A Brief Introduction to Vaccine Court · 2008-01-30 14:00

The 1986 National Childhood Vaccine Injury Act (42 U.S.C.A. §§300aa-1 through 34) authorized establishment of the Vaccine Injury Compensation Program (VICP). The Vaccine Act shifts responsibility for compensation for vaccine injuries from vaccine manufacturers to the federal government, with awards paid from a fund derived from a surcharge imposed upon vaccines covered by the provisions of the Act. The VICP is intended to enable the fair compensation of individuals who can document that they have sustained injuries from vaccinations, to provide a “swift, flexible, and less adversarial alternative” to traditional tort litigation, and to enable pharmaceutical manufacturers to develop, manufacture and widely distribute vaccines without prohibitive fear of liability.

VICP cases are heard and decided by a Special Master, a judge with specialized skill and experience in the evaluation of medical and scientific information. Claims are supposed to be processed within a year of filing, although difficulties in acquiring medical records and other complications often lead to delays.

Compensable Conditions

The Vaccine Injury Table identifies specific conditions that are known adverse effects of specific vaccines, and time periods within which a condition must occur to qualify as a vaccine injury. “Table injuries” include anaphylactic shock (i.e., a severe allergic reaction) that occurs within four hours of a tetanus, pertussis or measles-mumps-rubella (MMR) vaccination; encephalopathy (i.e., brain inflammation) that occurs within 72 hours of pertussis vaccination; and chronic arthritis that occurs within one to six weeks of an MMR vaccination. If a petitioner can document that a condition emerged within the period of onset from vaccination specified in the Table, and that no other probable cause of that condition exists, it is presumed that the condition is vaccine-induced, and compensation is authorized.

If a condition does not appear on the Vaccine Injury Table, or if it did not occur within the specified period of onset, it is classified as an “off-table” injury. With an “off-table” claim, the petitioner bears the burden of demonstrating that a vaccine was a substantial factor in causing the condition for which compensation is sought, and that the condition would not have occurred but for the vaccination.

If a vaccine injury claim can be fully substantiated with medical records, the court does not require submission of an expert report. However, medical records are often ambiguous and insufficient; most claims involve the submission of fact testimony by the petitioners, family members and treating physicians, and opinion testimony by medical experts. Medical experts are often retained by both petitioners and the U.S. Department of Health and Human Services (HHS), which responds to all VICP claims. Expert witnesses offer their opinions on the petitioner’s medical condition, and advance or rebut theories causally connecting a vaccination to the onset and development of that condition. Those who hold themselves forth as “experts” must possess education and professional experience in the matters about which they seek to testify. All expert testimony must be submitted in written affidavits that set forth the expert’s opinions and reasoning, and testimony is also offered in entitlement hearings.

The majority of early VICP claims pertained to “table injuries.” However, over the course of the Program’s existence, the balance has shifted so that the majority of claims now filed allege injuries such as autism that are not specified on the Vaccine Injury Table. Expert testimony has therefore taken an increasingly central place in VICP proceedings.

Evidentiary Standards

Whereas the Federal Rules of Evidence govern the admission of both fact testimony and expert testimony in federal courts, the same is not true of administrative proceedings under the Vaccine Act, even though these proceedings are administered by the U.S. Court of Federal Claims. Rather, Rule 8c of the the Vaccine Rules specifies that:

“In receiving evidence, the special master will not be bound by common law or statutory rules of evidence. The special master will consider all relevant and reliable evidence, governed by principles of fundamental fairness to both parties.”

The Special Master is permitted to exercise his or her discretion in determining the credibility of witnesses and assigning weight to their testimony.

Confidence & Disclosure

Unlike in conventional litigation, filings submitted in administrative proceedings under the Vaccine Act are not subject to public disclosure. Confidential materials include petitions, medical records, expert reports, and hearing transcripts. Only the court’s final decisions are generally made available to the public, and a petitioner may request that personal identifying information be redacted from the document.

Exceptions to VICP confidentiality rules have recently been made in the Omnibus Autism Proceeding, which includes approximately 5,000 pending “off-table” claims; audio recordings and transcripts of “test case” hearings have been made publicly available at the request and with the consent of the petitioners, as have filings pertinent to the consolidated proceeding.

A Generous Guarantee

In most civil litigation in the United States, plaintiffs and defendants must pay their own attorney’s fees and costs — a requirement known as the American Rule. Many attorneys in the United States are willing to represent plaintiffs on contingency — that is, to be paid a percentage of a final judgment or settlement (generally 33-40%). Contingency arrangements allow citizens of modest means with viable claims to obtain legal representation without prohibitive burden. Contingency arrangements also motivate attorneys to be judicious in their selection of cases and clients, since they run the risk of not being paid for their efforts if their clients do not prevail.

Defendants in the U.S. may countersue to recover fees and costs from the plaintiff if they prevail in a case; however, there is no guarantee that such a request will be granted by the court. In contrast, the legal system in the United Kingdom and most other industrialized democracies requires the losing party to pay the opponent’s legal bills. Such an arrangement is known as fee shifting, and is intended to reduce frivolous litigation.

In a departure from the American Rule, fee-shifting schemes are incorporated into Title VII of the Civil Rights Act, the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and numerous other statutes, whereby the prevailing party is awarded litigation expenses. The Congressional intent underlying such schemes is to enable the promotion of socially-valued goals by enabling private citizens to enforce the law through judicial action.

