US Government Asks Court to Seal Vaccine Records
US Government Asks Court to Seal Vaccine Records
- Law Firms Continue Thimerosal Litigation
- Senators Vow to Repeal Homeland Security Provision
- A Homeland Security Whodunit
Since "No-One" added the vaccine manufactures protection clauses to the Homeland
Security Bill, prehaps these provisions will not be put into law?
President Bush seems to have thought otherwise.
US Government Asks Court to Seal Vaccine Records
Tue November 26, 2002 10:47 AM ET
By Todd Zwillich
WASHINGTON (Reuters Health) - Attorneys for the Bush Administration asked a federal court on
Monday to order that documents on hundreds of cases of autism allegedly caused by childhood
vaccines be kept from the public.
Department of Justice lawyers asked a special master in the US Court of Federal Claims to seal the
documents, arguing that allowing their automatic disclosure would take away the right of federal
agencies to decide when and how the material should be released.
Attorneys for the families of hundreds of autistic children charged that the government was trying to
keep the information out of civil courts, where juries might be convinced to award large judgments
against vaccine manufacturers.
The court is currently hearing approximately 1,000 claims brought by the families of autistic children.
The suits charge that the measles-mumps-rubella (MMR) vaccine, which until recently included a
mercury-containing preservative known as thimerosal, can cause neurological damage leading to
Federal law requires suits against vaccine makers to go before a special federal "vaccine court" before
any civil lawsuit is allowed. The court was set up by Congress to speed compensation claims and to
help protect vaccine makers from having to pay large punitive awards decided by juries in state civil
courts. Plaintiffs are free to take their cases to state courts if they lose in the federal vaccine court or if
they don't accept the court's judgment.
The current 1,000 or so autism cases are unusual for the court. Because it received so many claims,
much of the fact-finding and evidence-gathering is going on for all of the cases as a block.
Monday's request by the Bush Administration would prevent plaintiffs who later go to civil court from
using some relevant evidence generated during the required vaccine court proceedings.
Plaintiffs' attorneys said that the order amounted to punishment of the families of injured children
because it would require them to incur the time and expense of regenerating evidence for a civil suit.
"Wouldn't it be a shame if at the end of the day our policy would be to compensate lawyers," said Jeff
Kim, an attorney with Gallagher Boland Meiburger & Brosnan. The firm represents about 400 families of
autistic children who received the MMR vaccine.
Kim accused the government of trying to lower "a shroud of secrecy over these documents" in order to
protect vaccine manufacturers, who he said were "the only entities" that would benefit if the
documents are sealed.
While federal law clearly seals most documents generated in individual vaccine cases, it has never been
applied to a block proceeding like the one generating evidence in the autism cases.
Administration lawyers told Special Master George Hastings that they requested the seal in order to
preserve the legal right of the Secretary of Health and Human Services to decide when vaccine
evidence can be released to the public.
Justice Department attorney Vincent Matanoski argued that to let plaintiffs use the vaccine court
evidence in a later civil suit would confer an advantage on plaintiffs who chose to forgo federal
"There is no secret here. What the petitioners are arguing for are enhanced rights in a subsequent civil
action," Matanoski said of the plaintiffs. "They're still going to have unfettered use within the
Hastings would not say when he would issue a ruling on whether to seal the court documents, but did
say that his decision would be "very prompt."
Law Firms Continue Thimerosal Litigation
WASHINGTON, Nov 26, 2002 (BUSINESS WIRE) --
A consortium of law firms representing children exposed to mercury in vaccines, led by attorneys
Michael Williams, of Portland, Oregon, and Richard S. Lewis of Washington, D.C., have vowed to
continue litigation against manufacturers of thimerosal, a mercury-based preservative found in some
childhood vaccines, despite the "Eli Lilly" rider attached to the Homeland Security Bill and signed
into law by President Bush yesterday.
The national consortium, lead by Williams, of Williams, Dailey, O'Leary, Crane & Love, and Lewis
with Cohen, Milstein, Hausfeld & Toll, is seeking to have vaccine manufacturers set up
court-administered funds that would allow children to get needed medical tests in order to mitigate
potential neurological damage caused by thimerosal exposure.
