If vaccines cause autism, you’d think “vaccine court” would be a great place to find the evidence for it. Compensated claims typically include extensive details about timelines, medical tests, and doctors’ opinions. They read more like case reports in medical journals than legal settlements.
Established through the National Childhood Vaccine Injury Act of 1986, the original purpose of the vaccine court (officially called the United States Court of Federal Claims special masters) was to quickly and expeditiously pay any claims made by American citizens for vaccine injury. The vaccine court is buried within the Department of Health and Human Services (HHS), and when you petition the vaccine court because of a vaccine injury, you’re actually suing the federal government, and the lawyer representing the government (and therefore opposing your claim) will be a Department of Justice lawyer. Due process in vaccine court is nonexistent. there’s no jury, just a single court-appointed “special master” who hears your case and makes a decision.
Since 1989, when the vaccine court began to operate, these special masters have awarded more than $3.8 billion to vaccine-injured Americans (children and adults).4 Of the total cases filed since the court came into existence in 1998, there have been twelve hundred claims filed for death and eighteen thousand filed for injury. The DTP vaccine is the most common vaccine for claims to be filed against, with MMR in second place. Of the people who file claims with the court, approximately 34 percent end up receiving compensation; 2017 was actually the single biggest year for claims paid, with just over $282 million.
Rolf Hazlehurst, an assistant attorney general from Tennessee, has been an outspoken critic of the vaccine court, particularly since he had to fight his way through it as a claimant on behalf of his son Yates, who he believes developed autism as a result of his vaccinations. In a memorandum to the US Congress in 2013, Rolf Hazlehurst described the court:
Vaccine court is not a court of law. It is an administrative proceeding in which the most basic rules of law do not apply. In vaccine court, the Rules of Discovery, Evidence and Civil Procedure do not apply. There is also no judge or jury. In vaccine court, the American legal system has been replaced by what is known as a special master. A special master is an appointed government attorney.5
Why Does the Vaccine Court Exist?
This may seem like an elementary question, but it’s not. The purpose of the vaccine court is to protect the vaccine program, not to monitor vaccine safety or mete out justice. The year the vaccine court began operating—1989—is important to this story, because that’s also the birth year many point to as the beginning of a meteoric rise in the number of children with autism. Three other potentially monumental things happened in 1989: the hepatitis B vaccine was licensed, the Hib vaccine was licensed, and, for the first time, a second dose of the MMR vaccine was recommended for all American children.
When the vaccine court was established in 1986, there were only three vaccines given in the United States—DTP, polio, and MMR—and vaccination rates hovered between 50 and 60 percent nationally.6 Today, there are eleven vaccines for children, given in multiple doses, with vaccination rates hovering around 90 percent nationally. There is an enormous difference between the market the vaccine court was created to “protect” and the market today. In raw numbers there are nearly four times as many vaccine doses given each year to children than there were in 1986, even though the US population has only grown by 0.3 in that same time period.
Beginning in 1989, the US vaccine schedule quickly morphed from the one the vaccine court was created to support to a far larger schedule with more complexity. This isn’t a coincidence; the vaccine court removed all liability from vaccine makers, greatly altering the risk/reward calculation in their favor.
When the court was established, the word “autism” was never even discussed. By the late 2000s autism almost brought the entire court, and the vaccine program, to a screeching halt.
Changes Make It Nearly Impossible to Win Claims
Few people know that the vaccine court amended its rules in 1995 to make it harder to win a claim in vaccine court, largely due to the increasing number of claims made as the vaccine schedule became bloated. By revising its Vaccine Injury Table—a list of “accepted” injuries from various vaccines, the court quietly made the standard for proving a vaccine injury much higher. As one simple example, claims for DTP shots causing brain injury were paid on roughly 25 percent of filed cases before the 1995 changes and only 5.4 percent of cases after the changes were made, a decrease of more than 80 percent.7 Testifying before Congress in 1999, Barbara Loe Fisher, the president of the National Vaccine Information Center, explained:
The principal reason why the Vaccine Injury Compensation Program has become highly adversarial and is turning away three out of four claimants is that the Department of Health and Human Services (DHHS), with the assistance of the Department of Justice (DOJ), has wielded its discretionary authority to all but eliminate a just list of compensable events in the Vaccine Injury Table, thereby destroying the guiding tenet of presumption.8
Recognizing vaccine injury is no easy task; few doctors are able to recognize any of the signs. As I first mentioned in chapter 2, the United States has a vaccine injury reporting system called the Vaccine Adverse Event Reporting System (VAERS) database. Estimates are that VAERS captures roughly 1 percent of all vaccine injuries.9 How many vaccine injuries actually make it into vaccine court? A fraction of a fraction of a fraction of 1 percent. (I can’t find any accurate data, but the number is clearly tiny or the vaccine court would have exploded in size.)
The burden is on the parents to track “adverse events,” despite the fact that pediatricians almost never explain all of the possible side effects. Parents might be told to expect redness at the injection site, swelling, maybe some fussiness or mild fever. Nothing some infant Tylenol can’t fix.
