Biden Administration Seeks More Attorneys to Defend Against Vaccine Lawsuits

A syringe with an influenza vaccine sits on a table in an Oct. 14, 2020, file image. Mario Tama/Getty Images

President Joe Biden’s administration is increasing staffing for the office that defends against vaccine injury lawsuits.

The U.S. Department of Justice (DOJ) is expanding the vaccine litigation section in its Office of Constitutional and Specialized Tort Litigation, the agency said in a recent job listing.

Under the National Childhood Vaccine Injury Act of 1986, vaccine manufacturers are largely given immunity while petitions claiming injury or death from vaccination are defended by the government and adjudicated by the U.S. Court of Federal Claims.

The expansion of the tort office is meant to “address workload created by an increase in cases filed under the Vaccine Act,” the DOJ said in the announcement.

The DOJ is seeking eight lawyers in the expansion, all of whom would be based in Washington.

They would handle claims made to the National Vaccine Injury Compensation Program, which was established by the act.

Renee Gentry, a member of the Vaccine Injured Petitioners Bar Association, said she welcomed the announcement but lamented how the U.S. Department of Health and Human Services (HHS) is not adding medical reviewers, or staffers who initially review the claims.

“The Petitioner’s Bar fully supports both the DOJ and HHS being fully staffed to support the program. A similar announcement from HHS would be great to see for medical reviewers,” Ms. Gentry told The Epoch Times via email.

Medical reviewers are at present taking 12 to 16 months to review cases “because of a lack of staff,” according to Ms. Gentry.

HHS did not respond to a request for comment.

Increase?

While the DOJ said it was adding lawyers due to an increase in cases, claims have actually decreased since a peak in 2021.

A record-high 2,057 petitions were filed in fiscal year 2021, but that number plummeted to 1,029 in fiscal year 2022, according to government data.

In fiscal year 2023, the last full fiscal year, there were 1,167 claims.

Both the fiscal year 2022 and 2023 numbers are lower than some previous years.

“The timing of the government’s announcement is certainly interesting given its justification,” Elizabeth Brehm, a partner at Siri & Glimstad LLP, told The Epoch Times via email. “It would have made more sense for the government to have taken action anytime from 2016 through 2021 when the numbers of petitions filed were generally and significantly increasing each year.”

The DOJ’s media office did not respond to a request for comment.

A query to a DOJ contact on the job listing returned an automated message that directed people to contact another official. A query sent to that official did not receive a response.

Claims to a separate program, the Countermeasures Injury Compensation Program, have exploded during the COVID-19 pandemic. The program covers COVID-19 vaccines and the shots have a number of side effects.

The Countermeasures Injury Compensation Program was established by a bill called the Public Readiness and Emergency Preparedness Act of 2005. It is administered entirely by HHS, without any DOJ involvement.

It is more difficult to obtain compensation, and the compensation is often less, under the countermeasures program compared to the National Vaccine Injury Compensation Program.

The COVID-19 vaccines cannot be moved to the National Vaccine Injury Compensation Program until Congress approves an excise tax for the COVID-19 vaccines and the HHS secretary adds the vaccines to the Vaccine Injury Table.

Ms. Brehm said the addition of more DOJ attorneys might be in anticipation of claims related to the COVID-19 vaccines moving to the national vaccine injury program, but whether that happens “remains to be seen.”

Some advocates support moving the claims but due to the lack of action, joined a recent lawsuit, filed by Siri & Glimstad LLP, that argues the Countermeasures Injury Compensation Program is unconstitutional and asks a federal court to impose a myriad of changes to it.

Proposed Modernization

A bill introduced this year in the U.S. House of Representatives would improve the National Vaccine Injury Compensation Program, including by adding additional special masters, or judges who oversee petitions.

Even with the DOJ expansion, and even if more HHS reviewers were added, “we still need the additional special masters in HR5142,” Ms. Gentry told The Epoch Times in an email.

The number of special masters is currently just eight, despite the jump in cases over the years.

The new bill would change the ceiling of eight special masters to at least 10 as well as allow special masters to spend more time in the position.

Thousands of claims are pending and petitioners typically must wait years now for their cases to be adjudicated. The backlog stems from the unchanged number of special masters and the spike in covered vaccines, Ms. Gentry has said.

The bill was introduced by Reps. Lloyd Doggett (D-Texas), Earl Blumenauer (D-Ore.), and Lloyd Smucker (R-Pa.).

Only Rep. Adrian Smith (R-Neb.) has offered support for the bill since it was introduced in August.

Representatives for Mr. Doggett and Mr. Smucker did not respond to inquiries about whether there has been progress recently on the legislation and whether they'd consider introducing a different bill if H.R. 5142 isn’t advancing.

A previous version of H.R. 5142 died in the House in the 117th Congress.