"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity in the National Childhood Vaccine Injury Act

The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The answer depends on whether, as the Supreme Court of Georgia held, a court must make a case-by-case determination whether a side effect was "unavoidable" before a claim is preempted, or whether, as the Third Circuit held, Congress made a categorical determination that all side effects occurring despite proper preparation and labeling are "unavoidable," and that claims deriving from them are therefore preempted, eliminating all such design defect claims against vaccine manufacturers.