Can You Sue for Vax Injury Today? Ask the Seventh Amendment
by Mary W Maxwell, PhD
If you were injured by a Covid-19 vaccine, including fatally injured, is there any money due? Yes, in 2005, Congress passed the PREP Act. The gist of it was that health emergencies require speeded-up production of “countermeasures.” (That’s a code word for vaccination, which I recall being worried about when it appeared in 2002 in the constitutionally outrageous Homeland Security Act.) (Caused by Bin Laden, you know.)
The PREP includes a “Countermeasures Injury Compensation Program,” a CICP. Money that can be obtained from it will come from taxpayers. Why? Because Big Pharma has enough influence, I presume, to obtain legislation that protects vaccine manufacturers from liability. This is but an example of how any interest group can press Congress into service. I’m familiar with how this worked in regard to the autism epidemic of the late 1980s. See below.
The Seventh Amendment Right To Sue
Amendment VII of the US Constitution says, about as plainly as could possibly be said:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
Nonetheless, in 1986, Congress placed a barrier to that, for parents of autistic children who claimed the autism resulted from vaccination. This legislation, The National Childhood Vaccine Injury Act (NCVI), all but deleted the Seventh Amendment. It required the parent to first go to the new NCVI court, before suing anyone.
Yes, in 1986 Congress created a new federal court out of thin air. It’s constitutional to do so under Article I, sec 8, clause 9, “The Congress shall have Power… to constitute Tribunals inferior to the supreme Court.”
Please listen to the NCVI story, before we get to the Covid compo business. Normally governments have a right to claim sovereign immunity and not get sued. But in 1948, Congress set up a United States Court of Federal Claims, allowing people to seek action for torts. As published in the Code, at 28 USC 1346, you can sue “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
In the vaccine saga, however, the person who does the neglecting is not the government; it is the manufacturers of the vaccine, perhaps, or the doctor or nurse who went a jab too far. The only way the feds got to create this court was on the far-out justification that the vaccine recipient, that is, the jabee, was doing a public good. The jabee helped others not have the disease spread to them.
The Table
Per the 1986 National Childhood Vaccine Injury Act, no individual has to prove her case, provided she meets the factors listed on the “Vaccine Table.” Thus, many cases are for a foregone conclusion. For example, if the injury sustained after a vaccination is encephalopathy, chronic arthritis, paralytic polio, etc (but not autism), the case will be paid.
Qualifications for an award are as follows:
The claimant (technically called “the petitioner”) must be a child, not an adult.
The injury must have occurred shortly after the jab (but up to 30 days if paralytic polio).
The claim must be filed within 36 months of injury.
Payments are as follows:
The average award as of 2010 was $822,000, the top award being $4.9 million.
The ‘pain and suffering’ component of the calculation is capped at $250,000.
All death cases are paid exactly $250,000. (This figure is the same as it was in 1986.)
Autism, and the Omnibus Cases
I am sure the autism epidemic came from vaccinations. I won’t try to defend that here and of course you need not accept such a hypothesis. But we can look at the way the government dealt with autism claims.
Many parents told their doctors that trouble started soon after the MMR immunization (a combined injection of vaccines against measles, mumps and rubella). The immediate reaction included such things as fever, listlessness, crying, and diarrhea; a further reaction included standard symptoms of autism, such as loss of acquired speech, social withdrawal, and self-harm.
Since autism did not appear on the Vaccine Table, there was no guarantee of payment. Litigants had to prove the causal link between the vaccination and the illness. By 2008, nearly 5000 families were saying that the MMR vaccine had caused their child to have a developmental disorder. The court chose to combine all autism claims into one, calling it the Omnibus Autism Proceedings.
Instead of judges, the NCVI law set up “Special Masters.” These were not physicians or chemists, yet their task was to make a determination as to causality. They decided to divide the Omnibus claims into two groups. One group claimed that thimerosal, a preservative used to give vaccines shelf life (i.e., to kill bacteria), was the culprit. Another group claimed that it was specifically the mercury, within the thimerosal, that was doing the damage.
The result was that the Omnibus claims were defeated en masse. Three judges heard the first group by using “test cases.” The selected children in the first group were: Michelle Cedillo, Colten Snyder, and Yates Hazlehurst. This test case lost, no ‘causality’ having been found. The court had the gall to rebuke doctors for having misled the parents!
Two of those first three appealed to the Circuit Court and lost. The second group had William Mead, Jordan King, and Colin Dwyer as its representative children. That case lost and they did not appeal.
Unjust Procedures
Now get a load of the way in which that newly created court, in 1988, deviated from judicial norm:
1. ‘Discovery’ is not available (you can’t subpoena your opponent’s records).
2. The masters are appointed for four-year renewable terms. (Think about it.)
3. Attorneys can be paid even if the case does not win. (A lose-win situation for law firms!)
and — fasten your seatbelt —
4. The main physician opposing the parents was not subject to cross-examination.
Note: the injured party can opt to reject an award offered because of The Table, (presumably hoping for more $$); if he does, he’s then allowed to sue manufacturers in regular state court. But now see what happened to Hannah Bruesewitz.
Wyeth
The following is from the syllabus of Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011).
