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High Court Superstars Take Shots In Vaccine Case

Publication Date: 
October 13, 2010
Source: 
The National Law Journal
Author: 
Tony Mauro

Professor Kathleen Sullivan, who is representing Wyeth in the Supreme Court Case, Bruesewitz v. Wyeth, is featured in this article about federal vaccine laws and lawsuits brought to state courts. The National Law Journal reports:

David Frederick, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel, has made a habit of arguing successfully against federal pre-emption before the Supreme Court.

It's a high-stakes specialty that casts him in frequent opposition to big business, which tends to like pre-emption because it provides one set of regulations (federal) to deal with, instead of messy rules and tort actions in each of 50 states.

...

On Tuesday, Frederick's opponent was no less formidable and may have been the toughest of all: Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, the former dean of Stanford Law School.

She, instead of Waxman, was representing Wyeth this time around in the case of Bruesewitz v. Wyeth, which asks whether the federal vaccine law pre-empts all design-defect lawsuits in state courts against vaccine manufacturers.

Using a bare-knuckles argument style, Sullivan accused Frederick of misleading the Court and asserted that exposing manufacturers to liability will "drive manufacturers out of the market" and jeopardize public safety. "Congress wants people to take vaccines," she said. Sullivan noted ominously that 5,000 families have argued that childhood vaccines cause their children to develop autism and suggested that all those cases could end up in state court if the high court rules against pre-emption.

...

But other justices seemed critical of the Wyeth position as well. Justice Sonia Sotomayor appeared the most sympathetic toward allowing state tort suits against the drug companies. If the vaccine court is the only recourse for vaccine victims, she said, "what would motivate" vaccine makers to produce the safest possible vaccines? Sullivan said the U.S. Food and Drug Administration works closely with the manufacturers in an open process that is different from other kinds of drugs. Justices Ruth Bader Ginsburg and Anthony Kennedy also asked why, if Congress meant to pre-empt state court litigation over vaccines, it did not say so explicitly in the law.