So the too-long; didn’t read answer is – It depends but they can, under certain circumstances. For example, there’s a class action lawsuit against Merck about the mumps vaccine – Mumps is the second M in MMR by the way. For the people who are so much smarter than the global scientific-and-medical consensus plus economists plus mathematicians plus immunologists, biologists, and chemists and all other relevant fields, I must beg your indulgence while I catch all the sheeple up.
Specifically, it depends on many many factors. Now, there’s three things to cover here – the unavoidably unsafe thing and the zero liability thing. There’s also the statute of limitations thing to cover.
I’ll deal with the unavoidably unsafe thing first because it’s much much simpler to deal with. First, of all, no, the Supreme court did not declare vaccines unavoidably unsafe. Read the case for yourself. Secondly, unavoidably unsafe does not mean what AOA et al think it does. Ohio has a nice read on this subject. This site has a nice read on the definition of unavoidably unsafe – I’d like to draw your attention to the following:
Utility vs. Risk
The utility or usefulness of the product must outweigh its risk of danger. For example, if a drug cures a mild case of hiccups, but causes death in half the people who use it, it wouldn’t be unavoidably unsafe. A product doesn’t need to save lives to be considered useful. Products ranging from birth control to beauty products have been found to be sufficiently useful to warrant the risk associated with their use.
So now, that the unavoidably unsafe thing is covered…we can move on to It’s the exception that proves the rule saying. In colloquial speech, the ‘prove’ should be taken to mean ‘test’ as in: The proof [or test] of the pudding is in the eating.
In legal speech, however, it is short for a legal maxim – that runs roughly thus: The exception [in being stated] proves [the existence of] the rule [in cases not excepted]. The Latin for this is exceptio probat regulam in casibus non exceptis.
Those ‘No Parking on Sundays’ signs are stating an exception to the general rule of ‘Parking is allowed’ and they legally give you implicit permission to park there the other six days of the week because otherwise, the sign would just say ‘No Parking’ and leave it at that. You can read more information on this here, there and everywhere.
Of course, those of you who are so much smarter than all of the above already knew this so I’m sorry for wasting your time with that side-track that unfortunately had to be done for the sheeple. We can actually answer the question now!
So…let’s see. The relevant law that applies is this one:
No vaccinemanufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of avaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.
Let’s translate this from legalese into more everyday speech using that principle of The exception [in being stated] proves [the existence of] the rule [in cases not excepted]. We’ll deal with the statute of limitations later on in this post.
What it’s saying is that:
Vaccine manufacturers shall be held liable in a civil action….if the administration of the vaccine was before October 1st, 1988 and it’s their fault.*
Vaccine manufactures shall be held liable if the injury or death was improperly prepared or improperly labelled.
Can you see any other things there?
[Vitamin K is not a vaccine but it makes a good example. If the Vitamin K was a vaccine and did not have a black box warning not to inject into veins then the manufacturer may have been held liable under the labeling defect part. As it is, it does have a black box warning so they can’t be. ]
WARNING: THIS DOES NOT MEAN THAT YOU CANNOT BE MADE WHOLE. What it means is that your complaint is with the administering doctor/nurse/other medical personell since the lack of labelling defect makes it their fault. In other words, you have a malpractice case against the administering medical professional and not one against the vaccine manufacturer. Which makes sense, right?
Because if the plane crashes because the pilot is drunk, you have a case against the pilot, probably the airline but not against the people who made the plane. (I mean, you might if they forced alcohol down the pilot’s throat but even then, it would be against the people who happened to do that and that they made the plane would be irrelevant at that point). Same thing.
And now, for the zero limitations thing. So yes, while design defects are protected, it is still completely possible to sue for labelling and manufacturing defects and this is just product liability. (And by the way, if the vaccine isn’t covered under the VCIP then the interpretation does not apply and you can attempt to sue for anything in state court).
Now, yes, you do have to go through the NVICP first in a lot of cases. And some people (no, not AOA et al – they are far too clever to fall for this common myth) would go ‘AHA! See! By the time, you’ve done that, your state’s statute of limitation has long since expired so you can’t.’
Yes, it would be deeply … well… unjust to penalize people for the administrative claim and the American justice system recongises this too. The patch for this one is called equitable tolling – it’s a stopwatch and not a clock – the stopwatch is stopped while you go through the administrative claim.
I’ll let Todd W. finish this one:
” As long as you filed your original administrative claim on time and in good faith, the statute of limitations would not bar you from additional actions simply because the administrative proceedings took a long time. “