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Should Vaccines Be Exempt from Product Liability? Will Supreme Court Protect Business or You?

Product-liability The vaccine landscape is quite different in 2010 from 25+ years ago, when the vaccine court was created. Vaccines are now a major growth opportunity area for pharmaceutical companies. Like our food, energy, healthcare, who comes first, the consumer and his/her safety or the corporation? With product liability comes corporate caution - even if borne out of a need to protect profits. Do you feel safe knowing that Merck and friends bear no financially liability for the vaccines the government mandates for your children? Or that your elderly parents receive as a matter of course? We're watching the Supreme Court decision carefully.

The safety of vaccines is at the heart of a case expected to be heard on Tuesday by the United States Supreme Court, one that could have implications for hundreds of lawsuits that contend there is a link between vaccines and autism.

Hannah Bruesewitz suffered harm from a vaccination as an infant, her parents say.
At issue is whether a no-fault system established by Congress about 25 years ago to compensate children and others injured by commonly used vaccines should protect manufacturers from virtually all product liability lawsuits. The law was an effort to strike a balance between the need to provide care for those injured by vaccines, some of them severely, and the need to protect manufacturers from undue litigation.

Under the 1986 National Childhood Vaccine Injury Act, such claims typically proceed through an alternative legal system known as “vaccine court.” Under that system, a person is compensated if their injury is among those officially recognized as caused by a vaccine. That person, or their parents, can choose to reject that award and sue the vaccine’s manufacturer, but they then face severe legal hurdles created by law to deter such actions.

The case before the Supreme Court is not related to autism. But the biggest effect of the court’s ruling, lawyers said, will be on hundreds of pending lawsuits that contend a link exists between childhood vaccines and autism. Repeated scientific studies have found no such connection.

Also, in several test case rulings over the last two years, administrative judges in vaccine court have held that autism-related cases did not qualify for compensation. During the last decade, about 5,800 of the 7,900 claims filed in vaccine court, or about 75 percent, have been autism-related, federal data show.

Federal data shows that $154 million was paid in fiscal 2010 to 154 claimants involved in vaccine court proceedings. That figure was significantly higher than in preceding years and reflected several unusually high awards, officials involved in the program said...

Read the full article at New York Times HERE.


cheryl Hazzard

I am a woman who has Aspergers syndrome and looked up the effects of Mercury poisoning. It was uncanny how many of the mental health and physical health issues from mercury were the same as autism. I can't believe that the FDA let big Pharma keep thimersol in the vaccines as long as they did. I heard of parents whose kids had seizures after getting the vaccines and mercury causes seizures. I didn't get seizures, my little boy did, but I had a whole host of other problems. I get so angry that my government is so willing to trust big pharma and back them up. Big Pharma contributed to ruining my life and many others. Now I have a lot of health conditions to deal with, along with child protective services, and my life has been incredibily difficult. I have discovered that everyone connected to someone with this syndrome is adversely effected. Big Pharma needs more monitering and a bit less freedom to do whatever they please. I think our government needs a wake up call. Our government needs to get their heads out of their behinds and into the real world. I and others like me should not have to suffer because of vaccines that are unregulated and not tested by appropriate people I am at risk for losing my son because of a syndrome that could have been prevented. Big Pharma does not need protection, people like me and parents of children need protection. Big Pharma could use a could use a solid kick in the behind.

There Should be No Exceptions for Product Liability for ANY Product!  An Obvious Logical Statement!

If a consumer were ever told that a product that they were about to purchase was exempt from product liability they would likely never purchase that product. There is a good reason for that. This is one of the core fundamental protections to the consumer, of the judicial system's best ability, to ensure product safety. We all know that product liability is the ONLY THING that pressures the manufacture to ensure a reliable and safe product to the consumer. It is unconstitutional that ANY product especially a product MANDATED to the consumer is exempt from product liability. No other product exists on this earth is exempt from product liability. If this injustice is practiced in the legal system, then every parent should be told that there is no product liability from the manufacturer through proper informed consent before a vaccine is administered. This information is kept from the consumer because it is common sense that most consumers would say no to such a proposal if informed.

