RUTHFULLY YOURS

Science and public health got a booster shot yesterday when the Supreme Court ruled 6-2 that vaccine makers can’t be sued in state courts for injuries supposedly caused by their vaccines. The decision was an important strike against a scare campaign that has caused too many parents to put their children at risk by refusing to inoculate them.

In Bruesewitz v. Wyeth, the parents of Hannah Bruesewitz sued the drug company claiming that a diphtheria, pertussis and tetanus shot caused seizures that left her disabled. When a special Vaccine Court within the Court of Federal Claims ruled that her injuries couldn’t be linked with the vaccine, her parents tried to move the case to Pennsylvania state court. The Third Circuit Court of Appeals eventually ruled that the claim was pre-empted by federal law, a decision upheld by the Supreme Court.

Congress passed the 1986 National Childhood Vaccine Injury Act to prevent vaccine shortages when companies are driven out of the business by tort claims. To address claims, manufacturers pay into a no-fault government administered fund that doles out compensation.

Trial lawyers hoped a different decision in Bruesewitz would open up a new vein for state lawsuits before sympathetic juries. But in his majority decision, Justice Antonin Scalia wrote that without pre-emption the law is useless. Vaccine companies fund the program for injuries “in exchange for avoiding costly tort litigation and the occasional disproportionate jury verdict. Taxing their product to fund the compensation program, while leaving their liability for design defect virtually unaltered, would hardly coax them back into the market.”

Less encouraging was the dissent of Justice Sonia Sotomayor (joined by Ruth Bader Ginsburg), who argued that the Court’s decision “leaves a regulatory vacuum” in which no one is making sure vaccine makers “take account of scientific and technological advancements.” But few regulatory regimes are as clear cut as the one for vaccines. This is the kind of results-first, law-second jurisprudence we feared from Justice Sotomayor.

The trial bar has preyed on parents, especially those of autistic children, by telling them someone is to blame for their child’s diagnosis. Study after scientific study has debunked these claims, and the Supreme Court’s decision will at least prevent the lawyers from cashing in by exploiting heartache.