A case to watch:  earlier this month the Supreme Court granted certiorari in Bruesewitz v. Wyeth, 2010 WL 757696, which raises important issues under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”) , 42 U.S.C. §§ 300aa-1 et seq.  The Act expressly preempts state law claims against vaccine manufacturers if the injury or death giving rise to such a claim results from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning.

But the lower courts have split on the meaning of that provision. Does the Vaccine Act preempt all design defect claims against vaccine manufacturers, or must the preemption of particular design claims be decided on a case-by-case basis?

In this case, the 3rd Circuit correctly held that the Vaccine Act preempts all design defect claims,  including negligence and strict liability design claims. 561 F.3d 233 (3d Cir. 2009). The Georgia Supreme Court, by contrast, is  one court that had previously held that a design defect claim is not preempted unless the manufacturer demonstrates, on case-by-case basis, that there was no safer design that could have avoided the injury giving rise to the claim. Am. Home Prods. Corp. v. Ferrari, 668 S.E.2d 236 (Ga.2008).

One of the many ways that the Ferrari court’s construction is contrary to the structure of the Act and intent of Congress is that it does not necessarily bar any design defect claims. If the court interpret the Vaccine Act to allow case-by-case analysis of whether particular vaccine side effects are avoidable, then every design defect claim is subject to evaluation by a court, and theoretically every one of them could be found not-preempted by the state courts around the country. That clearly is not what Congress meant.