Homeland Security Act of 2002: Tort Liability Provisions

Homeland Security Act of 2002:
Tort Liability Provisions
Updated May 9, 2008
Henry Cohen
Legislative Attorney
American Law Division

Homeland Security Act of 2002:
Tort Liability Provisions
Summary
The Homeland Security Act of 2002, P.L. 107-296 (H.R. 5005), contains the
following provisions that limit tort liability, and this report examines each of them.
^!Section 304 immunizes manufacturers and administrators of
smallpox vaccines from tort liability. It makes the United States
liable, but not strictly liable, as manufacturers and administrators
would be under state law. Rather, the United States will be liable
only for the negligence of vaccine manufacturers and administrators.
^!Section 863 limits the tort liability of sellers of anti-terrorism
technologies. It prohibits punitive damages, joint and several
liability for noneconomic damages, and application of the collateral
source rule; in addition, it permits the government contractor
defense. Section 864 limits the tort liability of sellers of anti-
terrorism technologies to the amount of liability insurance required
by the Secretary of Homeland Security.
^!Section 890 limits the tort liability of air transportation security
companies and their affiliates for claims arising from the September
11, 2001 air crashes. It limits it to the amount of their liability
insurance coverage on that date.
^!Section 1201 limits the tort liability of air carriers for acts of
terrorism committed on or to an air carrier. If the Secretary of
Homeland Security certifies that an act of terrorism occurred, then
air carriers shall not be liable for losses that exceed $100 million for
all claims, but the government shall be liable for losses above that
amount.
^!Section 1402 immunizes air carriers from liability arising out of a
Federal flight deck officer’s use or failure to use a firearm, and
immunizes Federal flight deck officers from liability, except for
gross negligence or willful misconduct, for acts or omissions in
defending the flight deck of an aircraft.
^!Sections 1714-1717 limit the tort liability of manufacturers and
administrators of the components and ingredients of various
vaccines. They require victims to file a petition for limited no-fault
recovery under the National Vaccine Injury Compensation Program
before they may sue. These sections reportedly were designed to
benefit pharmaceutical manufacturer Eli Lilly in suits against it
concerning Thimerosal. Sections 1714-1717 were repealed by P.L.

108-7 (2003), Division L, § 102.

Contents
In troduction ..................................................1
Smallpox Vaccine Manufacturers and Administrators.................2
No strict liability..........................................2
Some Other Features of Section 304...........................3
Sellers of Anti-Terrorism Technologies: the SAFETY Act.............3
Exceptions to the Application of State Law.....................5
Liability Insurance.........................................7
Air Transportation Security Companies............................7
Air Carriers..................................................8
Federal Flight Deck Officers.....................................9
Vaccine Components and Ingredients Manufacturers and
Administrators ............................................9
National Childhood Vaccine Injury Act of 1986..................9
Homeland Security Act Amendments.........................10

Homeland Security Act of 2002:
Tort Liability Provisions
Introduction
Tort liability is traditionally governed by state law, but Congress has the power
to regulate it when it affects interstate commerce. Past instances in which Congress
has limited tort liability include the National Childhood Vaccine Injury Act of 1986,
which is discussed below, and the September 11th Victim Compensation Fund of
2001.¹ The Homeland Security Act of 2002, P.L. 107-296, contains the following
provisions that limit tort liability, and this report examines each of them.
^!Section 304 immunizes manufacturers and administrators of
smallpox vaccines from tort liability.
^!Sections 863 and 864 limit the tort liability of sellers of anti-
terrorism technologies.
^!Section 890 limits the tort liability of air transportation security
companies and their affiliates for claims arising from the September

11, 2001 air crashes.

^!Section 1201 limits the tort liability of air carriers for acts of
terrorism committed on or to an air carrier.
^!Section 1402 immunizes air carriers from liability arising out of a
Federal flight deck officer’s use or failure to use a firearm, and
immunizes Federal flight deck officers from liability, except for
gross negligence or willful misconduct, for acts or omissions in
defending the flight deck of an aircraft.
^!Sections 1714-1717 limit the tort liability of manufacturers and
administrators of the components and ingredients of various
vaccines; these sections reportedly were designed to benefit
pharmaceutical manufacturer Eli Lilly in suits against it concerning
Thimerosal. These section were repealed by P.L. 108-7 (2003).

