To Justice Sotomayor, Proof That Vaccines Cause Autism Is Just One Lawsuit Away

Last Updated Mar 25, 2011 6:27 PM EDT

The Supreme Court's ruling in the Wyeth vaccine case was a topsy-turvy affair, with arch conservative Justice Antonin Scalia writing a ruling favoring Big Gummint and proto-liberal Justice Sonia Sotomayor authoring a scaremongering dissent that suggests vaccines might cause autism and that activist parents may "ultimately be able to prove such a link."

The ruling is highly technical, but it basically says that parents cannot sue vaccine makers in the regular courts because the law requires them to use a special federal vaccine court. That court gives automatic payouts to anyone who claims their child was injured by a vaccine, as long as the injury is on a set list of common vaccine complaints.

The vaccine court has paid out more than $1.8 billion to parents in 2,500 cases since 1989. It is funded by a tax on vaccines. The system was set up to prevent drug companies being bankrupted by litigation and to ensure that the vaccine supply continued uninterrupted.

Vaccine paranoia at the high court
In the case, the parents of Hannah Bruesewitz challenged the system for the right to sue in a regular court in front of a jury. While the ruling is a victory for drug companies and anyone else who is grateful that they didn't get polio or smallpox, Sotomayor's dissent displays her vaccine paranoia. Although the science says that vaccines do not cause autism -- and the originator of that myth has been exposed as a fraud -- Sotomayor seems to believe that if only the Bruesewitzes were allowed into the regular court system they might, somehow, somewhere, find a judge and jury to "prove" that vaccines harm children. Sotomayor gave lip service to the science on autism and vaccines ...

As an initial matter, the special masters in the autism cases have thus far uniformly rejected the alleged causal link between vaccines and autism.
... before suggesting, without evidence, that such a link is merely a lawsuit away:
To be sure, those rulings do not necessarily mean that no such causal link exists, ... or that claimants will not ultimately be able to prove such a link in a state tort action, particularly with the added tool of civil discovery.
Lawsuits? What lawsuits?
She then suggested that drug companies have nothing to fear from autism litigators:
Respondent notes that there are some 5,000 petitions alleging a causal link between certain vaccines and autism spectrum disorders that are currently pending in an omnibus proceeding in the Court of Federal Claims (Vaccine Court).
According to respondent, a ruling that §22(b)(1) does not pre-empt design defect claims could unleash a "crushing wave" of tort litigation that would bankrupt vaccine manufacturers and deplete vaccine supply. This concern underlies many of the policy arguments in respondent's brief and appears to underlie the majority and concurring opinions in this case. In the absence of any empirical data, however, the prospect of an onslaught of autism-related tort litigation by claimants denied relief by the Vaccine Court seems wholly speculative.
That's a willful misreading of the facts. Drug companies that made vaccines were driven out of business by litigation in the 1980s. Scalia succinctly recounted that the vaccine court was established because:
Whereas between 1978 and 1981 only nine product-liability suits were filed against DTP manufacturers, by the mid-1980's the suits numbered more than 200 each year. This destabilized the DTP vaccine market, causing two of the three domestic manufacturers to withdraw; and the remaining manufacturer, Lederle Laboratories, estimated that its potential tort liability exceeded its annual sales by a factor of 200.
Conservatives and liberals swap sides
The anti-vaccine movement has generally been a conservative one, supported by people who believe that the FDA and the CDC are in league with big business to prevent parents from having choices and to conceal "the truth" about vaccines. Their case -- that the federal vaccine court should not pre-empt their rights in state courts -- disfavors the centralized, federal solution. Yet here's Scalia's summation of the history, which couldn't be more liberal (or more accurate):
... in the 1970's and 1980's vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases, and much more concerned with the risk of injury from the vaccines themselves.
Had the court divided along its more usual lines, which favors the right by five votes to four, Sotomayor's dissent could have created a six-two majority in favor of the bogus idea that vaccines harm children (Justice Elena Kagan recused herself). Sotomayor wrote:
Its decision leaves a regulatory vacuum in which no one ensures that vaccine manufacturers adequately take account of scientific and technological advancements when designing or distributing their products.
Well, no one except the FDA, the CDC and the free market.


Image by Wikimedia Commons, CC.