Vaccine Makers Shielded From Autism Liability Lawsuit

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Vaccine Makers Shielded From Autism Liability Lawsuit

Posted by Jane Akre

Wednesday, September 10, 2008 10:09 PM EST

An 11-year-old boy with autism and his family cannot proceed with

their case against pharmaceutical companies after a judge ruled that

federal law pre-empts state claims against companies if their

vaccines are FDA-approved.

, 11, of Texas, was given six vaccines during the first

year-and-a-half of his life.

Five of the vaccines contained the mercury-based preservative,

thimerosal. 's parents, and claim the

mercury in the vaccines caused 's autism.

The vaccine makers named in the product liability lawsuit were

Aventis Pasteur Inc., Merck & Co. Inc., and Wyeth.

But Philadelphia Common Pleas Judge Arnold L. New granted the

companies summary judgment and wrote that the drug makers are

shielded from liability by the federal National Childhood Vaccine

Injury Act.

22( of the Vaccine Act expressly pre-empts claims of design defects

or a failure to warn the public about a vaccine's dangers.

" Congress clearly intended when it enacted the Vaccine Act to

exercise its constitutionally delegated authority to preempt all

state design defect claims without case-by-case determination that

the side effects are unavoidable, " New wrote.

The 1986 National Childhood Vaccine Injury Act was created as a no-

fault system by the federal government to provide recovery of damages

to people hurt by vaccines and to reduce the potential financial

liability of vaccine makers due to injury claims.

The 's attorney Marc P. Weingarten of Locks Law Firm, had

argued that the drug companies were negligent because the public and

doctors were kept in the dark about the use of mercury in vaccines.

But Judge New ruled that violating the protection provided by the

Vaccine Act might destabilize the supply of child vaccines.

Weingarten said the case is " an extremely important issue to be heard

by the courts of Pennsylvania " because of the federal pre-emption

issues arising in pharmaceutical and medical device litigation in

both state and federal jurisdictions.

Proponents of vaccines argue that major studies have not found a link

between the use of thimerosal and neurological injury.

But scientists pointing to the case of Hannah Poling earlier this

year, put the industry on notice that pre-existing conditions in

children, such as mitochondrial disorder in Hannah, might result in

autism after vaccinations.

In March, Gerberding, head of the CDC, appeared with Dr. Sanjay

Gupta on CNN and confirmed that vaccines can trigger autism in a

subset of vulnerable children. That video is available via YouTube on

the web site of Adventures in Autism.

To overcome this federal safety blanket for drug makers, the

plaintiff would have to show the pharmaceutical companies engaged in

fraud or wrongfully withheld information from the FDA; or failed to

exercise due care even though the manufacturer complied with federal

laws and regulations.

Ultimately, measures aimed at reducing the right to file liability

lawsuits against drug and device makers is one tool of the tort

reform movement. #