Supreme Court: Bruesewitz v. Wyeth: 6-2 Decision. Message To Parents: "You're On Your Own."
Supreme Court: Bruesewitz v. Wyeth: 6-2 Decision. Message To Parents: "You're On Your Own."
Supreme Court: Bruesewitz v. Wyeth: 6-2 Decision. Message To Parents: "You're On Your Own."
Syllabus
Syllabus
Syllabus
Syllabus
the extensive guidance for the two liability grounds specifically men
tioned in the Act, strongly suggests that design defects were not men
tioned because they are not a basis for liability. The Act’s mandates
lead to the same conclusion. It provides for federal agency improve
ment of vaccine design and for federally prescribed compensation,
which are other means for achieving the two beneficial effects of de
sign-defect torts—prompting the development of improved designs,
and providing compensation for inflicted injuries. The Act’s struc
tural quid pro quo also leads to the same conclusion. The vaccine
manufacturers fund an informal, efficient compensation program for
vaccine injuries in exchange for avoiding costly tort litigation and the
occasional disproportionate jury verdict. Taxing their product to fund
the compensation program, while leaving their liability for design de
fect virtually unaltered, would hardly coax them back into the mar
ket. Pp. 13–16.
561 F. 3d 233, affirmed.
No. 09–152
_________________
LABORATORIES, ET AL.
——————
Lawsuits, and Legal Rights: The Battle over Litigation in American
Society 146 (2002).
10 Mortimer, supra, at 906.
11 See Hagan, 45 Food Drug Cosm. L. J. 477, 479 (1990).
12 See R. Merrill, Introduction to Epidemiology 65–68 (2010).
13 See 42 U. S. C. §300aa–11(a)(1).
14 See §300aa–12(d)(3).
15 See §300aa–12(e), (g).
16 See §300aa–21(a).
4 BRUESEWITZ v. WYETH LLC
——————
17 See §300aa–14(a); 42 CFR §100.3 (2009) (current Vaccine Injury
Table).
18 See 42 U. S. C. §§300aa–11(c)(1), 300aa–13(a)(1)(A).
19 See §300aa–13(a)(1)(B).
20 See §300aa–11(c)(1)(C)(ii).
21 See §300aa–15(a).
22 See §300aa–15(e).
23 See §300aa–15(i)(2); 26 U. S. C. §§4131, 9510.
24 See 42 U. S. C. §300aa–11(a)(2).
Cite as: 562 U. S. ____ (2011) 5
——————
28 See Bruesewitz v. Secretary of Health and Human Servs., No. 95–
II
Law of Torts 695 (5th ed. 1984); Restatement (Third) of Torts §2 (1999).
37 Post, at 3.
Cite as: 562 U. S. ____ (2011) 9
——————
38 Ibid.
39 See Brief for Petitioners 29.
Labs., 172 Cal. App. 3d 812, 828–830, 218 Cal. Rptr. 453, 463–464
(1985); Belle Bonfils Memorial Blood Bank v. Hansen, 665 P. 2d 118,
122 (Colo. 1983).
Though it is not pertinent to our analysis, we point out that a large
number of courts disagreed with that reading of comment k, and took it
to say that manufacturers did not face strict liability for side effects of
properly manufactured prescription drugs that were accompanied by
adequate warnings. See, e.g., Brown v. Superior Court, 227 Cal. Rptr.
768, 772–775 (Cal. App. 1986), (officially depublished), aff’d 44 Cal. 3d
1049, 751 P. 2d 470 (1988); McKee v. Moore, 648 P. 2d 21, 23 (Okla.
1982); Stone v. Smith, Kline & French Labs., 447 So. 2d 1301, 1303–
1304 (Ala. 1984); Lindsay v. Ortho Pharm. Corp., 637 F. 2d 87, 90–91
(CA2 1980) (applying N. Y. law); Wolfgruber v. Upjohn Co., 72 App. Div.
2d 59, 61, 423 N. Y. S. 2d 95, 96 (1979); Chambers v. G. D. Searle & Co.,
441 F. Supp. 377, 380–381 (D Md. 1975); Basko v. Sterling Drug, Inc.,
416 F. 2d 417, 425 (CA2 1969) (applying Conn. law).
42 See, e.g., Johnson v. American Cyanamid Co., 239 Kan. 279, 285,
——————
performed by “and.” No, we think “even though” has a distinctive
concessive, subordinating role to play.
48 Because the dissent has a superfluity problem of its own, its reli
III
The structure of the NCVIA and of vaccine regulation in
general reinforces what the text of §300aa–22(b)(1) sug
gests. A vaccine’s license spells out the manufacturing
method that must be followed and the directions and
warnings that must accompany the product.50 Manufac
turers ordinarily must obtain the Food and Drug Admini
stration’s (FDA) approval before modifying either.51 De
viations from the license thus provide objective evidence of
manufacturing defects or inadequate warnings. Further
objective evidence comes from the FDA’s regulations—
more than 90 of them52—that pervasively regulate the
manufacturing process, down to the requirements for
plumbing and ventilation systems at each manufacturing
facility.53 Material noncompliance with any one of them,
or with any other FDA regulation, could cost the manufac
turer its regulatory-compliance defense.54
Design defects, in contrast, do not merit a single men
tion in the NCVIA or the FDA’s regulations. Indeed, the
FDA has never even spelled out in regulations the criteria
it uses to decide whether a vaccine is safe and effective for
its intended use.55 And the decision is surely not an easy
one. Drug manufacturers often could trade a little less
efficacy for a little more safety, but the safest design is not
always the best one. Striking the right balance between
safety and efficacy is especially difficult with respect to
vaccines, which affect public as well as individual health.
