Can I Sue if I was Injured by a Defective Vaccine?
Posted on behalf of Goldberg Finnegan, LLC on Feb 23, 2011 in Uncategorized
The Answer is, unfortunately, NO. On February 22, 2011 the U.S. Supreme Court issued a terrible ruling that "...a vaccine's design is not open to question in a tort action." the name of the case is Bruesewitz v. Wyeth LLC and the opinion can be found here.
Those injured by vaccines are required to seek compensation through the National Childhood Vaccine Injury Act of 1986. This is a law that was passed by lobbyists for the pharmaceutical injury to protect them from being responsible for their own negligent behavior. The act requires those injured to seek compensation through the Court of Federal Claims and compensation is quite limited. Although no showing of causation is required under the act, if your particular claimed vaccine injury does not fall within the "chart" in terms of when the side effects started, your claim will be denied (much like Hannah Bruesewitz's claim was denied by this program). Damages for pain and suffering and even death/paralysis is limited to only $250,000.00 under the act.
Hannah Bruesewitz was given the DPT vaccine and about 24 hours later began suffering seizures (over 100 seizures in the next month) and was diagnosed with "residual seizure disorder." She likely has permanent and severe brain damage and a lifetime of medical expenses ahead of her. She filed for compensation under the Vaccination Act but her claim was denied. She appealed and filed a tort claim in Pennsylvania State Court. The case was removed to Federal Court and dismissed on Summary Judgment-basically the case was thrown out of court. The reasoning was that her claim was preempted by the Federal Vaccine law. The case made its way to the US Supreme Court and yesterday the ruling was issued. The Supreme, in an opinion by Justice Scalia, ruled 6-2 that Federal Law preempts product liability lawsuits in vaccine cases even when a manufacturer could have avoided the vaccine's consequences.
I think this is a terrible decision (Justice Sotomayor and Justice Ginsburg agree with me). The decision makes it so that drug companies don't have to take the latest scientific and technological safety advances into account when it comes to vaccine design and distribution. Most tragic though, is that those injured by vaccines (including many children with autism) are going to be left holding the bag and will be left responsible for a lifetime of medical expenses. As Justice Sotomayor says in her dissenting opinion "Manufacturers, given the lack of robust competition in the vaccine market, will often have little or no incentive to improve the designs of vaccines that are already generating significant profit margins."