What Bruesewitz v. Wyeth Means for American Families
By Louise Kuo Habakus and Mary Holland, JD
Imagine your child was hit by a reckless driver and catastrophically injured. Cognitive impairments, seizures, problems with walking, eating, talking – you name it. You find out who the driver was, and you sue the driver for damages – but you can only sue in a “special driving court.” Cases in this court usually take years, sometimes more than a decade. For ten years, you and your child struggle to make ends meet to pay for all the healthcare bills. Finally, the special court issues a ruling. Against the weight of the evidence, without affording you discovery or a jury of your peers, you lose. You’re out on your ear, even though the driver has a massive insurance policy for just such accidents.
You dust yourself off and sue the driver in a regular court, because you have that right by statute – and the regular court says, “No, the special court is good enough for you; no regular courts for those injured by reckless drivers.” So you appeal that decision to the court of appeals, and you lose; and then you appeal again to the U.S. Supreme Court, and you lose again. For almost twenty years, you’ve been fighting just to get fair compensation, only to learn that the Supreme Court would rather protect reckless drivers than your innocent child.
If you re-write the first sentence to “imagine that your child was injured by a badly designed, federally-recommended vaccine,” you have the essence of the Bruesewitz v. Wyeth decision that the U.S. Supreme Court handed down last month. Hannah Bruesewitz, as an infant, suffered catastrophic seizures and brain injury within hours of a diphtheria-pertussis-tetanus vaccine that was pulled from the market several years after her injury because it was insufficiently safe. Hannah has devastating injuries from which she will never recover. Her family had no choice but to go to the Vaccine Injury Compensation Program, a very “special court” if ever there was one. The family litigated there for ten years, losing a case that common sense, science, and decency say they should have won. This week, the U.S. Supreme Court tells them that there is no court – no court in the land – that may hear their case. The Supreme Court tells the family this when the relevant law, the 1986 National Childhood Vaccine Injury Act, provides for recourse to civil court.
This Supreme Court decision is a betrayal. It betrays American parents and children. This is not what the 1986 law provides, and it is not just. No parents should be compelled to subject their children to “unavoidably unsafe” medical interventions, which are mandated by every state in the country as a requirement for school admission, and then have no direct recourse against the manufacturers when the products could have been made far safer, as was the case in Bruesewitz v. Wyeth. This decision violates the intent of Congress and appears to be a policy decision to shield the U.S. government and the pharmaceutical industry from the prospect of real trials seeking to prove that federally recommended, mercury-containing vaccines caused autism in some children.
This travesty of justice likely spells the end of the U.S. vaccine program as we’ve known it. Vaccines carry grave risks. Parents vaccinate their children believing that the government will compensate them if their child is “injured in the line of duty” as they uphold the public health. Last month’s Bruesewitz decision changes all that. If your child is injured, the Supreme Court states that You’re On Your Own (YOYO). This is like the doctrine of caveat emptor, buyer beware, only infinitely harsher. Parents have no real choice when it comes to state-mandated vaccination—if they refuse, no daycare, no schools, and sometimes even no medical care for their children. So it’s not just buyer beware. It’s “families have no civil rights when it comes to childhood vaccines.”
With Bruesewitz v. Wyeth, the Supreme Court has fired a metaphorical shot across the bow. Parents are now likely to think twice about vaccines. They will weigh their rights more carefully, including their rights to religious, philosophical and medical exemptions from vaccination mandates.
The Supreme Court has violated the social contract. We urge Congress to step in, overrule the Supreme Court’s misguided decision, and restore the right of civil suit. But in the meanwhile, when it comes to federally recommended, state-mandated vaccines, remember -- YOYO.
The writers are co-editors of Vaccine Epidemic: How Corporate Greed, Biased Science, and Coercive Government Threaten Our Human Rights, Our Health, and Our Children. Habakus is the director of the Center for Personal Rights and Holland is Research Scholar, NYU School of Law.
The Autism Society of America (ASA) estimates the lifetime cost of caring for a child with autism is $3.5 to $5 million. And that's just the financial cost.