Thimerosal, which is fifty percent mercury, was added to vaccines to prevent bacteria contamination
when a doctor repeatedly drew vaccine doses from the same vial. After scientists and parents raised
concerns about injecting children with mercury, thimerosal was taken out of vaccines in the late
1990s. Lawyers contend, however, that thimerosal and vaccine manufacturers' documents indicate
that these companies knew about the health problems associated with thimerosal since at least the
early 1970s. The Institute of Medicine has also concluded it is "biologically plausible" that thimerosal
is causing neurodevelopmental disorders. While the rider attached to the Homeland Security Bill
forced thimerosal personal injury claims into the Vaccine Injury Compensation Program, a federal
program designed to protect vaccine manufacturers from liability and reduce compensation levels for
victims, the rider will not have any effect on cases seeking "medical monitoring" injunctive relief
which gives medical tests to children, not cash awards. Lawyers contend, however, that it is likely
that lobbyists will push for additional special interest legislation in the new session of Congress to
wipe out the medical monitoring cases, completely depriving mercury-exposed children of any
remedy in the court system and shutting down fact investigation into what the drug companies knew
about the dangers of thimerosal and when they knew it.
Richard S. Lewis responded to the Homeland Security Bill signing by stating that, "We are troubled
that this provision was made a part of this bill; we will actively continue our efforts to seek testing for
kids who were exposed to excessive mercury levels so that we can mitigate brain damage before it
Michael Williams added, "The `Eli Lilly' rider merely reinforces the importance and public health
necessity of this law suit. The back-room deal that put these anti-child amendments into the
Homeland Security Bill is just the first step in the drug companies' efforts to completely avoid any
responsibility for what they did to a generation of children."
Other members of the consortium include: Larry Cohan of Anapol, Schwartz, Weiss, Cohan,
Feldman & Smalley in Philadelphia, Pennsylvania; Tobias Millrood of Schiffrin & Barroway in
Philadelphia, Pennsylvania; and David Klein of Klein and Lyons of Vancouver, British Columbia,
Copyright (C) 2002 Business Wire. All rights reserved
Senators Vow to Repeal Homeland Security Provision
Wed, 27 Nov 2002 20:48:26 -0500
Sen. Daschle, Rep. Pelosi Vow to Repeal Homeland Security Provision
Shielding Drug Makers From Liability
Claims That Congress can 'Fix' the Problem Are Misleading
WASHINGTON, Nov 27, 2002 /PRNewswire via COMTEX/ --
Safe Minds and the Mercury Policy Project are hailing a statement by the US
House and Senate leadership that they will work to repeal a corporate
special-interest provision in the Homeland Security Bill. The provision
wipes out all legal remedies for thousands of autistic children harmed by
mercury in infant vaccines and must be eliminated, the two groups working
prevent mercury-related injuries said today.
"We strongly support Senate Majority Leader Tom Daschle and House
Leader-Elect Nancy Pelosi's vow to remove egregious special interest
provisions, including the thimerosal liability shield for Eli Lilly," said
Michael Bender, Director of the Mercury Policy Project.
As passed, the Homeland bill allows the families to re-file their claims in
a special administrative court for vaccine-related injury cases where it
takes years for cases to be heard and 87% of the claims filed are denied.
And claims can only be made by parents if their child's first symptom of
neurological damage occurred within the last three years, which effectively
bars many families from going to court to hold Lilly accountable for their
children's injuries, the groups said.
"It is a sad state of affairs when the Congress and the White House
to benefit a pharmaceutical giant at the expense of injured children and
families whose lives have been shattered by corporate wrongdoing," said Lyn
Redwood, RN, president of Safe Minds and the parent of a child who
multiple disabilities after receiving 125 times the government-recommended
exposure to mercury. "Eli Lilly has been allowed to exploit a national
threat to America to further their own agenda."
The provision to benefit Lilly -- which was added to the unrelated Homeland
Security Bill at the last minute -- affects lawsuits against the drug maker
for injuries caused by its product thimerosal, a mercury-based preservative
that was used in infant vaccines until a few years ago.
"Claims by Republican congressional leaders that they will "fix" the
provision next year are empty promises because it will be too late," said
Michael Bender, Director of the Mercury Policy Project. "Once President
signs the bill -- which will happen any day -- Eli Lilly can go to court
have all the mercury vaccine-related lawsuits against it dismissed
According to Redwood, after conversations with senate staff, the "fix" will
do little if anything to right this wrong. "Our children have been silenced
once by autism and now the votes of Congress have silenced them again,"
Redwood. "The right thing to do would be to pass legislation as soon as
possible to strike the thimerosal provisions."
The lawsuits were filed by the families of children who developed autism,
learning disabilities and other neurological problems after multiple
exposures. It takes hundreds of thousands of dollars each year to care for
severely autistic child and millions over the victim's lifetime.
A Homeland Security Whodunit
In Massive Bill, Someone Buried a Clause to Benefit Drug Maker Eli Lilly
By Jonathan Weisman
Washington Post Staff Writer
Thursday, November 28, 2002; Page A45
It amounted to only two paragraphs at the end of a 475-page bill to create
the Department of Homeland Security. But the brief provision -- designed to
shield vaccine makers such as Eli Lilly and Co. from lawsuits seeking
billions of dollars for families of autistic children -- has generated a
whirlwind of controversy and a mystery as to its origin.
