Friday, October 15, 2004

bush on lawyers and vaccines

It appears that a key feature of the Bush/Cheney strategy is to run against lawyers. In my FindLaw column earlier this week I examined both their medical malpractice reform proposal and the almost equally bad proposal that Kerry/Edwards have floated. But at least w/ the Kerry/Edwards proposal, one has the sense that they're not really serious about it--that they feel the need to show that they're tough on lawyers too. I was heartened by the fact that in Prez debate # 2, Kerry actually said "I'm a lawyer" without apologizing. So what happens in Prez debate # 3? Bush claims that the shortage of flu vaccine is a result of vaccine makers' fear of liability. We need tort reform here too, he says. The problem with this argument is that vaccine makers already enjoy exactly the same caps on liability that Bush now says they need. Below is a description of the 18-year-old law, taken from a federal district court opinion:

In 1986 Congress enacted the Vaccine Act, which creates a federal no-fault remedial scheme for vaccine-related injuries in which plaintiffs first pursue their claims through the Court of Federal Claims. See 42 U.S.C. § 300aa et seq. The policy of the statute is to expedite the award of damages and protect vaccine manufacturers from burdensome litigation. H.R. Rep. No. 99-908, at 4, reprinted in 1986 U.S.C.C.A.N. 6344, 6345. Under the Act, a victim of a "vaccine-related injury or death" may file a petition for compensation with a specialized tribunal of special masters of the Court of Federal Claims (the "Vaccine Court"). 42 U.S.C. § 300aa-11(a)(1). The Act prohibits such victims from filing a civil action for damages of more than $ 1,000 against "a vaccine manufacturer or administrator" in either state or federal court without first filing a petition for relief in the Vaccine Court. 42 U.S.C. § 300aa-11(a)(2)(A). If the victim of a vaccine-related injury or death first files a civil action in either state or federal [**7] court, "the court shall dismiss the action." 42 U.S.C. §

In addition to limiting the venues available to plaintiffs, the Vaccine Act also limits the available remedies. Under the Act, a petitioner suffering from a "vaccine-related injury" may recover actual nonreimbursable medical and rehabilitative expenses, damages for reduced earning capacity or lost wages, up to $ 250,000 in damages for pain and suffering or emotional distress, and reasonable attorneys' fees and costs.
Petitioners may not recover punitive damages. 42 U.S.C. § 300aa-15(a),(d),(e). [*514] After the Vaccine Court issues a judgment, the petitioner may choose to reject the judgment and pursue a tort action in state or federal court. The Act continues to restrict these suits in various ways. For example, vaccine manufacturers may not be held liable for "unavoidable" side effects of a properly-manufactured vaccine that was
accompanied by proper directions and warnings even if the vaccine was defectively designed. 42 U.S.C. § 300aa-22(b)(1). Civil actions must also be trifurcated into following stages: liability, compensatory
[**8] damages, and punitive damages. 42 U.S.C. § 300aa-23(a)-(d).

Shadie v. Aventis Pasteur, 254 F. Supp. 2d 509 (M.D. Pa. 2003)

(Thanks to Rutgers Law Professor Neil Buchanan for calling my attention to this statute.)

I guess that it shouldn't be surprising that a President whose professed priority in appointing Supreme Court Justices is ensuring that Dred Scott is overruled would advocate legislation that has been on the books for nearly two decades.



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