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July/August 2010
Policy and Advocacy
Supreme Court to Hear Vaccine Compensation Case

IDSA is joining the American Academy of Pediatrics (AAP) and other immunization advocates in urging the U.S. Supreme Court to uphold a lower court ruling that affirms the nation’s current vaccine injury compensation system.

A new lawsuit, scheduled to be heard by the court in the fall, would undermine the system that currently safeguards the nation’s vaccine supply and provides compensation to the small number of children who are injured by vaccines. IDSA is one of 21 groups that is signing on to an amicus curiae (“friend of the court”) brief filed by the lawfirm Hogan Lovells on behalf of AAP in the case, Bruesewitz v. Wyeth.

The lawsuit was brought by the parents of Hannah Bruesewitz, whose family believes she was disabled by seizures after receiving the DPT vaccine series in the early 1990s. The Bruesewitzes claimed that Wyeth (now part of Pfizer) failed to adequately warn them of the risks associated with the vaccine. After the federal Vaccine Court rejected their initial claim, the family filed a lawsuit claiming that the federal no-fault system does not ban all lawsuits, particularly if a vaccine’s side effects could have been avoided if the vaccine had been designed better.

In March 2009, a lower federal appellate court held that federal law expressly preempts such claims, including those based in negligence.  Lawyers representing the Bruesewitzes argue that judges and juries should be allowed to decide on a case-by-case basis whether a particular vaccine could have been made safer.

At stake is the National Childhood Vaccine Injury Compensation Act, which Congress passed in 1986, when mounting lawsuits and skyrocketing insurance premiums were driving many manufacturers out of the vaccine market. In the early 1980s, roughly 300 lawsuits were filed against manufacturers, and between 1983 and 1984 alone, litigation costs nearly doubled—jumping from $4.7 million to $9.8 million.

Ironically, while some lawsuits resulted in multi-million dollar awards, other injured children received no compensation because their cases did not have the potential to yield a large enough settlement to appeal to attorneys, according to the AAP brief.

To protect children and preserve the vaccine marketplace, Congress set up a no-fault compensation system administered by the U.S. Court of Claims. Families can be compensated if their child suffers an injury listed in a special table of vaccine injuries, or if they can prove that the injury was caused by a vaccine. The Vaccine Court relies upon “special masters” who have developed expertise in the complex medical and scientific issues involved in such cases.

Immunization advocates believe that a ruling against Wyeth could lead to vaccine shortages, an increase in the number of unimmunized children, and the resurgence of vaccine-preventable diseases. The AAP brief argues that unpredictable litigation costs could once again force vaccine manufacturers to abandon the vaccine market, and the progress that has been made in vaccine development since the mid-1980s could come to a halt.

Last year, IDSA joined AAP and others in a similar brief involving a Georgia Supreme Court case, American Home Products Corp./ Wyeth v. Ferrari.  (See IDSA News, April 2009.)  The family has since voluntarily dismissed their case, but the liability on vaccine manufacturers resulting from that decision remains in force in Georgia.

For more information, see the AAP’s press release.
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