MARY LOUISE KELLY, host:
Well, at the Supreme Court today, justices heard arguments in a case that drug manufacturers say could open the floodgates to thousands of lawsuits, mainly from parents who contend that vaccinations caused their children's autism. At issue is how far a federal law reaches in barring state lawsuits over vaccines.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: In 1986, Congress created a special no-fault compensation system for injuries that result from vaccines. The payments are awarded by a special vaccine court. The question presented by today's case is whether that court is the end of the line for most vaccine injuries or whether Congress intended to give victims an additional chance to prove their case and win damages in state court.
Today's case was brought by the parents of Hannah Bruesewitz. She was 6 months old when she received a vaccination against diphtheria, tetanus and pertussis. Within hours, she suffered scores of seizures and has been developmentally impaired ever since. Her parents claimed her injuries were caused by the vaccine, which was developed in the 1940s, and that the manufacturer, Wyeth Pharmaceuticals, had declined to substitute another safer and more modern vaccine.
When the special vaccine court ruled that there was inadequate proof the vaccine caused Hannah's injuries, her parents then sued in state court, where they would have had the right to subpoena drug company records to learn what the drug company knew about the vaccine's safety.
The lower courts, however, threw the case out, declaring that the federal vaccine law barred all suits over design defects.
Today, on the steps of the Supreme Court, lawyer David Frederick, representing the Bruesewitz family, contended that a victory in this case would cause no great harm to vaccine manufacturers.
Mr. DAVID FREDERICK (Lawyer): These kinds of cases have been brought against vaccine manufacturers for a hundred years. The Vaccine Act of 1986 was not intended to displace those kinds of claims. And so, we're talking about the very rare situation where an existing safer alternative existed, and it had caused a harm that could have been avoided.
TOTENBERG: But Kathleen Sullivan, representing Wyeth Pharmaceuticals, a division of Pfizer, countered that a decision allowing suits like this one would imperil the health of the nation.
Ms. KATHLEEN SULLIVAN (Lawyer): If manufacturers that are to be driven out of business today, we'll see a resurgence of infectious diseases that we've almost forgotten about it in our time.
TOTENBERG: Inside the court, lawyer Frederick representing the family got pummeled by the justices from the right and left.
Justice Ginsberg: The government says there's no liability if a vaccine has FDA approval.
Answer: And the government is incorrect. Congress had choices. It could have banned suits alleging a design defect, but it chose not to do that. In this case, argued Frederick, there was an alternative vaccine that was just as effective and posed fewer side effects, but the manufacturer did not make it available because it couldn't make as much money off it.
Justice Ginsberg: If there is a safer alternative, it must be pursued by the manufacturer regardless of the cost?
Frederick contended that Congress set up a system in which vaccine makers are exonerated in 99 percent of all cases, and few cases go to the state courts. That, he said, is a good bargain that most manufacturers would gladly accept.
Chief Justice Roberts: That depends on what the award is in the remaining 1 percent of the cases. It doesn't take too many $60 million verdicts to make you come out on the other side of your calculus.
Justice Kennedy: You assume there's no burden to the manufacturers who defend these suits. This is a tremendous expense.
While the justices seem skeptical of Frederick's position, they turned with equal ferocity on the lawyer representing Wyeth, Kathleen Sullivan.
Justice Sotomayor: Why didn't Congress make the vaccine court the exclusive vehicle for such claims?
Sullivan repeatedly insisted that Congress intended to do just that because the manufacturers were being driven out of business by lawsuits.
But faced with more difficult questions from justices Kennedy, Breyer, Ginsburg and Chief Justice Roberts, Sullivan threw down the gauntlet. She told the justices that if they rule in favor of the Bruesewitz family, parents of autistic children in some 5,000 cases could litigate their claims that the disease was caused by the measles and mumps vaccine despite the fact that the vaccine court has repeatedly ruled there's no evidence of a link.
If Congress wanted to bar such suits, replied Justice Kennedy, why didn't it just put a ban in plain words?
At day's end, there were few willing to bet on how the court would decide the case.
Nina Totenberg, NPR News, Washington.
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