NYTimes- Vaccine Case Before Justices Turns on the Language of a Law
WASHINGTON The Supreme Court on Tuesday struggled to divine the balance Congress had meant to strike in a 1986 law that established a system to compensate people injured by vaccines while barring some, but not all, lawsuits against vaccine manufacturers.
David C. Frederick, a lawyer for a couple who said their daughter had been badly hurt by a vaccine, said their lawsuit should be allowed to go forward. We are talking about trying to eliminate some of the most horrifying and horrible incidents of injury from vaccines that we compel children to take, he said.
The 1986 law, Mr. Frederick said, was meant to allow claims both in a special tribunal known as the vaccine court and in ordinary lawsuits.
Kathleen M. Sullivan, a lawyer for the defendant, said that approach would expose the industry to crushing liability that could drive companies from the marketplace and imperil the nation’s vaccine supply.
Ms. Sullivan, who represents Wyeth, now a part of Pfizer, added that the ruling in the case, Bruesewitz v. Wyeth, No. 09-152, could affect thousands of unrelated cases concerning autism in the vaccine court.
The case before the justices involved Hannah Bruesewitz, who received a vaccine known as D.T.P. as an infant in 1992. The vaccine offers protection against diphtheria, tetanus and pertussis, or whooping cough.
She suffered intense seizures and has experienced developmental problems and seizure disorders ever since.
Ms. Bruesewitz’s parents filed a petition for compensation in the vaccine court, which ruled against them, saying they had not proved that the vaccine caused their daughter’s injuries. They then sued in state court in Pennsylvania. The case was moved to federal court, where Wyeth has so far won.
The question in the case is whether the 1986 law displaced or pre-empted, in the legal jargon ordinary injury suits brought under state law. The Roberts court has been much engaged with the limits of the pre-emption doctrine, and it will also hear cases this term in cases involving arbitration, immigration and seat belts that raise pre-emption questions.
Ms. Bruesewitz’s case turns on the text of the federal law, which bars ordinary lawsuits if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.
Much of the argument concerned the meaning of the word unavoidable.
The language that they used is certainly, to say the least, confusing, Justice Ruth Bader Ginsburg said.
Ms. Sullivan, the Wyeth lawyer, said Congress had meant to allow only lawsuits arising from manufacturing flaws and inadequate warnings. Suits over asserted design defects those arising from the nature of the vaccine itself as compared with other, potentially safer ones were meant to be barred, she said.
That argument, Justice Stephen G. Breyer said, may require an unconventional use of the crucial word. It’s pretty hard to say that that word unavoidable means avoidable, he said.
Justice Elena Kagan was disqualified from the case and was not present at the argument. A 4-to-4 tie would automatically affirm the appeals court decision, meaning that Wyeth would win.
