The drug companies worried that they would face a flood of lawsuits over the side effects of vaccines in the event of an unfavorable Supreme Court decision. They were especially concerned about claims from families of autistic children who say the vaccines, or mercury-based thimerosal that once was used to preserve them, are linked to autism. Numerous studies have addressed vaccines and autism and found no link, including with the preservative. [Follow the money in Congress.]
Sotomayor said the drug companies' worry "seems wholly speculative." She said that parents already face "substantial hurdles" in winning compensation.
Sotomayor instead pointed to arguments made by Frederick, the family's lawyer, when the Supreme Court heard the case in October. He said that Congress did not explicitly rule out the kind of lawsuit the Bruesewitz family filed against Wyeth, asserting that the company was slow to move ahead with a safer vaccine because it would not be as profitable. Frederick said the threat of lawsuits would motivate drug companies to introduce safer vaccines more quickly.
Justice Elena Kagan took no part in the case because she had worked on it while serving in the Justice Department.