On 19 July 2016, New York Attorney Patricia Finn filed a complaint in a federal district court against the pharmaceutical firm Merck, officials in the Department of Health and Human Services, and Julie Gerberding (formerly director of the CDC, and currently Merck’s Executive Vice President for Strategic Communications, Global Public Policy and Population Health). This Merck vaccine lawsuit, called Doe v Merck, is an amended complaint that was filed on 20 July, and will be the one examined in this article.
While the complaint was filed in the name of a Jane Doe and Baby Doe, the text of the complaint made it very clear that Jane Doe is in fact Maria Dwyer, and Baby Doe is her son Colin Dwyer. Colin Dwyer’s case was one of the test cases in the Omnibus Autism Proceedings (OAP) for the National Vaccine Injury Compensation Program (NVICP). The Dwyer case, like the other five test cases in the OAP, was rejected.
The Doe v Merck complaint makes two demands. First, that Merck’s license to produce the measles, mumps, rubella vaccine (M-M-R®II ) be revoked.
Second, it asks for damages for Colin’s alleged vaccine injuries. The complaint is problematic from three aspects:
- The story it tries to tell is full of holes;
- as a legal matter, it makes no case; and
- it includes many factual inaccuracies.
In short, the Merck vaccine lawsuit is bad work. However, the complaint is being shared widely, and a discussion of its shortcomings might be of value to many readers. Continue reading “Merck vaccine lawsuit – implausible narrative, bad law and facts”
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.
In the United States, the Centers for Disease Control (CDC) recommend certain vaccines. CDC cannot, and do not, mandate vaccines. However, states can and do require their residents to have received certain vaccines on the CDC recommended schedule in order, most notably, for children to enroll in school. All states, however, also offer exemptions from school immunization requirements, and some – like Maine – offer very easy-to-get ones.
A bill was proposed by Maine legislator Richard Farnsworth adopting an informed refusal requirement before a parent can make use of Maine’s philosophical exemption to send their child to school without the required immunizations. In response, the Maine Coalition for Vaccine Choice (MCVC), an antivaccine advocacy group, proposed its own law, the “Maine Vaccine Consumer Protection Act.” Proposing an alternative law is not inappropriate.
There are, however, two significant problems of the Maine Coalition for Vaccine Choice legislation – the premises underlying the alternative law, and the content of the proposal. The proposal is based on premises that are either simply untrue or inaccurate and misleading. And it’s extremely bad law. Continue reading “Maine Coalition for Vaccine Choice legislation–bad premises, bad law”