Supreme Court appears split by infant vaccination case
The Supreme Court hears arguments in a lawsuit filed against the manufacturer of a vaccine that left a 6 month old girl developmentally impaired.
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In 1995, the Bruesewitzes filed a petition seeking compensation for Hannah’s injuries. One month prior to the petition, new regulations eliminated Hannah’s seizure disorder from the list of compensable injuries. The family’s petition was denied. Three years later, in 1998, Wyeth withdrew the type of vaccine used in Hannah’s inoculation from the market.Skip to next paragraph
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With no recourse under the Vaccine Act, the Bruesewitzes filed a lawsuit against Wyeth in state court in Pennsylvania. They claimed the drug company negligently failed to develop a safer vaccine and was thus liable for preventable injuries caused by the vaccine’s defective design.
A federal judge threw the suit out, ruling that federal law protected Wyeth from lawsuits over vaccine injury claims. The Third US Circuit Court of Appeals agreed.
Mr. Frederick told the justices that the drug company that made Hannah’s vaccine had earlier acknowledged that a safer version of the vaccine existed. He said that despite reaching this conclusion, the company continued to market the more dangerous vaccine for economic reasons.
“The whole idea behind having design defect claims is to put manufacturers to the duty of putting out the safest possible products in light of what the science holds,” he told the court.
Wyeth lawyer Kathleen Sullivan of New York countered that the law preempts all design defect claims. “The manufacturers were being driven out of the vaccine business, imperiling the nation’s vaccine supply by design defect claims,” she told the justices.
Benjamin Horwich, assistant to the solicitor general, joined Wyeth in urging the court to preempt the Bruesewetzes lawsuit. “Socially beneficial products that nonetheless have these adverse effects ought to be on the market and we ought not to allow tort law to push them off the market,” he said.
The vaccine at issue in the Bruesewitz case was the DTP vaccine for diphtheria, tetanus, and pertussis. The vaccine’s design was first licensed in the 1940s. Concerns about its safety had been raised in the 1930s. By the 1960s, Eli Lilly developed a safer version of the vaccine, according to Frederick. But by the mid-1970s, Eli Lilly stopped producing the vaccine.
Wyeth purchased the right to use Lilly’s safer design, but decided instead to use a reformulated version of its original vaccine, according to briefs in the case.
Lawyers for Wyeth say there was no safer alternative to its vaccine that would have benefited Hannah. Although a different version of the vaccine was approved in 1991, it was only approved for children over two years old. It was not approved for use in infants until 1996, Sullivan said.
“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,” Frederick said at the close of his argument.
“The whole idea behind Congress’s scheme was to balance having vaccine supply available with providing a generous form of compensation to those persons who would be injured.”