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High court takes up vaccine case

Considers whether parents can sue over side effects

The firm’s compensation plan was a sign “they didn’t want to allow state law claims,’’ John G. Roberts Jr. said. The firm’s compensation plan was a sign “they didn’t want to allow state law claims,’’ John G. Roberts Jr. said.
By Mark Sherman
Associated Press / October 13, 2010

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WASHINGTON — The Supreme Court heard arguments yesterday on whether drug companies should remain mostly exempt from suits claiming serious side effects from childhood vaccines.

The case concerns an appeal filed by Pittsburgh-area parents who want to sue drug maker Wyeth, which is owned by Pfizer Inc., for the health problems they say their 18-year-old daughter suffered from a vaccine she received in infancy. Drug makers contend that such suits could drive vaccine-makers from the market and risk a public health crisis.

Several justices appeared sympathetic to the parents’ plea to be allowed to make their case in court.

Wyeth, backed by the Obama administration and many public health groups, argued that Congress shielded drug companies from most vaccine lawsuits when it created a special vaccine court 24 years ago to handle the claims.

But if lawmakers wanted to prevent lawsuits like the one at issue, “they could have said simply that no vaccine manufacturer may be held civilly liable if the vaccine is properly prepared and accompanied by proper directions and adequate warnings,’’ Justice Ruth Bader Ginsburg said.

On the other hand, Chief Justice John G. Roberts Jr. said, it could be argued “that because they set up a compensation scheme, that was a good sign that they didn’t want to allow state law claims.’’

The vaccine court has paid out about $1.9 billion to more than 2,500 people who claimed a connection between a vaccine and serious health problems. The court has dismissed more than 5,000 other claims and has another 5,000 pending, mostly alleging links between vaccines and autism.

Justice Stephen G. Breyer sketched the argument made in court papers by pediatricians, other doctors, and public health organizations that if the drug companies lose, judges and juries will be making decisions about vaccines instead of the Food and Drug Administration. “The result could well be driving certain vaccines from the market, and basically, a lot of children will die,’’ Breyer said.

David Frederick, the lawyer for the parents, tried to assure the court that most people still would accept decisions by the vaccine court because of the time and cost of filing lawsuits.

But the drug companies say drug makers could face a flood of lawsuits over the side effects of vaccines in the event of an unfavorable Supreme Court decision. Among the claims would be those from families of autistic children who say the vaccines, or mercury-based thimerosal that once was used to preserve them, are linked to autism. Numerous studies have addressed vaccines and autism and found no link, including with the preservative.

“That is 5,000 potential claimants in state court,’’ Kathleen Sullivan, Wyeth’s lawyer said at the Supreme Court. Sullivan said Congress set up the vaccine court as a way to keep companies making enough vaccines for American children.

But Frederick said Congress did not explicitly rule out the kind of lawsuit Russell and Robalee Bruesewitz filed against Wyeth, asserting that the company was slow to move ahead with a safer vaccine because it would not be as profitable. Frederick said the threat of such claims would motivate makers to introduce safer vaccines more quickly.

“We’re talking about trying to eliminate the most horrifying and horrible incidents of injury from vaccines that we compel children to take,’’ Frederick said.

A federal trial judge and the US Court of Appeals for the Third Circuit, in Philadelphia, ruled in favor of Wyeth.

According to the lawsuit, Hannah Bruesewitz was a healthy infant until she received the diphtheria, tetanus, and pertussis vaccine in April 1992. Within hours of getting the DPT shot, the third in a series of five, the baby suffered a series of debilitating seizures. Now a teenager, Hannah suffers from residual seizure disorder, the suit says.

Justice Elena Kagan did not take part in the argument because of her work on the case while she served as a top Justice Department official.

In other cases, the court:

■Rejected the appeal of two people who say they were kept from attending an appearance by President George W. Bush in Denver in 2005 because of their opposition to the war in Iraq. The case centered on whether people may be excluded from taxpayer-funded events featuring public officials because of their political views. The pair arrived to the event in a car with a bumper sticker reading “No more blood for oil’’ but contended they had no plans to disrupt the event.

■Agreed to decide whether an antiterrorism law should have been used to prosecute a jealous woman in Pennsylvania who tried to harm her husband’s mistress with deadly chemicals.