Vaccine lawsuits – overview of litigation across the USA

The goal of this overview is to tell you about vaccine lawsuits in the federal and state courts (but not in the National Vaccine Injury Compensation Program). As an overview, the discussion of each case will be very short. If you want more information, please let me know in the comments section. If you know of cases I have missed, also mention that in the comments.

The vaccine lawsuits overview is arranged by topic, and without topic by states, and within states in alphabetical order. I have chosen August 1, 2016 as a starting point to keep this manageable.

Note that the “claims” section provides a summary of what a complaint is claiming – what it is trying to do – and not an analysis of the claims’ validity. Where available, I link to a post discussing the claim’s merits more in detail. Where not, I add some comments about the validity. But the claims section just provides what the plaintiffs are claiming – it doesn’t mean their claims, hold water.

Vaccine lawsuits – school exemptions

California

I. Case Details (Name, Number, Court): Whitlow v. State of California, 16-cv-1715, Federal District Court, Southern District of California.

Issue: Is SB277 unconstitutional?

Main Claims: SB277 violates the federal and state constitution because:

  1. It violates parental rights, and can’t withstand strict scrutiny.
  2. It violates religious freedom – the first amendment – and can’t withstand strict scrutiny.
  3. It violates the California Constitution’s right to education.
  4. It violates equal protection because it’s applied inconsistently – for example, distinguishing between children with and without Individualized Education Program (IEP); grandfathering children with exemptions that are not at a checkpoint.
  5. The implementation of the act is problematic because of differences in interpreting the IEP provision and the project to oversee medical exemptions.

Procedural Profile: Request for preliminary injunction denied by Judge Dana M. Sabraw on August 26, 2016. Plaintiffs asked that case be dismissed without prejudice.

Additional Discussion, if any: 

 

II. Case Details (Name, Number, Court): Buck v. Karen Smith, BC617766, Superior County Court, Los Angeles. Appeal number – b279936.

Issue: Is SB277 unconstitutional?

Main Claims: SB277:

  1. Violates California’s Constitutional right to education.
  2. Violates parental rights.
  3. Violates the First Amendment.
  4. Vaccines are unavoidably unsafe and very dangerous, so the law is bad.
  5. SB277 was passed for corrupt monetary reasons, not to protect children.

Procedural Profile: On October 21 State Judge Gregory Alarcon sustained the state’s demurer – in other words, dismissed the case as not stating a valid legal claim. The plaintiffs appealed to California’s Second Court of Appeals. After some delay due to procedural mistakes on their part, the appeal is set to go forward.

Additional Discussion, if any: 

 

III. Case Details (Name, Number, Court):  Middelton v. Pan, 16-cv-05224, Federal District Court, Central District of California.

Issue: Were legislators and governor involved in a racketeering act, and if they were, does that make SB277 unconstitutional?

Main Claims: 

  1. Vaccines are toxic and the defendants knew that.
  2. SB277 was a grand conspiracy to poison kids, for reasons unclear. Some kind of profit motive.
  3. SB277 violates constitutional rights to bodily autonomy and integrity.

Suit against governor and wife, legislators and spouses, lobbyist and her husband.

Procedural Profile: Recommendation to dismiss suit filed in January 2017, judge’s decision not yet handed down.

Additional Discussion, if any: 

 

IV. Case Details (Name, Number, Court): Torrey-Love v. Karen Smith, 16-cv-02410, federal district court, central district of CA.

Issue: Does SB277 force parents to choose between two constitutional rights?

Main Claims: 

  1. Unconstitutional conditions – SB277 forces children and parents to choose between their constitutional right to education and their right to bodily autonomy (for the children) or their parental rights (for the parents).

Procedural Profile: State’s motion to dismiss granted on January 13, 2017.

Additional Discussion, if any: 

Comments: The leader of A Voice for Choice – the organization bringing the lawsuit – announced that her organization will file a claim in state court rather than appeal the decision. I have not seen that suit yet.

 

Florida

Case Details (Name, Number, Court): Flynn v. Estevez, 16-2015-CA-002524, Florida First District Court of Appeals.

