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:


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.

15 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?

    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)
    [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. 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!

  6. 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?
        “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. 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?

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