Senator Bill Frist (R-TN) has introduced the "Improved Vaccine Affordability and

Availability Act" or S 2053, to amend the National Vaccine Injury Compensation

Program ("Program"). While undoing every gain that petitioners’ families have made

over the past several years, S 2053 also represents an attack on the very spirit of the

Vaccine Program as it sacrifices the best interests of our children for the sake of

protecting the vaccine manufacturers. Unlike its counterpart bill in the House of

Representatives, HR 3741, the Frist amendment in the Senate does little if anything to

protect or defend, let alone extend the rights of children in this country who have been

injured by their recommended childhood vaccinations. Rather, it is determined, almost

cynical, in its apparent disregard of those rights. While nearly every section of the

amendment is disheartening, several sections stand out.

S 2053 cuts in half the time allowed for public comment (from 180 days to 90 days)

when a change in the Vaccine Injury Table is proposed. It further eliminates the Secretary

of HHS’ obligation to hold a public hearing on the issue. The effect is to drastically

reduce the already scant public participation in this Program.

S 2053 begins, here in Sec. 202, the first of its several-pronged attack, and ultimately,

elimination of, the various forms of civil actions currently ongoing throughout the

country, including the class actions seeking medical monitoring. By including the

language "equitable relief" in the damages or awards sought section, S 2053 clearly

removes the possibility of civil suits seeking medical monitoring, or other, non-monetary

awards. Medical monitoring suits are specifically eliminated in SEC. 214. The effect of

this provision, along with Sections 203-204 and 214-217 is to make sure that anyone with

an injury from a vaccine MUST go through the Program first, and all class actions of any

kind are eliminated.

S 2053 eliminates parental claims for loss of consortium, society, companionship or

make sure everyone has to go through the Program first, and eliminates another form of

the civil suits ongoing across the country. The irony here is that the bill does not create

damages for parents under the program which are comparable to civil damages, and it

does not make it clear that parental claims in the civil system will have their statutes of

limitations tolled by filing a child’s claim in the program. The practical effect of this

may be to eliminate parental claims altogether.

S 2053 requires, in this section, a "present physical injury", preventing any actions for

medical monitoring. The section further specifically adds the "equitable relief" language

and eliminates actions for claims of "medical monitoring, or increased risk of harm".

This provision may have the added effect of denying compensation to someone who had

a terrible injury under the program which lasted for some period of time (even years), but

who has now recovered and does not have a "present physical injury." This is a good

example of how drafting language with one purpose may have other dramatic, unintended

consequences.

S 2053, in these three sections, affirmatively states that an "adulterant or contaminant

shall not include any component or ingredient listed in a vaccine’s product license

application or product label." The purpose of these clarifications is to eliminate the legal

theory that Thimerosal is a contaminant or adulterant.

any civil action against the manufacturer, brought by a family without first going through

with 202-203 and 214-217 in preventing direct actions against the manufacturers.

With parental claims, medical monitoring and Thimerosal as adulterant representing the

only options for families outside of the Program, the Frist amendment acts as a three

strikes and you’re "in" bill, effectively preventing any direct action against a vaccine

manufacturer without first going through the Program.

S 2053 gives the Government additional weapons in its arsenal to knock down

petitioners’ arguments and ultimately deny claims. It does so by creating "new" causes

for the injury that Frist’s amendment deems "unrelated" to the vaccine. This provision

allows the Respondent to use medical ignorance to deny compensation. The government

normally has to prove alternate causes of injuries. Senator Frist wants to give them

presumptive alternate causes. The result will be to deny compensation to even more

claimants. Proving causation with one’s hands tied behind the back is hard enough, but

Frist wants to tilt the playing field even further, and the children be damned.

S 2053 destroys Petitioners’ hard-fought and grudgingly conceded progress in getting

realistic and "real world" compensation for injured children. The amendment reinforces

the Program’s original language and gives the Secretary of HHS the sole right to

determine what is an "appropriate" formula for determining projected lost earnings. In

the past this "discretion" has led to the absurd and contradictory result of injured

children’s projected earnings being reduced by Social Security taxes, though they will

never work and pay into Social Security, AND being reduced by the FULL COST OF A

HEALTH INSURANCE POLICY (sometimes thousands of dollars) despite the fact that

"average" workers are NOT responsible for the full cost, but rather a sharply reduced

amount as their employer pays the balance. It has further allowed the Government to

selectively use data from the Bureau of Labor Statistics while refusing to provide

Petitioners with data.

of families to exercise their rights under the Program.

filed within two years of the date of death.

right to effective counsel. The children injured by vaccines face an adversary of nearly

unlimited financial and scientific resources. Their cases reach levels of complexity, both

medical and legal, that would rival any toxic-tort class action. Their lawyers are, in effect,

pro bono representatives throughout the course of the case, often for years, and unable to

meet or even approach a level playing field with the Government’s lawyers.

S 2053 creates a brutal and unforgiving legal battle, ostensibly in the "best interests" of

injured children, strips them of their defenses and then forces them onto the field. In

short, S 2053 not only bloodies the battlefield, it fails to render even basic aid to the

wounded.