Issue: Can a Bishop refuse to allow unvaccinated children into Catholic private school after parents file a religious exemption?

Main Claims: 

  1. Florida law requires that private schools accept religious exemptions, if filed. Parent filed religious exemption. Bishop does not have a right to refuse the child attendance because the child is unvaccinated.

Procedural Profile: Motion to dismiss granted at trial level on the ground that the Church’s autonomy is protected under the first amendment, and a statute cannot compel the church to accept unvaccinated children if accepting them is again the church’s religious tenets. Appeal filed. Oral argument heard on October 21, 2016, decision not in yet.

Additional Discussion, if any: 

Comments: Note that this means that private schools that do not have religious objections to accepting unvaccinated children cannot reject them, under Florida’s law as interpreted by plaintiff and the court.

 

Michigan

I. Case Details (Name, Number, Court): Tara Nikolao v. Lyon, 16-cv-12545, Federal District Court, Eastern District of Michigan

Issue: Is Michigan’s rule requiring that parents requesting an exemption

Main Claims: 

  1. Rule violates statute – no authority in statute to make rule.
  2. Requiring talking to health department violates religious freedom.
  3. Interrogating Ms. Nikolao about her religious beliefs violates her religious freedom.

Procedural Profile: Motion to dismiss granted on February 23, 2017. No appeal as far as I can see.

Additional Discussion, if any: 

Comments: The court declined to address the state law issues, i.e. whether rule conflicts with the statute, and dismissed the religious claims on two grounds –

  1. Only talking to plaintiff about her religious beliefs is not a violation of her religious freedom. She was not forced to act, and ended up getting the exemption.
  2. Given Jacobson, state does not need to give any exemption. Michigan went beyond duty, and it’s fine to add an educational requirement.

 

II. Case Details (Name, Number, Court): Michigan Opposing Mandatory Vaccines and Joel Dorfman. I don’t know the case number and haven’t been able to find a record. Nor indication on status.

Issue: Is Michigan’s rule requiring that parents wanting an exemption go to the health department to discuss vaccines’ risks and benefits legal and constitutional?

Main Claims: 

  1. Rule was promulgated in violation of Michigan’s Administrative Procedures Act.
  2. Rule exceeds the statutory authority of the department.
  3. Rule violates first amendment.
  4. Rule violates the right to education in Michigan’s constitution.

Procedural Profile:  Unknown.

Additional Discussion, if any: 

Comments: I don’t have a lot of information about this case, besides noting that there is no appeal about it and nothing in the press after the first press release.

 

New York

Case Details (Name, Number, Court): Garcia v. New York Department of Health and Mental Hygiene, 2016 NY Slip Op 06559, New York Supreme Court, Appellate Division.  

Issue: Is New York City’s influenza mandate for day cares legal?

Main Claims: 

  1. The mandate is illegal because NYC does not have the authority to mandate additional vaccines.
  2. The mandate is illegal because the Department of Health overstepped its authority under Boreali, the case that sets when an agency’s policy making is legitimate or crosses over into what should be the state  legislature’s prerogative.

Procedural Profile: Mandates struck down by trial judge on the grounds that the City’s board did not have the authority to add mandates beyond what the state’s legislature put in place. Appellate Division disagreed, but struck down mandate as violating Boreali, as the board engaged in illegitimate policy making.

City was granted leave to appeal to New York’s Court of Appeals, the highest court in the state, and case under review by that court.

Additional Discussion, if any: 

Comments: 

 

Vaccine lawsuits – workplace mandates

Federal: Equal Employment Opportunity Commission (EEOC) against Influenza Mandates:

I. Case Details (Name, Number, Court): EEOC v. Saint Vincent Health Center, 16-cv-00234, Federal District Court, Western District of Pennsylvania, Erie Division.

Issue: Did the hospital’s influenza mandate violate title VII of the Civil Rights Act of 1964?

Main Claims: 

  1. Hospital’s policy that employees need clergy note to get a religious exemption is unconstitutional.
  2. Hospital’s judgment that beliefs unreasonable unconstitutional.
  3. Not granting any religious exemption suggests a problem.

