U.S. SC decision forces change in Ga. ruling

Jessica M. Karmasek May 19, 2011, 10:42am


ATLANTA (Legal Newsline) - The Georgia Supreme Court was forced to vacate a previous judgment and reverse an appeals court's judgment in light of a U.S. Supreme Court decision earlier this year aimed at protecting vaccine makers from lawsuits.

In February, the U.S. Supreme Court ruled 6-2 to uphold the National Childhood Vaccine Injury Act of 1986. The decision was a blow to a set of Pennsylvania parents who contended their daughter, Hannah, suffered seizures and delayed development after receiving a diptheria, tetanus and pertussis vaccine made by Wyeth, now part of Pfizer Inc.

Russell and Robalee Bruesewitz, whose daughter is now a teenager, filed a vaccine injury petition in the U.S. Court of Federal Claims in 1995; however, their claim was denied. In 2005, they sued the drug maker in a state court, arguing the "defective design" of the vaccine led to Hannah's disorders.

The U.S. District Court for the Eastern District of Pennsylvania granted Wyeth summary judgment on the strict liability and negligence design-defect claims. The U.S. Court of Appeals for the Third Circuit affirmed the ruling.

In American Home Products Corp. v. Ferrari, or Ferrari II, the Georgia Supreme Court had affirmed the judgment of the appeals court in Ferrari v. American Home Products Corp., or Ferrari I.

In Ferrari I, the appeals court reversed the partial summary judgment granted by the trial court in favor of the appellants, who are vaccine manufacturers, on the design defect claims of appellees Marcelo and Carolyn Ferrari, individually and on behalf of their minor son, for neurological injury allegedly caused by vaccines.

The Court's opinion in Ferrari II held that the appellees' design defect claims are not preempted by the federal vaccine act because a full examination, in context and the congressional intent behind it, shows that the act does not preempt all design defect claims against vaccine manufacturers, but instead provides that such a manufacturer cannot be held liable for defective design if it is determined, on a case-by-case basis, that the injurious side effects of the particular vaccine were unavoidable.

At the time, the state's high court noted that a far-reaching interpretation of the act, which grants complete tort immunity from design defect liability to an entire industry, must be rejected in the absence of any clear and manifest congressional purpose to achieve that result, "at least until the Supreme Court of the United States has spoken on the issue."

The U.S. Supreme Court vacated the judgment in Ferrari II and remanded the case to the Georgia Supreme Court for further consideration in light of its Bruesewitz v. Wyeth decision.

Since the nation's high court holds that the vaccine act "preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects," the Georgia Court had to vacate its former judgment in the Ferrari II case.

Presiding Justice George H. Carley authored the Court's three-page opinion.

Also, on Monday, the Court reversed the judgment of the appeals court in Ferrari I and remanded the case for proceedings consistent with the U.S. Supreme Court opinion.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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