Response to Vaccine Immunity: The National Childhood Vaccine Injury Act and Its Consequences

• Author: Hampden T. Macbeth
• Pages: 77-132

Chapter 4: Response to Vaccine

Immunity: The National

Childhood Vaccine Injury

Act and Its Consequences

Hampden T. Macbeth*

I. Introduction

All 50 states and the District of Columbia have long required children

to receive vaccines for a range of diseases to attend public schools.1 e

diseases vaccines target summon images of a harsher, crueler, and more

random A merica. 2

Vaccines are commonly required for diphtheria, tetanus, pertussis (whoop-

ing cough), measles, mumps, rubella, and polio among chi ldren.3 ese dis-

eases cause a wide ra nge of symptoms: diculty breathing and heart failure

(diphtheria);4 lockjaw (tetanus);5 violent, dead ly coughing (per tussis);6 deadly

1. Randell B. Keiser, Déjà Vu All Over Again? e National Childhood Vaccine Injury Compensation Act

of 1986, 47 F & D L.J. 15, 15 (1992).

2. Examination of the Task Force Report on the Vaccine Pertussis: Hearing Before the S. Comm. on Labor &

Human Res., 98th Cong. 1–2 (1983) (statement of Sen. Paula Hawkins, Acting Chairman, Committee

on Labor & Human Resources).

3. Keiser, supra note 1, at 15.

4. Diphtheria, C.  D C, https://www.cdc.gov/diphtheria/index.html (last visited

Nov. 16, 2019).

5. Tetanus, C.  D C, https://www.cdc.gov/tetanus/about/symptoms-complications.

html (last visited Nov. 16, 2019).

6. Pertussis (Whooping Cough), C.  D C, https://www.cdc.gov/pertussis/index.html

(last visited Nov. 16, 2019).

* Hampden T. Macbeth is a Sta Attorney at the State Energy & Environmental Impact Center at the

New York University School of Law. e author thanks Stanford Law School Prof. Nora Freeman

Engstrom for her law review article A Dose of Reality for Specialized Courts: Lessons From the VICP,

163 U. P. L. R. 1631 (2015), which was deeply useful in researching and writing this chapter,

as well as her recommendations for the analysis. e author also wishes to thank Wellesley College

Prof. omas F. Burke, whose book Lawyers, Lawsuits and Legal Rights: e Battle Over Litigation in

American Society (2002) provided helpful insight into the legislative history of the National Childhood

Vaccine Injury Act.

Copyright © 2020 Environmental Law Institute®, Washington, DC.

78 Looking Back to Move Forward: Resolving Health & Environmental Crises

infection and incubation (measles);7 muscle aches and fatigue (mumps);8 mis-

carriage or serious birth defects (rubella);9 and paralysis and death (polio).10

Childhood vac cines have been ma ssively successful: they have reduced

targeted diseases by 90 to 100%,11 prevented mi llions of hospitalizat ions

and hundreds of thousands of deaths, a nd generated over one trillion dollars

in economic benets.12 Mass immunization of the public is considered one

of the greatest public health achievements of the 20th centur y by experts in

the eld.13

Yet in a small number of cases, the application of childhood vaccines has

caused lasting a nd permanent physical harm, including entering shock-like

states, convulsions, and even death in exceptional cases.14 For ex ample, the

third shot in a series of vaccine doses aga inst diphtheria, tetanus, and pertus-

sis (DTP) caused generalized sei zures, encephalopathy, and diminished intel-

lectual capacity i n some of the children who received it in the 1970s through

the early 1990s.15

In the 1980s, a variety of factors—greater societal awareness of the dan-

gers of some childhood vaccines, rising levels of tort lawsuits against man-

ufacturers of faulty vac cines, unpredictable outcomes for parents pursuing

vaccine injury claims on beha lf of their children, and the combination of

rising prices and shrink ing supplies—led to a push for a legislative resolution

to this vaccine crisis. is i s the story of the stakeholders—parents of harmed

children, vaccine manufacturers, organizations of medica l professionals, and

Congress, among others—that were instrumental over the course of severa l

7. Mayo Clinic Sta, Measles, M C, https://www.mayoclinic.org/diseases-conditions/measles/

symptoms-causes/syc-20374857 (last visited Nov. 16, 2019).

8. Mumps, C.  D C, https://www.cdc.gov/mumps/about/signs-symptoms.html

(last visited Nov. 16, 2019).