Yet the Act, which in every other respect micromanages
manufacturers, is silent on how to evaluate competing
designs. Are manufacturers liable only for failing to em
——————
50 See 42 U. S. C. §262(a), ( j); 21 CFR §§601.2(a), 314.105(b) (2010).
51 See §601.12.
52 See §§211.1 et seq., 600.10–600.15, 600.21–600.22, 820.1 et seq.
53 See §§211.46, 211.48.
54 See 42 U. S. C. §300aa–22(b)(2).
55 Hutt, Merrill, & Grossman, Food and Drug Law, at 685, 891.
14 BRUESEWITZ v. WYETH LLC
68 Post, at 7–8.
held that the only authoritative source of statutory meaning is the text
that has passed through the Article I process. See Exxon Mobil Corp. v.
Allapattah Services, Inc., 545 U. S. 546, 568 (2005).
18 BRUESEWITZ v. WYETH LLC
No. 09–152
_________________
LABORATORIES, ET AL.
No. 09–152
_________________
LABORATORIES, ET AL.
2002, 1986 WL 720792, *5 (SD W. Va., Aug. 21, 1986) (“[A] prescription
drug is not ‘unavoidably unsafe’ when its dangers can be eliminated
through design changes that do not unduly affect its cost or utility”);
Kearl v. Lederle Labs., 172 Cal. App. 3d 812, 830, 218 Cal. Rptr. 453,
464 (1985) (“unavoidability” turns on “(i) whether the product was
designed to minimize—to the extent scientifically knowable at the time
it was distributed—the risk inherent in the product, and (ii) the avail
ability . . . of any alternative product that would have as effectively
accomplished the full intended purpose of the subject product”), disap
proved in part by Brown v. Superior Ct., 44 Cal. 3d 1049, 751 P. 2d 470
(1988); Belle Bonfils Memorial Blood Bank v. Hansen, 665 P. 2d 118,
8 BRUESEWITZ v. WYETH LLC
(CA1 1981); Needham v. White Labs., Inc., 639 F. 2d 394, 402 (CA7
1981); Reyes v. Wyeth Labs., 498 F. 2d 1264, 1274–1275 (CA5 1974);
Davis v. Wyeth Labs., 399 F. 2d 121, 127–129 (CA9 1968); Feldman v.
Lederle Labs., 97 N. J. 429, 448, 479 A. 2d 374, 384 (1984); see also
Toner v. Lederle Labs., 112 Idaho 328, 336, 732 P. 2d 297, 305 (1987).
10 BRUESEWITZ v. WYETH LLC
whether the 1987 Report was authored by the House Budget Commit
tee or the House Energy and Commerce Committee. See 561 F. 3d 233,
250 (2009). As petitioners explain, although the Budget Committee
compiled and issued the Report, the Energy and Commerce Committee
wrote and approved the relevant language. Title IV of the Report,
entitled “Committee on Energy and Commerce,” comprises “two Com
mittee Prints approved by the Committee on Energy and Commerce for
inclusion in the forthcoming reconciliation bill.” 1987 Report 377, 380.
10 The majority suggests that the 1987 legislation creating the fund
12 BRUESEWITZ v. WYETH LLC
proposal).
12 See, e.g., Hearings on Funding of the Childhood Vaccine Program
——————
13 SeeAmerican Academy of Pediatrics, Questions and Answers about
Vaccine Ingredients (Oct. 2008), http://www.aap.org/immunization/
families/faq/Vaccineingredients.pdf (all Internet materials as visited
Feb. 18, 2011, and available in Clerk of Court’s case file).
Cite as: 562 U. S. ____ (2011) 15
——————
vaccine designs only if and when manufacturers come forward with a
proposal”); Jones v. Lederle Labs., 695 F. Supp. 700, 711 (EDNY 1988)
(“[T]he agency takes the drugs and manufacturers as it finds them.
While its goal is to oversee inoculation with the best possible vaccine, it
is limited to reviewing only those drugs submitted by various manufac
turers, regardless of their flaws”). Although the FDA has authority
under existing regulations to revoke a manufacturer’s biologics licenses,
that authority can be exercised only where (as relevant here) “[t]he
licensed product is not safe and effective for all of its intended uses.” 21
CFR §601.5(b)(1)(vi) (2010); see §600.3(p) (defining “safety” as “relative
freedom from harmful effect to persons affected, directly or indirectly,
by a product when prudently administered, taking into consideration
the character of the product in relation to the condition of the recipient
at the time”). The regulation does not authorize the FDA to revoke a
biologics license for a manufacturer’s failure to adopt an optimal
vaccine design in light of existing science and technology. See Conk, Is
There a Design Defect in the Restatement (Third) of Torts: Products
Liability? 109 Yale L. J. 1087, 1128–1129 (1999–2000) (“The FDA does
not claim to review products for optimal design . . . . FDA review thus
asks less of drug . . . manufacturers than the common law of products
liability asks of other kinds of manufacturers”). At oral argument,
counsel for amicus United States stated that the Centers for Disease
Control and Prevention (CDC) routinely performs comparative analyses
of vaccines that are already on the market. See Tr. of Oral Arg. 44–45;
id., at 52–53 (describing CDC’s comparison of Sabin and Salk polio
vaccines). Neither the United States nor any of the parties, however,
has represented that CDC examines whether a safer alternative
vaccine could have been designed given practical and scientific limits,
the central inquiry in a state tort law action for design defect. CDC
does not issue biologics licenses, moreover, and thus has no authority to
require a manufacturer to adopt a different vaccine design.
Cite as: 562 U. S. ____ (2011) 23
——————
24 JUSTICE BREYER’s separate concurrence is even more explicitly
policy driven, reflecting his own preference for the “more expert judg
ment” of federal agencies over the “less expert” judgment of juries.
Ante, at 5.
Cite as: 562 U. S. ____ (2011) 27