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Homeland Bill's Surprise Side Effect

Vaccine Maker Protected From Class-Action Suit

Nov 22, 2002 | San Francisco Chronicle

Jill Martinez of San Rafael saw this week's passage of a bill creating a huge new federal Homeland Security Department as a cruel joke.

Three sections tacked on at the last minute to the 484-page legislation directly affect Martinez, her husband, Gonzalo, and their 4-year-old autistic son by limiting their right to sue the makers of a mercury-based vaccine preservative they believe could be responsible for the young boy's condition.

Critics say the protection given to Eli Lilly and Co. and other firms was a brazen example of a favor White House and Republican congressional leaders granted to a huge GOP campaign donor that short-circuits the usual hearings and debate on legislation.

But defenders of the legal protection for the pharmaceutical-makers say the families of autistic children might be able to get payments through the existing National Vaccine Injury Compensation Program. They also say the new limits on lawsuits are part of the battle against greedy trial lawyers in search of big damage awards from juries.

No definite link has been made between the preservative, called Thimerosal, and the rising tide of autism among young children.

But hundreds of families, including the Martinezes, have joined in class- action lawsuits against Lilly, seeking damages and answers. None has gone to trial, and all the existing lawsuits will be thrown out after President Bush soon signs the bill.

After Congress voted, Martinez was left wondering what her son's autism has to do with the war against terrorism.

"It sounds suspicious, to be frank. I try not to be jaded, but I feel real disappointed," said Martinez, whose son started displaying symptoms of autism about 18 months ago, after he had received a host of the normal early childhood vaccinations given to all youngsters.


The provision involving Thimerosal, which is no longer used in vaccines, was one of several that made for a dramatic last day of Senate debate on the bill that created the new Homeland Security Department, which was one of Bush's top legislative priorities for 2002.

Senate Democrats tried unsuccessfully to wipe out the provision, and three moderate Republicans who were thinking of voting with them exacted a pledge from Senate Minority Leader Sen. Trent Lott, R-Miss., that the issue will be "revisited" in the new GOP-controlled Congress.

"It is extremely unfortunate that the Republican leadership took advantage of the public desire for security to slip these outrageous provisions in the bill," said Rep. Nancy Pelosi, D-San Francisco, who will be House minority leader in the new Congress.

Michael Bender of the Mercury Policy Project, a small group based in Vermont that was created by the Tides Center of San Francisco, said some Republicans are talking about changing the statute of limitations for filing claims under the vaccine compensation program from three years to six years.

"But some parents of autistic children don't understand their children are affected for many years. Those parents now may have no other legal recourse because the Congress has cut their legs out from under them," Bender said.

"The Congress has allowed Eli Lilly to use a national threat to America to forward their own agenda," he charged.

Before passage of the Homeland Security bill, if the vaccine compensation program had rejected the Thimerosal claims, families could then file lawsuits.

Lilly, a multinational corporation based in Indianapolis, with annual sales of about $11 billion, made $1.6 million in campaign contributions during the 2002 election cycle, with about 75 percent going to Republicans.

Mitch Daniels, Bush's budget director, worked for Lilly for a decade before the president took office in 2001, and Lilly Chairman and CEO Sidney Taurel serves on the president's Homeland Security Advisory Council.


Still, Lilly spokesman Ed Sagebiel said, the new legislation was unexpected.

"We're as surprised as anyone that the provision was inserted into the bill.

Once it was there, however, we supported it," he said.

Lilly supported similar legislation introduced early this year by Sen. Bill Frist, R-Tenn., the only physician in the Senate.

Frist defended the Thimerosal provision on Tuesday and was particularly scornful of lawyers who are telling families that childhood vaccinations are responsible for their children's autism -- and of senators who indicated sympathy for that idea.

"It's grandstanding that crosses the line. It's a false premise, not based on medical science, and it scares parents, telling them their children will be harmed by getting vaccinated," he said.

It's estimated that by the time American children enter kindergarten, they get 26 vaccinations.


Sagebiel said Lilly stopped making the preservative about two decades ago, and the substance's use has been phased out over the past several years.

In 1999, federal authorities, medical associations and vaccine-makers agreed that as a precaution Thimerosal should no longer be used in vaccines.

Lilly and other pharmaceutical firms say trial lawyers are going after the companies because of their deep pockets. In the compensation program, damages are capped at $850,000 for children harmed by vaccines.

"A number of lawsuits that are without merit have been filed. That's why this legislation is a good idea. It prevents groundless lawsuits," Sagebiel said.

But Martinez thinks her family deserves its day in court.

"When I was pregnant, I ate organic food, and I did everything I could to have a healthy baby. I think what Congress did is very irresponsible, and now I'm very worried about the quality of my son's life for the rest of his life," she said.

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