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With all of the publicity surrounding the demonstrations in Egypt, Libya, Iran, and Wisconsin, it might be understandable how we could overlook a U.S. Supreme Court decision that came down Tuesday. The Court affirmed the ruling of the U.S. Court of Appeals for the Third Circuit in favor of Pfizer’s subsidiary Wyeth, in Bruesewitz v. Wyeth. The Court determined that the National Childhood Vaccine Injury Act prevents civil suits against manufacturers of FDA-approved childhood vaccines based on a claim that a particular vaccine should have been designed differently. The decision was 6-2.
Traditionally, our law holds someone who makes money from a product that has something wrong with it responsible when a person is hurt by using the product. The framework of product liability is based upon the idea that people must be given information to allow them to make an informed choice. Typically, we say if something was wrong with the way the product was designed, the way it was manufactured, or the way it was labeled, then the consumer was denied the opportunity to make an informed choice.
Here is an extreme and as far as I know a completely fabricated example. A company makes a cream to grow hair for balding heads. It designs the cream and makes it exactly as it was designed to be made. The company tells the people buying it that this product is 100% guaranteed to make your bald head grow hair, but there’s an 80% chance that your head will fall off your body in one year. If the consumer uses the product, he is totally responsible if his head falls off. The company made sure that the person using the product had the information he needed to make an informed choice. As a system of law, we demand that people are accountable for their own actions. If a company makes a dangerous product, it is accountable if it doesn’t let the people buying the product know what those risks are before they buy it. If the consumers don’t want the risk, they don’t have to buy the product. If a person buys the product anyway, knowing accurate information, he is solely responsible for that decision. Free will – we take it seriously.
Perhaps the most infamous example of product liability is the case of the Ford Pinto. The story goes that corporate executives knew that a safety device, that would have cost about $11 a vehicle, could have reduced the chance of certain fuel-tank fires in the event the car was rear-ended. A corporate memo calculated that the added safety provided by the device would have resulted in the avoidance of 180 deaths and another 180 serious burn injuries. However, the memo also estimated that paying the 360 claims would have been less than half of what it would cost to install the safety device on all the vehicles. It was just cheaper to pay the claims than to make the cars safe. When Ford was sued by the survivors of a woman killed and by the teenage boy severely burned after the Pinto they were in burst into flames following a 30 m.p.h. rear-end collision, a jury said Ford should pay $125 million in punitive damages. While the trial judge reduced those damages to $3.5 million, the message was clear: We, as a people, do not tolerate a strict cost analysis when it comes to corporations making money that costs us our lives and quality of life … unless you give us that choice first.
That’s why this vaccine case seems so out of place. In pages of explication regarding statutory construction, the majority of the Court decided that our congress intended to prevent any manufacturer of vaccines from being sued if the design of the drug – the formula everyone must follow in making the vaccine – hurts children. They basically say that there is no liability for unavoidably unsafe vaccines and that if the FDA has approved the drug, then we will let a government agency pay some damages to these injured children and in return, vaccine manufacturers will ensure a stable and predictable childhood vaccine supply. As the dissent noted, neither the FDA nor any other federal agency “ensures that vaccine manufacturers adequately take account of scientific and technological advancements. … Manufacturers, given the lack of robust competition in the vaccine market, will often have little or no incentive to improve the designs of vaccines that are already generating significant profit margins.”
At least in the Pinto case, consumers were not forced into buying a Pinto. Under our current health system, childhood vaccines are increasingly mandatory. In its press release regarding the decision, Pfizer noted that the dissemination of vaccines is almost universal. Mandatory vaccines, huge profit margins, lack of competition – no wonder the pharmaceutical industry doesn’t want a jury looking at their design decisions. Ford makes good cars and good profits. The decision didn’t keep us from having a shortage on cars. If people are suppressed, when their children are maimed by the state, when their rights are denied by the courts, and when they feel as if they have no options remaining to them, we may see more people taking to the streets to find the justice denied them in the courts. It may become our own Egypt.
(Kim Kelley is an attorney in Heber Springs with a practice emphasis on consumer law and governmental abuses. She is also an educator and facilitates a group at St. Peter’s in Conway that focuses on the symbolism of biblical events and application to current affairs.)