Perusing the website of a vaccine court attorney today, you can see how strongly the decks are stacked against those injured by vaccines. Richard Gage & Associates, one of the top vaccine lawyers in the country, lets potential clients know that “obtaining compensation for a vaccine injury is a complex, sometimes extremely difficult process.”10 Parents of a child who received compensation shared their view about what the experience was like:
DOJ [Department of Justice] attorneys were disrespectful and combative. . . . The Compensation Program should be about compensation and not about defense of the vaccine program.11
A critical report from November 2014 about the vaccine court produced by the Government Accountability Office (a federal agency) found the court wasn’t accomplishing what it had been purportedly created to do: to make vaccine injury compensation quick and fair.12 The report noted that most claims take “multiple years to adjudicate” with 51 percent taking more than five years.
Parents who have filed claims in the court report that the compensation program has an “adversarial environment” and a statute of limitations (three years from the date of injuries being exhibited) that reduces the likelihood that parents can even file claims. This is far worse when it comes to autism, a condition that wasn’t even contemplated when the court was created.
As Mr. Hazlehurst’s memo further explains:
The procedural “catch 22” of vaccine court works as follows. Under the Vaccine Act, before the parents of a vaccine-injured child may file a lawsuit in a court of law, they must first timely file a claim in vaccine court. However, the Vaccine Act has a 3-year statute of limitations, which begins to run upon the first symptom of injury. Under the CDC vaccine schedule children receive their first vaccinations either at birth or 2 months of age. However, in most cases, children are not diagnosed with autism until they are 3 or 4 years old. Therefore, by the time the child is diagnosed with autism, the statute of limitations has run in vaccine court and the parents are forever denied the right to proceed with a lawsuit in a court of law.13
In a 1998 article for the Washington Post, journalist Arthur Allen criticized the changing standards of the vaccine court and explained the excruciating (and ultimately losing) journey of a family whose son had become extremely disabled from the DTP vaccine.14 With the changes to the Vaccine Injury Table, Mr. Allen noted, “the burden of proof in most cases now lies with the petitioners, and that is a tricky business, because proof is an elusive matter in ailments of the brain.” Mr. Allen caught the former medical director of the Vaccine Injury Compensation Program, Dr. Geoffrey Evans, in a vulnerable moment, explaining the true purpose of the vaccine court:
there’s a larger issue, too. They want parents to immunize their children, and for that they want the record to show that vaccines are safe. “I’m not going to say that awarding too many people will undermine vaccine safety, but I look on the Internet, and I see that our statistics are taken out of context,” says [Dr. Geoffrey] Evans, the medical director of the compensation program.
I want to highlight something Mr. Allen wrote above: “They want the record to show that vaccines are safe.” Dr. Evans viewed his job as protecting the vaccine program, and he made it clear that awarding “too many people” for vaccine injury could very much “undermine” vaccine safety.
Why does this matter? Because shortly after Dr. Evans made this comment, the court was flooded with claims—claims from way “too many people” for something that no one had even discussed when the vaccine court was created in 1986: autism.
Omnibus Autism Proceeding (OAP)
By 2002, four years after Mr. Allen’s article in the Washington Post, the vaccine court was overwhelmed with hundreds of claims for autism, a previously rare disorder (at the time) that was experiencing an explosive rise. Lawyers were warning the court that thousands more claims were headed their way. Chief Special Master (the head judge of the vaccine court) Gary Gronkiewicz, in response, issued an order in July of 2002 to address an “unusual situation” facing the court:15
This situation arises out of concern in recent years that certain childhood vaccinations might be causing or contributing to an apparent increase in the diagnosis of a type of serious neurodevelopmental disorder known as “autism spectrum disorder,” or “autism” for short.
The vaccine court’s solution for handling so many claims was complex, painstaking, and ultimately catastrophic for the families involved. In simple terms, the vaccine court took more than 5,500 claims from parents alleging vaccines caused their child’s autism and put them into a single group. Six “test cases,” which were later narrowed to three, were singled out from these 5,500 claims, and the results of the test cases would impact the totality of claims made in the court. Parents were given the choice to opt in to the Omnibus Proceeding, putting them at the mercy of the outcome of the test cases, or opt out and file a separate claim in the court themselves. Most decided to opt in.
Unfortunately, seven years passed between the formation of the OAP and the final judgment by the special masters, and in that time many special interests found ways to intervene and corrupt the proceedings, as Wayne Rohde explained in his 2014 book, The Vaccine Court:
The OAP, for all the good intentions it was designed to achieve, quickly became a corrupt legal proceeding, all to accommodate the pharmaceutical industry, the medical community, and our government, instead of determining compensation for thousands of vaccine-injured children and the tens of thousands to come in the future.16
As the attorneys representing the 5,500 claims began to organize themselves, the choice of test cases became incredibly important to the outcome of the proceedings, as well as the first opportunity to corrupt the legal proceedings.