[PROVE] It is Back! (Frist Vaccine Bill now in House) - Contact Congress

[Guest guest]

Dear PROVE Members,

Last month we asked you to write letters to your Congressional Senators to

oppose the diabolical Frist Bill (S 2053) which completely exempts vaccine

manufacturers from any liability and creates many other problems for the

vaccine injured.

Well, recess has come and gone, and not only is it back, but it is

multiplying and has a House companion bill HR 5282.

Please write to your Congressional Representative by linking to

http://www.house.gov/writerep/ urging him or her to DEFEAT HR 5282 and

instead, support the Congressman Burton and Waxman's HR 3741!

You could even cut and paste the supporting documentation below into your

note. If you can take a few extra minutes and contact the committee chairs

listed below also, that would go a long way to derailing this monster.

If you are really feeling spunky, you could even save a copy of your letter

to your Representative and get it to your local newspaper and encourage them

to do a story on this. Politicians who make policy decisions based on

political contributions often change their tune and respond when they know

the public is watching.

Thank you Jeff Sell for putting this together for us.

Sincerely,

Dawn , PROVE

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HR 5282 By the Numbers...Again

Representative Greenwood (R-PA) has introduced the " Improved Vaccine

Affordability and Availability Act " or HR 5282, to amend the National

Vaccine Injury Compensation Program ( " Program " ). While undoing every gain

that petitioners' families have made over the past several years, HR 5282

also represents an attack on the very spirit of the Vaccine Program as it

sacrifices the best interests of our children for the sake of protecting the

vaccine manufacturers. Unlike its counterpart bill in the House of

Representatives, HR 3741, the Frist amendment in the Senate does little if

anything to protect or defend, let alone extend the rights of children in

this country who have been injured by their recommended childhood

vaccinations. Rather, it is determined, almost cynical, in its apparent

disregard of those rights. This week he changed HR 5282 again, and launches

a new and improved assault, not only on the children of this country, but

their families too. While nearly every section of the amendment is

disheartening, several sections stand out. The latest version is contrasted

below.

Reducing Public Awareness

SEC. 201: Administrative Revision of the Vaccine Injury Table

HR 5282 cuts in half the time allowed for public comment (from 180 days

to 90 days) when a change in the Vaccine Injury Table is proposed. It

further eliminates the Secretary of HHS' obligation to hold a public hearing

on the issue. The effect is to drastically reduce the already scant public

awareness of this Program, and thus, limit the number of potential

petitioners. In this new version, Frist further reduces the time allowed for

the public's input to a mere 60 days. Again, the effect is a drastic

reduction in public awareness, and the public's ability to challenge these

changes.

Removing All " OPT-OUT " Actions

SEC. 202: Equitable Relief

HR 5282 begins, here in Sec. 202, the first of its several-pronged

attack, and ultimately, elimination of, the various forms of civil actions

currently ongoing throughout the country, including the class actions

seeking medical monitoring. By including the language " equitable relief " in

the damages or awards sought section, HR 5282 clearly removes the

possibility of civil suits seeking medical monitoring, or other,

non-monetary awards. Medical monitoring suits are specifically eliminated in

SEC. 214. The effect of this provision, along with Sections 203-204 and

214-217 is to make sure that anyone with an injury from a vaccine MUST go

through the Program first. A new twist was added with this latest version.

With the addition of the " past injury " concept, Frist manages to pull a

whole new class of injured into the Program as well. Whether your injury is

past or present - you MUST GO THROUGH THE PROGRAM. This concept is carried

throughout the changes. Again, everyone must go through the Program.

SEC. 203: Parent, Legal Guardian or Spouse Petitions for Compensation

HR 5282 eliminates parental claims for loss of consortium, society,

companionship or services, loss of earnings, medical or other expenses, and

emotional distress until after a claim has been made through the Program.

