Why the Trump administration excites some personal-injury lawyers
Mr Kennedy wants to make it easier for people who say they were hurt by vaccines to sue for damages. He would like to overhaul the Vaccine Injury Compensation Programme (VICP), a legal regime covering more than a dozen mostly childhood jabs. The scheme routes claimants to a special vaccine court, where they get faster and easier payouts than in regular civil court since they do not have to prove fault by vaccine-makers, a higher legal bar. Damages for pain and suffering are capped at $250,000, plus medical expenses and lost wages. Vaccine-makers fund the scheme through an excise tax of 75 cents per jab. In return they are largely shielded from liability in the normal tort system.
This arrangement underpins public health by ensuring that supply stays cheap. A separate liability protection covered the covid-19 shot. Preventive vaccines are low-margin; the risk of huge jury awards would drive firms from the market. That is precisely what happened to the vaccine for pertussis, or whooping cough, in the early 1980s and why Congress created the VICP.
Adverse effects from vaccines are statistically rare. Roughly 30,000 are reported to the government annually. About 15% of these are serious. Meanwhile tens of millions of jabs are given to children a year. The rate of injury—even assuming that each was caused by a vaccine—is a fraction of 1%. About half the cases in the VICP are dismissed. In 60% of the compensated claims, the government does not accept that the shot caused the injury but pays to resolve the case anyway.
Mr Kennedy says the VICP 'routinely dismisses meritorious cases' and that it is a 'morass of inefficiency, favouritism and outright corruption'. He dislikes that it takes between two and three years to adjudicate a claim on average, a consequence of the fact that just eight 'special masters' (ie, judges) oversee more than 3,500 cases. Mr Kennedy is right that a programme designed for efficiency has gummed up. But the number of special masters is inscribed in law and only Congress can increase it.
What the health secretary can do is open the litigation floodgates, by making more claims eligible for damages. The VICP automatically compensates people for certain injuries if they appear within a set period from the time of the shot. People with other 'off-table' injuries can prevail if they show that the vaccine caused theirs. Mr Kennedy has long pushed the debunked theory that vaccines cause autism. Everyone thought this battle was over at the VICP, which long ago dismissed autism cases. Through the rulemaking process, however, the health secretary can add autism to the table or loosen the definition of existing injuries.
Attacking that scheme is not the only way Mr Kennedy is upsetting the market. He has terminated funding worth $500m for mRNA-related research—which yielded some of the covid jabs—while publicly questioning the safety of that platform.
The pandemic scrambled the politics around vaccine injury. Plaintiffs' lawyers once aligned neatly with Democrats, who saw themselves as consumer advocates, while industry backed Republicans, who tried to limit lawsuits. When it comes to vaccines, however, MAGA types are now the biggest bashers of pharma. One Republican congressman has proposed a piece of legislation (which is unlikely to pass) to end the liability shield. Of course anyone who believes that vaccines cause injuries ought to be glad for the ease of the VICP, which is enabled by the shield, notes Michael Saks of Arizona State University.
Eliminating it would hobble vaccine infrastructure. It would also benefit Mr Kennedy. He held a financial stake in ongoing litigation against Merck over allegations that its HPV vaccine caused autoimmune disorders. He transferred this interest—a 10% cut of some plaintiff lawyers' potential winnings—to one of his sons. But the presiding federal judge has gutted those lawsuits, citing the liability shield.
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