Theresa O

DSO, thank you for the link. The transcript really was fascinating. I found Justice Sotomayor's questions to be right on point: Could it be possible that Congress (in 1986) intended there to be no remedy for individuals harmed by a design defect, and that manufacturers were to be shielded from litigation even when they deliberately continued to manufacture a product that harmed/killed people? And also Ginsburg's question: If Congress meant to exclude design defects, why not simply say it? The respondent's attorney had no good answer for either question--and in the case of Sotomayor's question, the respondent's attorney's answer must provoke (in at least some minds) doubts as to the Constitutionality of the 1986 compensation act.

Of course, there were the usual misstatements from the respondent's attorney: "But there are 5,000 claimants in vaccine court now who claim there is a relationship between the mumps, measles, and rubella vaccine and autism." [Not true--the claimants in the omnibus autism proceeding have different theories of causation, including MMR-only, thimerosal-only, and MMR + thimerosal.) and "Congress was worried about episodic waves of fear about vaccines leading to future litigation." [Not true: Congress was not concerned about FEAR driving litigation. Congress was concerned about the costs of legitimate litigation: that these costs would bankrupt vaccine manufacturers, even though these plaintiffs were actually harmed by vaccines (not just afraid that they were).

One final item... It struck me early on that even if the Supreme Court decides that the intention of Congress in creating the 1986 compensation act was to exclude design defects, some design defects could escape this exclusion: design defects present in vaccines licensed AFTER 1986, e.g., ProQuad. ProQuad was licensed, but had a higher risk of seizures than MMR and varicella vaccines administered separately. (Who knows what other aspects of ProQuad's side effect profile are vastly inferior to MMR and varicella administered separately? Bensmyson, I believe you've mentioned that ProQuad seemed to be a precipitating event in your child's illness.)

What makes me think that ProQuad (for example) could still be vulnerable to design defect lawsuits in State court is the line of questioning by Justice Breyer to the plaintiff's attorney, Mr. Frederick:

"At that point, what is your response, on that assumption that this brief on the other side from the American Academy of Pediatrics and 21 other physician and public health organizations--what the pediatricians here say is that, if you win, we're turning this over to judges and juries instead of the FDA and other specialized agencies, that the result could well be driving certain vaccines from the market, and basically, a lot of children will die. And that--that's their claim.
And I think that their legal argument there is that wasn't Congress's purpose. Congress's purpose was the contrary.
So leaving the language out of it, I would like you to respond to what I would call that purpose-related, fact-related argument by these particular people."

If the Supreme Court rejects the plaintiff's argument that the specific wording of the compensation act does not exclude design defects, Justice Breyer's reading of the *intent* of the compensation act still does not (in my mind) exclude State lawsuits for design defects in vaccines that were licensed after 1986. How could Congress possibly have been concerned that the manufacturers of a not-yet-licensed (and completely unforeseen) vaccine would go out of business? They could not. (Bensmyson, if your claim was not appropriately heard in the Court of Federal Claims, I wonder if this is something you could pursue.)

Sorry to ramble on. I found the lines of questioning by Sotomayor and Ginsburg to be promising, and even Kennedy seemed to be leaning toward the plaintiff's attorney's reading of the statute by the end. I guess we'll see...

michael framson

The supreme court decision is going to be the final act on slamming the door of justice. In stark contrast to the rescue of the Chilean miners, trapped by the usual corporate safety short cuts, vaccine injured children are trapped deep underground in an United States of American mine; where there is intentional no rescue, no justice, no conscience, no hope, no media, no nothing.


Oral arguments were held today. The name of the case is Bruesewitz vs. Wyeth.
For those of you who are interested, transcripts of the orgal arguments can be found at:
SCOTUSblog and entering the name of the case where indicated and following link

It is very interesting.

Autism Grandma

"Repeated scientific studies have found no such connection." [between vaccines and autism] BIG FAT LIE.

The press conveniently fails to recognize the fact that all of these studies were produced and manipulated by pharmaceutical and government agencies.

"Drug companies, and the Obama administration, argue that the claims should be decided by a special vaccine court..."

Our founding fathers designed and organized the 3 branches of government: Executive, Legislative, and Judicial, in such a manner as to create a balance of power, and thus the Executive branch (Obama administration) should not interfere with the Judicial branch (Supreme Court). Considering that Mr. and Mrs. Obama are both attorneys and both educated in constitutional law, their interference and influence in this matter is unacceptable and in direct opposition to constitutional law, therefore I am extremely disappointed that the executive branch of government has taken sides with the pharmaceutical industry when they should be neutral on this matter in order to allow the Supreme Court to make this decision without any undue influence from them. How would they like it if this involved their own children??? SHAME SHAME SHAME.

