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By John Hanchette

OLEAN -- Scientists and mathematicians frequently advance the Chaos Theory to explain unanticipated consequences. It states that tiny variations in beginning conditions can trigger mammoth, lasting transformations in the end results.

Its basic principle is sometimes referred to as the Butterfly Effect -- as in, say, a hurricane being whipped up by ever-increasing wind vectors over a period of days and weeks after being catalyzed by the tiniest imperceptible change in air current when a butterfly somewhere flaps its pretty little wings.

Our ancestors perceived this basic idea without naming it. It often appears in venerable literature and verse: "For want of a nail, the shoe was lost; For want of a shoe, the horse was lost; For want of a horse, etc. ... " You get the picture. A tiny nail goes missing and a kingdom topples.

This theory of seemingly random cascading events is scoffed at by some academics, but I'm starting to believe in it.

How else to explain a formative scintilla of hatred in a formative mind in a desert nation somewhere three or four decades ago sparking the current imminent danger that a basic taken-for-granted freedom will soon be lost to all Americans?

I'm talking about the traditional right of redress for unfair physical injury by seeking fair adjustment in an American court. Yours could evaporate soon.

Among vaccine safety advocates and much of the legal profession the suspicion is that big pharmaceutical companies are using Sept. 11 and its aftermath of constant terrorism warnings as a cloak to protect themselves against future such litigation -- justified or not, connected to terrorism or not. Congress is about to grant such permanent waiver of liability.

Here's the background.

In the early 1980s, drug companies were being snowed under by costly lawsuits over deaths and serious debilitating reactions to certain vaccines. They threatened to stop making the vaccines if they didn't get protection from liability claims. In 1986, Congress created a compromise -- the Vaccine Injury Compensation Program.

Under it, dead and damaged children and their parents would be compensated without costly litigation against the drug companies by showing causation and reaction under an established table of injuries. The program was funded by a very small fee paid by the parents and attached to each vial of the many vaccines children receive these days. It mounted up. By the new millennium, the fund held more than a billion dollars. Out of the millions and millions of infants and toddlers given shots over the years, there have been about 7,600 applications for compensation by victims of childhood vaccinations, but only 1,800 awards.

The program was considered a great success until 1995, when the Department of Health and Human Services -- pressured by pharmaceutical lobbyists seeking to limit even that meager number of awards -- quietly changed the table of injuries and "compensable events" and raised the causation standards to a very high bar, one almost impossible to clear. At the same time, the Department of Justice started sending over tough veteran trial attorneys to defend the allegedly no-fault federal program against all comers as if the fund were Fort Knox and the damaged children were masked burglars.

Parents who wandered into the compensation thicket without a seasoned tort attorney discovered themselves trapped in a process even more adversarial than the court system, and they were usually wiped out by the Justice lawyers. Despite a growing wave of claims, two of three children who now apply for financial help with their vaccine injuries are denied.

The 1986 law respected the basic legal privilege of citizens by leaving clear access to the civil tort system -- the freedom to sue vaccine manufacturers or negligent doctors -- if the child was turned down for compensation. Only a handful of such vaccine injury lawsuits were brought since the compensation program was established.

That is, until the last few years, when the rates of severe childhood autism began to double and triple annually in some regions. Tort lawyers, vaccine safety advocates and many medical researchers suggested the reason was increased use of certain childhood vaccines that contained, as preservatives, mercury compounds found in separate research to cause brain damage, chronic neurological dysfunction and lasting insult to the immune system.

The most frequently used preservative compound in question, thimerosal, contains mercury, and tort lawyers have some heavy federal artillery available in preparing any vaccine injury complaints stemming from such inoculations. The American Academy of Pediatrics, the U.S. Public Health Service, the Food and Drug Administration,and the Institute of Medicine in recent years have all urged vaccine manufacturers to remove thimerosal from immunization products. Still, it remains a common component of many such shots. The vaccine makers could see a tsunami of lawsuits on the horizon.

OK, rewind your mental tape back to the months in the wake of Sept. 11 and the Bush administration's legitimate concern over smallpox -- perhaps the most hideous contagious disease faced by Americans in their two centuries-plus of existence. Intelligence agencies bombarded the White House almost daily with warnings that terrorists possess or will soon possess weaponized versions of this devastating disease that was supposedly conquered a quarter century ago. The White House and HHS quickly responded by beefing up stores of the very reactive smallpox vaccine and starting immunization of troops deploying to the Middle East and of "first responders" -- frontline emergency workers such as health care, public safety, law enforcement and other civilian professionals. About half a million in this category will get the smallpox shots.

Some powerful organizations are balking.

