The National Childhood Vaccine Injury Act Preempts All Design-Defect Claims
Bruesewitz v. Wyeth has been decided. Though it starts out with a compelling pro-vaccine narrative the majority opinion quickly becomes a slog through proper grammar and the perils of reasoning from unproven premises. Breyer's concurrence at least digs into the danger to public health posed by the tort system though ultimately it's all about deferring to public health authorities rather than just acknowledging that you need neither a Ph.D nor an M.D. to understand that allowing the carrot of serial mega-verdicts to incentivize the trial bar into suing the vaccine makers out of business would be a catastrophe.
Things look to get interesting again once you get to the dissent. It begins by embracing the stick view of torts and economics. Specifically, that companies are not incentivized by the market to improve the safety of their products and thus they won't do so unless and until the stick of economic pain is applied to their backsides via the tort system. But then it too wanders off into an even more painful textual argument. The dissent only approaches the heart of the issue tangentially in footnote 25 when it touches upon but dismisses the risk to our vaccine system posed by something like the autism-vaccine hoax.
The dissent notes the 5,000 pending autism-vaccine claims but says that without "empirical data" worrying about such suits impacting the vaccine industry is purely speculative. The footnote goes on to happily imagine that state courts have decades of experience efficiently and effectively weeding out and disposing of meritless products liability claims summing up by saying that "doomsday predictions of ... a torrent of meritless lawsuits bankrupting manufacturers and causing vaccine shortages seems remote at best."
For some empirical data derived from past experiments with letting the tort system "regulate health care" the dissenters might try (gated) "The Negative Impact of Litigation on Women's Health Care" from the journal Gender Medicine (see also the Bendectin, breast implant and dozens of other product defect claims that drove safe and effective products off the market).
Anyway, that's it. No more design defect claims for childhood vaccines.