I have a family friend who's 16 yr. old son was working on his car in his own driveway and had improperly supported the car and it fell on top of him. He almost died and has permanent brain damage. She got a settlement large enough to build a new house, get a new van, purchase all the needs, wheelchair etc. and to live without the worry over financial burdens. I love them both very dearly but there is a bit of envy as to the way our lives are similar but yet different. I never got compensation for something that was barely in my control considering the media on vaccination injury. We are never going to retire and we will never be out of debt. (BTW we have 2 children with severe autism to our costs are double the amount I first mentioned). I'm ticked off and think we are fully within our rights to get compensated as my friend was! Until then, is there such a thing as Autism Insurance for couples thinking of having children?
Posted by: Janice Nicholson | March 29, 2011 at 11:11 AM
The damage is so horrific,so huge they would NOT be able to compensate our children.So the denial and the lies will continue...Thank you for these insights,I agree with you
100%.Pharma will not standby their "safe and effective"
fast tracked "wonder" toxic vaccines.Safe for their bank accounts,but danger to our children.This is the sign of medical fascism,the interests of greedy corporations first,healthcare for our chidren comes last on their mind.I say think and research hundred times.
Trust is lost.
Posted by: one Voice | March 28, 2011 at 10:18 AM
Thank you, Jim, for sharing your expert analysis of the situation. So very much appreciated!!
Posted by: Donna L. | March 27, 2011 at 05:40 PM
Re: herd susceptibility to disease
Why are vaccine epidemics so common? Why are outbreaks of once-conquered diseases so common in highly-inoculated/transfected populations? Are the vaccine schedules and mandated inoculation/transfections acting as portals of disease, using the vaccinated public as vectors for disease? The vaccine zealots have got it backwards. It's vaccine-induced herd susceptibility to disease in the highly-vaccinated public that we should be concerned about. Rather than the highly-vaccinated public fearing the unvaccinated, it is the other way around - the completely unvaccinated public should fear the highly-vaccinated. Less crowding and improved sanitation - cleaner water and better sewage treatment notwithstanding, the highly-vaccinated public is more susceptible to infectious disease and much more likely to be carriers and vectors of infectious disease.
Posted by: patrons99 | March 27, 2011 at 05:10 PM
Excellent analysis as usual. In response to various comments:
1. The decision is not based on the constitution and can be "overruled" with a simple statutory change - even though, contrary to the collectivists and the statists that warped congressional intent and plain language, Congress was real clear in the 1986 VICA that existing state tort law claims for design defect WERE to remain available after competion of the case in Vaccine Court. Indeed, Congress specifically prohibited te introduction of an adverse Vaccine Court decision as a defense in state court.
2. Federal regulation of a product does not ordinarily preempt state regulatio or tort suits. Ironically, the very next day, the Court unanimously ruled that a federal regulation requiring lap but not shoulder belts in the rear seats of minivans did NOT prempt a state tort action against Mazda by the estate of a child killed in an auto accident. One key difference: Obama told the Court that kids inujured by vaccines that could have been safer could not sue but kids by cars that could have been made safer could sue. Legal technicalities aside, Obama bargained away the lives and health of vaccine victims most likely for Pharma support for Obamacare.
3. Ironically, the decision will unqeustionably lead to death and disease, both from vaccines less safe than they can be but from the return of preventable infection as the public refuses to participate in an unethical mass population experiment with vaccines of utterly unproven safety. Now that death and disease from infection are all but gone, the public simply will not tolerate the uncertain and possibly quite large risk of vaccine-caused death and disease.
4. Yes, now comes the war to repeal exemptions as the vaccine revolt spreads. And yes, Obamacare will by federal fiat eventually "preempt" state non-medical exemptions. Most likely this will take place in the form of a regulation that insurance offered through exchanges will only accept non-medical exemptions. "The Greater Good," after all.
