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The ‘Vaccine Court’ Is Hazardous to Your Health

The National Childhood Vaccine Injury Compensation Act was passed in 1986, under the shadow of multi-million dollar jury verdicts against the makers of the Diphtheria Pertussis and Tetanus (DPT) vaccine. Congress announced that vaccine injuries and deaths are real and provided that vaccine-injured children and their families would be financially compensated. Part of the larger Vaccine Act, the Vaccine Injury Compensation Program (VICP) was modeled after workers’ compensation programs. It was to be a “no-fault” program.

Very well. As one of the earliest “vaccine attorneys”—a very limited practice niche—I know first-hand it didn’t work that way. I practiced in the National Childhood Vaccine Injury Compensation Program for more than 25 years after its inception in 1988, and have been personally involved in over 100 vaccine-injury cases. I represented an entire fragile population in omnibus proceedings. I was able to obtain reversal in the Federal Circuit Court of Appeals of the denial of compensation to a vaccine-injured child in a case that the government appealed to the United States Supreme Court as Shalala v. Whitecotton. It was the only Vaccine Act case to be argued before the United States Supreme Court until Sebelius v. Cloer in 2013, where I was co-counsel for the vaccine-injured petitioner, and guided the attorneys-fees litigation that the Supreme Court upheld on review against the government’s objection. I have seen the injured and their families cruelly oppressed.

From the passing of the legislation in 1986, the process has been rigged, one major step at a time, in favor of the vaccine-industrial complex. Policy makers nationwide are yearning, with financial support and lobbying from the pharmaceutical industry, for mandatory vaccination. Before further compulsory vaccination legislation [1] passes—on a state or federal level—the failure of the VICP must be acknowledged and properly addressed. The VICP creates a classic moral hazard, granting immunity from suit to the vaccine industry while providing insurance against any loss. The vaccine-industrial complex has become a thriving giant; according to a 2013 report presented by the Pharmaceutical Research and Manufacturers of America, nearly 300 vaccines [2] were reported to be in development. Its lobbying money drives agency denial of the reality of vaccine injury, which in turn permeates policy decisions in a sinister fashion.

The Act originally provided for compensation petitions in the closest federal district court. The federal court would appoint a “special master,” with consent of the parties, to review the medical records and to recommend a decision for the court. The entire compensation process, even with court review, would only take 240 days. The “no-fault” outlook was designed to compensate even apparent vaccine injuries. Congress stated [3] that compensation awarded “quickly, easily, and with certainty and generosity” would instill confidence in the vaccine effort. It all was too good to be true.

The so-called vaccine court is not what activist parents thought they had achieved. In the new tribunal that arose, no decision would be a precedent for the next [4]. Inconsistent results would be acknowledged, accepted, and ascribed to differences in “world view.” The injured and their counsel (the latter economically oppressed by the program’s prohibition against private attorneys fees) encounter a Kafkaesque system. There is no institutional memory of the favorable decisions. Counsel find (and have empirically verified) that the choice of special master will tend to determine whether the petition for compensation can succeed, or will fall. “Risk” settlements are the predominate type of awards. A very small petitioners’ bar litigates against a determined and aggressive opponent to find an inadequate measure of justice. Limits on general damages and death enacted in 1986 are still the same. And the program churns on, taking years to litigate any meaningful issue. The injuries continue, and awards continue to be made, practically in secret.

The 1986 blueprint for quick relief did not even make the starting line. Before a single claim was filed, a barely publicized amendment removed vaccine injury jurisdiction from the Article III federal judicial branch and placed vaccine injuries into the Court of Claims. Renamed as the Court of Federal Claims, it is a “legislative court” under Article II. In constitutional terms, it is an executive branch agency.

By the time the VICP opened in 1988, eight “special masters” had been hired to preside in Washington D.C. over every vaccine injury case. The compensation tribunal was self-invented, and speedy adjudication was out the window. Hundreds of petitions were filed the day the doors opened. Thousands followed. Each master acquired a caseload of hundreds of cases. Many of the initial petitions were still pending ten years later.

