Overturning a Supreme Court decision is a tall order, necessitating a constitutional amendment or a new Court ruling. Despite the effort and obstacles, the eventual repeal of SCOTUS’s 2011 Bruesewitz v. Wyeth ruling is behind four resolutions discussed by Minnesota legislators and advocates at a Capitol press conference May 14 in St. Paul.
The 2011 SCOTUS Bruesewitz verdict eliminated vaccine injury victims’ option to sue pharmaceutical companies after first working through the problem-ridden National Vaccine Injury Compensation Program, or “Vaccine Court.” A 6-2 majority of the Supreme Court held that “the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs seeking compensation for injury or death caused by a vaccine’s side effects.”
HF2862, HF2825, SF2781 and SF2831 are Minnesota resolutions to reverse Bruesewitz, by “memorializing the President and Congress to hold vaccine manufacturers liable for design defects that result in adverse side effects from vaccines.” Local vaccine safety advocates helped develop the language with legislators, in an attempt to restore the NCVIA to its original Congressionally mandated intent.
Since Oct. 1, 1988, the Vaccine Court has paid out $4.1 billion to victims of vaccine injury, and is hardly the free-and-easy road to generous compensation that industry-linked critics claim. The resolutions ask Congress to “override the Supreme Court decision, and remove Bruesewitz to allow petitioners to file suits in state or federal court,” according to speaker Wayne Rohde, father of vaccine-injured child and author of The Vaccine Court: The Dark Truth of America's Vaccine Injury Compensation Program.
Minnesota’s Capitol was chaotic Tuesday because its legislative session ends May 20. Rep. Jeremy Munson (Dist. 23B) made
time to lead the half-hour press conference, organized primarily by the Vaccine Freedom Coalition and Vaccine Safety Council of Minnesota. In attendance were reps from metro TV stations, radio and a newspaper, and lobbyists including the Minnesota Medical Association.
Rep. Munson stated that he is not anti-vaccine; rather:
“I am for making sure we that have a balance in the system that allows vaccine manufacturers to be held accountable if their products are dangerous. If everyone believes that vaccines are safe, that they cause no injury or they can’t cause injury, then there should be no problem with… going back to the law that we used to have, that allowed people to seek civil cases against vaccine manufacturers.”
Sen. Jim Abeler, chief author of SF2781, noted the large number of vaccine injury claims filed – and “how tortuous the route is to actually get a claim resolved” after an injury or death. And he questioned public health officials’ definition of “safe” – which differs from Webster’s Dictionary. “We’re in a world where the Department of Health calls them ‘exceedingly safe’ – I think that nothing is further from the truth.”
Sen. Abeler stated that vaccines are safe for some people but not all, and compared them to peanuts. “Nobody disbelieves the peanut allergy family. Unfortunately when somebody has a reaction to a vaccine, they are somehow considered to be unbelievable.”
Vaccines are classified as biologics, not drugs, so safety testing requirements differ. The U.S. Food and Drug Administration states that U.S. vaccines are “as safe as possible,” but critics point to contaminants, lack of true placebos, and data fraud in vaccine research.
A 2012 American Medical Association Journal of Ethics article states, “…[V]accine manufacturers are now not liable for failing to improve vaccine designs and defects, unlike manufacturers of other products.” When a manufacturer bears no professional or financial liability for unsafe reactions, “Then they’re much more casual with their safety testing,” said Abeler.
At 4:25 in the Senate video, Minneapolis Star Tribune reporter J. Patrick Coolican suddenly interrupted Sen. Abeler’s presentation with an irrelevant question:
“Do you think that gun manufacturers should also be protected from liability? Because they currently are, by an act of Congress.”
Sen. Abeler replied that Coolican’s question was another topic for another day, but added, “I appreciate the joke.” (To folks in the know, Minnesota’s legislative progress has been held up recently by polarizing partisan gun policy debates.)
Next Coolican half-asked:
“So you’re not pro-vaccine.”
Clearly Coolican had an agenda and was baiting Sen. Abeler, rather than:
(1) listening to the full presentation content, or
(2) asking a question pertinent to the material being presented.
Only two minutes before (at 2:58) Sen. Abeler had stated most distinctly:
“I’m not here as an anti-vaxer, I’m not a pro-vaxer. I think that it makes sense for some people like any other medication, that people should be informed and have a chance to know the good things and the bad things and then select based on what their family chooses…. In this situation, we’re only talking about the liability side.”
After those two off-topic disruptions, the speakers asked the audience to keep their questions to the end of all presentations.
