Among other closely watched cases curretnly pending before the U.S. Supreme Court is Bruesewitz v Wyeth, Inc., No.09-152.

 At issue is the scope of the express preemption provision in the National Childhood Vaccine Injury Act of 1986, which created a federal compensation program for those allegedly injured by vaccination side effects. The petitioners challenge a Third Circuit Court of Appeals interpretation that the law preempts all vaccine design defect claims, whether the vaccine’s side effects were unavoidable or not. Section 22(b)(1) provides that certain design defect claims cannot be brought against vaccine manufacturers “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.”

Argued on October 12, 2010, the case apparently divided the justices some of whom were concerned that allowing lawsuits against drug makers outside the compensation system could cripple the industry. Other justices reportedly suggested that vaccine manufacturers might have no incentive to produce the safest possible vaccines if the vaccine court is the only recourse for “vaccine victims.” Justice Elena Kagan did not participate in oral argument; she recused herself because as solicitor general she urged the Court to grant review in Bruesewitz. Chief Justice John Roberts initially recused himself from hearing the case because he owned Wyeth stock, but has since sold the stock and rejoined the case. If the Court splits 4-4 over the matter, the Third Circuit ruling in Wyeth’s favor will stand. See Law.com, October 13, 2010.