Erin Holmes got $250,000 she didn’t want, “blood money” her husband didn’t want to spend.
The money came from the Vaccine Injury Compensation Program for her son, Jacob, who died in 2002 from a brain condition after receiving his measles-mumps-rubella and varicella vaccines. The Vaccine Injury Compensation Program is funded by taxpayers via a tax on vaccines.
Holmes didn’t want the money – but as an “angry parent” she wanted to do something more. So she reached out to a lawyer in Las Vegas who told her that the money she collected from the compensation program was “Jacob’s money” – and she could still sue for her own suffering.
She filed a wrongful death lawsuit against Merck and Co. – a manufacturer of MMR, varicella and other vaccines – alleging “negligence, strict product liability, negligent design, failure to warn, misrepresentation, express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, and punitive damages,” according to court documents.
But the 9th U.S. Circuit Court of Appeals ruled that Holmes could not sue for negligent design or failure to warn, because the National Childhood Vaccine Injury Act pre-empted Holmes’ strict product liability, negligent design and failure to warn claims.
“If we were to conclude that the parents of those suffering a vaccine-related injury could bring design defect and failure to warn claims … we would be acting contrary to the statute’s central purpose of managing vaccine manufacturers’ liability because our construction would do little to protect the vaccine manufacturers from suit,” the court said in its opinion.