Fee-shifting schemes authorize the payment of:

“fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” Senate Report No. 94-1011, p. 6 (1976)

In the United States, fee-shifting occurs not only in civil rights litigation, but also in administrative proceedings under the Vaccine Act, since promotion of public health is a matter of compelling public interest, and since vaccination programs are a linchpin of efforts to prevent the spread of infectious disease. In order to enable citizens to seek compensation for vaccine injuries without incurring prohibitive expense, the Vaccine Act guarantees payment of attorney’s fees and costs incurred in presenting a claim, as long as the claim is brought in good faith, and as long as fees and costs are reasonable and necessary.

The Vaccine Injury Compensation Program (VICP) is more generous than many other fee-shifting programs in that attorney’s fees are generally awarded regardless of whether a petitioner prevails. VICP attorney’s fees therefore tend to reflect hourly rates lower than those paid to attorneys in private practice, or to attorneys whose clients must prevail in order to qualify for reimbursement of fees and costs.

The Court also reimburses VICP petitioners for all costs directly related to the prosecution of a petition, including the cost of scientific experts. Developing and presenting a causation theory can entail substantial time and expense, especially if it is particularly novel and not widely supported by the scientific community.

In requesting statutory fees, an attorney is bound by the same ethical rules that apply to their relations with private clients. Professional ethical standards constrain attorneys from unreasonably increasing the number of hours billed for a case; from billing clients for time and expenses unrelated to their case; and from charging professional rates for work that is administrative in nature. As the U.S. Supreme Court affirmed in Hensley v. Eckerhart (461 U.S. 424, 434):

“Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.”

The guarantee of payment for expert services is also not without its limits. In Presley v. Secretary of HHS (Case 98-417V, USCFC), Special Master Gary Golkiewicz warned that

“The expert is not given a blank check for his services and the special masters will not sanction inflated hourly rates and limitless hours spent investigating potential medical or scientific theories of causation.”

The Public Record

The U.S. Court of Federal Claims permanently records and retains all decisions rendered in the Vaccine Program. VICP decisions contain a reasoned explanation for the Special Master’s actions in a given case. Decisions discuss the procedural history of a case; findings of fact; relevant medical literature; expert testimony; relevant law; and the Special Master’s application of that law to the facts of the case.

Only a minority of VICP decisions are deemed to have precedential value — i.e., to address significant questions of law, and to be sufficiently applicable beyond the immediate case to warrant being adopted as case law, binding upon future VICP proceedings. All precedential or “published” VICP decisions are archived by the subscription search services Westlaw® and LexisNexis®. Additionally, the U.S. Court of Federal Claims makes freely available to the public an online archive of published decisions stretching back to 1997.

Non-precedential decisions (also known as “unpublished decisions” or “slip opinions”) from the first sixteen years of the Program remain tucked away in case files, accessible only to those with physical access to the U.S. Court of Federal Claims. However, since 2004, the Vaccine Program has archived all unpublished decisions on its website in .pdf format.

During the first few years of the VICP, questions of entitlement to compensation and reimbursement of fees and costs were addressed in a single judicial order. More recently, these questions have been addressed separately. A case resulting in a published entitlement decision may therefore give rise to an unpublished decision on attorneys’ fees and cost, or vice versa.

Both published and unpublished VICP decisions provide an instructive glimpse at the operations of the Vaccine Program; the range of medical conditions to which petitioners, their attorneys and experts have attributed vaccine causation; the wide variety of scientific claims and legal questions considered; the opinions and qualifications of physicians and expert witnesses; the compensation awarded to prevailing petitioners; the billing practices of attorneys and experts and compensation finally awarded to them.

Comments


  1. Great stuff, Kathleen! Thanks for putting that all together.

    Joe

    — Club 166    2008-01-30 20:49    #

  2. The Autism Omnibus may be the mother load of off-table cases, but it seems that every malady known to mankind is represented in these decisions. No wonder the feds moved to create the VICP. What a morass.

    — Tom    2008-01-30 21:54    #

  3. With all of the information and misinformation out there, it is extremely helpful for a layperson like myself to be able to see the VICP information collected and presented like this, complete with links to all relevant sources. My thanks, Kathleen.

    — Steve D    2008-01-30 23:22    #

  4. Joe and Steve, you’re welcome, and thanks to you for taking the time to comment on what may be driest piece I’ve ever written.

    Tom, you’re right, it makes sense for VICP to group similar claims together. The OAP may be the largest omnibus proceeding ever conducted by the VICP, but it’s not the first. Previous Omnibus proceedings have considered whether the rubella vaccine could cause chronic joint problems; whether the DPT vaccine could cause afebrile seizures in individuals with tuberous sclerosis; and whether the Hepatitis B vaccine could trigger the development of demyelinating disorders.

    — Kathleen Seidel    2008-01-31 08:17    #

  5. Thanks for the overview of the VICP. I didn’t think it was dry, but maybe that’s just me. I think it’s important to cover the basics the way you did, because there’s a lot of confusion in the extensive internet discussions of the Omnibus Autism Proceeding.

    Some people seem to believe that the government created a new court – the “vaccine court” – to handle vaccine injury claims. As you say, though, these claims are heard in the U.S. Court of Federal Claims. This court has existed since 1855, when it was established as the U.S. Court of Claims. It’s a court of special jurisdiction – the People’s Court, where citizens can bring claims against the federal government for monetary damages. It is not, as some people seem to believe, a venue that was recently created to carry out a cover-up conspiracy between the government and the pharmaceutical industry with respect to vaccines.

    — Anne    2008-02-06 23:01    #