Fixing the Vaccine Act's Structural Moral Hazard

Pepperdine Dispute Resolution Law Journal Volume 12 | Issue 1 Article 1 2-8-2013 Fixing the Vaccine Act's Structural Moral Hazard Brandon L. Boxler Follow this and additional works at: https://digitalcommons.pepperdine.edu/drlj Part of the Dispute Resolution and Arbitration Commons, Food and Drug Law Commons, Medical Jurisprudence Commons, and the Torts Commons Recommended Citation Brandon L. Boxler, Fixing the Vaccine Act's Structural Moral Hazard, 12 Pepp. Disp. Resol. L.J. Iss. 1 (2013) Available at: https://digitalcommons.pepperdine.edu/drlj/vol12/iss1/1 This Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Dispute Resolution Law Journal by an authorized editor of Pepperdine Digital Commons. For more information, please contact , . Boxler: Fixing the Vaccine Act's Structural Moral Hazard [Vol. 12: 1, 2012] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL Fixing the Vaccine Act’s Structural Moral Hazard Brandon L. Boxler* I. INTRODUCTION On March 26, 2003, Rolf and Angela Hazlehurst filed a claim to recover damages for injuries their son allegedly sustained after receiving a measles, mumps, and rubella (MMR) vaccine.1 Four years of discovery followed, during which counsel for the Hazlehursts requested documents and deposed officials from three federal agencies.2 They next sought to subpoena extensive product safety information from Merck & Company,3 and as the trial date approached, the attorneys even considered asking a court in the United Kingdom to unseal expert reports in a case involving similar claims of vaccine injury.4 When the Hazlehurst case finally reached trial in October 2007,5 the record contained 1,085 medical articles and 50 expert reports.6 Seven experts testified for the Hazlehursts, with specialties ranging from toxicology to gastroenterology.7 The defense responded by calling fourteen of its own experts, including four immunologists, two child psychiatrists, * Brandon L. Boxler is a law clerk to the Honorable Ed Carnes, U.S. Court of Appeals for the Eleventh Circuit. He received a B.A. (magna cum laude) from the University of Richmond and a J.D. (order of the coif) from William & Mary School of Law. The author thanks Professor Rebecca Green for her insightful comments and feedback on an early draft of this article, Jill for her endless support, and the staff of the Pepperdine Dispute Resolution Law Journal for their hard work preparing this piece for publication. 1. Hazlehurst v. Sec’y of Health & Human Servs., No. 03-654V, 2009 U.S. Claims LEXIS 183, at *2 (Fed. Cl. Feb. 12, 2009). 2. Id. at *8-9. A group of attorneys known as the Petitioners’ Steering Committee represented the Hazlehursts and coordinated proceedings for thousands of cases alleging vaccinerelated autistic disorders. Id. at *7. 3. Id. at *9-10. The discovery request sought “any research, survey, study, test or other investigation, whether published or not, that was not conducted by Merck . . . but that Merck was aware of, regarding the neurological and neurodevelopment human . . . health effects of the MMR [vaccine].” Id. at *10 n.9. 4. Id. at *308. 5. Id. at *14. 6. Id. at *18. 7. Id. at *23. 1 Published by Pepperdine Digital Commons, 2013 1 Pepperdine Dispute Resolution Law Journal, Vol. 12, Iss. 1 [2013], Art. 1 and an infectious disease specialist.8 It took the presiding judicial officer sixteen months to weigh all of the evidence, and in February 2009, she issued a two-hundred page decision denying compensation.9 The Hazlehursts then continued to pursue their case on appeal, asking two separate courts to reverse the adverse decision.10 Only after losing both appeals did they finally give up.11 In many ways, the Hazlehurst case moved through the legal system like a typical complex products liability lawsuit—the plaintiffs engaged in an adversarial process over the course of several years that involved numerous depositions, hundreds of documents, and dozens of experts.12 The Hazlehursts, however, did not file a products liability lawsuit.13 Nor were they litigating in federal district court.14 The Hazlehursts filed their claim for damages in the Vaccine Injury Compensation Program (Vaccine Program or Program),15 a supposedly streamlined, nonadversarial alternative dispute resolution scheme that compensates those injured by government-recommended vaccines.16 Congress designed the Program as an informal adjudicative process that would “work faster and with greater ease than the civil tort system.”17 But as the Hazlehurst case demonstrates, the Program does not always achieve those ideals.18 Claims filed in the Program often take several years to resolve, cost tens of thousands of dollars to pursue, and eventually percolate to traditional federal courts.19 The Program is failing to accomplish its purpose. This Article examines why proceedings in the Vaccine Program are mimicking the adversarial nature of traditional tort litigation. Part I reviews the socio-legal environment that prompted Congress to create the Program. Part II outlines the basic structure of the Program and highlights many of its alternative features. Part III then discusses a flaw in the statute creating the Program that incentivizes claimants to adopt litigious and adversarial postures—namely, that claimants have no reason to stop fighting their cases 8. Id. at *34-35. 9. Id. at *543. 10. See Hazlehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343 (Fed. Cir. 2010); Hazlehurst v. Sec’y of Health & Human Servs., 88 Fed. Cl. 473 (2009). 11. Hazlehurst, 604 F.3d at 1354. 12. See id. at 1343; Hazlehurst, 88 Fed. Cl. 473; Hazlehurst, 2009 U.S. Claims LEXIS 183. 13. Hazlehurst, 2009 U.S. Claims LEXIS 183, at *2. 14. Id. 15. 42 U.S.C. § 300aa-10 (2006). 16. See infra Part II. 17. Shalala v. Whitecotton, 514 U.S. 268, 269 (1995). 18. Hazlehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343, 1354 (Fed. Cir. 2010). 19. See infra Part IV. 2 https://digitalcommons.pepperdine.edu/drlj/vol12/iss1/1 2 Boxler: Fixing the Vaccine Act's Structural Moral Hazard [Vol. 12: 1, 2012] PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL because all costs that they incur while appealing an adverse decision are reimbursable regardless of the outcome of the appeal. Part IV provides both empirical and anecdotal evidence to illustrate why this “free appeals” design flaw is a type of structural moral hazard that has permitted the Program to devolve into a litigious adjudicatory process. Finally, Part V proposes statutory amendments and other solutions that can restructure the Program into the streamlined, efficient alternative forum for dispute resolution that Congress intended, and it responds to potential criticisms of the proposed solutions. II. THE 1980S VACCINE LIABILITY CRISIS A. Benefits and Risks of Vaccines Vaccination against infectious diseases “has been one of the most spectacularly effective public health initi (...truncated)