cuit court upheld a jury award of $200,000 to an eight-month-old infant who had contracted polio after receiving Sabin live-virus vaccine. The Supreme Court refused to hear the case; the award held. Wyeth had failed to extend an adequate warning of the risk of harm to the unlucky vaccinee. Never mind that the company had included in cartons for shipment a printed form which did contain adequate warning. Never mind that experts had testified at trial that this particular case was not vaccine-related. Wyeth would pay (and did). The suffering was real and Wyeth had the only deep pocket available.
To BoB and CDC, concerned for an assured vaccine supply the inference drawn from Reyes had been that if the government proposed to sponsor mass immunizations, but not to make vaccine itself it must take over the duty to warn, opening its pocket, or indemnify the private firms, or compensate victims directly. The manufacturers were eager to unload the Reyes duty. In their eyes it was a quite unreasonable cost of doing business. In the eyes of Sencer’s staffers, also many of Meyer’s and Seal’s, it was a cost of doing business that the manufacturers could all too easily avoid by dropping vaccines from their product lines. So at these staff levels there was a coincidence of interest with the private firms, premised on need for relief from the duty to warn.
At various times staff papers on the subject went to Cooper with no result. In January 1976, just before Fort Dix, the most elaborate of these was sent forward by Sencer as a draft proposal from Cooper to Mathews. Prepared by Sencer’s Assistant Director for Programs, Bruce Dull, it urged Federal indemnification wherever there was Federal sponsorship for immunization. The cover memo argued:
Manufacturer liability for vaccine-associated disability … threatens a predictable vaccine supply ….
A decision on the Secretary’s part to pursue legislation for public management of vaccine-associated disability would relieve the apprehension and anxiety of public hea1th and medical professionals and of biologics producers.
This memorandum may not have reached Cooper, much less Mathews, for it ran afoul of adverse views in Cooper's staff. The issue had been up before, positions had hardened. As an opponent recalled for our benefit:
Behind these arguments for indemnification there were a number of assumptions which were untested and unsupported by facts. For one, it was contended that if the manufacturers were not indemnified, they would all stop making vaccine. But the number of companies in this business had been diminishing for a long time, for reasons totally unrelated to liability.
We just couldn’t buy this—that continued liability would drive them out.
And there were other unsupported assumptions, just sort of out there, loping across the plains.
But more than a distaste for coddling manufacturers was working at the top of PHS. There also was concern about ramifications far beyond the immunization field. Indemnification for companies (or even compensation to victims) here could be a precedent almost across the board of public health programs. These were the cautious views of Donald Carmody, an office director on Cooper’s staff, professionally a lawyer, who played