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Your Rights and the Law
Vaccines: A Closer Look
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Contact Congress
Oppose Senator Frist's Vaccine Bill S 2053 & HR 5282

Last month we asked you to write letters to your Congressional Senators to
oppose the diabolical Frist Bill (S 2053) which completely exempts vaccine
manufacturers from any liability and creates many other problems for the
vaccine injured.

Well, recess has come and gone, and not only is it back, but it is
multiplying and has a House companion bill HR 5282.

Please write to your Congressional Representative by linking to  urging him or her to DEFEAT HR 5282 and
instead, support the Congressman Burton and Waxman's HR 3741!

You could even cut and paste the supporting documentation below into your
note.  If you can take a few extra minutes and contact the committee chairs
listed below also, that would go a long way to derailing this monster.

If you are really feeling spunky, you could even save a copy of your letter
to your Representative and get it to your local newspaper and encourage them
to do a story on this.  Politicians who make policy decisions based on
political contributions often change their tune and respond when they know
the public is watching.

Thank you Jeff Sell for putting this together for us.

Dawn Richardson, PROVE

HR 5282 By the Numbers...Again

Representative James Greenwood (R-PA) has introduced the "Improved Vaccine
Affordability and Availability Act" or HR 5282, to amend the National
Vaccine Injury Compensation Program ("Program"). While undoing every gain
that petitioners' families have made over the past several years, HR 5282
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. This week he changed HR 5282 again, and launches
a new and improved assault, not only on the children of this country, but
their families too. While nearly every section of the amendment is
disheartening, several sections stand out. The latest version is contrasted

Reducing Public Awareness

SEC. 201: Administrative Revision of the Vaccine Injury Table
     HR 5282 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
awareness of this Program, and thus, limit the number of potential
petitioners. In this new version, Frist further reduces the time allowed for
the public's input to a mere 60 days. Again, the effect is a drastic
reduction in public awareness, and the public's ability to challenge these

Removing All "OPT-OUT" Actions

SEC. 202: Equitable Relief
     HR 5282 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, HR 5282 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. A new twist was added with this latest version.
With the addition of the "past injury" concept, Frist manages to pull a
whole new class of injured into the Program as well. Whether your injury is
past or present - you MUST GO THROUGH THE PROGRAM. This concept is carried
throughout the changes. Again, everyone must go through the Program.

SEC. 203: Parent, Legal Guardian or Spouse Petitions for Compensation
     HR 5282 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. An added boost to the manufacturers here - while
the bill had originally forced parents to wait until the child's claim had
been filed in the Program, now the child MUST ALSO PREVAIL on his claim and
be awarded compensation. Then the Parent must file a newly-created
"derivative" petition within 60 days of the final judgment of the child's
case AND get their OWN judgment (or have elected to withdraw their
derivative petition). But here's the real catch - if the child wins AND
accepts the award...the parents, legal guardians, and spouses, are BLOCKED
from filing civil suits. As for the parents' judgments in a derivative
suit - they are capped at the lesser of $250,000 or the equal of the child's
awarded compensation

      HR 5282 then creates a new group of those "eligible to file": Parents,
legal guardians or spouses. This group may file derivative petitions, which
requires the following:

      1.  An affidavit, and supporting documentation, demonstrating that:
              a.  the child was previously awarded compensation in a final
              b.  the derivative petition was filed NOT LATER THAN 60 days
after the date which the child's judgment became final
              c.  the parent suffered a loss compensable under section
2115(b) i.e. lost earnings, pain & suffering & attorneys fees, as a result
of the vaccine-related injury or death sustained by such child, AND
              d.  such parent has not previously collected an award or
settlement of a civil action.

SEC. 214: Clarification of Standards of Responsibility
     HR 5282 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". He adds "past
physical injury".

 SEC'S. 215-217: Clarification of Definitions of Manufacturer,
Vaccine-Related Injury or Death and Vaccine
     HR 5282 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
      HR 5282 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 bill
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. The bill adds the derivative petitioners here - parental, legal
guardian, and spousal claims MAY BE REMOVED AND DISMISSED.

