In the 1980s, when a wave of complicated, expensive, and hard to prove lawsuits against the vaccine industry threatened to drive many manufacturers out of the market and subsequently cause a public health crisis, Congress stepped in and enacted the Vaccine Act which created the National Vaccine Injury Compensation Program. It is designed to strike
The intersection of the PREP Act federal immunity statute and constitutional law continues to shape the landscape of COVID-19 vaccine litigation. In Searcy v. Pfizer, Inc., __ F. Supp. 3d __, 2025 U.S. Dist. LEXIS 186682, 2025 WL 2713736 (M.D. Ala. Sept. 23, 2025), the Middle District of Alabama addressed a wrongful death action
Have you ever heard of the “Presentment Clause” to the United States Constitution? U.S. Const. Art. I §, cl. 2. While we can’t say that we had never heard of it – we are aware of presidential vetoes, pocket vetoes, and such – we had never had occasion to consider it in the context of the legal work we do defending prescription medical product liability litigation. That changed with In re Gardasil Products Liability Litigation, ___ F.4th ___, 2025 WL 2535105 (4th Cir. Sept. 4, 2025), which we recently discussed, here.Continue Reading Presenting the Presentment Clause
As we have riffed on before, staying apolitical when discussing the science and law implicated by our posts can be harder than one might expect. That has become increasingly true with regard to litigation over alleged injuries from vaccines, to say nothing of vaccine mandates for public health. It was not terribly
Back in 2021, COVID-19 vaccines were becoming widely available, and we saw the likelihood of vaccine mandates on the horizon. We researched the legal implications, and it didn’t take us long to figure out that Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), is the 500-pound gorilla precedent in this area. An anti-vaxxer in Jacobson claimed that Due Process precluded him from being prosecuted for violating a municipal mandatory smallpox vaccination order. He lost:
[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.
197 U.S. at 26 (emphasis added).
But the Jacobson gorilla is a silverback – decided well over a century ago at a time when “Due Process” often meant something much different than it does today (Jacobson was decided in the same term as Lochner v. New York, 198 U.S. 45 (1905)). Thus we devoted our “Survival of the Vaxxest” post to marshalling all of the precedent that had followed Jacobson during those 116 years, including several more recent Supreme Court decisions: Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 888-89 (1990); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944); Zucht v. King, 260 U.S. 174, 176 (1922), see South Bay United Pentecostal Church v. Newsom, ___ U.S. ___, 140 S. Ct. 1613, 1613-14 (2020) (Roberts, C.J. concurring in denial of certiorari). We did that so that those defending vaccination requirements wouldn’t have to, since they might not have the kind of resources that we, as big-firm lawyers, do.
It is now over four years later. How well did Jacobson weather the COVID-19 storm?
As this post demonstrates, pretty well.Continue Reading Jacobson Weathers Its Second Pandemic
We’ve gleefully detailed the plaintiffs’ utter failure in the Zostavax MDL to establish causation. Now, the Gardasil MDL likewise seems well on the way to a place on the list (along with Bone Screw, Aredia/Zometa, Taxotere, and Zantac) of MDLs that plaintiffs’ counsel wish they’d given a miss. Maybe plaintiffs will
Here at the DDL Blog, we love phrases denoting that two things are acting together or in close succession to produce a result. We have written more than once on the “one-two punch” of causation and implied preemption, and who doesn’t appreciate a good “double whammy” in whatever context? Cases with
When a federal agency reverses course, the Supreme Court has a test to determine whether that agency action is impermissibly “arbitrary and capricious.” FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), set the current APA standard for review of federal agency flipflops. While no “heightened standard” exists under the APA for reversals
What is the meaning of our brief time on Earth? is there life after death? Is there a God? If so, why would The Almighty permit so much wickedness and suffering in the world? How can one explain the existence of contention interrogatories?
Unlike the Drug and Device Law Daughter, who attended Divinity School, we
Prologue: Many years ago, our litigation practice included representation of a couple of film studios. While it was fun to visit backlots and (literally) bump into movie stars, we discovered that discovery, research, and motion practice were not necessarily any more exciting due to involvement of above-the-line talent. Contract law is still contract law, even