Vaccine lawsuits filed against Lilly may go back to square one

By Maureen Groppe

mgroppe@gns.gannett.com

November 21, 2002

WASHINGTON -- Even if Congress rescinds the vaccine liability protections for Eli Lilly and Co. approved this week, those who have already filed lawsuits would still have to start over, according to Senate Majority Leader Tom Daschle, D-S.D.

The Senate on Tuesday passed a homeland security bill that included protections for companies that sold a mercury-based preservative put in childhood vaccines. But moderate Republicans, who opposed the provision, said they had secured a promise from the White House and GOP leaders to revisit the issue in January. At the very least, the lawmakers said, they would make sure the protection does not extend to lawsuits that have already been filed.

Eli Lilly is facing trial next year in the first of more than 45 vaccine-related lawsuits filed against the drugmaker.

But because the homeland security bill will become law before Congress returns in January, all lawsuits will be terminated, according to Daschle, who opposed the provision. "All of that casework, all of those people exposed will lose access to the courts," he said. "They'll have to start all over again."

Jerrold S. Parker, a New York lawyer whose firm is representing about 1,000 families making claims, said the judge in each case could have a different reaction to the congressional action.

"The real problem is we just don't know," Parker said. "We might be able to convince some judges to hold off on dismissing the case, but we just don't know how it's going to be handled."

Parker said if Congress doesn't change the liability protection for pending suits, litigants will challenge the retroactivity as unconstitutional.

The bill that passed, which President Bush is expected to sign into law, requires that families with complaints about vaccine preservatives and additives must first seek remedies through a federal program set up to deal with other vaccine injuries. Only if a family is unhappy with that outcome, can the manufacturer be sued.

Democrats and a few Republicans complained that the liability protection was slipped into a popular bill in the hopes of rewarding an industry that raises lots of campaign contributions for Republicans.

Call Maureen Groppe at 1-202-906-8118.