Apportioning Liability In Mass Inoculations: A Comparison of Two Views and a Look at the Future


In 1976, the federal government embarked on the unprecedented task of immunizing the entire adult population against the threat of one disease–Swine Flu. Many of the difficulties encountered by the program planners resulted from the need for a scheme that would apportion liability for injuries associated with the inoculation program. The Swine Flu inoculations were officially haltedon December 16, 1976; the socio-epidemiological and legal ramifications of this Program demonstrate the need for a permanent national scheme for ensuring the safe production and dissemination of vaccines when threats of epidemics arise in the future.

Public Law No. 94-380 is the congressional response to the problem of apportioning liability in mass inoculations. The judicial reaction to this problem of liability varies by jurisdiction and by theory of liability–i.e., negligence, breach of warranty, and strict liability in tort.

This Note compares the common law of liability in mass inoculations, asdeveloped by the courts, with the legislative model depicted by the Swine Flu Program. Both the judicial and legislative approaches are analyzed with respect to: principles of risk allocation, the peculiar nature of mass inoculations, the actions to which liability could attach, and the public policy priorities. Finally, a model is proposed for the long term solution to the mass inoculation problem.

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