Thimerosal Vaccine Lawsuit Can Go Forward, Georgia Supreme Court SaysOct 8, 2008 | Parker Waichman LLP
A Georgia couple with an autistic son will be allowed to sue the maker of the vaccine they claim is responsible for the child's disorder. In an unanimous ruling, the Georgia Supreme Court said that the National Childhood Vaccine Injury Compensation Act, the 1986 federal law that has been used to bar similar lawsuits, does not preempt state law. This case marks the first time a state appellate court has issued such a ruling in a vaccine injury case.
Marcelo and Carolyn Ferrari allege that a vaccine made by American Home Products Corp., now known as Wyeth, caused their son to develop autism. The vaccine contained the preservative thimerosal, a mercury-based chemical. The couples lawsuit claims that their son, Stefan, was a normal toddler before he was administered thimerosal-containing vaccines when he was 18 months old. The boy, now 10, hasn't spoken since.
According to the Department of Health and Human Services, the National Childhood Vaccine Injury Act of 1986 created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the lawsuit for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccine
Wyeth had argued that the Ferrari's lawsuit was barred by the National Childhood Vaccine Injury Compensation Act, claiming that Congress wanted the federal law to pre-empt state rules. Other courts have ruled in favor of this argument in other vaccine injury cases.
But the Ferrari's lawsuit contended that the federal law was meant to supplement state law, not replace it.
The Georgia court agreed with the plaintiffs. In its ruling, written by Justice George Carley, the court held that federal law "clearly does not pre-empt all design defect claims against vaccine manufacturers." To be immune from state defective design claims, the court said that vaccine manufacturers must prove on a case-by-case basis that the side effects of a particular vaccine were unavoidable.
For years, autism advocates have claimed that vaccines containing thimerosal contributed to autism. Thimerosal contains mercury, a chemical known to cause brain damage. In July 1999, following a review of mercury-containing food and drugs, the Centers for Disease Control and the American Academy of Pediatrics asked vaccine makers to remove thimerosal from vaccines as quickly as possible.
Despite a rising prevalence of autism among US children, the government and vaccine industry have insisted that thimerosal has not played a role in the autism epidemic. However, thimerosal has been removed in recent years from standard childhood vaccines. The only exception are flu vaccines, which are not packaged in single doses.