Strengthening Goliath's Position

SEC. 206: Clarification of When Injury is Caused By Factors Unrelated to
Administration of Vaccine
     HR 5282 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 HR 5282 deems "unrelated" to the
vaccine.  This provision now gives the government the power to deny
compensation if a child has any structural lesion, genetic abnormality,
toxin, infection, trauma, or metabolic disturbance, AND THE GOVERNMENT
POTENTIAL CAUSES OF THE INJURY ALLEGED.  The absurdity of this is evident.
Obviously, there are genetic and other differences in children that explain
why some children react to a vaccine and some do not.  If that were not the
case, then every child would react identically.  This section will have the
effect of denying compensation for most children who file in this program.

Weakening David's Position

SEC. 208: Basis for Calculating Projected Lost Earnings
     HR 5282 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

Other Key Points

     HR 5282 fails to provide a "look back" provision, as in HR 3741 that
will allow hundreds of families to exercise their rights under the Program.
     HR 5282 fails to extend the statute of limitations for death cases -
death cases must still be filed within two years of the date of death.
     HR 5282 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.
     HR 5282 also FAILS to provide for interim costs with a neat semantics
trick: changing his prior language of allowing interim costs (not including
attorneys fees), Rep. Greenwood, in his benevolence, now says that the
Special Master may award interim costs SO LONG AS THE SPECIAL MASTER OR
THE PROGRAM. The only problem is that entitlement is decided AT THE
END-which is clearly NOT in the interim.
     HR 5282 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.

Other changes:

     HR 5282 changes the definition of "timely resolutions of claims". For
purposes of this provision the petition shall be deemed to be filed on the
date on which all petition contents and supporting documents are served on
the Clerk of the Court. That means that you wait out the deadline period and
then withdraw the case and file civilly. In order the file a civil suit, you
have to file a complete vaccine case - not just wait out the time period.
     HR 5282 amends the provisions related to the Trust Fund as follows: In
section 9510( c )(1) of the Internal Revenue Code by first adding the phrase
"or related loss" to bring in derivative claims. It further changes the
following text: "Amounts in the fund shall be available for the payment of
all expenses of administration (striking 'but not in excess of $9,500,000
for any fiscal year') incurred by the Federal Government in administering
such subtitle (adding "(i) 125 percent of the base amount for any fiscal
year in which the total number of claims pending under such subtitle exceeds
150 percent of the average number of claims pending in the preceding 5
years, (ii) same language but for 175 percent/200 percent split, (iii) same
225 percent/250 percent, (iv) or 275 percent/300 percent.)
      HR 5282 now applies to all pending and subsequent actions or
proceedings to the enactment date unless a court has entered judgment
(regardless of whether the time to appeal has expired) in such action or
proceeding disposing of the entire action or proceeding.


Rep. James Greenwood (R-PA) has introduced HR 5282 in the House.  This is
the companion bill to the Senate version that was introduced by Sen. Bill
Frist, the infamous S 2053.  The House version has the same problems the the
Frist Bill has so, the same analysis applies.  Contact Rep. Greenwood's
office if you care to comment (hint, hint).

    2436 Rayburn House Office Bldg.
    Washington, D.C. 20515
    (202) 225-4276
    (202) 225-9511 (fax)
or by e-mail

    Also, this bill may soon be taken up by the House Subcommittee on
Health, Chaired by Rep. Michael Bilirakis (R-FL).  Take the time to contact
his office and let the Subcommittee know how you feel.
    Chairman Michael Bilirakis
    Sub-Committee on Health
    The Committee on Energy and Commerce
    2125 Rayburn House Office Building
    Washington, DC 20515
    (202) 225-2927
    (202) 225-1919(fax)
Feedback link:
Also, to reach Chairman Bilirakis directly via e-mail, you need to jump
through a few hoops.
Go to or , if that doesn't work, go
to , then go to the E-mail Congressman
Bilirakis section and type in a local zip-code such as:  34639 -4437  and
you should be able to send him an e-mail.  He is difficult to reach if you
don't live in his District.

    PLEASE, remind them that HR 3741--the Burton/Waxman bill is preferred by
all those who truly care for children.

To View the last alert on Opposing S 2053 Click Here.

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April 5, 2008

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