Autistic children face lawsuit limits
A measure slipped in the homeland security bill would mean those injured by childhood vaccines could collect only $250,000.
By SARA FRITZ, Times Washington Bureau Chief
© St. Petersburg Times
published November 16, 2002
WASHINGTON -- If the long-awaited homeland security bill passes Congress next week as expected, it could mean a big setback for parents of autistic children like 4-year-old Nicholas Liu.
Kevin and Mache Liu are among the parents of some 150 autistic children who have filed suit against the drug industry in the past two years, alleging their children's conditions were caused by Thimerosal, a mercury preservative once included in childhood vaccines designed to prevent measles, mumps and rubella.
Although the bill is intended to create a federal Homeland Security Department, it includes a little-known, last-minute amendment that will effectively end legal battles for compensation from several major drug manufacturers.
The amendment would keep the lawsuits out of state courts, preventing huge judgments, and instead send complaints to a 14-year-old federal program limiting compensation for children who suffer side effects of vaccines to $250,000.
The amendment is one of more than a half-dozen tacked onto the bill. The homeland security bill has been agreed to by House and Senate leaders, but it is not expected to come to a final vote in the Senate until shortly before Congress adjourns next week.
Some Senate Democrats want to challenge the amendments, but that would be difficult because the House went home for the year after passing the bill. House members would have to be called back to Washington to approve the amended bill and get it to President Bush. House leaders have said they don't want to call representatives back.
"Does this have anything at all to do with homeland security? The answer is no," Sen. Byron Dorgan, D-N.D., told the Associated Press. "This is bad legislation."
As usual, nobody in Congress is taking direct responsibility for adding the drugmaker amendment, which will save the pharmaceutical industry millions, if not billions, of dollars.
Rep. Dick Armey, R-Texas, has denied reports that he wrote the amendment at the urging of White House officials. Armey's spokesman said it came from Sen. Bill Frist, R-Tenn. Frist's aides said that while he wrote a similar provision that never passed, he had nothing to do with putting it into the homeland security bill.
Executives of Eli Lilly & Co., a leading defendant in the parents' lawsuits, say they are pleased with the amendment but have no idea how it wound up being attached to the homeland security bill.
The pharmaceutical industry contributed more than $14-million to congressional candidates before the Nov. 5 election, more than three-quarters of it to Republicans. Lilly alone contributed $1.6-million, making it the most generous political donor in the industry. Democrats, meanwhile, were heavily backed by trial lawyers in this year's elections.
Attorneys for the autistic children were stunned to learn of the amendment.
"Holy smokes!" declared Jack Marstall, a lawyer in Louisiana.
"I guess my 4-year-old client represents a threat to homeland security," added Charles S. Siegel of Dallas.
"The industry has seized the opportunity presented by a Republican House and Senate to immediately pass legislation to get the industry off the hook," Dallas lawyer Andrew Waters told the Washington Post. "To me, it looks like payback for the fact that the industry spent millions bankrolling Republican campaigns."
Siegel's clients, the Liu family, are seeking compensation from the drug companies for medical and educational expenses, as well as for pain and suffering, on grounds the industry failed to warn parents of the potential danger of Thimerosal. No compensation figure is specified in their suit.
According to Siegel, Lilly executives told top White House officials recently that their company would not participate in the administration's program to produce smallpox vaccine unless it got immunity from suits filed by those who suffer from side effects of the vaccine.
Lilly spokesman Edward Sagbiel said the allegation was "absolutely false." He said the purpose of the amendment was to "stem the tide of frivolous lawsuits" filed by plaintiffs' lawyers against pharmaceutical and other industries.
Sidney Taurel, Lilly's chairman, president and chief executive, is a member of the White House Advisory Council on Homeland Security.
By executive order after Sept. 11, 2001, President Bush declared that makers of smallpox vaccine will be protected from any liability by the government if they are sued in the future for adverse reactions among patients. The administration has already indemnified Wyeth and Aventis Pasteur on that basis, and a third company is awaiting approval.
Both Sagbiel and Richard Diamond, spokesman for Armey, said the legislation was simply designed to clarify the intent of the 14-year-old National Childhood Vaccine Injury Act.
Lilly has not manufactured Thimerosal for 20 years, Sagbiel said, and the industry now relies on a different preservative in MMR vaccine. Medical research has not established a link between autism and Thimerosal.
Siegel said he does not understand why the drug industry needs help from Congress if their legal case is already so strong. "To say this is not an Eli Lilly bailout is ridiculous," he added.
Nicholas Liu of Pflugerville, Texas, was developing normally until he turned 16 months old, Siegel said. "Then he completely changed, as his parents say, retreating into his own world."
He said the parents are convinced the change was linked to the vaccine he received from his physician.
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