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  • Supreme Court Ruling On Vaccines Keeps Kids Safe

    I don’t usually feel a personal connection to a Supreme Court decision, but as the parent of three children, I was elated (and relieved) to see the Court come to the right conclusion today in Bruesewitz v. Wyeth.  The Court’s holding that state tort suits against vaccine manufacturers are preempted by federal law is absolutely crucial to maintaining the continued availability of the many vaccines that protect the lives and health of tens of millions of Americans, particular school-age children like mine.

    The parents of Hannah Bruesewitz sued the manufacturer of the diphtheria, tetanus, and pertussis (DTP) vaccine in state court, claiming it caused her medical problems, including “development delay.”  The Supreme Court held that their defective design claims were preempted by the National Childhood Vaccine Injury Act of 1986.  That Act was passed by Congress because an explosion of state tort lawsuits against vaccine manufacturers was driving them out of business, imperiling the supply of childhood and other vaccines in the United States.  In fact, as the Court pointed out, this destabilization of the vaccine market drove two of the three domestic manufacturers of DTP out of the market, and the remaining manufacturer (the target of this lawsuit), estimated that its potential tort liability exceeded its annual sales by a factor of 200.

    To maintain our vaccine supply, Congress set up a no-fault program that provides compensation for the adverse side effects of vaccines through a trust fund administered by the Department of Justice and paid for through an excise tax on every vaccine dose. Congress recognized a known scientific fact: no matter how safely a vaccine is designed and manufactured, a small percentage of the population will inevitably have an adverse reaction.  But the injuries to that very small population cannot be allowed to endanger the protection such vaccines provide to millions of other individuals.

    Injured individuals can file a claim through a special vaccine court.  More than 1,500 people have been paid more than $1.18 billion since 1988 for their injuries and awards are often in excess of $1 million.  It is a no-fault system and includes a “Vaccine Injury Table” that lists the known side effects of vaccines for which compensation will be provided.  The trust fund even provides attorneys’ fees for unsuccessful claims as long as they are not frivolous.

    However, there was no scientific proof that the DTP vaccine caused the “development delay” suffered by Hannah Brueswitz, so her claim under the vaccine fund was denied.  The state tort lawsuit her family filed was a way of getting around this requirement by convincing a state jury that she deserved compensation from a deep-pockets drug company despite the fact that the company was not at fault.  As the court said, the “quid pro quo for this [compensation system], designed to stabilize the vaccine market, was the provision of significant tort liability protections for vaccine manufactures.”

    Numerous unsupported claims have been made that various vaccines cause autism and development delays, all of which have turned out to be scientifically untrue.  The medical journal Lancet recently admitted that a 1998 paper it published linking the MMR (measles-mumps-rubella) vaccine to autism, which led parents worldwide to avoid getting their children immunized, was “an elaborate fraud.”  These types of false claims have led to epidemics of measles, mumps, bacterial meningitis and whooping cough that have hospitalized and killed children, children who would have been safe had they been vaccinated.  Whooping cough is the popular name for the disease the DTP vaccine guards against – six children died in California in 2010 alone from whooping cough, and the epidemic patterns match counties where there is a higher percentage of kids not immunized because of their parents’ mistakenly-held beliefs about vaccines.

    The design of the DTP vaccine at issue in this case was approved by the federal government, as was the manufacturing method, as were the labels and warnings that went to doctors with the vaccine.  The federal law does not preempt lawsuits against manufacturers for defective manufacturing or not complying with the warning requirements approved by the federal government.  But as the Court said, preempting defective design claims “reflect a sensible choice [by Congress] to leave complex epidemiological judgments about vaccine design to the FDA and the National Vaccine Program rather than juries.”

