Supreme Court to Decide Whether Vaccine Manufacturers May be Sued

Is it possible that the lawyers for Hannah’s parents are deliberately avoiding the label of “autism”. Could Hannah be autistic? This has been stategy in the past with other “syndromes”, I do wonder if Hannah carrys all of the criteria for autism yet lacks the label.

from the Pittsburgh Tribune-review
An individualized lesson plan allowed Hannah Bruesewitz,17, of Mr.Lebanon, a nonspeaking autistic child, to learn through scrapbooking,said her mom. Robie , a member of Southminster Presbyterian Church in Mt. Lebanon. She brought in her daughter’s caregiver a dozen years ago to talk with church leaders about the needs of those with autism.

Hi Lisa,

There was an article on this in the WSJ(?).

According the article, the legal issue here is which court can they sue in?

Plaintiffs want to sue in state courts, which are perceived as easier to win in. Current law requires them to sue in federal court.

For whatever it is worth, conventional wisdom is that having lost in the very low bar “vaccine court”, they have no chance of winning in state or federal court. Rather, many feel the case is more about establishing a precedent for subsequent cases that might be won in state courts.

W&N

The case does have a connection to autism in that the lawyers for Wyeth raise the possibility of all of the autism omnibus cases flooding the civil court system if the case goes against them. I thought it was a bit of a stretch for that to be included and doubt that will be an issue that the Supreme Court would consider that relevant.

I think the most interesting part of this case – one that highlights the problems with the vaccine court very clearly – is that if Hannah’s parents had filed their claim in 1995 just 1 month earlier they likely would been compensated and would not still be fighting this case 15 years later.

“According the article, the legal issue here is which court can they sue in?”

Actually the two “courts” at issue are the vaccine court (not really a court) and the regular court system.

The main point under dispute is that the law that created the vaccine court prevents the the vaccine maker from being directly sued for defects in their products and that the ONLY channel for claiming damages due to any and all defects would be the vaccine court.

For whatever it is worth, I don’t think the family is looking to set a precedent, I think they just want financial compensation for their daughters injuries.

“…the statute as a whole shows clearly that Congress intended to leave civil courthouse doors open for petitioners who elect to leave Vaccine Court to sue for design defects. Lower courts, nonetheless, have decided the question both ways. So the Supreme Court must step in and resolve the conflict. The stakes are high: whether a person injured by a vaccine can challenge the safety of the design in any court in the United States.

“A three judge panel of the Third Circuit unanimously decided in March 2009 that petitioner Hannah Bruesewitz did not have the right to sue vaccine manufacturer Wyeth, Inc. to assert that its vaccine design was unsafe. (See Bruesewitz-Decision) Hannah was born in October, 1991, and received her third DPT shot on schedule on April 1, 1992. Shortly thereafter she developed ‘residual seizure disorder,’ recognized as a Table Injury at the time, meaning that causation was presumed. ‘Residual seizure disorder’ was deleted from the Table just one month before she filed her case. Finally, on December 20, 2002, more than ten years later, Vaccine Court categorically rejected her claim. This hardly complies with Congress’ promise in the 1986 NCVIA that awards be ‘made to vaccine-injured persons quickly, easily, and with certainty and generosity.’ The Bruesewitz family argues that the safer acellular DTaP vaccine was long available by the time Hannah received the DPT and suffered seizures, and that her vaccine injury was avoidable had the manufacturer used this demonstrably safer vaccine design.”

http://www.ageofautism.com/2010/03/the-supreme-court-takes-bruesewitz-v-wyeth-is-there-justice-for-vaccine-injury-victims.html

Hi MJ,

All just variations on a theme.

The vaccine critics assert that the only option for claiming damages is the “vaccine court”.

I say something like, why don’t you read HRSA site where it explains that in the US everyone can sue vaccine manufactures (start with the FAQ).

And then I post a link like this: http://mdcourts.gov/opinions/coa/2009/112a08.pdf

Hey US courts have already ruled and the rulings appealed on the issue of do vaccines cause autism—all the vaccines cause autism arguments have been ruled “junk science” not even admissible in court.

Good news: this is par for the course. Once you start verifying claims you understand why the vaccines cause autism claims have been rejected.

W&N

W&N,

With all due respect, you are completely missing the point of the current case before the Supreme Court. This case is about the ability to sue vaccine makers in the court system for defects in the products and the damages that they can cause.

