COVID vaccine injury plaintiffs face long odds in U.S. compensation program

The Moderna COVID-19 vaccine sits on the table at Trinity United Church of Christ in Chicago, Illinois, U.S., February 13, 2021. REUTERS/Kamil Krzaczynski

(Reuters) - “I thought it would be impossible to deny me.”

That’s what Cody Flint, who used to work as a crop duster in Mississippi, said he expected when he filed a claim with an obscure government tribunal that provides compensation for COVID-19 vaccine-related injuries.

Flint, 34, told me that he submitted hundreds of pages of supporting material, including reports from four doctors who attributed his episodes of vertigo, headaches, and partial loss of hearing and eyesight -- afflictions that have ended his career as a pilot, at least for now -- to a rare side-effect of the Pfizer vaccine.

The feds rejected Flint’s claim on May 25 in a two-page letter that he shared with me.

“The compelling, reliable and valid medical and scientific evidence” didn’t prove the vaccine caused his symptoms, an official with the Countermeasures Injury Compensation Program, or CICP, wrote.

As a layperson, I don’t know if that decision was correct. What I do know is that he is not alone in coming up short at the CICP, which has denied about 90% of petitions since its inception in 2010.

Writing about vaccine injuries is a delicate thing. From a public health perspective, the more people who get vaccinated, the better -- and personally, I’m grateful to be vaxxed and boosted. But if you give 591 million doses of anything, whether it’s aspirin or jelly beans, a few people will have adverse reactions. (Yes, even jelly beans.)

For the unlucky ones who’ve reacted badly to COVID-19 vaccines, compensation may be elusive.

Part of the Health Resources and Services Administration, the CICP was designed to be “the payer of last resort” for people who suffered injuries from treatments or “countermeasures” related to “a declared pandemic, epidemic or security threat” like Ebola or anthrax.

Payouts are limited to unreimbursed medical expenses and up to $50,000 a year in lost wages, with no provisions for pain and suffering or legal fees. A death benefit of $370,376 is also available.

The CICP is the only option under current law for people seeking damages for COVID-19 vaccine-related injuries.

Per a declaration under the Public Readiness and Emergency Preparedness Act, the federal government indemnified the vaccine makers, which are not party to CICP proceedings.

A Pfizer spokesman declined comment. Media representatives from Moderna and Johnson & Johnson did not respond to requests for comment.

Until March 2020, the CICP attracted little attention, deciding fewer than 500 cases in its entire history.

It’s now drowning in a 16-fold spike in claims, with more than 5,400 COVID-19 vaccine injury cases pending. Another 2,990 allege injuries or death from other COVID-19 countermeasures, such as being placed on a ventilator.

As of June 1, CICP had evaluated and rejected 31 COVID-related claims (including Flint’s) and approved one, for a person who had an anaphylactic reaction to the vaccine. The amount of compensation in that case has not yet been determined.

At the current rate of adjudication – 18 cases a month, by my calculation – it will take 38 years to get through the backlog. That’s not much help for claimants who are unable to work or pay rent right now.

A government spokesman told me via email that the program is “actively bringing on additional administrative staff and claims reviewers in light of the significant increase in claims” but did not provide additional details.

There’s reason to think the number of claims, though significant, undercounts people who believe they’ve been injured by the jab.

For example, Katherine Zerby, a teacher in Minnesota, told me that after she was vaccinated on Feb. 16, 2021, she developed long-term symptoms, including tinnitus, dizziness and atrial fibrillation.

Zerby, 59, said two doctors blamed the vaccine for her ailments, but no one, including local public health authorities, suggested she file a claim with the CICP.

“I don’t remember anyone talking about it,” she said.

Without exception, the CICP requires claims to be filed within one year of vaccination.

“I didn’t know there was a deadline,” Zerby told me.

When she eventually learned of the CICP, it was too late to bring a claim.

Kevin De Long, 51, who post-vaccine developed nephrotic syndrome MCD, a kidney ailment, told me he didn't file a claim because he couldn’t find a lawyer to take his case.

“I made over 50 calls,” he said. “They didn’t want to pursue it.”

That’s consistent with what I’ve heard.

Given the cap on damages, daunting odds of success and lack of a provision for attorney’s fees, plaintiffs lawyers are steering clear of the CICP.

Siri & Glimstad name partner Aaron Siri, for example, told me that his firm has received thousands of inquiries, but has turned them away.

“The CICP is not a court,” he said, noting that it’s a part of the “same federal health department that licensed, recommended, and mandated Covid-19 vaccines, and then sits as investigator and ‘judge’ of any CICP claim. That is a mockery of the term justice.”

The CICP does not hold hearings. Instead, cases are decided based on the submitted record -- and attempting to marshal sufficient proof to prevail is a formidable task.

As the CICP spokesman in his email noted, “The statute sets a very high standard that a claimant must meet to be eligible for compensation.”

The tribunal requires “compelling, reliable, valid, medical and scientific evidence” that the claimed injury was “directly caused” by a countermeasure such as the COVID-19 vaccine.

The CICP on its website also notes that a “temporal association” between the vaccine and the onset of the injury – meaning you get vaccinated, and soon after develop an ailment -- “is not sufficient, by itself, to prove that an injury is the direct result of a covered countermeasure.”

Petitioners can ask the CICP to reconsider an adverse decision, but there is no further right of appeal.

Michelle Zimmerman, a 38-year-old educator who has a Ph.D. in learning sciences and human development, said she was determined to use her prior experience as a neuroscience researcher to convince the tribunal that the COVID-19 vaccine caused her problems with cognition, vision and speech.

So far, she has neither a case number nor a timeline for adjudication. She said she’s been frustrated by the lack of a clear standard of proof from the CICP about what exactly it takes to prove causation.

“I thought if anyone can get through this, I will, that I could be a resource for other people” trying to navigate the system, said Zimmerman, who remains on full disability from her job as executive director of a private school in the Seattle area. “It sounds so naive now.”

There’s a relatively straightforward answer to the CICP morass: Move the COVID-19 vaccine claims to an alternate forum, the Vaccine Injury Compensation Program, which since 1988 has adjudicated claims involving common vaccines such as measles, tetanus and influenza. It offers due process protections and a lower standard of proof, with claimants over the years netting $4.7 billion in compensation.

To move the COVID-19 vaccine will require a series of administrative and legislative steps.

Right now though, there’s no sign of that happening.

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Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at jenna.greene@thomsonreuters.com