An Examination Of The Legal Framework Of Vaccination Law In Light Of The Recent Measles Outbreak


In the past month, there have reportedly been at least 92 measles cases, which is odd considering the disease was “eliminated” in the United States in 2000.  Because most of us do not have direct experience with measles, a refresher is in order.

According to the CDC:

Measles is a highly contagious virus that lives in the nose and throat mucus of an infected person. It can spread to others through coughing and sneezing. Also, measles virus can live for up to two hours on a surface or in an airspace where the infected person coughed or sneezed. If other people breathe the contaminated air or touch the infected surface, then touch their eyes, noses, or mouths, they can become infected. Measles is so contagious that if one person has it, 90% of the people close to that person who are not immune will also become infected.

To prevent this nasty disease, the CDC recommends a measles vaccine, which according to the CDC, is 97 percent effective at preventing the disease.  In fact, every state requires a measles vaccination unless an individual meets certain state-specific exemptions.  For example, in California, an individual may opt out of the vaccination requirement based on personal beliefs or medical reasons.  However, in Mississippi and West Virginia, an individual may only opt out for medical reasons, such as a weakened immune system.  Due in part to vaccination laws, about 94.7 percent of kindergartners were vaccinated against measles last year, again according to the CDC.

Like any drug, there are occasionally adverse side effects of vaccines.  To compensate individuals injured by vaccines, Congress set up a no-fault compensation system, the National Vaccine Injury Compensation Program (NVICP), via the National Childhood Vaccine Injury Act of 1986 (NCVIA).  The NVICP is funded by a 75 cent per vaccination tax.  NVICP claims are filed with the U.S. Court of Claims, and reportedly, the Court of Claims had awarded nearly $2.5 billion to vaccine victims for vaccine injuries.  However, two out of three NVICP applicants are denied compensation.  Until 2011, it was unclear what, if any, remedy individuals had apart from the NVICP.

In 2011, the Supreme Court clarified the issue and effectively ended vaccine litigation. Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011).  After the Bruesewitz family’s NVICP application was denied, they pursued relief against a vaccine manufacturer in the U.S. District Court for the Eastern District of Pennsylvania.  The trial court granted summary judgment based on federal preemption, and the Third Circuit affirmed.  In a 6-2 decision (Justice Sotomayor recused herself due to her pro-vaccine work with the Obama administration), the Supreme Court affirmed, holding that private causes of action against vaccine manufacturers for vaccine injuries were preempted by the NVCIA.  That is, the exclusive remedy for someone injured by a vaccine is the NVICP.  So, the debate over whether a private right of action against a vaccine manufacturer for vaccine injury was settled in 2011.

The recent debate sparked by the measles outbreak concerns parents’ decisions to not vaccinate their children based on an applicable exemption.  On one side of the debate, you have parents who, for various reasons (fear of side effects, religion, et cetera), choose not to have their children vaccinated.  On the other side of the debate, you have the argument that the non-vaccination decision of these parents endangers those with weakened immune systems, those who for whatever reason the vaccine did not take (approximately 3 percent of people can still get measles even after receiving the vaccination).  This author declines the opportunity to side with either group in this post.  However, it will be interesting to see what litigation evolves out of the debate.

