Wyeth Can Be Sued For Thimerosal In A Vaccine
By Ed Silverman // October 7th, 2008 // 6:38 am

The Georgia Supreme Court has allowed an Atlanta couple's lawsuit against Wyeth to proceed, upholding a first-of-its-kind ruling by an appellate court that had drawn fierce opposition from the vaccine industry, The Augusta Chronicle reports.

The court's unanimous decision Monday concluded that a 1986 federal law that has been used to block other suits against vaccine makers does not bar the suit from Marcelo and Carolyn Ferrari from going to trial, the paper writes. (Here's the decision).

The court 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 preempt state law. The Ferraris asked the Georgia Supreme Court to rule that Wyeth can be held liable for damages in a civil case involving their son, Stefan.

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

Seven other state courts have ruled federal law preempts state law that might give families the power to challenge vaccine makers. But the Georgia Court of Appeals became the first appellate court to rule federal law doesn't take precedence over state tort rules, calling the federal statute unclear, the paper notes.


The case has drawn protests from the vaccine industry and powerful lobbying groups from the U.S. Chamber of Commerce to the conservative Pacific Legal Foundation.

At hearings in May, Wyeth attorneys argued that other judges have concluded Congress wanted the federal law to pre-empt state rules, in part so that manufacturers aren't subjected to a mishmash of different state standards (back story).

Wyeth spokesman Doug Petkus tells the paper the company would appeal the decision to the US Supreme Court. He adds that other courts have agreed that federal law supersedes state claims for injuries if the vaccines are prepared with FDA-approved designs and are accompanied by the proper warnings.

The Ferraris' attorney, Lanny Bridgers, contended that federal law was meant to supplement, not displace, state law.

The Georgia Supreme Court's ruling, written by Justice George Carley, says the federal law "does not preempt 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 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.