The genius of our political and legal system is that we don't fully trust ANYBODY.
Consider these two comments from James Madison, one of our Founding Fathers, and a co-author of The Federalist Papers, which explained the principles of our system of government. Madison wrote, "If men were angels, no government would be needed," thus establishing the need for a system of laws. He also wrote, "The truth is that all men having power ought to be mistrusted," which justified the need for an overlapping system of checks and balances to keep those in power relatively honest.
It's with these two principles in mind that I want to discuss Bruesewitz v. Wyeth, Inc., a case headed to the U. S. Supreme Court in September or October of 2010 which will answer the question of whether the National Childhood Vaccine Injury Act of 1986 prevents claimants from bringing an action for "design-defects" of vaccines in state court and why this case is so important. Specifically, I want to focus on the arguments made in the brief in support of the Bruesewitz claimants by attorneys Kenneth Starr and Erwin Chemerinsky.
Most readers will be familiar with the name Kenneth Starr from the Clinton impeachment hearings but may not know that prior to that he was the U. S. Solicitor General and subsequent to the hearings became the dean of Pepperdine University School of Law and is now the president of Baylor University.
When I was in law school the name Chemerinsky was invoked by my Constitutional Law professors with something akin to divine reverence. Chemerinsky taught for more than twenty years at the University of Southern California, School of Law and is the current and founding dean of the University of California, Irvine School of Law. To understand how politically opposite Chemerinksy is from Starr you should know that when President Clinton wanted to appoint Chemerinsky to a vacancy on the Ninth Circuit Court of Appeals he was told by Senate Republicans that the nomination would be dead on arrival.
Despite these strong ideological differences, both esteemed lawyers agree that the National Childhood Vaccine Injury Act of 1986 has been misinterpreted for more than two decades. They believe the Act was never intended to close the courthouse doors on what are known as "design defect" cases in which a manufacturer will be held liable if a safer alternative was available. Starr and Chemerinsky have joined together in a brief to the Supreme Court (interested parties or acknowledged experts in the field may submit what are called "amici curiae" or "friend of the court" briefs in cases before the Supreme Court). Both lawyers are experts in the field of federal and state authority so it will no doubt be of interest to the court that these lawyers with such differing ideologies agree on this point. You can read their brief HERE.
Starr and Chemerinsky begin with the history of the relationship between the federal and state governments. They both agree that while the power of the federal government trumps the power of the state governments, the federal government must show clear evidence of their assertion of that power. In other words, if the federal government wants to take something from the states, like the ability of its citizens to sue for damage from products which injure them, it has to make its intentions "clear and manifest". In the absence of such evidence it will be presumed the federal government did not intend to take such power away from the state governments.
"The principle recognized in Rice and its many progeny is necessary to protect state soverignty and to ensure the proper functioning of the political safeguards of federalism. Requiring evidence of a clear and manifest preemptive purpose provides a political check, by affording notice to the states' representatives in Congress, and it also creates a procedural check, by demanding that state-law-displacing choices satisfy the bicameralism and presentment standards of Article I." (Starr and Chemerinsky brief, P. 4)
The brief goes on to state, "Congress must make clear its intent to alter the federal balance and displace state law, particularly in the areas where states have historically exercised their police powers to protect consumers and promote public health, welfare, and safety." (Starr and Chemerinsky brief, P. 5)
After having demonstrated that taking away the right of citizens to sue in state court for damages can only be done by a "clear and manifest" declaration by the federal government Starr and Chemierinsky turn to the actual language of the statute, specifically 42 U.S.C., section 300aa-22(b)(1). "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 (italics mine) even though the vaccine was properly prepared and was accompanied by proper direction and warnings." (Starr and Chemerinsky brief, P. 7)
They then go on to say, "Although the Vaccine Act creates a mandatory national compensation program, the Act contains a savings clause that expressly contemplates the preservation of state law claims. (Starr and Chemerinsky brief, P. 8)
The question then becomes one of how to determine whether a vaccine is "unavoidably unsafe" and how that determination is made. The answer of Starr and Chemirinsky is that such determinations must be made on a case by case basis, meaning that they would be determined in state courts, according to the laws of those individual states. "Properly construed, Section 22(b)(1) does not preempt all design defect claims against vaccine manufacturers on a categorical basis, but rather provides that such a manufacturer cannot be held liable for defective design only if it is determined, on a case-by-case basis that the vaccine was unavoidably unsafe." (Starr and Chemerinsky brief, P. 9)
What does this mean in practical terms?
It means that regardless of whether you're conservative or liberal you believe that not only are doctors not God, they're not angels, either. The same can be said of the pharmaceutical companies as well. They have power over us in their healing role, and we are wise to view their claims with a certain level of skepticism. If they want to escape liability for vaccine injuries they must demonstrate that no safer alternatives existed.
The pharmaceutical companies need to come into court just like other manufacturers and convince us of the safety of their products. Can you imagine if other industries had their own courts? How about "Foreign Oil Company Court?" Maybe "Cell Phone Court?" Or possibly "Hybrids that Suddenly Accelerate Court?"
No, these suggestions are just silly. We instinctively understand that such a system would invite abuse. And so it is with "Vaccine Court." That's why we need the pharmaceutical companies to be in a regular civil court. We the citizens of this great country have a few questions which we don't think they have yet answered. Here are a couple questions I might ask.
Could you please show us the studies on the safety of injecting thimerosal into people, and please let it be something else other than that study from the 1930s in which you injected thimerosal into people with terminal meningitis, watched them for a day, then declared the thimerosal safe?
Could you also please show us the studies on the safety of injecting aluminum into newborns?
We'd also like to see your studies showing that the various passenger viruse from monkeys, pigs, and mice which are commonly found in vaccines are really harmless.
We haven't been able to ask these questions for the past twenty years because the rules of Vaccine Court prevent it. If Bruesewitz v. Wyeth gets decided in our favor, then we can ask all these questions and more and the pharmaceutical companies will have to answer. It will be the law.
And in addition to answering our questions they will need to provide us with all documents regarding their safety testing, or lack thereof, on these vaccines. (Another right which doesn't exist in Vaccine Court.) As an aside, there would be a financial incentive to law firms to generate research on questions left unanswered by the pharmaceutical companies, such as the rate of neurological diseases in vaccinated and unvaccinated populations. Wouldn't it be great to have the law on the side of safety rather than pharmaceutical profits?
That is the importance of this case.
Kent Heckenlively is Contributing Editor to Age of Autism