In the midst of an extensive discussion about vaccines and autism and how the two have come to be linked in the public consciousness, as noted by Dr. Paul Offit in his recently published book Autism’s False Prophets: Bad Science, Risky Medicine, and the Search for a Cure, here comes a court decision from the Georgia Supreme Court. The decision allows Marcelo and Carolyn Ferrari to proceed with a civil lawsuit against vaccine maker American Home Products Corp. As noted in today’s Athens Banner-Herald, this is a “first-of-a-kind ruling by an appellate court that had drawn fierce opposition from the vaccine industry.” Namely, the Georgia Court of Appeals is the first appellate court in the nation to hold that the National Childhood Vaccine Injury Compensation Act (VICP) does not pre-empt state law.
The Ferraris are claiming that a vaccine manufactured by American Home Products caused damage to their son:
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 pre-empt 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, calling the federal statute unclear.
The National Childhood Vaccine Injury Compensation Act, which established the VICP, was passed because “policy makers and public health officials had to take action to ensure that the public was protected and that lawsuits would not threaten the nation’s vaccine supply” (p. 37), as Martin G. Myers, M.D., and Diego Pineda state in their book Do Vaccines Cause That?!: A Guide for Evaluating Vaccine Safety Concerns. From an official description of the VICP:
The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines.
In “Science in Court,” chapter 8 of Autism’s False Prophets, Dr. Offit notes that, as a result of the creation of the VICP, “the number of lawsuits brought against vaccine makers declined dramatically” (157). In “vaccine court,” petitioners must convince a panel of three judges (p. 156); a decision must be reached within 240 days; the average compensation is about $900,000, and “the program is based, for the most part, on a preponderance of sound scientific evidence” (p. 157). Petitioners can still take their case to state courts, where the case has to be argued in front of a jury and where “the process is slower and more expensive”—but, as Dr. Offit notes, “juries have been historically been poor judges of scientific and medical truths.”
More muddied waters ahead.