The effect of this provision is to, again, make sure everyone has to go

through the Program first, and eliminates another form of the civil suits

ongoing across the country. An added boost to the manufacturers here - while

the bill had originally forced parents to wait until the child's claim had

been filed in the Program, now the child MUST ALSO PREVAIL on his claim and

be awarded compensation. Then the Parent must file a newly-created

" derivative " petition within 60 days of the final judgment of the child's

case AND get their OWN judgment (or have elected to withdraw their

derivative petition). But here's the real catch - if the child wins AND

accepts the award...the parents, legal guardians, and spouses, are BLOCKED

from filing civil suits. As for the parents' judgments in a derivative

suit - they are capped at the lesser of $250,000 or the equal of the child's

awarded compensation

HR 5282 then creates a new group of those " eligible to file " : Parents,

legal guardians or spouses. This group may file derivative petitions, which

requires the following:

1. An affidavit, and supporting documentation, demonstrating that:

a. the child was previously awarded compensation in a final

judgment

b. the derivative petition was filed NOT LATER THAN 60 days

after the date which the child's judgment became final

c. the parent suffered a loss compensable under section

2115( i.e. lost earnings, pain & suffering & attorneys fees, as a result

of the vaccine-related injury or death sustained by such child, AND

d. such parent has not previously collected an award or

settlement of a civil action.

SEC. 214: Clarification of Standards of Responsibility

HR 5282 requires, in this section, a " present physical injury " ,

preventing any actions for medical monitoring. The section further

specifically adds the " equitable relief " language and eliminates actions for

claims of " medical monitoring, or increased risk of harm " . He adds " past

physical injury " .

SEC'S. 215-217: Clarification of Definitions of Manufacturer,

Vaccine-Related Injury or Death and Vaccine

HR 5282 in these three sections, affirmatively states that an

" adulterant or contaminant shall not include any component or ingredient

listed in a vaccine's product license application or product label. " The

purpose of these clarifications is to eliminate the legal theory that

Thimerosal is a contaminant or adulterant.

SEC. 204: Jurisdiction to Dismiss Actions Improperly Brought

HR 5282 gives the manufacturers the right to remove to the US Court of

Federal Claims any civil action against the manufacturer, brought by a

family without first going through the Program, and requires the USCFC to

dismiss the action.

SEC. 204 works in tandem with 202-203 and 214-217 in preventing direct

actions against the manufacturers.

With parental claims, medical monitoring and Thimerosal as adulterant

representing the only options for families outside of the Program, the bill

acts as a three strikes and you're " in " bill, effectively preventing any

direct action against a vaccine manufacturer without first going through the

Program. The bill adds the derivative petitioners here - parental, legal

guardian, and spousal claims MAY BE REMOVED AND DISMISSED.

Strengthening Goliath's Position

SEC. 206: Clarification of When Injury is Caused By Factors Unrelated to

Administration of Vaccine

HR 5282 gives the Government additional weapons in its arsenal to knock

down petitioners' arguments and ultimately deny claims. It does so by

creating " new " causes for the injury that HR 5282 deems " unrelated " to the

vaccine. This provision now gives the government the power to deny

compensation if a child has any structural lesion, genetic abnormality,

toxin, infection, trauma, or metabolic disturbance, AND THE GOVERNMENT

DOESN'T EVEN HAVE TO PROVE THE CAUSE OF THESE FACTORS OR THAT THEY ARE

POTENTIAL CAUSES OF THE INJURY ALLEGED. The absurdity of this is evident.

Obviously, there are genetic and other differences in children that explain

why some children react to a vaccine and some do not. If that were not the

case, then every child would react identically. This section will have the

effect of denying compensation for most children who file in this program.

Weakening 's Position

SEC. 208: Basis for Calculating Projected Lost Earnings

HR 5282 destroys Petitioners' hard-fought and grudgingly conceded

progress in getting realistic and " real world " compensation for injured

children. The amendment reinforces the Program's original language and gives

the Secretary of HHS the sole right to determine what is an " appropriate "

formula for determining projected lost earnings. In the past this

" discretion " has led to the absurd and contradictory result of injured

children's projected earnings being reduced by Social Security taxes, though

they will never work and pay into Social Security, AND being reduced by the

FULL COST OF A HEALTH INSURANCE POLICY (sometimes thousands of dollars)

despite the fact that " average " workers are NOT responsible for the full

cost, but rather a sharply reduced amount as their employer pays the

balance. It has further allowed the Government to selectively use data from

the Bureau of Labor Statistics while refusing to provide Petitioners with

data.

Other Key Points

HR 5282 fails to provide a " look back " provision, as in HR 3741 that

will allow hundreds of families to exercise their rights under the Program.

HR 5282 fails to extend the statute of limitations for death cases -

death cases must still be filed within two years of the date of death.