5. The threats to human health posed by unsafe vaccines - and the liability due the already-vaccine-injured are critically at risk. The ONLY way to win these battles - and yes, vaccine gulogs will eventually be set up to deal with the health insurgants, is through vigorous grassroots state and federal advocacy. Today's struggles - with autism and vaccine safety - are not new. Here are four relevant quotes: "The only thing necessary for the triumph of evil is for good men to do nothing." -- Edmund Burke. "Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it." - Thomas Paine. "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." -- Benjamin Franklin. "But you must remember, my fellow-citizens, that eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing. It behooves you, therefore, to be watchful in your States as well as in the Federal Government." -- Andrew Jackson (paraphrasing Jefferson).
Posted by: Jim Moody | March 27, 2011 at 03:53 PM
What needs to be done to protect future generations is our members of congress MUST repeal the VICP all together. The ONLY way the drug cartels are going to be held accountable is if they are FORCED to make safer (if that's possible) products. Take away the protection and they will begin to tow the line. If they threaten to stop making vaccines I say GREAT stop!! They will never do that; vaccines alone are worth billions annually. And when the VICP get's removed there should be a retro clause added for the 5,000 families that are still awaiting justice!!!
Posted by: Debstake.wordpress.com | March 25, 2011 at 08:53 AM
The only answer to this autism epidemic is to JUST STOP VACCINATING OUR CHILDREN. This tactic might get big pharma to wake up a bit and also get the attention of our govt? Maybe not? If enough parents stop vaccinating the tables will turn in our direction but we havnt got to that point yet because enough people are still vaccinating to keep them in business. I myself go out of my way to tell new parents the risks of vaccinating and hope they will do their own homework
Posted by: Rod | March 24, 2011 at 02:18 PM
What a great article, thank you so much!
It is time to organize another Green our vaccines rally in Washington!
Posted by: Erika | March 24, 2011 at 10:27 AM
NOT vaccinating is the only way to stop vaccine-induced brain injuries called autism. We know from western EU countries, where only 1/3 of children are fully vaccinated, 1/3 are not vaccinated at all and 1/3 got just one or two delayed vaccines, that unvac children do not die, but are much healthier than the vaccinated cohort. And the rate of autism is much smaller in these countries than in the US, which has destroyed its future by vaccinating children to brain injury or death. We must spread widely the vaccine-injury-autism info.
Posted by: Zofie | March 24, 2011 at 09:23 AM
@ Anne Dachel - "I'm terrified about the future. What will society be like in ten years as more and more disabled and chronically ill young adults are everywhere?"
The growth curve of the ASD epidemic is EXPONENTIAL. This point needs to be reported by the mainstream media. There will be no society in ten years, unless something is done to identify the cause and steps are taken to MAKE AUTISM STOP.
Posted by: patrons99 | March 24, 2011 at 08:22 AM
This is a brilliant article that should be read by all!!!
Posted by: Michael B Schachter MD, CNS | March 24, 2011 at 07:33 AM
@cmo Allegedly, even some young Amish parents in our area are vaccinating their infants & children now. Would you believe this line was used by our ped to try to convince me to vaccinate mine? I fear it might have some truth to it - here in PA there are Amish who have cell phones and shop at Costco. Erosion of the religious exemption, yet another tactic.
Posted by: JD | March 24, 2011 at 04:17 AM
Why are parents still vaccinating their children?
They obviously do not understand what recently happened.
We need to get the word out.
Posted by: Kristina | March 24, 2011 at 02:43 AM
How can we stop this horrific rise in autism numbers? We need to stop immunization. People must stop buying stocks
from big Pharma.Let the criminals FALL. Return to home schooling,return to farming,return to the home/kitchen
(make your own food),return to nature.Read the labels,only buy from those who stand by their products. Do not trust
big Pharma,they create sickness,then they try to control your symptoms.Educate yourself,do everything in your power to have a healthy lifestyle,stay away from the drug stores
as much as possible.Creating sickness is the biggest business of all.The vaccine business is an 18-20 billion
dollar industry.I believe they have started poisoning the population in the 1970s.Now we see the results.It is painful
to see how low our health care system got and shameful what happened to our children.Our trust is gone.
