- The Washington Times - Friday, December 20, 2002

It should come as no surprise to some, but contingency fee personal-injury lawyers were the biggest special-interest group lobbying Congress in the final moments of debate on the recently passed homeland security bill. They lost their battle, and they are proving to be bad losers.
Even now, after the bill has been signed into law by the President, they are pushing for changes for "next year."
The Homeland Security legislation passed 90-9 on Nov. 19, 2002, following a contentious fight pushed by the personal injury lawyers' special interests to strike several litigation management provisions from the bill. One of the major targets of these lawyers and their supporters in the Senate was and still is a section making it absolutely clear that longstanding rules for lawsuits against vaccine manufacturers also apply to manufacturers of vaccine ingredients. The clarification provided in the Homeland Security Act preserves an injured person's right to recovery for injuries related to vaccines, but makes it harder for contingency fee personal injury lawyers to recover windfall fee awards in these cases.
Plaintiffs' lawyers had argued that manufacturers of vaccine ingredients were excluded from a no-fault compensation program set up for injured people seeking recovery from manufacturers of vaccines. Instead of having to go through the compensation program, as they would if they sued a vaccine manufacturer, plaintiffs' lawyers could proceed directly to filing lawsuits against manufacturers of vaccine ingredients. Such lawsuits include suits against manufacturers of thimerosal, a mercury-based preservative used in vaccines that some plaintiffs claim is linked to autism.
No scientific studies have shown a link between thimerosal and autism. But lawyers can find "experts" who allege that there is such a connection. Companies that have been sued over thimerosal include Eli Lilly and Co., Wyeth and GlaxoSmithKline Plc. Now, claims against ingredient manufacturers must first go through the no-fault compensation program.
The vaccine injury compensation program was set up in the mid-1980s to provide a quick, no-fault alternative to runaway tort lawsuits that forced vaccine manufacturers out of business. Congress recognized at the time that vaccines are a high-profile target for lawsuits, because they are intentionally injected into healthy people. Vaccines, like any medical procedure, have a risk.
Potential liability can occur if these risks arise. Liability also can occur if any illness arises in a person who has been vaccinated. An "expert" may be found who will say that it was the vaccine that caused the harm.
In their attempts to escape the no-fault fund, plaintiffs' lawyers have argued that ingredients such as thimerosal are "contaminants" and that the fund does not apply to ingredient manufacturers. As of June, 68 lawsuits were pending, 11 of them are class actions. One seeks $30 billion in damages; the entire value of the worldwide vaccine market is about $5 billion.Another lawsuit, in Florida, is claiming as many as 175 million victims. If these lawsuits and others like them continue against the vaccine industry, some companies will disappear, and there will be little incentive for the remaining companies to continue producing or conduct research about vaccines. These are proven facts: excessive lawsuits have caused the number of vaccine manufacturers to drop during the 1980s from 12 to four.
Contrary to the plaintiff's bar's sound bites in the media, the litigation management provisions do not cut off anyone's right to sue. Instead, they give people injured by vaccines and their ingredients the ability to obtain a fast, no-fault recovery for their injuries from a national fund paid for by manufacturers. Most people agree to a settlement through this fund, but if they are not satisfied with their award, they can then choose to file a civil lawsuit.
The no-fault compensation program provides many benefits. It is good for injured people because it allows them to get compensation for their injuries quickly, instead of making them go through the expense, delay and uncertainty of trial. In fact, they may not even need a lawyer to file a claim. It is good for manufacturers, because fewer civil lawsuits mean less resources spent on litigation and higher insurance premiums. It is very good for the public, because manufacturers can invest more money in developing and improving new and existing products. That is why the no- fault injury compensation program received strong support from an overwhelmingly Democratic Congress in 1986.
Obviously, the program is bad medicine for wealthy personal injury lawyers. They make their money by taking a share of a plaintiff's settlement or damages award often 25 percent to 33 percent or more. Having cases against manufacturers of vaccines or their ingredients go through a no-fault compensation injury program makes it less likely that plaintiffs' lawyers will recover a share of "jackpot justice" punitive damages awards.
Companies that make vaccines and their ingredients will be among the primary defenses in America's war against terrorism. Chipping away at their resources through lawsuits based on junk science prevents financial and human resources from being invested in products that can help protect the American public from terrorism.

Victor E. Schwartz is partner at Shook, Hardy and Bacon in Washington and chairs the firm's public policy group.He is an expert on tort reform and acts as general counsel to the American Tort Reform Association. He is an author and a professor at University of Cincinnati College of Law.

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