June 8, 2009
BLOOMBERG NEWS SERVICE
The U.S. Supreme Court expressed interest in an appeal by Madison-based Wyeth and units of GlaxoSmithKline Plc that seeks to give the pharmaceutical industry a broader shield from lawsuits over injuries allegedly caused by vaccines.
The justices sought the Obama administration’s views on a Georgia Supreme Court ruling that allowed a lawsuit by the family of an autistic boy injected with vaccines containing the mercury-based preservative thimerosal. The state court said a 1986 federal law that protects vaccine makers doesn’t preclude suits claiming that a manufacturer should have used a safer formulation.
Companies already face 350 lawsuits over vaccines and might face a surge of new complaints, Wyeth and GlaxoSmithKline argue in their bid for high court review. Almost 5,000 families with autistic children have filed claims for compensation with a panel that distributes money from a $2.5 billion government trust fund.
The Georgia court ruling “threatens public health by inviting a litigation deluge even bigger than the one that spurred Congress to urgent action in 1986,” the companies argue in their appeal, filed in Washington.
The justices asked U.S. Solicitor General Elena Kagan’s advice on whether they should hear the appeal.
The 1986 National Childhood Vaccine Injury Act was designed to funnel complaints into a no-fault system that offers limited but guaranteed payments to those infected by vaccines.
Marcelo and Carolyn Ferrari contend the law doesn’t preclude their suit against Wyeth and GlaxoSmithKline over the hepatitis B, Hib and DTaP vaccines received by their son Stefan in 1998.
Congress “did not categorically exempt liability for all vaccine manufacturers, no matter how poorly the vaccine had been designed,” the family argued in papers that urged the Supreme Court to reject the appeal without a hearing.
The panel that rules on compensation claims, known as the Vaccine Court, concluded in February that the combination of thimerosal-containing vaccines and the measles-mumps-rubella vaccine don’t cause autism. The panel is still considering whether the thimerosal vaccines alone cause autism.
The case is American Home Products v. Ferrari, 08-1120.