Washington
focus
Grand
illusion
Kristin Loiacono
It's been said
we shouldn't judge books by their covers. Similarly, U.S. senators
shouldn't judge bills by their titles. The concepts suggested by the
"short title" of S. 2053, the Improved Vaccine Affordability and Availability
Act, seem appealing at first glance.Who could be against better and
more widely available vaccines? But a closer reading of the bill's
sections reveals a far more sinister goal: to give manufacturers of
products that may have caused millions of children to suffer neurological
injury a means of evading accountability.
The
products in question are vaccines—specifically, those that contain
thimerosal, a mercury-laden preservative. For more than 50 years,
manufacturers have relied on thimerosal to prevent contamination of
vaccines and some over-the-counter products, including cosmetics,
antiseptic sprays, and contact lens solutions. Its use in childhood
vaccines soared in the early 1990s when, to cut costs, manufacturers
began producing more vials containing multiple doses of medication.
Single-dose vials need no preservative because they are thrown away
once used. But multidose vials, which are tapped repeatedly to innoculate
several children, contained thimerosal to inhibit contamination of
opened vials.
Known
toxin
Some
parents of children who suffer from autism and other neurodevelopmental
impairments say the mercury in thim erosal is the reason for their
children's disorders. Many, on behalf of their children, have filed
suit against the manufacturers of thim erosal and the pharmaceutical
companies that used it in vaccines. In addition to compensatory damages,
the plaintiffs are asking courts to make the defendants pay for medical
monitoring of all children who received thimerosal-laced vaccines
and for research concerning the possible link between the preservative
and neurodevelopmental disorders.
In
1999, the FDA asked manufacturers to stop using thimerosal in childhood
vaccines. It is still used in a few others, including the influenza
vaccine, which is given annually during flu season to adults and some
children. And because there was no recall, some doctors' offices may
still have vials of childhood vaccines that contain thimerosal.
Although
mercury is recognized as a human toxin—high exposure levels can
cause nervous system abnormalities including difficulty with coordination,
vision, and learning—no definitive study on the effects of thimerosal
on childhood development exists. The National Academy of Sciences
Institute of Medicine issued a press release one year ago (Oct. 1,
2001), stating: "No evidence currently exists that proves a link between
thimerosal-containing vaccines and autism, attention deficit-hyperactivity
disorder, speech or language delays, or other neurodevelopmental disorders.
. . . It is medically plausible that some children's risk
of a neurodevelopmental disorder could rise in part through increased
mercury exposure from thimerosal-containing vaccines."
Forcing
manufacturers to fund the necessary research to answer the causation
question is one of the plaintiffs' goals. But S. 2053, introduced
March 21, 2002, by Sen. Bill Frist (R-Tenn.), would summarily shut
down all litigation, leaving parents and children waiting for compensation
and answers.
The
National Childhood Vaccine Injury Act of 1986 created a no-fault compensation
alternative to suing vaccine manufacturers when certain vaccines cause
injury or death. Claimants are required to seek compensation through
the federal program before pursuing a lawsuit. If a claimant rejects
an award or is unsuccessful, a lawsuit may then be filed, but certain
restrictions may apply.
Plaintiffs
argue the act doesn't apply to thimerosal, because it isn't a vaccine,
it's a preservative. By vastly expanding the act's definitions of
"vaccine," "vaccine manufacturer," and "vaccine-related injury," S.
2053 would effectively remove thim erosal cases from the traditional
products liability tort system. Instead, they would be subject to
the federal compensation system and to the act's other provisions.
Moreover,
S. 2053 would immediately stop all thimerosal litigation because amend
ments made by the bill would "apply to all actions or proceedings
pending on or after the date of enactment." Cases in mid-trial would
be terminated.
The
Frist bill raises serious concerns beyond just the thimerosal cases.
For example, under the bill, a parent would no longer be permitted
to sue a vaccine manufacturer or administrator for injuries the parent
suffered because of a child's vaccine-related injury or death—including
damages for loss of consortium and emotional distress—unless
that action were joined with one brought by the child.
A
future for S. 2053?
S.
2053 has three cosponsors, Senators Jim Bunning (R-Ky.), Kay Bailey
Hutchison (R-Tex.), and Gordon Smith (R-Or.). Sen. Frist recently
told his colleagues that "new companies that may want to produce vaccines
are confronted with the high risk of liability and little profit motive.
[This bill] would help compensate those who suffer serious side effects
from vaccines while ensuring that unwarranted litigation does not
further destabilize our vaccine supply."
There
is no question that states need federal assistance to help bolster
local vaccine supplies for adults, adolescents, and children. Title
I of S. 2053 would address that need. Title II, the vaccine injury
compensation title, would only add further injury to families whose
children have been harmed by vaccines.
Kristin
Loiacono is ATLA's associate director for media outreach and coalition
development in the Media Relations Department.
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