CALawMama's Blog


Experiences at the interface of life, law, and motherhood in Cali

Supreme Court Justice Sotomayor’s Dissent in Bruesewitz v. Wyeth, 562 U.S. __ (2011)

“Justice Sotomayor, with whom Justice Ginsburg Joins, dissenting:

Vaccine manufacturers have long been subject to a legal duty, rooted in basic principles of products liability law, to improve the design of their vaccines in light of advances of science and technology. Until today, that duty was enforceable through a traditional state-law tort action for defective design. In holding that §22(b)(1) of the National Childhood Vaccine Injury Act of 1986)[] 42 U.S.C. §300aa-22(b)(1), pre-empts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its own bare policy preference over the considered judgment of Congress.

[/]In doing so, the Court excises 13 words from the statutory text, misconstrues the Act’s legislative history, and disturbs the careful balance Congress struck between compensating vaccine-injured children and stabilizing the childhood vaccine market.

[/]Its decision leaves a regulatory vacuum in which no one ensures that vaccine manufacturers take account of scientific and technological advancements when designing or distributing their products.

[/]Because nothing in the text, structure, or legislative history of the Vaccine Act remotely intended such a result, I respectfully dissent.”

And later:

“Rather, the function of ensuring that vaccines are optimally designed in light of existing science and technology has traditionally been left to the States through the imposition of damages for design defect. citing to Wyeth v. Levine, 555 U.S. ____, ____ 2009)(slip op., at 22-23)(noting that the FDA has “traditionally regarded state law as a complementary form of drug regulation” as “[s]tate tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.”)


“Manufacturers, given the lack of robust competition in the vaccine market, will often have little or no incentive to improve the design of vaccines that are already generating significant profit margins. nothing in the text, structure, or legislative history remotely suggests that Congress intended that result.

I respectfully dissent.”

I wholeheartedly concur.



Facts of the Case (from Oyez, love them!)

“Two hours after Hannah Bruesewitz received her six-month diphtheria, tetanus and pertussis vaccine in 1992, she started developing seizures and was hospitalized for weeks. Hannah has continued to suffer from residual seizure disorder that requires her to receive constant care, according to her parents. When their daughter was three-years-old, Russell and Robalee Bruesewitz filed a petition seeking compensation for her injuries. One month prior to the petition, new regulations eliminated Hannah’s seizure disorder from the list of compensable injuries. The family’s petition was denied. Three years later, in 1998, the drug company Wyeth withdrew the type of vaccine used in Hannah’s inoculation from the market.

The Bruesewitzes filed a lawsuit against Wyeth in state court in Pennsylvania. They claimed the drug company failed to develop a safer vaccine and should be held accountable for preventable injuries caused by the vaccine’s defective design. A federal judge dismissed the lawsuit, ruling that the National Childhood Vaccine Injury Act protected Wyeth from lawsuits over vaccine injury claims. The U.S. Court of Appeals for the 3rd Circuit affirmed.”

Full opinion

Wiki version (ordinarily I wouldn’t rely on a Wikipedia entry for discussion of a Supreme Court decision, but a beloved Constitutional Law I professor, and former Supreme Court Justice law clerk, adjudged it reliable enough to accomplish the same, on more than one occasion, and for ease of understanding for the non-lawyer, I readily agree with his judgement)


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If I Am Only for Myself, Who Am I?

Every time a new ally joins the vaccine truth movement, I am personally drawn to reflect on what motivations they may have in helping the cause. If you look at the list of the most prominent celebrities currently representing the “face” of the movement, you will notice that they have all encountered not only skepticism, but outright mudslinging, insults, and innumerable ad hominem attacks. And yet, if you look more closely, put your bias aside, you will notice that they are simply parents asking questions. They are unlikely to secure any monetary fame, let alone additional opportunities in their fields, based on their commitment to investigating the truth of the safety behind the currently recommended vaccination schedule in the United States. Of the many individuals, including lawyers, doctors, celebrities, and politicians, I have had the pleasure to have met through the course of my involvement with this issue, I have yet to meet someone who is seeking anything other than protecting other individuals from harm, and that is really saying something.

(It’s interesting to note here, as an aside, that despite the U.S. being the only first world country with such an aggressive vaccine program, in fact many other comparable countries have no mandated vaccines at all, including Canada and 15 of the EU member countries, for example (see e.g. UK, Canada, EU, . In fact, they are not overrun with the same diseases that these vaccines were designed to prevent. But that is another article, for another time.)

Thus, I was simultaneously surprised and delighted to hear that actor Robert De Niro had gathered the immense courage that it takes to stand up to the scrutiny, and start encouraging others to ask questions about the current vaccination program.

Robert De Niro has been nominated for seven Academy Awards, two of which he won. He is arguably one of, if not the, most well known (and loved), American actors of all time. I would argue that he has absolutely nothing personal to gain from questioning vaccine safety. To the contrary, he arguably has a lot to lose. And yet, he still spoke out, on more than one occasion, in his support of the films VAXXED, and more recently Trace Amounts. That takes real courage in the current American mainstream media environment. (See also, Bought)

For this, I have nothing but immense respect. I know how it feels to be called anti-vax for merely pointing out that the Chicken Pox vaccination, which contains aborted fetal cells, which is now mandated under California law (the absence of which precludes entry into any school, public or private). The link I posted to above is from the website which pediatricians refer parents who have questions regarding vaccines, rather than answering them in the office. (If you still think that vaccinations do not cause harm, I invite you to read this government report, discussing the now more than $3 billion that has been paid out for vaccine injuries through the vaccine injury compensation program. You can also find more impassioned information regarding the VICP on this weblog).

Personally, as I have told many friends, I wish that I could turn my back on this issue. I wish that I didn’t feel compelled to dedicate hundreds upon hundreds of fully pro bono time to this issue. I have many other demands on my time. But yet, I cannot turn my back. My internal compass for truth and justice is too strong. So strong, in fact, that I wrote a legal research paper on this topic many years ago, on a whim, because I thought that parents ought to have the right to choose, which you can read for free, here.

I have reflected on this internal conflict numerous times, and realized that it is my connection to the commandment of  Tikkun OlamAs Chabad so eloquently describes the commandment, “The story of Adam teaches us that when you see a problem, instead of getting angry, you should work to fix the problem.”

And so, Robert De Niro, on behalf of the thousands, if not more, activists, all dedicated to working to fix that problem, we welcome you with open arms.

Hillel says, “If I am not for myself, who will be for me? But if I am only for myself, who am I? If not now, when?” Ethics of the Fathers, 1:14

When we have truth and light as our guiding posts, I do not believe we can go astray.


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