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University of Miami International and Comparative Law Review

Abstract

This note analyzes the legal mechanisms in the United States that provide compensation for vaccine injuries sustained as a result of inoculation against pandemic viruses when a public health emergency has been declared. While the United States has an every-day compensation scheme that deters litigation by providing just compensation yet upholds the right of injured parties to seek damages in court, it has a special compensation scheme applicable to vaccines developed to address public health emergencies that bars litigation by effectively providing vaccine manufactures with complete indemnification and severely restricts the ability of injured parties to receive compensation. Meanwhile, in contracting with pharmaceutical companies to provide advance purchase orders for forthcoming vaccines, other countries, the European Union, and the intergovernmental organization COVAX have managed to negotiate agreements that provide vaccine manufactures with some measure of liability protections while still maintaining the ability for consumers to take their claims to court in the event of a vaccine injury. Through comparisons between the United States’ pandemic countermeasures compensation scheme and its own every-day vaccine injury compensation program, as well as schemes devised by other countries and organizations, this note argues against the wisdom of a scheme that favors protecting pharmaceutical companies over the protecting the populace and suggests that the United States enact a more equitable way to balance the competing interests of incentivizing pharmaceutical companies to produce life-saving vaccines and protecting the right of consumers to compensation.

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