Posted by: one Voice | March 23, 2011 at 11:15 PM
Now, add this to the equation:
Insolvency Looms as States Drain U.S. Disability Fund
Posted by: Mary L. Hirzel | March 23, 2011 at 11:06 PM
So .. exactly what are we going to do about it ?
Posted by: Paxman | March 23, 2011 at 10:59 PM
Is this slow genocide of Americans by vaccinations by design? Is this only a corporate greed, or something else? On the other hand, why millions of concerned parents are not marching on Washington demanding end to these vaccination crimes? Why they allow this genocide to be committed on their children? May be it will take a revolution to save the children of this nation.
Posted by: Zofie | March 23, 2011 at 09:03 PM
I had an interesting talk with an aquaintance who is a teacher at a very expensive private school. She doesn't know I have a child with autism. She said that the many of the kids in this private kindergarten would be special-ed at a public school. They have speech problems, ADHD, tics Aspergers, etc. And the teachers don't know how to deal with them. The school doesn't want to tell the parents the kids have major issues because they need the tuition money. Lord knows where this will all end.
Posted by: julie | March 23, 2011 at 07:38 PM
This is a terrible blow to both vaccine injured children, and their parents. In fact it's criminal.
With any luck, this WILL stop vaccination in it's tracks. Because there is no scientific evidence that any vaccine has ever prevented a disease of any kind. Vaccinations are a medical scam, designed to make the entire population sick. And unfortunately, vaccines DO work tremendously well at accomplishing that goal.
There's a lot of money to be made treating sick people.
Posted by: Barry | March 23, 2011 at 07:12 PM
This is a terrible injustice to families who have vaccine injured children. I can't fathom how states can even consider passing mandates when legislators know full well there is no recourse for parents. Even if you took autism out of the equation, they know full well that a certain percentage of the population will have adverse reactions. It is incredible and yet disgusting how greed runs this country. Very sad indeed.
Posted by: Kym Grosso | March 23, 2011 at 06:42 PM
Religion that God our Father accepts as pure and faultless is this: to look after orphans and widows in their distress and to keep oneself from being polluted by the world.
Posted by: Adam M | March 23, 2011 at 06:32 PM
From a previous post.
Let me be clear. I believe autism is a disease of toxicity not just some sad anomaly of nature and we should do all we can to help reverse this. But I thought this was important to share.
I read this while researching the extraordinary health of the Native Americans as seen and documented by George Catlin an american explorer of the mid 19th century of the country beyond the Mississippi especially concerning the Native Americans. They had almost non existent infant mortality (usually by trauma) and their women gave birth easily and usually unattended. Rarely did they have a child with a mental or physical deformity but when they did Catlin wrote.......
Some writers upon whom the world have relied for a correct account of the customs of the American Indians, have assigned as the cause of the almost entire absence of mental and physical deformities amongst these people, that they are in the habit of putting to death all who are thus afflicted; but such is not only an unfounded and unjust, but disgraceful assumption on the part of those by whom the opinions of the world have been led; for, on the contrary, in every one of the very few cases of the kind, which I have met or could hear of, amongst two million of these people, these unfortunate creatures were not only supplied and protected with extraordinary care and sympathy, but were in all cases guarded with a superstitious care, as the probable receptacles of some important mystery, designed by the Great Spirit, for the undoubted benefit of the families or tribes to which they belonged.
George Catlin 1870
And WE called THEM primitive savages.
Their values put us to shame on so many levels.
Posted by: Adam M | March 23, 2011 at 06:25 PM
Sayings of the Wise
Do not exploit the poor because they are poor
and do not crush the needy in court,
for the LORD will take up their case
and plunder those who plunder them.
Posted by: Adam M | March 23, 2011 at 06:08 PM
With another 400,000 Autistic children due in the next 10 years with the present vaccine program, we will be headed for a new AoA,
the "Age of Amish"... who will eventually be the only ones left in America.
Posted by: cmo | March 23, 2011 at 05:21 PM
THE QUESTION IS:
What we as American's can do when the Supream Court has already made up their minds?