The Department of Health and Human Services neglected its statutory duty to publicize the program. The original statute of limitations had to be extended. A flood of late petitions were filed by families that could not find counsel to file in time. In fact, a large percentage of the initial cases were filed simply because the families had learned about the Act from an article written by my law partner and I, that was published in the September 1989 issue of Exceptional Parent Magazine. The DOJ began to vigorously litigate against the injured. In 1989—ironically, with the stated goal of cooling the litigation—came an even worse constitutional blunder. “Technical amendments” formalized the new “Office of the Special Masters.” Congress vested this new “vaccine court” with rulemaking power, and with the unfettered discretion of a trial court. No longer did the masters “recommend.” Now, they adjudicated. The “inquisitorial” format, with none of the due process safeguards of the civil justice system, serves to protect the secrets of the vaccine industry. The record created in a proceeding is hidden from non-parties.

A state of symbiosis arose between the agency tribunal and the public health bureaucracy. These sister agencies appeared to regard families of the injured as criminals, trying to steal the government’s money. The vaccine court quickly developed an institutional hostility toward doctors and scientists who dared to challenge the orthodoxy of vaccine medicine. Doctors willing to help petitioners were criticized for being too eager to “blame” the vaccines. An unspoken premise is ever-present: to acknowledge vaccine injury is to undermine public acceptance, and to threaten “herd immunity.” The public health agenda is the tribunal agenda and the DOJ agenda as well.

As hundreds of early awards were being made under the “Vaccine Injury Table,” the government had an entrenched position: the program bureaucracy, represented by the DOJ, insisted that the Table’s listed and defined immediate-onset injuries “would have happened anyway.” And suddenly there came an administrative coup, accomplished by overt agency legislation.

The Act empowered the Secretary of Health and Human Services to “amend” the Vaccine Injury Table, and in 1995 the Table was eviscerated. The underlying concepts written into the VICP were abandoned and repudiated. No longer were DPT and MMR vaccines presumed to cause immediate brain injuries following vaccination. “Actual causation” instantly became the standard for recovery. Every case would now be litigated with expert witnesses, with the tribunal in firm control of the petitioners’ available resources.

The modern proponents of a restricted administrative state would be appalled. One wonders how much a newer Supreme Court would defer to the 1995 outlook that this was not a separation of powers problem, and not a violation of the Presentment Clause. And even this does not define the worst constitutional defect.

In passing the VICP, Congress created an insurance remedy. But the private rights of injured children previously could have been the basis for a civil injury action in state courts. The right to seek justice and a civil damages remedy has been supplanted by a statutory entitlement to share in a fund, paid by a 75-cent tax on every vaccine. This substitution of remedies cannot be reconciled with the constitutional right to a jury trial.

The Seventh Amendment jurisprudence of the Supreme Court requires a jury trial whenever private rights are passed-upon judicially. And judicial remedies are adjudicated in Article III federal courts. Only if the compensation Program was just an alternative remedy, would there be no Seventh Amendment violation. But the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth told the vaccine-injured community—the original advocates for the Act — that their court remedy had not been preserved. The immunity finding was an astonishing judicial coup on the part of Wyeth.

Curiously, an injured petitioner can “elect against” the compensation program (in favor of what, nobody knows) any time after the 240-day limit has expired. And the Act even provides that a petitioner must “elect against” a vaccine court judgment to preserve the right to a civil action. Yet there is no meaningful civil remedy. The vaccine court is used by the vaccine program—ostensibly in service of the “public health”—as a forum to prove that there is no such thing as a vaccine injury. “Confidence” in the safety net has been subordinated to the promotion of false confidence in the vaccination effort itself.

The moral hazard of the vaccine program reflects failure of the traditional checks and balances. The evolution of the program demonstrates how oppression can occur when legislative power is vested in the executive branch. It reflects how the delivery of justice will suffer when judicial power is diverted away from the Article III courts of law. It reflects the danger of vesting that judicial power within the executive branch. Most of all, the entire system embodies the way that the lack of accountability leads to increased risk.