Most suits, including the current one, get bounced out of the courts because the law is being read such that even if the vaccine is defective, even if the maker knew of problems with the vaccine, and even if they had a safer product available, the law grants the company broad immunity from being sued in civil courts for any defects.

There are a few exceptions such as for outright criminal behavior or fraud, but the simple fact of the product being defective isn’t one of the exceptions.

Or to put this in simple terms, as long as the FDA has approved the vaccine, a company cannot be sued for any defects in the product (except possibly in the state of Georgia, but that is uncertain) in civil courts. If you try it, the case will be tossed out.

This has nothing to do with autism or what you refer to as “junk” science and everything to do with a law passed in 1986.

If you doubt what I am saying, I suggest you take the time to read the actual rulings and filings in this case, especially the ruling from the 3rd circuit court. If you have trouble finding them, click on the link on my name and you will find the links on my site.

Yes, and sadly , at the time of Hannah’s reaction, a dtap, was marketed to children, not for the infant dose for “some reason” but for later doses. I made a special request, in 1996 to have my child’s first dtp a dtap, and it was granted, however, even at that late date infants were not routinely given the newer “safer” shot. Why? I can guess the stockpile needed to be used to not lose profit.

Hi MJ,

Why didn’t you follow my suggestion and check out the HRSA site FAQ?
http://www.hrsa.gov/Vaccinecompensation/

Question #12 is “Circumstances for Suing a Vaccine Administrator/Company”

It explains in simple–non-legalize–language that ever family in the US can sue.

Amazing isn’t it? A 1986 law and the vaccine critics still get the basic facts wrong. Kind of makes you wonder what else they get wrong…

Why didn’t read the link I provided to the Maryland court of Appeals? Here it is again: http://mdcourts.gov/opinions/coa/2009/112a08.pdf

Here is the first sentence:

“Pamela and Ernest Blackwell, parents and next friends of Jamarr Blackwell, !!!SUED!!! the drug manufacturer Wyeth, Inc., its affiliates, and others, alleging that Jamarr’s autism and mental retardation were caused by thimerosal-laden vaccines administered to Jamarr when he was a baby.”

You can’t get any clearer than that: the Blackwells sued Wyeth claiming that their child’s autism was caused by thimerosal containing vaccines.

Clearly one can sue vaccine companies and in fact people have sued vaccine companies claiming that vaccines caused autism.

If you were to actually read the 62 page decision, you would see that the Blackwells were given a 10 day evidential hearing after which all the argument made by their 5 so-called scientists were excluded as junk science (they failed the Frye-Reed test).

It is all there for you to read.

If you do bother to read the decision I think it becomes clear why the people the claim vaccines cause autism don’t want you to know that these decisions exist.

There are other court cases too.

W&N,

I already have read all of the materials you are citing but it is clear you have not read the documents in the current case. If you had, you would know that what you are saying is simply untrue.

On the first page of the ruling from the 3rd circuit court it says -

“This appeal presents three questions related to the National Childhood Vaccine Injury Act:

(1) whether the Act preempts all design defect claims against the manufacturer of a vaccine;

(2) whether the plaintiffs demonstrated that the manufacturer failed to adequately warn the plaintiffs of the risks associated with the vaccine; and

(3) whether the plaintiffs provided sufficient evidence of a manufacturing defect to survive the defendant’s motion for summary judgment.

The District Court held that the Act preempted all design defect claims and concluded that the plaintiffs failed to provide sufficient evidence to support the other two claims. For the reasons that follow, we will affirm.”

Notice the phrase that says “THE ACT PREEMPTED ALL DESIGN DEFECT CLAIMS”? Notice the 3rd circuit agreeing with that statement?

What do you think that statement means if not that the act prevents you from suing for defective product?

As for your case, look at the years that the vaccines were given – 1985 and 1986. This is from before NCVI act was passed (late 1986) and I don’t think the immunity was granted retroactively.

Or in simple terms – your case predates the law in question so the law doesn’t apply.

Hi MJ,

Here is a link to the actual law in question:
http://www.law.cornell.edu/uscode/42/usc_sup_01_42_10_6A_20_XIX_30_sq2.html

It is long, but if you go through it you will find that it exactly says that families can sue. And the conditions appear to my non-lawyer eyes to be exactly as stated on the HRSA site.

And it states that one has to go through Federal (not State) courts–consistent with WSJ article.