Can this decision be REVERSIBLE?
Who is above the Supreme Court at this point to undo such a horrific law!
Will PACIFIC PROTEST be enough to change this?
What it takes for AMERICAN CITIZENS and their families to REGAIN their country and their Government officials from the AMERICAN CORPORATIONS GREED AND DISHONEST BUSINESS?!
SHOULD THE AMERICAN PEOPLE START LOOKING INTO A REVOLUTION?! to be able to SAVE THEIR CHILDREN's HEALTH, FOOD AND FUTURE?! Insane!
Posted by: Andrea Lalama | March 23, 2011 at 04:13 PM
So what kind of rights exist in a world where the court system isn't accessible for injured individuals? And as we see in the press, moves are being made to so that we can't protect ourselves from the injuries in the first place. There are calls to end exemptions.
All this goes on with the public seemingly unconcerned. This issue is important to parents who've witnessed firsthand how vaccines can harm children, just like any medical product can, and to people afraid that their child might become a victim of the ever-expanding vaccine program.
This debate will continue until we wake up to the truth about the number of disabled children society is going to have to provide for. It's that simple. No one seems to realize that something is very wrong when one percent of kids have autism. Likewise there are exploding rates of diabetes, seizure disorders, bowel disease, and learning problems among our children. We have ribbons and walks for this stuff. We call for awareness and we seek the cure for them----all this without any demand for answers about what's causing our children to be so sick.
I'm terrified about the future. What will society be like in ten years as more and more disabled and chronically ill young adults are everywhere?
Posted by: Anne McElroy Dachel | March 23, 2011 at 02:43 PM
Now imagine that you are buying shares in a company called Zicam which makes nasal spray. Zicam is not disclosing that multiple consumers have alleged that this spray caused them to lose their sense of smell. When this info hits the news, Zicam's stock prices fall. You and other investors who bought stock when the price was high go to court "claiming that the company's actions amounted to fraud — an attempt to keep the company's stock price artificially high by failing to disclose material facts that, if known, would have affected the market." The Supreme Court just unanimously decided that you can go ahead with your lawsuit. Go figure.
I am quite sure that the pharma companies know that vaccines can cause autism. And sometimes pharma companies know that specific vaccine lots have problems. One pharma company even wrote a recommendation that each lot not be distributed all in the same place because it made problems too obvious. But when these companies fail to disclose adverse info on vaccines? The people affected are "YOYO". What a bizarre double standard.
Thanks, Louise & Mary, for this excellent article.
Posted by: Twyla | March 23, 2011 at 11:45 AM
This is a civil rights issue for sure. Fortunately there are many guides out there helping today's informed and concerned parents navigate their way toward philosophical and religious exemptions to vaccines.
Posted by: Underground Railroad Route 2011 | March 23, 2011 at 11:38 AM
Zofie said: "We should create an independent vaccine free nation within a nation (like the Amish), with our own doctors, teachers etc"
I'm in!! and if we can't do that here, maybe we could start a colony somewhere like Costa Rica.
Posted by: Sarah | March 23, 2011 at 11:23 AM
Louise and Mary,
Do you see this Supreme Court decision as the first move in laying down the groundwork for the vaccine industry-backed government's eventual plan to do away with vaccine exemptions altogether? It all just seems too utterly convenient...
Posted by: Donna L. | March 23, 2011 at 10:27 AM
If almost all parents in the country reject toxic vaccines, it would give them (all corrupted politicians and govt. bureaucrats) apoplexy, because they would lose power over the people. This would send all the government servants of pharma cartels on unemployment, because there would be no schools, no education department, no need for CDC. The government has betrayed us, it is a fiction that it represents us. We should create an independent vaccine free nation within a nation (like the Amish), with our own doctors, teachers etc. We must spread the info about toxic and deadly vaccines to all parents. When most people stop taking vaccines, the pharma servants in the government and congress will be forced to take all these useless vaccines themselves (each in 1000 toxic doses), and we will be done with them, once and for all. Then we can start building just society anew.
