Inoculating vaccine makers


Sometimes the Supreme Court renders a decision that is right on the law but disadvantages a sympathetic individual. This was the case with a ruling rejecting compensation for a Pennsylvania girl who experienced seizures and developmental delays after being given a standard vaccination for diphtheria, tetanus and pertussis. Doctors say her condition will require supervision for the rest of her life.

The family of Hannah Bruesewitz sued the pharmaceutical company Wyeth in state court, but the lawsuit was thwarted by federal courts. The courts found that the lawsuit was preempted by a 1986 law that required such disputes to be heard in a special federal vaccine court. (The Bruesewitzes had been unsuccessful in obtaining compensation from that court.) By a 6-2 vote, the Supreme Court upheld the vaccine court’s ruling. It found, as it should have, that the federal law preempted both state laws and the jurisdiction of state courts.

The court also addressed a separate argument from the family: that Wyeth was not entitled to an exception protecting manufacturers if an injury or death was “unavoidable.” The Bruesewitzes argued that because another vaccine might have been safer, the injury to Hannah was not unavoidable.


It might seem heartless to deprive a child of a chance at compensation because her lawyers didn’t persuade a special federal court of the validity of her case, when she could find a more sympathetic hearing in state courts. But the law in which Congress created the vaccine court represented a reasoned decision to trade judgments from a multitude of courts for the consistency of a special court, and one, moreover, that in some cases doesn’t require proof of cause and effect. Congress also wanted to prevent tort judgments from threatening the vaccine supply by driving up costs for manufacturers.

That the Bruesewitz decision is a significant one was proved last month when the Supreme Court rejected another suit against a vaccine manufacturer, this one by the parents of a child with autism.

Preemption by Congress of state laws and state courts is controversial. Consumer groups long have argued that preemption of state claims against pharmaceutical companies and manufacturers of medical devices unfairly tilt the law against consumers. That may be true as a general proposition. But preemption in the case of vaccines serves the interests of children because the uncertainty caused by state actions in vaccines cases can deter the manufacture of new vaccines.