I gather that you aren’t really interested in discussing the evidentiary hear, or asking questions like why the sites that purport to exist to educate families don’t share this information with their readers?

W&N

W&N,

Let me ask you a simple question, did you read the filings in the current case?

From what I have read, yes, families can sue in federal (or Georgia) courts, but only under very specific circumstances.

In other words, if your doctor screwed up the vaccine preparation or administration, or didn’t tell you there could be side effects, you might have a case outside the vaccine court.

But if your doctor prepared and administered the vaccine correctly, and you received info about possible side effects, and you feel your child was injured, and the injury was among those listed in the “table,” your recourse is the Vaccine Court.

If the injury is NOT among those listed in the “table,” it would be trickier. And I don’t think a federal court would accept such such a case, since there was no malpractice and vaccine risks are known and managed under the vaccine court.

If your child is now ten years old and, looking back, you’re sure it was vaccines that injured him – you really don’t have a case, period.

Lisa

Hi MJ,

I have read what is available on-line.

Do you have sufficient legal background to follow in detail the nuances of the case?

Did you read the text of the Federal law which plainly states how families can sue?

Did you read the Reuter’s report about the Omnibus ruling? It states that the Meads had previously sued in Oregon, and that Bruesewitz case was about a Federal law that protected vaccine manufacturers from being sued in State court–sound familiar?

W&N

Hi Lisa,

#12 from the FAQ from the HRSA site–link provided above.

Question: Under what circumstances may a vaccine administrator or vaccine company be sued?

Answer:
1. If the petition has been judged non-compensable or dismissed under the National Vaccine Injury Compensation Program (VICP); or
2. If the award granted by the VICP is otherwise rejected by the petitioner; or
3. If the vaccine is not covered under the VICP

In other words, the specific circumstances required to sue are:

1. If a family loses in the vaccine court
2. If a family wins in the vaccine court, but does not like the award
3. If the vaccine is not part of the program

Which covers every family in the US–the worse case is you have to go to the vaccine court first and then sue.

W&N

W&N,

If you have read the filing and yet keep saying that you can sue in the regular court systems for defects in vaccines, I don’t know what to tell you.

This case is completely on point against what you are saying, your quoting of the law notwithstanding. The text of the law is part of what a law means – how the courts interpret it is the other part.

A ruling by the 3rd circuit court granting broad immunity for defects trumps an FAQ on a government web site every day of the week.

You are either not reading or not believing what I am writing but I think I have made my points clearly. So unless you have something new to say, why don’t we just agree to disagree on this one and call it a day?

W&N – looked for what you’ve cited and couldn’t find it off the bat; will look again. have found other articles and info that seem to back MJ’s perspective.

The thing is: if everyone who wanted to could simply go off and sue Wyeth, then surely they’d be doing so, wouldn’t they? Are the Polings, the Cedillo’s, etc. preparing briefs for civil suits? Hard to believe they’d hold off if they have the right to get out there and press their case…

It’s also a bit confusing to me when I read articles that say it’s ONLY legal to sue vaccine makers in Georgia, and that the Supreme Court will hear a case in order to make a more general ruling…

It just baffles me: what would be the purpose of the vaccine court if we are all within our rights to go sue Wyeth or Lilly on the basis that we think their vaccines caused our kids’ autism? Isn’t the whole point of the vaccine court to provide a quiet way for vaccine injuries to be handled without subjecting pharma to pricey legal cases or undermining the vaccine program overall?

Lisa

Lisa,

The Georgia thing is due to a ruling by the Georgia supreme court (Am. Home Prods. Corp v. Ferrari) that interpreted the NCVIA of 1986 in a different way than other courts did. The ruling in that case was that the courts would have to look at the issues on a case by case basis to determine whether the suit would be allowed. In other rulings (such as the 3rd circuit) the interpretation is that the specifics of the defects don’t matter and the case is immediately kicked.

The ruling by the 3rd circuit (http://www.ca3.uscourts.gov/opinarch/073794p.pdf) addresses the Ferrari case directly starting on page 28 (they disagree with the Georgia Supreme Court).

The problem created by this ruling is that is only applies in Georgia and that means a federal law is applied differently depending on the state in which you live. This is likely one of the reasons that the US Supreme Court agreed to hear this case, to resolve the differences between the 3rd circuit and the Georgia court.

