The Vaccine Injury Compensation Program was created after lawsuits drove drugmakers from the market.
— In 2019, after a routine vaccination, 11-year-old Keithron Thomas felt a sharp pain in his shoulder and down his arm. His mother, Melanie Bostic, thought it would go away after a few days. But days turned to weeks, then months, and years.
Bostic learned of a federal program designed to help people who suffer rare vaccine reactions.
The Vaccine Injury Compensation Program was created in 1986 after a flood of vaccine injury lawsuits drove drugmakers from the market. Congress aimed to offer a faster and more generous path to compensation for people injured by vaccines, while shielding manufacturers from liability. The VICP, commonly known as vaccine court, is taxpayer-funded. The government pays any award to claimants as well as attorneys fees.
Bostic filed a claim in 2022 for compensation to cover her son’s spiraling medical bills. She then contacted the Carlson Law Firm, which referred her to Arizona-based attorney Andrew Downing — who now serves as a senior adviser to Health and Human Services Secretary Robert F. Kennedy Jr.
Downing declined to comment and HHS did not respond to requests for comment for this article.
Downing, who has represented hundreds of plaintiffs in vaccine court in Washington, D.C., signed on to take their case, according to a contract reviewed by KFF Health News. They agreed Downing would pursue the claim before the VICP.
Bostic shared documents and medical records as he requested them. Months passed as she waited for news on her son’s case.
After several months of making court filings, Downing told her it was time to opt out of the vaccine program and sue the drugmaker. When she refused to opt out, he withdrew from the case.
The government paid Downing $445 an hour for representing Bostic, which is typical for program attorneys with his experience, according to court records.
Three years later, Bostic said, she hasn’t received a dime for her son’s injury. Thomas, now 18, endures debilitating pain that doctors say may never go away.
Rather than help them work through the program, Bostic feels that Downing steered them away from it and toward a lawsuit against the manufacturer. The VICP ultimately dismissed her case.
Bostic was furious that the court paid Downing anything.
“Y’all could’ve gave that to me for my son,” she said. “How dare y’all.”In Business With Washington
In June, Kennedy’s HHS also awarded Downing’s law firm, Brueckner Spitler Shelts, a sole-source federal contract to consult on an overhaul of the VICP. The contract has grown to $410,000. Downing is the only attorney listed on the firm’s website who has practiced in vaccine court.
Kennedy has routinely questioned vaccine safety and called the VICP “broken,” saying it shields drug companies from some liability “no matter how negligent they are.” As a personal injury lawyer, Kennedy previously spearheaded civil litigation against vaccine maker Merck.
Downing and about a dozen other lawyers have transferred hundreds of clients from the vaccine program to civil suits, where the financial rewards — for patients and their lawyers — could run far higher, according to a KFF Health News analysis of court records and program data. They’ve collected millions of taxpayer dollars in attorneys fees from vaccine court while launching precisely what it was designed to avoid: lawsuits against vaccine manufacturers.
This shift in legal strategy has fueled Kennedy’s crusade against Merck, and it could end up hurting some vaccine-injured clients, several experts said.
University of California Law-San Francisco professor Dorit Reiss has studied vaccine court for over a decade and has tracked the rise of anti-vaccine forces in American politics. She said VICP attorneys who are also suing vaccine makers have “incentives to direct more people” to lawsuits, “when it might not be in their best interest.”A Delicate Balance
Kennedy has criticized the VICP as a barrier to accountability. But for Bostic, vaccine court offered an opportunity to hold the government to its promise of caring for casualties of widespread immunization.
Like any medication, vaccines can have side effects. Serious reactions to routine shots are rare, but for the unlucky few who bear this burden, the government promises recourse through its administrative program.
Vaccine court aims to strike a balance between protecting public health and helping individuals who may pay its price. The no-fault program allows claimants with vaccine-related injuries to get help without showing that the vaccine maker did anything wrong, even when the evidence doesn’t meet courtroom standards.
The program has made more than 12,500 awards, totaling roughly $5 billion in compensation. Historically, nearly half of claims have been resolved with some kind of award.
If patients aren’t satisfied with the outcome or don’t get a ruling within 240 days, they may leave the administrative program and sue the vaccine maker in civil court. Plaintiffs could potentially win larger awards. Lawyers could obtain higher fees, which they can’t in vaccine court.
But winning a civil suit is far more difficult, in part because plaintiffs have a greater burden of showing the vaccine caused their injury and that the maker was at fault. Since the VICP was created, no vaccine injury lawsuit has won a judgment in regular court, records show.
That hasn’t stopped some lawyers from trying. After the requisite 240 days, they have transferred hundreds of VICP claims into civil litigation against HPV vaccine manufacturer Merck, the KFF Health News analysis found.
The lawyers who represented those claims include Downing and other VICP attorneys with ties to Kennedy, court records show. Those include Kennedy advisers and people who work in the law office of his longtime personal lawyer Aaron Siri or with Children’s Health Defense, the anti-vaccine outfit Kennedy founded, as well as a former Kennedy co-counsel in suits against Merck over its HPV vaccine, Gardasil.
