Compensation Scheme for COVID Vaccine Injuries Is Unconstitutional: New Lawsuit

A COVID-19 vaccine is prepared, in this file image. Stephen Zenner/Getty Images

The federal program that has compensated just four people for COVID-19 vaccine injuries violates the U.S. Constitution, according to a new lawsuit.

The Countermeasures Injury Compensation Program (CICP) is a “kangaroo court” that runs afoul of Americans’ constitutional rights, including the right to due process, the suit says. Lawyers for the plaintiffs, who developed issues such as Bell’s palsy following COVID-19 vaccination, said that’s in part because unidentified people review the claims and appeals.

They also noted that there’s no way to seek relief from the judicial branch for denied claims and appeals.

The CICP “fails to provide notice and an opportunity to be heard at a meaningful time and in a meaningful manner,” the suit says. “It lacks any basic due process protections: it holds no hearings, provides no meaningful opportunity to be heard, and operates entirely off the record. The government refuses to identify who makes decisions, the standards upon which decisions are made, the materials relied upon, or any experts or consultants involved in their decisions.”

The program was established in 2005 to provide “timely, uniform, and adequate compensation” to people injured by certain products. The COVID-19 vaccines became covered by the program when then-Health Secretary Alex Azar in March 2020 declared COVID-19 a national emergency. The declaration has been extended repeatedly and is currently in place through the end of 2024.

The act that governs the system, the Public Readiness and Emergency Preparedness Act, also grants near-total immunity to vaccine manufacturers.

The suit was filed in U.S. court in Monroe, Louisiana.

It asks the federal court to declare unconstitutional the portions of the act that provide immunity, as well as the CICP program itself, until the government makes changes to the program.

The changes should include, the suit says, making public the identities of the individuals who are adjudicating the claims, confirmation that the individuals have no conflicts of interest, and a process for claimants to obtain discovery.

The U.S. Health Resources and Services Administration, which runs the program, didn’t respond to a request for comment. The U.S. Department of Health and Human Services (HHS), its parent agency, also didn’t return an inquiry.

“CICP is the equivalent of a black hole and it will be hard for anyone to argue otherwise,” Aaron Siri, managing partner of Siri & Glimstad LLP, who’s helping represent the plaintiffs, told The Epoch Times via email. “CICP is a failure at both the legislative and executive branches of governments, but the reality is that this failure is affecting at least tens of thousands of everyday Americans who are currently suffering, unable to afford the medical treatments they need, and who have lost marriages, retirement funds, savings, and more due to the direct and indirect harms from their COVID-19 vaccine injuries.”

Lost Records, No Timelines

Emma Burkey was a high school senior when she received Johnson & Johnson’s COVID-19 vaccine on March 20, 2021.

Ms. Burkey, who planned to attend the University of Nevada–Las Vegas and pursue a career involving children, developed a brain bleed and blood clotting shortly after vaccination. According to the U.S. Food and Drug Administration, the shot can cause blood clotting, which has turned fatal in multiple cases.

Ms. Burkey was in a coma for weeks before beginning to recover after multiple surgeries. She still undergoes neurologic therapy five days per week and struggles to walk and sleep. Her family has been hit with a flurry of bills, including a $650,000 bill.

Ms. Burkey applied to the CICP in November 2021. CICP representatives have refused to provide a timeline, telling her most recently that it would be a “hot minute” before a decision was made, according to an exhibit filed with the suit.

“I’ve never really been so dedicated to something the way I am to helping kids. Now, because of what they did to me, I don’t get to babysit or play with kids the way I used to,” Ms. Burkey said. “Instead of chasing children around the living room, I’m relearning how to take steps. Instead of working, I’m taking 4-hour naps after therapy because I’m so exhausted.”

People have one year following their injury to file a claim with the CICP, but “there is no timeline” for the program to accept or reject the claim, representatives have told plaintiffs.

“They have however long they need to make a determination,” one said in a call, according to another exhibit.

Other plaintiffs have received conflicting answers from administrators.

Michelle Zimmerman, a teacher, received a Johnson & Johnson shot on March 14, 2021. She was told at the vaccination site that there were no adverse reactions to the vaccine.

But within 20 minutes, she suffered severe allergic shock. Her parents, who received doses from the same lot, also suffered adverse reactions.

Ms. Zimmerman still experiences a range of problems, including impaired vision and hair loss, according to the suit.

