Vaccine Makers Shielded From Autism Liability Lawsuit

Vaccine Makers Shielded From Autism Liability Lawsuit

 

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.   

Jared Wright, 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.  Jared’s parents, Howard and Jacqueline Wright claim the mercury in the vaccines caused Jared’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(b) 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 Wright’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, Julie 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.

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