Vaccine lawsuits – Justices divided

By Dr. Ananya Mandal, MDOct 12 2010

The US Supreme Court is seemingly divided over the lawsuits on childhood vaccines. The Justices acquiesced that the Congress has done its bit to shield vaccine-makers from suits by the few who have had an adverse reaction to a vaccine approved by the Food and Drug Administration. Now the matter revolves around whether those hurt by vaccines have the right to sue manufacturers if they can prove that a safer version was available.

David C. Frederick, a Washington lawyer says, “We are talking about trying to eliminate some of the most horrifying and horrible incidents of injury to vaccines that we compel children to take.” He is representing the parents of Hannah Bruesewitz, 18, who began to have seizures as an infant after receiving the third of five scheduled doses of Wyeth's Tri-Immunol diphtheria-pertussis-tetanus vaccine. The company, now owned by Pfizer, has taken the drug off the market.

The National Childhood Vaccine Injury Act of 1986 says that all such claims must first go to a special tribunal commonly called the “Vaccine Court”. The tribunal ruled against the Bruesewitzes, saying they had not proved that the vaccine caused Hannah's problems.

Kathleen Sullivan, representing Wyeth said that the Congress's intent was clear, and that it acted “against the backdrop of a wave of tort litigation that threatened to drive manufacturers out of the business of providing the vaccine.” She added that, “There are 5,000 claimants in vaccine court now who claim there is a relationship between the mumps, measles, and rubella vaccine and autism.” She faced some tough questions from Justices Sonia Sotomayor and Ruth Bader Ginsburg.

Sotomayor feels that without the fear of a lawsuit, “what is the motivation for manufacturers to voluntarily remove a drug that is causing harm to the public before the FDA acts?”

Frederick's tough questions came from Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. Frederick told the court that the industry was protected by Congress in 99 percent of the cases.

Tens of millions of childhood vaccine doses are safely administered each year in the US. Roughly 100 to 200 claims related to adverse effects 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.