Vaccine Injury Compensation Program: The Need for More Discovery

In the American tort system, discovery is a crucial means of gathering evidence prior to trial. Even in no-fault systems such as worker’s compensation proceedings, discovery is a vital process to ensure valid claims are paid. However, the rules in the National Vaccine Injury Compensation Program definitively state that there is no discovery in the Program "as a matter of right."

Petitioners need access to reasonable methods of discovery. The discovery rule in the Vaccine Program should be changed to allow petitioners more latitude in freely obtaining discovery. Such a change would be vital in cases where no injuries are listed in the vaccine injury table or where the type of injury is so novel or rare for off-table injuries. With a high burden burden of proof, the highly adversarial nature of the program, and the plethora of resources available to the Department of Justice that are brought to bear against petitioners, restricting discovery as it stands now amounts to denial of adequate representation and due process.