¹ Others are listed in CRS Report 95-797, Federal Tort Reform Legislation:
Constitutionality and Summaries of Selected Statutes.

Smallpox Vaccine Manufacturers and Administrators
Section 304(c) of the Homeland Security Act of 2002 amended the Public
Health Service Act by adding 42 U.S.C. § 233(p), which provides that “a covered
person shall be deemed to be an employee of the Public Health Service with respect
to liability arising out of administration of a covered countermeasure [e.g., a vaccine]
against smallpox to an individual during the effective period of a declaration [of a
public health emergency] by the Secretary . . . .” This language immunizes from tort
liability any “covered person,” which the statute defines to include manufacturers and
distributors of a smallpox vaccine, health care entities under whose auspices a
smallpox vaccine is administered, and licensed health professionals or other
individuals who are authorized to administer the vaccine. The Secretary of Health
and Human Services issued the specified declaration, making it effective as of
January 24, 2003.²
The reason that the provision just quoted immunizes covered persons from tort
liability is that it deems such persons to be employees of the Public Health Service
for tort liability purposes. The Public Health Service is a federal agency, and the
Federal Tort Claims Act (FTCA) makes all federal employees immune from liability
for torts they commit within the scope of their employment.³ They are immune, that
is, from liability under state tort law; they may be held liable for violating the U.S.
Constitution or a federal statute that authorizes them to be sued.
At the same time that the FTCA immunizes federal employees (and those
deemed federal employees for liability purposes) from liability for torts they commit
within the scope of their employment, it makes the United States government liable
for such torts, under the law of the state where the tort occurred, in the same manner
that private employers are generally liable for the torts of their employees.⁴ The
FTCA, however, does not permit awards of punitive damages, and does not allow
jury trials. It also contains exceptions under which the United States may not be held
liable even though a private employer in the same situation could be held liable under
state law. Even when one of these exceptions precludes the United States from being
held liable, the FTCA continues to immunize federal employees from liability for
torts they commit within the scope of their employment.⁵
No strict liability. The exceptions under which the United States may not be
held liable include suits by military personnel for injuries sustained incident to
service (the Feres doctrine), suits based on the performance of a discretionary

² 68 Fed. Reg. 2121 (January 28, 2003).
³ 28 U.S.C. § 2679(b). See CRS Report 97-579, Making Private Entities and Individuals
Immune From Tort Liability by Declaring Them Federal Employees.
⁴ 28 U.S.C. §§ 1346(b), 2674. Because the United States is liable under the law of the state
where the tort occurred, state tort reform statutes, such as those imposing caps on
noneconomic damages, apply in suits under the FTCA. For general information on the
FTCA, see CRS Report 95-717, Federal Tort Claims Act: Current Legislative and Judicial
Issues.
⁵ United States v. Smith, 499 U.S. 160 (1991).

