State court rules vaccine suit can proceed

An Atlanta couple’s lawsuit against vaccine manufacturers can go to trial on claims a childhood vaccine caused neurological damage to their young son, the Georgia Supreme Court ruled Monday.

In a landmark decision, the state high court unanimously ruled that Marcelo and Carolyn Ferrari’s lawsuit is not barred by the 1986 National Childhood Vaccine Injury Compensation Act. The court upheld a prior decision by the Georgia Court of Appeals, which was the first appellate court in the nation to make such a ruling.

When the Ferraris’ 18-month-old son, Stefan, received his vaccines, he was a healthy verbal boy. Stefan, now 10, has not spoken since, according to court records.

“The Ferraris were very pleased with the ruling and look forward to pursuing their claims in the trial court,” the couple’s lawyer, Lanny Bridgers, said. “It’s very helpful.”

Wyeth, a manufacturer of the vaccine, “strongly disagrees” with the ruling and plans to appeal it to the U.S. Supreme Court, company spokesman Doug Petkus said.

The 1986 law created a uniform national procedure for handling these claims, provided that the vaccines were prepared in accordance with Food and Drug Administration-approved designs and accompanied with the proper directions and warnings, he said. “That was true in this case. … The act should apply here.”

A year after Stefan received his vaccines, the American Academy of Pediatrics recommended the removal of thimerosal, a preservative that contains mercury and is used for multidose vaccine vials. The Ferraris filed suit in Fulton County State Court, contending the manufacturers should have made vaccines without thimerosal before Stefan got his shots.

The makers of the vaccine, Wyeth and GlaxoSmithKline, argued that the 1986 vaccine act shields manufacturers from liability in civil lawsuits for damages caused by vaccines given after Oct. 1, 1988.

In recent years, trial judges in Pennsylvania, New York and Texas issued rulings, saying all such suits were pre-empted by the law.

The manufacturers were supported, in legal briefs filed by the court, by a number of organizations, including the National Chamber Litigation Center, an arm of the Chamber of Commerce of the United States of America.

But on Monday, the state Supreme Court said the vaccine act “clearly does not pre-empt all design defect claims against vaccine manufacturers.”

Instead, the law says the manufacturers must prove, on a case-by-case basis, “that the injurious side effects of the particular vaccine were unavoidable,” said the ruling, written by Justice George Carley.