The world order has been restored.  The clouds have parted, and all today is in perfect resonant harmony.  Ok, we are exaggerating.  A lot.  But we are pleased to report that at least one federal district court has correctly interpreted and applied the PREP Act.  We are sure you are as relieved as we are. 

Last term the newly empowered conservative majority on the Supreme Court demonstrated to all that precedent is not so precedential, even when it had stood for nearly fifty years.  They very nearly did it again, but just missed, targeting precedent on religious exemptions and vaccine mandates that has been around for more than twice as long.

Continue Reading Vaccine Mandates and Religion at the Supreme Court

Happy Star Wars Day. May the Fourth be with you.

If all FDA approved medicines enjoyed the preemption protection that vaccines do, the DDL product liability litigation landscape would be leaner and less nonsensical. Flores v. Merck & Co., 2022 U.S. Dist. LEXIS 46442 (D. Nev. March 16, 2022), shows why that is so.

We have decried several times plaintiffs’ tendency in prescription medical product litigation, particularly mass torts, to try to sue into submission their opponents in scientific debates.  This often takes the form of lawsuits alleging that journal articles, continuing medical education, and other forms of scientific discussion are actionable “misrepresentations.” We said some time ago:

These days, you are probably expecting a vaccine post to be about Covid.  And while we are sure we are not done with litigation in that field, for today at least we thought we would harken back to a good, old-fashioned, garden variety vaccine products liability case and some tried and true preemption.

The plaintiff

As we mentioned in last year’s comprehensive “Survival of the Vaxxest” blogpost on the constitutionality (for over a century) of governmental vaccine mandates, there is no appellate precedent requiring any sort of religious exemption to such mandates.  Freedom of religion does not mean freedom to infect everyone else.

While some jurisdictions allow exceptions

Using its increasingly notorious “shadow docket,” the United States Supreme Court recently stayed operation of the COVID-19 vaccine mandate that the Occupational Safety and Health Administration (“OSHA”) had imposed on large (more than 100 employees) employers nationwide.  See National Federation of Independent Businesses v. OSHA, ___ S. Ct. ___, 2022 WL 120952

In Hayes v. University Health Shreveport, LLC, 2022 WL 71607 (La. Jan. 7, 2022), the Louisiana Supreme Court ruled that a hospital – or any other private employer – may impose an absolute vaccination requirement and fire any employee who fails to comply. The case involved medical centers that notified all employees that they

Today’s somewhat unusual guest post is by Reed Smith‘s Matt Loughran.  It concern’s the Supreme Court’s 6-3 decision to permit the government to continue enforcement of its requirement that healthcare workers (at least those in facilities that accept Medicare/Medicaid, which is most of them) be vaccinated to avoid infecting themselves and their patients