function (i.e., a policy judgment), suits for assault or battery or specified other
intentional torts, claims arising out of combatant activities, claims arising in foreign
countries, and others.
For present purposes, however, the FTCA’s most significant exception to
federal government liability is that the United States may not be held liable in
accordance with state law imposing strict liability.⁶ Strict liability means liability
regardless of negligence, and manufacturers and sellers of defective products,
including vaccines, may be held strictly liable under state law.⁷ A product may be
found defective under state law not only when it was defectively manufactured, but
when it was defectively designed in the sense that it feasibly could have been
designed to be safer, or when a warning that might have prevented injury was not
provided. The fact that the FTCA does not permit strict liability apparently means
that, under the Homeland Security Act of 2002, the government will not be liable for
injuries caused by a smallpox vaccine unless the plaintiff proves that the vaccine
manufacturer or other “covered person” had been negligent, in which case the
government may be held liable, if no other exceptions in the FTCA preclude liability.
Some Other Features of Section 304. Section 304 also provides that the
United States may be held liable for injuries caused by a smallpox vaccine only if the
vaccine was administered by a “qualified person” (a person authorized by state law
to administer the vaccine) during the effective period of a declaration of a public
health emergency by the Secretary of Homeland Security, and only if the person
receiving the vaccine “was within the category of individuals covered by the
declaration” or the person administering the vaccine “had reasonable grounds to
believe” he was.
If a person who did not receive the vaccine contracts vaccinia (the smallpox
virus), and resides with an individual who did receive the vaccine, then he shall be
“rebuttably presumed” to have contracted vaccinia from the individual who received
the vaccine. This means that, unless the government proves that the person who did
not receive the vaccine contracted vaccinia from a source other than the individual
who did receive the vaccine, the person who contracted vaccinia may sue the
government as if he had contracted vaccinia from the vaccine.
Sellers of Anti-Terrorism Technologies: the SAFETY Act
Section 863 of the Homeland Security Act of 2002, titled “Litigation
Management” is part of the Support Anti-terrorism by Fostering Effective

⁶ Under 28 U.S.C. § 1346(b), liability must be based on a “negligent or wrongful act or
omission,” and the Supreme Court has construed this to preclude strict liability. See,
Dalehite v. United States, 346 U.S. 15, 44-45 (1953).
⁷ In the case of some vaccines, not including smallpox, one may not file a civil action for
damages in an amount greater than $1,000 against a vaccine or administrator until one first
files a petition for compensation under the National Childhood Vaccine Injury Act of 1986,
42 U.S.C. § 300aa-11(a)(2), and the United States Court of Federal Claims issues a
judgment on the petition. This statute is discussed below, under “Vaccine Components and
Ingr edients.”

Technologies Act of 2002, or the SAFETY Act.⁸ Section 863 created a federal cause
of action against sellers of anti-terrorism technologies for claims arising out of “an
act of terrorism when qualified anti-terrorism technologies have been deployed in
defense against or response or recovery from such an act . . . .” Prior to enactment
of this section, suits against sellers of qualified anti-terrorism technology would have
been brought under state law, but the new federal cause of action apparently
precludes suits from being brought under state law.⁹ Under the new federal cause of
action, liability against qualified sellers of anti-terrorism technologies is more limited
than it generally is under state law. The Secretary of Homeland Security shall
determine whether an anti-terrorism technology qualifies for liability protection, and
shall place each technology that does on an “Approved Product List for Homeland
Security” and issue it a “certificate of conformance.” The Department of Homeland
Security issued a proposed rule to implement the SAFETY Act,¹⁰ then an interim
rule, which took effect on October 16, 2003,¹¹ and then a final rule, which took effect
July 10, 2006.¹²
Under the new federal cause of action, the substantive (as opposed to procedural)
law that governs liability is the law of the state in which the acts of terrorism occur,
except for the federal liability limitations discussed below.¹³ The significance of
creating a federal cause of action is that suits may be brought in federal court
regardless of the domicile of the parties and regardless of the amount of damages that
the plaintiff seeks.¹⁴ In fact, section 863 requires that suits be brought in federal court;
though federal causes of action generally may also be brought in state court, this
particular cause of action may not be, as section 863 provides that the “appropriate
federal district court” shall have “exclusive jurisdiction.”¹⁵

