Parents May Pursue Lawsuit against Vaccine Manufacturer
By Gerri Elder
An Atlanta couple's personal injury lawsuit against a vaccine manufacturer may go forward, thanks to a ruling by the Georgia Supreme Court.
The decision of the Georgia Supreme Court upholds a first of its kind ruling by an appellate court. The Supreme Court justices came to the unanimous conclusion that the 1986 federal law that has effectively blocked all lawsuits against vaccine manufacturers so far does not bar Marcelo and Carolyn Ferrari from proceeding with their case.
The decision upholds the ruling by the Georgia Court of Appeals. This appeals court was the first in the nation to hold that the National Childhood Vaccine Injury Compensation Act does not pre-empt state law. Generally preemptions prevent people who have suffered injuries from filing lawsuits.
The Ferrari's asked the Georgia Supreme Court to rule that the vaccine manufacturer, Wyeth (formerly American Home Products Corp.), can be held liable for damages in a civil case involving the health of their son. The court granted their request.
Stephan Ferrari is now 10 years old. The Associated Press reported that he was a vivacious toddler until he received a round of booster shots at 18 months of age. Since that time, he has not spoken a word.
Stephan's parents say that they can offer proof that thimerosal, the mercury-based preservative that was used in the vaccine, caused him to develop autism.
In seven other states, the courts have ruled that the federal National Childhood Vaccine Injury Compensation Act pre-empts any state laws that could allow families to take vaccine manufacturers to court. The Georgia Court of Appeals made history with its decision that federal law does not trump state tort rules. The court also said that the federal statute is unclear.
In May, lawyers for Wyeth argued that other judges have found that Congress intended for federal law to pre-empt state statutes. They explained to the court that this is a reasonable conclusion to draw from the law because vaccine manufacturers cannot possibly adhere to all of the various differing state statutes.
Justice George Carley slapped down that argument. Writing for the Georgia Supreme Court, Carley said in the ruling that the federal law "clearly does not pre-empt all design defect claims against vaccine manufacturers."
The court held that in order to be immune from defective design claims, vaccine manufacturers must prove on a case-by-case basis that the side effect of the vaccine in question were unavoidable.
There have been many personal injury claims made by parents alleging that thimerosal is linked to autism. Government lawyers insist that the Centers for Disease Control and Prevention have not found a link. Thimerosal has not been used in standard childhood vaccines in recent years, but is still used in single dose flu vaccines.
A spokesman for Wyeth has said that the company will appeal the decision of the Georgia Supreme Court to the U.S. Supreme Court.