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US Senate - Oppose Senator Frist's Vaccine Bill S 2053 (7/26/02)

Dear PROVE Members,
We have just received an urgent action alert from NVIC.  Please forward this
on to everybody.  We need everybody to contact your two U.S. Senators
immediately and ask them to contact the Senate Health committee urging the
members to oppose Senator Frist's bill S 2053.  It will be considered in
committee as an amendment to Senator Hillary Clinton's vaccine
appropriations bill on Wednesday July 31st. 

 
Your senator's phone numbers and links to send them an email note are listed by state at
http://www.senate.gov/contacting/index_by_state.cfm .  Please CALL and EMAIL today!  Just calling and sending a note just asking for S 2053 to be opposed will only take a couple of minutes.  

This bill would amend the Vaccine Injury Compensation Program in a way that
would completely shield a drug company from liability for vaccine injuries.
The hurdles parents have had to jump over which currently shield
manufacturers have been high enough There are many bad provisions to this
bill, and they are outlined below,  but the most problematic one will stop
the ability of a vaccine injury victim to bring a lawsuit in civil court.

Whether you have a vaccine injured child or not, you need to stand up for
the right of maintaining your rights to sue in the court system. If you
think vaccine injuries are bad now, what do you think they will be if there
is no industry liability at all? The drug companies are scrambling and
worried because of the lawsuits involving Thimerosal and autism. It makes
you wonder what documents might be discovered in a civil case that would
never be uncovered in the compensation program. Senator Frist and the drug
companies are trying to blame the current vaccine shortages on pending
Thimerosal lawsuits that haven't even gotten to court yet. They are
conveniently ignoring the real reason there were shortages: the FDA has
cited manufacturers for numerous violations!

Senator Frist tells us in his press release (at the bottom of this note)
that this bill will bring balance back to the Vaccine Injury Compensation
Program. NOT TRUE!! The Burton-Waxman bill, HR 3741 is a much better bill than
at addresses the existing problems in the compensation program, not problems
outside the program such as pending lawsuits.

The senators on this committee will handle this bill next week. If you live
in a state that has one of the senators either on the committee that will
vote next week or as a cosponsor it is imperative for you to get in touch
with their office immediately to express your opposition.  Then you need to
contact the office of your other senator and ask him/her to oppose the bill
and to call Senator Frist and the other committee members and ask them to
oppose it.  If you don't see your state listed, contact your two US Senators
for your state and tell him/her to oppose this bill and to call Senator
Frist and other committee members and ask them to oppose it also.

Edward Kennedy (D-MA),  (202) 224-4543
 senator@kennedy.senate.gov
Christopher Dodd (D-CT), (202) 224-2823
http://dodd.senate.gov/webmail/
Tom Harkin (D-IA), (202) 224-3254
tom_harkin@harkin.senate.gov
Barbara Mikulski (D-MD), (202) 224-4654
http://mikulski.senate.gov/mailform.htm
James Jeffords (D-VT), (202) 224-5141
http://jeffords.senate.gov/contact-form.html
Jeff Bingaman (D-NM), (202) 224-5521
Senator_Bingaman@bingaman.senate.gov
Paul Wellstone (D-MN), (202) 224-5641
 http://wellstone.senate.gov/webform.html
Patty Murray (D-WA), (202) 224-2621
senator_murray@murray.senate.gov
Jack Reed (D-RI), (202) 224-4642
http://www.senate.gov/~reed/form-opinion.htm
John Edwards (D-NC), (202) 224-3154
http://edwards.senate.gov/mailform.html
Hillary Clinton (D-NY), (202) 224-4451
http://clinton.senate.gov/email_form.html
Judd Gregg (R-NH), (202) 224-3324
http://www.senate.gov/~gregg/body_e-mail.htm
Bill Frist (R-TN), (202) 224-3344
http://www.senate.gov/~frist/Contact/contact.html
Mike Enzi (R-WY), (202) 224-3424
Senator@enzi.senate.gov
Tim Hutchinson (R-AR), (202) 224-2353
http://hutchinson.senate.gov/email.html
John Warner (R-VA), (202) 224-2023
http://www.senate.gov/~warner/contact/contactme.htm
Christopher Bond (R-MO), (202) 224-5721
kit_bond@bond.senate.gov
Pat Roberts (R-KS), (202) 224-4774
http://www.senate.gov/~roberts/email.htm
Susan Collins (R-ME),(202) 224-2523
Senator@Collins.senate.gov
Jeff Sessions (R-AL), (202) 224-4124
senator@sessions.senate.gov
Mike DeWine (R-OH), (202) 224-2315
http://dewine.senate.gov/

