A Capitol Hill Mystery: Who Aided Drug Maker?

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http://www.nytimes.com/2002/11/29/politics/29VACC.html

New York Times

November 29, 2002

A Capitol Hill Mystery: Who Aided Drug Maker?

By SHERYL GAY STOLBERG

WASHINGTON, Nov. 28 — Lobbyists for Eli Lilly & Company, the pharmaceutical

giant, did not have much luck when they made the rounds on Capitol Hill

earlier this year, seeking protection from lawsuits over a preservative in

vaccines. Senator Bill Frist, Republican of Tennessee, tucked a provision

into a bill that went nowhere. When lawmakers rebuffed a request to slip

language into domestic security legislation, a Lilly spokesman said, the

company gave up.

Now, in a Washington whodunit worthy of Agatha Christie, the provision has

been resurrected and become law, as part of the domestic security

legislation signed on Monday by President Bush. Yet in a city where

politicians have perfected the art of claiming credit for deeds large and

small, not a single member of Congress — or the Bush administration — will

admit to being the author of the Lilly rider.

" It's turning into one of Washington's most interesting parlor games, " said

Dave Lemmon, spokesman for Senator Debbie Stabenow, Democrat of Michigan,

who has promised to introduce legislation to repeal the provision. " There's

a lot of guessing, a lot of speculation as to who did this. "

The provision forces lawsuits over the preservative, developed by Eli Lilly

and called thimerosal, into a special " vaccine court. " It may result in the

dismissal of thousands of cases filed by parents who contend that mercury

in thimerosal has poisoned their children, causing autism and other

neurological ailments. Among them are ph and Theresa Counter of Plano,

Tex., devoted Republicans whose party allegiance has run smack into family

ties.

The Counters' 6-year-old son, ph , was normal and healthy

until he was 2, they say. Then he took an unexplained downward slide.

Today, the boy struggles with words. He cannot zip his pants, snap buttons

or tie his shoes. His parents say tests eventually showed that he had

mercury poisoning, which they attribute to vaccines. They sued last year.

" I know that our legislative system can be very, very messy at times, " said

Mr. Counter, a political consultant, who with his wife has spent many

thousands of dollars on medical care and therapy for their son. " But for

them to attempt this, in the dead of night? It disgusts me. This morning, I

am ashamed to be a Republican. "

With lawmakers now scattered across the country, Washington is rife with

speculation about who is responsible for aiding Lilly, a major Republican

donor. During the 2002 election cycle, the company gave more money to

political candidates, $1.6 million, than any other pharmaceutical company,

with 79 percent of it going to Republicans, according to the Center for

Responsive Politics, a nonprofit research group that monitors campaign

finances.

Critics of the provision, mainly Democrats and trial lawyers, are quick to

point out that the White House has close ties to Lilly. The first president

Bush sat on the Lilly board in the late 1970's. The White House budget

director, E. s Jr., is a former Lilly executive. The

company's chairman and chief executive, Sidney Taurel, was appointed in

June by President Bush to serve on a presidential council that will advise

Mr. Bush on domestic security.

The White House, however, has said that it did not ask Congress for the

provision. Rob , a spokesman for Lilly, said that the company's

lobbyists " made absolutely no contact with Mitch or anyone in his office

about this, " and that Mr. Taurel " did not at any time ask " for any favors.

" It's a mystery to us how it got in there, " Mr. said of the provision.

Senator Frist has said it is a mystery to him as well. As the Senate's only

doctor, he sought to include the provision in legislation that would

promote the availability of vaccines. But the vaccine bill is stalled;

Senator M. Kennedy, the Massachusetts Democrat who is chairman of

the Senate health committee, opposes it. Mr. Frist's spokesman said he did

not seek to have the provision included in the domestic security bill.

On Capitol Hill, Congressional aides-turned-detectives have traced the

emergence of the provision to the Veterans Day weekend. Flush from their

party's victories on Election Day, and with a mandate from President Bush

to pass a domestic security bill, Republican negotiators in the House and

Senate holed up for three days in the Capitol to hammer out the details,

said Diamond, spokesman for the retiring House majority leader,

Representative Dick Armey of Texas.

One aide said the language mysteriously appeared in the House version of

the bill in entirely different type than the rest of the measure, as though

someone had clipped it out of Mr. Frist's legislation and simply pasted it

in. Mr. Diamond said all the negotiators supported the move, but would not

say who was responsible.

" If you want to give somebody credit for it, " he said, " Mr. Armey takes

ultimate credit. It's his bill. We are happy to wrap ourselves around it,

but Mr. Armey is not a doctor, like Senator Frist. He's the source of the

language. "

Whether thimerosal is truly harmful is the subject of intense scientific

controversy. Earlier this year, the National Academy of Sciences issued a

report saying there was no scientific evidence either to prove or disprove

a link between thimerosal and brain disorders like autism. But the academy

did find that such a link was " biologically plausible, " and so it urged

pharmaceutical companies to eliminate thimerosal, which has already been

removed from many vaccines, as quickly as possible.

The Lilly rider closes a loophole in a 1986 law that requires victims to

file claims with the vaccine court, which awards payments from a

taxpayer-financed compensation fund, before going to civil court. But the

law covered only vaccines themselves, not their ingredients, which meant

people like the Counters could sue ingredient manufacturers like Lilly

directly.

While Washington debates the origins of the provision, families are fuming.

Some say the government fund will do them no good, because they have missed

the statute of limitations — three years from the date symptoms first

appear — for filing claims. and Bono of Durham, N.C., say that

while their son , now 13, showed symptoms similar to autism six or

seven years ago, it was not until August 2000 that they learned he had

mercury poisoning. They filed suit just the other day.

Aware of the controversy, lawmakers in both parties have pledged to alter

the thimerosal rider, but are arguing about how to do so. While many

Democrats want it repealed, Republicans have suggested that they may simply

alter the language to apply to future cases only.

" I'll believe it when I see it, " said Mr. Waters, the Counters' lawyer.

In the meantime, Mr. , the Lilly spokesman, said his company would

soon go to court to seek dismissal of the suits.

That news made Theresa Counter cry.

" It just makes me sick, " she said. " I cannot tell you how devastating it is

to think that we might have to start all over. "