Thimerosal Goes to Court: American Home Products Corp. v. Ferrari
By Mary Holland, Esq.
Until now, most civil courts have shut their doors to claims that thimerosal contributed to autism. Both federal and state courts have rejected these claims, deciding that only “vaccine court,” the no-fault compensation program under the Federal Court of Claims, may hear them. Four courts have decided previously that the National Vaccine Injury Compensation Act of 1986 preempts, or displaces, all state law product liability claims against vaccine manufacturers. These prior decisions concluded that Congress intended that regular civil courts could not hear vaccine-related cases that plaintiffs brought on tort law theories of strict liability and negligence.
The October 6, 2008 unanimous decision of the Georgia Supreme Court American Home Products Corp. v. Ferrari changed all that. (HERE) The court resolutely decided that the Vaccine Act permits state courts to hear cases about vaccine design defects. This decision now provides a strong new precedent for vaccine cases to come to civil court.
What the Decision Says:
Marcelo and Carolyn Ferrari sued nine vaccine manufacturers on behalf of their minor son, Stefan Ferrari, in Georgia. They allege that Stefan suffered permanent neurological damage, including autism, because he received thimerosal in his vaccinations in 1998.
The Georgia Supreme Court, reviewing a lower appellate court decision, asks whether the Vaccine Act preempts lawsuits against vaccine manufacturers for design defects. The Court must figure out what the Vaccine Act’s language means. It says:
“No vaccine manufacturer shall be liable…if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”
Does it mean that all vaccine injuries are, by definition, “unavoidable” and subject to preemption? Or, alternatively, does it mean that design defects are preempted only if the side effects are found by a jury, on a case by case basis, to be “unavoidable”? In other words, if the design defects are avoidable, do the manufacturers still escape liability?
In a forceful opinion, the Court decided that the Vaccine Act does not preempt all design defect claims. Instead, it provides that a vaccine manufacturer may be liable for a defective design if the injurious side effects were avoidable. The Court reaches this conclusion by analyzing the language of the statute; carefully reviewing the Congressional intent for the Vaccine Act; reviewing applicable Supreme Court decisions on preemption; and distinguishing its reasoning from the court decisions that have gone the other way. The Court argues that the Vaccine Act’s text itself suggests that some design defects may be avoidable, despite proper directions and warnings, and that Congress intended for civil courts to be able to hear these cases.
The Court clarifies that the Vaccine Act merely protects manufacturers from liability for unavoidable side effects – not avoidable ones. The Court further points out that if the opposing interpretation were correct, manufacturers would get “blanket tort immunity for design defects,” which would remove any incentive for developing safer designs. So the Court rejects preemption “at least until the Supreme Court of the United States has spoken on the issue.”
What does the decision mean?
This strongly worded, unanimous decision from the highest court of Georgia, in the Center for Disease Control’s own backyard, must be sending shock waves through the pharmaceutical industry. Vaccine manufacturers will now be forced to litigate, at least in Georgia, whether the mercury-containing preservative thimerosal was an “unavoidably unsafe” aspect of their vaccine design. Other courts may follow Georgia’s lead to allow such cases, and the Supreme Court, which is particularly focused on the question of preemption, may even decide to accept a case on this vaccine issue.
The Ferrari case won’t alter the playing field for most families coping with autism; the statute of limitations for injuries from thimerosal is past in most cases. But in at least one Georgia civil court, the issue of whether thimerosal was “unavoidably unsafe” may get a full hearing.
Let’s be clear: litigating a case like this will be hugely complicated and expensive, requiring the Ferraris and their lawyers to jump through many, many more hoops to come. They’ll need to request and review enormous numbers of defendant documents; they’ll need to defeat all kinds of motions; they’ll need to present credible scientific evidence to the judge as a threshold matter before ever getting scientific evidence before a jury. It may or may not be easy to prove that including thimerosal as a preservative was avoidably, rather than unavoidably, unsafe.
But this decision is a landmark case in access to justice for vaccine injuries. Until now, the only court to look seriously at the thimerosal question has been vaccine court – with almost no document discovery, arcane procedural rules, and no jury. Now, the Ferraris, and those concerned about this issue, have a new forum for finding out the truth.
Mary Holland teaches at NYU Law School; her email address is firstname.lastname@example.org.
