Supreme Court Rules on Vaccine Case

[WildCat]

Because the court got that case wrong people should be denied their seventh amendment right to sue in a vaccine case? That makes no sense. We haven't dropped the jury system just because juries sometimes get it wrong.

We haven't dropped the jury system, nor the liability system. But we can acknowledge that they often get it not only wrong, but spectacularly wrong. In the case of silicon breast implants it completely destroyed that entire market. What happens if pharmaceutical companies stop making vaccines?

No one is suggesting doing away with childhood vaccines, I'm suggesting that they be subject to the same product lialibilty laws as other products.

And they are. If there's negligence they can be sued. All the law does is recognize that it's not negligence if one in one million people, for whatever reason, have a severe reaction to a vaccine that passed extensive government-regulated safety testing and was manufactured as designed. Those rare individuals still get to be compensated for their injuries, what they don't get is to play the tort lottery for punitive damages. Because at the end of the day we want vaccines to be available. This law was passed because by the late 1980s we had a crisis situation, where in some cases there was only a single company left willing to manufacture certain vaccines. And there was a very real danger that soon no company would be left who was willing to manufacture said vaccines. Vaccines are not a high-profit item for drug makers, a single large judgement could wipe out several years profits. This isn't Viagra we're talking about.

 

[Emet]

Science-Based Medicine reported on the decision:

Supreme Court Saves Nation’s Immunization Program

http://www.sciencebasedmedicine.org/?p=11127

 

[WildCat]

Science-Based Medicine reported on the decision:

From Emet's link:

Fear of the DTwP vaccine and of vaccines in general enveloped the nation, and lawsuits against vaccine manufacturers over a host of alleged reactions rained down upon the courts. This torrent of legal action threatened the future of the vaccination program in this country. While in 1979 there was only 1 DTP-related lawsuit, by 1986 there were 255, with a total of over $3 billion sought by claimants. This clearly was not sustainable for the vaccine industry, and in fact manufacturers went out of business. In 1967 there were 26 US manufacturers of vaccines. By 1980 this number had dropped to 15, and by 1986 there were only 3 companies still making vaccines in this country. Vaccine prices skyrocketed, and manufacturers found it difficult to obtain liability insurance.

Alt+4, is this the situation you wish for?

 

[Alt+F4]

From Emet's link:

Alt+4, is this the situation you wish for?

If the vaccine manufacturers were facing $3 billion in potential liability then that was a issue for tort reform, not making a specail court for one product. And as I've suggested, why not try these cases in civil court and have the vaccine compensation fund pay out any damages? Having the vaccine court only increases the public's fear of vaccines.

Now, 25 years after the vaccine court was established 40 percent of American parents with young children have delayed or refused one or more vaccines for their child.

We have lots of vaccine now and fewer and fewer people willing to use it, is that want you want WildCat?

 

[WildCat]

If the vaccine manufacturers were facing $3 billion in potential liability then that was a issue for tort reform, not making a specail court for one product.

It's not a "special court". It's a compensation fund.

And as I've suggested, why not try these cases in civil court and have the vaccine compensation fund pay out any damages? Having the vaccine court only increases the public's fear of vaccines.

How does this solve anything? Do you not realize that the compensation comes from the pharmeceutical companies? The problem would have remained exactly as it was with your "solution". Likely there would be no companies at all willing to manufacture many vaccines.

Now, 25 years after the vaccine court was established 40 percent of American parents with young children have delayed or refused one or more vaccines for their child.

Yes, anti-vax lunacy abounds.

We have lots of vaccine now and fewer and fewer people willing to use it, is that want you want WildCat?

You have shown no relationship between this and reduced use of vaccines. Far more likely it's because of loony tune nutters like Jenny McCarthy.

And I'll note you haven't shown any upside at all for re-opening the tort lottery for vaccines. You'd put us right back where we were in 1986, when the industry was in crisis.

 

[Emet]

And I'll note you haven't shown any upside at all for re-opening the tort lottery for vaccines. You'd put us right back where we were in 1986, when the industry was in crisis.