Today, the proponents of compulsory vaccination in state legislatures have the temerity to tell their colleagues that there is no such thing as a vaccine injury. This claim emboldens a potential assault on the American family, and against the right of medical choice and informed consent. The “public health” cannot be served to allow government officials to make the risk-benefit calculation for their most vulnerable constituents when those decisions are corrupted by the fiction that their decision has no potential for negative consequences.

This Friday, vaccine safety advocates are gathering for an event [5] in Washington, D.C., to ask President Trump to examine the flaws with the VICP and create a separate, independent agency to fully evaluate and monitor vaccine safety.

Robert Moxley is a sole practitioner in Cheyenne, Wyoming. He has defended the right of conscientious and religious objection to mandatory vaccination in federal courts across the country.

25 Comments (Open | Close)

25 Comments To "The ‘Vaccine Court’ Is Hazardous to Your Health"

#1 Comment By Amber Sims On March 30, 2017 @ 12:48 am

Thank you, Mr. Moxley, for sharing your personal and profound experience and insights with readers, about a truly broken and skewed system! What a catastrophe for consumers who are injured, and their families! The Vaccine Injury Compensation Plan needs to be reworked and vaccine manufacturers should not be held without liability for their products!

#2 Comment By Fran Macadam On March 30, 2017 @ 7:33 am

Convincing argument, counselor.

#3 Comment By Mark Wax On March 30, 2017 @ 7:48 am

This is the finest synopsis I have ever read on the subject of vaccine safety ( an oxymoron). My family was denied due process and I have been fighting to no avail to get my elected representatives in Congress to revise the legislation of the NVICP. If you are interested in how we were railroaded, you may read the public record in Wax v. Aventis, et al. As well as Wax v. H.H.S.

#4 Comment By Bmidde On March 30, 2017 @ 11:11 am

“This substitution of remedies cannot be reconciled with the constitutional right to a jury trial.”

Hogwash. That statement is wrong both generally and specifically. Generally, many different types of civil actions are not entitled to a jury trial. Maritime, civil actions against the government, and certain patent claims, just to name a few are not entitled to a jury trial. Specifically the Supreme Court, in a 6-2 decision authored by Justice Scalia, stated this act specifically was not entitled to a jury trial. Moreover, not even the dissent in that case agreed with the above statement, only that additional evidence did not support the majority’s position.

That decision provides an excellent rebuttal. When provided the choice between sole practitioner in Wyoming and arguably one of the brightest conservative judicial thinkers in a generation, I’ll take the latter thank you.

#5 Comment By mojrim On March 30, 2017 @ 1:29 pm

You’re clearly a trial lawyer given your ability to frame things in opposition to reality. “Vaccine-industrial complex” and the way you put herd immunity in quotes? This is quality propaganda. Bravo, counselor!

#6 Comment By rtp On March 30, 2017 @ 3:40 pm

Bmidde that Supreme Court ruled that vaccines are “unavoidably unsafe”.

This is the greatest crime in history.

They don’t even work.

#7 Comment By Donna On March 30, 2017 @ 3:42 pm

To many pockets are being lined to ever think we have a god given right of choice. It’s sad when the people you put your faith in never have your best interest in mind. To many doctors would rather keep their license than go against the status quo of “quality care”. Quality care being a laughing matter in these terms.

#8 Comment By rtp On March 30, 2017 @ 8:14 pm

But Bmidde, that Supreme Court that you love so much said that vaccines were “unavoidably unsafe”.

It is the greatest crime in history.

And they don’t even work.

#9 Comment By rtp On March 30, 2017 @ 8:23 pm

mojrim, herd immunity is abject nonsense.

Indeed, so is the theory of immunity. A mathematical impossibility.

Viruses – so we are told – infect us chronically. This means that, by definition, harboring the virus makes us more susceptible to it in the future.

But immunity, by definition, means that harboring the virus makes us less susceptible to it in the future.

So how do we become immune to viruses that infect us chronically? Noting that this applies to measles, polio, varicella, HPV and Hep B amongst others.

