On February 22, the Supreme Court issued its decision in Bruesewitz v. Wyeth, 562 U.S. __ (2011). The Court’s 6-2 opinion, written by Justice Scalia (Justice Kagan took no part in the decision), held that design defect claims against vaccine manufacturers are preempted by the National Childhood Vaccine Injury Act of 1986 (“NCVIA” or “Act”).

The NCVIA was enacted in response to increasing tort claims against vaccine manufacturers, their inability to obtain liability insurance, and the attendant fear of a vaccine shortage if manufacturers decided to exit the market. The Act created a no-fault system of compensation for claimants who demonstrate that they have suffered an adverse side effect from a vaccine. In return, vaccine manufacturers are significantly shielded from tort liability. A claimant is only permitted to file suit after seeking relief through the compensation system. In addition, manufacturers are generally not liable for failure-to-warn claims if they are in regulatory compliance. The immunity relevant to this case (42 U.S.C. § 300aa-22(b)(2)) limits liability for a vaccine’s unavoidable side effects...