In May, researchers reported something that would have sounded like science fiction a generation ago. In patients with high-risk melanoma, an experimental mRNA cancer therapy paired with an immunotherapy drug cut the risk of the cancer returning or killing them by nearly half. The same approach is now in late-stage trials for lung, kidney, and bladder cancer. The technology behind it is the very same messenger RNA platform that produced the COVID-19 vaccine.
That shared lineage matters more than most people realize. The legal rules written for vaccines also apply to cancer therapies built on the same platform. So, a fight over vaccine liability is really a fight over something bigger: whether the next cancer breakthrough ever gets developed in the United States, and whether the public will be able to access the treatments once they’re made.
Right now, that future is in danger, and the threat is coming from inside our very own government. Health and Human Services Secretary Robert F. Kennedy Jr. has already canceled roughly $500 million in federal mRNA research, and he recently purged the leaders of the task force that decides which cancer screenings, from mammograms to colonoscopies, people get for free.
Earlier this spring, Kennedy told Sen. Bill Cassidy (R-LA) that President Donald Trump deserves a Nobel for Operation Warp Speed, which produced the COVID vaccine. It’s a jarring statement, considering he is working diligently to undermine future revolutionary treatments that Warp Speed made possible and to erode the legal backstop that made their development possible in the first place: the National Vaccine Injury Compensation Program.
Created in 1986 and signed into law by Ronald Reagan, the VICP program answered a real crisis. A wave of lawsuits over alleged vaccine injuries had driven nearly every manufacturer out of the market, and the country faced real shortages of basic childhood shots. The fix was a straightforward trade. People who suffer a rare injury file a no-fault claim against a federal trust fund instead of suing in civil court, and they do not have to prove a company was negligent. In exchange, manufacturers get protection from the unpredictable litigation that nearly wrecked the supply chain. Over four decades, the program has paid out more than $5.4 billion to injured families with verified claims.
Here is the part the program’s critics never mention. VICP is built to protect the injured, not the lawyers. It pays a claimant’s attorney a reasonable hourly fee out of the trust fund, separate from the award, so the injured family keeps every dollar it is granted. Drag those same cases into civil court, and the math flips. Trial lawyers there routinely take 30% to 40% of the award off the top before their client sees a cent.
That is the real reason the program is under attack. Kennedy calls VICP “broken” and wants to end the liability shield, a change that would push injury claims back into the civil courts the trial lawyers prefer. It is worth remembering what he did before HHS. He was a trial lawyer who helped organize litigation against Merck, and he collected $856,000 in referral fees from a firm suing the company over its HPV vaccine. The lawyer he brought in to help overhaul the program is a vaccine injury attorney whose firm won a $410,000 sole-source federal contract and who built much of his own practice moving claims out of the program and into lawsuits against Merck.
The irony is hard to miss. Tearing down VICP would hurt the very people it was built to help. In civil court, injured families face a higher burden of proof, years of delay, and no guarantee of any outcome at the end. The few who win hand over a third or more to their attorneys. The program Kennedy calls heartless is the one that actually pays people, quickly and in full.
MEASLES IS BACK. VACCINATED CHILDREN ARE SUFFERING THE CONSEQUENCES, TOO
Investors in new treatments are watching closely. Building a new cancer therapy takes years and billions of dollars in upfront bets, and those bets aren’t likely if there’s associated legal uncertainty. Make the liability environment impossible, and the work moves overseas, or it does not happen at all. Every trial that cannot launch here is a gift to a competitor abroad.
Trump campaigned on lowering costs, reining in lawsuit abuse, and making America safer and healthier. His own HHS secretary is doing the opposite, handing the trial bar a path to the courtroom at the expense of patients and the cures they are desperately waiting for. The president has the authority to stop it. He should make clear that his administration will protect VICP, and the future of American innovation along with it.
Matthew Kandrach is president of Consumer Action for a Strong Economy (CASE).