Congress shields the maker of thimerosal
Margaret Cronin Fisk
The National Law Journal
11-27-2002
A rider to the Homeland Security Act has dealt a significant blow to suits claiming that the mercury-containing preservative thimerosal, used in childhood vaccines, is linked to autism.
"It's a get out of jail free card for Eli Lilly and other makers and suppliers of thimerosal," asserted plaintiffs' attorney Michael Williams of Portland, Ore.'s Williams, Dailey, O'Leary, Craine & Love. "It grants the same protection to the makers and suppliers of thimerosal as to the makers of the vaccines."
"Plaintiffs have zero recourse," said Carlton Carl, director of media relations for the Association of Trial Lawyers of America (ATLA). "We anticipate that the minute the bill is signed, Eli Lilly will be in the various courts filing for dismissals. All the pending suits are history, or will be."
The defendants deny that the rider will prevent any family from bringing a claim. "This will not absolve manufacturers," said Edward Sagebiel, spokesman for Eli Lilly & Co. Instead, it requires plaintiffs first to file claims with the federal Vaccine Injury Compensation Program.
If dissatisfied, Sagebiel said, the plaintiff can then sue elsewhere.
The relevant amendment in the Homeland Security Act redefines ingredients listed within a vaccine's product-license application or product label as part of the vaccine. Any claim against thimerosal is thus redefined as a claim against the vaccine.
Plaintiffs' attorneys had been attempting to describe thimerosal as a contaminant. That would allow lawsuits to avoid vaccine court and go forward in state courts, thus skirting the statute of limitations and damages caps in the federal vaccine compensation program, notes Michael Stroutmanis of ATLA. The amendment eliminates this possibility.
Dozens of lawsuits, including putative class actions, have been filed across the United States, claiming that autism or other neurological defects were caused by exposure to mercury in vaccines. None of these lawsuits has gone to trial; none is even close, said plaintiffs' attorney Andrew Waters of Dallas' Waters & Kraus. The amendment will delay this litigation even further, he added.
The amendment will also wipe out a significant number of claims, because the claimants will be barred by the vaccine program's three-year statute of limitations, said Lyn Redwood, president of Safe Minds, a Cranford, N.J.-based support group for parents with autistic children. The families suing over thimerosal typically were unaware that thimerosal was in the vaccines or that there were allegations of a link between vaccines and autism until long after the first symptoms of autism appeared, she contended.
The Homeland Security Act rider, however, will not completely thwart such litigation, Waters said. The amendment will help ward off products liability actions, "but we're charging fraud and conspiracy," Waters said. The rider would not affect those claims.
Just how the amendment appeared in the Homeland Security bill is unclear.
"We only found out about it after they voted on it in the house," said Redwood. While Lilly is a prime beneficiary of the amendment, the company did not propose it, asserted Sagebiel. "We were as surprised as anyone that this language was inserted into the bill."
The congressional allies of the parents were unaware of the language, Redwood noted. Rep. Dan Burton, R-Ind., for instance, as chairman of the government reform committee, has held hearings on thimerosal and autism, but voted for the act with the vaccine rider. "He voted for the bill as a whole," said Burton's legislative aide Nick Mutton. "He was unaware at the time of the provision. He didn't read the whole bill."
Whoever proposed this amendment, the industry's point of view was well known, said Len Lavenda, spokesman for Aventis. "We've been talking to legislators about this major threat to our industry. The trial attorneys are trying to circumvent the vaccine program, particularly in regards to thimerosal lawsuits."
The defendants deny that thimerosal in vaccines has had any causal relationship to autism. "There remains no scientific data to support a connection between thimerosal and autism," Lavenda said.
There may be challenges to the law, added Stroutmanis. "You can make the constitutional argument that the plaintiffs have a vested property right in these cases." These rights, he noted, "can't be taken away by federal law."
Several senators and representatives, including Burton, are seeking to rescind this portion of the Homeland Security Act once Congress reconvenes in January, Mutton added.