serious brain illness after vaccination," In a May 5, 2008 email to investigative reporter rockstar Sharyl Attkisson, HHS admitted “The government has never compensated, nor has it ever been ordered to compensate, any case based on a determination that autism was actually caused by vaccines. We have compensated cases in which children exhibited an encephalopathy, or general brain disease. We have compensated cases in which children exhibited an encephalopathy, or general brain disease.” Although it is one of the least well kept “secrets” among the cognocenti, CDC still lies to the public “vaccines not associated with risk of autism.”

nhokkanen

"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..."

The sentence, though validating for victims on its face, still takes a backhanded swat at their legitimate firsthand observations of health damage.

I see Gary Golkiewicz coasted neatly into retirement. I hope that he has nightmares about all the damaged children he denied justice.

Birgit Calhoun

A big question is why are the special masters so reticent in awarding more money? My opinion is that either the special masters are incompetent (which I suspect they are) or there is a very heavy hand in the background that threatens to remove a master from his job. $3.5 billion currently in the pot is a lot of money that hasn't been spent. Do we call this pot the Hedge Fund Against Vaccine Injured Persons? Who is behind hording this treasure?

BoB Moffitt

@ cmo

"Of course all her court records & tests were demanded to be sealed from the public by the CDC."

In my opinon .. the single .. most atrocious violation of a citizen's CONSTITUTIONAL right to seek legal redress in a State or Federal Court .. indeed the entire Justice System of the United States .. is the Supreme Court's absurd ruling that "justifies" the Vaccine Court's denial of the critical judicial process of "discovery" .. to lawyers of parents claiming their child was "injured" by a vaccine.

This "denial of the discovery process" has been upheld by a 6 - 2 majority of the Supreme Court .. absent ANY legal justification for it .. and .. those six majority members KNOW IT.

Consider .. if a parent's defense counsel cannot "depose" the "expert" witnesses of the US Justice Department .. prior to their testifying in the Vaccine Court .. or .. demand access to critical data those "expert" witnesses are going to testify about .. under oath .. those witnesses can say anything they want with absolutely no threat of being held accountable .. as they surely would in a State or Federal Court .. for PERJURY.

Again .. the Supreme Court has made their deplorable decision .. and .. now it is up to CONGRESS to exercise their "separate but equal" Constitutional power .. to ACT.

Remember .. no one elected the Supreme Court members .. they were "appointed" .. but .. members of CONGRESS have a duty to represent the people that "elected" them.


Birgit Calhoun

Great article! Unfortunately reading the National Law Review requires a subscription. Right now congress will not touch this subject. What are they afraid of? Since "no elected official" is being bribed by any of the PAC money (just kidding), they should be free to do what's right. It is so important for congressmen/women to for once act like upstanding citizens.

Jeannette Bishop

The NVICP is clearly not constitutional to me, but it's also not constitutional for the federal government to be making healthcare law and regulations at all, and, I think, we have ample reason to argue that was and still is a good governing principle.

Do we keep asking Congress to fix the arguably unlawful programs they've set up to do what some/they think is their (and the President's) job, i.e. lawmaking (and executive enforcement) regarding personal health decisions through regulations set up and enforced by bureaucrats we can't even vote out of office? Worse with the NVICP, the bureaucrats take over the judicial function also.

We also don't have transparency about who really selects the bureaucrats who more and more run our lives, but it's clearly not the voters. It's a complete formula for tyranny run, it seems to me, by puppeteer tyrants.

cmo

Millions of American children have been given the same 9 vaccines as Hannah Poling. Some with 9 on the same day, some with a small amount of space in between.

Hannah Poling probably had more tests and records than any other American child, on what "actually happens" to a child after multiple vaccines.

Of course all her court records & tests were demanded to be sealed from the public by the CDC.

Autismmom

I think parents should challenge the constutionality of the Childhood Vaccine Injury Law of 1986 because it denies our children the right to due process. Furthermore parents who have been through the VICP process describe it as acrmimonious and hostile which is another reason to challenge the fairness of this law. We should get the parents who have been through VICP to testify before Congress. Their experiences show that compensation program is unfair and prejudiced against families.

The other thing is the Supreme court has been inconsistent.

The same week that the Supreme Court denied vaccine injury lawsuits for faulty vaccine design in the case of Bruesewitz v. Wyeth, the Supreme voted unamimously to allow lawsuits against car manufacturer Mazda for faulty rear seatbelt design that resulted in injury and death. Now seatbelts like vaccines are designed to protect people, right? Furthermore seatbelts are mandatory in some states. But the Supreme court says I can sue for faulty seatbelt design but I cannot sue for faulty vaccine design. You can bet Mazda redesigned their rear seatbelts after this decision. Where's the incentive to ensure that vaccine designed safely?

"Supreme Court rules for vaccine makers on lawsuits"- Reuters; Tuesday, Feb 22, 2011 3:28pm EST

http://www.reuters.com/article/2011/02/22/us-pharma-vaccines-lawsuit-idUSTRE71L41420110222

"Supreme Court Allows Lawsuit Over Rear Seat Belts"
By ADAM LIPTAK, NYT - February 23, 2011

Anne McElroy Dachel


Louis and Wayne ARE THE EXPERTS on how the NVICP works. They've spent YEARS studying it. The NVICP is a corrupt, clandestine and unjust program in the Federal Court System. It serves only the interests of the vaccine industry.

BoB Moffitt

The time for Congress to act is long overdue regarding vaccine safety, effiency and the policies by which vaccines are recommended, approved and administered. Even worse .. shame on them for being so indifferent to having their legislative power reduced by a 6 to 2 majority decision of the US Supreme Court (Bruesewitz v. Wyeth) that effectively denied tens of thousands of parents their Constitutional Right to seek legal redress in State or Federal courts ..

Supreme Court Justice Sotomayor's scathing dissenting opinion in Bruesewitz v. Wyeth persuasively argues it was NOT the intent of Congress to bestow "exemption from liability for unavoidably unsafe vaccines" in State Courts ..

"Considered in light of the Vaccine Act as a whole, §22(b)(1)’s exemption from liability for unavoidably unsafe vaccines is just one part of a broader statutory scheme that reflects Congress’ careful balance between providing adequate compensation for vaccine-injured children and conferring substantial benefits on vaccine manufacturers to ensure a stable and predictable childhood vaccine supply.

The majority’s decision today disturbs that careful balance based on a bare policy preference that it is better “to leave complex epidemiological judgments about vaccine design to the FDA and the National Vaccine Program rather than juries.” Ante , at 15. 24 To be sure, reasonable minds can disagree about the wisdom of having juries weigh the relative costs and benefits of a particular vaccine design. But whatever the merits of the majority’s policy preference, the decision to bar all design defect claims against vaccine manufacturers is one that Congress must make, not this Court. 25 By construing §22(b)(1) to pre-empt all design defect claims against vaccine manufacturers for covered vaccines, the majority’s decision leaves a regulatory vacuum in which no one—neither the FDA nor any other federal agency, nor state and federal juries—ensures that vaccine manufacturers adequately take account of scientific and technological advancements. This concern is especially acute with respect to vaccines that have already been released and marketed to the public. Manufacturers, given the lack of robust competition in the vaccine market, will often have little or no incentive to improve the designs of vaccines that are already generating significant profit margins. Nothing in the text, structure, or legislative history remotely suggests that Congress intended that result.

I respectfully dissent."

If Congress wants to deny their constituents their right to seek legal redress in their own State Courts .. let them enact clear legislation of their intent to do so. Otherwise .. they have a duty to overturn the Supreme Court majority by reminding them it is Congress that makes that decision .. not them.

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