Litigating Vaccine Injury Cases: The Evolving Parameters of the NCVIA

Vaccines are designed to prevent serious diseases and their potentially catastrophic medical consequences. As with all forms of medical intervention, however, vaccine use can result in adverse events. Those who turn to the legal system for compensation after suffering an injury in connection with a vaccination have a no-fault alternative to the traditional tort system for resolving vaccine injury claims. This alternative is the National Vaccine Injury Compensation Program.

Professors Joanna Apolinsky and Jeffrey Van Detta at Atlanta’s John Marshall Law School offer the following advice: “Lawyers who wish to help families whose members have sustained vaccine-related injuries covered under the National Childhood Vaccine Injury Compensation Act (NCVIA) should devote their attention to learning the ins-and-outs of the Vaccine Court, and contributing to the development of the law under NCVIA. In the meantime, state-tort law claims for injuries caused by vaccines not encompassed within the NCVIA, such as the shingles vaccine, remain viable, although, again, causation—particularly proximate causation—imposes challenging barriers for claimants.”

Remedial legislation like the NCVIA should be construed in a manner that effectuates its underlying spirit and purpose, which is to award compensation to vaccine-injured persons quickly, easily, and with certainty and generosity. Graves v. Secretary of the Dept. of Health and Human Services, 109 Fed.Cl. 579 (Fed.Cl. Feb 25, 2013). The Graves case concerned compensation under the NCVIA for an infant’s pain and suffering and emotional distress. In controversy was the sufficiency of the special master’s $60,000 award for the infant’s pain and suffering and emotional distress, which by statute may not exceed $250,000.

In Graves, the infant began having seizures two days after a pneumococcal conjugate vaccine. On presentation to the emergency room, the infant was hospitalized immediately and continually thereafter for 45 days, primarily in the pediatric intensive care unit. The parents presented evidence of the medications used on the infant, the procedures performed, and their observations of the infant’s pain and suffering and emotional distress, including: intubation, a urinary catheter, sepsis, moaning and crying, intermittent vomiting, and seizures of increasing occurrence and severity. Despite a battery of tests, invasive procedures, and treatment and examination by specialists, the infant’s seizures were unremitting and the infant died.

The Court of Federal Claims examined case law on compensation under the NCVIA and determined the methodology used by the special master to calculate the award for the infant’s pain and suffering and emotional distress was based on an erroneous construction of the NCVIA. The special master applied the “artificial continuum policy” of the Office of the Special Masters. This policy limited awards approaching the $250,000 cap to “suffering at the most extreme in intensity, duration, and cognizance” as compared to other vaccine-injured victims.  The special master assessed the infant’s ordeal solely from the medical records (no witnesses were called) on a global continuum with $250,000 as the ceiling, and placed the infant’s suffering at the $60,000 level on that scale. The Court found that the limitation is in the actual award, not the amount before the application of the cap. “What respondent advocates would transform $250,000 from a cap to be applied absolutely to reduce larger awards, to a maximum ceiling for past pain and suffering and emotional distress reserved for a worst-case scenario of the most extreme pain suffered and comprehended for the longest time prior to death, compared to other vaccine-injured petitioners. The court concludes that this unwritten policy artificially and absolutely limits any initial compensation determination to no more than $250,000, thereby preventing the cap from being applied [whenever] the past pain and suffering portion of the award is greater than $250,000… This special master policy is not rooted in the statute or precedent, and its application in the determination of compensation for [the infant’s] pain and suffering and emotional distress was legally deficient.” The court held, on review of the record, the cited cases, and a survey of other pain and suffering and emotional distress awards in other non-Vaccine Act cases, that compensation for the pain and suffering and emotional distress endured by the infant would be greater than $250,00, and was accordingly capped at that amount.

The Court held the petitioners were entitled to compensation in the total amount of $505,171.50 consisting of:

(A) $250,000 pursuant to 42 U.S.C.A. § 300aa–15(a)(2) for a vaccine-related death

(B) $5,171.50 for unreimbursed expenses pursuant to 42 U.S.C.A. § 300aa–15(a)(1)(A)

(C) $250,000 for actual pain and suffering and emotional distress pursuant to 42 U.S.C.A. § 300aa–15(a)(4)

In cases like Graves the parameters of the NCVIA are being established. Until all aspects of the NCVIA are established, counsel must review case law interpreting the NCVIA and become familiar with the procedures and precedents of the Vaccine Court.


Medical Law Perspectives presents 50-page detailed reports on medical litigation in the news for attorneys, physicians, insurers, and employers. The January 2013 report on vaccine litigation contains additional expert comments and detailed medical and law information.  Monique C.M. Leahy, JD, Publisher can be reached at; 212.213.0222;

The writers’ opinions are those of the writers and not ALM. This material is intended for general information purposes only and does not constitute legal advice.