Supreme Court appears split by infant vaccination case

The US Supreme Court on Tuesday heard argument in a dispute over whether the family of an infant who suffered a severe reaction to a vaccine can sue the drug maker for allegedly failing to replace an older version of the vaccine with a safer version.

At issue is whether Russell and Robalee Bruesewitz can sue drug maker Wyeth for allegedly selling an unsafe product that caused their healthy six-month-old daughter, Hannah, to suffer seizures that left her developmentally impaired.

The high court appears to be split on the case, with Justice Ruth Bader Ginsburg among those favoring the parents' lawsuit and Chief Justice John Roberts among those leaning toward the drug maker’s and the government’s position that the claim is preempted.

Justice Ginsburg questioned why if Congress wanted to bar civil liability for vaccine manufacturers it wrote a law that is open to conflicting interpretations. “If you wanted to make it clear that there is no design defect liability, then say that,” she said. “The language that they used is certainly, to say the least, confusing.”

The vaccination was administered in 1992. Hannah will celebrate her 19th birthday next week. She will require a lifetime of supervision and care, according to Washington lawyer David Frederick, who is representing the family.

The question now is whether the parents have any recourse in the courts to seek compensation.

The National Childhood Vaccine Injury Act of 1986 granted drug companies immunity from certain lawsuits over vaccine-related injuries or deaths. The law mandates that legal action is preempted “if 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.”

The dispute revolves around the use of the word “unavoidable.”

The Vaccine Act was passed to help address a growing product liability threat looming over drug makers. The statute made it harder to successfully sue vaccine producers, but it also set up a compensation scheme to help families of children who suffer severe reactions from inoculations.

The new law was designed to insulate drug companies from huge adverse judgments, while at the same time providing financial assistance to the vaccine victims and their families.

Tens of millions of childhood vaccine doses are safely administered each year in the US. But the government recognizes that a certain percentage of children will experience a severe negative reaction from a vaccine, including fatal reactions. Roughly 100 to 200 claims are submitted each year for compensation.

To date, the compensation fund has paid out $1.8 billion to 2,500 petitioners. The average award is about $750,000.

In addition, the government spends roughly $2 billion a year for research and development of safer vaccines.

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