The U.S. Supreme Court is currently considering this question in a case that could change the vaccination landscape for the foreseeable future. The Court just heard oral argument in Bruesewitz v. Wyeth and the decision it reaches will have significant ramifications.
Six month old Hannah Bruesewitz was given a DTP vaccine and immediately started having seizures – over the next 16 days she had 125 identified seizures. Unfortunately, rather than get better after her initial bout with the seizures, Hanna’s condition progressively worsened. She is now 18 and her residual seizure disorder has robbed her of her ability to speak and care for herself. The family spent years in a federal administrative court trying to obtain compensation and resources for Hannah through the National Childhood Vaccine Injury Act. The Act, passed in 1986, was aimed at protecting vaccine manufacturers from liability while still offering compensation to victims of vaccine side effects. When those efforts failed, the Bruesewitz family sued Wyeth, the manufacturer of the DTP vaccine given to Hannah, but the case was dismissed. The 3rd Circuit Court of Appeals upheld the dismissal but then the U.S. Supreme Court agreed to hear the case so their fight is still alive.
The American Association for Justice, Public Justice and Public Citizen filed an amicus curiae, or "friend of the court" brief urging the Supreme Court to allow the Bruesewitz’s suit against Wyeth to proceed in civil court. They described their respective interests as:
AAJ is a voluntary national bar association whose trial lawyer members primarily represent individual plaintiffs in civil suits and personal injury actions, including product liability cases and cases involving injuries caused by childhood vaccines. Throughout its history, AAJ has advocated in the courts, in Congress, and in state legislatures why it is essential to preserve the protections for ordinary citizens afforded by the common law and to ensure that state tort claims, such as product liability claims for defective design, provide injured persons with effective legal recourse and remedies for wrongful injuries. AAJ submits the lower court’s decision in this case comprised an unwarranted expansion of the preemption doctrine that undermines those essential state law protections. By bringing such claims on behalf of people injured by vaccines, AAJ’s members have helped to ensure that the nation’s children and their families have access to safe and effective vaccines.
Public Justice is a national public interest law firm dedicated to pursuing justice for the victims of corporate and governmental abuses. Through involvement in precedent-setting and socially significant litigation, Public Justice seeks to ensure that tort law fully serves its dual purposes—compensating those injured by wrongful conduct and deterring similar conduct in the future. Public Justice is gravely concerned that, if the tort system is closed to innocent victims of defective childhood vaccines through application of the preemption doctrine in this case, neither of these purposes will be served.
Public Citizen, a national non-profit organization founded in 1971, works to advance consumers’ interests on a broad range of issues. For example, through its Health Research Group, Public Citizen engages in research, education, and advocacy with respect to the safety of products regulated by the Food and Drug Administration (FDA). Where FDA regulation is insufficient to protect consumers against the consequences of unsafe medical products, Public Citizen supports injured patients’ right to seek redress. In that regard, Public Citizen believes that, absent an express congressional determination to the contrary, states should remain free to compensate tort plaintiffs as they deem appropriate. With this principle in mind, Public Citizen, through its Litigation Group, has represented plaintiffs in several significant preemption cases involving FDA regulated products.
Supporters of the "vaccination court" argue that if civil suits are allowed to proceed against vaccine manufacturers, manufacturers will essentially get out of the vaccine business because they may have to pay settlements or verdicts for those injured by their products. This argument simply does not pass the smell test.
Pharmaceutical companies do not enjoy immunity from suit for the vast majority of the products they put on the market. Being held accountable for injuries caused by dangerous and/or defective products has not put them out of business or kept them from developing new products. Why wouldn’t this be the case with vaccinations? It wouldn’t, and that is why the Supreme Court should remand the case so that the Bruesewitz family can continue to seek justice.
You can see several of the main briefs filed in the case below:
Bret Hanna of Wrona DuBois in Utah, focuses exclusively on litigating plaintiffs’ medical malpractice and catastrophic personal injury cases. He has represented clients in state and federal courts, in mediations, and in administrative proceedings in Michigan and Utah since 1991.