They say it was slipped into Homeland Security bill to shield drug companies from litigation By TERENCE J. KIVLAN  ADVANCE WASHINGTON BUREAU

Sunday, December 29, 2002

By TERENCE J. KIVLAN
 

WASHINGTON -- Parents with children suffering from autism are outraged at a provision slipped into the Homeland Security bill to shield drug companies from litigation over a vaccine preservative alleged to cause the disorder.

The two-paragraph provision was quietly inserted into the 475-page bill as it was about to pass Congress last month by House Majority Leader Dick Armey of Texas, apparently to protect the Eli Lilly company. It introduced the mercury-laden preservative -- called thimerosal -- 60 years ago and has been recently hit with hundreds of lawsuits filed by families seeking damages.

The provision retroactively bars such lawsuits in state courts, thus eliminating the possibility of large judgments, and channels all complaints into a 14-year-old, taxpayer-financed compensation program in which awards are capped at $250,000.

"This is really a horrible situation," said Joseph Gamble of Annadale. "A tremendous injustice has been done to thousands of people."

Gamble, the father of a 10-year-old autistic son and the executive director of the Grace Foundation, a support group representing about 300 Island families affected by autism, said Armey's last-minute maneuver had embittered many of them against the Republican Party and President Bush.

"A lot of people are saying they are never going to vote Republican again," said Gamble, a plaintiff in one of the Eli Lilly lawsuits.

TIES TO ELI LILLY

Other Island members of the Foundation charge that Armey acted at the urging of the White House, which they say has close ties to the Eli Lilly. As evidence of the relationship, they note that Bush's father once sat on the company's board and that current White House Budget Office director Mitch Daniels is a former Eli Lilly executive.

"This is absolute travesty," said Gina Giordano of Tottenville, the mother of an 8-year-old autistic boy. "I believe 100 percent that there is a cover-up going on within the White House and the Republican Party."

She charged that Armey was selected as the "fall guy" for taking responsibility for the provision because he was retiring from Congress as of Jan. 1.

"As far as I am concerned, this came from the White House," said Thomas McComb or Grant City, who has a 5-year-old autistic son. "The more you look at this, the more disgusting it is."

Armey has denied acting at the behest of the White House and defended the provision as necessary to protect Eli Lilly and other drug companies that produce life-saving childhood vaccines from a bankruptcy-threatening flood of litigation.

Eli Lilly officials say they sought to have the anti-liability provision attached to the Homeland Security package this summer but ceased their lobbying efforts this fall when congressional leaders informed them they wanted a "clean bill."

Although Eli Lilly had nothing to do with the last-minute inclusion of the provision, the company still "strongly" supported it, said spokesman Ed Sagebeil. "It is an important part of homeland security to make sure our nation has viable vaccine program," Sagebeil said.

He also contended that there was "no credible evidence" connecting thimerosal to autism and that, in fact, several recent studies on the issue had ruled out the link.

"We have the deepest compassion for families with individuals suffering from autism but the link between thimerosal and autism does not stand up," he said.

The Island families and their lawyers disagree. "We are not saying that it 'causes' autism," said Gamble of thimerosal. "But we are saying that it is a trigger for someone who might be pre-disposed to autism."

Mrs. Giordano stressed that the heavy mercury content of thimerosal automatically made it a highly dangerous substance. "We know that mercury is one of the most toxic metals in the world," she said. "How could it be injected into children and be safe?"

Evan Feinberg, a lawyer for some of the Island families suing Eli Lilly, dismissed as "propaganda" the recent studies concluding that thimerosal was not a factor in autism. He said his side has assembled a large body of evidence showing that autism was a "form of mercury poisoning."

An effort to strip the homeland security bill of the anti-liability rider has been announced by several members of Congress, including one leading Republican, House Government Reform Committee Chairman Dan Burton of Indiana, Eli Lilly's home state.

In a recent statement, Burton, who has an autistic grandson, said the provision "takes away an avenue for restitution" and "leaves families without hope."

Republican Rep. Vito Fossella indicated he was in favor of revisiting the issue to reach a compromise acceptable to both the companies and the families. "I have seen first-hand the debilitating effects of autism," he said in a statement. "Not for a moment will we allow to stand a law that is not in (the families') best interest."

"We need to strike the right balance to ensure that there is an adequate number of vaccine producers ... while also guaranteeing who have been harmed access to appropriate legal remedies," said the congressman.

Aides stressed that he had been a long-time supporter of the Grace Foundation and had served as the honorary chairman of a recent fund-raising event held by the group.