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Facts and Data, Please: Tort Claims for Vaccine Injury

post #1 of 9
Thread Starter 
In 1986, the U.S. Congress established a tax-payer funded system for compensating victims of vaccine injury, ("collateral damage" in the War on Disease, if you will). The move came at the lobbying of drug companies who wanted to be free of liability and who basically threatened to pull out of vaccine manufacturing if this measure didn't pass. Now, victims of vaccine injury have three years to file a claim in the Vaccine Injury Compensation Court (VICP). There is no peer jury and no independent judge, just government agents representing government interests.

Fast forward to today. The topic frequently comes up on MDC when somebody mentions that vaccines are a liability-free product. Someone else corrects the person and says that VICP can be bypassed and the plaintiff can opt for a traditional tort claim.

Here are my questions. Wherever possible, please reply with good, solid, supporting links, (e.g. not just opinionated personal blog posts). If I get super curious about something, don't be surprised if I ask you to cough up a link or two. blowkiss.gif

1. Under what specific circumstances could a plaintiff proceed with a tort claim against a vaccine manufacturer, (i.e. sue the manufacturer directly)? For example, would the plaintiff have to start with VICP first?

2. How many times have vaccine manufacturers been directly sued since 1986? How many of these cases have ruled in favor of the plaintiff?

3. Since 1986, how much money have vaccine manufacturers lost to settling or directly compensating for cases of vaccine injury?

4. Nationwide, how many attorneys handle non-VICP, vaccine-related tort claims?
Edited by Turquesa - 7/18/13 at 6:56am
post #2 of 9

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post #3 of 9
Thread Starter 
I don't foresee any answers soon, but would you all do me a favor and remember this thread?

The next time somebody claims that vaccine package inserts are full of exaggerated or made-up reactions because manufacturers fear that someone will bypass VICP and sue them, let's link them to this thread.
post #4 of 9
Thread Starter 
I hope you're all OK with my bumping this up. Since we have some new regulars in the forum, maybe someone can help provide answers to the OP.
post #5 of 9
My husband is an attorney (product liability actually) and told me that claims against vaccine manufacturers are barred by federal statute. You cannot bring them in state or federal court. The only recourse is to file a claim with the VICP and you have no right to appeal the determination.
post #6 of 9
Quote:
Originally Posted by Katc8910 View Post

My husband is an attorney (product liability actually) and told me that claims against vaccine manufacturers are barred by federal statute. You cannot bring them in state or federal court. The only recourse is to file a claim with the VICP and you have no right to appeal the determination.

That is not correct.  A petitioner can file a civil suit if they lose in the vaccine court.

 

Even the anti-vax NVIC site says so.  http://www.nvic.org/injury-compensation.aspx

post #7 of 9
You are incorrect. But answer could have been clearer.

There is a technical right of appeal but the important point is that you never get the opportunity to bring a traditional lawsuit for damages no matter what happens at the VICP or on appeal.

A federal law that controls all courts prohibits any lawsuit for damages.

Federal statute 42 USC SEC.300aa-11(a(2a)) - "No person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer in a state or federal court for damages arising from a vaccine related injury or death."

You must go to VICP (unless you want less than $1,000) and when there is a ruling, you can appeal the ruling by arguing that there was an error. However, even if the appeal court says that you are right, you go back to the VICP. You do not get to go to a regular court.
post #8 of 9
Thread Starter 
Thanks for the info, Katc. That's what I had always thought.

Various regulars on this forum have claimed otherwise. They are most likely getting their information from someone who isn't even a lawyer: Paul Offit. http://content.healthaffairs.org/content/24/3/622.full

"Unfortunately, three important weaknesses in the NVICP discourage vaccine makers. First, if dissatisfied with the outcome, people can always opt out of the NVICP and take their case to a jury. "

Can your DH confirm the accuracy of that statement?

Offit has a citation number at the end of the paragraph, but none of the cited articles seem to pertain to the claim that NVICP plaintiffs may appeal to a jury, nor do I see any evidence of the 300 pending cases that he mentions.

The thinking that we should dismiss vaccine package insert information over all of this makes no sense. You'd have to assume that drug companies are inventing non-existent side effects to protect themselves JUST IN CASE somebody experiences one after a receiving a vaccine, files a claim through Vaccine Court, loses the claim, appeals through the traditional tort system, and wins. Then you'd have to assume that all of this occurred so frequently that vaccine manufacturers are on their knees out of fear of getting directly sued by parents and adult vaccine recipients.

The whole scenario sounds pretty absurd and far-fetched to me, which makes me wonder if package insert information of side effects may be a little more accurate than we think.
post #9 of 9
I disagree with what Offit is saying. I didn't quote the whole statue, but another portion of it says that the courts must dismiss any suit against a pharmaceutical manufacturer if the lawsuit is for more than $1,000. The comment from Offit does not provide any citations for cases that would allow my DH to look them up. DH has looked himself and found no cases where the courts have disregarded the statute. Any court that ignored the statute would be reversed on appeal.
Edited by Katc8910 - 1/3/14 at 1:42pm
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