You are right about the purpose of the vaccine “court”. It is meant to be the first stop for any party that is injured by a vaccine. If you try to sue in the regular court system before first filing in the vaccine “court”, your case will immediately be dismissed and sent to the vaccine “court”.

Once your case is heard by this program (it isn’t really a court), you may be awarded compensation and that will be the end of it. The tricky part is when a person isn’t satisfied with the ruling in vaccine “court” (or direct appeals of the vaccine court’s rulings) and chooses to take take their case to the regular court system.

What happens at this point depends on what your exact charges are. If you say that the vaccine was administered badly or in a fashion that was not indicated by the FDA, you may have a chance. If you say that the vaccine was “defective” (for almost any legal meaning of that word), it is likely that your case will be summarily dismissed – at least in every state but Georgia. At this point, it is completely irrelevant whether you have the science to “prove” the injury – you could even have (theoretically) a case where the company freely admits that their vaccine causes this injury and it would not change the outcome.

The problem is that the vaccine law isn’t as clear as it could be and has been interpreted by the court to mean that Congress intended to provide immunity to ALL claims of defects. At least assuming that the vaccine is FDA approved and used according to directions.

Or, to put it in very simple terms, the problem is the use of the word “unavoidable” in the following sentence from the vaccine act and how it has been interpreted by the courts -

“No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”

thanks, MJ. This is helpful.

I’m afraid I’m no authority on medicine and the law. I’m always baffled by the ads that say “this wonderful medicine may cause insanity, permanent disabilities or death. Contact your doctor if you lose your vision.”

Clearly the law requires transparency relative to potential risks and side effects… but is a disclaimer sufficient to clear the manufacturer of legal blame in the case of insanity, permanent disability or death?

In the case of vaccines, of course, the issue is magnified by the reality that vaccines are a key part of the global public health effort. Given that fact (vaccines clearly do save many, many lives), does that fact ethically trump the rights of individual families to a jury trial, making the Vaccine Court a reasonable alternative?

I sure don’t have the answers. It’s like looking at freedom of speech and child pornography… is there a point at which certain freedoms and rights should be limited on ethical grounds?

Lisa

No problem, the subject matter gets confusing and, although I am not an expert either, I spent many hours reading the case materials and researching the subject before I wrote about the issue for my site, so I am at least passingly familiar with the issues.

I would quibble though about the law requiring transparency relative to potential risks and side effects. In the specific case of vaccines, I don’t think it requires any such thing, at least not directly. All that is required is that the FDA signs off on the product.

And I think this goes to the heart of the debate surrounding vaccines. The safety record of vaccines is muddied in an attempt to protect the vaccine system – how many times have you read that vaccines are perfectly safe (or the equivalent)? And yet you have a special program to deal with the damages that they cause and this program has a several thousand case backlog.

I am not saying that vaccines aren’t safe, because the most of the time they are. But it does more harm than good when the risks are downplayed or ignored.

As far as the ethics of the issue, it is my opinion that the current law goes too far. It allows a situation where a vaccine maker can keep a product that they know is problematic on the market – even if they have a better, safer alternative available and are simply sitting on it because the older one generated more profit.

Corporate liability is what keeps companies honest. When you take that away that liability, you take away the main incentives that companies have for ensuring that their products are as safe as possible.

To be honest, MJ, I think the right person to truly speak on this topic is a lawyer versed in the ins and outs of the legal system as it relates to medical claims in general and to vaccines specifically.

I’ve delved fairly deeply into the vaccine court itself, as well as its origins. But I’m not sure any of us on this thread have the expertise to really describe the intricacies of this rather obscure bit of the law.

As the Supreme Court gets closer to actually hearing the case, I will probably interview a lawyer with specific expertise. Perhaps someone has a recommendation?

Lisa

You are completely right, of course. None of us is an expert (or even close) in the matters.

Have you ever looked at this site ?

http://www.scotusblog.com

This group follows the doings of the supreme court and has some association with this law practice -

http://www.akingump.com/

They tend to have very good, comprehensive coverage of the issues before the Supreme Court. When the case gets closer to being heard next fall I am sure they will cover it.

Thanks for the link, MJ – will check it out!

Lisa

Hi MJ,

Thanks for posting the link to the BRUESEWITZ decision.

It states right in the decision that a family can sue after the NVICP decision is reached. It then references the law that I previously posted.

So now that this has been established, any interest in the facts of the Blackwell decision?

W&N

Hi Lisa,

My non-lawyer opinion of the NVICP–it is a compromise.