Coolican, a Las Vegas transplant to the Midwest, gathers political info-bits microencapsulated for the ADHD generation for his weekday Morning Hot Dish e-newsletter. Early Tuesday, Coolican wrote:
"News conference today at 10 to include 'Senate and House authors of the resolution to hold pharmaceutical companies accountable for adverse effects from vaccines, advocates from Vaccine Freedom Coalition, and the Vaccine Safety Council of MN.' Should be an interesting crowd but I won't be bringing my toddler thank you!"
On a related note: This winter Coolican also remarked in Hot Dish about how frequently his young child is ill, making him miss work. Which to an autism parent reads like cognitive dissonance – or irresponsible ignorance – regarding pediatric immune insults, natural and man-made.
Like so many “journalists” in corporate media nowadays, Coolican’s Star Tribune co-workers position themselves as defenders of government agencies. The Strib’s op-ed writers frequently use hostile and inaccurate rhetoric such as “vaccine conspiracy theories” and “long-discredited link” to describe the investigative reporting their institution repeatedly fails to perform. (I described the Strib’s professional and ethical fails at length last year for Age of Autism.)
The next press conference speaker was Randy Knutson, a personal injury and vaccine attorney with Knutson Casey in Mankato. A member of the National Board of Trial Advocacy, the nine-time “Super Lawyer” said at any one time he has 35 to 50 clients injured by vaccines, with most suffering paralysis. Knutson rarely takes children’s cases: He tells parents whose children have symptoms of autism, “We can’t take your case because we can’t win in Vaccine Court. There are no children who have won on a straight-up autism case.”
Knutson says in his experience, the more vaccines people receive, the more likely they are to experience a health problem. He works with Justice Department attorneys to resolve cases and pay vaccine injury victims, with average compensation time 3 years – not a swift resolution. “I’ve had many clients die before we got to compensation.”
Knutson said he, too, is not an anti-vaxer, adding, “You almost hate to raise your voice and say, wait a minute, let’s look at what can happen to you, because then ‘I’m an anti-vaxer’.”
The legal term “discovery” under Federal Law Rule 26 states that parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. However, Knutson said, petitioners to Vaccine Court “can’t get any discovery from these vaccine makers, because we can’t sue them, I can’t see what’s really going on. I can’t see if they’re testing these – no one can.”
Knutson is concerned about the lack of vaccine testing on pregnant women, their fetuses, and on young children. Many of his clients are racial minorities – “an excessive number,” he said, which warrants investigation by the CDC and manufacturers for prevention purposes.
“If you don’t believe people are injured by vaccines, start reading vaccine court decisions by special Masters who start the case thinking ‘you don’t have a case,’ Knutson said. “It’s conceded by the Department of Health, the CDC, and the Justice Department: There are vaccine injuries. We should at least have the information in front of us when we decide to get vaccinated. One step would be to overturn the Bruesewitz case, to allow us to see the testing that’s going on.”
Next, Vaccine Court author Rohde discussed particulars of the Bruesewitz legal case, which Hannah’s parents filed in fall 1995. She was given the DPT vaccine and immediately developed seizures, was hospitalized, then diagnosed with residual seizure order. She now has extensive brain damage and requires constant care.
Unknown to the Bruesewitzes, a month before Health and Human Services Secretary Donna Shalala removed “residual seizure disorder” from the injury table for DPT vaccines. And in 1998 the manufacturer of that DPT vaccine withdrew the product from the market due to their known design reporting – what they called post-marketing surveillance reporting in VAERS.
According to Rohde, petitions to the Vaccine Court take 4 to 10 years only to be dismissed. “Today, the program is very
litigious, very adversarial,” Rohde said. “It was about childhood vaccines… today it’s all about adults. Children’s petitions of all injuries are being dismissed.”
After Rohde concluded his presentation, the forum was then opened for questions from the audience. One woman asked about Robert J. Kennedy Jr.’s lawsuit against HHS for violating its own mandate for safer childhood vaccines. Said Rohde, “Part of the statutes of the Act required the Secretary of HHS to conduct vaccine safety studies. RFK Jr. filed a lawsuit to spotlight HHS’s failure to send appropriate vaccine safety studies to Congress, and Congress isn’t demanding them.”
As states are lobbied to remove vaccine exemptions and people lose their option to not vaccinate, then pharmaceutical product safety becomes even more essential. Rep. Munson told one questioner that he has met with people whose children were damaged by vaccines, and has concerns about mandates and coerced vaccination. “When government removes our choice, and they’re having to compel you to be vaccinated, we want to make sure these products are as safe as possible,” Munson said. “Auto manufacturers are held liable if their product is defective in design; we want the same thing to be held for vaccines.”
