To my vaccine-concerned friends: stop saying that the Supreme Court decided that vaccines are “unavoidably unsafe.” It didn’t.

To my vaccine-concerned friends: stop saying that the Supreme Court decided that vaccines are “unavoidably unsafe.” It didn’t.

One of things that drives me crazy is when nonlawyers misstate the law. I have been informed by some of my vaccine-concerned friends that the Supreme Court actually stated that vaccines are “unavoidably unsafe,” and use the Supreme Court finding to support their argument that people should not be forced into vaccination because even the Supreme Court acknowledged how unsafe vaccines are.

I’m here to tell you that it never happened.

The Supreme Court has never held or decided or even affirmatively stated as a proposition of medical fact that vaccines are “unavoidably unsafe.” Those who make that incorrect assertion have misread or misstated the Supreme Court’s decision in Bruesewitz v Wyeth, LLC, decided in 2011.

The legal issue decidedin Bruesewitz v Wyeth, LLC

The issue in the case was whether after an adverse decision from the federal vaccine court, the alleged vaccine-injured party could pursue a state law, design-defect lawsuit. The district court dismissed the lawsuit on preemption grounds, and the court of appeals affirmed. The Supreme Court, per a majority opinion by Justice Scalia, affirmed, holding that all state law, design-defect vaccine injury lawsuits were preempted by the 1986 federal vaccine act.

Before taking a closer look at the decision, a point about how lawyers analyze cases (which we call “legal method”) and how appellate courts write opinions.

The precedential rule of law established in a case is often called the holding. In Bruesewitz, the rule of law or holding is that any and all state court design defect vaccine injury lawsuits are preempted by federal law.

Anything other than the holding is called dicta, and would include the discussions which the majority and dissent opinion writers put into their respective opinions to show that the other side is wrong. And that’s what happened in this case, which gave rise to the incorrect notion that the Supreme Court decided or stated that vaccines are “unavoidably unsafe.”

Justice Scalia focused on the key language supporting preemption:

“the Act expressly eliminates liability for a vaccine’s unavoidable, adverse side effects: “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine 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.”
(Page 5 of the opinion)

Here is a pdf of the opinion:

09-152

So, the vaccine statute does in fact suggest that some vaccines could have adverse effects which are unavoidable. But of course, all vaccine-concerned know that. What this language means is that as long as the vaccine was properly manufactured and proper warnings were given (and that means using the FDA approved labeling language, including warnings and contraindications) then a vaccine manufacturer can not be sued (outside of vaccine court) for any harm or side effects the vaccine caused.

One of the arguments which the vaccine-injured family made, which was adopted by the Supreme Court dissenters, was that the word “unavoidable” in the statute is a term of art, and refers to a comment in the Restatement of the Law on Torts.

We need to go sideways, times two, to explain:

What’s a Restatement?

Restatements are compilations the law by a group of legal scholars. They are like legal reference books which summarize the law on a given subject. They are not state specific. They relate the common or judge made law on a topic across the country. Restatements are not binding, but are frequently cited by judges, especially if there is no state case law on a legal point.

Products liability lawsuits

The easiest way to sue a product manufacture is to sue under a products liability theory because of strict liability, meaning you don’t have to show that the manufacturer was negligent.

There are three types or grounds for successful products liability cases: defective manufacturing, defecting warning, and defective design. It’s the third which was the basis of the vaccine injured plaintiff and the dissent’s argument.

Comment k to a Restatement section, states in effect that you can’t sue for products liability for “unavoidably unsafe products,” meaning, if there is no way to make the product safe or make a better designed product.

The dissent argued that because the vaccine statute used the word “unavoidable” that meant Congress intended to incorporate the “unavoidably unsafe products” concept from the Restatement section comment. (Note that Restatements don’t usually directly apply to, or interpret federal statutes, so to me the argument was pretty lame). With this and other arguments, the dissent tried to argue that not all vaccine design- defect lawsuits should be automatically preempted (and presumably only those where there is proof that the vaccine is “unavoidably unsafe,” and that would open the door to more involved litigation in this and all other similiar cases issue).

Scalia discussed this argument in his majority opinion and mentioned the “unavoidably unsafe products” language from the Restatement, discussed in the dissent’s opinion. Scalia said there was no indication that the authors of the statute intended that the statute be interpreted by the Restatement comment.

