Pennsylvania Court Partly Reverses Preemption In Thimerosal Injury Case

Pennsylvania Court Partly Reverses Preemption In Thimerosal Injury Case

HARRISBURG, Pa. - (Mealey's) The Pennsylvania Superior Court on Jan. 11 partly reversed preemption summary judgment in a thimerosal vaccine injury case, saying the trial court needs to conduct a case-by-case inquiry of the side effects of the vaccines involved (Jacqueline Wright, et al. v. Aventis Pasteur, Inc., et al., 336 EDA 2008, Pa. Super.). 

However, the court affirmed preemption summary judgment on the plaintiffs' claims of failure to warn, saying that the defendants are entitled to presumption that they gave proper warnings and that the plaintiffs failed to rebut that presumption.

Jared Wright was born in 1997 and over the next 15 months received multiple vaccines containing the preservative thimerosal.  In 2001, Jared's parents, Jacqueline and Howard Wright, filed a claim in the National Vaccine Injury Compensation Program, alleging that thimerosal in a measles-mumps-rubella vaccine caused Jared's neurological injury, including developmental and speech delays and autism or pervasive developmental disorder - not otherwise specified, which is a condition of autism spectrum disorder.

Because Jared's injuries were not on the table of recognized vaccine injuries, the claim was denied and the parents then filed a tort lawsuit in the Philadelphia County Common Pleas Court, alleging design defect and failure to warn.  In 2007, the trial court granted summary judgment, finding that both claims are preempted by the Vaccine Act.

The Wrights appealed the summary judgment granted to defendants Aventis Pasteur Inc. and Wyeth.

On an 8-1 vote, the Superior Court majority held that Section 300aa-22(b)(1) of the Vaccine Act expressly preempts all design defect claims that arise from unavoidable vaccine side effects.  However, the majority said that before granting summary judgment, the trial court was required to conduct a case-by-case inquiry to determine the nature of the vaccine's side effects claimed by the Wrights. 

The majority reversed summary judgment on the design defect claims and remanded for further action.

 The majority affirmed that Section 300aa-22(b)(2) of the Vaccine Act preempts the Wrights' failure-to-warn claims because the defendants are entitled to the presumption that they gave proper warnings and that the plaintiffs failed to rebut that presumption.

The majority frequently cited the 2009 ruling by the Third Circuit U.S. Court of Appeals in Bruesewitz v. Wyeth, Inc. (561 F.3d 233 [3d Cir. 2009]), which addressed vaccine design defect issues, but the court acknowledged that the U.S. Supreme Court recently heard the Bruesewitz appeals and "may address the issue before us." 

Judge Jacqueline O. Shogan concurred in part and dissented in part.  She said she would not reverse preemption summary judgment on the design defect claim.

[Editor's Note:  Full coverage will be in the Jan. 20 issue  of Mealey's Emerging Drugs & Devices.  In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Document #28-110120-002Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]

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For more information, call editor Tom Moylan at 215-988-7739, or e-mail him at tom.moylan@lexisnexis.com.