Costly litigation laid the groundwork for vaccine court

A technician in an incubator at the virus laboratories of Chas. Pfizer & Co. nurtures cells to serve as hosts for live virus needed for the measles vaccine. 
AP Photo

The origins of vaccine court can be traced to the 1970s, when parents began filing lawsuits against doctors and vaccine manufacturers over allegations that vaccines for diphtheria, pertussis, and tetanus (DPT shots) posed a dangerous risk to children. One of the first lawsuits to succeed was brought by the parents of Kevin Toner, after he was vaccinated in Idaho in 1979.

“Kevin Toner, then a three-month-old infant, was vaccinated with Tri-Immunol”— a DPT vaccine since discontinued in the US — “and suffered a rare condition of the spine known as transverse myelitis, the cause of which is unknown,” court documents state. “As a result of the affliction, Kevin is permanently paralyzed from the waist down.” 

Family lawyer Kenneth Pedersen remembers that as a young attorney in his early 30s at the time, winning the case helped launch his own budding legal career. “The argument was that the vaccine could’ve been safer,” he told Business Insider. “It was a scary proposition, taking on a huge drug company. We had to prove that’s how he got hurt.” 

A jury of six Idahoans awarded the Toners $1.3 million in their case against vaccine maker Lederle Laboratories. Toner later graduated from college and settled down in Salt Lake City with his wife and their children. He currently works for a major bank.   

The Toner verdict arrived amid a national debate over the safety of DPT shots. Shortly before the family’s case made its way through the court system, a documentary called “Vaccine Roulette” aired on NBC, scaring parents across the country about the dangers of the vaccine.

The American Academy of Pediatrics denounced NBC, saying the documentary’s “total lack of balance of scientific fact [caused] extraordinary anguish and perhaps irreparable harm to the health and welfare of the nation’s children.”

Still, the number of DPT injury lawsuits skyrocketed, from what had been one single case in 1978 to 73 lawsuits in 1984. The cases got more expensive, too. As Dr. Alan Hinman noted in a 1986 JAMA Pediatrics article, “the average amount claimed per suit has risen from $10 million to $46.5 million.”

Pedersen believes it would have become much harder to win tort cases like Toner’s once more scientific literature started coming out about vaccine safety. “The medical literature kind of turned on us,” he said.

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