Now in Legal Rebels:
Posted Oct 13, 2010 01:51 pm CDT
In oral arguments in a vaccine case on Tuesday, Justice Sonia Sotomayor seemed least inclined to rule that federal law pre-empts state lawsuits for design defects in vaccines, according to one press account.
Sotomayor appeared most sympathetic to arguments advanced by lawyer David Frederick, who has developed something of a specialty arguing against federal pre-emption in the Supreme Court, the National Law Journal reports. He opposed pre-emption once again in the vaccine case, Bruesewitz v. Wyeth, arguing that a federal law creating a special vaccine court does not pre-empt state design-defect suits against vaccine manufacturers.
Frederick’s clients had first sought compensation from the vaccine court, but their daughter’s injuries were “de-listed” from its vaccination table, the story says. They tried to sue in state court, but the Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled last year that their claims were pre-empted. Hannah Bruesewitz had experienced seizures at six months of age after receiving a vaccine, and her doctor says she suffers from residual seizure disorder and developmental delay.
The NLJ says Sotomayor appeared most sympathetic to Frederick’s arguments, while the Washington Post says both Sotomayor and Justice Ruth Bader Ginsburg were tough on Frederick’s courtroom opponent, former Stanford law dean Kathleen Sullivan.
Without the threat of lawsuits, Sotomayor asked, “what is the motivation for manufacturers to voluntarily remove a drug that is causing harm to the public before the FDA acts?”
The case centers on the interpretation of the word “unavoidable” in the federal vaccine law, the New York Times reports. The law bars ordinary lawsuits “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”
ABA Journal: “The Immune Response: The Supreme Court may tell families with autistic children whether they can sue vaccine makers”