February 2003
SALEM, Ore. — An Oregon judge has dismissed most of the class action thimerosal lawsuits in that state, including one that was seeking damages against a pediatrician in addition to vaccine manufacturers.
This is the second time a lawsuit claiming damages due to thimerosal exposure has been dismissed. Earlier this year, a federal judge in Texas threw out another class action lawsuit, but said that the plaintiffs could still sue for loss of consortium or companionship.
Claimants in the lawsuits alleged that thimerosal could cause neurological damage — especially autism — in young children. The suits sought millions of dollars from vaccine and thimerosal manufacturers for injuries and medical monitoring of children who were exposed to thimerosal-containing vaccines.
Although there has been no evidence that
thimerosal can cause neurologic damage in children, many parents still believe
the link is possible. Studies have shown that ethylmercury, the mercury
ingredient in thimerosal, in high doses can cause renal failure in
children.
In other studies, methylmercury, a close chemical cousin of ethylmercury, in extremely high doses has been shown to cause neurologic damage in children.
A recent study, though, refutes the biological plausibility, saying that ethylmercury is not similar, and therefore, not comparable to methylmercury. The study noted that thimerosal was never present in levels deemed dangerous to children.
In 1999, the FDA called for the removal of all thimerosal from the childhood immunization schedule. The decision was based on a finding that the total possible mercury exposure in the schedule exceeds mercury exposure guidelines from the Environmental Protection Agency (EPA).
But the EPA guidelines were based on a vastly conservative estimate of how much mercury exposure could cause damage, the study said. There was also evidence to suggest that children exposed to thimerosal-containing vaccines excrete mercury in sufficient levels, so they are not at risk for neurologic damage.
The FDA decision, the study concluded, was not an admission that thimerosal-containing vaccines are dangerous to children, but rather an effort to reduce overall mercury exposure during childhood.
The 1999 FDA decision was ill received by vaccine critics, and many parents whose children had been given thimerosal-containing vaccines became concerned. Lawsuits for medical monitoring, as well as a handful of individual suits alleging specific damage from thimerosal exposure, are pending in more than a dozen states.
At the heart of the lawsuits is a debate over whether thimerosal is an ingredient or an adulterant. Since, as a preservative, thimerosal has been a regular part of vaccine manufacturing for years, the Department of Health said that it should be considered a regular ingredient.
In opposition, trial lawyers claim that since thimerosal is alleged to cause harm, it is not an ingredient in vaccines — but in fact an adulterant. The claim has allowed thimerosal cases to circumvent the Vaccine Injury Compensation Program (VICP), which regularly adjudicates claims of injury from vaccines.
A provision inserted into the Homeland Security Act passed by Congress in December, gave additional protection to thimerosal manufacturers and redirected all thimerosal suits back to the VICP. The provision angered many Democrats, who called the insertion a kickback to the pharmaceutical industry for millions of dollars in contributions during the last election cycle.
Senate Republicans, embarrassed by the public scrutiny, have agreed to repeal the provision. In exchange, Congress will vote on a new bill within the next six months aimed at fixing the compensation program.
In the interim, pending thimerosal lawsuits will be permitted to continue.
The VICP is designed to compensate families who believe their child has been injured by a vaccine. The VICP fund compensates families based on a preset list of injuries for each vaccine. There is no provision in the VICP to compensate families for injuries due to thimerosal.