Fraud Unmasked in MMR/Autism Litigation

From the late 1990’s, a wave of litigation and controversy has washed over the public health debate concerning the alleged connection between the then widely-used childhood MMR (measles, mumps and rubella) vaccine and autism.  Beyond the scores of lawsuits, including class actions, the whirlwind drove down the vaccination rate (because concerned parents’ reservations about vaccine safety), which in turn increased the rate of disease and corresponding bumps in the morbidity and mortality tables.

The genesis of this maelstrom was a February, 1998 article in the prestigious medical journal Lancet, by Dr. Andrew Wakefield, M.D.  Unknown to the journal’s editors, Dr. Wakefield had been on retainer for a British solicitor, Richard Barr, for two years prior to the article’s publication, and ultimately Mr. Barr paid Dr. Wakefield well over half a million dollars, plus expenses.  Their apparent objective was to establish a temporal association between vaccination and the onset of autism, to foment litigation against the MMR industry.  Beyond the public disgrace, this gambit cost Dr. Wakefield his medical license, forced the Lancet to withdraw and repudiate the article, and tarnished the reputations of other researchers associated with the article.

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California, As Usual, Is First To Decide: 2003 Medicare Act Preempts Enrollee's State Law Claims Against Healthcare Service Plan

In 2003, Congress enacted the latest version of the Medicare Act.  It contained far broader language than previous versions on what State law claims it preempted: “The standards established under this part shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA [Medicare Advantage] plans which are offered  by MA organizations under this part.” (42 U.S.C. § 1395w-26(b)(3).) 

The scope and meaning of this new preemption language is being litigated around the country, but as yet precious few cases have made their way through the appellate courts.  One that has comes out of California.  In Yarick v. PacifiCare of California (2009) 179 Cal. App. 4th 1158, the State’s intermediate Court of Appeal held the 2003 Act expressly preempted the enrollee’s statutorily-based state causes of action, and impliedly preempted state common law claims.  Yarick also rejected plaintiffs’ argument that the licensing exception within the Medicare Act's preemption clause could save the claims. Months before, the Ninth Circuit Court of Appeals had reached a similar conclusion, but then granted rehearing.  (Uhm v. Humana, Inc. (9th Cir. Docket No. 06-35672).  Since a grant of rehearing vacates a published opinion, the score rolled back to zero. 

Now the score is back to Plans: 1; enrollees: 0.  As of this writing, Yarick is the only published appellate case anywhere in the country to address the preemption defense on the merits. (Previously, the Eleventh Circuit Court of Appeals rejected an argument that the Medicare Act completely preempted state law claims to afford federal court's subject matter jurisdiction. (Dial v. Healthspring of Alabama, Inc. (11th Cir. 2008) 541 F.3d 1044).)    This is an important and recurring issue, and we haven’t heard the last of it.  Expect to see all manner of decisions on this hot-button question from courts around the country.  As those opinions come down, Appellate Strategist will report on them, and provide a running total  box score.