Procedural Profile: Parties reached a consent decree filed on December 23, 2016 largely accepting plaintiff’s claims, reinstating employees and changing policy.

Additional Discussion, if any:

Comments: 

 

II. Case Details (Name, Number, Court): EEOC v. Mission Hospital, 16-cv-00118, Federal District Court, Western District for North Carolina, Ashville Division

Issue: Did the hospital violate the Civil Rights Act of 1964 by setting a deadline to file exemptions?

Main Claims: 

Procedural Profile: Case open and ongoing. Lawyer said he’s planning to file for summary judgment, but hasn’t yet.

Additional Discussion, if any: 

Comments: 

 

III. Case Details (Name, Number, Court): EEOC v. Baystate Medical Center, 16-cv-030086, Federal District Court, District of Massachusetts, Springfield Division.

Issue: Is firing an HR person with religious objection to vaccination for not wearing a mask a violation of the Civil Rights Act, 1964?

Main Claims: 

Plaintiff was not provided a reasonable accommodation for her religious beliefs.

Procedural Profile: Case open. Discovery to be completed by September 2017.

Additional Discussion, if any: 

Comments: While it’s outside the time frame, it might be important to know about the Robinson case brought by a private individual in which a federal court found that a hospital provided reasonable accommodations

 

Texas:

Case Details (Name, Number, Court): Horvath v. City of Leander. 17-0243-C26, in the District Court of Williamson County.

Issue: Can the city dismiss a firefighter who refused to get a flu shot?

Main Claims: 

The firefighter could have performed his duties if the city gave him reasonable accommodations for his religious beliefs. Firing him was a violation of the Civil Rights Act of 1964.

Procedural Profile: Suit just filed March 2, 2017.

Additional Discussion, if any:

Comments: 

 

Other vaccine policy related lawsuits

New York:

Case Details (Name, Number, Court): Cole v. Zucker, 17-cv-00251, Federal District Court, Northern District of New York, Syracuse

Issue: Is New York State’s Department of Health rule allowing minors infected with or exposed to an STD to get HPV vaccines illegal or unconstitutional?

Main Claims: 

  1. Rule violates the statutory authority – it’s too broad.
  2. Rule violates constitutionally protected parental rights.

Procedural Profile: Case filed March 3, 2017. State answer due March 28, 2017.

Additional Discussion, if any:

Comments: 

 

Vaccine injury claims:

Federal

There are a number of vaccine lawsuits against Merck claiming injury from the shingles vaccine in federal district court in PA. I haven’t tracked them all down yet. One claim is Dotter and Green-Payne v. Merck, 16-cv-4686, in the Eastern Federal District Court for Pennsylvania. The claims are just like the Bentley suit below, but the injury is different.

 

Pennsylvania:

Case Details (Name, Number, Court): Bentley v. Merck, 004102, Court of Common Pleas, Philadelphia.

Issue: Was Ms. Bentley’s harm the result of a product defect, negligence, or other fault on the part of Merck?

Main Claims: 

  1. Negligence in product development/warning.
  2. Design Defect.
  3. Failure to warn.
  4. Violation of express or implied warrantee.
  5. Unjust enrichment.

Procedural Profile: Claim filed February 22, 2017, Merck moved to move it to federal court, where the other claims are, no decision yet.

Additional Discussion, if any:

Comments: Injury here will be very hard to connect to the vaccine, I think (it’s currently not even quite clear what it is supposed to be).

 

Other claims against manufacturers

Federal:

Case Details (Name, Number, Court): United States et al v. Merck, 10-cv-04374, Federal District Court, Eastern District of Pennsylvania.

Issue: Did Merck mislead the United States in relation to mumps vaccine’s effectiveness?

Main Claims: 

Merck faked data related to mumps vaccine effectiveness.

Procedural Profile: Discovery ongoing.

