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The Supreme Court will hear oral argument in Bruesewitz v. Wyeth on Tuesday, October 12.  Our prior Bruesewitz posts are here.  We’ve taken a quick look at the briefs (look for #09-152), and offer the following points for argument watchers to look for:
(1) The most important interplay at oral argument will be how the intent of Congress to preempt (which is strong in the legislative history) illuminates the language that Congress actually used in the Vaccine Act’s preemption clause (which is not as clear).  The way the justices react to and balance these factors is probably the best indicator of their thinking.
(2) Is the Court interested in how the states, at the time the Vaccine Act was enacted, viewed Restatement §402A, comment k, since one of our, and later Wyeth’s, major arguments is that to interpret the statute the way plaintiffs read it would be to reduce the level of protection accorded by vaccine manufacturers in a number of large states.  If the Court is interested, that is a sign that the defendant’s argument has traction.
(3) Are the justices emphasizing the presumption against preemption?  If they are, then that’s a sign that the plaintiffs’ arguments have traction.
(4) How do the justices react to public policy arguments regarding the importance of vaccination to society? Justices who emphasize these societal policies, as opposed to countervailing individualized interests such as right to compensation, are likely to support a preemption finding.
If any of our readers are attending the argument and would be willing to write up a quick summary of the Bruesewitz oral argument, We’ll be happy to post it with the same recognition we’ve previously given our other intrepid reporters.