Posted by: Zofie | March 23, 2011 at 10:22 AM
The growth curve of the ASD epidemic is exponential!
Why? Does it indicate that we are approaching the composite, cummulative, combination LD50 for the vaccine schedules, in total? No study to date has ever looked at the combined effect of the vaccine schedules on the fully vaccinated versus unvaccinated populations. This is long overdue. ASD is not the only vaccine epidemic.
From page [v] of the book “Horrors of Vaccination Exposed and Illustrated: Petition To The President To Abolish Compulsory Vaccination In Army and Navy (1920)” by Charles Michael Higgins.
“Every law not based on wisdom is a menace to the state.”
“Compulsory Vaccination is an instance of a law which inflicts actual disease and possible death on the human body and propagates and disseminates deadly infections widely upon animals and mankind. This is surely a glaring instance of a law which is not based on Wisdom or Sanity and is a Menace to the Health and Security of Humanity and the State.”
“This amazing act is the homicidal insanity of a whole profession. This is blood assassination.” – Dr. James J. Garth Wilkinson, 1876.
“It is unwise for the physician to force the operation upon those who are unwilling, or to give assurances of absolute harmlessness.” – Dr. Osler’s “Modern Medicine,” 1913, Vol. 1, page 848.
“Vaccination is not always a harmless procedure; it must be looked upon as the production of an acute infectious disease.” – Dr. Milton J. Rosenau, 1914.
“Against the body of a healthy man Parliament has no right of assault whatever, under pretence of the public health.” – Professor F. W. Newman, of Oxford.
“Vaccination is a delusion, its penal enforcement a crime.” – Professor Alfred Russel Wallace, in “The Wonderful Century,” 1899.
Posted by: patrons99 | March 23, 2011 at 10:17 AM
"This Supreme Court decision is a betrayal. It betrays American parents and children."
In my humble opinion .. the decision also betrays the US Constitution. How else are we to interpret this decision .. it is not meant to protect the "people" .. it is meant to protect an "industry".
Admittedly, I am a cynic .. but .. it would not surprise me to learn the CDC and IACC waited a full decade as this case slowly worked it's way through the lower courts .. and .. only then .. did they announce a "major shift in research priorities" to include "immunizations".
Posted by: Bob Moffitt | March 23, 2011 at 10:14 AM
Dear Louise & Mary,
You have stated the issues here starkly and truthfully, and nothing could demonstrate more profoundly the well-founded terror of the creators of the US constitution that narrow interests could come to dominate those of the citizen. I believe some of them (Madison, Adams?) even foresaw the dangers of medical tyranny. Unfortunately, with more two centuries of institutional debauchery the checks and balances seldom seem to work any more.
We are also rather in the same situation as with the Ancien Regime prior to 1789 with French state cracking under the burden of all its franchises. Of course, we are dealing with a cowardly, weak and dysfunctional 4th Estate (the mainstream media) but the reality is that this is unsustainable: as more and more parents confront these unreasonable and irrational demands word will get around.
Posted by: John Stone | March 23, 2011 at 09:47 AM
This war has just begun.
Posted by: C. Hicks | March 23, 2011 at 09:16 AM
cover up and deciet spanned all these years..years in which our us babies counted for nothing...unavoidibly unsafe...watch us Avoid them now..skrew day care, schools..moms and dads will stay home more to ensure the well being of our infants..skrew there toxic rat race..no justice..no more sacraficing our babies..candace
Posted by: candace | March 23, 2011 at 09:11 AM
Thank you, Louise and Mary. Your article makes the impact of the Bruesewitz decision very clear. All parents and children are on their own, if injured by vaccines. The pharmaceutical companies are smiling right now as they continue to fill the election fund coffers of their political allies. What they don't understand is that they are up against parents of vaccine injured children. There is no greater love than that of a parent for their child or children. The love of money doesn't even come close. No parent would ever betray their children for even a dime from the corrupt, reckless, ruthless, and greedy pharmaceutical industry. No liability? -- No mandates!
Posted by: Not an MD | March 23, 2011 at 09:08 AM