RFK Jr.’s HPV Vaccine Lawsuits: Who Really Stands to Profit?

This commentary is a repost from “Sex on Wednesdays” by Martha Kempner on Substack. Find her other articles on The Queen Zone here.

Don’t Worry, RFK Jr. Jr. Will Get the Money if HPV Vaccine Lawsuits Succeed

By the time you read this, it’s likely that RFK, Jr. will be officially in charge of our public health infrastructure (or at least everything that the President Non-Elect Musk has no interest in). While he favors raw milk, says seed oils are poisoning us, and clearly shares a spray tan “artist” with Donald Trump, Kennedy has dedicated much of his career to spreading anti-vaccine Mularkey. (I’m mad at Uncle Joe in much the same way I’m mad at RBG, but I miss him already.)

Children’s Health Defense: A Nonprofit Disguised as an Anti-Vaccine Machine

In 2015, Kennedy took over the Children’s Health Defense, a nonprofit that was originally called the World Mercury Project. The organization’s mission does not specifically mention vaccines. It hides behind phrases like “protect the health of children by eliminating environmental exposure” and promises to “shed light on shadowy practices of powerful entities like Big Pharma, Big Tech, Big Chemical and Big Food.” Its actions, however, are all about spreading vaccine misinformation, suing manufacturers, and trying to stop state mandates.

In 2019, CHD sued New York for its school vaccine requirements in the middle of a measles outbreak. In 2020, it helped finance a sequel to the viral Plandemic video which, according to NPR, alleges that the COVID-19 was planned as part of a global conspiracy. In 2021, it put out a film targeting Black Americans with misinformation about vaccines, including the idea that Black people are more at risk for complications and should be on a different vaccine schedule. (This bulls**t came up in Jr.’s hearing, and he refused to back away from it.) In the years since the pandemic, CHD has filed more than 30 lawsuits challenging vaccines and public health mandates for them. (But sure, let’s put its Chair in charge of our vaccine program.) CHD and Kennedy also continue to insist that vaccines cause Autism, a charge that has been disproven only about a gazillion times.

RFK Jr.’s Legal Entanglements: Conflicts of Interest and the HPV Vaccine Lawsuits

In addition to his work with the nonprofit, Kennedy has consulted on a number of lawsuits, including some against Merck which manufactures the HPV vaccine. These lawsuits came up during his confirmation hearing because Senators were concerned about a potential conflict of interest that could arise from the guy in charge of vaccines suing the maker of vaccines for personal profit. In his original ethics filing, he explained that he’s “… entitled to receive 10 percent of fees awarded in contingency fee cases referred to the firm.” (For those who didn’t go to law school or watch L.A. Law, a contingency fee case is one where the lawyers only get paid if they win.)

After being grilled on this financial arrangement by Senators, Kennedy thought better of his answer and amended his ethics statements. He’s now giving his interest to his son Conor who is a lawyer at one of the firms he consulted with. RFK, Jr. and Trump seem to share an ethicist as well as a tanning bed. Giving something to your kid—whether it’s a payout or controlling interest in your company—is not the same as giving it away. My life is still enriched when my children (one of whom is technically an adult) makes money. For one thing I’m happy for them. For another, they need less from me. My oldest is desperate for a car. If someone else gave her a car, they’d be giving me a gift. And if anyone out there wants to pay her college tuition….

The focus on the ethics overshadowed information about the cases themselves and whether they had any merit. There are apparently over 200 lawsuits alleging that Gardasil causes various neurological disorders, autoimmune issues including POTs, and other ailments, and that Merck failed to disclose this. Many of these cases are in Federal Court and have been consolidated under one judge—U.S. District Judge Kenneth D. Bell, Sr. in the Western District of North Carolina—so that lawyers can coordinate discovery and pretrial proceedings. 

In 2023, Bell asked the plaintiffs to choose 16 “bellwether cases.” The idea is to see how juries will react to the evidence and expert testimony that will be repeated in most of the cases. The fact that he asked for 16 cracks me, and probably only me, up. There are hundreds of types of HPV, but the one that causes most cases of cervical cancer is, you guessed it, 16. The original version of Gardasil which was approved in 2006 protected against four high risk types of HPV: 16 & 18 (which cause most cervical cancer) and 6 & 11 (which cause most cases of genital warts). An updated version which has been on the market since 2014 protects against nine high risk types some of which are responsible for other cancers like penile, vulvar, anal, and head and neck cancers.

Sixteen feels like such a random number here. Fifteen would have made more sense simply because it ends in a five. Twenty would have been understandable as well since it’s roughly ten percent of the case load. But 16? Maybe, just maybe, Judge Bell did his homework and is punking us? (Or maybe he knows it’s my favorite number because I was born at 11:16 on 11/16.)

Merck has filed a number of motions to dismiss these cases arguing that the FDA labeling process supersedes these lawsuits and noting that the vaccine met those requirements. The pharma company has also asked the judge to exclude all of the plaintiffs’ expert witnesses which it then followed with a motion to dismiss based on the lack of expert evidence. Who says lawyers don’t have a sense of humor?

If Judge Bell does not dismiss the case, he will likely winnow down the 16 test cases to a handful that will be heard this year or early next year.

In addition to these cases, there are some others making their way through state courts. One such case started this week in California. Merck and the plaintiffs in the federal cases are obviously watching that jury very closely.

Gardasil: A Life-Saving Vaccine Under Attack by Misinformation and Lawsuits

I have not seen the expert testimony that the plaintiffs want to introduce. I do not know how they plan to connect Gardasil to the neurological or autoimmune issues that the plaintiffs have suffered from. I also don’t know what evidence they plan to provide to suggest that Merck should have known about and disclosed these issues.

I do know that over 270 million doses of the vaccine have been given worldwide over the last 18 years, and most complications have been mild. I know that the vaccine prevents a cancer that kills 350,000 of women around the world each year. I also know that the vaccine prevents other cancers that are on the rise like anal cancer and cancer of the throat. And I know that widespread use of the vaccine could actually eliminate cervical cancer at least in resource rich places like the United States. (Australia has a national vaccine program and is well on the way.)

A couple hundred people who claim damages and their ambulance-chasing, anti-vaccine lawyers looking to profit is not enough to change my mind about the importance of Gardasil. We have a vaccine that can prevent cancer. We should be celebrating it, not vilifying it.

I’m sure that’s exactly what will happen under our new Secretary of Health.

January was Cervical Health Awareness Month, and I worked with the American Sexual Health Association and the National Cervical Cancer Coalition to produce a bunch of resources promoting vaccines and screening. I interviewed cervical cancer survivors for a podcast series, did another two podcast episodes with public health experts explaining new self-collection options, created some written material around self-collection, and helped with an “ask the expert” video. January is over, but check them out anyhow.