WaxVac Allegedly Failing to Work As Intended

The most disregarded warning in the known world is the “Do not insert into ear canal” warning found on Q-Tip and other cotton swab products.  Unauthorized use of a cotton swab can result in a ruptured eardrum and has a tendency to push wax further into the ear canal.  Thankfully, Lenfest Media Group, located in King of Prussia, Pennsylvania, created the WaxVac so that millions of Americans could enjoy clean ears without the shame of misusing cotton swabs.  The WaxVac, which looks like a hot glue gun, “gently draws dirt particles and moisture out quickly and safely.” But wait one minute, according to a class action lawsuit filed in the U.S. District Court in Pennsylvania, the WaxVac doesn’t actually work, and thousands, if not millions, of consumers have been duped.  Apparently, the FDA sent a letter to Lenfest last year informing the company that it did not have an “approved application for premarket approval” and that it should “immediately cease activities that result in the misbranding or adulteration of the WaxVac.”  Wait a minute, you are telling me that the mini-ear vacuum, a product that costs less than the process and handling fee and that can be seen on late night infomercials, might not work?!  Color me shocked.  The named plaintiffs, Marc Weinstein and Thomas Ferguson, have sued Lenfest for unjust enrichment, breach of express warranty, breach of implied warranty of merchantability, and breach of duty of good faith and fair dealing and have asked the Court to restrict Lenfest from selling the WaxVac.  They claim their damages could exceed $5 million. We’ll see what discovery reveals.

McDonald’s Happy Meals Get New Meaning in Pittsburgh

McDonald’s Happy Meal toys are apparently going through some changes. CNN reports that a McDonald’s employee has been charged with selling heroin in Happy Meal boxes at the drive-thru of a Pittsburgh-area location. The employee allegedly instructed customers to use the phrase, “I’d like to order a toy” to signal a transaction. Thereafter, the customer would approach the drive-thru window and be handed a box containing the desired “toy.” During the arrest, officers recovered 50 bags of heroin from the employee. No word on whether these toys have been examined by the CPSC.

While this is obviously not the type of news coverage McDonald’s craves, things could have been much worse. Fortunately, there are no reports of children accidentally receiving any of these earmarked Happy Meals. Just imagine the national outrage over a child discovering a bag of heroin in lieu of a miniature character from the latest Disney movie. A horrible event, to be sure. An event for which McDonald’s should be vilified? Maybe not, but certainly the media loves this story.

The reality of the situation is that this is a story about an employee caught selling drugs while on the job. This employee is probably not the first to be caught dealing drugs at a place of employment. In fact, this story could happen almost anywhere. Certain locations simply make it more newsworthy. Had this happened at a furniture manufacturing facility, the story would be lucky to be picked up by the local news. Unfortunately for McDonald’s, nothing can happen within its walls without making the press.

We urge you to read the story, marvel over the irony of packing heroin in Happy Meal boxes, and move on. Nothing to see here. McDonald’s will continue to be McDonald’s. Happy Meals will continue to be “happy” (but, not in the drug-dealing kind of way).

Hot Queso Jurisprudence in Pennsylvania

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Last week, his piece, “The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims,” was published by the American Bar Association Section of Litigation Products Liability Committee’s New & Developments site.

We’ve written about hot coffee, and we’ve even written about hot melted cheese on this site back in the day. But when this new hot queso case arrived, we knew we had to cover it.

Here’s the first three paragraphs of the article:

More than two decades after Stella Liebeck sued McDonald’s in the infamous hot coffee case, hot food and beverage cases continue to be litigated in state and federal courts. However, as recently noted by the U.S. District Court for the Eastern District of Pennsylvania, the difference between hot food and hot beverages may dictate varying results on summary judgment. See Freeman v. Ruby Tuesday, Inc., No. 12-2558, 2013 WL 4082235 (E.D. Pa. Aug. 12, 2013).

In that case, the plaintiff ordered a serving of hot beef queso dip, which the court described as “a hot appetizer which he knew was served hot.” The complaint—originally filed in state court before removal and available on PACER—described it as “an appetizer, which consisted of chips along with a dip . . . presented to plaintiff in a very hot and dangerous condition.” As he began to eat, the plaintiff allegedly burned his mouth and arm and sustained additional injuries when the purported trauma caused him to fall backwards. In the complaint, he claimed to suffer “serious and permanent orthopedic and neurological injuries.”

Judge Rufe was called upon to review the defendant restaurant’s motion to exclude the plaintiff’s purported food safety specialist and accompanying motion for summary judgment.

You knew we would have to reference the Liebeck case, right? For the full article, please see here.

