Court dismisses Gardasil harms claims against Merck

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This article about a court dismissing Gardasil harms claims against Merck was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who 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 a 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. She is also a member of the Vaccines Working Group on Ethics and Policy.

On March 15, 2022, a federal judge in Connecticut dismissed a tort claim brought against Merck by a young woman, Korrine Herlth, who alleged that the Gardasil vaccine caused her harm, including Postural Orthostatic Tachycardia Syndrome (“POTS”) and chronic fatigue syndrome (“CFS”).

The claim was dismissed on the grounds that federal law preempted most of the torts claims – they could not be brought because the Food, Drugs and Cosmetics Act said that federal law ruled these issues, not state torts law – and the others were dismissed because the plaintiffs’ claims were too general and did not provide sufficient grounds. The claims were dismissed without prejudice, so if the plaintiff – through her lawyers – can correct the problems the court identified, she can refile some of them. 

The case never reached the causation problems in the claim – causation problems that derive from the fact that multiple large studies found no link between HPV vaccines and the alleged harms. Nor did it actually get to examine the validity of the specific claims, but many of them draw directly from anti-vaccines claims that are highly problematic.

It is likely fair to say that in this case – and the other similar claims the law firm bringing the case, Baum, Hedlund, Aristel & Goldman is bringing alleging harms from Gardasil – the law firm is serving the anti-vaccine movement more than the individual plaintiffs, even if the law firm itself is not, as a whole, anti-vaccine. 

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