Also, there are two cosponsors of the bill that are not on the committee who
need to be contacted to be urged to remove their support for S 2053 and to
oppose it
.
Hutchison, Kay Bailey  (R - TX), (202) 224-5922
http://hutchison.senate.gov/e-mail.htm
Bunning, Jim  (R - KY), (202) 224-4343
jim_bunning@bunning.senate.gov

If you would like to view the bill for yourself, link to
http://thomas.loc.gov/  and type in S 2053 once
you get there.

There is an excellent summary of the bill written by Renee Gentry of the
Vaccine Injury Alliance: http://www.attorneyaccess.net/S2053ByTheNumbers.pdf
It is appended below - you can use it in your emails to committee members!

The following talking points and notes were adapted from a letter sent to
NVIC
by attorney Tom Powers.

The drug companies and thimerosal manufacturers have launched an all-out
sneak attack to destroy the legal rights of thimerosal-injured children.
Wednesday in Congress the so-called "Frist Bill" will have a hearing, debate
and vote in a Senate Health Committee meeting. The anti-child, anti-justice
provisions supported by Sen. Frist and his drug industry bakers are being
offered as amendments to Senator
Hillary Clinton's childhood immunization bill.

It is absolutely critical that committee members hear from parents of
thimerosal-injured children--the Senators need to hear from parents who are
outraged at this attack on the rights to seek justice and fair compensation
for these life-altering injuries.  We have only a few days to get messages
to members of the committee in order to make a difference tomorrow.

"Talking points" describing the bill are attached to this message, and can
help provide information you need to get your message across.  Please read
the talking points, put them into your own words, and then let the Senators
on the committee hear from you by fax, email and phone--and do it today!

Sen. Frist's amendments are anti-child, anti-justice and are an insult to
the families of thimerosal injured children.  The amendments should be
defeated.

While all the committee members need to hear this message, it is most
important that every family and friend contact his or her
own Senator immediately--by fax, email, and phone call.

With your help we can derail this sneak attack on the legal rights of
thimerosal injured children and their families.

Tom Powers
Williams Dailey O'Leary Craine & Love, PC
1001 SW Fifth Ave, Suite 1900
Portland, OR  97294
Phone  :  (503) 295-2924
Fax      :  (503) 295-3720
E-Mail  :  tpowers@wdolaw.com

Talking Points Re Frist Amendment re Vaccine Program:

1.The Institute of Medicine Vaccine Safety Review Committee, in its official
report on thimerosal and neurological disorders (including autism and ADHD),
on Oct. 1, 2001, found that it was BIOLOGICALLY PLAUSIBLE that the doses of
mercury received by infants from 1990 until mercury was removed from
childhood vaccines in 1999 could indeed cause these disorders, and
recommended a comprehensive program of medical and scientific research to
study the extent of the injuries to these children.
a.The CDC and FDA and NIH do not have the money available to fund these IOM-
recommended studies.

2. Starting last year, many concerned parents have filed class actions
seeking to get state courts to order the vaccine and thimerosal
manufacturers to fund these studies.   The vaccine manufacturers have tried
to remove these actions to federal court and get them dismissed. The federal
courts all over the country have rejected these industry maneuvers and have
ordered the cases back to state court in Washington, Oregon, California,
Florida and elsewhere.

3. Last week, for the first time a state court denied the manufacturer's
motion to dismiss an individual claim for injuries from the mercury in
infant vaccines and send the case to the Vaccine Court, ruling that it was a
fact question as to whether the mercury in the vaccines was a n "adulterant
or contaminant."

4. This bill would completely shut down all of these state court actions,
stop them in their tracks, and eliminate any possibility that any court,
state, federal, or Vaccine Court, could ever order that the IOM recommended
studies on the effects of mercury in vaccines be funded by the manufacturers
who profited from the lower cost of using mercury to sell vaccines in
multidose vials.

