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Last Updated

18 Nov 2002

Source: Wall Street Journal, November 18, 2002.


Politicizing Vaccines

The production of vaccines against bioterrorism hardly seems like a partisan idea. But all of sudden it's emerged as a hot political controversy, as Democrats object to an effort to offer liability protection for companies that could protect Americans from smallpox or the West Nile virus.

We're delighted they brought it up. The state of the U.S. vaccine industry has been a national scandal for years, with needless shortages not just to immunize against bioterror threats but even against such routine childhood diseases as tetanus and whooping cough. The latest threat comes from a proliferation of lawsuits that enrich the tort bar but make vaccine production a masochistic exercise.

Democrats are protesting now because Republicans are trying to insert some liability protection for vaccine makers as part of the new homeland security legislation. "Leave it to the Republicans to sneak in a proposal that protects manufacturers of the vaccine, doctors and nurses and leaves the person who may be injured -- even by negligent action -- to bear the whole burden of their injury," declared Henry Waxman, the California Democrat. This sure sounds terrible, if it were only true.

The real story here is about thimerosal, a mercury-based preservative that vaccine makers once used. Though there was no evidence that thimerosal caused neurological disorders or other harm, the Clinton Administration recommended that companies stop using it -- and the tort follies began.

As of June lawyers had hit vaccine makers with 68 thimerosal lawsuits, 11 of them class actions. One in Florida is claiming as many as 175 million victims. Another is said to be asking for $30 billion in damages; the entire vaccine industry is only worth about $6 billion in global revenue.

Congress has already tried to stop this kind of thing once. In the mid-1980s plaintiffs' suits had driven all but three companies out of the vaccine business. Congress responded by creating the Vaccine Injury Compensation Program. VICP set up a no-fault alternative to the tort system, which would compensate families for the rare, but inevitable, side effects of government-recommended vaccines.

Parents could still sue in court, but only after they first went through VICP -- which was designed to be quick, generous and require lower burdens of proof. Since 1986 the government has awarded some $1.3 billion in compensation to more than 1,700 families. Vaccine makers and health providers received liability protection to stabilize the industry, and families received just compensation. Few went on to sue.

The only unhappy party was the tort bar, which has tried to get around the legislation ever since. The government's thimerosal recommendation was their opening. Some of today's suits claim thimerosal is a "contaminant" and thus doesn't fall under VICP's side effects. Others are suing not the vaccine manufacturers covered under VICP, but the companies that made the preservative. And since VICP only covers claims of more than $1,000, lawyers are aggregating claims of under $999.

If these lawsuits are allowed to proceed, forget about a stable supply of vaccines. As it is today, only four major vaccine companies supply preventive medicines against such diseases as whooping cough or measles. Most manufacturers have been driven out by skyrocketing regulatory costs and a government that uses its monopoly buying clout to pay a minimum for products.

In sum, the GOP liability effort is an essential part of homeland security that will save lives. Republican Bill Frist has been pushing this legal protection with the support of the federal Advisory Commission on Childhood Vaccines, the American Academy of Pediatrics and the physicians' community. Mr. Waxman and his Senate allies (Joe Lieberman intends to offer an amendment this week stripping out the Dick Armey provision that passed the House) have the trial lawyers' lobby. Americans can figure out who is really playing politics with vaccines.