Ms. Zimmerman submitted a claim to the CICP. The package she submitted contained more than 300 pages.

Despite receiving online confirmation that her claim was received, CICP representatives told her that they didn’t have records of her claim. They told her that she needed to reapply.

Several months later, though, another CICP official said the program did have her records.

She’s still waiting on a determination.

“I went from a book author published in five languages and researcher to 2nd-grade reading level and 1st percentile in cognitive testing, needing speech therapy, vestibular therapy, and vision therapy for over two years and still a long way to go,” Ms. Zimmerman said. “I have had everything that I love stripped from me.”

Other plaintiffs include Alicia Smith, a 36-year-old mother of two who contracted Bell’s palsy after receiving a Pfizer vaccine; Carolina Bourque, a biologist with the Louisiana Department of Wildlife and Fisheries who suffered facial paralysis and migraines after a Moderna shot; and Erin Rhodes, a speech pathologist who suffered chest pain, tingling, and other symptoms after receiving a Moderna jab. React19, a support group for vaccine-injured people, also joined the suit.

Health Secretary Alex Azar speaks during a White House Coronavirus Task Force press briefing in the James S. Brady Press Briefing Room of the White House in Washington on Nov. 19, 2020. Brendan Smialowski/AFP via Getty Images

New Court?

CICP decisions are made by HHS officials. They also decide on appeals and promote vaccines.

That “potentially creates a conflict of interest,” researchers wrote in a 2022 paper, advising Congress to initiate major reforms by either relocating the program or allowing judicial review.

The plaintiffs asked the court to allow judicial review of the claims made to the CICP.

“It would have to be a newly created judicial process, but it would be similar to the judicial process already set up through the VICP,” Dr. Joel Wallskog, co-chair of React19, told The Epoch Times.

Most claims of injuries from other vaccines are heard by judges appointed as special masters under the National Vaccine Injury Compensation Program, or VICP.

Some members of Congress have floated shifting CICP claims to the VICP, including Rep. Lloyd Doggett (D-Texas). But bills they’ve introduced haven’t been approved.

React19 favors moving CICP claims to the VICP but decided to join the new suit because of the lack of movement, Dr. Wallskog said.

The Vaccine Injured Petitioners Bar Association said in a statement that it “completely understands and empathizes with the frustrations of the plaintiffs expressed in this case, whose criticisms of the CICP are not wrong.”

“However, we strongly believe the best place for COVID-19 vaccine injury claims is the VICP and not a separate court (either within the CICP or within the Court of Federal Claims) that would, at best, attempt to replicate the VICP,” the bar stated.

The VICP has awarded more than $4 billion to people injured by vaccines since it began in 1986.

Rejections

Dr. Wallskog and Cody Flint, an agricultural pilot and a plaintiff in the suit, are among those who saw their claims rejected despite presenting strong evidence that their injuries were caused by the vaccines.

Mr. Flint was diagnosed by four doctors as suffering a reaction to Pfizer’s shot, but administrators for the program told him that they “did not find the requisite evidence that the Pfizer COVID-19 vaccination caused” the conditions from which he suffers.

Administrators cited no studies or other evidence in their letters.

“It was my understanding the federal government assumed responsibility for these vaccine injuries in return for the public’s trust and willingness to take the vaccine. I kept up my end of the bargain. Sadly, the federal government did not,” Mr. Flint said.

CICP administrators say that the CICP can only cover injuries that are supported by “compelling, reliable, valid, medical, and scientific evidence.”

“Temporal association between the administration or use of the covered countermeasure and onset of the injury (i.e., the injury occurs a certain time after the administration or use) is not sufficient, by itself, to prove that an injury is the direct result of a covered countermeasure,” the scheme’s website states.

Ms. Zimmerman asked the CICP if there was a standard of proof for the program that she could consult before submitting a claim. A CICP representative said that there wasn’t, according to an exhibit that captured the phone call.

“We’re using up-to-date PubMed, we’re using the National Institutes of Health’s medical library,” the representative said. “And all of ... the evidence has to be based in a peer-reviewed published journal.”

CICP administrators have rejected 154 claims of injuries from COVID-19 vaccines for reasons such as not meeting the standard of proof.

They have approved 32 other claims but paid just four people as of September. The payouts total just $8,592.89.

Another 10,949 COVID-19 claims, some of which are for COVID-19 treatments, are being reviewed or are pending review.