Two years ago we posted on whether courts could exclude prospective jurors for cause because they weren’t vaccinated. Not much precedent was then available.
Now, with United States v. O’Lear, 2024 WL 79971 (6th Cir. Jan. 8, 2024), we get the first published appellate decision on the topic, affirming the exclusion. (The Ninth Circuit
We have no inclination to mess with Texas. Heck, a state ornery enough to secede from two different countries in order to preserve slavery isn’t likely to care, anyway. So if Texas wants to run its own power grid, not connect to the rest of us, and freeze in the dark when that system fails, we’re certainly not going to stand in the way. Conversely, when Texas emphatically adopted the learned intermediary rule in Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012), we hailed it as the best decision of 2012.
But when Texas decides to mess with the rest of us…. Well, that’s different.
So we do have comments on the bizarre complaint that the Texas attorney general recently filed over COVID-19. The complaint, brought under the Texas consumer protection statute, sued a major manufacturer of COVID-19 vaccine that was used to control the recent pandemic. That Complaint alleges various antivax conspiracy theories concerning COVID-19 vaccines, the FDA, emergency use authorizations, and the media that have circulated since these vaccines first became available. The Texas Complaint also claims that, in various ways, the vaccine manufacturer violated certain mandatory FDCA provisions and FDA regulations (¶22), did not follow voluntary FDA guidance (¶¶25-31), supposedly committed fraud on the FDA by submitting misleading data (¶¶47, 117, 120-21), and mostly that it purportedly misled the public and/or the press (¶¶50, 55-91, 154-55, 157-59, 161-63, 165-66, 168-69).Continue Reading A Texas Mess
We’ve discussed our Drug and Device Law Blog elder care duties before and how it has educated us about health issues faced by the senior population. Shingles is one health risk that increases as you get older. It is often described as a painful rash, but “painful rash” doesn’t really capture how bad shingles can
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.Continue Reading Terrible Decision Contravenes the Vaccine Act’s Purpose and Would Gut Its Protections