5.On June 11, 2002, a federal court in Texas ruled that if an autistic child
who first showed symptoms of that disorder more than three years ago, was
not only barred from filing a petition under the Vaccine Act, but has also
lost all rights to sue in state court-that is, has no remedy at all in any
forum. The extension of the sol in this bill to six years leaves this
decision undisturbed, and in fact, codifies it with the addition of the
subtle language "timely filed petition" in sec. 22, of the amendment.

6. There is no "look back" provision to allow children and their parents who
just now or in the future discover that mercury in vaccines may have caused
their child to suffer from mercury poisoning to bring a claim.   Since
almost all serious neurological disorders manifest themselves with some
symptom or sign by the age of 18 months, then even with a six year sol, any
child who is now 7.5 years old or older is still forever barred from
bringing a claim, anywhere, no matter what the research the IOM recommended
uncovers.

7. Many states permit parents of an injured child to recover for their
personal loss due to the child's injuries, and the Vaccine Act never before
required these claims to be brought in Vaccine court.  This bill preempts
all such state laws.

8. By eliminating all equitable relief (such as orders to industry to fund
the IOM studies), including explicitly medical monitoring, this bill would
ensure that these studies would most likely never be done.

9. The statute of limitations should be no more restrictive than the
applicable statute of limitations governing any child's claim in that
child's proper forum state.  This is an issue of basic constitutional right
to trial.
a.At the time of original enactment of the Vaccine Compensation Act,
Congress was clear that it did not intend to lessen the rights of children
and their families, but was intending to offer attractive alternatives to
classic tort litigation.

10.This bill is contrary to the recently stated intent of the Administration
and Congress to more closely supervise and monitor the illicit activities of
our nation's large corporations.  The Amendment would reward the
manufacturers of vaccines which clearly placed profit motives over the
safety of our nation's children.  The industry is given complete tort
immunity, notwithstanding the fact that the pharmaceutical companies placed
vaccines on the market without testing the safety, or toxicity of the
vaccines or the components that make up those vaccines.  In the face of
increasing knowledge of the potential for mercury to cause neurological
illness, the manufacturers turned a deaf ear to the fact that their vaccines
contained a potentially dangerous amount of mercury-derived preservatives.

11.The bill takes away rights of parents and spouses to seek redress in
state courts for classically and statutorily recognized causes of action, by
completely extinguishing those rights.
a.One state's appellate courts has confirmed the existence of such rights in
the past year, and the First Circuit Court of Appeals has also validated the
rights of a spouse to a cause of action resulting from his wife's
devastating illness.

12. This bill gives complete immunity to the manufacturers of mercury laden
vaccines and of thimerosal from ever having to pay for the studies that the
IOM Vaccine Safety Committee recommended; eliminates  the power of any court
(state, federal or administrative) to require through equitable orders that
kids exposed to high doses of mercury be notified of their exposure and that
they be followed to see what additional injuries or disorders may develop as
they grow older; and if subsequent scientific studies do in fact show
mercury in vaccines caused neurological disorders in kids, any child whose
parents did not file a claim by the time they were 7.5 years old is forever
barred from receiving any compensation for those mercury induced injuries,
even though the legislatures of virtually every state in the Union allow
claims for injured children to be brought until they are over the age of
minority (eliminate so called "minority tolling".)
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Vaccine Injury Alliance -- Analysis
www.vaccineinjury.org
Renee Gentry
 ***************************
S 2053 By the Numbers...

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.

Reducing Public Awareness

SEC. 201: Administrative Revision of the Vaccine Injury Table
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.


Removing All "OPT-OUT" Actions

SEC. 202: Equitable Relief
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.

SEC. 203: Parent Petitions for Compensation
S 2053 eliminates parental claims for loss of consortium, society,
companionship or services, loss of earnings, medical or other expenses, and
emotional distress until after a claim has been made through the Program.
The effect of this provision is to, again, 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.

SEC. 214: Clarification of Standards of Responsibility
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.

SEC'S. 215-217: Clarification of Definitions of Manufacturer,
Vaccine-Related Injury or Death and Vaccine
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.