9. Rubella (German Measles, ree-Day Measles), C.  D C, https://www.cdc.gov/

rubella/index.html (last visited Nov. 16, 2019).

10. What Is Polio?, C.  D C, https://www.cdc.gov/polio/about/index.htm (last visited

Nov. 16, 2019).

11. Walter A. Orenstein & Ra Ahmed, Simply Put: Vaccination Saves Lives, 114 P. N’ A.

S. 4031, 4031 (2017), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5402432/pdf/

pnas.201704507.pdf.

12. Press Release, Ctrs. for Disease Control, Report Shows 20-Year US Immunization Program Spares

Millions of Children From Diseases (Apr. 24, 2014), https://www.cdc.gov/media/releases/2014/

p0424-immunization-program.html [hereinafter CDC Press Release].

13. CDC: e Top 10 Public Health Achievements in the 20th Century, B W, Jan.

3, 2017, https://www.berkeleywellness.com/healthy-community/health-care-policy/article/

cdcs-top-10-public-health-achievements-20th-century.

14. Elizabeth A. Breen, Note, A One Shot Deal: e National Childhood Vaccine Injury Act, 41 W. &

M L. R. 309, 313 (1999).

15. Id. at 309; eodore H. Davis Jr. & Catherine B. Bowman, No-Fault Compensation for Unavoidable

Injuries: Evaluating the National Childhood Vaccine Injury Compensation Program, 16 U. D L.

R. 277, 278–79 (1991).

Copyright © 2020 Environmental Law Institute®, Washington, DC.

Response to Vaccine Immunity: The National Childhood Vaccine Injury Act 79

years in the ultimate adoption of the National Child hood Vaccine Injury Act

(NCVIA). e NCVIA created an alternative resolution process that cre-

ated a pathway for victims to secure compensation for vaccine-related injuries

outside of pursuing tort claims in state courts through a no-fault, special

master-administered scheme.

e chapter also explores the noteworthy post-enactment tale of the

NCVIA. Its implementation and amendment as well as its interpretation

in U.S. Supreme Court decisions following its 1986/1987 adoption contain

important lessons for the design and implementation of future legislative

resolutions to public health and environmental challenges. Most notably, the

NCVIA succeeded in achieving its goal of reducing vaccine manufacturers’

exposure to tort lawsuits. e NCVI A’s alternative resolution process was

also designed with sucient exibility that it has been able to handle and

respond to events unforeseen by its stakeholders. For example, the DTP vac-

cine is no longer used in this country,16 and the NCVI A now compensates

adults (not just children) injured by the seasonal inuenza vaccine.17 e

alternative resolution process was also able to handle a tida l wave of scienti-

cally unsubsta ntiated claims that the measles, mumps, and rubella (MMR)

vaccine and thimerosal (a vaccine preservative) caused autism.18 But this

process is not without aws: it has been slow in processing claims for com-

pensation, often left victims uncompensated, and failed to provide plentiful,

aordable, and safe vaccine s.

II. Context

A. The Problem

Civil lawsuits against vaccine manufactu rers for vaccine-related injuries rose

dramatical ly from 24 suits in 1980 to an estimated 144 claims in 1985.19

e legal system had diculty fairly, timely, and consistently responding to

16. A F, D, T  A P V (DTP): A C S 6

(2003).

17. Pam Belluck & Reed Abelson, Vaccine Injury Claims Are Few and Far Between, N.Y. T, June 18,

2019, https://www.nytimes.com/2019/06/18/health/vaccine-injury-claims.html.

18. Mary Holland et al., Unanswered Questions From the Vaccine Injury Compensation Program: A Review

of Compensated Cases of Vaccine-Induced Brain Injury, 28 P E. L. R. 480, 490, 497 (2010);

Hilary Brueck, Inside ‘Vaccine Court,’ Where the US Government Pays Millions to People Who Say

ey Were Harmed by Vaccines, B I, Mar. 16, 2019, https://www.businessinsider.com/

what-is-vaccine-court-is-it-real-2019-3.

19. Davis & Bowman, supra note 15, at 296 (citing S  S.  H &  E’ 

 H. C.  E & C, 99 C., C I 103–06

(1986) [hereinafter C I]).

Copyright © 2020 Environmental Law Institute®, Washington, DC.