Third Circuit Holds Clean Air Act Does Not Preempt State Tort Claims

Two Pennsylvania women brought a state law nuisance claim in federal court against the owner of coal fired power plant that allegedly damaged their property through the emissions of ash, chemicals, and odors.  The power plant, which is owned by GenOn Power, was apparently in compliance with the state and federal environmental regulations that govern the operation of coal power plants.  The lawsuit was initially dismissed by the district court, which held the suit was preempted by the Clean Air Act.   The Third Circuit recently reversed the district court and held that the Clean Air Act is not preemptive.

In its decision, the Third Circuit found that “nothing in the Clean Air Act [indicates] that Congress intended to preempt state common law tort claims.”  The Court further stated that the Clean Air Act is “a regulatory floor, not a ceiling, and expressly held that states are free to impose higher standards on their own sources of pollution, and that state law tort is permissible way of doing so.”  The Third Circuit relied in large part on the Supreme Court’s holding in International Paper Co. v. Ouellette, 479 U.S. 481 (1987),which held that the Clean Water Act did not preempt state law tort claims.

The Third Circuit’s ruling appears to go against strong authority supporting preemption.  In Am. Elec. Power Co., Inc. v. Connecticut, the Supreme Court held that the Clean Air Act preempted federal common law nuisance claims as a means to curb emissions from a power plant. 131 S. Ct. 2527 (2011). In that case, the Supreme Court noted that the EPA has been designated to serve as the emission regulator and is better suited to do so than judges issuing ad hoc injunctions.  Additionally, the Fourth Circuit has held that that state law nuisance claims against power plants are preempted because they threaten the comprehensive regulatory scheme. See N. Carolina, ex rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291, 303 (4th Cir. 2010).

This new ruling is very significant as it opens the door to a potential onslaught of litigation.  It means that residents can pursue property claims against power plants even though they are in compliance with state and federal regulations.  That sound that citizens in Northeast are hearing is the sound of their electricity rates and bills clicking higher.


PA vs. NCAA: Suit Dismissed

A few months back, we commented on Pennsylvania Governor Tom Corbett’s antitrust lawsuit against the NCAA.  Specifically, we addressed the issue of whether Governor Corbett had standing to bring the suit.   The Federal district court has now ruled on the issue and proved our analysis to be correct — partially.  The Court dismissed the suit, and although it found that Governor Corbett and the Commonwealth lacked standing, the lack of standing was due to deficiencies in the factual allegations and the underlying claims.

In a 27 page opinion issued last week, Judge Yvette Kane dismissed the Commonwealth’s antitrust lawsuit.  As we noted in our original analysis, the Commonwealth’s standing to bring the lawsuit was based on the parens patriae doctrine. The Court essentially agreed that the Commonwealth would have standing under this doctrine if it brought a valid antitrust claim.  However, the Court did not believe that factual allegations relating to the underlying claims were sufficient to qualify as an antitrust violation and dismissed the suit accordingly.  Specifically, the Court found that there could be no antitrust violation because the NCAA was not engaged in economic activity and the facts alleged were not sufficient to show a conspiracy. legal contributor Marc Edleman wrote a good piece outlining why the Court was wrong with respect to the underlying claims.  He notes how illogical it is for the Court to find the NCAA is not an economic actor given how many teams, including Penn State, generate over $100 million dollars in revenue.  With respect to the Court’s finding of a lack of conspiracy, Edleman observes that although NCAA President Mark Emmert is just one person, when independent businesses come together to form a trade association,their association-wide decisions are collective action.

It will be interesting to see if Governor Corbett appeals the ruling.  Many believe that regardless of the suit’s merit, Governor Corbett’s real motivation for bringing the suit was to boost his approval ratings. He may let this one stand given that any appeal decision might not come until after the next gubernatorial election in 2014.