“Hannah Bruesewitz’s parents filed a vaccine-injury petition in the Court of Federal Claims, claiming that Hannah became disabled after receiving a diphtheria, tetanus, and pertussis (DTP) vaccine manufactured by Lederle Laboratories (now owned by respondent Wyeth). After that court denied their claim, they elected to reject the unfavorable judgment and filed suit in Pennsylvania state court…. Wyeth removed the suit to the Federal District Court.
“It granted Wyeth summary judgment, holding that the relevant Pennsylvania law was preempted by 42 U. S. C. §300aa–22(b)(1), which provides that “[n]o vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side-effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings. The Third Circuit affirmed.”
At SCOTUS, the ruling was affirmed. Scalia wrote the opinion, with Roberts, Kennedy, Thomas, Alito, and Breyer joining. Fathom it! Sotomayor dissented, with Bader-Ginsburg joining. Consider — while you recall Bill Gates statement that his vaccine business returns “twenty-to-one” — the following statement from the ruling:
“Taxing [Pharma’s] product to fund the compensation program, while leaving their liability for design defect virtually unaltered, would hardly coax them back into the market.” I say they would never have needed to be coaxed.
A Somewhat Different Set-up for Victims of Covid Vax
Regarding the infamous Covid vaccines, of Pfizer and Moderna, I mentioned that 2005 PREP Act created a Countermeasures Injury Compensation Program (CICP) for emergencies. We have been in an emergency since February 2020.
In a Forbes article dated November 4, 2021, Adam Andrzejewski stated that the legal payout is as follows:
“Each person with a ‘provable’ injury from a Covid vaccine could claim up to $379,000 from a special Covid vaccine fund set up by the federal government. [The amount is related to lost employment at $50K per year.] The payout for death could be as high as $370,376.”
In October 2021, a piece at the Congressional Research Service said:
“To encourage expeditious development and deployment of medical countermeasures during a public health emergency, the PREP Act authorizes the Secretary of HHS (the Secretary) to limit legal liability for losses resulting from the administration of medical countermeasures such as diagnostics, treatments, and vaccines. In a declaration effective February 4, 2020 (the PREP Act Declaration), the Secretary invoked the PREP Act and declared COVID-19 to be a public health emergency warranting liability protections for covered countermeasures.” [Emphasis added]
Today, at the website of Health Resources and Services Administration, I found this:
As of January 1, 2023, the CICP has rendered decisions on 496 COVID-19 claims.
Total COVID-19 CICP Claims Filed: 11,065
Pending Review or In Review: 10,569
Decisions: 496
Eligible for Compensation and Pending Benefits Determination: 14
Denied: 482
Requested Medical Records Not Submitted: 39
Standard of Proof Not Met and/or Covered Injury Not Sustained: 81
Missed Filing Deadline:104
Not CICP Covered Product/Not Specified: 25
The Situation in Australia
The website health.gov.au, last updated June 2022, says:
“The scheme covers losses or expenses of $1,000 and above due to administration of a TGA-approved COVID-19 vaccine, or due to an adverse event that is recognised to be caused by a COVID-19 vaccination.
“See Services Australia for more information about making a claim under the COVID-19 vaccine claims scheme, including:
eligibility criteria, including which conditions and injuries are eligible and which aren’t
what costs you can claim
what evidence you need to support your claim.
“Our COVID-19 Vaccine Claims Scheme policy contains full details of requirements.”
There are 4 COVID-19 vaccines currently in use in Australia:
Vaxzevria (AstraZeneca)
Comirnaty (Pfizer)
Spikevax (Moderna)
Nuvaxovid (Novavax).
Like all medicines, vaccines can have side effects (also known as adverse events). Almost all of these are mild and resolve within a few days.
The Therapeutic Goods Administration (TGA) closely monitors vaccine safety. It often finds that adverse events or suspected side effects are not caused by the vaccine itself.
In rare cases, some people may suffer a severe impact after a COVID-19 vaccine.
Commentary
Notice how the justice system falls apart to suit the “needs” of mega-corporations. In the US, both the legislature and judiciary went AWOL. I think we have to say that government is working only for certain elites and not for the population. Worse, since the pandemic, and the autism epidemic are, I believe, planned genocides, it is reasonable to say that the US government is warring on us.
For Australia, one can blame the Parliament and the monarch. (Per the Australian Constitution, the monarch sits in Parliament, but you know what I mean.)
In both countries, even when there was ostensibly a way to compensate persons for damaged health, “The Powers That Be” saw to it that, instead, the hopeful litigants got crazed with the frustration, pressure, and finally the defeat of their efforts.
I would start by impeaching judges. Of course, the persons doing the impeaching are the equally hopeless legislators, in US. In Australia, only the vice-regal Governor-General can effect an impeachment of a judge.
I would impeach the three judges still on the Top Bench who ruled against Ms Bruesewitz’s Seventh Amendment rights, in Wyeth. Sure, a Pennsylvania law stood in the way and judges are adjudicators, not lawmakers, but they could have declared the Pennsylvania law unconstitutional. Roberts, Alito, and Thomas need to get their comeuppance.
You can’t have a Constitution and not have it at the same time. It’s one or the other.
Finally, I should mention that any law ever made by Congress can be modified, or amended, or repealed by any subsequent Congress. That includes NCVI and PREP.
Oh, and the PATRIOT Act. Remember that one?
