First published in the Niagara Falls Reporter

2003 Jan

OLEAN -- Scientists and mathematicians frequently advance the Chaos Theory
to explain unanticipated consequences. It states that tiny variations in
beginning conditions can trigger mammoth, lasting transformations in the
end results.

Its basic principle is sometimes referred to as the Butterfly Effect -- as
in, say, a hurricane being whipped up by ever-increasing wind vectors over
a period of days and weeks after being catalyzed by the tiniest
imperceptible change in air current when a butterfly somewhere flaps its
pretty little wings.

Our ancestors perceived this basic idea without naming it. It often appears
in venerable literature and verse: "For want of a nail, the shoe was lost;
For want of a shoe, the horse was lost; For want of a horse, etc. ... " You
get the picture. A tiny nail goes missing and a kingdom topples.

This theory of seemingly random cascading events is scoffed at by some
academics, but I'm starting to believe in it.

How else to explain a formative scintilla of hatred in a formative mind in
a desert nation somewhere three or four decades ago sparking the current
imminent danger that a basic taken-for-granted freedom will soon be lost to
all Americans?

I'm talking about the traditional right of redress for unfair physical
injury by seeking fair adjustment in an American court. Yours could
evaporate soon.

Among vaccine safety advocates and much of the legal profession the
suspicion is that big pharmaceutical companies are using Sept. 11 and its
aftermath of constant terrorism warnings as a cloak to protect themselves
against future such litigation -- justified or not, connected to terrorism
or not. Congress is about to grant such permanent waiver of liability.

Here's the background.

In the early 1980s, drug companies were being snowed under by costly
lawsuits over deaths and serious debilitating reactions to certain
vaccines. They threatened to stop making the vaccines if they didn't get
protection from liability claims. In 1986, Congress created a compromise --
the Vaccine Injury Compensation Program.

Under it, dead and damaged children and their parents would be compensated
without costly litigation against the drug companies by showing causation
and reaction under an established table of injuries. The program was funded
by a very small fee paid by the parents and attached to each vial of the
many vaccines children receive these days. It mounted up. By the new
millennium, the fund held more than a billion dollars. Out of the millions
and millions of infants and toddlers given shots over the years, there have
been about 7,600 applications for compensation by victims of childhood
vaccinations, but only 1,800 awards.

The program was considered a great success until 1995, when the Department
of Health and Human Services -- pressured by pharmaceutical lobbyists
seeking to limit even that meager number of awards -- quietly changed the
table of injuries and "compensable events" and raised the causation
standards to a very high bar, one almost impossible to clear. At the same
time, the Department of Justice started sending over tough veteran trial
attorneys to defend the allegedly no-fault federal program against all
comers as if the fund were Fort Knox and the damaged children were masked

Parents who wandered into the compensation thicket without a seasoned tort
attorney discovered themselves trapped in a process even more adversarial
than the court system, and they were usually wiped out by the Justice
lawyers. Despite a growing wave of claims, two of three children who now
apply for financial help with their vaccine injuries are denied.

The 1986 law respected the basic legal privilege of citizens by leaving
clear access to the civil tort system -- the freedom to sue vaccine
manufacturers or negligent doctors -- if the child was turned down for
compensation. Only a handful of such vaccine injury lawsuits were brought
since the compensation program was established.

That is, until the last few years, when the rates of severe childhood
autism began to double and triple annually in some regions. Tort lawyers,
vaccine safety advocates and many medical researchers suggested the reason
was increased use of certain childhood vaccines that contained, as
preservatives, mercury compounds found in separate research to cause brain
damage, chronic neurological dysfunction and lasting insult to the immune

The most frequently used preservative compound in question, thimerosal,
contains mercury, and tort lawyers have some heavy federal artillery
available in preparing any vaccine injury complaints stemming from such
inoculations. The American Academy of Pediatrics, the U.S. Public Health
Service, the Food and Drug Administration,and the Institute of Medicine in
recent years have all urged vaccine manufacturers to remove thimerosal from
immunization products. Still, it remains a common component of many such
shots. The vaccine makers could see a tsunami of lawsuits on the horizon.

OK, rewind your mental tape back to the months in the wake of Sept. 11 and
the Bush administration's legitimate concern over smallpox -- perhaps the
most hideous contagious disease faced by Americans in their two
centuries-plus of existence. Intelligence agencies bombarded the White
House almost daily with warnings that terrorists possess or will soon
possess weaponized versions of this devastating disease that was supposedly
conquered a quarter century ago. The White House and HHS quickly responded
by beefing up stores of the very reactive smallpox vaccine and starting
immunization of troops deploying to the Middle East and of "first
responders" -- frontline emergency workers such as health care, public
safety, law enforcement and other civilian professionals. About half a
million in this category will get the smallpox shots.

Some powerful organizations are balking.

The Communications Workers of America sent Bush a letter last week
complaining about "inadequate safeguards for workers in the program,"
including a lack of information about the risks of vaccination and no plan
to monitor adverse effects or risk to family members who also will be
exposed to the live virus from loved ones vaccinated. "Frontline workers in
the fight against terrorism should not be required to shoulder the economic
risk," wrote CWA president Morton Bahr.