SEC. 204: Jurisdiction to Dismiss Actions Improperly Brought
S 2053 gives the manufacturers the right to remove to the US Court of
Federal Claims any civil action against the manufacturer, brought by a
family without first going through the Program, and requires the USCFC to
dismiss the action. SEC. 204 works in tandem 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.


Strengthening Goliath's Position

SEC. 206: Clarification of When Injury is Caused By Factors Unrelated to
Administration of Vaccine
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.


Weakening David's Position

SEC. 208: Basis for Calculating Projected Lost Earnings
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.


Other Key Points

S 2053 fails to provide a "look back" provision, as in HR 3741 that will
allow hundreds of families to exercise their rights under the Program.  This
is a tragic injustice

S 2053 fails to extend the statute of limitations for death cases - death
cases must still be filed within two years of the date of death.

S 2053 fails to provide for interim attorneys fees. The families of injured
children have a 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.


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FRIST PROPAGANDA ***  FRIST PROPAGANDA  *** FRIST PROPAGANDA
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FRIST PROPAGANDA ***  FRIST PROPAGANDA  *** FRIST PROPAGANDA
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FOR IMMEDIATE RELEASE FROM SENATOR FRIST
June 24, 2002

FRIST URGES ACTION TO ALLEVIATE NATION'S VACCINE SHORTAGE Cites HHS
Secretary's Advisory Commission's Recent Support for Senate Legislation
WASHINGTON, D.C. - To rally action on proposed legislation to reduce the
critical national vaccine shortage, U.S. Senator Bill Frist (R-TN) today
spoke on the Senate floor to urge congressional action to approve
legislation he introduced in March. On June 6, his proposal gained
additional momentum when the Advisory Commission for Childhood Vaccines -
which advises the Secretary of Health and Human Services on improving the
Vaccine Injury Compensation Program - voted in favor of most of the Frist
bill's provisions.

 The following excerpts are from Senator Frist's statement on the Senate
floor:

"Today, many parents are being turned away with their children still
vulnerable to a range of dangerous and often deadly diseases. Five vaccines
that prevent eight childhood diseases have been in short supply in the
United States since last summer. "...the longer this shortage continues, the
more vulnerable our children will become. If we do not take prudent steps
today to address current and recurring vaccine shortages, it is almost
certain American children will experience an outbreak of diseases that could
be prevented." "Today, only four manufacturers produce vaccine for America's
children - just two of which are American companies. And new companies that
may want to produce vaccines are confronted with the high risk of liability
and little profit motive." "...one pending lawsuit seeks $30 billion in
damages while the total value of the global vaccine market is only $5
billion. This legal uncertainty has contributed to an exodus of
manufacturers from the vaccine market and a subsequent increase in vaccine
prices. In some cases, only one manufacturer is producing some of our most
critical vaccines." "The Improved Vaccine Affordability and Availability
Act, S. 2053 would restore balance to the Vaccine Injury Compensation
Program. It would help compensate those who suffer serious side effects from
vaccines while ensuring that unwarranted litigation does not further
destabilize our vaccine supply." "The decision before us is whether to build
on the success of vaccines in the 21st Century. And I speak not only of
vaccines that already exist and may be in short supply, but future vaccines
that will prevent HIV/AIDS or cure Alzheimer's or help the United States win
the war on terror through the development of safer vaccines to protect us,
and our children, against biological agents."

 Senators Kay Bailey Hutchison (R-TX) and Jim Bunning (R-KY) have
cosponsored Senator Frist's "Improved Vaccine Affordability and Availability
Act." The bill would require the federal government to build and maintain a
six-month stockpile of prioritized vaccines. It also would expand the
funding available for state and local efforts to boost immunization rates
among adults and children who are underserved or at a high risk to
vaccine-preventable diseases.

 In addition, the bill would restore balance to the Vaccine Injury
Compensation Program. This program was created in the mid 1980's to quickly
compensate those who suffer serious side effects from childhood vaccines,
while reducing the legal risk to doctors, nurses and manufacturers.

Frist is a member of the Health, Education, Labor and Pensions Committee and
a heart and lung transplant surgeon.
 
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