What’s in a Name? The Wharton School Trademark Lawsuit

The University of Pennsylvania (aka “Penn”) is home to the world renowned business school named the “Wharton School.”  In fact, the name “Wharton School” is more well-known than “Penn” itself, which is often confused with Penn State.   A lawsuit recently filed by Penn alleges that another company infringed on its trademark through use of the Wharton name.

Penn brought suit in federal court against the California based Wharton Business Foundation for its use of the word “Wharton.” According to its website, the Wharton Business Foundation offers business education and consulting services.  The education component is actually called the Wharton Business Foundation University.  Penn alleges that the Wharton Business Foundation has no legitimate reason to use the name “Wharton” in its brand.  The “Meet Our Team” section of the website doesn’t list anyone with the Wharton name.

The Wharton School bears its name because it was established in 1881 via a donation from Joseph Wharton.  Penn claims it has used the Wharton registered mark since 1881 for business education and since 1953 for business consultation.  The complaint, which is available on PACER, alleges that the Wharton Business Foundation’s name creates “a likelihood of confusion in the marketplace” and “a false impressing in the minds of consumers that WBF is affiliated with, endorsed or sponsored by [Penn], particularly the Wharton School.”

We’ll be keeping our eye on this suit.

On a side note, why don’t law schools have the type of “bling” that business schools have?  Having attended both law school and business school, I suspect it is because most lawyers block out all memories of their learning years.  Business school, on the other hand, is an enjoyable experience.  Also: Most business school graduates actually find jobs in their field, and thus, have money to donate.

PA vs. NCAA: Does the Commonwealth have Standing?

Recently, the Commonwealth of Pennsylvania brought suit against the NCAA, alleging that the NCAA violated antitrust laws in levying severe sanctions against Penn State’s football program.  Notably, the University is not a party to the suit.  We have seen a few of the media’s “legal experts,” such as Andrew Napolitano (here) and Lester Munson (here), argue that the Commonwealth has no legal standing.  They believe Penn State or its student athletes are the only ones with standing to sue.  So if these brilliant legal minds have spoken, there’s nothing to see here.  Or is there?  Well, upon reading the complaint and doing about ten minutes of legal research, it’s clear that there’s actually a solid basis for the Commonwealth to assert standing to sue.

By way of background, in 2011 Penn State’s president, vice-president, and athletic director were accused of failing to report a 2001 allegation sexual abuse of a minor by a retired assistant football coach.  All three have been criminally charged and are no longer actively employed with the school, but the trials are still pending.   There were no allegations that any student athletes were involved in this matter and the head football coach followed university procedures in passing the allegations to his superiors.  Nevertheless, in July, the NCAA bypassed its normal enforcement procedures and levied massive penalties against the football team, including drastic scholarship reductions, a four year bowl ban, and a $60 million fine.  Some have declared the sanctions to be worse than the “death penalty.” The NCAA did not cite a specific NCAA rule violation as basis for the punishment, but instead simply cited general ethics standards.

Penn State receives state funding but is not considered a “state school,” in spite of its name.  So how exactly does the Commonwealth have grounds to assert standing to challenge these sanctions levied against the Penn State?  It comes from a relatively obscure doctrine called Parens Patriae.  As noted in the first paragraph of the complaint, the Commonwealth of Pennsylvania brought this suit Parens Patriae seeking an injunction under Section 16 of the Clayton Act (15 U.S.C. § 26).  Under the doctrine of Parens Patriae, a state can bring a legal action to protect its citizens from harm. The Parens Patriae doctrine is indeed applicable in antitrust actions.  An American Law Reports article (23 A.L.R. Fed. 878) on Parens Patriae and Antitrust states:

…. a parens patriae action under § 16 of the Clayton Act (15 U.S.C.A. § 26), which provides for injunctive relief against antitrust violations, can be maintained by a state on the basis of injury to the state’s general economy.

This is what the District Court held in Com. of Pa. v. Russell Stover Candies, Inc., CIV. A. 93-1972, 1993 WL 145264 (E.D. Pa. May 6, 1993) (citing State of Ga. v. Penn R. Co., 324 U.S. 439 (U.S. 1945)).