So it is literally impossible for these vaccines to provide any sort of immunity. Let alone for those who don’t even receive the vaccine.

#10 Comment By Tim Herring On March 30, 2017 @ 8:39 pm

There are already numerous separate, independent agencies (plus academic and other groups) that fully evaluate and monitor vaccine safety. Collectively, those groups do a great job. Thus, there is no need for any additional such body. In fact, it could be unethical to spend further funds in such duplication and hence under fund other efforts (like more research is what causes autism — vaccines certainly do not).

#11 Comment By Liz P On March 30, 2017 @ 11:56 pm

Excellent and, sadly, entirely true analysis of vaccine “court.” Here’s my experience: [6]

#12 Comment By Matt W On March 31, 2017 @ 8:58 am

What’s going on? TAC is embracing Putin and anti-vaxxers and hysteria about declining male fertility. Is it an early “April Fool’ ?

#13 Comment By BW On March 31, 2017 @ 2:35 pm

Actually vaccine injuries are real and are not treated like that. If you had an accident that was caused by your car malfunctioning, you would expect compensation. (OH and I think that has happened!!!). Yet you speak out against one of the most destructive problems of our times. You know not reality. And this has been going on for decades. Are you going to pay for the care of the autistic children when we get to one in two? We are heading there. Obviously you think the world of big pharma and the lies they have propagated.

#14 Comment By ggL On March 31, 2017 @ 3:13 pm

I think rtp should also be a regular contributor to this website. He would fit right in with the other recent vaccination nonsense.
“So how do we become immune to viruses that infect us chronically?”. By vaccination before infection. So they cannot infect us and become chronic.

#15 Comment By Bmidde On March 31, 2017 @ 4:43 pm

@rtp lots of thing are unavoidably unsafe. Driving to work, taking a commercial flight, or going on vacation all carry a small risk that something bad could happen. We do these things because the positive benefits outweigh the minuscule risk of a bad outcome. Vaccines are no different.

As to your claim vaccines do not work. I’ll be honest that’s a new one. Not even the antivaxxers I know are willing to make that sort of claim. The antivaxxer position has always been that there are numerous side effects to vaccines that vaccine companies cover up to drive up their profits. You are the first person I have heard state that vaccines do not work.

Anyway, this article had some potential. It’s an analysis of a poorly understood part of the American legal system. I have no doubt that the system could be improved. However when the article incorrectly states legal positions and veers off into histrionics, then it needs to be corrected.

#16 Comment By Redeemed-Deplorable On March 31, 2017 @ 11:09 pm

This article and its cousins here need a companion series, an expose proving that fire cannot cause buildings or bridges to fall.

#17 Comment By endorsement On April 3, 2017 @ 11:56 am

vaccines do not work. how long will the “immunity” last? a few years? 90 % of the population has been vaccinated at one time and 90% of the population has no immunity to the illness. which might be all of measles or something like chicken pox.

the only way to gain long term immunity is to get sick then recover.

#18 Comment By swordfish On April 4, 2017 @ 1:23 am

Golly. Vaccines do not work? I feel I must reply, though no doubt what what I write will be discounted. When my mother was 7 – 1934-ish – she and her brother (3) and sister (8) fell ill with diphtheria. The brother and sister died of it. My mother survived after a long ordeal. It broke the family. The father took to drink, the mother to despair, and my poor mother, still very much a child, tried to be parent to them both.

You better believe I got the DPT vaccine for my son.

#19 Comment By Linda On April 5, 2017 @ 7:14 pm

Thank you so much for your honestý. Let’s make it known.

#20 Comment By Paul G. King On April 6, 2017 @ 10:29 am

Clearly, “vaccines do not work” as advertised. Moreover, though the CDC’s propaganda uses a false claim, “vaccine- preventable disease”, even the US FDA’s licensed vaccines’ package inserts (approved by the FDA) do not claim that vaccines “prevent the disease or diseases” for which they are licensed.