Have you read the criteria for winning?

Basically, if there is a “table injury”, the family wins.

Clearly other disorders can also cause the table injuries so some families have to have been compensated when the vaccination had nothing to do with the health issues.

Alternatively, the family can argue that the health problem was caused by the vaccine. Here is the criteria (described in the Mead decision) required for the family to win:
1. A medical theory
2. A logical sequence of cause and effect
3.A temporal relationship

Clearly once again the bar has been set very, very low for the family to win. But there is no-fault and no cost on the manufacturer’s part.

The key point is that win or lose the attorneys still get their fees.

Remember the interim legal bill for the first set of three cases in the omnibus was $7 million–even though the special masters were nothing short of contemptuous of the cases.

Still if families lose or don’t like the decision they may sue in civil courts.

Compare the Blackwell’s experience with the omnibus families. In the civil case the trial didn’t even finish–all the vaccines cause autism arguments were ruled to be of such poor quality they couldn’t even be admitted to court. And the attorney$ got nothing.

Bottom-line with NVICP:
(1) if you can’t win in the vaccine court, you have no realistic chance of winning in civil court.

(2) Attorneys get their money

(3) Deserving or not, families get compensated

(4) Frivolously lawsuits are minimized

W&N

W&N – assuming that you’re correct in your interpretation, why isn’t Jenny McCarthy in court right now, arguing that her son was vaccine injured? In fact, why aren’t suits in progress from every member of GenRescue, TACA, etc.?

Logically, most of the funds raised for those organizations would be spent on class action and similar suits against Lilly and Wyeth… since the focus of the organizations is on preventing autism ostensibly caused by vaccine injury.

The fact that they are NOT in court makes me wonder whether your interpretation of the law could be correct.

Lisa

W&N,

1. I asked you if you read the documents in the current case. You said that you did.

2. I quoted from the 3rd circuit court decision (twice actually) and you say “Thanks for posting the link ” and then point out something that you think supports your case.

3. This leads me to the conclusion that you have not in fact read the documents that you said you did OR you misunderstood the documents I was talking about.

4. The full text of the 3rd circuit court contradicts what you are saying, which you can tell with even a quick reading of the text.

5. The other filings in the case, specifically the Petition for Certiorari, Brief in Opposition, Supplemental Brief, and Amicus Briefs ( see here http://scotuswiki.com/index.php?title=Bruesewitz_v._Wyeth) all contract what you are saying.

6. I have no idea where you are getting your ideas from, but it does not seem to be from the current case.

If you want to read the full text of the documents and then have a discussion about the issues in this case, I am game.

If you want to push your pet theories about what the issues are rather than what is actually being said in this case, I am not interested in continuing the conversation.

W&N – assuming that you’re correct in your interpretation, why isn’t Jenny McCarthy in court right now, arguing that her son was vaccine injured? In fact, why aren’t suits in progress from every member of GenRescue, TACA, etc.?

The fact that they are NOT in court makes me wonder whether your interpretation of the law could be correct.

W&N’s interpretation seems spot on to me. What exactly do you think she got wrong?

In all likelihood, McCarthy knows she wouldn’t win a civil action brought against a vaccine maker. She knows it’s over. Interesting to note her next book will have nothing to do with vaccines and autism. In related news, Lenny Schaeffer is no longer associated with The Schaeffer Report, and Andrew Wakefleld has been forced out of the non-profit org he started.

It’s over. Time to move on to more productive lines of inquiry.

That’s a good question, why isn’t McCarthy in court, too? Some one should present that question to her. For some of those orgs. every member would be in vaccine court due to the time limit to file but McCarthy sure could have. I do agree with ANB, I believe there’s reasons why she isn’t but it’ll be neat to hear McCarthy’s explanation of why.

Don’t hold your breath. It looks like Typhoid Jenny is quietly separating from her angry mob. Her next book will deal with more familiar terrain: Love, Lust and Faking It will reportedly be published by HarperCollins in September.

She totally nails the faking it part. It will be interesting how her disdain for accountability and honest debate is reflected in her upcoming ouevre.

Hi Sandy,

There is at least one reason why people like Jenny McCarthy aren’t in civil court suing:

They can lose badly in the vaccine court and their attorneys can still pocket $10’s of million$.

But if they lose in civil court their attorneys will generally get nothing.

