2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

E. Preemption of Vaccine Design Defect Claims by National Childhood VaccineInjury ActIn Bruesewitz v. Wyeth, LLC, 131 S.Ct. 1068 (2011), the United States SupremeCourt held that, "[T]he National Childhood Vaccine Injury Act preempts all design-defectclaims against vaccine manufacturers brought by plaintiffs who seek compensation forinjury or death caused by vaccine side effects." Bruesewitz, 131 S.Ct. at 1082. Theparticular language of the Act at issue provides:No vaccine manufacturer shall be liable in a civil action fordamages arising from a vaccine-related injury or deathassociated with the administration of a vaccine after October 1,1988, if the injury or death resulted from side effects that wereunavoidable even though the vaccine was properly preparedand was accompanied by proper directions and warnings.42 U.S.C. § 300aa-22(b)(1). The Supreme Court’s majority opinion held in considering thislanguage, that:The “even though” clause clarifies the word that precedes it. Itdelineates the preventative measures that a vaccinemanufacturer must have taken for a side-effect to beconsidered “unavoidable” under the statute. Provided thatthere was proper manufacture and warning, any remainingside effects, including those resulting from design defects, aredeemed to have been unavoidable. State-law design-defectclaims are therefore preempted. If a manufacturer could beheld liable for failure to use a different design, the word“unavoidable” would do no work. A side effect of a vaccinecould always have been avoidable by use of a differentlydesigned vaccine not containing the harmful element. Thelanguage of the provision thus suggests that the design of thevaccine is a given, not subject to question in the tort action.What the statute establishes as a complete defense must beunavoidability (given safe manufacture and warning) withrespect to the particular design. Which plainly implies that thedesign itself is not open to question.Bruesewitz, 131 S. Ct. at 1075-76.In light of the Supreme Court’s decision in Bruesewitz, the Pennsylvania SupremeCourt vacated the order of the Superior Court in Wright v. Aventis, No. 83 EAL 2011, 2011Pa. LEXIS 3143 (Pa. Dec. 28, 2011), with instructions on remand for proceedings consistentwith the United States Supreme Court’s decision in Bruesewitz.In Wright, 14 A.3d 850 (Pa. Super. 2011), the Superior Court reversed in part thedecision of the trial court, which granted defendant drug manufacturers summary138