CHAPTER 20

• Jurisdiction: United States

CHAPTER 20 HOW HAS CONGRESS MADE VACCINE COMPENSATION LAWSUITS SO VERY DIFFERENT FROM TORT CASES?

Your client's claims for compensation due to injuries caused by vaccines are different and harder to win because Congress responded to the vaccine industry and intentionally altered how these claims are handled. In this chapter the COVID-19 vaccines are referred to as part of the CICP (Countermeasures Injury Compensation Program) because they were officially placed into "countermeasures" status by HHS in March 2020.¹ Vaccines for measles, polio, and other common viruses are part of the VICP discussed below. Recognize that VICP and CICP are confusingly similar, but the 1986 VICP program and the 2005 CICP have substantial differences because the structure of the COVID-19 "countermeasures" category is much harder for the injured claimant to satisfy. That was intended by the creators of the 2005 legislation who wanted to shield their clients from liability where an urgent need for a vaccine "countermeasure" against an attack or epidemic, such as the H1N1 virus or COVID-19 virus, would be asserted.

Prior to the 1986 National Childhood Vaccine Injury Act and the 2005 PREP Act,² cases dealing with injuries due to vaccines were handled in the same manner as civil tort claims. The preceding chapters have shown the complexity of a struggle by counsel accepting an injured client and seeking to win a damages case against a pharmaceutical company.

As a result of these 1986 and 2005 Acts, there are considerable differences between a traditional tort claim and a vaccine compensation claim. These differences include:

• the remedies available are limited;
• the defendant is only the U.S. government;
• the limited venue is administrative-only (CICP) or administrative with one limited court channel of review (VICP);
• the rare availability of appeals, with none for CICP vaccines;
• the unusual trier of fact, largely an administrative staff member with medical consultant assistance;
• the burden of proof;
• all aspects of evidence (including discovery and experts); and
• limits or denial of attorneys' fees.

The Limited Remedies Available

As noted above, Congress has created two different vaccine compensation programs to compensate individuals who are seriously injured by vaccinations: the 2005 CICP and the 1986 VICP. Although these statutes do provide for some compensation for vaccine-related injuries, the amount of damages available are extremely limited. Actual numbers show an average number of 641 compensation petitions during fiscal years 2011-2016.³

For example, under the VICP, punitive damages are not available. A petitioner whose claim is successful is only able to recover non-reimbursable medical bills, related expenses, lost earnings, reasonable attorney fees and costs, and a maximum amount of $250,000 for pain and suffering.⁴ If it is a survivorship claim, then damages are limited to $250,000 plus reasonable attorney fees and costs.⁵ Vaccine cases will not be cited on billboards advertising lawyers' exceptional blockbuster jury awards. The statute was shaped by lobbyists for the vaccine industry, so this windfall was consciously excluded from future claimants.

Damages available under the CICP for COVID-19 vaccines are even more tightly limited. Indeed, a successful petitioner can only get unreimbursed medical expenses and some lost income.⁶ The CICP does not provide for attorney fees or awards for pain and suffering. Further, under the CICP, as discussed below, very few claims result in payment of compensation. Indeed, since the start of CICP, only 499 claims have been filed. Of those, 450 were found ineligible, 10 remained pending, and only 29 claims were compensated as of December 2020.⁷

In comparison to these CICP claims, there are the conventional vaccine claims about measles, polio, and other vaccines: from 1998 through December 2018, of the 22,919 petitions the VICP received, 7,754 were compensated.⁸ A small percent were disposed by court decision (7%), most by settlement with the claimant and the Justice Department counsel (56%), and a third were conceded by VICP (37%).⁹ These VICP non-COVID vaccine claims were compensated from a fund that received a small excise tax on each vaccine dose, and that fund held $4,090,860,617 in 2020.¹⁰

The...