Friday, January 17, 2003

This editorial page recently called for a careful investigation of reports that thimerosal, a mercury-based preservative that until recently was used in many vaccines, may be linked to a large increase in autism, an incurable developmental disorder in children. At hearings held last year by Rep. Dan Burton, then-chairman of the House Government Reform Committee, serious questions were raised about the possible existence of a causal link. But much of the necessary scientific data isn’t in yet, and it’s unclear that such a connection exists.

Unfortunately, trial lawyers and some members of Congress, led by Sen. Debbie Stabenow, Michigan Democrat, are not content to wait for the evidence. Instead, they seem intent on resolving this difficult problem through emotionalism and subjecting vaccine manufacturers like Eli Lilly, the maker of thimerosal, to expensive lawsuits.

For now, it appears that trial lawyers and their political allies have the upper hand. Last Friday, Senate Majority Leader Bill Frist, honoring an agreement made by his predecessor, Sen. Trent Lott, reached agreement with three Republicans who lined up with Mrs. Stabenow on the issue Sens. Olympia Snowe and Susan Collins of Maine and Lincoln Chafee of Rhode Island to repeal language, included in last year’s bill creating a new Department of Homeland Security, which would have shielded vaccine manufacturers from lawsuits.

Since early November, when the homeland security bill was being debated in the Senate, Mrs. Stabenow and many of her Democratic colleagues on Capitol Hill have denounced the vaccine language as a special-interest measure benefiting big drug companies that would “severely limit parents’ ability to get justice for their children.” Mrs. Stabenow accused advocates of the vaccine measure of seeking “to reward powerful special interests under the guise of homeland security.”

But these assertions by Mrs. Stabenow, (who according to the Web site received $474,412 from trial lawyers during her 2000 Senate campaign, the seventh-highest total received by senators that year), stand the truth on its head. Her proposal, which will be voted on in the Senate in coming weeks, will hardly make Americans safer. Instead, it could well jeopardize public health and homeland security by making it less likely that essential, lifesaving vaccines including vaccines against diseases caused by chemical or biological weapons ever make it to market.

Victor Schwartz, a veteran Washington lawyer who serves as general counsel for the American Tort Reform Association, points out that Congress, with the support of liberals such as Rep. Henry Waxman, California Democrat, instituted the no-fault vaccine injury compensation program in the mid-1980s to provide a quick alternative to enable individuals to receive compensation when they are injured by a vaccine. Mr. Schwartz, who was involved in drafting that legislation, says that Congress always intended the program to cover ingredients along with the vaccines themselves. The provision of last year’s homeland security legislation (which was added in response to trial lawyers’ efforts to create an artificial distinction between vaccines and their ingredients) was nothing more than an effort to clarify this point.

What’s more, the provision didn’t take away anyone’s right to sue. Instead, it allows people injured by vaccines and their ingredients the chance to quickly recover damages for their injuries from a compensation fund paid for by manufacturers. “Most people agree to a settlement through this fund, but if they are not satisfied with their award, they can then choose to file a civil lawsuit,” Mr. Schwartz says.

By contrast, the Stabenow approach will effectively guarantee that, unless a vaccine ingredient works perfectly and without adverse side effects in every person who receives it an impossible standard to meet that the manufacturer could face a multimillion-dollar lawsuit. This will make it far less likely that vaccines, including ones that could protect Americans in the event of deadly attacks using chemical or biological weapons, will ever be produced. Already, the number of foreign and domestic vaccine producers has declined from roughly 24 in 1967 to just four today.

Some trial lawyers may rack up megabucks attorneys’ fees under such a system. But the great majority of Americans who could be protected through the development of livesaving vaccines will be the losers. To prevent such a tragedy, President Bush and responsible members of Congress need to revisit the issue of tort reform especially as it applies to the development of vaccine ingredients right away.

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