Legal Reform in Congress' Lap. (Washington Diary)

Article excerpt

Congress may have fallen silent upon conclusion of the 107th legislative session, but it did not do so quietly. The election returns inspired Republicans and Democrats to reach an agreement on civil-service protections to be provided in the Department of Homeland Security, but several additional provisions included in the House-passed version of the legislation reignited partisan passions. Shock and outrage were expressed by Democrats, who contended that a provision to protect pharmaceutical companies from existing vaccine-related lawsuits was nothing more than a political payoff to a powerful special interest.

Democrats may have been justified in decrying the lateness of the additions, but padding bills commonly is practiced by both parties, causing the rhetoric to ring hollow. Less hollow were the arguments made by Sen. Joe Lieberman (D-Conn.) and Senate Majority Leader Tom Daschle (D-S.D.) to strip the bill of seven disputed provisions. Of special concern was a proposal to protect vaccine producers from liability claims, which the Washington Post maintained "could block pending litigation involving a mercury-based preservative that some parents blame for their children's autism."

In fact, lawsuits involving the vaccine preservative thimerosal would not block such litigation, as retiring Sen. Fred Thompson (R-Tenn.) clarified during floor debate.

The goal was not in fact to bar future lawsuits but "to roll these new lawsuits of the future into" the Vaccine Injury Compensation Program (VICP), where thimerosal-related claims commonly are made. According to the Department of Health and Human Services, awards to individuals with injuries judged to be vaccine-related have averaged $824,463, but some awards have been as high as $6 million. "You do not have to prove your injury was actually caused by a vaccine ... [and] if you are not satisfied, you can sue in court," Thompson added.

The creation of VICP in 1986 was a response to a growing number of lawsuits that had bankrupted several producers of governmentally mandated vaccines and threatened future vaccine production. The long-term impact is that there are only four companies worldwide licensed to manufacture and sell vaccines, and only two are U.S. companies. Contrary to postured opinion, there is little profit in the vaccine-producing industry, where the total global market value is only $5 billion.

In the end, the Senate voted 52-47 to defeat the Daschle-Lieberman amendment, and then overwhelmingly passed the homeland-security bill. The acrimony in the waning moments of the Senate session may be indicative of the politics to come in the 108th Congress, but was the debate a portent of future discussions about a myriad of legal-reform proposals likely to be addressed? Matt Webb, director of legal-reform policy at the Institute for Legal Reform says, "The [homeland-security and terrorism-insurance] debates were more about politics than the actual merits of the underlying provisions. It's not necessarily how things will develop next year."

When Republicans retake the gavel in the Senate, the remaining appropriations bills, as well as tax-cut measures and a prescription-drug plan, will top the agenda. But also to be addressed are several legal-reform initiatives that Democrats held hostage in committee. In fact, the disputed vaccine provision initially was included in the Vaccine Affordability and Availability Act introduced in March by Sen. Bill Frist (R-Tenn.), which was supported by the American Academy of Pediatrics. Chairman of the Health, Education, Labor and Pensions Committee, Sen. Ted Kennedy (D-Mass.), was close to agreement with Frist, but the two were unable to get over the hurdle of the lawsuits now pending in the courts.

Passage of the related provision in the homeland-security bill, however, will not prevent Congress from addressing VICP reforms, which both Frist and Thompson agree deserve a lengthier, more substantive, debate. …