The Commonwealth’s complaint lays out the case for how its economy was injured.  In short, the complaint alleges that the Penn State football program generates hundreds of millions of dollars for the economy in central Pennsylvania.  The complaint further alleges the sanctions levied by the NCAA, which are allegedly in violation of Section 1 of the Sherman Act, will cripple the viability of the football program and will in turn impact the state’s economy through lost travel, hotels, ticket sales, dining, et cetera.

It would seem that the Commonwealth has a pretty strong basis for standing.  It shouldn’t be hard for it to secure expert affidavits to show economic harm in order to get it past a motion to dismiss for lack of standing.  Heck, the NCAA’s President, Dr. Mark Emmert, has essentially admitted that the Penn State football program is a major economic engine whose demise will have far reaching impact.  As noted in the complaint, in discussing why the NCAA imposed sanctions rather than completely shutting down the football program, Dr. Emmert stated:

The collateral damage imposed in this case would have been on people who were essentially innocent bystanders … This case had nothing to do with the marching band or the mom-and-pop hotel in State College or the guy who sells hot dogs, all of whom would have been profoundly affected by a multiyear football ban.

Of course, the sanctions imposed by the NCAA will still have the same collateral economic effects as those discussed by Dr. Emmert, but on a smaller scale.

Notably, the Commonwealth did not request monetary damages.  Courts are generally more relaxed in allowing standing for states in antitrust cases requesting injunctive relief under § 16 of the Clayton Act rather than treble damages under § 4.   Under § 4, courts are reluctant to allow standing for a general state economic injury because such indirect damages are difficult to measure.

If the Commonwealth can survive a motion to dismiss for lack of standing, this case could be very interesting.  Then again, I doubt either party wants to see this make the inside of a courtroom.   I wouldn’t be surprised to see some sort of settlement for reduced sanctions if the Commonwealth can get past motions to dismiss.   Some have already speculated that settlement is the real end game.

The Pennsylvania Golf Cart Litigation

For me, golf carts stir up long ago memories. I remember begging my dad to let me be his caddy just so that I could drive the golf carts for rent.  Golf carts, although initially built in the 1930s as a way to transport disabled golfers from shot to shot on the course while able-bodied individuals walked with a caddy, are no longer used only to carry two golfers and their golf clubs.  Today, golf carts are alternative road vehicles, saving people from using their gas-powered SUVs or even their legs to traverse their gated communities, tailgate spots, business complexes, or school campuses.  Like most things in our highly personalized economy, golf carts no longer only come in a one-size-fits-all style; rather, color and the number of rows for seating passengers are among some of the features which may be customized to fit the needs of the purchaser.  As options have increased, so too have injuries and, in turn, the amount of litigation.

According to one study, the number of golf cart injuries increased an astonishing 132% from 1990-2006. Such injuries usually stemmed from passenger ejection or overturned carts.  In one such case, the parties settled soon after  the court granted summary judgment to defendants on some of the Plaintiff’s claims. That case was Lynn v. Yamaha Golf-Car Company. On August 16, 2012, the parties settled for an undisclosed amount following the Western District of Pennsylvania’s order granting partial summary judgment in favor of the defendants as to Plaintiffs’ post-sale duty to warn and failure to warn claims.  In that case, the thirteen-year-old Plaintiff Lynn was riding as a seated passenger in a Model Year 1999 Yamaha Model G16 golf car.  Plaintiff Lynn’s friend had been operating the G16 for less than one quarter of a mile along a rural and infrequently traveled road at the time of the accident.  The accident occurred when Lynn’s friend made a u-turn, and as she was turning left, Lynn was ejected over the hip restraint of the cart (although the G16 did not tip, rollover, skid, or lose traction).  Lynn sustained serious injuries.

