Ga. Supreme Court: cou­ple can sue vac­cine com­pany

Com­pany to ap­peal to U.S. Supreme Court

The Covington News - - Health & Wellness - By Greg Bluestein The As­so­ci­ated Press

AT­LANTA — The Ge­or­gia Supreme Court al­lowed an At­lanta cou­ple’s law­suit against a vac­cine man­u­fac­turer to go for­ward, up­hold­ing a first-of-akind rul­ing by an ap­pel­late court that had drawn fierce op­po­si­tion from the vac­cine in­dus­try.

The court’s unan­i­mous de­ci­sion on Mon­day con­cluded that a 1986 fed­eral law that has been used to block other law­suits against vac­cine com­pa­nies does not bar the law­suit from Marcelo and Carolyn Fer­rari from go­ing to trial.

It up­held a rul­ing by the Ge­or­gia Court of Ap­peals, which be­came the first ap­pel­late court in the na­tion to hold that the Na­tional Child­hood Vac­cine In­jury Com­pen­sa­tion Act does not pre-empt state law.

The Fer­rari fam­ily asked the Ge­or­gia Supreme Court on Tues- day to rule that vac­cine maker Amer­i­can Home Prod­ucts Corp., now known as Wyeth, can be held li­able for dam­ages in a civil case in­volv­ing their son, Ste­fan.

The fam­ily be­lieves they can prove that thimerosal, the mer­cury-based preser­va­tive, caused their son’s dis­abil­ity. Ste­fan, they say, was a talk­a­tive tod­dler be­fore he got a round of boost­ers shots when he was 18 months old. The boy, now 10, hasn’t spo­ken since.

The case has drawn the protests from the vac­cine in­dus­try as well as pow­er­ful right-lean­ing lob­by­ing groups from the U.S. Cham­ber of Com­merce to the con­ser­va­tive Pa­cific Le­gal Foun­da­tion.

Seven other state courts have ruled that the fed­eral laws pre­empt any state law that might give fam­i­lies the power to chal­lenge the vac­cine man­u­fac­tur­ers.

But the Ge­or­gia Court of Ap­peals be­came the first ap­pel­late court in the na­tion to rule that the fed­eral law doesn’t take prece­dence over state tort rules, call- ing the fed­eral statute un­clear.

At court hear­ings in May, at­tor­neys for the Madi­son, N.J.based com­pany ar­gued that other judges have con­cluded Congress wanted the fed­eral law to pre­empt state rules, in part so that man­u­fac­tur­ers aren’t sub­jected to a mish­mash of dif­fer­ent state stan­dards.

Wyeth spokesman Doug Petkus said the com­pany would ap­peal Mon­day’s de­ci­sion to the U.S. Supreme Court be­cause it con­flicts with con­gres­sional in­tent “to cre­ate a uni­form pro­ce­dure to han­dle claims.”

Petkus said other courts have agreed that the fed­eral law su­per­sedes state claims for in­juries if the vaccines are pre­pared with FDA-ap­proved de­signs and are ac­com­pa­nied by the proper warn­ings.

Fer­rari’s at­tor­ney, Lanny Bridgers, con­tended that the fed­eral law was meant to sup­ple­ment, not dis­place, state law. He also asked the court’s seven jus­tices not to be swayed by ear­lier de­ci­sions.

The Ge­or­gia Supreme Court’s rul­ing, writ­ten by Jus­tice Ge­orge Car­ley, said the fed­eral law “clearly does not pre-empt all de­sign de­fect claims against vac­cine man­u­fac­tur­ers.”

In­stead, the court held, vac­cine man­u­fac­tur­ers must prove on a case-by-case ba­sis that the side ef­fect of the par­tic­u­lar vac­cine were un­avoid­able to be im­mune from de­fec­tive de­sign claims.

Fam­i­lies of autis­tic chil­dren have claimed in court that thimerosal is linked to autism, al­though gov­ern­ment lawyers say the Cen­ters for Dis­ease Con­trol and Preven­tion has re­jected any link.

Thimerosal has been re­moved in re­cent years from stan­dard child­hood vaccines, ex­cept flu vaccines that are not pack­aged in sin­gle doses. The CDC says sin­gle-dose flu shots cur­rently are avail­able only in lim­ited quan­ti­ties. On the Net: Ge­or­gia Supreme Court: www.

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