Additional Discussion, if any: 

Comments: 

  • There are attached claims for damages by people claiming harm from the misrepresentation.
  • Timeline:“FACT DISCOVERY SHALL BE COMPLETED BY 3/1/2017. ALL EXPERT DISCOVERY SHALL BE COMPLETED BY 10/31/2017. ALL DISPOSITIVE MOTIONS SHALL BE FILED AND SERVED ON 12/20/2017. PLAINTIFFS SHALL FILE AND SERVE THEIR MOTION FOR CLASS CERTIFICATION BY 3/1/2018. DEFENDANT SHALL FILE AND SERVE ITS OPPOSITION TO CLASS CERTIFICATION BY 4/5/2018”

 

CDC whistleblower related vaccine lawsuits

Federal

I. Case Details (Name, Number, Court): Jane Doe v. Merck, 16-cv-4005, Federal District Court, Eastern District of New York (Brooklyn).

Issue: Did Merck engage in a conspiracy to commit fraud about MMR safety?

Main Claims: 

  1. Merck influenced a 2004 United States study on autism and a 2002 Denmark one to hide a link between vaccines and autism.
  2. CDC knowingly hid results connecting vaccines to autism.
  3. There was a government-industry conspiracy to hide harms of vaccines.
  4. Merck dominated the media and recruited bloggers to hide a link between MMR and autism.
  5. Merck rewarded compliant researchers with jobs and punished those that tried to call it out by going after their licenses.

Procedural Profile: Parties agree on a briefing schedule, Merck’s next filing due May 2017.

Additional Discussion, if any: 

Comments: This suit seems to be based on several conspiracy theories that don’t fit together easily and are unlikely to be well founded.

 

II. Case Details (Name, Number, Court): Hazelhurst v. CDC, 17-cv-02095, federal district court, Western District of Tennessee, Western Division

Issue: Was the CDC’s refusal to allow Dr. William Thompson to testify arbitrary and capricious?

Main Claims: 

  1. Dr. Thompson’s testimony is relevant to proving causation, to proving vaccines cause autism.
  2. The DeStefano study is the only MMR-autism study in United States children and is therefore central to the causation question. It was used to help reject the Hazelhurst case in the Omnibus Autism Proceeding.
  3. Dr. Thompson’s testimony shows vaccines do sometimes cause isolated autism and is therefore relevant.
  4. Dr. Thompson’s testimony is the only way to learn  the CDC, on which defendants are relying to say vaccines don’t cause autism, is unreliable, and hence, refusing it was arbitrary and capricious.
  5. It’s in the public interest to expose wrongdoing by CDC (though how testimony in sealed cases would do that is not quite clear).
  6. Benefit to Yates outweighs CDC’s interest in not allowing Thompson to testify – he deserves generous compensation if harmed by vaccines according to the National Childhood Vaccine Injury Compensation Act, and failure to provide VIS and informed consent is a central issue there (though how Thompson’s testimony is relevant to a failure to provide VIS, if that happened, is also unclear).
  7. This is a one-off case, so there’s no fear of a flood of litigation.

Procedural Profile: Case filed February 10, 2017, no real movement yet.

Additional Discussion, if any: 

Comments: I don’t think the argument is very strong here. First, causation-wise, there are enough studies on MMR and autism that the 2004 DeStefano study doesn’t add much (and the Jain study is another United States MMR study, so the claim that DeStefano is the only  United States MMR study is incorrect; not that it’s clear why it’s relevant – MMR was given in other countries, too). Second, isolated autism is not regression – that’s a misunderstanding of the study. It’s a little unclear if Yates also had hearing loss (pdf), which would take him out of the category of isolated autism. It’s possible he is in that category, though. Even then, the claim is weak, since the isolated autism finding was in the original paper – not hidden – and could have been addressed before. They don’t need Thompson for that. The question of MMR/autism causation can be addressed completely without him.

Nor do the claims negate the other points by the CDC: the data is available and in the hands of, say, Brian Hooker, and the government shouldn’t intervene in private litigation, and so forth.

 

Tennessee

Hazelhurst v. Jackson Clinic:

This is one out of seven cases brought by the Hazelhurst family, in this case, against their doctors for alleged harm from his vaccines. I could not see the suits since the family, apparently, asked that they be sealed.

 

Editor’s note – this article will be updated as more information and additional vaccine lawsuits comes up. 

 
 
Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.