Plaintiffs contended that the G16 was defective in its design as it failed to prevent passenger ejection.  However, Yamaha argued that the G16 was properly was properly designed, properly manufactured, and safe for its intended use because it was never designed, manufactured, or intended to be used as a mode of general transportation.

In addition to finding summary judgment was proper as to Plaintiffs’ warning claims, the Court determined Plaintiffs produced enough evidence to show there was foreseeable risk of ejection when the golf cart was turned sharply at or near maximum speed, particularly when children are passengers, and that there were two reasonable alternative designs available at the time the G16 was constructed.  Finally, the Court was not convinced by Yamaha’s argument that Plaintiffs were using the golf cart for an unintended use.  The Court stated that the intended use of the vehicle could not be limited to cut-turf golf course surfaces.  The Court found, rather, that golf carts are intended to be used to convey persons from one point to another at a relatively low speed and that a jury could reasonably conclude “non-golf-course” uses were entirely foreseeable.

Based on these findings, it appears that at least in the Western District of Pennsylvania, holding onto the original use of a golf cart will not be a winning argument.  However, if the number of injuries keeps increasing as the uses for golf carts are broadened, each case will be factually intensive, and it will be interesting to see how courts treat these claims going forward.

Questionable Decisions by Lawyers and Judges

As you can imagine, we here at Abnormal Use are big fans of the United States court system.  We recognize that it’s not perfect, but, on balance, it does a pretty good job protecting the rights of litigants–both plaintiffs and defendants.  The lawyers helping with bankruptcies in Oklahoma City area say that some lawsuits are just ridiculous.  We are not advocating that some people be denied access to the court system.  What we might want, however, is for lawyers to sometimes take a step back and ask potential clients, “Do you really want to bring this before a judge?”  Below are two lawsuits we found recently that might have benefited from such an inquiry.

The case of the prematurely fading lipstick:

The Wall Street Journal Law Blog recently posted about a new suit seeking class action status against Maybelline, a cosmetics company that sells lip gloss and lipstick lines that it claims will last for 10 hours and 14 hours, respectively.  The plaintiffs allege, as you can imagine, that the lip color does not last nearly as long as advertised by Maybelline and have filed suit in Manhattan federal court. That’s right.  A New York federal court is going to have to decide if Maybelline has violated federal law, as well as consumer protection laws in New York, Michigan and New Jersey, simply because women might have to re-apply lip color more than once every 10 hours.

The case of the beer bottle in the bar-room brawl:

Hat tip:  Overlawyered:

A Texas appeals court has affirmed the dismissal of a lawsuit seeking to hold Anheuser-Busch liable for an assault suffered by a bar patron. The suit alleged that the long-neck design of the bottle made it too attractive for assailants seeking a weapon; the court agreed with the brewer that the plaintiff had failed to make out a sufficient case to avoid summary judgment.

I would love to see a total bill for the court fees, lawyer time and expenses, and pro-rated judge, court reporter, and bailiff salaries that were incurred just getting this thing thrown out.  One of the comments on the Overlawyered blog suggested that the plaintiff’s lawyer be sanctioned under Rule 11.  Not sure we’d go that far, but this one definitely doesn’t pass our smell test.

Forum shopping fiasco:

While we’re on the subject of questionable moves in the legal world, I noticed a story in the Wall Street Journal on September 24, 2012 about the Philadelphia Court of Common Pleas.  Apparently, budget cuts prompted Judge Pamela Dembe to throw wide the doors of Philly’s courthouses for lawsuits–and, in turn, open the court’s wallet for filing fees.

As the story noted, lawsuits–primarily in the asbestos and pharma areas–exploded “from 550 in 2008 to nearly 2,700 last year.”   A new administrative judge, John Herron, is trying to clean up the mess that Judge Dembe’s invitation created for the court system up there.  As Judge Herron commented in the story, “Courts should not be in the business of making money.”  In our opinion, such blatant forum shopping should not be condoned–let alone suggested or supported.