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Poetic Justice

Joseph Hennessey
Legal Times
04-03-2003


Poetry is an intuitive and beautiful form of human expression. Unburdened by the strictures and rules of prose, poetry communicates essentials of the human condition -- unsheathed humor, irony, cruelty and justice.

A peculiar humor accompanied a gift announced last November by Ruth Lilly, heir of the Eli Lilly pharmaceutical fortune, to a periodical called, simply, Poetry. Lilly had tried for years to have her poems published in Poetry with no success. Now apparently the 87-year-old heiress will have the last laugh by way of a $100 million bequest, which will undoubtedly leave an indelible mark on the magazine.

The size of this gift is best appreciated when one learns that the magazine operates on an annual budget of a mere $600,000 to serve a subscription list of just 10,000. To put $100 million in further perspective, the budget of the National Endowment for the Arts, which supports not just poets but artists of all stripes nationwide, is $126 million. The impossibility of Poetry absorbing this enormous gift is such a truism that an article in The New Yorker, an outlet for both poetry and prose, quoted someone who characterized Lilly's gift as the equivalent of giving $100 million to a cat.

A PAINFUL IRONY

Perhaps whimsically humorous to a disinterested observer, the gift was rather ironic to those who follow the machinations of government. News spread about this gift at approximately the same time that news spread about a gift to Eli Lilly and Co., the ultimate source of Ruth Lilly's wealth. A member of Congress -- no one knows who (a testament, itself, to the power of this company) -- inserted language into the Homeland Security Act that would have expanded Eli Lilly's tort immunity under the National Vaccine Injury Compensation Program for a preserving agent called thimerosal, which was not originally included in the scope of the act.

By way of background, the Vaccine Injury Compensation Program shields pharmaceutical companies from liability for injuries and death caused by complications from the vaccine. Under this law, parents of children injured or killed by a vaccine must turn to the federal government, not the maker of the vaccine, for compensation. In a program administered by the Justice Department, parents present their cases to the government, which assesses the bona fides of each claim of injury. Awards are limited to $250,000 for the death of a child; or, for injured children, compensable damages that can be proven and $250,000 for pain and suffering. The proponents of this system argue that shielding pharmaceutical companies from tort liability encourages them to produce more, lower-cost vaccines. By this logic, shielding the Ford Motor Co. from liability for the manufacture of the Pinto would encourage the production of more, lower-cost automobiles.

Critics of such tort immunity argue that the Vaccine Injury Act produced predictable results. With the government paying damage for injuries caused by the pharmaceutical companies' vaccines, the companies could become a bit "careless" about its products. Someday, a thorough investigation of facts will reveal the path of responsibility of this decision, but at a certain point vaccine makers started adding thimerosal to various vaccines.

So, what is thimerosal? Thimerosal is a mercury-based preservative (49 percent ethyl mercury) found in many vaccines including those for hepatitis B, diphtheria, pertussis, acellular pertussis, tetanus, and Hib. Of the many things known about mercury, one is quite simple: It is something that we should all act to keep our children from being exposed to. It would seem beyond imagination that mercury be injected directly into our infant children. But it was.

Testimonials from parents claiming that vaccines were causing autism in their children have been dismissed and discounted by health care professionals. Yet, an investigation into mercury additives for vaccines was instigated in 1997. Rep. Frank Pallone Jr., a New Jersey Democrat whose district includes shore towns where mercury in fish is an environmental concern, and who has become a leading advocate for investigation into the injurious effect of mercury, added an amendment to the FDA Modernization Act of 1997 to require the Food and Drug Administration to inventory all mercury contained in licensed drugs and vaccines. An FDA investigative team was formed to comply with this mandate.

TOO MUCH MERCURY

The team's results, The New York Times has reported, were startling. The FDA team concluded that the cumulative effect of the thimerosal contained in the full gamut of recommended vaccines had tripled the dose of mercury that infants got in their first few months of life. As many as 30 million American children may have been exposed to mercury in excess of Environmental Protection Agency guidelines -- levels of mercury that could cause neurological impairment, including autistic symptoms.

Herein lies cruelty. There are thousands of children across the country who spiraled into autism concurrent to being injected with mercury-laced vaccines. Families are left with children who are mere shadows of their former selves. Parents are struggling to find treatments that will restore these children's neurological function and win them their lives back. My wife and I are still trying to determine whether thimerosal is responsible for the autism of one of our children. We are fortunate that our son is "high-functioning." Other parents are not so lucky. Care of their autistic children takes enormous time and resources.

Shortly after recognizing the danger caused by thimerosal, the federal government mandated that the drug companies stop adding it to their vaccines. What scared the pharmaceutical companies and made them eager to expand the reach of the vaccine injury program was that it is not at all clear that the law was intended to provide tort immunity for anything other than complications arising from the vaccinating agent itself. The decision of pharmaceutical companies to mix this mercury additive with their vaccine serums might expose them to actual civil litigation.

Indeed, parents and plaintiffs' lawyers have filed more than 1,800 lawsuits nationwide over thimerosal. Some are in the program that the Vaccine Injury Act established. Others are in state and federal courts, trying to avoid the draconian statute of limitations that the act imposes.

Moral outrage and the courage of Republican Sens. Lincoln Chafee of Rhode Island, Susan Collins and Olympia Snow of Maine, and John McCain of Arizona, who stood up to the Republican leadership, derailed the attempt to use the Homeland Security Act to shield the pharmaceutical companies for their decision to use mercury in vaccines.

Yet the fight is not over. Senate Majority Leader Bill Frist of Tennessee has promised that he will revisit the tort immunity issue, and perhaps even expand it. Parents of vaccine-injured children are scrambling to find legislative allies to fight this additional gift to the pharmaceutical industry. Yet, it is difficult to compete with the hefty campaign contributions that this industry disburses. Meaning, incredibly, taxpayers may well fund even more of Eli Lilly's liabilities, Eli Lilly will get to keep even more of its profits -- and Ruth Lilly will give $100 million to a "cat."

Humor, irony, and cruelty ... but what of justice? This is verse yet to be written. As a parent, I long for the day when pharmaceutical company representatives are forced to raise their hands in oath to testify about why they added the known poison of mercury to my children's vaccines. As a member of the bar, I am eager to apply my litigation skills to the truth-ascertaining process of civil litigation. Yet justice, "poetic justice," need not await the adversarial process. Ruth Lilly's favorite periodical itself is empowered to compose pentameter on how to do justice for autistic children.

THE POWER OF POETRY

John F. Kennedy once said: "When power leads man toward arrogance, poetry reminds him of his limitations. When power narrows the area of a man's concern, poetry reminds him of the richness and diversity of his existence. When power corrupts, poetry cleanses."

Though power led to Ms. Lilly's gift, Poetry has the power to remind her, and all of us, of our limitations. Though power narrowed the concern of Lilly and her legacy company, Poetry has the power to remind them, and all of us, of the richness and diversity of our existence by bringing into the limelight those maimed by the use of mercury in the childhood vaccinations. Though power has corrupted those in government to protect their powerful corporate allies, Poetry has the power to cleanse the public ethos by doing, without obligation to do so, the right thing.

Poetry should feed itself, give itself clean and warm shelter, and provide the resources needed so that many a lonely poet might purr. Yet Poetry should take the bulk of the $100 million and give it to those children crippled by the vaccines made by Poetry's ultimate benefactor. Poetry should announce that it will donate $90 million of the $100 million given by Ms. Lilly to vaccine-injured children. Such an act would effect poetic justice.

Joseph Hennessey is an attorney at the Cullen Law Firm, in Washington, D.C., and the father of a child diagnosed with autism.


 

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