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"Incredibly funny. . . A bird's-eye view into what it's really like to love and raise kids with autism." -Jenny McCarthy, from her foreword

ALL I CAN HANDLE:  I'm No Mother Teresa
(A Life Raising Three Daughters with Autism)
By Kim Stagliano

How one woman raises three autistic daughters, loses one at Disneyworld, stays married, Has sex, bakes gluten-free, goes broke, and keeps her sense of humor.

Click here to buy now. 

The Supreme Court hears arguments on autism

By SafeMinds Government Affairs Committee Member Mary Holland, Esq.

On October 12, eight Justices of the U.S. Supreme Court heard Bruesewitz v. Wyeth.  The case is potentially significant because it may decide whether families, like the Bruesewitz family, have the right to sue for vaccine design defect claims in regular courts.

Since Congress passed the 1986 National Childhood Vaccine Injury Act, a person injured by a federally recommended vaccine must sue for injury first in the Vaccine Injury Compensation Program (VICP) of the Court of Federal Claims.  The injured person may not simply go to state or federal court and sue the manufacturer or doctor directly.  The 1986 Law clearly left open, though, the right to sue manufacturers in civil court, after first filing in the VICP, if the vaccine was improperly manufactured or improperly labeled.  The Law does not state clearly, though, whether the injured party may sue for design defect claims in civil court.  The issue before the Supreme Court is, do families have this right or is this right "preempted" or precluded by the 1986 Law? 

The claim the Bruesewitz family wants to bring in civil court is that the diphtheria-pertussis-tetanus (DPT) vaccine that their daughter Hannah received was unreasonably dangerous, because the manufacturer had safer, commercially viable, equally effective vaccine designs available to it.  The parties are litigating over rival interpretations of the phrase in Section 22(b)(1) of the 1986 Law that precludes liability for claims against vaccine manufacturers "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."

The Coalition for Safe Minds, together with 24 other civil society organizations and 3 individuals engaged in negotiating the1986 Law on behalf of vaccine-injured families, filed a friend-of-the-court brief on behalf of Hannah Bruesewitz, arguing that the Law does allow families to sue in civil court for vaccine design defect.[1]  Indeed, the brief argues that families of vaccine-injured children would not have otherwise supported the 1986 Law.  The brief also argues that the VICP is not functioning as Congress intended, so recourse to civil courts is more important than ever.

Justice Kagan did not participate because she had been Solicitor General for the Department of Justice before becoming a Justice and had sided in that capacity with Wyeth.  Justice Roberts "unrecused" himself shortly before oral argument by selling his Pfizer stock (which recently acquired Wyeth) so that he could participate in the decision.

It is unwise to speculate on how the Justices will decide.  One thing was clear, though - the Justices held a wide range of views.  Justices Scalia, Alito and Roberts seemed very skeptical that Congress could have wanted laypeople on juries to make decisions about vaccine design defects.  Justices Sotomayor and Ginsburg seemed very skeptical that Congress could have meant to preclude the right to sue without having said so more clearly.  Justices Breyer and Kennedy seemed undecided, finding the text quite opaque and asking tough questions of both sides.  Justice Thomas asked no questions, so it was difficult to gauge what was going on in his mind.

This is not the only preemption case on the Supreme Court's docket this year.  There are several other cases as well that pose the interests of consumers against the interests of big business and asks the question, which law applies? state or federal?

It is likely that that Supreme Court will decide this case in 2011.  For SafeMinds and other organizations interested in judicial review of the use of mercury as a vaccine preservative, this case could be pivotal.  If the Bruesewitz family wins, those claims will likely be able to go forward in civil court.  If Wyeth wins, those claims will face a stiff uphill climb.  If the Court is deadlocked 4-4, which is possible, the decision of the lower court, the Third Circuit Court of Appeals, would stand between the parties; that decision was in Wyeth's favor.  A 4-4 decision, however, would essentially leave the issue unresolved around the country.  In some places, like the state of Georgia, one would be able to sue for design defect.  In other places, like Pennsylvania, one would not be able to sue for design defect.  In some ways, a 4-4 outcome would be worst of all because it would leave the issue undecided.  Stay tuned for a decision in 2011.