In answering the question of whether state-law design defect claims against vaccine makers are preempted by state law, the justices of the Supreme Court seem to have looked at the relevant statute and asked themselves the question from the “Schoolhouse Rock!” song: Conjunction Junction, what’s your function?
(Press play and sing along as you read the rest of this post, if you like.)
In this morning’s ruling in Bruesewitz v. Wyeth – holding that such claims are preempted – Justice Antonin Scalia’s majority ruling as well as Justice Sonia Sotomayor’s dissenting opinion focused on two conjunctions in the National Childhood Vaccine Injury Act: “if” and “even though.”
The relevant statutory text, §22(b)(1), is:
No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings. (Emphasis added).
In determining just what kind of side effect is “unavoidable” under the Act, Scalia parsed the meaning of the “even though” clause.
The “even though” clause clarifies the word that precedes it. It delineates the preventative measures that a vaccine manufacturer must have taken for a side-effect to be considered “unavoidable” under the statute. Provided that there was proper manufacture and warning, any remaining side effects, including those resulting from design defects, are deemed to have been unavoidable. State-law design-defect claims are therefore preempted.
If a manufacturer could be held liable for failure to use a different design, the word “unavoidable” would do no work.
Sotomayor, whose dissent was joined by Justice Ruth Bader Ginsburg, had a different view.
Blackletter products liability law generally recognizes three different types of product defects: design defects, manufacturing defects, and labeling defects (e.g., failure to warn). The reference in the “even though” clause to a “properly prepared” vaccine “accompanied by proper directions and warnings” is an obvious reference to two such defects-manufacturing and labeling defects. The plain terms of the “even though” clause thus indicate that §22(b)(1) applies only where neither kind of defect is present.
…The only remaining kind of product defect recognized under traditional products liability law is a design defect. Thus, “side effects that were unavoidable” must refer to side effects caused by a vaccine’s design that were “unavoidable.”
The Court also ruled in CSX Transportation v. Alabama Department of Revenue that a railroad carrier may challenge a non-property tax on the grounds that the tax contains discriminatory exemptions.