Jim Witte

>25+ years ago, when the vaccine court was created. Vaccines are now a major growth opportunity area for pharmaceutical companies

I was musing this morning that I wouldn't really have a problem with vaccine injury being handle in a special court, but ONLY if the schedule were what it had been back in 1982 or whenever there were only about 10 vaccinations (I think that included boosters too).

AND if doctors actually exercised their noggin and didn't give kids a second MMR if they reacted AT ALL to the first, if they ran titers, if they PAID ATTENTION TO THE SCIENCE, spaced out vaxes, didn't vax with anything before age 2 or 3 except MAYBE for polio.. The ORAL polio vaccine, which goes in through the gut (closer to how the body was supposed to be infected), gave kids prophylactic immune support, using a program like DAN! doc Julie Buckley has developed in Florida.

Split up MMR, as Jepson says makes more sense, as rubella is only really truly dangerous during child-birth, and mumps because of the sterility risk - around puberty. And for God sakes, don't vaccinate at all for things like chicken pox that only have a death rate of something like 0.5-2 per year per 100,000 kids, or things like Rotavirus that no-body had probably heard of before they made a vax for it (kids probably got Rotavirus before - and parents just thought it particularly bad stomach flu).

But instead, Pharama (as they would - given that they are profit-driven companies..) took this as pointe blanc to expand the schedule from 10 vaccines to 70 (or more very soon?) in about 25 years. Since they have AMA and government backing, and the very questionable concept of 'herd immunity' (which would only really protect vaccinated person who had vaccine failure - which of course means the vaccine doesn't work), they can get that 70-shot schedule mandated for every child and adult everywhere.

You have to have people in the 'scientific power' who actually understand that proding the immune system 70 times in ways it has never done before in the history of humanity - is not smart and be done VERY carefully (and I'm sure very differently from the way we do it now - no needles, transcutanous delivery that activates the skin's immune system, lower doses that are more 'homeopathic', and fewer vaxes more spread out - to age 9 or 10 perhaps)


It does seem totally Quixotic to fight this. Yet, we have to start somewhere….

Parent and Lawsuit Advocate

List of cases for argument on 10/12/2010—Bruesewitz, Russell, et al. v. Wyeth, Inc. et al (09-152)



After trying to treat their children, and giving up careers, how many parents can find funds ( $20,000+ ) to hire attorneys & travel to DC for weeks, to battle the pharma attorneys and their judge ???

....Who probably all play golf together on the weekends ???


our children counted for nothing..a generation of damaged toddlers counted for nothing..wake up america..your babies are next......

Parent and Lawsuit Advocate

Looks like the case will be heard today before the Supreme Court. Heard about it on the Imus radio show this morning. Hopefully it will be successful despite the opposition of drug companies and the Obama administration. Per below......

Parent and Lawsuit Advocate

Court hears case about vaccine side effects

WASHINGTON – Parents who say their daughter allegedly suffered serious health problems from a childhood vaccine are trying to persuade the Supreme Court to allow them to sue the manufacturer.

The justices are hearing arguments Tuesday in a case that could open drug makers to a flood of lawsuits over the side effects of vaccines, including those from families of autistic children claiming that mercury-based thimerosal is linked to autism. Numerous studies have addressed vaccines and autism and found no link, including with the preservative thimerosal.

Drug companies, and the Obama administration, argue that the claims should be decided by a special vaccine court that was set up 24 years ago to insure a stable vaccine supply by shielding companies from most lawsuits.

Not an MD

There is nothing "no fault" about the Vaccine Court, and as such it is a sad and stupid thing that should be scrapped altogether. Let the liability cases swell in number and clog the regular court system so that the vaccine manufacturers stop with their inexorable push to have every conceivable vaccine mandated for our children without any regard to the safety of their products injected either singularly or in multiples.

It is unconscionable that severely injured children have no liability remedy under a created "no fault" legal system, yet these vaccines are mandated, in some states with not even a philosophical or religious exemption. How dare our health officials and legislators do this to our precious children. How dare they! There can be no trust of the FDA, CDC, or NIH as long as there is no justice for our damaged children, in essence, no liability to vaccine manufacturers for products mandated for use. How is this different from Tuskegee or Guatemala?

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