It started in the 80's:

Back in the 1980s, largely due to one incredibly irresponsible, inaccurate television documentary called DPT: Vaccine Roulette “started a firestorm” of panic, as Paul Offit explains in his latest book (1). It also caused an avalanche of lawsuits, and juries were soon making multi-million dollar awards. As Dr. Offit documents, jury awards in vaccine cases increased from $25 million in 1981 to $3.2 billion in 1985. Two of the three companies making the DPT vaccine stopped distributing it, leaving only one company, Lederle (now owned by Wyeth which is now owned by Pfizer) supplying it. It wasn’t just DPT. Companies making measles and polio vaccines also dropped out of the U.S. market, leaving just one company for each. We were very close to a situation where we simply wouldn’t have childhood vaccines in this country.

Then, remarkably, the federal government passed the National Childhood Vaccine Injury Act of 1986.This set up a special fund to compensate anyone damaged by vaccines, covered by a tax on all vaccines.It also created a special Vaccine Court to hear cases, and required that vaccine cases go through this court. The standard of evidence for the court was lower than regular courts: for some conditions, the parents merely have to show that their child suffered the condition soon after getting a vaccine, regardless of whether the vaccine was the cause.

The law took juries and state courts out of the equation. Vaccine makers were protected, and the childhood vaccination system was saved. The Vaccine Court functions remarkably well, using Special Masters who become far more educated about vaccines and possible side effects than any regular judges can be. There is a very small but real risk of harm from vaccines, and the Vaccine Court has made thousands of awards to compensate victims. Meanwhile, millions of severe illnesses and countless thousands of deaths have been prevented by vaccines.

http://blogs.forbes.com/sciencebiz/...t-saves-childhood-vaccines-and-public-health/

 

[JoeTheJuggler]

It's not a "special court". It's a compensation fund.

Exactly. In fact, it's a no-fault compensation fund. Claimants only have to show that the sickness took place after the kid was immunized and it fits on a list of known rare serious side effects.

Again, if there are claims for other than design defects, you can still sue in an actual civil court.

The liability protection and compensation fund only applies to design defect liability. That way we protect the vaccine market enough that manufacturers will keep making them.

 

[JoeTheJuggler]

Yes, the Bruesewitz seem to be claiming both, manufacturing and design defect.

They can't claim manufacturing defects if they're applying for compensation from the no-fault compensation fund. [ETA: That fund is specifically there to compensate the kind of suits that are barred from civil action--design defect liability only.]

If they're going to claim manufacturing defects, then they're free to file a normal lawsuit and try to persuade more than half a jury that there was something wrong with just that dose given to their kid (since no one else receiving that vaccine had that "injury").

Yes, I read the decision. SCOTUS said their claim for compensation was denied for "various reasons". That's vague.

The SCOTUS only ruled that they can't sue for design defect liability in the civil courts. They deferred to the tribunal's decision as to whether or not they qualify for the no-fault compensation. The "various reasons" they were denied the no-fault compensation aren't the concern of the SCOTUS.

No way this true. No way, no how. Fear of vaccines goes way back before McCarthy and Wakefield.

OK--the hysterical thinking goes back further, but it was nowhere near as widespread as after Wakefield and McCarthy. And the no-fault compensation fund has no reasonable connection to anti-vaccine hysteria. As I've shown repeatedly, it is actually a lower standard of evidence than one would need to prove in a regular fault-based liability lawsuit.

I see it as big pharma throwing more vaccines at an already suspicious public. The vaccine court only erodes public confidence in childhood vaccines. If assuring that the vaccine supply remains stable is so important then let folks sue in regular court and pay the claims from the compensatation fund.

You're not paying attention. The only thing the law that established liability protection and the no-fault compensation fund bars are suits for design defects. You can sue the manufacturer for any other defect (such as manufacturing defects, etc.)

The tribunal that you keep calling the "vaccine court" is there to award no-fault compensation that doesn't require any evidence of causation. The kid just has to shown known side-effect symptoms after getting the vaccine. It's a much much lower burden than trying to win a product liability lawsuit. The purpose is to protect our vaccine market and to make compensation for these extremely rare side effects easier (not more difficult) to get.

