The Legal Examiner Mark The Legal Examiner Mark The Legal Examiner Mark search twitter facebook feed linkedin instagram google-plus avvo phone envelope checkmark mail-reply spinner error close
Skip to main content

Some diseases are becoming rarer; immunization is the probable reason and we continue to immunize, even after incidents of disease become minimal. There seems to be no question that this immunization policy has reduced and, in some cases, virtually eliminated, disease. If we stop immunizing, it is presumed that more people will be infected and the preventable disease will return and spread. However, how do we determine whether a vaccine does more harm then good. What should be the test? And, should there be liability for harm done?

The public, especially the legal community, has been wary about pharmaceutical companies over the last several years. Despite a targeted, U S Chamber led, industry campaign demonetizing trial lawyers for filing "frivolous lawsuits", the truth is that this "blame the trial lawyers" campaign is really an attempt to create a dangerous market place where members of the public can do little to punish a negligent drug company or get reasonable compensation when a drug does bad things to one (or many) of its users. Simply put, the US Chamber and the drug companies do not want to be responsible when a bad drug injures or kills one of our citizens. Yet, the are guilty of consistent deception over dangerous and defective prescription drugs such as Bextra, Crestor, Accutane, Fen Phen, Avandia, Reglan, Vioxx, and, recently, even a hip replacement product. Further, after much controversy over mercury-containing vaccines, the CDC removed it from the market.

Due to a recent lawsuit, the Supreme Court must now decide whether drug manufacturers may be sued for injuries allegedly caused by vaccines. In 1992, a 6-month-old girl received a common vaccination to prevent Diphtheria, Pertussis, and Tetanus (DPT). Within hours of receiving the shot, her parents said their daughter was not the same child. They claim the vaccine, which was later pulled off the market by its manufacturer, caused permanent neurological damage. The vaccine they say caused her disabilities and seizures was replaced in 1998. After losing their case in the ‘Vaccine Court’, the couple has filed a lawsuit in the U.S. Supreme Court. They contend that there was a safer alternative on the market and that manufacturers should be held accountable to protect our children.

For the past 24 years, the National Childhood Vaccine Injury Act has protected vaccine manufacturers from being sued for most injuries caused by their products. Under the law, vaccine manufacturers cannot be held liable for tort claims if the injury in question was "unavoidable, even though the vaccine was properly prepared and accompanied by proper directions and warnings." Congress also created the aforementioned ‘Vaccine Court’ to manage injury allegations. Anyone who believes they were injured from a vaccine may receive compensation from a government-managed fund through a tax on vaccine manufacturers. Plaintiffs may still allege that the manufacturer failed to give adequate warnings about the dangers of the product or may claim that the vaccine itself was not manufactured properly.

We need to demand a safety first approach when it comes to vaccines. Parents need to feel completely confident that their children are safe. Does that seem like too much to ask? Some feel a win for the couple will raise concerns in the health care community and undermine the vaccine court and its protection of the drug manufacturers.

If the Supreme Court decides that vaccine design is outside the "unavoidable" side effects listed in the Vaccine Injury Act, the drug industry is gearing up its trial lawyer smear campaign and publicizing that a "flood" of similar cases would be filed. However, why should the vaccine makers be protected when they took so little care in providing adequate protections for the patient and the at-large public? Shouldn’t they be required to develop the safest vaccines possible? If it is determined that a vaccine caused undue harm or death, shouldn’t a manufacturer be held accountable? The Vaccine Court leaves little recourse for those who may have permanent disabilities. Isn’t it time vaccines are more closely monitored for safety?

Despite the attacks on trial lawyers, the main reason that these lawsuits are filed and pursued is for the public safety. They are pursued, to be sure, for victim compensation and attorney fees; but, they are public proceedings and they put the public on notice of the danger of these products. Potential punishment for bad or negligent conduct forces drug companies to make safer drugs. It really is that simple. Why should drug manufacturers be exempt from being taken to court like any other manufacturer of a negligent product? Is it because the have the most lobbying money? Tell us what you think; where do you stand in this public safety debate?

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a personal injury plaintiff while his/her litigation is pending. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.

Comments are closed.

Of Interest