The Ferraris are very courageous for taking on this fight. Best wishes to them and their family.
Justice will prevail.
Justice has been intercepted...for now.
While parents have been following the piped pipers the big boys have been busy.
Read through this crapola keeping in mind this is making it's way around state by state, which is obviously why causation is taking years.
Naturally, the ususal suspects are involved.
Posted by: Media Scholar | October 12, 2008 at 03:09 AM
Has anyone noticed that Georgia’s Supreme Court decision took place almost exactly two decades after the date that vaccine injury cases were forced into Vaccine Court?
That was Oct. 1, 1988.
The Ferraris are very courageous for taking on this fight. Best wishes to them and their family.
Justice will prevail.
Posted by: sign lady | October 10, 2008 at 08:10 PM
I'm pretty sure I saw that the Supreme Court is hearing a case this term that deals with pre-emption in a slightly different way. If so, given its wording about the Supreme Court this GA court decision may not stand for very long, depending on how this term's decision (from a generally pro-business court) goes.
Posted by: Garbo | October 10, 2008 at 06:33 PM
the statute of limitations for injuries from thimerosal is past in most cases.
Either this statement is incorrect or a lot of trial lawyers will be subjected to legal malpractice lawsuits for their fiduciary failures, collusion, etc.
This isn't the SS Thimerosal going down where first class lifeboats go row half-full and steerage compartments are flooded out deliberately killing lots of people.
Politics is the business of exchanging favors, justice isn't.
Posted by: Media Scholar | October 10, 2008 at 12:44 PM
I hope this decision serves as motivation towards removal of the remaining thimerosal from vaccines. As the alarm over thimerosal has been sounding for years now, it is more and more obvious that there is an avoidable risk -- especially to pregnant women, infants, and children. And it can be avoided simply by packaging the shots individually (instead of in multi-dose vials) at only a slightly higher cost.
Thank so much for writing about this, Mary.
Posted by: Twyla | October 10, 2008 at 11:15 AM
AnneS, that's exactly what I was thinking. Unfortunately my son is 17 -- so we're waaay past the statute of limitations. And, of course this won't work anyway. Hopefully other states will follow suit in the near future; but I'm not holding my breath (esp. not in VA).
Posted by: ObjectiveAutismDad | October 10, 2008 at 09:54 AM
I assume courts can start hearing cases about other known neurotoxins (aluminum)that the industry continued to use in vaccines after knowledge that the addition of known neurotoxins (mercury) directly correlated with the dramatic increase in neurological injury.
With the industries in-disputable knowledge they should not have continued adding similar known neurotoxins to vaccines. They also should not being using known neurotoxins in placebos for clinical studies (aluminum in placebo group regarding gardisil). It is blatantly irresponsible and misleading.
It is clearly a misuse of power (can't be sued). Although damage could have been avoidable if the danger was clearly stated on labels as well (the direct correlation of increase in neurological injury following the same rise in amount of toxins injected). To blatantly leave the most serious side effects and predominance of side effects in history of vaccines is irresponsibe.
Not to mention the neglect of the industry to take action when through other non-related studies of children with gastro intestinal malfunction that measles was found in their guts.
Under reaction as well to the knowledge that multiple vaccine shots double the chances of your child having seizure disorder. Even the CDC advises the shots be given separately, althought it is has been made impossible to get a multiple vaccine shot given in three different shots.
Ofcourse the list could go on and on. To add insult to injury there is the bill out to increase the vaccine schedule with the mandation of a yearly flue vaccine.
What about all the threats put out about pandemics due to the small percentage of unvaccinated children? I'm aware it hasn't been a threat yet. So how bad is the spread of "vaccine preventabe" diseases in the largely unvaccinated Amish community and how did they survive it. Why haven't these internal pandemics that they are saying are unavoidabe with time happened to the Amish population? Why is the Amish community showing better health than the general population?
Posted by: Exciting | October 10, 2008 at 09:53 AM
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Landmark Study Finds: Mercury Poisoning Causes Autism
Press Release Contacts:
For Immediate Release CoMeD President [Rev. Lisa K. Sykes (Richmond, VA) 804-364-8426]
October 10, 2008 CoMeD Sci. Advisor [Dr. King (Lake Hiawatha, NJ) 973-263-4843]
WASHINGTON, DC – New study, “Biomarkers of Environmental Toxicity and Susceptibility in Autism” in the peer-reviewed Journal of the Neurological Sciences, confirms a causal link between subacute mercury poisoning in children and their autism spectrum disorder (ASD) diagnosis. The autism community reported that this study presents, “…some compelling evidence…consistent with the author’s theory that mercury exposure plays a role in autism.”