Moreover, those vaccines’ package inserts, by direct statement or omission (Section 13, Teratogenicity), also admit that their manufacturers have not proven that their vaccines cannot cause mutations or cancers even though such proofs are required by law in appropriate scientifically sound disease-susceptible animal- or cell-model studies before any vaccine candidate can legally be given to any human!

For proof of those later admissions, you can read [7].

Factually, our current FDA-licensed vaccines are the greatest threat to the human immune systems, toxic to those administered them — immediately but also often with delayed long-term autoimmune consequences (chronic diseases) that adversely affect our health.

Having, for more than two (2) decades, studied the issues associated with the human immune system; vaccine claims and realities; vaccine costs (direct & indirect); and the natural development of a healthy immune system that, for initially healthy and well-fed children in a peaceable, reasonably hygienic and sanitary environment, can & did provide long-term “herd protection” for the recognized human childhood diseases prevalent in their locale for centuries before any mass vaccination programs were implemented, it is a scientific reality that vaccination has become another “false religion” — one that is based on beliefs supported by fundamentally false studies that, given their epidemiological nature, cannot “prove vaccine safety” and are legally and actuarially admitted to be “unavoidably unsafe” — Orwellian “doublethink” realities in a “vaccination religion” which has no problem accepting the diametrically opposed propaganda slogans (mantras), “the safest of medicines” and “unavoidably unsafe”.

#21 Comment By Marley On April 6, 2017 @ 12:29 pm

To imply that vaccines, or any pharmaceutical, is one hundred percent safe is anti-scientific. Even ibuprofen can severely damage or kill someone. Injecting substances into the the blood stream is obviously highly intrusive. The real question is always ‘is the treatment safe and effective; what are the risks’. Where is the data on any of this? Are there data available about individuals damaged? Drug interactions are a major area of study and concern, but there are zero studies on the cumulative effects of the increasing number of currently recommended vaccines.

#22 Comment By brad On April 6, 2017 @ 3:11 pm

“criminals intent upon stealing the govt’s money” my patoot.

Catherine Frompovich sent an FOIA request to find out how much $$$ are in the vaccine accounts from all those vaccine fees. Should still be over 20 billion or so even after paying out over 3 billion bucks when you figure the payments that should’ve been made since ’86.
The GAO cannot find any such account, has no information about any such account – and then the higher ranks in the GAO shut down the man that was helping Catherine try to get this information.

So where is the missing money? Is it being spent on geoengineering to kill us? Is it kept in the drug pusher’s accounts to accrue interest? Is it paying to fight the resistance to drug and vaccine mandates?

#23 Comment By lisafrequency On April 8, 2017 @ 2:22 pm

People keep telling me that vaccines are safe yet there are 3 children in my family that were forever changed the day of after having vaccines.
My aging family is very concerned about what will happen to these children after we are either dead or too old to care for them ourselves.
Something I do know for sure is that if your family has any history of epilepsy or neurological disorders your children are at risk of being permanently damaged by vaccines so user beware.

#24 Comment By Researcher On April 10, 2017 @ 8:22 am

What a sobering view of the world of industry takeover of government.

One has to wonder if those so vigorously defending the current bloated vaccine program are part of the industry’s media relations response team.

A close look at the often-repeated talking points ostensibly defending vaccine safety reveals that they either attempt to divert the focus (“everything has risk…so let’s not look at the risks of vaccines”) or they outright lie (“vaccine safety is thoroughly studied–even though we’ve never actually studied them in the way they’re given in real life, nor have we studied them for carcinogenicity, mutagenicity, or impairment of fertility, nor have we adequately assessed risk of seizure, autoimmune, and neurological reactions”).

#25 Comment By U’ve got to be kidding On May 12, 2017 @ 2:39 pm

It is vitriol like this – unscientific in its medicine, and inaccurate in its description of the Vaccine Program – that led the chief justice of the Supreme Court to end Mr. Moxley’s argument in the Whitecotton case by saying that he was either totally unprepared or trying to intentionally mislead the court. It is also misinformation of the sort championed in this “article” and by some commenters, that has lead to a hospital-ward full of sick Somali-American children…. Shame.