The vaccine court that has protected drugmakers from most state-court lawsuits over their products is in jeopardy. The U.S. Supreme Court today will hear arguments in a case brought by Robie and Russell Bruesewitz, parents who fought for eight years for compensation in the specialized court--and failed.
It's certainly questionable whether their vaccine court loss was fair; the Department of Health and Human Services had just pulled their daughter's condition off a list of automatically compensated injuries. But the parents did fail to prove that the vaccine, made by a company acquired by Wyeth, actually caused her seizure disorder, as required when the injury isn't on the HHS list. And that's why the state courts refused to hear their case, as dictated by the National Childhood Vaccine Injury Act, which created the vaccine court.
But the Bruesewitzes and their lawyer see some wiggle room in that law: the word "unavoidable," used to describe side effects that aren't litigable in state court. They say the side effect in question was avoidable, because a safer version of the DTP vaccine existed, and Wyeth could have made it. Wyeth (now owned by Pfizer) says that's not so, because the newer version wasn't FDA-approved for years afterward.
So, if the Supreme Court sides with the Bruesewitzes, state courts could see a flood of vaccine-related lawsuits, an outcome vaccine makers would certainly like to avoid. The Obama administration and American Academy of Pediatrics have asked the Court not to open those floodgates; AAP says drugmakers would simply abandon the vaccine market if lawsuits became a big problem again. The Supremes have been rather corporate-friendly of late, but will that bent apply to this case? The official decision won't come for several months.
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