This oversimplifies things somewhat, but the important point is that while Scalia did quote the Restatement’s comment’s words, it was done in the context of the majority’s rejecting the application of the Restatement comment to the federal vaccine statute. (Scalia’s discussion of the Restatement comment is on pages 8-11. (I confess to having a hard time following some of his semantic points, but his esoterica is not relevant to my point in this post).

So, I’m thinking that if you’re using Bruesewitz to try to argue that even the Supreme Court acknowledged that vaccines are unavoidably unsafe, now would be a good time to stop.

Rick Jaffe, Esq.
www.rickjaffesquire.com
rickjaffeesquire@gmail.com

37 thoughts on “To my vaccine-concerned friends: stop saying that the Supreme Court decided that vaccines are “unavoidably unsafe.” It didn’t.

  1. if they have information from ex. the simpsonwood meeting and hid that information then did not recall thimerosal laden products..that would not fall under unavoidable..shouldn’t the group of children who developed tics after 2000 have the option to sue..they let the product” date out” at pediatric practices everywhere?

    1. I just completed a study with a stratified subset of kids with a 100% rate of exposure to maternal vaccines, (i.e., their mothers were vaccinated during the pregnancy). This group produced a 6.12% rate of birth defects. The National average for birth defects is just over 3%, and close to 50% of all pregnancies in the USA are now vaccinated. This was the 1st study ever to measure the rate of birth defects in those with a 100% rate of exposure to pregnancy vaccines. The implications are HORRIFYING. Anyone defending vaccines is UNEDUCATED, or they’re shilling for pharma, and in so doing, selling their very soul.

  2. I. IN BRUESEWITZ, THE THIRD CIRCUIT
    ELIMINATED RIGHTS THAT
    CONGRESS EXPRESSLY PROTECTED.
    While Congress wanted the Compensation
    Program to divert litigation from the traditional civil
    tort system, it never bestowed blanket immunity on
    vaccine manufacturers from all design defect claims.
    Congress preempted only those tort claims for
    “unavoidably unsafe” vaccines. Section 22(b)(1)
    states:
    [n]o vaccine manufacturer shall be
    liable in a civil action for damages
    arising from a vaccine-related injury or
    death … 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.

  3. Nothing you say can change the fact that vaccines have never been proven safe. No medicine is one-size-fits-all. And if you have any doubts, billions of dollars have been paid to those injured or killed after receiving vaccines by the vaccine injured Compensation fund.

  4. Hi Richard, I’ve been interested to read your article but the link you provide to the supreme court ((Page 5 of the opinion) goes to an ERROR: File or directory not found link. Do you have an updated/correct link?

  5. RIchard, you are referring to how vaccine manufacturers are protected from lawsuits, not whether vaccines are safe!

    If they have done everything possible to properly manufacture and administer the vaccine and someone dies as a result of taking that vaccine, then under the law, the manufacturer is not negligent. That does not alter the fact that the person died or was paralysed as a result of taking the vaccine, whether the manufacturer was negligent or not. The point is that vaccines cannot be guaranteed to be safe and therefore, we have a right to refuse.

    When someone argues that the Supreme Court found vaccines ‘unavoidably unsafe’, from the perspective of vaccine safety (NOT manufacturer negligence from a legal perspective), that is what is being argued and that is valid. So I strongly disagree with your assertion that the Supreme Court did not say that. It’s very clear that they did.

    This is why refusal of medical procedures is a human right.

      1. There is such a thing called intellectual bankrupt, which simplistically refers to a person that knows what is factually wrong, and yet he still argue in favor of it using nonsense, lies, slander, etc, including twisting the facts.

        In recent Global Vaccine Safety Summit, it is revealed that those who publicly say vaccines are safe are actually admitting the opposite behind closed doors. You can blame Dr. Soumya Swaminathan for being honest. Yes, it doesn’t pay to be honest these days, so that doctor has just “sinned” for being honest, albeit behind closed doors.

        In ACIP meeting in 2018, the CDC representative said they have no data to recommend using one vaccine in combination with another.

        I wonder if you are smart enough to understand what “no data” means in the context of deceiving people to take more than one vaccine at the same time as safe/fine/okay.