⁸ For additional information, see [http://www.safetyact.gov].
⁹ The SAFETY Act does not explicitly preempt state causes of action, but appears to do so
implicitly. Section 863(a)(2) gives federal district courts exclusive jurisdiction, but the
statute does not state that the federal cause of action is exclusive. It would not seem
reasonable, however, to construe the statute not to preempt state causes of action because,
if it did not preempt them, then, because state causes of action in some states do not include
liability limitations similar to those in the SAFETY Act, plaintiffs in those states would
bring state causes of action (albeit in federal court) and the SAFETY Act would have no
effect in those states.
¹⁰ 68 Fed. Reg. 41419-41432 (July 11, 2003), 6 C.F.R. Part 25.
¹¹ 68 Fed. Reg. 59684-59704 (October 16, 2003), 6 C.F.R. Part 25.
¹² 71 Fed. Reg. 33147-33168 (June 8, 2006), 6 C.F.R. Part. 25.
¹³ This includes “choice of law principles,” which means that, under section 863, if a state’s
law calls for the application of another state’s law, then the first state may apply the second
state’s law.
¹⁴ 28 U.S.C. § 1332 allows state causes of action to be brought in federal court only if the
plaintiffs and defendants are from different states and the amount in controversy exceeds
$75,000.
¹⁵ The reason that the statute created a federal cause of action, rather than simply requiring
state causes of action to be brought in federal court, may be that it might have been
unconstitutional to allow state causes of action between plaintiffs and defendants from the
(continued...)

Exceptions to the Application of State Law. Although the substantive
law of the state in which the acts of terrorism occur governs the new federal cause of
action, section 863 prescribes some rules that preempt state law.
^!Section 863 prohibits awards of punitive damages and of interest
prior to judgment.
^!Section 863 prohibits joint and several liability for noneconomic
damages. Noneconomic damages are damages for pain and suffering
and other losses that do not constitute monetary expenses, such as
medical bills and lost wages. Joint and several liability is the rule
that, if more than one defendant is found liable for a plaintiff’s
injuries, then each defendant may be held 100 percent liable. (The
plaintiff may not recover more than once, but he may recover all his
damages from one defendant, with that defendant then entitled to
seek contribution from other liable defendants.) The reason for joint
and several liability is that the common law viewed it as preferable
for a wrongdoer to pay more than his share of the damages than for
an injured plaintiff to recover less than the full compensation to
which he is entitled. Under section 863, in lieu of joint and several
liability for noneconomic damages, “[n]oneconomic damages may be
awarded against a defendant only in an amount directly proportional
to the percentage of responsibility for the harm to the plaintiff.” Joint
and several liability will continue to apply to economic damages,
except when state law provides otherwise.
^!Section 863 eliminates the collateral source rule. This is the rule that
allows an injured party to recover damages from the defendant even
if he is also entitled to receive them from a third party (a “collateral
source”), such as a health insurance company or an employer. The
collateral source rule may allow double recovery for the plaintiff, but
the common law viewed it as better for the victim than for the
wrongdoer to profit from the victim’s prudence (as in buying health
insurance) or good fortune (in having some other collateral source
available). Section 863 provides: “Any recovery by a plaintiff . . .
shall be reduced by the amount of collateral source compensation, if
any, that the plaintiff has received or is entitled to receive. . . .”
^!Section 863 permits the government contractor defense. This is a
defense, created by the Supreme Court pursuant to “federal common
law,” that product manufacturers may use in products liability cases
that allege a design defect or a failure to warn.¹⁶ These are cases,

¹⁵ (...continued)
same state to be brought in federal court. See, In re TMI Litigation Cases Consol. II, 940
F.2d 832, 848-851 (3d Cir. 1991).
¹⁶ Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988) (design defect);
Densberger v. United Technologies Corp., 297 F.3d 66, 75 n.11 (2d Cir. 2002) (failure to
(continued...)

