But the justices weren't putting up with any of this nonsense.  Justice Stephen Breyer dismissed the "statistical" claim and said in language unusually direct for a Supreme Court Justice, "Oh no, it can't be.  I'm sorry.  I don't mean to take a position, yet.  But, look, Albert Einstein had the theory of relativity without any empirical evidence, o.k.?"

And in reply to the claim that the information was not statistically significant and thus not "meaningful", a group of law professors in a brief which supported the shareholders wrote, "requiring that high a standard to shield investors from unproven allegations would treat then as 'nitwits' unable to make their own judgments about good and bad information."  And in this case the information was accurate.  In 2009 the Food and Drug Administration warned consumers not to use the product and the product was withdrawn.

I have to note that the behavior of the justices mirrored that of the Bruesewitz v. Wyeth case which is of great interest to the autism community.  We are currently waiting for a decision which may come this month, or may not arrive until June.

In that case the court was asked to rule on the scope of the National Childhood Vaccine Injury Act of 1986 and the section which read, "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).  The Act has been interpreted to mean that essentially all vaccine-injury claims had to go to a special vaccine court.  Their argument is that this went beyond the scope of the act and that they should be able to bring claims for design-defect in state courts, as is done for all other consumer products.

The court didn't seem to be putting up with any of the weasely answers given by the attorneys for Wyeth Laboratories or the government.  At one point in the proceedings the counsel for Wyeth Laboratories was avoiding Justice Sotomayor's question of what incentive a manufacturer had to take an unsafe vaccine off the market if there was no threat of state action.  When the lawyer attempted to move onto another point, Justice Roberts stepped in and said, "Before you get to that, I think your answer to Justice Sotomayor's question is: Nothing; the manufacturers have no reason to take the vaccine off the market until the FDA tells them to."

My favorite exchange was when Justice Breyer questioned the attorney who was acting on behalf of the United States government which was supporting Wyeth Laboratories.  "Now I can't say that the word unavoidable-it's pretty hard to say that that word unavoidable means avoidable; and I am in fact-like to look at the purposes of this statute, that if something says "day" I can't say it means "night".  And so-so what-what is it about this word that allows us to say that it's avoidable?"

Will the Supreme Court rule that vaccines should be treated just like any other consumer product?  I'm not sure, but from their remarks at oral arguments it doesn't seem like they're putting the pharmaceutical companies on any pedestal.  I have to note that even though The New York Times editorial gets it right on Zicam, when the first vaccine-autism case was being heard the vaccine court they had an editorial claimining the case should have never even been heard.  It's probably the first time in history a major newspaper has pre-judged an environmental tort case without a single witness taking the stand.

It's good to know The New York Times will publish top secret information from our military, but draws the line at questioning vaccine safety.

I'm not holding out much hope for the media, but a little flame burns in my lawyer's heart that the Supreme Court will get it right.

Kent Heckenlively is Contributing Editor to Age of Autism