October 7, 2008

The Georgia Supremes yesterday confirmed that state's intermediate appellate court's decision that a design defect suit against Glaxo, Smith Kline and others is NOT pre-empted by the federal National Childhood Vaccine Injury Compensation Act of 1986. In AMERICAN HOME PRODUCTS CORP. et al. v. FERRARI, the Georgia high court broke ranks with New York, Pennsylvania, and two federal courts to find that the Act does not pre-empt suits alleging that childhood vaccines are defectively designed because they contain the preservative Thimerosal, which some feel (despite very solid scientific evidence to the contrary) causes autism in a small number of children. I and others have written about the science (or should I write "junk science" aspect of this issue. The Ferrari decision does not deal with junk science, but solely with pre-emption. Essentially, the Georgia court found that since Thimerosal is not an "inevitable" ingredient of the vaccine, the design defect claim is not pre-empted by the no-fault, no-tort federal statute.