The Communications Workers of America sent Bush a letter last week complaining about "inadequate safeguards for workers in the program," including a lack of information about the risks of vaccination and no plan to monitor adverse effects or risk to family members who also will be exposed to the live virus from loved ones vaccinated. "Frontline workers in the fight against terrorism should not be required to shoulder the economic risk," wrote CWA president Morton Bahr.

No matter. The smallpox inoculation program of "frontline" responders rolls on.

The government's smallpox shots initiative made sense to most Americans, and the White House wisely made general civilian reception of the shots, at least for the time being, voluntary. The Centers for Disease Control says about 42 of every million persons who receive smallpox inoculations will suffer severe side effects and maybe two out of every million will die. Those with suppressed immune systems and chronic illnesses will be even more vulnerable.

But lost in all the sky-is-falling publicity about threats of terrorism was a rider inserted into the recently-passed Homeland Security Act that protects pharmaceutical firms, hospitals, doctors and medical workers from liability for smallpox vaccine injuries and deaths.

This might seem logical. As defense policy analysts at the influential Cato Institute -- a Bush-favoring think tank in Washington -- explained, "The specter of liability claims clearly damages the incentive of manufacturers to produce new doses of the vaccine potential litigation risks reduce the incentive for pharmaceutical companies to produce vaccines in general and the smallpox vaccine in particular."

But the clause cleverly inserted into the Homeland Security Act also shielded vaccine makers from liability lawsuits for using components of vaccines, like mercury, that can cause brain damage and degradation of the immune system. Lawmakers on both sides of the aisle -- some of whom never noticed the shielding language -- are now promising to remove it.

They seem ready, however, to add the protective passages to new imminent legislation being pushed by pharmaceutical lobbyists -- total reform of the Vaccine Injury Compensation Program described above.

Vaccine safety advocates are howling.

Barbara Loe Fisher, president of the private sector National Vaccine Information Center -- the country's largest vaccine safety advocacy group -- calls the smallpox policy jammed into the Homeland Safety Act "heartless" since smallpox was thought eliminated from the planet and not even covered under the Vaccine Injury Compensation Program of 1986.

The Homeland Security Act, she says, "leaves the victims of a government-sponsored mass vaccination program without any recourse to either civil litigation or federal compensation for the vaccine injuries they sustain. It is wrong for the U.S. government to tell Americans to take the smallpox vaccine and then, when someone dies or is injured because of that policy, nobody takes responsibility."

Her organization is concerned "that the attitude the Department of Justice is taking toward smallpox vaccine victims is the same attitude that will prevail as Congress prepares to go back into the VICP (Vaccine Injury Compensation Program) to fix the many problems with it. Big drug company lobbyists and public health officials have always tried to discount the extent of vaccine injuries, and it is clear that an attempt will be made to shield drug companies from all liability while leaving most vaccine victims out in the cold."

The VICP was already inadequate under the tradition of American fairness.

Autism is a good example.

The average age of diagnosis for the onset of autism is 3.5 years. The VICP bill-drafters made sure the legislation preempted forgiving state and federal statutes of limitations for minors. Even the current VICP language imposes a strict three-year limit on claims from the date of injury, the vaccination itself -- not the date of discovery of injury, or recognition of causation, which is the language in much of tort law.

Thus, victims of autism, by the time symptoms are evident and recognized, are already timed out -- as the lawyers put it -- from being considered for compensation from the federal compensation program. Going into court is their only option for redress if they think a vaccine caused their problem.

If the liability waivers are allowed to stand, or are incorporated into new VICP language, forget any evidence of causation. Existing lawsuits will be nullified and scores of thousands of autism sufferers will lose all chance of being heard under the vaunted American judicial system, no matter how good their cases.

So here we are in the turbulent wake of the chaos theory.

A federal program that worked is weakened by big business erosion.

Those ostensibly covered under it are further hammered by a new law hastily passed in the aftermath of terrorist acts.

And to cure that defect in American liberty, Congress contemplates further gutting the original solution.

Count on this: These chickens of childhood health policy will come home to roost.

That little bottom-line butterfly may flap up a terrible storm of eventual deleterious health effects.

"Cutting off the threat of lawsuits," warns Fisher, "will cut off all incentive for the government and industry to make the compensation program work properly. It will remove the financial incentive for the drug companies to continually improve the safety of their vaccines. If you combine mandated vaccines with no liability and no accountability for anyone involved, it is a prescription for injustice and abuse of the public trust."

Just the kind of chaos the big drug companies like.

John Hanchette, a professor of journalism at St. Bonaventure University, is a former editor of the Niagara Gazette and a Pulitzer Prize-winning national correspondent. He was a founding editor of USA Today and was recently named by Gannett as one of the Top 10 reporters of the past 25 years. He can be contacted via e-mail at Hanchette6@aol.com.

Niagara Falls Reporter www.niagarafallsreporter.com January 28 2003