Appellate Update

Since Chief Justice John Roberts’ appointment in 2005, three more new justices have joined the United States Supreme Court—Justice Samuel Alito in 2006, Justice Sonia Sotomayor in 2009, and Justice Elena Kagan last year. While popular accounts often describe the justices as voting along predictable conservative or liberal lines, federal preemption is one important area in which such ideological lines often blur This Term there are four high-profile preemption cases, three of which already have been decided, that shed light on the direction of these justices and the Court on preemption.

The first preemption case decided this Term was Bruesewitz v. Wyeth, LLC, No. 09-152. This case addressed whether the National Childhood Vaccine Injury Act of 1986 (NCVIA), 42 U.S.C. § 300aa-22(b)(1), preempts state-law claims against vaccine manufacturers alleging design defects. (Disclosure: Quinn Emanuel successfully represented the vaccine manufacturers.) In the mid-1980s, vaccine manufacturers were facing hundreds of product-liability suits a year threatening them with damages many times their average sales. Several companies therefore stopped manufacturing vaccines, causing vaccine shortages. To encourage vaccine production, Congress enacted the NCVIA, which establishes a streamlined, no-fault compensation system. Parties dissatisfied with their recovery under this system may elect to reject the recovery and bring tort claims, but the Act preempts such claims “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.” 42 U.S.C. § 300aa-22(b)(1).

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