For the second year in a row, the US Supreme Court is weighing in on a person’s ability to sue Wyeth (a division of Pfizer, Inc.) for producing a dangerous vaccination, or whether federal law preempts an injured person’s claims under state law. Last year’s case, Wyeth v Levine, was over whether federal law preempted state law, with regards to a drug’s labeling concerns. In that case, consumers won a victory when the Supreme Court held 6-3 (with Justice Thomas curiously departing from his conservative allies) that federal law did not prevent consumers from making tort claims under state law.
Now the issue is about vaccinations. More specifically, whether a Pennyslvania family may sue Pfizer Inc.’s Wyeth unit over allegations that the drug maker could have marketed a safer vaccine but chose not to do so. In this case we get to see how the Court’s new makeup might play into balance, and whether Justices Kennedy and Thomas decide to rule in favor of consumers once again, or protect corporate interests in the guise of federal preemption.
Back in 1986 the National Childhood Vaccine Injury Act created a national compensation program for claims of vaccine injury, protecting manufacturers against lawsuits over injuries stemming from “unavoidable side effects.” Among the issues the Supreme Court gets to consider is just what is an unavoidable side effect. Pharmaceutical companies fear that if the Supreme Court rules to block federal preemption in vaccination cases, courts will be flooded with cases alleging complications with vaccinations led to autism in children. The case before the Supreme Court now does not involve autism.
Wyeth made the now-defunct vaccine — against diphtheria, tetanus and whooping cough — administered to Hannah Bruesewitz when she was an infant. (She’s now 18.) Hannah’s parents allege that their daughter’s seizure disorder and developmental problems set in after she received a dose of the vaccine. Within hours, she suffered scores of seizures and has been developmentally impaired ever since. Her parents claimed her injuries were caused by the vaccine, which was developed in the 1940s, and that the manufacturer, Wyeth Pharmaceuticals, had declined to substitute another, safer and more modern, vaccine. When the special vaccine court ruled that there was inadequate proof the vaccine caused Hannah’s injuries, her parents then sued in state court, where they would have the right to subpoena drug company records to learn what the drug company knew about the vaccine’s safety. The lower courts, however, threw the case out, declaring that the federal vaccine law barred all suits over design defects.