The U.S. Supreme Court will hear arguments today in a case that could potentially mean the end of virtual immunity for vaccine makers and may open the door for hundreds of vaccine injury lawsuits.
The case involves an appeal in a product liability lawsuit brought by Russell and Robie Bruesewitz, whose 18-year-old daughter, Hannah, suffered convulsions and brain damage as an infant that left her nonverbal and requiring 24-hour care for life. The Bruesewitz’s blame the vaccine, Tri-Immunol; a diphtheria, pertussis and tetanus (DPT) vaccine that was manufactured by Wyeth.
Both the National Vaccine Injury Compensation Program and lower federal courts have rejected the Bruesewitz’s claim based on the National Childhood Vaccine Injury Act of 1986, which blocks vaccine manufacturers from civil liability under most circumstances. However, the Bruesewitzes say the Act should not protect Wyeth in this case, because the company chose to use Tri-Immunol when there were other alternatives. Wyeth argues that none of those alternatives had been approved by FDA until after Hannah had received her injections.
The National Childhood Vaccine Injury Act (NCVIA) of 1986 was enacted to reduce the financial liability of drug makers due to vaccine injury lawsuits. In 1988, the National Vaccine Injury Compensation Program was created under the NCVIA to provide a federal system of compensation for vaccine-related injuries or deaths, by establishing a claim procedure involving the U.S. Court of Federal Claims.
If the case results in a weakening of the NCVIA, it may clear the way for hundreds of vaccine injury lawsuits to be filed by parents who claim that the shots are a contributing factor for various problems.
Drug makers say a weakening of the act could push them away from making vaccines for children, as it would become too much of a financial risk. The American Academy of Pediatrics has agreed and has filed a brief in support of Wyeth, which is now owned by Pfizer.