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10/24/2008 12:23 PM Thimerosal Vaccine Lawsuit Can Go Forward,
Georgia Supreme Court Says
Date Published: Wednesday, October 8th, 2008



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.

This entry was posted on Wednesday, October 8th, 2008 at 9:39 am and
is filed under Legal News, Pharmaceuticals.







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