But you still can't just pass out money to any claimant even if they don't fulfill the bare requirements (getting sick with known very rare side effects after having had the vaccine).

The only people this rankles are the anti-vax crowd that still thinks vaccines cause autism, even though it has amply been proven that this is not so.

 

[JoeTheJuggler]

Yes, the Bruesewitz seem to be claiming both, manufacturing and design defect.

I just read up on this case a bit more, and you're wrong here as a matter of fact.

The Bruesewitzes were claiming a design defect only. However, their theory of the case was that the law shouldn't bar ALL design defect liability claims but only those that are unavoidable. The design defect they were claiming caused the injury was avoidable, according to their complaint, since another formulation of the DPT vaccine was available.

The SCOTUS ruling was that in fact the law does bar all design defect liability claims, pretty much as the the statute says on its face.

But note well: the ruling does not bar all liability claims, as I've been saying. The plaintiffs in this case were only alleging a design defect, and so under the law, they can't sue. From everything I read, if they were alleging a manufacturing defect (which could even amount to faulty paperwork on Wyeth's part), then they could certainly sue. I think that would be an impossible case to prove, in the circumstances, because all evidence supports that there was no manufacturing defect in the vaccine that caused the injury. Again, you'd have to figure out some way that just that one dose was manufactured defectively or else you'd expect everyone else given that lot to have the same injury. Otherwise, you're dealing with exactly the sort of injury that the no-fault compensation fund was set up to cover. And this speculation is irrelevant anyway, because every document I've run across says they were only claiming a design defect.

 

[Alt+F4]

Do you not realize that the compensation comes from the pharmeceutical companies? The problem would have remained exactly as it was with your "solution". Likely there would be no companies at all willing to manufacture many vaccines.

Wrong. The compensation is funded by an excise tax on each vaccine.

Yes, anti-vax lunacy abounds.

Thanks in part to the vaccine court which practically yells, "we have something to hide".

You have shown no relationship between this and reduced use of vaccines. Far more likely it's because of loony tune nutters like Jenny McCarthy.

Anti-vaccine folks don't take McCarthy seriously.

And I'll note you haven't shown any upside at all for re-opening the tort lottery for vaccines. You'd put us right back where we were in 1986, when the industry was in crisis.

Again, now we have lots of vaccine and less and less parents willing to use it. What's the upside of ending the vaccine court and getting more folks less suspicious of vaccines? How about not having epidemics of childhood diseases such as the recent upsurge of pertussis cases:

In 2000, just 48 cases were reported in Florida; last year, there were 497. In California, eight infants have died this year from pertussis because, health officials said, the cases weren't diagnosed until it was too late to treat them.

 

[Alt+F4]

The only people this rankles are the anti-vax crowd that still thinks vaccines cause autism, even though it has amply been proven that this is not so.

The Bruesewitzs were quite rankled by this decision and their suit had nothing to do with autism.

I'm not ignoring the rest of your other posts but have to call it a night.

 

[WildCat]

Wrong. The compensation is funded by an excise tax on each vaccine.

Which comes from the manufacturers. Why is this so difficult for you to understand?

Thanks in part to the vaccine court which practically yells, "we have something to hide".

No, it screams "we can't stay in business when every loony anti-vaxer is suing us in the most science-illiterate jurisdiction they can find".

Anti-vaccine folks don't take McCarthy seriously.

Sure they don't. That's why they all claim the same nonsense she does.

Again, now we have lots of vaccine and less and less parents willing to use it. What's the upside of ending the vaccine court and getting more folks less suspicious of vaccines? How about not having epidemics of childhood diseases such as the recent upsurge of pertussis cases:

I guarantee you we would have far fewer children getting vaccinated when it has to be imported from some other country at $500 per dose.

Seriously, what exactly are you trying to accomplish? What societal benefit do you think will occur when no one is willing to manufacture vaccines in the US?

