To supplement my Columbus Day mention of the Wyeth vaccine case, pending before the Supremes, I'll quote a bit of a very well-written, and clear New York Times piece, written by Adam Liptak, on the oral arguments the paper ran overnight:
. . . .Much of the argument concerned the meaning of the word "unavoidable."
"The language that they used is certainly, to say the least, confusing," Justice Ruth Bader Ginsburg said.
Ms. Sullivan, the Wyeth lawyer, said Congress had meant to allow only lawsuits arising from manufacturing flaws and inadequate warnings. Suits over asserted design defects — those arising from the nature of the vaccine itself as compared with other, potentially safer ones — were meant to be barred, she said.
That argument, Justice Stephen G. Breyer said, may require an unconventional use of the crucial word. "It’s pretty hard to say that that word unavoidable means avoidable. . . ."
So, that sums up the Bruesewitz family's counter argument here -- the word "unavoidable" should be given its plain English meaning, in the statute being construed -- and then the family would be allowed to assert design defect claims. The general rule is that words in statutes should be assigned their plain English meanings, absent very clear evidence that Congress intended a differing meaning. There is some reason to hope for the Bruesewitz family.
However, Justice Kagan has recused herself, as she was at Justice when the DoJ drafted its brief supporting Wyeth's position here. That means, in the event of a 4 to 4 split among the remaining Supremes, the lower court's ruling would stand; i.e., Wyeth's postion -- no suits, except for failures to warn, and defective vaccine preparation methods -- would win the day.
Audio of the complete oral arguments -- from both sides -- will appear here, shortly (courtesy the Oyez project).
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