Vaccine Court & Vaers
A common concern espoused by people arguing against the safety of vaccines is the existence of the vaccine court. Arguments go like this: “Well, if vaccines are so safe, why has this governmental court paid out $4.4B to people injured by vaccines?” Sometimes it’s even framed as a “secret” court to cover up the true dangers of vaccines.
Sounds pretty ominous.
I discussed this topic on The Jab during Episode 32. Amongst other sources, I referenced reporting by Jeffrey Kluger and James Hamblin, as well as a lecture by Professor Anna Kirkland about her book, Vaccine Court.
The origins of what is more formally called the National Vaccine Injury Compensation Program are closely intertwined with controversy over the diphtheria-tetanus-pertussis (DTP) vaccine during the 70s and 80s. It was believed that roughly 1 in 310K vaccinated children were at risk for a brain injury called vaccine encephalopathy, which could result in permanent damage.
Because pertussis killed an average of 6K kids every year, and the claimed brain injury (at roughly 50 per 15 million) had not been causally connected to the DTP vaccine—and since the vaccine was so effective at preventing DTP—vaccinations continued.
By 1990 the DTP vaccine was shown to be completely unrelated to the brain injury (which was actually caused by infantile epilepsy). Due to sensationalist media coverage and ensuing public outcry vaccine manufacturers were inundated with lawsuits, a fact that complicated their ability to secure liability insurance. As vaccine profit margins are small, it was likely that the cost of these lawsuits would end production on an important childhood intervention.
The solution was to levy a 75-cents-per-dose excise tax on all vaccines as a way to fund a court set up in 1988 by the US Department of Health and Human Services to handle those claims.
Less rigorous than criminal court, the program follows a civil law standard—preponderance of evidence—that requires only a 51% likelihood be shown. This standard also allocates payment of legal fees for petitioners providing minimum standards are met, regardless of the ruling.
Far from being secret, the establishment of this court was widely publicized. To this day, the public website includes a complete list of lawyers available in each state for parents to pursue their claims. Because lawyers are paid by the program no matter what, with no expense (except a waivable $250 filing fee) to the petitioner, there’s little reason for lawyers that make all or part of their living through this court to screen claims beyond minimum requirements.
The standards of evidence fall far below scientific standards of evidence. The court has been described by Professor Anna Kirkland, author of the 2016 book, Vaccine Court: The Law and Politics of Injury, as very generous in its interpretation of evidence and awarding of funds. After the DTP vaccine was shown to be unrelated to brain injury (even though awards for those claims still account for 20% of all money awarded), very few legitimate cases now make their way to the court. Even still, a lot of money is accumulating in the fund.
After the now known to be falsified 1998 claims by the disgraced former doctor Andrew Wakefield, court proceedings became dominated by a disproven connection between the MMR vaccine and autism. The ruling of the court (and the 5th Circuit Court of Appeals, FDA, CDC, and Institute of Medicine) have stated this connection to be implausible since 2009. Large awards had been made for autism claims before that date due to a plausible link with pre-existing conditions like mitochondrial disorders, even though no causal link has ever been proven.
With the autism-vaccine connection gone, the bulk of cases started to be organized around the flu vaccine, shifting toward adult claimants. Most payouts are due to fainting, as a small number of people are seriously hurt when they fall down or faint while driving after receiving the shot. A growing group of petitioners is compensated for a type of shoulder injury due to poor injection technique causing a puncture to the shoulder bursa, which is unrelated to the actual vaccine. Also listed as a plausible side effect is the autoimmune condition Guillain-Barre Syndrome, which may have an increased likelihood in about 1 person per million vaccinated—a lower percentage than those that will develop the syndrome without the vaccine, but who had had the flu. Additional instances in which the court automatically awards claims include rare transient arthritis associated with the rubella vaccine and rare anaphylactic shock from the chickenpox vaccine.
Even still, 80% of cases awarded via settlement don’t fall into the above categories, nor are they agreed upon by the court with regard to vaccine causation due to very weak scientific evidence. According to Professor Kirkland, these cases are settled based on the intention of the court to allocate funds accumulated in the event of any possibility of injury. The scientific community finds these awards deeply problematic because the civil law standards of evidence and legal procedures are so different than those of science. Tragically, these rulings create an incorrect public perception of vaccine dangers.
Another common point raised by anti-vaxxers is that many more valid cases exist than those that are compensated. The Vaccine Adverse Event Reporting System (VAERS) is often pointed to as evidence for this. The problem: VAERS is a completely unregulated public database that allows anyone to report any belief regarding vaccine injury, with no supporting evidence or bar for entry.
Manufacturers and doctors are required to report to VAERS any time they think an adverse reaction may have occurred; lawyers also report each time they pick up a new case, even before the case has been presented. This makes the numbers hugely inflated, with no causal test in place. Because the vaccine court’s standards of evidence are open-ended and generous, lawyers can cite VAERS. In fact, they often include their own reporting to VAERS of unevidenced claims when arguing plausibility. Lawyers are also permitted to use papers from discredited journals published by anti-vaccine activists as well as anecdotal parental reporting. Evidence of plausible causality is also accepted in the form of manufacturer package inserts that are required by law to list all possible adverse reactions.
Nonetheless, the seemingly large $4.4B figure remains consistent with the consensus estimate of a roughly 1 per million incidence of adverse reactions (based on billions of doses administered). In fact, given the way the court functions, the real number of vaccine injuries is probably much lower. According to Jeffrey Kluger’s reporting, after 2.5B vaccine doses were delivered between 2006 and 2014, 2,976 claims came before the court; 1,876 were compensated. Between 1988 and 2014 a total of 4,150 cases were compensated. During that 26-year period, several billion doses of multiple types of vaccines were given.
The irony is thick: a court with an extremely low standard of evidence allowing anyone with a moderately plausible claim of vaccine injury to be compensated and an unregulated clearinghouse of anecdotal reports are so often the mic-drop arguments from anti-vaccine activists.