brought under state law, in which the plaintiff alleges that his injuries
were caused by a product that was defective in that the manufacturer
failed to use the safest feasible design for the product or failed to
provide adequate warnings of a product hazard that could not be
eliminated by a feasible safer design. In its defense, the manufacturer
may assert that it manufactured the product pursuant to a government
contract and that the design or warning it used was required by
contract specifications. When it successfully asserts this defense, it
may not be held liable. Under section 863, however, as interpreted
by the Department of Homeland Security, “[s]ellers of qualified anti-
terrorism technologies need not design their technologies to federal
government specifications in order to obtain the government
contractor defense under the SAFETY Act. Instead, the Act sets forth
criteria for the Department’s Certification of technologies [that are
eligible for the defense].”¹⁷
Under section 863, that is, the government contractor defense would be available
“when qualified anti-terrorism technologies approved by the Secretary” have been
deployed, and “[t]he Secretary will be exclusively responsible for the review and
approval of anti-terrorism technology for purposes of establishing a government
contractor defense . . . .” This indicates that the Secretary’s approval of anti-terrorism
technology for purposes of establishing a government contractor defense is separate
from his determination that anti-terrorism technology qualifies to be subject to suit
under section 863 instead of under state law.
Section 863(d) provides:
Should a product liability or other lawsuit be filed . . . relating to . . . qualified
anti-terrorism technologies approved by the Secretary . . . there shall be a
rebuttable presumption that the government contractor defense applies in such a
lawsuit. This presumption shall only be overcome by evidence showing that the
Seller acted fraudulently or with willful misconduct in submitting information to
the Secretary . . . . This presumption of the government contractor defense shall
apply regardless of whether the claim against the Seller arises from a sale of the
product to Federal Government or non-Federal Government customers.”
On its face, this language seems to immunize government contractors from
liability for injuries caused by defects that were not necessarily required by contract
specifications, including defects that were not even design defects but that occurred
in the manufacturing process. In other words, it appears to provide immunity to
sellers in all cases in which the seller did not engage in the specified fraud or
misconduct. One might argue, however, that, when section 863 says that “the
government contractor defense applies,” it means only that it applies in the general
circumstance in which it ordinarily applies, namely in design defect cases in which the
defendant followed government contract specifications. The Department of Homeland

¹⁶ (...continued)
warn).
¹⁷ 71 Fed. Reg. 33149.

Security apparently takes this position when it states that, except when the
presumption in favor of the government contract is rebutted, it is “clear that any Seller
of an ‘approved’ technology cannot be held liable under the Act for design defects or
failure to warn claims. . . . The Department believes that Congress incorporated the
Supreme Court’s Boyle line of cases as it existed on the date of enactment of the
SAFETY Act, rather than incorporating future developments of the government
contractor defense in the courts.”¹⁸
Liability Insurance. Section 864(a) of the Homeland Security Act of 2002
provides that sellers of anti-terrorism technology to federal and non-federal
government customers must obtain liability insurance in such amounts as the
Secretary shall require, and such insurance shall protect, in addition to the seller,
“contractors, subcontractors, suppliers, vendors and customers of the Seller,” and
“contractors, subcontractors, suppliers, and vendors of the customer.” Section 864(b)
provides that “[t]he Seller shall enter into a reciprocal waiver of claims with its
contractors, subcontractors, suppliers, vendors and customers, and contractors and
subcontractors of the customers . . . under which each party to the waiver agrees to be
responsible for the losses . . . that it sustains . . . .” Section 864(c) provides that a
seller’s liability shall be limited to the amount of liability insurance coverage that it
is required to maintain under section 864(a).
Air Transportation Security Companies
Section 890 of the Homeland Security Act of 2002 limits the liability of air
transportation security companies and their affiliates for claims arising from the
September 11, 2001 air crashes. It limits their liability to the amount of liability
insurance they had on that date.
Section 890, more precisely, limits the liability of “persons engaged in the
business of providing air transportation security and their affiliates,” if they are
employees or agents of “a citizen of the United States undertaking . . . to provide air
transportation” and, if agents, “have contracted directly with the Federal Aviation
Administration on or after and commenced services no later than February 17, 2002,
to provide such security and have not been or are not debarred for any period within
six months from that date.” Section 890 limits the liability of such persons (i.e., air
transportation security companies and their affiliates) only for claims “arising from
the terrorist-related crashes of September 11, 2001,” and it limits it to the “amount of¹⁹

liability insurance coverage maintained by that . . . person.”
¹⁸ Id.
¹⁹ It is not apparent the circumstances in which an air transportation security company would
both be an agent of a citizen of the United States who provides air transportation and have
contracted directly with the FAA. It is also not apparent why companies who provided air
transportation security on September 11, 2001 are required to have contracted with the FAA
by February 17, 2002 in order to benefit from the liability limitation.

