The National Childhood Vaccine Injury Act of 1986 states, "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 directions and warnings." (42 U.S.C. section 300aa-22(b)(1))
This is the critical section the United States Supreme Court is taking up in Bruesewitz v. Wyeth, Inc. As with many of these vaccine injury cases the particulars are heart-breaking. The plaintiff, Hannah Bruesewitz, at the age of six months, suffered seizures and subsequent developmental delays after receiving a type of D.T.P. vaccine that is no longer sold. Her injuries had been compensible under the previous table of vaccine injuries, but not under the one at the time her action was filed.
I've wanted to write more about this case for a while but haven't really known what else to say. The language seems pretty clear. If a vaccine is unavoidably unsafe, then you're in vaccine court. If there's a design defect, you get to sue in regular civil court. Since pretty much everything in the world can be made more safely (even dynamite), there has to be a pretty well understood flaw in a product to make it unavoidably unsafe. Since the proponents on the other side are saying vaccines are safe, why should they fear this interpretation?
It's seems to me that not being able to sue in a typical civil court for a vaccine injury is an abomination, not just to the millions I believe have suffered from vaccine damage, but to the entire concept of democracy and the rule of law.
If I sound like a zealot on this issue to those unfamiliar with the vaccine-injury issue, let me explain my reasoning.
Suppose you're out driving tonight and the richest man in America runs into your car and injures you. You're able to sue him in civil court. We believe that every person in our country has the right to a fair trial, regardless of their wealth or poverty. Yes, I know there will be an inevitable back and forth between the parties, but at the end of the day you can stand up in court and ask for justice.
Let's take it one step farther. Think of the most respected person you know, an undeniable force for good in the world. Well, if that person runs into your car, he's still responsible for the damage he did, regardless of his other good deeds. Saint or sinner, prince or pauper, they all go to the same court.
Why should vaccines be treated any different? Do we have so little faith in the good judgment of the common person that decisions on whether a vaccine harmed a person are to be taken away from us?
For nearly twenty-five years we have been kept from making that decision. The other side says the common person can't be trusted with these decisions. They seem to believe we are children, unable to weigh hard evidence. But difficult decisions are made every day in courts around the country. Some are good and some are bad, but they balance each other out and the result is a civil and just society.
I'm ready for that debate. Is the other side?
Kent Heckenlively is a Contributing Editor for Age of Autism