On September 25, 2012, the Ninth Circuit found that vaccine-related strict products liability and negligence claims based on design defect and failure to warn are federally preempted, upholding a grant of summary judgment in favor of Merck & Co., Inc. Plaintiffs brought a wrongful death suit against Merck, alleging that their child died as a result of having taken a vaccine, M-M-R II, that was manufactured and distributed by Merck.

The appeals court ruled that Plaintiffs’ design defect and failure to warn claims were preempted by the National Childhood Vaccine Injury Act of 1986. Congress enacted the Act to balance protecting the stability of the U.S.’s vaccine program against the need for vaccine-injured persons to obtain compensation. The Act established a “no fault” compensation program, whereby injured parties could easily obtain damage awards from “Vaccine Courts.” However, parents/legal representatives are not allowed to file for compensation in Vaccine Court for their individual damages.

Plaintiffs argued that because they were unable to apply for compensation through the Vaccine Court, the Act’s tort liability provisions should not apply to their state court claims. The appeals court disagreed and construed the Act broadly, specifically noting that Section 22 of the Act preempts all design defect and failure to warn claims for injuries occurring from the “unavoidable” side effects of vaccines, not only those claims that were first brought before a Vaccine Court. The court in its decision continuously cited to Congress’ intention to prevent wide-scale state regulation of tort suits against vaccine makers for its preemption rationale.

However, the appeals court also asserted that the Act does not otherwise foreclose state law claims. Plaintiffs still have a remedy in pursuing breach of warranty and punitive damages claims as part of their wrongful death suit. In addition, through a separate government fund created by this Act, Plaintiffs had received $250,000 following the death of their son.

For more information, please refer to Erin Holmes et al. v. Merck & Co. Inc., No. 08-16557, in the U.S. Court of Appeals for the Ninth Circuit.