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Liable to Infection Flu vaccine in short supply partly because of trial lawyers and 'tort tax'
By Jim Copland
The recent flu epidemic has brought to the fore a serious public health concern: the vaccine shortage in America. As flu shots must be rationed by the only two manufacturers, many are left to wonder why our vaccines are in short supply.
A partial answer? The same nefarious culprit that afflicts so much of our national economy to the detriment of our health and safety—the expansion of liability driven by Trial Lawyers Inc.
Little wonder that the five remaining vaccine manufacturers in the U.S. have had to spend more time and money defending lawsuits than researching new vaccines, and that no new entrants are rushing to enter the market.
From the early to mid-1980s, as tort litigation exploded, the number of U.S. vaccine manufacturers fell from 15 to three. In response, Congress in 1986 passed the National Childhood Vaccine Injury Act. Congress realized that vaccination was crucial to the public health but that vaccines, by their very nature, almost inevitably lead to sickness in some of the vaccinated.
So Congress took vaccines out of the courts and instead created a "no-fault" system, the Vaccine Injury Compensation Program, in which a compensation system awarded individuals injured by a vaccination quickly, generously and without legal hassle. Vaccine recipients retained the right to sue, but only after they had first exhausted their remedies under the no-fault administrative process.
The flood of vaccine-related litigation slowed; to date, under the no-fault system, over 1,700 families have received well over $1 billion for vaccine-related injuries and complications.
In recent years, however, the congressional safeguards have been eroded as enterprising trial lawyers have circumvented the law. How? The litigation industry's ever-creative attorneys have filed suits alleging that thimerosal, a vaccine preservative designed to prevent bacterial contamination, causes autism and other neurological disorders.
Arguing that thimerosal is "an adulterant or contaminant" rather than a vaccine component, the plaintiffs' bar has increasingly put pressure on the Vaccine Injury Compensation Program in an end-run around Congress's design.
Unsurprisingly, the trial lawyers' claims about thimerosal are unsupported by scientific evidence. Thimerosal contains mercury, which in high doses can cause neurological damage; and in 1999, Environmental Protection Agency researchers concluded that, in theory, a combination of vaccines in infants could lead to blood mercury levels slightly exceeding EPA guidelines.
But subsequent research determined that, in actuality, even the highest blood mercury levels in vaccinated infants was within the EPA's hyper-cautious guidelines. No scientific study has found any link between vaccines and autism.
The World Health Organization continues to endorse the use of thimerosal as a preservative, and the American Academy of Pediatrics recommends giving flu shots to children as young as 6 months old—even though the vaccine is still made with thimerosal.
Despite the dearth of scientific evidence and opinion of the public health community, the Clinton administration in 1999 recommended that thimerosal be pulled from vaccines, and vaccine manufacturers, when possible, began to do so.
Spotting a new market, and a long-desired means to circumvent the National Childhood Vaccine Injury Act, Trial Lawyers Inc. rushed in. By the end of last year, over 190 thimerosal cases were pending, including at least 12 class actions. One class-action claim demanded $30 billion—that's five times the entire vaccine market itself! The tort tax on vaccines combined with government-imposed price controls makes vaccine manufacturing increasingly unprofitable and underlies the eight vaccine shortages we've seen since 2000.
The solution? Congress could begin to control the renewed vaccine litigation explosion by clarifying that vaccine additives included in the vaccine license, such as thimerosal, do not lie outside the scope of the law.
Some in Congress did insert language to that effect in the homeland security bill—only to provoke a histrionic response from the trial bar and its allies on the Hill. But the merits of the case for the statutory clarification remain clear.
By reaffirming the 1986 act's intent, our lawmakers could help ease the problem that has left so many Americans worried about immunizing their children.
Jim Copland is the director of the Manhattan Institute's Center for Legal Policy.
©2003 The Dallas Morning News
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