National Childhood Vaccine Injury Act of 1986: An Ad Hoc Remedy or a Window for the Future
![handle is hein.journals/ohslj48 and id is 399 raw text is: National Childhood Vaccine Injury Act of 1986: An Ad
Hoc Remedy or a Window for the Future?
VICTOR E. SCHWARTZ* & LIBERTY MAHSHIGIAN**
Last year, Congress enacted legislation creating an innovative method of
resolving claims for childhood vaccine injuries.1 It establishes a mandatory no-fault
compensation system for persons injured through childhood vaccines. After the
no-fault proceedings, the claimant has the option of accepting the compensation
awarded, if the injury were found to be vaccine-related, or bringing a civil action
against the vaccine manufacturer in which several limitations on the manufacturer's
tort liability would apply. The legislation responded to two concerns: (1) liability for
these injuries was causing United States manufacturers to stop producing vaccines,
and (2) children injured by vaccines were often without a source of payment or
compensation for their medical and rehabilitative needs, leading to greater resort to
the tort system for some form of financial relief.2
Expanding tort liability and the tort system's impediment to product develop-
ment have been concerns raised by manufacturers in other industries who are seeking
reform in the product liability area through state and federal legislation. Efforts to
enact a federal product liability bill have been ongoing since the late 1970s with
legislation first introduced in the House of Representatives in 1980 by Rep.
Richardson Preyer3 and in the Senate in 1982 by Senator Robert W. Kasten.4 The
severity of the product liability problem may vary from industry to industry, but a
common factor is the unpredictability of product liability rules which continually
have been expanding in favor of the plaintiff.5 Proponents of product liability reform
argue that some of these expansions of liability have been unfair, and that the
unpredictable nature of variable product liability rules makes it difficult to make
reasonable actuarial assessments of future liability risks.6
The approach Congress took in the National Childhood Vaccine Injury Act of
1986-which on the one hand sets up a no-fault compensation system and on the
* Victor E. Schwartz is a partner in the law firm of Crowell & Moring in Washington, D.C. He obtained his B.A.
summa cur laude from Boston University in 1962. He received his J.D. magna cum laude from Columbia University in
1965. Mr. Schwartz served as Acting Dean and as Professor of Law at the University of Cincinnati. He is the drafter of
the Uniform Product Liability Act, formerly Chairman of the Working Task Force of the Federal Interagency Task Force
on Product Liability and Chairman of the Federal Interagency Council on Insurance. He is co-author of W. PROSSER, J.
WA.E AND V. SCHwA'RZ, CASES AND MATER S o ToTS, (7th ed. 1982), author of V. ScuwARz, COmPARATIVE NEGIMENCE,
(2d ed. 1986), co-author of ScuwAriz, LE, Sour, KEu, AND Mu.Ni, PRoDucr-Lrmsurv: CASES AND TREsNS (Prentice Hall),
and co-author of V. ScHwARTz, P. LEE AND K. KELLY, GUIDE TO MUL=TSTATE LmoATION (1985).
** Liberty Mahshigian is an associate at Crowell & Moring. She obtained her B.A. from Stanford University in
1980 and received her J.D. cum laude from the University of California, Hastings College of Law in 1983.
1. S. 1744, 99th Cong., 2d Sess. Title XXI, 132 CoNo. Rsc. HI1,597-606 (1986).
2. See H.R. REP. No. 908, 99th Cong., 2d Ses., pt. 1, at 4-5, reprinted in 1986 U.S. CoD CoING. & AD.miN. NEws
6344, 6344-46 [Hereinafter HOUSE REPORT].
3. See H.R. 7921, 96th Cong., 2d Sess. (1980).
4. See S. 2631, 97th Cong., 2d Sess. (1982).
5. See S. Rep. No. 442, 99th Cong., 2d Sess. at 5-8 (1986).
6. Hearings before the Subcommittee on Commerce, Consumer Protection, and Competitiveness of the House
Energy and Commerce Committee, 100th Cong., 1st Sess. (1987) (Statement of V. Schwartz).](ViewImageLocal?handle=hein.journals/ohslj48&div=25&collection=&method=preview&ext=.png&size=3)
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National Childhood Vaccine Injury Act of 1986: An Ad Hoc Remedy or a Window for the Future
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