No matter. The smallpox inoculation program of "frontline" responders rolls

The government's smallpox shots initiative made sense to most Americans,
and the White House wisely made general civilian reception of the shots, at
least for the time being, voluntary. The Centers for Disease Control says
about 42 of every million persons who receive smallpox inoculations will
suffer severe side effects and maybe two out of every million will die.
Those with suppressed immune systems and chronic illnesses will be even
more vulnerable.

But lost in all the sky-is-falling publicity about threats of terrorism was
a rider inserted into the recently-passed Homeland Security Act that
protects pharmaceutical firms, hospitals, doctors and medical workers from
liability for smallpox vaccine injuries and deaths.

This might seem logical. As defense policy analysts at the influential Cato
Institute -- a Bush-favoring think tank in Washington -- explained, "The
specter of liability claims clearly damages the incentive of manufacturers
to produce new doses of the vaccine S potential litigation risks reduce the
incentive for pharmaceutical companies to produce vaccines in general and
the smallpox vaccine in particular."

But the clause cleverly inserted into the Homeland Security Act also
shielded vaccine makers from liability lawsuits for using components of
vaccines, like mercury, that can cause brain damage and degradation of the
immune system. Lawmakers on both sides of the aisle -- some of whom never
noticed the shielding language -- are now promising to remove it.

They seem ready, however, to add the protective passages to new imminent
legislation being pushed by pharmaceutical lobbyists -- total reform of the
Vaccine Injury Compensation Program described above.

Vaccine safety advocates are howling.

Barbara Loe Fisher, president of the private sector National Vaccine
Information Center -- the country's largest vaccine safety advocacy group
-- calls the smallpox policy jammed into the Homeland Safety Act
"heartless" since smallpox was thought eliminated from the planet and not
even covered under the Vaccine Injury Compensation Program of 1986.

The Homeland Security Act, she says, "leaves the victims of a
government-sponsored mass vaccination program without any recourse to
either civil litigation or federal compensation for the vaccine injuries
they sustain. It is wrong for the U.S. government to tell Americans to take
the smallpox vaccine and then, when someone dies or is injured because of
that policy, nobody takes responsibility."

Her organization is concerned "that the attitude the Department of Justice
is taking toward smallpox vaccine victims is the same attitude that will
prevail as Congress prepares to go back into the VICP (Vaccine Injury
Compensation Program) to fix the many problems with it. Big drug company
lobbyists and public health officials have always tried to discount the
extent of vaccine injuries, and it is clear that an attempt will be made to
shield drug companies from all liability while leaving most vaccine victims
out in the cold."

The VICP was already inadequate under the tradition of American fairness.

Autism is a good example.

The average age of diagnosis for the onset of autism is 3.5 years. The VICP
bill-drafters made sure the legislation preempted forgiving state and
federal statutes of limitations for minors. Even the current VICP language
imposes a strict three-year limit on claims from the date of injury, the
vaccination itself -- not the date of discovery of injury, or recognition
of causation, which is the language in much of tort law.

Thus, victims of autism, by the time symptoms are evident and recognized,
are already timed out -- as the lawyers put it -- from being considered for
compensation from the federal compensation program. Going into court is
their only option for redress if they think a vaccine caused their problem.

If the liability waivers are allowed to stand, or are incorporated into new
VICP language, forget any evidence of causation. Existing lawsuits will be
nullified and scores of thousands of autism sufferers will lose all chance
of being heard under the vaunted American judicial system, no matter how
good their cases.

So here we are in the turbulent wake of the chaos theory.

A federal program that worked is weakened by big business erosion.

Those ostensibly covered under it are further hammered by a new law hastily
passed in the aftermath of terrorist acts.

And to cure that defect in American liberty, Congress contemplates further
gutting the original solution.

Count on this: These chickens of childhood health policy will come home to

That little bottom-line butterfly may flap up a terrible storm of eventual
deleterious health effects.

"Cutting off the threat of lawsuits," warns Fisher, "will cut off all
incentive for the government and industry to make the compensation program
work properly. It will remove the financial incentive for the drug
companies to continually improve the safety of their vaccines. If you
combine mandated vaccines with no liability and no accountability for
anyone involved, it is a prescription for injustice and abuse of the public

Just the kind of chaos the big drug companies like.

John Hanchette, a professor of journalism at St. Bonaventure University, is
a former editor of the Niagara Gazette and a Pulitzer Prize-winning
national correspondent. He was a founding editor of USA Today and was
recently named by Gannett as one of the Top 10 reporters of the past 25
years. He can be contacted via e-mail at

Niagara Falls Reporter January 28 2003

Dawn Richardson
PROVE(Parents Requesting Open Vaccine Education) (email) (web site)
PROVE provides information on vaccines, and immunization policies and
practices that affect the children and adults of Texas.  Our mission is to
prevent vaccine injury and death and to promote and protect the right of
every person to make informed independent vaccination decisions for
themselves and their family.
This information is not to be construed as medical OR legal advice.