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In a case involving a child allegedly rendered autistic by a vaccine, the 5th U.S. Circuit Court of Appeals ruled that a legal strategy some plaintiffs’ attorneys have used to get around the tort limitations in the National Childhood Vaccine Injury Act of 1986 did not violate the act. Moss v. Merck & Co., No. 03-30958, was decided on Aug. 16. The decision marked the first time an appellate court has ruled that the act, while limiting the tort remedies available to an injured child, does not prevent parents from suing vaccine manufacturers for loss of consortium or from suing the manufacturer of an ingredient used in vaccines, according to Spencer Doody of New Orleans’ Martzell & Bickford. Doody represents Scott and Janice Moss, who allege that their daughter Amber’s autism was caused by Thimerosal, a mercury-containing preservative manufactured by Eli Lilly & Co. and used in vaccines manufactured by Merck & Co., Aventis Pasteur Inc. and Wyeth Inc. The act, a congressional response to burgeoning vaccine-related cases, requires injured children to present their claims against vaccine manufacturers to what is commonly called the Vaccine Court-a special master operating under the supervision of the Court of Federal Claims. If a victim turns down compensation awarded by the Vaccine Court, he or she may still file a tort action, but with limitations such as a bar on punitive damages. Because it delays “only those tort claims for which it first provides an alternative source of compensation” and such compensation is available only to the injured child, the act does not foreclose the Mosses’ loss-of-consortium claims, the 5th Circuit said. Furthermore, the court said that the act’s protection against liability applies only to vaccine manufacturers. Eli Lilly, as the maker of a mere ingredient, did not qualify for that status. (Although the Mosses sued Eli Lilly only for their loss of consortium, the court hinted in a footnote that the company could be named in a suit seeking direct damages for their daughter as well.) The Homeland Security Act of 2002 had a provision that would have extended protection to manufacturers of ingredients, Doody said. It was repealed the following year after a storm of criticism, he added. Edward Sagebiel, a spokesperson for Eli Lilly, said the decision will have not practical effect on the company because “there is no credible evidence that Thimerosal causes autism.”

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