The other day the Pennsylvania Superior Court (an intermediate appellate court), sitting en banc no less, decided to weigh in on Vaccine Act preemption.  See Wright v. Aventis Pasteur, Inc., 2011 Pa. Super 9, slip op. (Pa. Super Jan. 11, 2011).  Briefly, the court did the same thing as the intermediate Georgia court did in the Ferarri case a couple of years ago.  We were pretty indignant then, and for those of you wanting a refresher in why the Wright/Ferrari rationale is internally inconsistent and generally full of baloney, go here.

We were pretty exercised about Ferarri then, but not so much about Wright now.

Why?

Easy.  Whatever Wright has to say about things is irrelevant.  The same issue has been teed up, briefed, argued, and could be decided any day by the United States Supreme Court in Bruesewitz.  Federal preemption is … well … federal, and what the Supreme Court decides will govern.

So we really don’t care that much.  Which leads us to the uncomfortable question why the Pennsylvania Superior Court bothered in the first place.  With the issue to be definitively decided by a higher court, whether a lower court is judicious or just plain lazy, we’d expect it to hold off and wait for the higher court to rule.  For some reason, here, the Pennsylvania Superior Court rushed to throw in its anti-preemption (on the big design defect issue) two cents ahead of the Supreme Court’s Bruesewitz opinion.  Sort of reminds us of something we did as kids – putting pennies on railroad tracks.

We won’t speculate as to why the Superior Court did what it did, as that would require us to psychoanalyze the judges – or at least take a look at their campaign finance reports.   We only hope it ends up getting reversed for its trouble.