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Thimerosal and Autism: Final Round?

On June 11, Cedillo v Secretary of Health and Human Services will be heard before an extraordinary tribunal of three special masters at the U.S. Court of Federal Claims in Washington. The hearing will determine, for the first time to my knowledge in an American courtroom, whether a combination of vaccines (mostly MMR -- measles, mumps, and rubella -- but also Haemophilus influenzae type B (a serious disease caused by a bacteria, striking children under 5 years old) and hepatitis) with thimerosal, a mercury-based vaccine preservative, can cause autism. Thimerosal has been used since the 1930s, so the potential impact here is tremendous.

This argument sans jury will be interesting to observe. As is well known, a 2004 study released by the Institute of Medicine (part of the National Academy of Sciences) concluded that scientific evidence "favors rejection of a causal relationship" between exposure to thimerosal and autism. But due to FDA requests prompted by political pressure, by 2002 thimerosal was removed from almost all vaccines for children.

Three weeks of testimony are planned, including victims and expert witnesses. The Court of Claims has sealed the names of the witnesses, for fear they would be harassed.

The trial will take place in a 400-seat courtroom that will be filled with parents and their lawyers, and with lawyers for the pharmaceutical industry. Thousands of parents will "virtually" attend the trial, by speakerphone.

As many POL readers know, a 1986 federal law provides that, in lieu of suing manufacturers for negligent design or warning, those claiming to be injured by vaccines may choose to file claims against the government in the Court of Claims. Special masters acting as trial judges hear such cases and award damages if a causal connection has been established. No fault on the part of the manufacturers need be established, only causation. Pain and suffering damages are capped at $250,000, but economic damages (lost wages, medical and educational costs, and scheduled lawyers' fees) are fully compensated. More than $750 million has been paid out since 1986.

The autism claims are by far the biggest ever presented to the court, and could easily triple that amount if they succeed. More than 5,100 claims have been filed since 1999, compared to 2,700 for all other vaccine claims since the program started operating.

Since the program began, patients have been paying a 75 cent excise tax for each vaccine, adding $200 million to the federal vaccine compensation fund each year. The fund has accumulated $2.5 billion. So there is no direct exposure for pharmaceutical companies here -- but of course if the fund is depleted other measures may be sought, and normal tort cases alleging manufacturer wrongdoing may be bolstered.

Here is a Legal Times backgrounder on the case, focusing on the test plaintiff, an extremely autistic child. The anguish of parents of autistic children is tremendous, and their belief that vaccines caused their pain is genuine. Whether this belief is a result of junk science, of course, is the issue at hand. Arthur Allen had a nice piece in Slate Magazine a couple of years ago on this subject. Let's hope the three-master panel can ease the afflicted parents' pain and bring sound scientific closure to the matter.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.