Tuesday, February 22, 2011

Sotomayor Was Right -- Scalia Was Wrong, Today. . . .

I don't intend to spend a whole lot of time or energy on this, but I do think that the United States Supreme Court Bruesewitz vaccine courts case handed down today. . . was wrongly decided -- as a matter of pure statutory construction.

And, so -- at some later point, the Court will revisit this narrow question, to establish that Congress did not intend to give vaccine manufacturers an entirely "free pass", here.

My earlier backgrounder, on the oral arguments, is here. Oral argument mp3 streaming file here (including Justice Breyer's classic line: ". . .wait a sec, Wyeth -- you're saying when Congress wrote un-avoidable it meant avoidable?!" Breyer is right: Wyeth stood Congressional intent on its head).

In any event, here is some of "that wise Latina woman's reasoning," (Heh!) from Justice Sotomayor's dissenting opinion, today:

. . . .The majority’s reading suffers from an even more fundamental defect. If Congress intended to exempt vaccine manufacturers categorically from all design defect liability, it more logically would have provided: “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the vaccine was properly prepared and was accompanied by proper directions and warnings.” There would have been no need for Congress to include the additional 13 words “the injury or death resulted from side effects that were unavoidable even though.” See TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) (noting “cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant” (internal quotation marks omitted)). . . .

Look out, ahead -- about a half-decade -- for the Supremes' reversing opinion. For today, though -- this is mildly good news for Merck, and all other (low-margin) vaccine producers: it effectively is a hall pass. Henceforth, essentially no claim (short of manufacturers' fraud) will escape the vaccine court's bear-trap style limits on recovery.

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