To my mind this is a test of their convictions: all the petitioner’s attorneys from the omnibus should be lining up to sue in civil court–unless they believe that they don’t actually have a case and their true motivation for pursuing the omnibus was person profit.

W&N

I don’t think Jenny was part of the Omnibus. And honestly, if she wanted to sue in civil court, I can’t imagine money would be an object.

Hi ANB,

I disagree with your statement that it is time to move on.

I think that at the very least it is worth taking a minute to connect the dots–they tell what is in my mind the real story here.

Using our friend Dr. Greier as an example:

1. Parent’s pay him $100,000+ to treat their kids
2. The obvious errors in his methods/model/theory (whatever you want to call it) are detailed in places like the Blackwell decision
3. The vaccines cause autism crowd asserts that it is impossible to sue vaccine manufactures.

Naturally people that believe there are no relevant legal decisions don’t go looking for legal decisions and thus never read Blackwell.

Just today our friends at AoA posting more nonsense: (http://www.ageofautism.com/2010/03/the-su.html#more) untruthful claiming that since 1986 vaccine manufacturers have not had to defend themselves in a civil court and bemoaning if only they had access to civil courts…

Whoops, the entire brain-trust of AoA collectively couldn’t get the basic facts of NVICP correct.

Or find the Blackwell case, or Sykes v Glaxo, or Easter v. Aventis Pasteur, or Nestlen v. Aventis Pasteur, Ashton v. Aventis Pasteur, or Reilly v. Wyeth, or Doe vs. Ortho-Clinical Diagnostics.

Or maybe they simply don’t like the facts of the cases….

W&N

Hi MJ,

To me this seems pretty simple.

Question: does NVICP prevent parents from suing vaccine manufacturers?

I have given a link to the law–which clear explains that parents can sue.

You have provided a link to the BRUESEWITZ decision. It clearly states on page 6 that if parent’s don’t like the vaccine court decision they can the sue.

Now you seem to be saying that I am misinterpreting the law.

OK-this took maybe 5 mins to find:

1) Here is a link to an attorney’s site: http://www.carltonfields.com/newseventspubs/publications/Detail.aspx?publication=708

” A plaintiff may file suit under state law only after first petitioning the Vaccine Court for compensation and rejecting that court’s judgment.”

2) How about law.com: http://www.law.com/jsp/article.jsp?id=1202428247143

” But while the rulings may prove to be a major hurdle for their cause, lawyers for many of the plaintiffs (omnibus families) say their legal efforts may only just be starting. They are already contemplating possible appeals, and talking about suing the pharmaceutical companies directly.

3) A WSJ interview: http://online.wsj.com/article/SB123445313976177691.html

” Thomas Powers, an attorney with Portland, Ore., firm Williams, Love, O’Leary & Powers, who represented the family of autism sufferer Colten Snyder (Omnibus case), said his clients are considering their options, which include asking for a review, appealing the case, or taking the case to civil court.

4) Hey, even good old autism.about had an interview with part of the petitioners legal team: http://autism.about.com/b/2007/06/12/your-questions-about-the-autism-vaccine-trials-answered-by-a-lawyer-for-the-plaintiff.htm

” If the petitioners lose, there are a couple of avenues. They can appeal to the Judges of the Court of Federal Claims or they can go out to the civil court (state/federal) and bring their claims directly against the vaccine manufacturers.”

I don’t know how we can more sure of this simple fact: if a parent doesn’t like the vaccine court decision, then they can sue.

The vaccine critics get this fact wrong all the time. So what, that isn’t nearly as important as the findings of the court (civil and vaccine) cases. Facts that the vaccines critics seem totally uninterested in discussing or even acknowledging.

W&N

Hi Lisa,

Re #33

The interim legal bill for the first omnibus test case was $7million.

So yes, if Jenny was willing to put up millions or tens of millions of dollars she could presumably get attorneys to take her case.

Apparently she has not been willing to do so. Perhaps she doesn’t truly believe she has a case?

Talk is cheap. If she does have the required money and if she truly believes what she argues, why isn’t she suing?

W&N

W&N,

You keep repeating the same claims but you are ignoring what this exact case that that post is about. The issue that is being appealed to the US Supreme Court is entirely about whether you can sue for defects in vaccines. I would point you back comment #11 where I said -

On the first page of the ruling from the 3rd circuit court it says -

“This appeal presents three questions related to the National Childhood Vaccine Injury Act:

(1) whether the Act preempts all design defect claims against the manufacturer of a vaccine;”

The 3rd circuit court decided that the Act does preempt all design defect claims, assuming the vaccine was approved by the FDA and used as intended. A decision by the 3rd circuit trumps articles on web sites or in a newspaper.