The September 11th Victim Compensation Fund of 2001²⁰ already provides this
liability limitation for air carriers. What section 890 of the Homeland Security Act
of 2002 does is to redefine “air carrier” to include the persons referred to in the
preceding paragraph.
Air Carriers
Section 1201 of the Homeland Security Act of 2002, 49 U.S.C. § 44303(b),
limited the liability of air carriers “[f]or acts of terrorism committed on or to an air
carrier” through 2003, and it has been extended through 2008. This section, in effect,
reenacted section 201(b)(2) of the Air Transportation Safety and System Stabilization
Act, P.L. 107-42, which was enacted on September 22, 2001. (Title IV of this act
created the September 11th Victim Compensation Fund of 2001.)
Section 201(b)(2) of P.L. 107-42 conferred a liability limitation on air carriers
for terrorist attacks that might have occurred after September 11, 2001. It provides
that,
[f]or acts of terrorism committed on or to an air carrier during the 180-day period
following the date of enactment of this Act, the Secretary of Transportation may
certify that the air carrier was a victim of an act of terrorism and . . . shall not be
responsible for losses suffered by third parties (as referred to in section

205.5(b)(1) of title 14, Code of Federal Regulations) that exceed $100,000,000,

in the aggregate, for all claims by such parties arising out of such act.
If the Secretary so certifies, making the air carrier not liable for an amount that
exceeds $100 million, then “the Government shall be responsible for any liability
above such amount. No punitive damages may be awarded against an air carrier (or
the Government taking responsibility for an air carrier under this paragraph) under a
cause of action arising out of such act.”
The section in the Code of Federal Regulations that section 201(b) mentions
refers to “persons, including non-employee cargo attendants, other than passengers”;
these are apparently the “third parties” to whom section 201(b) refers, for whose
losses above $100 million the government, but not an air carrier, would be
responsible. P.L. 107-42, as noted, was enacted on September 22, 2001, which means
that it sunset on March 21, 2002.
Section 1201 of the Homeland Security Act of 2002 extended the period during
which section 201(b) would apply to December 31, 2003. It also gave certifying
authority for operation of the liability limitation to the Secretary of Homeland Security
instead of the Secretary of Transportation, and it codified the section in 49 U.S.C.
§ 44303(b). P.L. 110-161, § 114(b) extended the liability limitation to December 31,

2008.²¹

²⁰ 49 U.S.C. § 40101 note; P.L. 107-42, title IV, as amended by P.L. 107-71, title II. See
CRS Report RL31179, The September 11th Victim Compensation Fund of 2001.
²¹ For prior extensions, see P.L. 110-116, §§ 101 and 102 (specifically, the new § 156 of P.L.
(continued...)

