We say today’s case is about SIRVA (shoulder injury related to vaccine administration), but plaintiff tried her best to run from that allegation in her opposition to defendants’ motion to dismiss. That’s because a SIRVA case runs up against not only a preemption obstacle, but also serious duty and causation barriers. But since the court
Thirteen years litigating the same case is a looooong time. Absurdly long. Long enough for an attorney working on the case to go from an associate learning to coax a newborn to sleep, to a partner juggling teen school and soccer commitments. Long enough for lawyers to migrate from Blackberrys and voicemail, to smart phones
We recently commented on claimants who manipulate and evade the Vaccine Act by making vaccine claims, only then to make no effort to pursue them. Their play is to abandon their claims after the statutory 240-day waiting period and file lawsuits, where they stand a better chance of recovering more money. Because we think the
If we had forgotten that there continue to be abundant U.S. cases of COVID-19, then there was plenty around us to remind us. Public mask usage seems to have increased. We heard how the “tripledemic” of viruses had made hospital beds scarce. We have had colleagues out of commission instead of completing our assignments. The
Our doctor advised it would not be a good idea for us to get Covid-19. We already wheeze after ascending the stairs or rolling the garbage bin to the curb or opening the mail, so any further respiratory burden seems like a bad idea. Thus, even though some have declared the pandemic over, we remain cautious. Good luck inviting us to any public place. Pascal may have said that all of humanity’s problems stem from man’s inability to sit quietly in a room alone, but he wasn’t talking about us. We’re quite happy to avoid the madding and infectious crowds by sitting home with a good book or mediocre tv show, or by planting a nose against the kitchen window, watching the red shouldered hawk wait for dinner to show up at the pond. You might even say that we live deliberately.
Our doctor also advised us to get every Covid booster vaccination as soon as possible, and we have done so. Some of our Twitter acquaintances and frenemies have told us that the boosters will kill us or will permit Melinda Gates to spy on our every movement. Those threats do not bother us. If anyone is going to go through all the trouble to plant a chip in our arm, they’re probably not looking to bump us off any time soon. And, as mentioned above, we don’t actually engage in a lot of movement, so fair play to anyone who chooses to spy on us. We’ll be a stationary dot on the screen, reading The New Yorker or glaring outside at the geese.
So, yes, we are unabashedly pro-vax. Bring on the hate emails. We’ll toss the virtual missives into the virtual fireplace. And we’ll wish you good luck.
But we do not wish good luck to litigants challenging vaccine mandates. When governments or employers insist that public-facing employees must be vaccinated in order to perform their jobs, we are relieved and grateful. If employees decide to give up their jobs rather than be vaccinated against Covid, we shake our heads at their tenacity and grieve for their health, but so be it. We might call it a remarkable sacrifice, or a stupid sacrifice. Or a remarkably stupid sacrifice. And yet, in truth, some employees do not want to sacrifice anything. They want to remain unvaxxed “truebloods,” inflicting their viral silliness on the rest of us. Luckily, pretty much every time the antivaxxers sue to get their way, they lose.
Continue Reading Court Upholds Washington State Covid-19 Vaccine Mandates
Earlier this year we blogged about the Lone Pine order entered in the Zostavax MDL that required those plaintiffs alleging that the anti-shingles vaccine caused them to get shingles (1,189 of them) to produce evidence of specific causation by means of a PCR test. The goal of the Lone Pine order was to winnow out non-meritorious claims. That was Part 1. Defendant’s motion to dismiss all 1,189 plaintiffs because not a single one produced the required test result or even asked for an extension – that was Part 2. Without evidence of specific causation, the court dismissed about half the cases in the MDL.
Shingles are caused by the same virus that also causes chicken pox, although the adult disease shingles is much more dangerous. The virus remains in the body for life and can either lie dormant or reactivate and cause shingles. Almost everyone over the age of 30 in the United States has had chicken pox and therefore carries the “wild-type virus” in their systems. In re Zostavax Products Liability Litigation, 2022 WL 17477553, *2 (E.D. Pa. Dec. 6, 2022). The vaccine consists of the Oka strain of the virus, a live-attenuated virus that is a weakened form of the wild-type. Defendant presented “uncontradicted medical authority” that the only way to know whether a person’s shingles was caused by the wild-type virus or the Oka strain is through a PCR test. In fact, plaintiffs’ own expert testified that specific causation could only be determined with a PCR test. Id. That is the same expert who failed to perform a differential diagnosis ruling out the wild-type virus in 5 bellwether cases that were therefore dismissed on summary judgment. That is what led to the entry of the Lone Pine order. If none of the bellwether plaintiffs had sufficient causation evidence, the court wanted to know which plaintiffs did.
Continue Reading Lone Pine Stands Tall in Zostavax MDL — Part 2
Some of us on the Blog are veterans of the original vaccine wars – those that preceded the enactment of the Vaccine Act, 42 U.S.C. §§300aa-10, et seq. That litigation, involving DTP and certain other childhood vaccines, nearly destroyed this country’s ability to vaccinate its children against often deadly diseases – much to the delight of antivaxxers everywhere. After Congress acted in 1986, much to the delight of everyone else, the Act’s alternative compensation system, combined with its strong preemption provisions restricting post-compensation system litigation have largely restored the nation’s childhood vaccine supply to a sound footing. The Supreme Court did its part in Bruesewitz v. Wyeth LLC, 562 U.S. 223, 231-33 (2011), holding that the Vaccine Act preempted all design defect claims asserted by claimants who rejected Vaccine Act awards and sought to litigate their claims instead.
When we let it be known we were going to ACI in New York City this week, several friends expressed concern that we might finally lose the virus lottery and contract Covid-19. There does, indeed, seem to be a recent uptick in Covid cases. But we are vaccinated and boostered, plus no one gets that close to us anyway. We are big on what Nietzsche called the pathos of distance. We are even bigger on following the medical consensus and submitting to the latest jabs.
We don’t understand the skepticism or even outright antipathy toward vaccinations, no matter which ones. They are a blessing, not an incursion on our rights. If you want to see an actual incursion on civil rights, look halfway around the world and watch what a truly authoritarian country does to its population in the face of a pandemic. Severe Covid lockdowns happen in such a place because the country lacks an effective vaccine. Put another way, vaccines are liberating.
Still, on the home front, there is plenty of bellyaching about vaccine mandates. Our Twitter feed lately has been besieged with complaints about how soldiers have left the military as a result of vaccine mandates. But those numbers are quite small, soldiers are supposed to take orders, they are forced to endure a whole host of other vaccinations, and there is ample precedent for military vaccination requirements. Or have you never heard of George Washington and his efforts to prevent smallpox among his troops?
Continue Reading No Unemployment Comp Benefits for Worker Discharged for Vaccine Refusal
We’re happy to report on a couple of favorable decisions involving some of the COVID-19-related issues that the Blog has been covering. We have one each on ivermectin injunctions, Shoemaker v. UPMC, ___ A.3d ___, 2022 WL 4372772 (Pa. Super. Sept. 22, 2022), and vaccine mandates, Children’s Health Defense, Inc. v. Rutgers, 2022 WL 4377515 (D.N.J. Sept. 22, 2022).
We listen to the This American Life show on National Public Radio most weeks, and it often reveals interesting things about, uh, this American life. On Saturday, as we drove around the Main Line doing chores, we listened to a This American Life program that illustrated the Tolstoyan ditty about how unhappy families are each