This paper presents the first prospective, blinded cohort study to examine children diagnosed with an ASD using: urinary porphyrin profile analysis (UPPA) to assess the body-burden and physiological effects of their mercury, glutathione analysis to assess susceptibility to m ercury poisoning, and Childhood Autism Rating Scale (CARS) scores to measure ASD severity.
These evaluations established:
· Non-chelated patients diagnosed with an ASD had UPPA profiles indicative of mercury poisoning that strongly correlated with ASD severity, measured using CARS scores.
· Glutathione (a key biochemical in the body’s mercury detoxification pathway) was significantly lower in patients diagnosed with an ASD in comparison with its level in neurotypical controls.
· Increasing mercury-poisoning severity, as indicated by the UPPA results, was associated with lower glutathione levels among the patients diagnosed with an ASD.
Based upon these findings, the researchers concluded, “ASDs may result from a combination of genetic/ biochemical susceptibilities in the form of a reduced ability to excrete mercury and/or increased environmental exposures at key developmental times.”
The Autism Research Institute, the non-profit CoMeD, Inc., and, through a grant from the Brenen Hornstein Autism Research & Education (BHARE) Foundation, the non-profit Institute of Chronic Illnesses, Inc. funded this research study.
Today, any parent, physician, or healthcare provider can easily confirm whether or not a non-chelated child diagnosed with an ASD is mercury poisoned by having UPPA testing run at LabCorp (CLIA-certified, test# 120980) or Laboratoire Philippe Auguste (ISO-certified, 119 Philippe Auguste Avenue, Paris, France 75011). Please, visit CoMeD’s web site, http://www.Mercury-freeDrugs.org for information on how to order UPPA tests and full copies of some of the many published papers validating the UPPA test.
Your generous tax-free donations will help us to fund additional research, similar to the present study, to examine mercury’s links to autism and other illnesses, define the causal roles of mercury in the linked childhood and adult illnesses, and find appropriate curative therapies.
To support the ongoing efforts of CoMeD, Inc. with your tax-deductible contributions, please use the PayPal link on CoMeD’s Internet website, http://www.Mercury-freeDrugs.org. CoMeD, Inc. is a not-for-profit 501(c)(3) corporation that is actively engaged in legal, educational and scientific efforts to stop all use of mercury in medicine, and to ban the use of all mercury-containing medicines.
FAIR USE NOTICE: The attached material contains copyrighted (©) material the use of which has not been specifically authorized by the copyright owner. Such material is made available for educational purposes, to advance reader's understanding of human rights, democracy, scientific, moral, ethical, social justice and other issues. It is believed that the author’s quoted statements are a 'fair use' of this copy-righted material as provided for in Title 17 U.S.C. section 107 of the US intellectual property law. This material is being distributed without profit.
 Geier DA, Kern JK, Garver CR, Adams JB, Audhya T, Nataf R, Geier MR. Biomarkers o f environmental toxicity and susceptibility in autism. J Neurol Sci. 2008 Sep 24. [Epub ahead of print].
 This new study involved a multi-national collaboration between researchers, including: David A. Geier, Janet K. Kern, PhD, RN, Carolyn Gavery, PhD, James B. Adams, PhD, Tapan Audhya, PhD, Robert Nataf, MD, and Mark R. Geier, MD, PhD, FABMG, FACE. These researchers have extensive research backgrounds in medicine, biochemistry and neuroscience, and include professors from the University of Texas, Southwestern Medical Center (Dallas) and Arizona State Un iversity (Tempe).
 Laboratoire Philippe Auguste and Vitamin Diagnostics performed biochemical testing; Dr. Kern conducted the CARS scoring.
Posted by: Landmark study | October 10, 2008 at 09:26 AM
Time to move to GA
Posted by: AnneS | October 10, 2008 at 08:27 AM
Excellent and very helpful commentary Mary - thank you so much.
Posted by: Theresa Cedillo | October 10, 2008 at 06:20 AM