United States: Supreme Court Docket Report - March 8, 2010

Originally published March 8, 2010

Keywords: federal preemption, state law claims, National Childhood Vaccine Injury Act, Vaccine Act, Chase Bank, Providence, Moses

Today the Supreme Court granted certiorari in one case of interest to the business community:

Federal Preemption of State-Law Claims—National Childhood Vaccine Injury Act

The National Childhood Vaccine Injury Act of 1986 ("Vaccine Act") , 42 U.S.C. §§ 300aa-1 et seq., expressly preempts state-law claims against vaccine manufacturers if the injury or death giving rise to such a claim "resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning." 42 U.S.C. § 300aa-22(b)(1). The lower courts are divided over the scope of that provision. Today, the Supreme Court granted certiorari in Bruesewitz v. Wyeth, No. 09-152, to decide whether the Vaccine Act categorically preempts all design-defect claims against vaccine manufacturers, or whether instead the preemption of particular design-defect claims must be decided on a case-by-case basis.

This case is, obviously, of greatest interest to vaccine manufacturers. If the Court holds that preemption under the Vaccine Act must be determined on a case-by-case basis, manufacturers will likely be exposed to increased litigation brought by plaintiffs alleging injuries from vaccinations. But, as the latest in a series of preemption cases heard by the Court over the past decade, the case could, depending on the breadth of the Court's analysis, also prove significant to participants in other highly regulated industries in which state-law claims remain a threat.

In the decision below, the Third Circuit held that the Vaccine Act preempts all design-defect claims, including both negligence and strict-liability claims. See 561 F.3d 233 (3d Cir. 2009). The Georgia Supreme Court, by contrast, had previously held that a design defect claim is not preempted unless the manufacturer demonstrates, on case-by-case basis, that there was no safer design that could have avoided the injury giving rise to the claim.

Absent extensions, amicus briefs in support of the petitioner will be on due April 29, 2010, and amicus briefs in support of the respondent will be due on June 1, 2010. Any questions about the case should be directed to Andrew Tauber (+1 202 263 3324) in our Washington, DC office.

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In recent weeks, the Supreme Court has invited the Solicitor General to file briefs expressing the views of the United States in six other cases of interest to the business community:

Chase Bank USA N.A. v. McCoy, No. 09-329: The question presented is whether a creditor who has issued a credit card pursuant to a contract that provides for an increase in the applicable interest rate if the cardholder defaults is required to provide the cardholder notice of such an increase under the Federal Reserve Board's Regulation Z, 12 C.F.R. § 226.9(c).

Providence Hosp. & Med. Ctrs., Inc. v. Moses, No. 09-438: The questions presented involve the extent of a hospital's obligation to screen and stabilize patients under the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd.

CSX Transp., Inc. v. Ala. Dep't of Rev., No. 09-520: The question presented is whether a state's exemption of railroad competitors, but not railroads, from a generally applicable sales and use tax is subject to challenge as "another tax that discriminates against a rail carrier" under Section 306(1)(d) of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11501(b)(4).

Ortho Biotech Prods. LP v. U.S. ex rel. Duxbury, No. 09-654: The questions presented are (1) whether a federal court has subject-matter jurisdiction over a qui tam suit under the False Claims Act, 31 U.S.C. §§ 3729 et seq., that repeats publicly disclosed allegations from prior litigation, when the False Claims Act relator did not provide the government with information on the suit's allegations before the public disclosure; and (2) whether a False Claims Act relator, alleging that the defendant induced a third party to submit false or fraudulent claims, can satisfy Rule 9(b) of the Federal Rules of Civil Procedure without identifying a specific false or fraudulent claim.

Carmichael v. Kellog, Brown & Root Serv., Inc., No. 09-683: The questions presented concern the circumstances under which a private military contractor can be held liable for injuries arising from an automobile accident suffered by a soldier serving in Iraq.

Amara v. CIGNA Corp., No. 09-784; CIGNA Corp. v. Amara, No. 09-804: The questions presented concern whether legislation enacted pursuant to the Spending Clause confers enforceable rights on third-party beneficiaries absent an express private right of action, and whether a district court has the authority to order certain relief in an ERISA action.

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In addition to the business cases described above, on February 22, 2010, the Supreme Court granted certiorari in Los Angeles County v. Humphries, No. 09-350, which involves what a party must demonstrate to obtain injunctive relief against a public entity and to obtain a fee award as a "prevailing party" under 42 U.S.C. § 1988. Mayer Brown represents the respondent in conjunction with the Yale Law School Supreme Court Clinic. Mayer Brown attorneys Andy Pincus and Charles Rothfeld helped found and are co-directors of the Clinic, which provides clients with pro bono representation before the United States Supreme Court.

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