By Kent Heckenlively, Esq.
In the movie Ransom Mel Gibson and Rene Russo play the wealthy parents of a boy who’s been kidnapped and is being held hostage for $2 million dollars. The business man played by Mel Gibson is a smiling charmer, but also knows how to turn the table on his opponents.
Going on live television with the two million dollars piled high on a table in front of him he announces that he’s turning the ransom into a bounty on those who kidnapped his son. It’s a bold, risky move, and like most Hollywood movies turns out well. Gibson’s action causes the kidnappers to start looking over their shoulders, making mistakes, and eventually turning on each other.
That’s the best way to understand the potential implications of Bruesewitz v. Wyeth. For nearly twenty-five years the pharmaceutical companies have been able to lock vaccine injuries out of the courthouse through the 1986 National Childhood Vaccine Injury Act establishing the Vaccine Court. Their potential losses for vaccine injuries as well as the discovery of possible dangers from vaccines have been minimized by this structure.
But like Mel Gibson turning the tables on the people who took his son, parents may soon be able to turn the tables on the pharmaceutical companies. The money which was once used to influence legislators and medical associations could soon be coveted by legions of trial lawyers. When I consider the more than one million children with autism, and the 1 in 4 children who have a chronic health condition I really don't care if the wolves of the legal profession gobble them up. It's called justice and every other industry in America has had to live under the same set of rules. If their product causes injury they need to pay for the damage. Why shouldn't vaccines be subject to the same level of scrutiny as other products?
Let me tell you why I think the current legal legal status of the vaccination program in this country is so crazy. If you got up this morning, put some bread (gluten-free, of course) in the toaster, turned your back, and the toaster was on fire, burning up your kitchen, you’d be able to sue the manufacturer. In discovery you’d be able to subpoena all the records from the company on toaster fires, design and manufacture of the product, reports to consumer agencies on defective toasters, and eventually you’d be in possession of just about all the necessary information on toaster fires. You could present this to a jury and twelve of your fellow citizens would determine if the company was negligent in the design or manufacture of their toaster, and if so, how much you should recover.
It’s a pretty simple system and for the most part it keeps everybody honest. The safety of the majority of the products in our lives is fairly high.
Which is why the entire vaccine court set-up has always been such a mystery to me. It’s like playing a game where all the rules are stacked against you. You don’t have a right of discovery (it’s by permission of the court), you can’t get government records, and the Special Masters are paid by the same government which is promoting the vaccines. In fact, part of the publicly expressed rationale for the court is to maintain public confidence in the vaccination system. That’s a little like saying the purpose of a police brutality trial is to convince the public that all police do a great job.
Public confidence is maintained when the truth is revealed, whatever the consequence to the guilty party. You can’t hide the truth as a way to maintain public confidence.
Bruesewitz v. Wyeth has the potential to move all that in a new direction. The National Childhood Vaccine Injury Act simply states, “No vaccine manufacturer shall be liable . . . if the injury or death resulted from side-effect that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”
What does that mean in plain English? The example I’ve always heard used in reference to such a standard is dynamite. Now we all know what dynamite does. It blows up. So, if you light a stick of dynamite, wait over it, and it blows up, you’re out of luck. By its very nature dynamite is an inherently unsafe product.
But if you have a six-foot fuse, light it, and as you try to run away the fuse burns so quickly that you can’t escape, well, you’re entitled to recovery. Or, if they use substandard chemicals and the dynamite simply blows up while sitting in a box, then you’re entitled to recovery.
You can still sell dynamite. As the manufacturer you just need to sell the safest dynamite you can produce.
The civil court system is supposed to ensure that manufacturers are making all possible efforts to ensure the safety of their products. But since the 1986 law the pharmaceutical companies have gotten away for nearly the past quarter-century without having to subject their vaccines to the rigors of the civil court system. The pharmaceutical companies seem to be arguing that all vaccines injuries are "unavoidable." I don't think that's a reasonable interpretation of the 1986 law. If the vaccine could have been made safer (maybe by different ingredients or a different schedule) and the pharmaceutical companies didn't investigate how to make them safer, they should be held responsible.
I’m not predicting the Supreme Court will rule that pharmaceutical companies can be sued for defective design of their vaccines. However, I think it is the more reasonable conclusion.
The pharmaceutical companies tell us their vaccines are safe. Let them prove it in open court.
Kent Heckenlively is Legal Editor of Age of Autism