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Vaccine Makers Shielded From Autism Liability Lawsuit

Posted by Jane Akre
Wednesday, September 10, 2008 10:09 PM EST
Category: Major Medical, Protecting Your Family
Tags: FDA and Prescription Drugs, Federal Pre-emption, Federal Preemption, National Childhood Vaccine Injury Act, Vaccine Court

Autism case preempted by federal law

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IMAGE SOURCE: Wikimedia Commons/ 18-mo. Autism boy obsessively stacking cans/ author: andwhatsnext 

 

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. #


7 Comments

Posted by Thomas D. Taylor
Thursday, September 11, 2008 2:33 AM EST

It has been known for some time that autism is not caused by vaccines. Those interested in knowing more can listen to the free podcast entitled "Autism and Vaccines" put out by Midnight In Chicago at LINK

Anonymous User
Posted by Heather
Thursday, September 11, 2008 10:26 AM EST

The individual vaccine may not cause Autism however what about the series of vaccines in the five year span of a child's life? Would they be exposed to all of the diseases in that time frame? Is that realistic? And what about the mercury? Fact is that we know this is a highly toxic substance that we are injecting into our children. Maybe it is making them more vulnerable to Autism. Maybe it is not the exact cause of Autism but makes their immune system weaker? If the head of the CDC can says that vaccines "can trigger autism in a subset of vulnerable children" then don't you think it is important to figure out who is vulnerable and who isn't? Don't you think she would have her hands on the latest and greatest of information? Don't you think it is possible that all of these vaccines make for a weaker immune system? Do you understand the science of one's immune system?

Lets dig deeper folk. And remember, the pharmaceutical companies have the most money of any industry. Don't think they aren't ruling the laws and have the CDC and FDA wrapped around their fingers? They control what happens by lobbying on the hill and lining the pockets of the law makers during an election year! Please. Lets wake up and recognize this.

Anonymous User
Posted by Elaine McKillop
Thursday, September 11, 2008 10:27 AM EST

If vaccines did not cause Autism then Big Pharma would not hide behind the skirt of of the unconstitutional legislation that protects them. I have never heard that we no longer have a 7th Amendment. Congress has usurped the rights of the people to protect an industry that has damaged and ended the lives of millions. We the people should send congress a message in November and anyone responsible for this unconstitutional legislation should pay with there job. As far as "studies" that "prove" that vaccines do not cause autism, they are all bunk! I have never been able to find one study that did not stink to high hell from tainted Big Pharma money including the last one. By the way, Hannah Poling may not have had any "defect" before the vaccination, her father, a doctor, has disputed this claim although the media continues to ignore this. Vaccine Court ha paid out 1.5 billion dollars for injured and dead babies. Big Pharma does not grieve at this loss of innocent life. To them it is collateral damage for their greed. Big Pharma will never have the incentive to clean up their act as long as our government protects them and people like you writ propaganda. Isn't funny that the most uneducated women in Africa know to hide their children when the vaccine doctors show up and Americans line their children up for slaughter. it is time for this to stop!

Posted by Birgit Calhoun
Thursday, September 11, 2008 3:25 PM EST

It seems the only remedy, then, is to contest by saying that the FDA did not approve the Thimerosal in the vaccine. The FDA did not approve Thimerosal for vaccines. It grandfathered it in. So, isn't it true that, when the FDA approved the vaccine, it did not address the Thimerosal ingredient at all? And could it, then, not be assumed that the vaccine maker was fraudulent in describing its design? It seems to me that, whenever a product is being approved for the market, it should be treated like a new product, and the approval should address all the ingredients as part of the design. The general population is being duped into thinking safety when in fact, it is being kept in the dark.

Anonymous User
Posted by Heidi N
Friday, September 12, 2008 9:40 AM EST

How about suing the FDA then, for approving a product that is disabling a lot more people than its preventing illness in.

Posted by Darren Wilson
Monday, September 15, 2008 8:59 PM EST

Federal preemption of state tort laws where pharmaceutical and medical device makers are concerned is an enormous threat to the rights of the public to be protected from, and seek redress for, injuries caused by defective products. Let's not forget that Fen-Phen, Baycol, Trasylol, Zyprexa and a host of other drugs were approved by the FDA before they killed and injured (literally) thousands of people, often when safer and cheaper alternatives were available. The drug companies are "Eliminating Liability at the Wholesale Level" with preemption (their words, not mine; that was the legal headline of a conference on preemption of drug injury lawsuits).

Virtually no one in the media is talking about this issue, which is dumbfounding - could it be because the pharmaceutical industry collectively is one of the two largest media buyers (for all types of media: TV, print, radio, newspaper) in the country? It's not hard to doubt the veracity of TV news when programming is punctuated by a dozen drugs companies touting their latest "you probably need this" drug - and not a word about preemption.

Anonymous User
Posted by Name
Saturday, September 27, 2008 1:13 AM EST

Is there a law suit going on? I would like to join

Comments for this article are closed.

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