Amicus briefs were also submitted in support of the Bruesewitz family in September 2009 and June 2010, by attorneys from the state of New York, Mary Holland and Robert Krakow, on behalf of the National Vaccine Information Center and its cofounders, parent advocates who helped draft the 1986 legislation, the New Jersey Coalition for Vaccine Choice, No Mercury, Truth About Gardasil, Age of Autism, National Autism Association, Autism One, SafeMinds, Autism United, US Autism and Asperger Association, Talk About Curing Autism, Generation Rescue, and the Elizabeth Birt Center for Autism Law and Advocacy.
It would require too much space to list every organization, but all together more than 25 signed off on the briefs - none of which receive money from vaccine makers. Basically the question to be answered by the Supreme Court is: Does 22(b)(1) preclude all vaccine design-defect claims even if the vaccine's side effects were avoidable?
"The legislative history suggests that all the stakeholders Congress, parents, manufacturers and physicians understood that victims preserved the right to take design defect claims to court," the June brief says. "Respondent and its amici appear to be trying to achieve through the judiciary what they failed to obtain through Congress."
In fact, the brief includes several statements made at the time the Act was passed that suggest that Congress recognized that victims, who duly filed for compensation in the Vaccine Program, could take design defect claims to court under Section 22(b).
For instance, when presenting the Act to the full House of Representatives for a vote, Rep Henry Waxman, the chief sponsor of the Act, stated that civil claims for "inadequately researched" vaccines would be preserved under Section 22. Waxman's description of this claim, that a vaccine's design did not take adequate account of avoidable safety risks, would likely be a design defect, the brief notes.
"Furthermore, the Committee explicitly rejected the opportunity to create a broad exemption for all design defect claims when it considered the Act," it says. "Proposals were considered by the Committee that would have explicitly preempted all design defect claims, but the final version did not contain those provisions."
"By rejecting language that would have barred all design defect claims," the attorneys wrote, "Congress showed its intent to permit courts to decide on a case-by-case which side effects were genuinely "unavoidable.'"
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