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Flash of Hope – Why the Georgia Supreme Court Case is Important. (American Home Products Corp. v. Ferrari)

Kent_legalBy Kent Heckenlively, Esq.

The pharmaceutical companies and government health authorities don’t want the “vaccine-autism” theory in civil courts.

It is so important you understand this idea, I’ll say it again.

The pharmaceutical companies and government health authorities don’t want the “vaccine-autism” theory in civil courts.

That’s why the recent unanimous Georgia Supreme Court decision allowing plaintiffs to sue for vaccine injuries in civil court if the damage is due to a “design-defect” is so important.

Because if the parties are in civil court then the advantage shifts significantly to the plaintiffs.  For example, in civil court there is the right of discovery, meaning you can ask for relevant documents, and unless there’s a compelling reason not to produce it, the other side has to turn it over.

In vaccine court, the plaintiff families had to request the court for documents from the other side and the court was under no obligation to produce them.  As many of us who follow this issue believe the pharmaceutical companies and government health authorities currently hold documents which substantiate many of the claims being made by plaintiff families, this is a significant change.

I also believe there’s likely to be a significant philosophical difference in how these cases would be viewed in the civil courts.  In your typical civil trial the jury hears the testimony and reviews the evidence.  They ask themselves, is the testimony and evidence credible?  Consider the situation if your humble correspondent and his wife were on the witness stand.

I am an attorney who during law school was a writer and editor on the law review.  Now I’m a science teacher.  My wife has been a speech therapist for the past 20 years.  It’s hard to peg us as radicals, or unstable in any way.  The jury would be inclined to believe us.

When they turned to the defense, they’d want a clear answer as to why we were wrong, and I don’t believe the pharmaceutical companies and the government health authorities would be able to provide it.  As Dr. Bernadine Healy, former head of the National Institute of Health recently said, the health authorities haven’t really examined the issue because they seem afraid of what they might find. 

That doesn’t look well in the eyes of a jury looking at an autistic kid, who like mine, might also have seizures as well.

There’s an additional point in the Georgia case which may change the situation dramatically for families pushing the vaccine-autism theory.

For more than 20 years the pharmaceutical companies and government health authorities have said that families must first go to vaccine court before going into civil court.  For most, that is a long and expensive road to travel.  In the recent movie, “Flash of Genius”, the main character faces the dilemma of whether to sue the Ford Motor Company for stealing his invention.  He’s told that Ford has all the “time and money” in the world.  It's the same with those families alleging vaccines harmed their children.

The unanimous Georgia Supreme Court decision turned that disadvantageous situation on its head.  They found that one does not need to necessarily go first to vaccine court.  You can go to civil court first if you’re alleging a “design defect”, which in this case is the addition of thimerosal to the vaccines.  You only need to go to vaccine court first if there was no way the vaccine could’ve been made any safer, on in legal parlance it was "unavoidably unsafe." 

To understand the difference between "unavoidably unsafe" and "design defect", think of a stick of dynamite.  The dynamite is "unavoidably unsafe" because it's purpose is to cause a big explosion.  If the fuse in the dynamite burns so quickly that you can't get away in time, that's a "design defect."  In order to make a vaccine, you need a dead or weakened virus.  That may be the "unavoidably unsafe" part of the vaccine.  But the mercury, the aluminum, and all of the other junk can probably be substituted with different, less biologically active substances.  That's the "design defect."  Personally, I feel you could also enlarge the "design defect" argument to encompass the viral component of the vaccine, but that's an argument for another day.

The Georgia Supreme Court came to this conclusion by reading the congressional record and supporting information regarding the passage of the National Childhood Vaccine Injury Compensation Act of 1986.  According to the Supremes of Georgia, the 1986 act was never intended to force all vaccine-injury cases into vaccine court, only those for which the injuries were unavoidable.  If there was an alternative which might have prevented the harm, (like thimerosal-free vaccines) the companies will still be liable.

I’m sure there’s going to be a fight and it’ll probably end up in the Supreme Court, but from where I sit the long-term outlook appears good.  To be certain, there are reasons to be concerned whether the make-up of the court is conservative or liberal.  Conservatives have a reputation for being supportive of business and liberals have a reputation for being supportive of big government programs.  I’ve often commented that the collusion of big business and big government pretty much makes this situation the “perfect storm”.

But both sides generally agree on the idea that looking at congressional intent is a fair way to review an issue like this.  And if the Georgia Supreme Court is correct that in looking at congressional intent it’s pretty clear that they didn’t intend to funnel all vaccine cases into vaccine court, then things have changed dramatically.

In the climax of “Flash of Genius”, the inventor is offered 30 million dollars by the Ford Motor Company to settle the case, but without the acknowledgement that they stole his invention.  He turns them down.  He wants the truth.  The jury returns a verdict which gives him millions of dollars, and finds that Ford stole his invention.

“Flash of Genius” is a true story.  There is still reason to hope that the truth of what happened to our children will one day be revealed.

Kent Heckenlively is Legal Editor of Age of Autism.