The paragraphs appeared just days before the House was to vote on the
legislation. House Republicans rammed the bill through during Congress's
"lame duck session" and sent it to the Senate, where Democrats, demoralized
by the Nov. 5 election results, could not to stop it.
And so, with little debate, Congress granted broad legal protection to the
makers of Thimerosal, a preservative in childhood vaccines that has been
circumstantially linked to rising rates of autism and pediatric
developmental problems. It seemed a lobbying coup for Lilly and its allies.
Yet, strange to say in Washington, no one seems to want to take credit.
Pharmaceutical lobbyists, Eli Lilly representatives and lawmakers with the
most knowledge of the Thimerosal issue have denied any role in the
provision's last-minute appearance. Now, White House budget director
Mitchell E. Daniels Jr., a former Lilly executive, is the latest person to
formally deny a part. He did so in a sharply worded response to an
accusatory letter by Rep. Henry A. Waxman (D-Calif.).
Daniels said the provision was not approved or developed by the White House
Office of Management and Budget, adding:
"I also want to make clear that I personally had no involvement whatsoever
with these provisions. I spoke to no one about these provisions, either
inside the administration or outside the administration. . . . I did not
have any communications with anyone from Eli Lilly regarding the issue.
Indeed, I had not even heard of Thimerosal until I received your letter,
which is not surprising because Eli Lilly stopped making Thimerosal a
before I began working there and the lawsuits appear to have been filed
after I left."
Since the provision's appearance, some Democrats and trial lawyers have
charged that it represented a timely payback for the pharmaceutical
industry's financial support in the midterm elections. "President Bush and
conservative Republicans are going to give the pharmaceutical companies
whatever they ask for," said Michael Williams, an Oregon lawyer who
represents several families of autistic children and believes billions of
dollars could be at stake.
Under the provision, a raft of Thimerosal lawsuits will be redirected from
state courts to the federal Vaccine Injury Compensation Program, which caps
damages and sharply limits who can file suits against vaccine makers.
Proponents say the provision merely closes a loophole, which had been
exploited by trial lawyers claiming that Thimerosal was a vaccine
"contaminant" not subject to existing legal regulations. If action was not
taken, advocates say, the lawsuits could have driven vaccine makers out of
The provision was drafted more than a year ago by Sen. Bill Frist (R-Tenn.)
as part of a broader bill to revise the vaccine program. That bill, which
Frist had hoped to begin action on next year, includes measures favoring
plaintiffs as well as manufacturers. It would raise the cap on damages,
extend the statute of limitations for filing suit and allow the parents of
autistic children to sue on their behalf.
An aide to retiring House Majority Leader Richard K. Armey (R-Tex.) said
Armey's staff put the Thimerosal provision in with no prodding from the
pharmaceutical industry or the White House.
But several corporate lobbyists said that is not credible. Whoever was
responsible had to have detailed knowledge of the legal issues, had to know
Frist had drafted the larger bill, and had to understand exactly which
provision applied to Thimerosal because the brand name does not appear in
the text. Two sources said an official at the Department of Health and
Services gave the final approval, a statement that HHS spokesman Bill
What is clear is that as recently as two months ago, lobbyists for Lilly
other drug makers were on Capitol Hill trying to get the entire Frist
vaccine bill inserted into the homeland security legislation. But, the
lobbyists said, they were as surprised as anyone when the two-paragraph
One senior Republican Senate aide said a member of Frist's staff received a
call just days before the House passed the homeland security bill, saying
had heard a rumor that the Thimerosal provision was included. The Frist
said the lobbyist was confusing that provision with another measure to
protect makers of smallpox vaccines. The next day, the aide said, Frist's
staff found the Thimerosal provision in the bill as they scanned it in the
"We don't know how it became part of the House bill," said Rob Smith, a
Lilly spokesman. "We didn't know it was part of the bill, and it was a
surprise to us."
The provision could be the lobbying coup of the 107th Congress. A series of
ongoing academic studies should be able to conclude within the next three
years whether Thimerosal, a mercury-based additive, can be scientifically
linked to an upswing in autism, Williams said. Absent the two-paragraph
provision, such a conclusion could open the legal floodgates.
Yet corporate lobbyists who might be expected to crow about saving their
clients potentially billions of dollars have stayed mum. That may be in
because the deed was done rather clumsily, one lobbyist said. The provision
was not even hidden. Instead, it was simply tacked on at the end of the
bill. That has brought down a wave of unwanted publicity on vaccine makers,
especially Lilly, the inventor of Thimerosal.
"They didn't even make an effort to be clever about it," the lobbyist said.