    Even liberal Justice Stephen Breyer agreed, although he did so in a separately-written concurrence based on the legislative history and the views of the relevant expert government agency.  Unfortunately, the dissent written by Justice Sonia Sotomayor (and joined by Justice Ginsburg) provides prima facie evidence of her activist judicial mindset that should have disqualified her from ever being confirmed to the court.  Justice Sotomayor thinks that preempting state product liability claims is not good public policy.  As Justice Scalia says, “the dissent’s belief that the FDA and the National Vaccine Program cannot alone spur adequate vaccine innovation is probably questionable, but surely beside the point.”   It is beside the point because such a public policy decision was up to Congress to make, not a lone justice on the Supreme Court.  Unless, of course, she is an activist who believes that she had the right to substitute her policy judgment on vaccine design for that of members of the legislative branch.

    After oral arguments in this case last October, I wrote that it was no exaggeration to say that if the Supreme Court decided this the wrong way, it was virtually certain that the development and manufacture of life-saving vaccines would be largely shut down in the United States.  Thankfully, six justices of the Supreme Court understood that and decided this case based on the plain text of the federal statute, carrying out the clear intent of Congress to preempt state tort defective design lawsuits and protect the vaccine supply of the country.  And so my children (and yours) will continue to receive the vaccines that are vital to preventing the epidemics that in times past took the lives of so many.

    Posted in Legal [slideshow_deploy]

    16 Responses to Supreme Court Ruling On Vaccines Keeps Kids Safe

    1. Ray, Sapin says:

      This an honest question…

      If we're happy with a system, administered by our government, that reimburses families who are harmed by vaccines, instead of letting them go after the businesses that make the vaccines, it would seem that we're happy with a system from which we all, in general, receive a benefit from, in public health, that the vaccination process provides, and that we all "foot the bill" together for the ones who, for whatever reason, not of their own fault, suffer because of it. Then why aren't we in favor of an entire health system, not just for vaccines, that divides the burden among all participants, and which requires participation, just like vaccines do?

      What forces prevent the cost of vaccination from increasing under the system we now have, and what prevents quality from decreasing, and what prevents the cost of fraud in the reimbursement system, and the administration cost of the entire vaccination system itself, from getting out of hand?

      What ever those forces are that prevent increased cost, and decreased value, why can't we institute those same forces into the rest of our health system as well, wether by public, private, or mixed (as usual) means?

    2. christine scott, ny says:

      How dare you say that autism linked to the mmr is not "scientific." When a parent takes a healthy child to receive a shot and notices problems right away in speech, etc, you're telling them it had nothing to do with the shot and it is not "scientific." There is no more true science then seeing with your own eyes the destructive power that vaccines have on our beautiful children. There is nothing good about vaccines. They are poison to the blood and we are seeing so many sick children with many chronic problems never before seen in such large numbers. Vaccines never wiped out any disease. Only living by the laws of nature and God can this be achieved. It has not been achieved with vaccines and the true facts will tell you the same. Man can not outsmart nature and they never will. Poison will never make one healthy and we are seeing the results right before our eyes. Forced medication of any kind is an evil.

    3. LuLe says:

      Just a little side issue: Aborted fetuses are used as an ingredient in vaccines. Doesn't that make it difficult for pro-lifers to be pro-vaccine?

    4. Bobby Electric Pasad says:

      This Article is Big Pharma propaganda that will be spread by desperate parents who dont want to admit that they have forever injured their childs true potential by injecting them with aluminum and mercury filled vaccines that are made in China with absolutely no oversight- Everybody needs to watch the documentaries "Vaccine Nation" and "Autism made in the USA" both free to watch on you Youtube

    5. Pingback: Supreme Court Ruling On Vaccines Keeps Kids Safe « South Capitol Street

    6. jweb says:

      Relieved by SC ruling? Hmm…Relieved with the passing of the "Patriot" Act too? Relieved by the increased allowance of Charter school permits? Many charter schools are engineered to fail and usher in a federalized "educational" program (what is meant by program is behavioral modification). Will you be relieved when the dollar fails? Will you be relieved when Chinese corporations purchase the majority of the private sector businesses and public infrastructure? My bad, they already are…sshhhh

      Heritage, who are you working for? Who are your largest donors? Please provide posting of top twenty donors.The right and left are clearly controlled by the same group of elites and if Heritage has undisclosed connections to global government, it will be exposed and addressed. Will you be relieved when the constitution is eventually stripped from, not just our society, but our histroy books?