        Someone then said it is okay to take multiple vaccines if they are taken in different limbs or body parts. That sounds like we have as many separate blood circulation system as we have different limbs/body parts.

        And if that doesn’t sound stupid, it’s probably because stupid see, stupid do.

        Intellectual bankrupts.

        1. there is also such a thing as being obtuse whether because of lack or intellectual honesty or because of lack of ability to reason on a subject.
          stay tuned to another post on the issue which will explain why comments like yours miss the mark

  6. Vaccine manufacturers are exempt from any and all law suits. The vaccine damaged and families of those that died from vaccines are paid by the tax payers. And that is in the rare event that they are even compensated, as vaccine damage is denied repeatedly by doctors and big pharma. Vaccine makers are absolved of accountability because they know their vaccines are unsafe. Entitlement and privilege. Vaccines have never been tested to see if they cause cancer, infertility, or if they change our DNA. Why is this? Because they are dangerous!

    1. Actually Id like to direct you to a recently released book titled “Plague of corruption” the testing has been done to some degree but these agencies have dissovled and omitted the findings. (Conflict of interest)

  7. The CDC tells us how thousands of children got a debilitating condition called Narcolepsy from the SARS vaccine.

    Thimerosal, which is mercury, was banned from most vaccines EXCEPT some of the FLU vaccines. The flu vaccines that have the thimerosal are in large quantities. I wonder which communities get those? Hmmmmm. I also wonder why a banned substance in vaccines is still allowed to this day in the FLU vaccine. Uh huh.

    1. I didn’t know it was banned and how can it be banned if it’s still in flu vaccine? I know the agreed to eliminate it from childhood vaccines, but I think in california it is still in it per a provision which allows its use if the Cali AAP certifies there is not enough vaccines available without it, and they have so certified every year. That’s my understanding at least.

      1. You tell me?
        Source: Childrenshealthdefense.org:
        “The corruption has also poisoned CDC’s immunization safety office, the research arm that tests vaccines for safety and efficacy. In August 2014, seventeen-year CDC veteran, Dr. William Thompson, who is author of the principal study cited by CDC to exculpate mercury- preserved vaccines from the autism link, invoked whistleblower protection, and turned extensive agency files over to Congress. Thompson, who is still employed at CDC, says that for the past decade his superiors have pressured him and his fellow scientists to lie and manipulate data about the safety of the mercury-based preservative thimerosal to conceal its causative link to a suite of brain injuries, including autism.”

        “Thimerosal is 50% ethylmercury, which is far more toxic and persistent in the brain than the highly regulated methylmercury in fish. Hundreds of peer reviewed studies by leading government and university scientists show that thimerosal is a devastating brain poison linked to neurological disorders now epidemic in American children. My book, Thimerosal: Let the Science Speak, is a summary of these studies, which CDC and its credulous jour- nalists swear don’t exist. Although Thompson’s CDC and vaccine industry colleagues have created nine patently fraudulent and thoroughly discredited epidemiological studies to defend thimerosal, no published study shows thimerosal to be safe.”

          1. my blog, my decision to respond to what I want to respond to and what I think will advance information. FYI: I also have editorial right (as every blog owner has) not to post comments.

      1. Your rejection welcome and is sustained.

        Thank you for your response and your honesty. One thing I am certain of is Bill Gates has no medical background and no college degree. Yet, he continues to push his vaccines on the entire world. I most definitely do not consent to his poisons in my body. His vaccines have done enough damage, especially to women and children in other countries. He has fact checking articles written by individuals that work for him. Even though it is true that his vaccines has a sterility agent in them and sterilized hundreds of thousands of African women, their justice is still denied. We never consented to his vaccines then, though they are forced upon the African people. We certainly do not consent to them now with this new “rushed” vaccine, that will be the first ever RNA vaccine. He also plans to use Quantum dots and inject them into our skin as a tattoo to track our medical history. This is totalitarian, unethical and dangerous. Keep in mind, this man wants to depopulate the world. Even if the world is over-populated, Bill Gates is not God and he cannot decide when women will and will not reproduce. Is it wise to have a billionaire eugenicist forcing vaccines upon the world and profiting billions?

  8. If vaccines are not unavoidably unsafe, then are you saying vaccine manufacturers now have product liability and can be sued for millions or even billions?

    The way I understand it, the main reason why they are saying vaccines are unavoidably unsafe is to avoid getting sued.