HR 5282 fails to provide for interim attorneys fees. The families of

injured children have a right to effective counsel. The children injured by

vaccines face an adversary of nearly unlimited financial and scientific

resources. Their cases reach levels of complexity, both medical and legal,

that would rival any toxic-tort class action. Their lawyers are, in effect,

pro bono representatives throughout the course of the case, often for years,

and unable to meet or even approach a level playing field with the

Government's lawyers.

HR 5282 also FAILS to provide for interim costs with a neat semantics

trick: changing his prior language of allowing interim costs (not including

attorneys fees), Rep. Greenwood, in his benevolence, now says that the

Special Master may award interim costs SO LONG AS THE SPECIAL MASTER OR

COURT HAS DETERMINED THAT THE PETITIONER IS ENTITLED TO COMPENSATION UNDER

THE PROGRAM. The only problem is that entitlement is decided AT THE

END-which is clearly NOT in the interim.

HR 5282 creates a brutal and unforgiving legal battle, ostensibly in

the " best interests " of injured children, strips them of their defenses and

then forces them onto the field. In short, S 2053 not only bloodies the

battlefield, it fails to render even basic aid to the wounded.

Other changes:

HR 5282 changes the definition of " timely resolutions of claims " . For

purposes of this provision the petition shall be deemed to be filed on the

date on which all petition contents and supporting documents are served on

the Clerk of the Court. That means that you wait out the deadline period and

then withdraw the case and file civilly. In order the file a civil suit, you

have to file a complete vaccine case - not just wait out the time period.

HR 5282 amends the provisions related to the Trust Fund as follows: In

section 9510( c )(1) of the Internal Revenue Code by first adding the phrase

" or related loss " to bring in derivative claims. It further changes the

following text: " Amounts in the fund shall be available for the payment of

all expenses of administration (striking 'but not in excess of $9,500,000

for any fiscal year') incurred by the Federal Government in administering

such subtitle (adding " (i) 125 percent of the base amount for any fiscal

year in which the total number of claims pending under such subtitle exceeds

150 percent of the average number of claims pending in the preceding 5

years, (ii) same language but for 175 percent/200 percent split, (iii) same

225 percent/250 percent, (iv) or 275 percent/300 percent.)

HR 5282 now applies to all pending and subsequent actions or

proceedings to the enactment date unless a court has entered judgment

(regardless of whether the time to appeal has expired) in such action or

proceeding disposing of the entire action or proceeding.

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PLAN OF ACTION

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Rep. Greenwood (R-PA) has introduced HR 5282 in the House. This is

the companion bill to the Senate version that was introduced by Sen. Bill

Frist, the infamous S 2053. The House version has the same problems the the

Frist Bill has so, the same analysis applies. Contact Rep. Greenwood's

office if you care to comment (hint, hint).

WASHINGTON D.C. OFFICE

2436 Rayburn House Office Bldg.

Washington, D.C. 20515

(fax)

or by e-mail

http://www.house.gov/greenwood/IMA/get_address.htm

Also, this bill may soon be taken up by the House Subcommittee on

Health, Chaired by Rep. Bilirakis (R-FL). Take the time to contact

his office and let the Subcommittee know how you feel.

Chairman Bilirakis

Sub-Committee on Health

The Committee on Energy and Commerce

2125 Rayburn House Office Building

Washington, DC 20515

(fax)

Feedback link: http://energycommerce.house.gov/107/feedback.htm

Also, to reach Chairman Bilirakis directly via e-mail, you need to jump

through a few hoops.

Go to http://www.house.gov/htbin/wrep_findrep or , if that doesn't work, go

to http://www.house.gov/bilirakis/ , then go to the E-mail Congressman

Bilirakis section and type in a local zip-code such as: 34639 -4437 and

you should be able to send him an e-mail. He is difficult to reach if you

don't live in his District.

PLEASE, remind them that HR 3741--the Burton/Waxman bill is preferred by

all those who truly care for children.

Thank you.

Jeff Sell

Hitt * * Sell

4309 Yoakum Boulevard

2nd Floor

Houston, Texas 77006

(fax)

www.HittSell.com

JZSell@...

(cell/v-mail)

Vaccine Injury Alliance

www.vaccineinjury.org

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Dawn

PROVE(Parents Requesting Open Vaccine Education)

prove@... (email)

http://vaccineinfo.net/ (web site)

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PROVE provides information on vaccines, and immunization policies and practices

that affect the children and adults of Texas. Our mission is to prevent vaccine

injury and death and to promote and protect the right of every person to make

informed independent vaccination decisions for themselves and their family.

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