      Liberty or death

    7. Mike, Wichita Falls says:

      Wyeth Pharmaceutical lost a case, and about $6.7 million, to Diana Levine before this same court nearly two years ago because she lost an arm due to the improper use of the drug Phenargen, approved by the FDA.

      Let me propose a free-market solution. Big pharma has two choices on selling drugs…get FDA approval along with immunity from all lawsuits except defective manufacturing or improper labeling, or bypass FDA approval and get no immunity from any lawsuits. Same with big food.

      Possible answers to Ray, Sapin…

      1. People usually pay out-of-pocket for vaccines…no mandates on insurance policies to cover them.

      2. Although it's the feds that impose an excise tax on vaccines, I think only states or school districts require them…local control. Consider that states and feds impose on telecom services a myriad of taxes and surcharges, but nobody complains about the quality of telecom services…competition.

      3. If people thought they had a "right" to vaccines, where it's free, just like they do with ER visits, knee surgeries, routine doctor visits, etc., then I suspect the cost of them would increase, and the value would decrease…entitlements.

      Good questions.

    8. Mike, Chicago says:

      While it's unusual for the Heritage Foundation to advocate big government intrusion into the private lives of the citizens it's nice to know they're still advocating the wrong approach to a problem.

    9. Jeanne Stotler,Woodb says:

      While I know the benefits of innoculations, I also know that the NOW routine of giving multiple shots at one time CAN be the culprit. My children got their first DPT at 6wks of age, then intervals of a month for the other 2, it was common in '50's and 60's to give small pox vacine at 6mos.Polio oral and the shot after 4 mos. MMR is given after 1yr. Now they are giving up to 5 shots at one time, this is overload for these small bodies and YES we need to make sure these vacines were me here in USA and overseen by the FDA. There have been many instances this past year with the Flu vacinne which has caused miscarriages even in 30+ week old fetuses and siezures and high fevers(which can cause encephalitis) in small children. I beg parents to please discuss your concern BEFORE shots with the pediatrician, limit the amount of shots per visit it's not going to hurt for a gap in between and it might prevent a problem. Don't forget these are all individuals, what didn't harm one doesn't mean it won't harm another, why take chances, spread out the shots, make sure they are mfg. in USA and OBSERVE for interactions and/or complications.

    10. Judy K. Warner, Mary says:

      You anti-vaccine commenters must all be too young to remember the terrible polio epidemics that left kids crippled or dead. I was a child during the epidemic of the early 1950s. We weren't allowed to go anywhere where there were crowds, especially public swimming pools. Everybody knew kids who walked with metal braces on their legs. Parents lived in fear. Everybody celebrated when the polio vaccine came in.

      Then there's diphtheria, the D in DPT shots. I had an aunt whom I never met because she died of diphtheria sometime in the 19-teens when she was four years old. Whooping cough almost killed my baby sister in 1946 — it was pretty dangerous for infants.

      What about smallpox? We've never seen a case, and it's extinct except in labs, because of the vaccination program that lasted many decades and finally wiped it out. But for many centuries it was a scourge that killed many and disfigured the survivors.

      It's so easy to take the immense progress we enjoy for granted. As for the commenter whose child reacted to a vaccine, that's what the program Mr. Von Spakovsky wrote about is for. Did you apply for compensation?

      • Karen says:

        Actually, Judy, what did we accomplish??? We traded those diseases for cancer. 1 out of 2 will get it. Common sense tells you that our bodies are made to eat food, not chemicals, so tell me, how will mercury, aluminum, horse & pigs blood, macerated breast tissue, cow pox pus, help my child from getting measles, mumps or rubella??? Mercury & aluminum accumulates in the brain. How many responsible pediatricians's tested your child's blood before they started administering the 49 injections?

