Supreme Court steps into dispute over parents’ lawsuits against vaccine makers

Court will hear case about vaccine side effects

WASHINGTON — The Supreme Court will decide whether drug makers can be sued by parents who claim their children suffered serious health problems from vaccines.

The justices on Monday agreed to hear an appeal from parents in Pittsburgh who want to sue Wyeth over the serious side effects their daughter, six months old at the time, allegedly suffered as a result of the company’s diphtheria, tetanus and pertussis vaccine.

The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled against Robalee and Russell Bruesewitz, saying a 1986 federal law bars their claims.

That law set up a special vaccine court to handle disputes as part of its aim of insuring a stable vaccine supply by shielding companies from most lawsuits.

Wyeth, now owned by Pfizer, Inc., prevailed at the appeals court but also joined in asking the court to hear the case, saying it presents an important and recurring legal issue that should be resolved.

Pfizer said in a brief statement that it is pleased the court will hear Bruesewitz case. In mid-daytrading Monday, Pfizer shares were down 17 cents, or 1 percent, at $17.31

The Obama administration joined the parties in calling for high court review, although the government takes the side of the manufacturers.

Only one state appeals court, the Georgia Supreme Court, has ruled that families can sue in a vaccine case. The vaccine industry has fiercely opposed the Georgia ruling in the case of Marcelo and Carolyn Ferrari. They claim their son suffered neurological damage after receiving vaccine booster shots made by pharmaceutical companies Wyeth and GlaxoSmithKline that contained the preservative thimerosal.

The family has since withdrawn its lawsuit, possibly in an effort to avoid an unfavorable Supreme Court ruling, although the Georgia court’s opinion allowing similar lawsuits remains in force.

The court did not act on the companies’ appeal Monday, but the decision in the other case almost certainly will apply to the Georgia case.

According to the lawsuit, Hannah Bruesewitz was a healthy infant until she received the vaccine in April 1992. Within hours of getting the DPT shot, the third in a series of five, the baby suffered a series of debilitating seizures. Now a teenager, Hannah suffers from residual seizure disorder, the suit says.

The vaccine court earlier rejected the family’s claims.

Wyeth lost another high court fight last year over whether federal law barred lawsuits against drug makers. That case, involving a botched injection, asked whether federal law included an implicit prohibition on the lawsuits. The court said it did not.

In this appeal, however, Congress clearly laid out how claims over vaccines were to be made, and the court has repeatedly ruled against plaintiffs when Congress has explicitly sought to bar lawsuits.

Other than the Georgia court, state and federal courts have uniformly invoked a provision of the 1986 federal law, which seems to bar most lawsuits against vaccine makers.

The idea behind the National Childhood Vaccine Injury Act was to ensure a stable supply of childhood vaccines by shielding drug makers from most lawsuits, and setting up a federal vaccine court to handle disputes. The law would serve to block state laws that otherwise would give families the ability to sue the manufacturers.

In recent years, the legal fight has frequently come from families of autistic children claiming that mercury-based thimerosal is linked to autism. Numerous studies have addressed vaccines and autism and found no link, including with the preservative.

Thimerosal has been removed in recent years from standard childhood vaccines, except flu vaccines that are not packaged in single doses.

Last year, special masters appointed by the vaccine court concluded that vaccines aren’t to blame for autism, disappointing thousands of families hoping to win compensation and others who remain convinced of a connection.

But the vaccine court still must rule on additional cases that argue that vaccines with thimerosal are to blame, if the mercury reached and damaged brain cells.

The case, to be argued in the fall, is Bruesewitz v. Wyeth, 09-152.