With all of the publicity surrounding the demonstrations in Egypt, Libya, Iran, and Wisconsin, it might be understandable how we could overlook a U.S. Supreme Court decision that came down Tuesday. The Court affirmed the ruling of the U.S. Court of Appeals for the Third Circuit in favor of Pfizer’s subsidiary Wyeth, in Bruesewitz v. Wyeth. The Court determined that the National Childhood Vaccine Injury Act prevents civil suits against manufacturers of FDA-approved childhood vaccines based on a claim that a particular vaccine should have been designed differently. The decision was 6-2.
Traditionally, our law holds someone who makes money from a product that has something wrong with it responsible when a person is hurt by using the product. The framework of product liability is based upon the idea that people must be given information to allow them to make an informed choice. Typically, we say if something was wrong with the way the product was designed, the way it was manufactured, or the way it was labeled, then the consumer was denied the opportunity to make an informed choice.
Here is an extreme and as far as I know a completely fabricated example. A company makes a cream to grow hair for balding heads. It designs the cream and makes it exactly as it was designed to be made. The company tells the people buying it that this product is 100% guaranteed to make your bald head grow hair, but there’s an 80% chance that your head will fall off your body in one year. If the consumer uses the product, he is totally responsible if his head falls off. The company made sure that the person using the product had the information he needed to make an informed choice. As a system of law, we demand that people are accountable for their own actions. If a company makes a dangerous product, it is accountable if it doesn’t let the people buying the product know what those risks are before they buy it. If the consumers don’t want the risk, they don’t have to buy the product. If a person buys the product anyway, knowing accurate information, he is solely responsible for that decision. Free will – we take it seriously.
Perhaps the most infamous example of product liability is the case of the Ford Pinto. The story goes that corporate executives knew that a safety device, that would have cost about $11 a vehicle, could have reduced the chance of certain fuel-tank fires in the event the car was rear-ended. A corporate memo calculated that the added safety provided by the device would have resulted in the avoidance of 180 deaths and another 180 serious burn injuries. However, the memo also estimated that paying the 360 claims would have been less than half of what it would cost to install the safety device on all the vehicles. It was just cheaper to pay the claims than to make the cars safe. When Ford was sued by the survivors of a woman killed and by the teenage boy severely burned after the Pinto they were in burst into flames following a 30 m.p.h. rear-end collision, a jury said Ford should pay $125 million in punitive damages. While the trial judge reduced those damages to $3.5 million, the message was clear: We, as a people, do not tolerate a strict cost analysis when it comes to corporations making money that costs us our lives and quality of life … unless you give us that choice first.
That’s why this vaccine case seems so out of place. In pages of explication regarding statutory construction, the majority of the Court decided that our congress intended to prevent any manufacturer of vaccines from being sued if the design of the drug – the formula everyone must follow in making the vaccine – hurts children. They basically say that there is no liability for unavoidably unsafe vaccines and that if the FDA has approved the drug, then we will let a government agency pay some damages to these injured children and in return, vaccine manufacturers will ensure a stable and predictable childhood vaccine supply. As the dissent noted, neither the FDA nor any other federal agency “ensures that vaccine manufacturers adequately take account of scientific and technological advancements. … Manufacturers, given the lack of robust competition in the vaccine market, will often have little or no incentive to improve the designs of vaccines that are already generating significant profit margins.”
At least in the Pinto case, consumers were not forced into buying a Pinto. Under our current health system, childhood vaccines are increasingly mandatory. In its press release regarding the decision, Pfizer noted that the dissemination of vaccines is almost universal. Mandatory vaccines, huge profit margins, lack of competition – no wonder the pharmaceutical industry doesn’t want a jury looking at their design decisions. Ford makes good cars and good profits. The decision didn’t keep us from having a shortage on cars. If people are suppressed, when their children are maimed by the state, when their rights are denied by the courts, and when they feel as if they have no options remaining to them, we may see more people taking to the streets to find the justice denied them in the courts. It may become our own Egypt.
(Kim Kelley is an attorney in Heber Springs with a practice emphasis on consumer law and governmental abuses. She is also an educator and facilitates a group at St. Peter’s in Conway that focuses on the symbolism of biblical events and application to current affairs.)
