We received positive feedback on our recent post on the Vaccine Act, so a recent Sixth Circuit opinion affirming a dismissal under the Act caught our eye.  In our last post, we described how the Vaccine Act sets up a no-fault claims process that claimants have to exhaust before they can sue in a court of law.  That is to say, someone claiming an injury caused by a vaccine has to file first in the “Vaccine Court” and then appeal to the Court of Federal Claims.  You can file a traditional tort lawsuit only after completing this process.

There is, however, an exception, which the Sixth Circuit covered in Powers v. Merck & Co., No. 18-4001, 2019 WL 3226311 (6th Cir. July 17, 2019).  If the injury is associated with “an adulterant or contaminant intentionally added to such a vaccine,” then it is not a vaccine-related injury and the Vaccine Act’s exhaustion requirement does not apply.  42 U.S.C. § 300aa-33(5).  We can’t disagree with that.  If someone intentionally messes with a vaccine and it hurts someone, then the patient should have a remedy.

The facts of Powers v. Merck were different.  The plaintiffs tried to horn themselves into the exception by alleging that the vaccine manufacturer intentionally added a particular viral DNA “to the formula” for its vaccine and arguing that the DNA was an “adulterant or contaminant intentionally added.”  Powers, at *1-*2.

But the DNA was an intended component, i.e., part of “the formula,” so it was clearly not an “adulterant or contaminant.”  The Sixth Circuit put it this way:

[V]iral HPV DNA is neither an adulterant nor a contaminant and is, instead, a component of [the vaccine].  As a result, the [plaintiffs] failed to allege that [their child] received a contaminated vaccine and did not suffer a vaccine-related injury.

. . . .  Simply labeling it as a contaminant and claiming that [the manufacturer] intentionally added it to the formula is not enough.

Id. at *2 (citation omitted).  This reasoning is right and true.  A contaminant or adulterant is something that “does not belong” [id.], and an intended ingredient cannot fall into that category.

So the plaintiffs had to exhaust the Vaccine Act process first, which they did not.  Moreover, they were not entitled to discovery because a party “may not use the discovery process to obtain [the facts necessary to state a claim] after filing suit.”  Id.  The result is a dismissal affirmed in an admirably direct opinion.  Short and sweet.  Sometimes that’s the best way.