Comments

Theresa O

MinorityView, the respondent's attorney in Bruesewitz v Wyeth must have worked on her oral arguments with TheProbe. Check out the exchange with Justice Kennedy:

JUSTICE KENNEDY: But if the manufacturer is slow or remiss or negligent or willful in not giving the information to the Government, there is nothing the injured person can do. There is still complete preemption, under your view?
MS. SULLIVAN: Of design defect claims, Justice Kennedy.

What's interesting is that if this is true--if the Supreme Court interprets the 1986 compensation act the same way the respondent interprets it--then the compensation act is about as fair and just as, say, the Three-Fifths compromise (http://en.wikipedia.org/wiki/Three-fifths_compromise).

I'll bet TheProbe remembers the Three-Fifths compromise, because it was part of (Article 1, Section 2, Paragraph 3) the Constitution. You know, the supreme law of the United States?

I think we can all recognize that some laws are bad laws. The 1986 vaccine injury compensation act is one of them.

MinorityView

The Probe,

Thanks for answering my query. So you believe that Congress meant to protect the vaccine manufacturers even if they knowingly made a defective product and knowingly continued to use this defective product and knowingly injured hundreds of thousands of infants and children? I wonder if Congress was aware of this intent? Why would they provide a protection so broad that it would allow an industry to cause mass damage with total impunity?

No, I suspect that the vaccine manufacturers prefer to have the government fight their battles for them and that they also prefer not to have to release some of their documents.

TheProbe

Minority View: "Alyric and The Probe,
So, why is Wyeth trying to get this case back to vaccine court if they could easily win in the regular court? Just curious."

Probably several reasons, one of which I mentioned, i.e., having only one forum to have these cases heard instead of fifty, is good enough since you are dealing with only one set of rules and standards.

Oh, and it is what Congress intended. You remember Congress? One of the branches of our federal government? IOW, they want the law followed.

Shocking, isn't it?

MinorityView

Alyric and The Probe,
So, why is Wyeth trying to get this case back to vaccine court if they could easily win in the regular court? Just curious.

Grant

I wonder if would have a claim for my daughter. She was vaccinated while she was a 4 1/2lb premie and she was sick. In her records they indicate, clearly, that she was sick. The vaccine damage was misunderstood as "shaken baby syndrome." I have a claim filed right now for her in the NVICP. I always thought that I should be able to go after her Pedatrician for not following the vaccine manufacturer's insert that says not give them if they are sick and for the hospital that failed to diagnose her correctly (and resulting in further injustice)

Pharma confidence

If the pharma companies were so confident in the "safety" of their vaccines, I would imagine that would love to go to court to prove their "life saving" medical intervention and the "safety" of thimerosal. Since the goal by pharma is to block going to court, I guess they know their vaccines are a big scam. Good reason to NEVER use their dirty vaccines.

TheProbe

Alyric said: "The only fly in your particular ointment is that there are higher standards of evidence for civil court. Remember the recent Blackwell case where the judge ruled that under the Frye standard none of the expert testimony was admissable, so he dismissed the jury and ruled in favour of the pharmaceutical company. That's not a good precendent for them in Georgia and they'll have to contend with the Daubert, which is if anything a tougher standard."

There is another fly, the case is being appealed to SCOTUS. A plain language reading of federal law and legislative history reflects that Congress intended only one forum for these cases to be heard.

I expect this comment to be censored like all of my others.

alyric

The only fly in your particular ointment is that there are higher standards of evidence for civil court. Remember the recent Blackwell case where the judge ruled that under the Frye standard none of the expert testimony was admissable, so he dismissed the jury and ruled in favour of the pharmaceutical company. That's not a good precendent for them in Georgia and they'll have to contend with the Daubert, which is if anything a tougher standard.

kim

i live in GA and I have proof my asd son's 4 hepb shots had 25mcg of thimerosal in each, and a porphyrin test showing him remarkably mercury toxic. wonder who i should call?

Gatogorra

I hope the plaintiffs don't settle and that the data isn't sealed.

I also hope the attorneys for Farrari read Jane Hightower's book, "Diagnosis Mercury". The book details much of the fraud that went into developing current concepts of mercury's effects on human health.

There's much in the book which could address the usual mercury apologias presented by the usual mercury defenders. The current standard of acceptable limits for methylmercury, for instance, was formed by WHO studies of the Iraqi grain poisoning incident in the 70's-- data which was fed to them and expurgated by Saddam Hussein's personal physician and others controlled by the Ba'ath regime, who had a vested interest in underestimating the damage from what may have been deliberate poisoning of the Kurds and Shi'ites. Furthermore, the lead American researcher, Thomas Clarkson (U of Rochester, home of Pichichero), worked for Dow, which had been busy covering up a Minimata-like mercury poisoning epidemic of the Ojibway in Canada at the time. Dow and Clarkson had their own vested interest in interpreting the already expurgated data in a way which would be favorable to industry.

When Minimata and the Iraq incident are often brought up to rebut the idea that mercury can cause autism, it could be healthy to point out that this epidemiological data had never been gathered from either disaster.

I'll be crossing fingers for this case.

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