Vaccine Act JC With DPH Changes

This is the next of a series of columns on how the law can impact your life. Each month we will focus on various aspects of the law relating to personal injuries, those that happen both on-the-job and otherwise, including mishaps which occur in driving vehicles, using products and receiving medical care. The column will also respond to legal questions relating to personal injury that are sent to us.

Healy Scanlon Law Firm is comprised of eight trial attorneys, two of whom are from Ireland. We are located downtown at 111 West Washington Street, Suite 1425, Chicago, Illinois 60602 (312-226-4236). The firm concentrates in the representation of injured victims of all types of accidents.

Readers are encouraged to call or write with questions concerning personal injury law.

A preamble is required for context: “Populism isn’t.” A look behind the forces that are manipulating current discourse. Often big business funding and fomenting “populist” ire and doing so far their own interests. Often their interests are direct opposite of those of normal Americans.

TOO MANY FACTS The United States Supreme Court recently heard oral argument in the matter of Bruesewitz v. Wyeth, which is a case involving the family of a child who alleges that their six-month old daughter developed a seizure disorder and mental disability shortly after receiving a dose of Wyeth’s DPT vaccine. The family alleged that the vaccine was defectively designed. The case was dismissed when the vaccine court (explain vaccine court) ruled that the family failed to prove the vaccine caused the seizures. However, the vaccine court process did not allow for discovery from the vaccine maker. In other words, the Bruesewitz were prohibited from obtaining many of the documents that may have helped them prove their case.

The Bruesewitz then filed a claim in State Court alleging that the vaccine was defectively designed. In State Court, the manufacturer would be required to comply with the document discovery that was restricted in vaccine court. The Bruesewitzes would then have to prove that the vaccine injured their daughter, a safer alternative existed and because of that the vaccine that Wyeth marketed was unnecessarily dangerous.

Wyeth then filed a motion claiming that the National Child Vaccine Injury Act of 1986 preempted all state law design defect cases for vaccine. Essentially arguing that the Federal Vaccine Act trumps any State law claim and the matter should once again be dismissed. It is believed that there are 5,000 other claims out there waiting to be pursued on behalf of families whose children were seriously and irreparably harmed by the vaccine. The Supreme Court took the case under advisement.

This is yet another example of big businesses looking to the government for protection from the ordinary citizen. It is ironic that this is happening at a time when there is a current “movement” for less government. Often these “movements” advertisements and media campaigns are titled the “Citizens for Smaller Government,” “Citizens for Less Taxes” etc., etc., but funded by business groups through the local chamber of commerce. The concern from big businesses that pharmaceutical firms would be driven to stop making vaccines due to the expense of defending design defect cases. However, if the Vaccine Act preempts such lawsuits, then people who suffer serious, permanent and devastating injuries that are avoidable in normal practice would be prohibited from receiving fair compensation.

It is another in a series of cases filed by big business manufacturers attempting or requesting that the government protect them from jury decisions in State Court. It is ironic that in many incidences the same entities, organizations or people who are advocating smaller government are requesting that the government step in and protect them from their cases being heard by what is perceived to be a jury of their peers. In a further ironical NOT A WORD twist (hypocritical), there is further irony in that a recent Supreme Court decision has determined that corporations are in fact people and can participate in the election process by donating to campaigns.

In Citizens United v. Federal Election Commission, the Supreme Court ruled that political spending is a form of protected speech under the First Amendment, and the government may not keep corporations from spending money to support or denounce individual candidates in elections. The court overruled a previous decision that said in part that “the corrosive and distorting effects of immense aggregation of wealth that are accumulated with the help of corporation form and that have little or no correlation to the public’s support for the corporations political ideas. Obviously, the amount of influence a corporation, foreign or otherwise, can have on upcoming elections is unbelievable. Can Joe Citizen compete with corporate advertising dollars? The answer is obvious.

It appears that big business would like to have their cake and eat it.

On a more local level, we have seen a similar tactics pursued in the attempt to unseat Thomas Kilbride following

medical malpractice in the case of Lebron v. Gottlieb Memorial Hospital.