    So if vaccines are not unavoidably unsafe, then we can now sue the manufacturers, no?

    Or do we still cannot sue them despite their vaccines are not unavoidably unsafe, as you imply?

    Do you want to have your cake and eat it too?

    1. just the opposite. If vaccines are “unavoidable unsafe” which is a concept/term of art in products liability law that means vaccine manufactures can’t be sued because there is no design defect, it’s unavoidably unsafe, like for example guns which can’t be designed not to kill people.

  9. Thank you for educating people about this. As a healthcare professional, the antivaxx movement is extraordinarily frustrating.

    1. It is frustrating to have so-called “healthcare professionals” be so blind and ignorant! Shameful!
      There is a place for drugs or vaccines…not the “only” place! Should not be biased/deceitful clinical testing…there should be no harmful additives and should be of the least damaging! Since industrialization….only thing that draws concern is the millions/ billions pharmaceuticals/medicine makes and what measures will be done to make sure there will be no loss! There are no concern for human immune systems…which drugs and vaccines do a great job of inhibiting!! Health/medicine and science needs to have a paradigm shift as health is declining rapidly! Ignorance to our environment‘s health may be the worst assault to our God given world!

  10. Thanks Richard for your clarification. I’m a physician, father of 3 and teacher of Functional Medicine. Although I believe the vaccine theory is promising, solid science is yet to be incorporated in the development and manufacturing of vaccines. We will see the day when the industry will be motivated to develop and manufacture vaccines free of known toxic compounds and potencially damaging substances. We will find a way to activate the response without using toxic compounds. We will then witness honest double blind placebo controlled safety studies. In the meanwhile, my personal recommendation is to educate oneself on the potencial toxic effects of the substances in desired vaccines, then to study how on can prepare the bodies biotransformation processes to quickly eliminate this substances. If possible, get vaccinated in a country where you can select the vaccines which are most important and where it is possible to get vaccines in lesser combinations. Boosting endogenous antioxidant synthesis and recycling, sopporting conjugation of xenobiotics, sopporting blood brain barrier resilience, supporting immune resilience, supporting antiinflammatory pathways, etc., are examples of astute things to do before vaccination to prepare the biological terrain. Never get vaccinated on top of a toxic lifestyle. That’s wishing for illness. Getting humanity off sugar, trans fats, ultra processed foods, excessive antibiotics, pesticides… its but, etc., and back onto what prompted its evolution, will take care of the more pressing pandemics. For some other secondary matters, there are vaccines, which can be used responsibly and astutely.

  11. I read enough of both this article and the ruling to know that you are correct and the supreme court didn’t state this as their own opinion, they were only quoting the other side in the matter. Please, everyone, LISTEN. I will never put another vaccine into my body because I’ve researched the scientific risks, but please do your research on the legal side of this. I implore you to read the CONTEXT and please don’t make our side look like morons by not doing proper research.

    1. Will Esther Hello! Do you have particular sources stating the scientific risks that you could share? Robert F. Kennedy, Jr. at Children’s Health Defense has information on many references and studies. Also, Vernon Coleman is a good resource. Have a great day and God bless!

    1. pithy and amusing comment thanks. I guess you are right because when there is a product which is necessary but unavoidably unsafe, the way congress and the states protect that product is by immunizing it from liability claims. My only point which has been widely misunderstood is that contray to the statements of many vaccine concerned, the Supreme Court never in fact held or stated that vaccines are “unavoidably unsafe” and by misrepresenting the court as saying so, you damage your credibility unnecessarily, and I don’t understand why saying that is so controversial.

  12. What is the truth anymore?!!!!
    Too many deceptions, brainwashed media/advertising, deliberate lies yet to be defended because of the wealthy in this world are above law, common sense, fairness, not protecting civil rights, only to make money and make more money…the root of all evil! I have been on the medical train that took over 40 years of my life to offer me zero resolve…only drugs that did nothing! And knowing I have been ill from day one…: makes me question just how much was caused from vaccinations , especially when siblings were not sickly in younger years… no history. No matter how this all plays out…through years of mind control with media, constant deception in what is TRULY safe…what health really should be…commercials advocate a healthy, wonderful life when you take a few drugs! The controlled media experts may be brainwashing the average JOE…but cannot brainwash GOD! God created this unbelievably remarkable world and our remarkable bodies that can be immune strong, deal with these lab made viruses(or nature’s viruses…ha-ha!) to actually heal from disease! But the wrong people are in charge to deter that possibility…eating quality foods from a well cared environment is so far from reality anymore! But I have faith the the righteous, good minded-hearted and God believing people will turn our hell around.. cannot brainwash God! Amen!

