U.S. May Be Sued in Polio Vaccine Case, Justices Rule

The Supreme Court ruled today that the government may be forced to pay damages when a vaccine it licenses causes the disease it was intended to prevent.

By a 9-0 vote, the justices rejected Reagan Administration arguments that the government always should be shielded from lawsuits in such cases.

The court reinstated a suit by the parents of a Pennsylvania boy who contracted polio after receiving a dose of federally approved vaccine.

Justice Thurgood Marshall, in his opinion for the court, said governmental immunity from suit extends only to instances in which an official exercises discretion or judgment.

Judgment at Issue

If a federal policy “leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment,” the government may be sued for causing personal injury, Marshall said.

The court revived a suit in behalf of polio victim Kevan Berkovitz, who was less than 3 months old on May 10, 1979, when his pediatrician in Charleroi, Pa., gave him a dose of Orimune.

The drug, manufactured by Lederle Laboratories, is a form of Sabin oral vaccine. Orimune was licensed by the government in 1963.

Kevan was stricken with polio within a month, and the U.S. Communicable Disease Center determined that he contracted the disease from the vaccine. He is paralyzed and deformed and breathes with the help of a respirator.

The Berkovitz family said the vaccine approved by the government violated its own standards for safety and that policy-making discretion by the government was not involved in approving the defective vaccine.

May Withdraw From Licensing

Justice Department lawyers said if the government can be sued in such cases, it will be forced into becoming an insurer of vaccines and may withdraw from licensing them.

In another case today, the court agreed to judge the constitutionality of a new sentencing system for people convicted of federal crimes.

At issue in the sentencing case is whether the U.S. Sentencing Commission’s rules that took effect Nov. 1 may stand or must be thrown out. The validity of the commission itself is also at stake.