11/21/02

ANDY DWORKIN

Last-minute additions to a bill creating the federal Department of Homeland Security will limit the legal rights of several Oregon families who have sued the makers of Thimerosal, a mercury-containing preservative once added to some childhood vaccines, an attorney for the families said Wednesday.

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The lawsuits claim that Thimerosal caused some children to develop autism or related nerve diseases.

A member of the U.S. House -- just who remains a mystery -- added three brief sections to the homeland security bill just before the House passed it last week. The Senate approved the bill Tuesday. The added text, less than a page long, affects more than 100 lawsuits over Thimerosal.

The language added to the bill says such claims must go through a special federal program that pays limited damages for vaccine-related injuries, rather than through the court system. Because some of the lawsuits seek billion-dollar damages, the legal change could substantially alter the fortunes of suing families and companies that made Thimerosal, especially its biggest manufacturer, Indianapolis-based Eli Lilly & Co.

One of the first suits making such a claim was filed by George and Tory Mead of Beaverton, whose 41/2-year-old son, William, is autistic. Portland lawyer Michael Williams is leading a coalition of 35 law firms that last year filed class-action suits on behalf of more than 1,000 U.S. families.

On Wednesday, Tory Mead and Williams condemned the congressional action.

"We were furious," said Mead, who says she mailed every member of the House asking them to oppose that part of the security bill. "As parents, we were just appalled that the interests of a pharmaceutical company were put above the interests of children who might have been injured by a product."

Williams acknowledged that the language would have limited impact on the cases he has filed. Judges have sent most of those suits to the federal Vaccine Injury Compensation Program, which involves the U.S. Court of Federal Claims. The court is a "no-fault" system with some limits on liability, paid for through a surcharge on vaccines.

Although trial courts were sending Williams' suits to the "vaccine court" anyway, he said he had been planning to appeal that decision to higher courts -- until the security act passed. "Now we can't" appeal, he said.

Awards in vaccine-related deaths are capped at $250,000, plus attorney's fees and costs, according to the federal government. Awards to injured children have averaged nearly $825,000. If the vaccine program rejects claims, petitioners can file a lawsuit.

The vaccine program does not cover injuries attributed to "contaminants" in vaccinations. Williams and other lawyers have sued in court, claiming Thimerosal is a contaminant.

Drug companies have said it is part of the vaccine, not a contaminant, and judges have agreed. The language in the security bill states that all preservatives and other components of vaccines are included in the definition of vaccine and must go through the no-fault program.

Williams and Mead wondered who added the language to the bill -- a question several Congress members contacted Wednesday could not answer. Williams and Mead noted that drug companies have donated heavily to many congressional candidates in recent elections and that the Bush administration has several close ties to Eli Lilly.

For instance, Mitch Daniels was a senior vice president of Eli Lilly when President Bush nominated him to become director of the Office of Management and Budget, his current post. The president appointed Sidney Taurel, Lilly's chairman, president and chief executive, to the Homeland Security Advisory Council. The president's father, former President George Bush, once served on Lilly's board of directors.

"This is a give-away to Eli Lilly, primarily, and some other foreign manufacturers of Thimerosal," Williams said. "It's the buzz in Washington that it's the lobbying coup of the year."

But it's unclear how long these provisions of the new law will be in force. Sen. Debbie Stabenow, D-Mich., plans to introduce a bill to strike the Thimerosal-related language when the next Congress convenes in January, said her spokesman, Dave Lemmon. Several other legislators questioned the addition of the Thimerosal text, which was nearly blocked by an amendment, and could back that bill, he said.

But Williams is skeptical it will pass. "I'll believe that when I see it," he said. Andy Dworkin: 503-221-8239; andydworkin@news.oregonian.com