  13. What is the truth anymore?!!!!
    Too many deceptions, brainwashed media/advertising, deliberate lies yet to be defended because of the wealthy in this world are above law, common sense, fairness, not protecting civil rights, only to make money and make more money…the root of all evil! I have been on the medical train that took over 40 years of my life to offer me zero resolve…only drugs that did nothing! And knowing I have been ill from day one…: makes me question just how much was caused from vaccinations , especially when siblings were not sickly in younger years… no history. No matter how this all plays out…through years of mind control with media, constant deception in what is TRULY safe…what health really should be…commercials advocate a healthy, wonderful life when you take a few drugs! The controlled media experts may be brainwashing the average JOE..but not GOD! God created this unbelievably remarkable world and our remarkable bodies that can be immune strong, deal with these lab made viruses(or nature’s viruses…ha-ha!) to actually heal from disease! But the wrong people are in charge to deter that possibility…eating quality foods from a well cared environment is so far from reality anymore! But I have faith the the righteous, good minded-hearted and God believing people will turn our hell around.. cannot brainwash the almighty! Amen!

  14. “Unavoidably unsafe”
    https://www.law.cornell.edu/supct/html/09-152.ZD.html
    “ Subsection (b)—Unavoidable Adverse Side Effects; Direct Warnings .—This provision sets forth the principle contained in Comment K of Section 402A of the Restatement of Torts (Second) that a vaccine manufacturer should not be liable for injuries or deaths resulting from unavoidable side effects even though the vaccine was properly prepared and accompanied by proper directions and warnings.

    “The Committee has set forth Comment K in this bill because it intends that the principle in Comment K regarding ‘unavoidably unsafe’ products, i.e., those products which in the present state of human skill and knowledge cannot be made safe, apply to the vaccines covered in the bill and that such products not be the subject of liability in the tort system.” Id. , at 25–26.

    The Report expressly adopts comment k of §402A of the Restatement of Torts (Second) (1963–1964) (hereinafter Restatement), which provides that “unavoidably unsafe” products— i.e. , those that “in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use”—are not defective. 4 As “[a]n outstanding example” of an “[u]navoidably unsafe” product, comment k cites “the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected”; “[s]ince the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve.” Id ., at 353. Comment k thus provides that “seller[s]” of “[u]navoidably unsafe” products are “not to be held to strict liability” provided that such products “are properly prepared and marketed, and proper warning is given.” Ibid.

    As the 1986 Report explains, Congress intended that the “principle in Comment K regarding ‘unavoidably unsafe’ products” apply to the vaccines covered in the bill. 1986 Report 26. That intent, in turn, is manifested in the plain text of §22(b)(1)—in particular, Congress’ use of the word “unavoidable,” as well…

    1. You are quoting the dissenters’ opinion, not the actual binding decision by Scalia. In case you didn’t know, the legal principles established by the Supreme Court (or any appellate court) are established by the majority or plurality opinion, not by the minority dissenters.

  15. TY for this Will, you then in 2021 be one of the first to take the chimeric, RNA changing, brain altering , dog kidney & monkey gene augmented, beast cocktail being forced on the world? The C0vid vaccine?? Your children or grandchildren? I was interested to kno, bc people l speak with will fight to the death to reject having the govt make labrats out of them.

  16. Respectfully, you missed the point of the article. The vaccine concerned are making a factually and legally incorrect statement about what the US Supreme Court held in a case it decided. It (or at least the majority/plurality did not hold that vaccines are unavoidably unsafe. That argument was raised by the dissenters and rejected by the majority of the justices. That’s the only point of the entire post.
    Beyond that taking the position that vaccines are unavoidably unsafe legally entails or implies that you think vaccine manufacturers should be immune from lawsuits because if a product is necessary but unavoidably unsafe then it is beyond the reach of civil lawsuits under common law as evidenced by the Restatement of Torts as discussed in the dissent’s opinion.

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