Manipulating the system

This past Monday I sent you an e-Alert (“Protection Money” 12/2/02) with details about how the recently passed Homeland Security Act was “tweaked” in the 11th hour to include a provision that threatens to sweep aside approximately 150 pending law suits against Eli Lilly. At issue is the ingredient thimerosal (manufactured by Lilly), which was used for many years as a preservative in vaccines given to very young children. Thimerosal contains mercury which has been shown to cause autism in some children.

Responding to that e-Alert, an HSI member named Pat sent an e-mail yesterday with this question: “It is not clear from this write-up what the provisions are that protected the vaccine producers. Could you spell them out please?”

I can – but we’ll need to thread through a couple of legal loopholes.

The new provision diverts the 150 existing lawsuits into a special “vaccine court,” specifically set up to handle legal actions against vaccine manufacturers. The thimerosal lawsuits were previously able to avoid the vaccine court because they weren’t suing a vaccine manufacturer, they were suing Lilly as the manufacturer of an ingredient of a vaccine. This is an important point because to make a case that qualifies for action in the vaccine court, the suit must be filed within three years from the date the symptoms first appear. In most cases, it takes more than three years for a child to develop autism from the mercury in thimerosal.

Bottom line: when those 150 pending court cases are diverted to the vaccine court, they’ll be dismissed because they fall outside the statute of limitations.

Again, Senator Trent Lott has promised that this provision will be “worked on” when congress reconvenes in 2003. But what does “working” on it mean? And even if it’s completely struck from the Homeland Security Act, the damage may be done. A Lilly spokesman said that his company plans to seek dismissal of the suits. If they’re dismissed and then later allowed to resume, this may result in each of the litigations starting over again at square one. One mother of an autistic child told The New York Times, “It just makes me sick. I cannot tell you how devastating it is to think that we might have to start all over.”

As I mentioned in Monday’s e-Alert, I am not pro-litigation. Frivolous lawsuits (like suing McDonald’s for making you obese) just clog up the court system and are a waste of public resources. But in this case, the way that Lilly has deeply manipulated the legislative system to avoid litigation is shameful.

To Your Good Health,

Jenny Thompson
Health Sciences Institute