December 07, 2020 Articles

The Swine Flu Litigation

The United States is currently on the verge of a national vaccination program for COVID-19. But the last time the country ran a program to immunize every American, in 1976, a very serious side effect began to appear.

By Paul D. Rheingold and Clifford J. Shoemaker

Given the current mass COVID-19 vaccination program under way, it is interesting to see how liability and compensation issues were handled the last time the United States undertook to vaccinate every citizen—the swine flu program of 1976. The situation then was different from the present—virtually no one had it, but the scientific community was convinced that administering a newly developed vaccine was necessary to prevent the disease.

Also completely different was the way compensations for vaccine-related injuries were handled then as compared to what is planned now should there be serious side effects from the COVID-19 vaccines. In 1976, the manufacturers of the swine flu vaccine refused to sell it unless they had immunity, so the government stepped into their shoes and agreed to be sued under the Federal Tort Claims Act. 

Unfortunately, a very serious side effect began to appear in the 1976 vaccinees—Guillain-Barre Syndrome. Ultimately there were thousands of suits, and the cases were congregated into an early multidistrict litigation in 1978. We were members of the Plaintiffs' Steering Committee and wrote about the litigation in Litigation Magazine's Fall 1981 issue. That article follows below.

With vaccination for COVID-19 beginning, litigators should look to the swine flu vaccination program to prepare for what could come next.

With vaccination for COVID-19 beginning, litigators should look to the swine flu vaccination program to prepare for what could come next.

Credit: 10'000 Hours/DigitalVision via Getty Images

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