The Supreme Court is now reviewing this decision – if it were not in doubt then why would the court hear the case?

From the docket of the Supreme Court, under the “questions presented”, it says -

http://www.supremecourtus.gov/qp/09-00152qp.pdf

“Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 ["the Act"] expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.” 42 U.S.C. § 300aa-22(b)(1). A-104.

The Question Presented is
Whether the Third Circuit erred in holding that, contrary to its plain text and the decisions of this Court and others, Section 22(b)(1) preempts all vaccine design defect claims, whether the vaccine’s side effects were unavoidable or not?

1 Whether Section 22(b)(1) of the Act encompasses both negligent and strict liability design defect claims is not at issue in this petition. Both the Ferrari court and the court below found that it encompasses both claims. See A-35; Am. Home Prods. Corp. v. Ferrari, 668 S.E.2d 236, 242 (Ga. 2008)”

Is it that you don’t understand the above point or you simply thing the docket from the Supreme Court is wrong?

Perhaps you could explain what you think this case is about if not being able to sue for defects?

Question: does NVICP prevent parents from suing vaccine manufacturers?

No, it it removed to incentive that most parents have for suing in civil court, by creating a venue with a lower standard of evidence, so that parents are more likely to receive compensation, and in a more timely manner than the civil courts can offer. The court has awarded 2,200 plaintiffs in the last 24 years. It’s doubtful that most of those cases would have been worth bringing in civil court, due to litigation costs and the higher standard of proof found there. That’s what Jenny’s angry mob doesn’t get.

Here’s some background and insight into the Bruesewitz case.

Hi MJ,

Please reread the title of this blog, Lisa’s first sentence, and in particular your entry #8.

You said a number of times in different ways that it is impossible to sue or at very least it is exceptional to be able to sue vaccine manufactures.

This is simply not correct.

Yes, one legal argument is prohibited, but it is exactly the norm to be able to sue vaccine manufacturers in civil court it the US.

Since this is an autism blog, I think it is extremely relevant that civil courts have heard the vaccines cause autism arguments and entirely rejected them in the strongest possible way.

I think it is significant that it is routinely—and untruthful–asserted that in the US one can’t sue vaccine manufacturers. And that these same people are linked with businesses that transfer huge sums of money from autism parents based on the exact arguments ridiculed by the courts.

W&N

I am currently a law student and I am on the products liability moot court team. Our issue this year deals specifically with the statutory language of the vaccine act section 300aa-22(b)(1) and what congress intended by that language. I have spent hundreds of hours over the past few months writing a 45 page brief dealing with this issue. I have researched every aspect of it. Both MJ and W & N are right in a sense. The issue is whether the vaccine act preempts all DESIGN defects. It is clear that a vaccine manufacturer may be liable for manufacturing defects and directions/warning defects as stated in section 22(b)(1). The language at issue states “if the injury or death resulted in side effects that were unavoidable….” Vaccine manufacturers are arguing that all design defects are considered unavoidable and the injured individual is arguing that this language is conditional and that design defects may be avoidable and that this needs to be determined on a case by case basis. If you read 22(e) it states that no state shall establish or enforce a law prohibiting an individual from bringing forth a civil action for a vaccine related injury or death UNLESS the civil action is barred by this part. This says that civil actions are barred in section 22. If the unvoidable issue must be decided on a case by case basis then it would be subject to analysis by a court everytime. Thus, nothing in section 22(b)(1) would ever be barred. I have looked at this so much that I dream about it. There has been five courts that have looked at this and 4 of 5 have held that all design defects are preempted from state tort liability suits. In my own opinion, I believe that SCOTUS will rule with the 5 courts mainly because of the policy reasons behind the vaccine act. If you have any questions I would be happy to answer them. In a little over a week I will be competing in the oral argument part in front of a mock Supreme Court made up of nine federal circuit court judges, district court judges and state supreme court judges in the National Rendigs Products Liability Moot Court CompetOrion in Cincinnati.

Wow this is a great resource.. I’m enjoying it.. good article

Good back and forth in the comments, I have a good friend who works with autistic children and am interested in these types of conversations.

My friend works with autistic children so I am always on the lookout for articles like this.