Wall Street Journal on Bruesewitz

From the editorial page:

While the Bruesewitz's vaccine claim is not autism related, its outcome will have legal implications for the efforts to link vaccinations to autism. Attempts to seek compensation for the diagnosis have persisted despite overwhelming scientific evidence that has found no connection. In February, the British medical journal The Lancet retracted a study that linked the measles-mumps-rubella vaccine to autism and contributed to a rash of parents fleeing the inoculation. In March, special masters in the Vaccine Court likewise ruled against parents claiming the vaccine was responsible for their children's autism.

While the 1986 Vaccine Injury Act bars state tort lawsuits alleging defective design, two other kinds of lawsuits go forward all the time in pharmaceutical industry product liability cases. In the first version, plaintiffs may allege that the manufacturer failed to give adequate warnings about the dangers of the product. In the second, plaintiffs may claim that the vaccine itself was not manufactured properly.

The Bruesewitz case is of particular interest because it falls into the bucket of so-called express pre-emption cases, in which a law explicitly bars state tort claims. In 2008's Riegel v. Medtronic, the Supreme Court ruled that federal law explicitly pre-empted state product liability for medical device claims. There, as here, the alternative remedy was favored by a horde of trial lawyers hoping for a new state tort jackpot.

At oral argument on Tuesday, the Justices seemed to be dubious of plaintiff claims that the 1986 vaccine law left room for debate. Responding to the suggestion that Congress's intent was not to pre-empt all suits, Chief Justice John Roberts responded that "I would have thought the argument would go the other way: That because they set up a compensation scheme, that was a good sign that they didn't want to allow state law claims." Anthony Kennedy, often a swing vote, was skeptical that manufacturers could survive the assault from new tort claims.