I THINK FACTS ARE PRETTY EGREGIOUSAbigail Lebron is a thirteen-month old girl who suffered a severe brain injury during birth at Gottlieb Memorial Hospital in Melrose Park. At the time of filing her lawsuit, there existed in Illinois a cap on non-economic damages of $500,000 in cases against doctors and $1,000,000 against hospitals. The family challenged the caps stating that there were unconstitutional in that they violated the Illinois Constitute Separation of Powers clause, because the State Legislature cannot and should not interfere with the right of juries and judges to determine fair damages.

A Cook County Circuit Court judge ruled that the case did in fact violate the Separation of Power clause. The matter was appealed to the Illinois Supreme Court where the court ruled that caps on medical malpractice awards for pain and suffering were unconstitutional. The court went on to say that its decision was based, as it must be, on the binding provisions of the State Constitution and a case law interpreting the same. The court further went on to say that although they did not expect the members of this court will always agree on as to what the law is, or how to apply the law to give it a case, we do expect that our disagreements will focus on the legal issues providing a level of discourse appropriate to the State’s highest court. The emotion and political rhetoric that is ill-suited to this pursuit.

Needless to say, the insurance companies that insure doctors and hospitals in medical malpractice matters were not pleased with the ruling and criticized the ruling. Moreover, a number of bodies including the Illinois Chamber of Commerce have now targeted Justices who ruled against caps and in favor of the Lebron family (patient’s rights) in upcoming election. The media campaign against the judges often focuses on criminal matters in which the judges have ruled when the underlying reasoning for such a campaign not to have the judge retained is in fact the ruling in the medical malpractice case of Lebron. Once again, it is ironic that big business and insurance companies do not want to be subject to the laws that ordinary citizens are in Illinois State Court where the matters are heard by a twelve person jury of their peers, that the laws and rules of our legal system are enforced by the judges to protect both defendants and plaintiffs equally, and a fair judgment is determined. Less government when it suits them.

These same protections and caps are not provided to the ordinary citizens who are subject to claims in State Court. Yet these corporations have claimed in the United States Supreme Court that they would like to be considered citizens for purposes of donating, influencing and persuading election campaigns through their donations, and yet they ask the same court for protection from juries of their peers. Each time an individual citizen takes on one of these corporations in State or Federal Court, it is literally David and Goliath situation as the citizen is relying on the skills of his lawyer that they have chosen in pursuing a claim against an entity that has unlimited resources to fight the claim through attorneys, appeals, etc. or otherwise.

The last two years saw two stunning bankruptcies unprecedented in size and scope in the US. DaimlerChrysler and GM, two of the “Big Three” auto manufacturers filed for bankruptcy protection. GM’s arrangement called for the USA to gain 61% ownership of GM in exchange for a loans of operating capital from the US and the discharge of massive debts through bankruptcy. Some of the loans have been repaid and the “new” GM is poised to generate approximately $2.2 billion in profits in 2010. GM’s pending IPO is causing positive buzz in the financial analyst circles. However, GM’s current success comes at a huge cost. Firstly, GM extinguished the claims of consumers injured by its faulty products. Those victims will not get a day in court and GM and DaimlerChrysler will pay essentially nothing to it’s victims. The manufacturers were able to simply walk away from claims brought by persons injured by their defective products. Those with ongoing catastrophic injuries who don’t have health insurance will fall to the state and federal Medicare and Social Security systems instead of being able to force GM to pay damages caused by its defective products. Moreover, GM operates the country’s largest pension fund. It still has approximately 800,000 United Auto Workers and white collar workers entitled to GM’s defined benefit plans. GM’s plans are currently underfunded by $17.1 billion. DaimlerChrysler suffers from a similar, but smaller problem. These pension and benefit plans will require massive payments from the auto manufacturers to ensure their viability. If the plans remain underfunded, taxpayers run the risk of the plans being taken over by the government-run Pension Benefit Guaranty Group, which will pay retirees a fraction of the benefits they are entitled to. These PBGG benefits are capped at $54,000 per year, far less than what is owed. Meanwhile, lawyers, accountants and consultants overseeing the GM bankruptcy are set to make huge gains for their work in overseeing GM’s restructuring. Reports suggest that fees from the GM bankruptcy alone will be about $1.2 billion, far exceeding the $750 million generated by the Enron bankruptcy. The fees are racked up by attorneys billing $950 per hour and associates billing $495 to $600 per hour. Other support staff, consultants and administrators bill by the hour. Those fees are paid out of the estate of the bankrupt company, before other claimants see any recovery.

By: Jack Cannon