Really? The Maker of the Sabin Polio Vaccine Should Have Been Subjected to Ruinous Liability?
Bruesewitz, et al v. Wyeth, Inc., et al just had to be bloggable but at first glance the debate appeared to rest largely on the interpretation of a typically modern law in which Congress had produced (probably intentionally) an incoherent mess. Digging further into oral argument, the government's claim that the CDC regularly updates its advice on the best and most efficacious vaccines in its Morbidity and Mortality Weekly Report (MMWR) looked promising until I read a few issues. Perhaps the kindest thing that can be said is that the government significantly overstated its case. Yet finally, around page 55, I found something worth blogging about.
The question put to plaintiffs' appellate counsel was as follows: "Under your understanding of [the vaccine compensation] scheme, if a person suffered a very serious injury as a result of the Sabin vaccine during the period when the CDC recommended that over the Salk vaccine, would that injured person have a claim for desing defect if the person could produce experts who said the CDC was wrong ...?" "...but your answer to my question is that [under your interpretation] that would permit a lay jury relying on experts produced in court, [to find that] the CDC got this wrong; [that] the Salk vaccine was really the better one." To which plaintiffs' counsel responded "Yes, yes, that would be a viable design defect claim."
Wow. You should read up on the Sabin and Salk vaccines and why the OPV was recommended despite the attendant risks. Would the world really have been a better place with thousands more children in iron lungs? Would Congress really want the maker of a vaccine against a modern scourge like HPV subjected to jackpot justice so that other vaccine makers abandon the promising field of anti-cancer vaccines? Would the people?
I'm just glad I grew up in an age when common sense trumped hysteria so that I could get my sugar cube.