      • Karen says:

        As parents, how many of you asked the Doctors for the label and the serial number of the vaccines? Did you read them? Are you willing to compromise your child's health? If your child had a choice, would they consent to the vaccines? Should they be able to sue you, as the parent, in a court of law for child abuse?

        Furthermore, try proving your case in a court of law. It's bad enough your child is injured. After being emotionally drained from dealing with the child's illnesses, behavior issues, lifestyle changes, and monetary sacrifices, the parents are made out to be psychotic liars. My heart goes out to all those parents who started out with normal children thinking that they were doing something good to protect their most prized possessions. These companies continue to POISEN our children with antigens that lie dormant in the body and manifest themselves years later as cancer. Just pray it doesn't happen to you.

        As far as Hons van Spakovsky, do your homework. Go to mercola.com.

    11. Jim, CT says:

      In a free market, vaccine manufacturers could require anyone who wants the vaccine to sign a waiver saying they understand the risks and with a contract for a fixed payout if anything goes wrong. Mandating that people get vaccines and then granting manufacturers immunity takes away a strong incentive to 1. produce something that people want, and 2. produce something safe. The author is clearly advocating a big government position that harms the consumer.

      Also, this statement "Congress recognized a known scientific fact: no matter how safely a vaccine is designed and manufactured, a small percentage of the population will inevitably have an adverse reaction" clearly acknowledges that there are justifiable reasons for not getting a vaccine. In a free society it is not for the author – nor the government – to judge which risk others would prefer to take: the disease or the adverse reaction.

    12. Sunshine, Vermilion, says:

      My MD told me that he would never take their shots. He said that he researched them, and said that they were bad for us, and this doctor is no quack.

      I myself have known of several people who have gotten the flu shot, and gotten deathly ill from it.

      I myself won't take their shots, and if I had a kid, you bet I wouldn't allow the schools to force the shots on them either.

      You can call that ignorance if you want to, but I believe the true ignorance is in allowing someone to inject something into you or your loved ones that you don't know is pure, or may harm or kill them. No. I won't give blind trust, and Heritage, you are very wrong to promote this.

    13. Jared, Phoenix, Ariz says:

      I understand that vaccines have historically done significant good. But you cannot discount the countless parents who have witnessed huge changes in their children after they were immunized.

      And yes these parents could appeal to the vaccine compensation program, but that and the money it may provide give little solace when children's lives are ruined.

      Also the quantity and contents of the vaccines they give our kids today are very different (in a negative way) from the vaccines most of us were given as children.

      **It is very easy to take the "vaccines are good for humanity even if they do a harm the vast minority" until it is your son, your daughter or your grandchild that is suffering.**

      I am disappointed with Heritage presenting such a one-sided, big government viewpoint to this issue.

    14. christine scott, ny says:

      . First of all, people should get the facts and look at the true outcome of all vaccines. Truly open your eyes and stop repeating things you have been fed by the media. If you look at the true facts, you will see that vaccines are not responsible for wiping out any disease. They have had the opposite result. It is interesting how people who are pro vaccine get very angry at those opposing them. We will look back someday and see just how barbaric they are. They are truly a witches brew of poisons. I would worry about all the sick and afflicted children today who were and who will continue to be harmed or killed by vaccines. I would worry about the increase in cancer and other diseases that were not seen in children before the heavy use of vaccines. Would you sacrifice your child for the "good of society?" That is just what we are doing. Vaccines are introducing substances into our bloodstreams that should never be there. There is not one healthy ingredient in a vaccine. It is amazing that people would be O.K. with the government protecting the vaccine manufacturers for harming our children. When will people wake up. It is getting too late. We will lose all that our founding fathers have fought for. Please wake up!

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