Tuesday, September 9, 2008

Vaccine Act Preempts Design Defects and Failure to Warn Claims

Several plaintiffs across the country have initiated failure to warn and design defects cases against Aventis Pasteur Inc, Merck, and Wyeth.  They allege that the childhood vaccines cause autism.  Most recently, Judge New, of the Philidelphia Court of Common Pleas, held that these claims were expressly preempted by the National Childhood Vaccine Injury Act.  Amaris Elliott-Engel of the Legal Intelligencer reports on this latest ruling.  Here's an excerpt:

New said in his opinion that it appears no Pennsylvania state court has addressed whether §22(b) of the Vaccine Act expressly pre-empts claims of design defects against vaccine manufacturers, or whether each case has to be examined individually to determine "whether a vaccine is unavoidably safe before they gain the protection of Section 22(b)."

. . .

Plaintiffs' attorney Marc P. Weingarten of Locks Law Firm said the case is "an extremely important issue to be heard by the courts of Pennsylvania" because of the federal pre-emption issues arising in pharmaceutical and medical device litigation in both state and federal jurisdictions.

The plaintiffs argued that the defendants were negligent because the public and the medical profession were not warned about the alleged hazards of mercury in the vaccines, New said. The plaintiffs also argued that the pharmaceutical defendants failed to use ordinary cases in designing the vaccines containing thimerosal because of the risks the plaintiffs say toxic mercury poses to infants and children.

The plaintiffs said the Vaccine Act didn't automatically pre-empt the design defect claim because the vaccine defendants have the burden of proof to show on a case-by-case basis that the use of thimerosal is "‘unavoidably safe,'" New said.

Courts can interpret the Vaccine Act two ways, the plaintiffs argued, and should only interpret the Vaccine Act to pre-empt design defect claims "only if first the side effects are determined to be unavoidable on a case-by-case basis," New said.



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