How RFK Jr. could reshape vaccine litigation

If confirmed as U.S. Health and Human Services Secretary, Robert F. Kennedy Jr. has levers he could use to unleash vaccine-related litigation. This could be a welcome change for some anti-vaccine groups, which have seen their litigation efforts stymied since the end of COVID lockdowns.

Some plaintiffs' attorneys representing patients say Kennedy could do the most good by working within the existing National Vaccine Injury Compensation Program. But that might not satisfy some of Kennedy's most ardent supporters.

"This is still the best outlet for people that are injured by vaccines," said Renée Gentry, director of George Washington University's Vaccine Injury Litigation Clinic. "It is their best opportunity to get compensation and to get all their medical care covered. Bringing a civil case against a pharmaceutical company is an extraordinarily difficult thing to do."

Kennedy would have some options. He could attempt to revoke a declaration shielding COVID vaccine manufacturers from liability.

Former Secretary Xavier Becerra extended that protection through 2029 shortly before leaving office with the rest of President Joe Biden's administration.

Kennedy could also seek to add more injuries to a list of those covered by the Vaccine Injury Compensation Program. It has been widely speculated that Kennedy might seek to add autism to the disorders caused by vaccines, despite a lack of widely accepted medical evidence.

Anti-vaccination and vaccine skeptical groups won several court victories during the height of the pandemic. In one notable victory, multiple sets of plaintiffs won an injunction against AB 2098, a law sponsored by the California Medical Association that sought to bar doctors from spreading COVID misinformation. The plaintiffs won on free speech grounds.

But these groups may be finding less success as the pandemic fades into the background of American life. On Monday, U.S. District Judge Dale A. Drozd rejected a broad preliminary injunction against school vaccine mandates sought by a Santa Cruz based group that claimed they resulted in a "failure to provide a free appropriate public education to unvaccinated students with disabilities."

"To the extent other, unidentified, unvaccinated IEP students might possibly face exclusion from school, those students have access to administrative remedies and stay-put requirements that will preserve those students' access to education in the short and long-term," Drozd wrote.

The group's attorney, Campbell-based Richard B. Fox, said he had not been able to reach his clients by press deadline for comment. Brave and Free Santa Cruz et al v. Aragon, 2:24-cv-02312-DAD-JDP (E.D. Cal., filed Aug. 23, 2024).

"My own comment is that we will review the court's order in the Brave and Free Santa Cruz case and anticipate filing an amended complaint to address the court's concerns," Fox said in an email.

"It looks like it was correctly decided," Anne Marie Murphy, a partner with Cotchett Pitre & McCarthy LLP in Burlingame commented. "There was certainly not enough showing to justify an injunction. The plaintiffs had not exhausted administrative remedies, and they also had not shown that they or their children were being denied access to public school education because of their vaccine status."

Murphy brought cases on behalf of nursing home residents and their families stemming from COVID cases early in the pandemic. She has also written about what Kennedy could do to remove protections for vaccine-makers. While he does have some relevant powers, she said, much of the power still resides in states and with Congress.

"RFK Jr. may try to loosen any restrictions on vaccine liability, because there's alternative tort remedies in some cases including for the covered countermeasures," Murphy said.

"As for any COVID vaccine manufacturer lawsuits, those manufacturers are now shielded from any such lawsuits under the National Childhood Vaccine Safety Act," Fox said. "Mr. Kennedy's confirmation would not affect that immunity."

This is the 1986 law that created the National Vaccine Injury Compensation Program. Gentry practices law through the program via a tort alternative system based in Washington, D.C.

"The secretary of HHS can't get rid of the vaccine program," Gentry said. "Congress has to do that because it's established by Congress."

Gentry said vaccine injury compensation is a highly specialized and widely misunderstood area of law. Vaccine injuries are real, she said, but also uncommon. Most cases come in just two types: Guillain-Barré Syndrome, an autoimmune neurological disorder sometimes caused by flu vaccines, and shoulder injuries caused by improper vaccine administration. More serious conditions, including severe injury or even death from encephalitis, do happen but are extremely rare, she said.

The most worrisome possibility for her, Gentry said, is that Kennedy or other administration officials would attempt to "crash" the existing vaccine program. This could happen by "overloading" it with new claims, she said, or by firing or leaving open the medical reviewer staff positions needed for it to operate. If that happens, more claims would be diverted into the Countermeasures Injury Compensation Program, set up to address COVID-related injuries. She added this could be a "disaster" for people with legitimate vaccine claims.

As of Wednesday afternoon, Kennedy's confirmation was far from settled. Members of the U.S. Senate Finance Committee spent much of the day grilling him. Democrats on the committee laid into Kennedy for his prior anti-vaccine statements and accused him of profiting from litigation against vaccine-makers.

malcolm_maclachlan@dailyjournal.com