 

[Emet]

In 1986 the National Childhood Vaccine Injury Act created a special court, the vaccine court, the purpose of which was to provide an alternate method for determining who deserves compensation for a possible vaccine injury. The vaccine court functioned to protect both citizens and vaccine manufacturers. It provides an expedited route to compensation, with a generously low threshold for evidence. For certain listed injuries, compensation is automatic.

The vaccine court also provides protection for vaccine manufacturers, because it puts barriers in the way for those families who want to bypass the vaccine court and sue companies directly. The concern is that without such protections vaccine manufacturers would not be able to function – it would simply cost them too much money to constantly defend themselves from suits, and they would always be at the mercy of a quirky jury decision.

There is precedence for this. In the 1980s lawsuits began to emerge claiming that silicone breast implants were causing cancer and autoimmune disease. This led to many settlements, some in the millions of dollars, against silicone manufacturers, including multi-million dollar settlements. The capper was a class action lawsuit that was settled for 3.4 billion dollars.

As a result of these lawsuits Dow Corning filed for bankruptcy, and silicone manufacturers Dow Corning, Bristol-Myers Squibb, and Bioplasty stopped producing silicone for implants by the end of 1992. In essence, the silicone breast implant industry was destroyed by lawsuits.

http://theness.com/neurologicablog/?p=2387

 

[JoeTheJuggler]

Thanks in part to the vaccine court which practically yells, "we have something to hide".

That doesn't follow logically at all from the structure, purpose or function of the no-fault compensation fund.

Again, pretty much all it says is that we as a society are willing to shell out the big bucks (in a less adversarial way) to compensate those who suffer the very rare serious side effects of vaccines in exchange for protecting the vaccine market so that we have enough vaccines available to give us herd immunity from some pretty terrible diseases.

Again, it seems fair to me. I don't see anything about it that should cause alarm or paranoia or even that suggests "we have something to hide".

Over 12 years, the fund has paid out over $1.18 billion to about 1500 people. In that time, the availability and use of vaccines has protected hundreds of millions (literally the entire population) from the devastating effects of a nasty epidemic.

Think of it as triage. In order to do this very great good, we accept the injuries suffered by these 1500 people over 12 years (or whatever time span the injuries may have occurred over), and we drastically reduce the burden of proof they need to provide to qualify for that compensation.

If anything, we are erring on the side of generosity to those injured claimants, since they don't have to prove the vaccine was the cause of the injury.

 

[JoeTheJuggler]

Again, now we have lots of vaccine and less and less parents willing to use it.

Your claim that there is a causal connection between the anti-vaxxer sentiment and the no-fault compensation fund is tenuous at best. Got any evidence?

What's the upside of ending the vaccine court and getting more folks less suspicious of vaccines? How about not having epidemics of childhood diseases such as the recent upsurge of pertussis cases:

You are conflating the terms "upsurge" in the number of cases with "epidemic". Playing pretty fast and loose with the facts here.

The danger of doing away with the law that establishes the no-fault fund and bars lawsuits for design defect liability is that few manufacturers would have an incentive to manufacture vaccines (much less engage in R & D to develop new ones), and we could go back to the days of actual epidemics of diseases we have (or could develop) extremely safe and effective vaccines for.

Also remember that a big chunk of this legislation is about regulation of the manufacture of vaccines. This is nothing like laissez faire capitalism.

If anything, I would approve of more taxpayer money being spent on a propaganda campaign targeted at the anti-vaxxer concerns. A little accurate information out there to counteract the misinformation that gives rise to parents being suspicious of vaccines. Around here, most of these advertisement/information campaigns are done by non-profit hospitals.

 

[JoeTheJuggler]

See again post number 46. The danger of having no vaccine is far far greater than the danger of a relatively small percentage of parents refusing to vaccinate their children.

I grant you, the latter is a real danger, but 1) it's not the result of the no-fault compensation program and protection from design defect liability, and 2) it's a problem that can be solved with correct information about vaccines, not by repealing a law that has protected a vaccine that otherwise would not be available.