By David Durochik
Chicago Lawyer
October 1990

For the victims of the DPT vaccine and their families, help may be more closely within their reach than they realize. "Many victims may not even be aware that an alternative to extended litigation exists," commented Kenneth Moll of Chicago's McDowell & Colantoni. The opportunity to which he was referring is filing a claim under the National Vaccine Injury Compensation Program, which was set up in 1988 to implement Congress' intent to create a federal no-fault program through which persons injured by certain types of vaccines may receive compensation "quickly" and with "generosity."

On April 12 of this year, Special Master Brian J. Bernstein awarded Colleen Nuzzo $4.5 million in what may be the largest award under the program since its inception. The money will be used to pay for rehabilitation and care for Colleen's two-year-old son, Andrew, who was rendered developmentally disabled after he received two routine DPT immunizations in 1986. (Nuzzo v. Secretary of the Department of Health and Human Services, No. 88-74-V, United States Claims Court, April 12, 1990.)

Andrew received his first DPT immunization when he was two months old. The next day, he screamed constantly except when he slept. His parents observed that he was drawing or "jerking" his knees up to his waist and he was glassy-eyed. Despite these symptoms, he was given a second injection when he was four months old. Thereafter, he became listless and suffered a variety of seizures. The two immunizations left Andrew with brain damage, residual seizure disorder, and shock.

The Nuzzos were referred to Moll, who had successfully represented couples in two other cases for claims under the National Vaccine Injury Compensation Program. The need for the program grew out of a series of events beginning in 1984. In that year, at least one DPT vaccine manufacturer withdrew temporarily from the market because of its inability to obtain liability insurance. This occurrence, plus the increasing numbers of lawsuits filed on behalf of children injured by the vaccine against manufacturers, led other manufacturers to theaten (sic) to go out of business. Because of the relatively small number of vaccine manufacturers, Congress was urged to act to prevent vaccine shortages and increased disease among children. Moll explained that Congress set up the program to provide compensation to the victims of vaccine injuries. A trust fund was established through surcharges on eight vaccines, including the DPT type and those to prevent mumps, measles, rubella, and polio.

Section 42 U.S.C. 300aa-13(a) of the National Childhood Vaccine Injury Act states that a claimant shall be awarded compensation if he or she demonstrates by a preponderance of the evidence that the injured party (1) received a vaccine listed in the Vaccine Injury Table, Section 300aa-14 (see the "Lines of Attack" column in this issue), (2) suffered a listed injury within the specified time period following the administration of the vaccine, (3) suffered the residual effects of the injury for at least six months, and (4) incurred unreimbursable expenses of at least $1,000 or died from receiving the vaccine and has not collected compensation for Time is running out, and Kenneth Moll said he is concerned.

Oct. 1 is the deadline for filing claims under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.A. 300aa-10 through 300aa-34. The government fund exists for children who died or exhibited specific symptoms following vaccinations administered prior to Oct. 1, 1988.

"Many attorneys are not even aware of this act," said Moll, whose firm, McDowell & Colantoni Ltd., has brought suit in the U.S. Court of Claims on behalf of more than 250 families. "How do you expect parents to know if attorneys don't even know?"

Moll said the U.S. Department of Health and Human Services was charged with informing the public about the fund, but "they've done very little."

The program provides $80 million a year for five years for cases involving vaccinations given prior to 1988, Moll said. For problems stemming from vaccinations after 1988, a fund was set up from surcharges on vaccinations.

Moll said most suits stem from vaccines against diphtheria, pertussis and tetanus, referred to as DPT; or vaccines against mumps, measles, rubella and polio.

Under terms of the act, a table lists the included vaccines. The act requires that the vaccine must have been administered in the United States to a U.S. citizen and that certain symptoms must have been exhibited within a set time.

Rules are available from the Claims Court. Moll said he would provide attorneys copies of the petition and other information.

"I'm not in it for the money," said Moll, a 1988 graduate of IIT Chicago-Kent College of Law. "As an associate, any money goes to the firm, anyway.... I've seen what's tearing at the parents."

Part of what tears the parents are neighborhood whispers about the cause of death: Knowledge about deaths stemming from vaccinations used to be slim, leaving the parents to deal with questioning looks.

If the child survives, serious problems may follow.

Moll saw those results for himself last spring when he took a four-year-old child to court. The child's restraints and helmut (sic) were removed.

What followed were crying and screaming, starring (sic) spells and petit mal seizures.

"He went wild," Moll said. "This child has 100 to 2,000 seizures a day. He has photosensitivity seizures. His windows at home are blacked out. His parents can't wear patterns. If he sees patterns, he has staring spells."

The court awarded more than $4.5 million, believed to be one of the largest resulting from the act. The maximum allowed for compensation for the family of a child who died is $250,000, Moll said. A separate fund that tops out at $30,000 covers attorney fees, costs, pain and suffering and future lost wages.