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The Supreme Court takes on Vaccine Court: Turning the Tables with Bruesewitz v. Wyeth

Legal update 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

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Look at how well Unilever handled contamination in its SlimFast line of diet drinks. They launched a national recall of every can right before the huge New Year's diet push.

Consumers reports of off-tasting products (mine included) were taken seriously. When I returned my cans, I got a prompt refund and an apology. The reformulated cans are back on the shelves and selling well.

Contrast that with the disgraceful neglect showed by public health administrators charged with vaccine surveillance. Consumer reports ignored or denied. Vaccine injury victims left with lifelong disabilities, no medical care, financially ruined.

Emotions aside, who can have confidence in a product with nonexistent customer service and a sales force of prevaricating bullies?

Kent, your articles always impact the reader with logical analysis and yet so easily understandable. And your analogies are picture perfect: The Ransom movie and toaster design negligence comparisons brings it all home. The logic behind the laws are basically so straightforward, but when it comes to the pharmaceutical industry, these same laws are thrown out the window.

We know HOW all of the corruption surrounding vaccines produced this Kangaroo Vaccine Court, but WHY has it gone on for so long in spite of all the evidence which exposes this horrific industry that is hell bent on destroying our lives for the sake of the Almighty Profit Margin. And it's not just the vaccines, but so many other dangerous health damaging and fatal drugs which are continually allowed on the market regardless of over 100,000 deaths per year. Is their bribery of congress and government officials so far reaching that this can never be stopped???!!! Big Pharma continually gets away with Murder, Attempted Murder, Assault with a Deadly Weapon, and Conspiracy, and yet they always get handed the Get Out of Jail Free Card.

Oh Yes the DYNAMITE:"By its very nature dynamite is an inherently unsafe product." Vaccines like Dynamite will blow up in their face sooner or later. I pray to God that it happens to them sooner because they are already long overdue for justice.

"The federation credits will do fine." So says Obi-Wan Kenobi of Star Wars. With a wave of his hand he changes weak-minded people.

The courts keep waving their hand, "vaccines are safe" and hope we will believe them.

We will turn the tables with examples just like in this article. Vaccines are a product like any other. Market forces, legal forces will act on them eventually. Keep treating it like a product.

If it is true that Roberts has recused himself we might have a fighting cnance to win this.

Hey;
When the vaccine court was first thought of and brought into existance we all thought that this was for the best. This was in my young days when I trusted in my government.

I thought this will keep parents of damaged children from having such a hard time collecting damage for their brain damaged children. That money could be put away to help support that child for the rest of its life.

HA!

The US government may still the best form of government in the world because it was thought up by men who had been under the foot of other governments BUT even the best government must never be trusted and must be watched with distrustful eyes. The moral of this story for me is never forget the history of mankind.

Since it is St. Patrick's Day let us remember their history. The Irish famine in the 1840's. Why are so many Irish here in the USA today because the government made them pay rent for their own land in live stock. Shipped the live stock, and oat grain over seas. When the potato crop failed the Irish thought the government would not make them pay rent and maybe help a little bit. The government did bring in Indian meal (corn meal) which they made the Irish buy, never mind they had no money to buy it with. Most of the time the corn meal was off loaded from an American ship in Irish ports onto another ship to be taken and sold somewhere else.

What is wrong with the hearts of the human being????

Kent,

I read that Justice Roberts has recused himself due to Pfizer/Wyeth stock holdings. Is this accurate? In the event of a split decision, does the lower court ruling stand? And what would that mean since the appellate courts in different states have come to different conclusions?

So many questions. Sorry. I'm grateful to you & Mary Holland for helping us lay folks understand the legal ins and outs. Thanks!

Kent,

The SCOTUS has already agreed with you in principal when they ruled on Levine Vs Wyeth that the tort system is absolutely required to protect public health from pharmaceutical mischief which abounds as they point out.

Reading the unprecedented unanimous amicus brief filed by the former and current editors NEJM (found here: http://www.abanet.org/publiced/preview/briefs/nov08.shtml), they make many different arguments as to why regulatory bodies are not adequate to maintain safety and that a strong tort system is required for pharmaceuticals. Reading the arguments, it is clear the exact same arguments apply to vaccines as a product.

The SCOTUS agreed in a 5-4 decision.

It will be interesting to read if they feel the special status of vaccines (viewed as a greater health benefit I'm sure) should override those very same arguments.

I sure hope the lawyers on this one are good.

Thank you Kent.

"The morality that pollution is criminal only after legal conviction is the morality that causes pollution."


W. Eugene and Aileen Smith http://en.wikipedia.org/wiki/W._Eugene_Smith


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