Federal Flight Deck Officers
Section 1402 of the Homeland Security Act of 2002 created 49 U.S.C. § 44921
to “establish a program to deputize volunteer pilots of air carriers providing passenger
air transportation or intrastate passenger air transportation as Federal law enforcement
officers to defend the flight decks of aircraft of such air carriers against of criminal
violence or air piracy. Such officers shall be known as ‘Federal flight deck officers.’”
Subsection (h) of section 44921 provides: “(1) An air carrier shall not be liable for
damages in any action . . . arising out of a Federal flight deck officer’s use of or failure
to use a firearm,” and “(2) A Federal flight deck officer shall not be liable for . . . acts
or omissions . . . in defending the flight deck of an aircraft unless the officer is guilty
of gross negligence or willful misconduct.”
Subsection (h)(3) provides: “For purposes of an action against the United States
with respect to acts or omissions of a Federal flight deck officer in defending the flight
deck of an aircraft, the officer shall be treated as an of the Federal Government.” This
means (as explained above under “Smallpox Vaccines”) that the federal government
may be sued under the Federal Tort Claims Act. This is apparently the case even
when a Federal flight deck officer is guilty of gross negligence or willful misconduct,
except that, among the FTCA’s exceptions to government liability is that the
government may not be held liable for claims based on assault or battery.
Note that, ordinarily, when a person is treated as a federal employee for liability
purposes, he becomes totally immune from tort liability. Section 1402 makes Federal
flight deck officers an exception, as it leaves them liable for gross negligence or
willful misconduct. Subsection (h)(3) recognizes this by treating Federal flight deck
officers’ as federal employees only “[f]or purposes of an action against the United
States”; it does not treat them as federal employees for purposes of an action against
themselves.
Vaccine Components and Ingredients Manufacturers
and Administrators
Sections 1714-1717 of the Homeland Security Act of 2002 amended the National²²
Childhood Vaccine Injury Act of 1986, which is part of the Public Health Service
Act. We first explain the 1986 act and then the Homeland Security Act’s amendments
to it. Note: sections 1714-1717 were repealed by P.L. 108-7 (2003), Division L,
§ 102; see the end of this report for details.
National Childhood Vaccine Injury Act of 1986. This statute created the
National Vaccine Injury Compensation Program and provides that one may not sue
a vaccine manufacturer or administrator for more than $1,000, for death or injury
caused by vaccines set forth in the statute’s Vaccine Injury Table, unless one first files
a petition for compensation under the Program, and the United States Court of Federal

²¹ (...continued)

110-92 added by § 102 of P.L. 110-116).

²² 42 U.S.C. §§ 300aa-1 — 300aa-34.

Claims issues a judgment on the petition. The Program, which is funded by a tax on
vaccines, provides more limited recovery than is generally allowed under state tort
law, but provides relatively fast, no-fault compensation. It was hoped that “the
relative certainty and generosity of the system’s awards will divert a significant
number of potential plaintiffs from litigation.”²³
Recovery under the Program is limited to actual unreimbursable expenses, up to
$250,000 for pain and suffering and emotional distress, $250,000 in the event of a
vaccine-related death, actual and anticipated loss of earnings, and attorneys’ fees and
other costs, but no punitive damages. A petitioner dissatisfied with his recovery under
the Program may sue a vaccine manufacturer or administrator under state tort law,
with some limitations. Manufacturers are not liable for failure to provide warnings
directly to the injured party, as a warning to the vaccine administrator is deemed
sufficient. There are rebuttable presumptions that manufacturers who comply with
federal regulations are not subject to suit for failure to warn or to punitive damages.
Petitions for compensation under the Program are filed for “a vaccine-related
injury or death,” and that “term does not include an illness, injury, condition, or death
associated with an adulterant or contaminant intentionally added to such vaccine.”²⁴
Homeland Security Act Amendments. Sections 1714-1716 of the
Homeland Security Act of 2002 made the Program applicable not only to vaccines in
the Vaccine Injury Table, but to “any component or ingredient of any such vaccine.”
Section 1717 made sections 1714-1716 applicable “to all actions or proceedings
pending on or after the date of enactment of this Act,” which was November 25, 2002.
An action or proceeding is no longer pending when a court has entered a judgment
that entirely disposes of it, regardless of whether the time for appeal has expired.
Section 1715 added a sentence to the section quoted above that provides that the
Program does not cover “an adulterate or contaminant.” The new sentence provides
that the term “adulterate or contaminant shall not include any component or
ingredient.”
The statute does not state whether a claim that was pending on November 25,
2002 may be pursued if the statute of limitations in the National Childhood Vaccine
Injury Act of 1986 had already run on that date.²⁵
Although sections 1714-1717 apply to the components and ingredients of every
vaccine listed in the Vaccine Injury Table, press reports indicate that this provision
was intended to benefit pharmaceutical manufacturer Eli Lilly, which has been “a

²³ H.Rept. 99-908, Part I, 99^th Cong., 2d Sess. 13 (1986); reprinted in 1986 U.S.C.C.A.N.

6354.

