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January 5, 2006

Federal Liability Shield Law Developments

Controversy has arisen over the inclusion in a defense spending bill, enacted by Congress and signed into law by the President, of provisions protecting vaccine and other manufacturers from liability for defective products when those products are used in response to a public health emergency (109 H.R. 2863). The law's sweeping protections are triggered by a declaration made by the Secretary of Health and Human Services that a product is needed to respond to a public health emergency.  Thereafter, any loss resulting from the manufacture or use of a covered product is shielded from liability under state or federal law unless willful misconduct can be shown.  The Secretary's declaration is not subject to judicial review.  Unlike the no-fault injury compensation program established by the National Childhood Vaccine Injury Act (Pub. Law 99-660, title III, 100 Stat. 3755) this new law does not provide an alternative source of compensation for injuries resulting from defective vaccines.

Meanwhile, a federal judge has decided that recently-enacted legislation designed to shield gun manufacturers from civil liability for third-party misuse of firearms (Protection of Lawful Commerce in Arms Act) does not bar New York City's public nuisance suit against the industry.  The city's suit was brought under a state statute (P.L. 240.45) that is essentially a criminal codification of the common law public nuisance doctrine.  A provision in the federal law [Section 4(5)(A)(iii)] exempts from its provisions cases in which the manufacturer or seller knowingly violates a statute "applicable to" the sale or marketing of firearms.  The court ruled (New York v. Beretta USA Corp., E.D.N.Y., No. 00 cv3641, 12/2/05) that the New York law under which suit was brought is just such a statute.


January 5, 2006 | Permalink


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