March 2010, Volume 96, Issue 1
When Injury Is Unavoidable: The Vaccine Act’s Limited Preemption of Design Defect Claims
by Nitin Shah
96 Va. L. Rev. 199 (2010)
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Courts are divided as to whether the National Childhood Vaccine Injury Act of 1986 preempts all design defect claims regarding covered vaccines, or merely requires the injury to have been unavoidable for liability to attach. In the background is a simmering debate in the Supreme Court over the proper interpretation of express preemption clauses, and concern over a potential flood of litigation over the alleged link between vaccines and autism.
This Note argues that courts should adopt a reading of the Act which preempts design defect claims only upon a concomitant finding that the injury could not have been avoided, for example, through use of a safer feasible alternate design. It proposes an interpretation of the Supreme Court’s express preemption jurisprudence that focuses on the Court’s application of the plain meaning doctrine and the presumption against preemption. This Note argues that the Court has increasingly applied these doctrines to implement a rule-based approach that allows greater ex ante reliance on the meaning that the Court will give to express preemption clauses. Applying these principles to the Vaccine Act, this Note concludes that adoption of the narrower reading is compelled by (a) the plain meaning doctrine, (b) the presumption against preemption, (c) the legislative history of the Vaccine Act, and (d) consideration of the relevant principles of background law incorporated by the Act.
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