²⁴ 42 U.S.C. § 300aa-33(5).
²⁵ The statute of limitations is three years from “the date of the occurrence of the first
symptom or manifestation of onset or of the significant aggravation of such injury,” except
that if a death occurred as a result of the vaccine, then the statute of limitations is two years
from the date of death and four years from “the date of the occurrence of the first symptom
or manifestation of onset or of the significant aggravation of the injury from which the death
resulted.” 42 U.S.C. § 300aa-16(a)(2),(3).

major target in a spate of lawsuits filed since 2000” concerning Thimerosal, which is
a preservative used in some childhood vaccines. Thimerosal contains mercury, which
allegedly has caused autism in some vaccinated children.²⁶
Courts, however, have held that Thimerosal is not an “adulterant” or
“contaminant” as used in the statute (as quoted above), but is a vaccine “component”²⁷
and therefore was covered by the Program before enactment of the Homeland Security
Act of 2002. A case decided in September 2002 stated:
It appears that every federal court to have ruled on the issue has held that injuries
resulting from Thimerosal contained in vaccines are vaccine-related under the
meaning of the Act. See Liu v. Aventis Pasteur, No. A-02-CA-395-SS, 2002 WL
31007709 (W.D.Tex. August 23, 2002) (holding the injuries were vaccine related
in a motion to dismiss); Owens v. Am. Home Prods. Corp. 203 F. Supp.2d 748
(S.D. Tex. 2002); see also McDonald v. Abbott Labs, 02-77 (S.D. Miss. Aug. 1,

2002); Collins v. Am. Home Prods. Corp., 01-979 (S.D.Miss. Aug. 1, 2002);

Stewart v. Am. Home Prods. Corp., 02-427 (S.D. Miss. Aug. 1, 2002)(denying
motion to remand and granting motion to dismiss); Strauss v. American Home
Prod. Corp., 208 F. Supp.2d 711 (S.D. Tex., 2002) (finding injuries from
Thimerosal are “vaccine-related” under the Vaccine Act); Blackmon v. American
Home Prod. Corp., Cause No. G-02-179 (S.D. Tex. May 8, 2002) (same); Owens
v. American Home Prod. Corp., 203 F. Supp.2d 748 (S.D. Tex. 2002)(same).
Additionally, the Department of Health and Human Services has taken the²⁸
position that Thimerosal is not an adulterant or contaminant of vaccines.
It appears, therefore, that, with respect to Thimerosal, sections 1714-1717 would
have made a difference only to the extent that they would have precluded future court
decisions that disagree with these.
P.L. 108-7 (2003), Division L, § 102, repealed sections 1714-1717, and provided
that the Vaccine Program “shall be applied and administered as if the sections . . . had
never been enacted. . . . No inference shall be drawn from enactment of sections 1714
through 1717 . . . or from this repeal, regarding the law prior to enactment of sections
1714 through 1717. . . . Further, no inference shall be drawn that [this repeal] affects
[sic] any change in that prior law, or that Leroy v. Secretary of Health and Human
Services [supra, note 22] was incorrectly decided.”
P.L. 108-7 (2003), Division L, § 102, also provides that it is the sense of
Congress that, not later than six months after the date of its enactment, which was
February 20, 2003, the Senate Committee on Health, Education, Labor, and Pensions;
and the House Committee on Energy and Commerce, “should report a bill addressing
the issues” of ensuring an adequate supply of vaccines, developing new vaccines, and
liability for vaccine-related injuries.

²⁶ “Homeland Bill Rider Aids Drugmakers,” Washington Post, November 15, 2002, p. A7.
²⁷ Leroy v. Secretary of the Department of Health and Human Services, No. 02-392, 2002
U.S. Claims LEXIS 284 (October 11, 2002).
²⁸ Bertrand v. Aventis Pasteur Laboratories, Inc., 226 F. Supp.2d 1206, 1213 (D. Ariz.
2002). This quotation names eight cases, and the cases cited in this footnote and the
previous footnote make a total of ten that have ruled the same way.