Then for the third time (at 25:21) the Star Tribune’s Coolican asked another antagonistic irrelevant question, which amounts to gas-lighting:
“Let’s say that three-quarters of all people decide not to vaccinate their children. What do you think the effects of that will be?”
Had Coolican actually read the House and Senate resolutions, he could have asked for verification of this statement:
“European Union has found a way to allow evidence-based lawsuits holding vaccine manufacturers liable without destabilizing the European health care system;”.
Instead Coolican chose to:
- catastrophize about IMAGINARY people who MIGHT NOT vaccinate, instead of
- asking about REAL people who DID vaccinate – and suffered permanent physical and mental harm, without any legal recourse (or CDC treatment research).
Despite the disrespectful and ignorant attempt to sidetrack the discussion, Rep. Munson answered:
“If you disclose to people what the rate of return is on a vaccination, and they accept it, most people will vaccinate their children – but we have to be able to allow people a choice of not vaccinating.”
Community advocate Kristin Sullivan then took the podium, saying:
“This resolution is really to put liability back onto the pharmaceuticals. It’s not whether or not you should vaccinate – it’s really about [putting] liability back onto Pharma, so if you are injured by a vaccine, that you can sue just like you can for any other product.”
Rep. Munson added, “We’re not passing law here; this is a resolution asking Congress to act. I want this conversation to happen at the Federal level, and I want all the players to come to the table and have a discussion and we can make it public so people understand that there is a risk and let’s figure out how to make vaccines safer. We’re not changing the law here at the state.”
Then as the Senate Media camera panned to the next questioner, Coolican was no longer lounging in the back like an arrogant schoolboy… his chair was empty. If one already knows what one wishes to report, why stick around to listen to the speakers?
But the next day, did Coolican follow up in his "Morning Hot Dish" column? No. Not a single mention of the Bruesewitz resolutions’ content.
Back on March 1 Coolican had un-ironically written, “The anti-vaxers are amazingly successful at politics, especially given the science of the issue.” Yet at this supposedly “anti-vax” press conference he did not ask a single science-based question, but instead revealed not only his profound ignorance of this admittedly complex issue but his unwillingness or inability to do so.
With Minnesota home to medical institutions such as Mayo, CIDRAP, IAC, HealthPartners and more, this state has become another battleground for health choice rights. Despite constituents’ pleas against forced vaccination, Rep. Mike Freiberg is working with the Department of Health and local pharma-funded groups to eliminate Minnesota’s philosophical exemptions. In 2010 those local groups aided other vaccine profiteers to file an amici curiae supporting Wyeth.
On May 14, the day of the press conference, The Atlantic published “Why the Government Pays Billions to People Who Claim Injury by Vaccines: A little-known deal protects drug companies in the U.S. from being sued—and feeds conspiracy theories in the process.” Predictably the physician/writer’s analysis of the National Vaccine Information Center’s extensive archives of peer-reviewed research consists only of a smear against founder Barbara Loe Fisher. And taunting repetitions of the usual “benefits outweigh risk” mantra - as if regular repetition somehow eliminates an MD’s ethical responsibility to report adverse events and promote research into preventing them.
The secondary tragedy of vaccine injury victims is that they’re perversely attacked by the very people who should be helping them - public health officials, legislators, and journalists. This cruel violation of the social compact explains why advocates must sidestep those mind-blind obstacles to speak medical truths and share voluminous research from uncorrupted sources.
Three days prior to the press conference Minnesota nurse Sarah Copeland, RN spoke on “The Sue Jeffers Show” about the Bruesewitz repeal resolutions. Copeland began researching the VICP after her daughter had an adverse reaction to vaccines, suffered neurological damage, and still has issues today. “This really isn’t a partisan issue,” said Copeland. “This is about safety for our kids, in keeping the checks and balances for our system.”
May 14 was also the day Children's Health Defense director Robert F. Kennedy Jr. spoke at the New York Rally & Lobbying Day for Vaccine Injury/Vaccine Rights. Said Kennedy, “What kind of cognitive dissonance does it require to understand that this [pharmaceutical] company is lying and cheating and killing with every other medical product and pharmaceutical product that it makes, but it has found Jesus when it comes to vaccines, and it's not going to lie about that?"
(Disclosure: Nancy Hokkanen has been affiliated with the Vaccine Safety Council of Minnesota since its inception. She is old enough to write headlines that break into lines of equal length, and still waits for the Minneapolis Star Tribune to thank her for doing their job.)