Whether courts should extend the precedent of Jacobson v. Massachusetts to require that a mandated vaccine be necessary, harm-avoidant, proportional and non-discriminatory, with individualized exemptions

QUESTIONS PRESENTED On July 17, 2017, Petitioner Jane Doe, on behalf of her then minor, and disabled son, Baby Doe, filed this lawsuit in the Eastern District of New York under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. § 300aa-1, et. seg., seeking punitive damages against Merck under §11(a)(2)(A), and equitable relief against the Secretary of Health and Human Services [HHS] under §31, Citizens Action, alleging defendants are in violation of their respective licensing, product warning, labeling and reporting duties for the Food and Drug Administration’s [“FDA’s”] measles, mumps and rubeola [“MMR’] vaccine licensed to pharmaceutical Merck & Co., Inc. Petitioners present the following questions: I. Should Courts extend the precedent of Jacobson v. Massachusetts, 197 U.S. 11 (1905), for the legal requirement that a vaccine licensed through HHS, that is mandated, be necessary, harm-avoidant, proportional and non-discriminatory, requiring individualized exemptions for those eligible and not suitable for vaccinations? II. Whether the Second Circuit erred finding plaintiff failed to exhaust remedies for a claim “MMR causes autism,” overlooking petitioner had exhausted below on the “MMR\TCV! causes autism” and “TCV causes autism” theories, and 1 Thimerosal is an organic compound that contains ethyl mercury and is found in Thimerosal Containing Vaccines “TCVs”. ‘ demonstrated the reliance necessary to prove fraud, and conspiracy to commit fraud, the Court found was lacking? Il. Whether the Second Circuit erred in declining primary jurisdiction over petitioner’s Citizens Action against the Secretary, by creating an exhaustion requirement based on its policy view that FDA is better suited to adjudicate the §31 Citizens Action against the Secretary of HHS? ii