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Georgia appears to be one of the early testing grounds for litigation over the alleged connection between autism and the use of mercury in preservatives for children’s vaccines. One suit already has bounced from Fayette County Superior Court to U.S. District Court and back to Fayette, where on Friday a dozen lawyers and a judge tried to negotiate a scheduling order opposed by an unlikely defendant: Georgia Power Co. Like other mercury cases around the country, those in Georgia — filed by lawyer Michael N. Weathersby of Atlanta’s Evert & Weathersby — take on pharmaceutical giants such as American Home Products Corp. (now Wyeth), GlaxoSmithKline and Johnson & Johnson. But Weathersby has added Georgia Power because, he argued, mercury emissions from Georgia Power’s plants contribute to the cumulative effect of mercury exposure to the children. VACCINES CITED Weathersby acknowledged in an interview that he believes the mercury in the vaccine preservatives is the primary reason children of his clients have elevated mercury levels in their bodies. The plaintiffs claim mercury poisoning has caused their children’s neurological problems, including autism. Weathersby explained that he expects pharmaceutical companies to shift the responsibility of mercury exposure to other environmental sources, such as power plants. Thus, Weathersby added Georgia Power to the list of defendants, because “I don’t have any intent of trying my case in front of an empty chair.” Pending further investigation, Weathersby said he expects to add other defendants with no connection to vaccines, but he declined to name them. Vaccine mercury plaintiffs have sued power companies in other states, Weathersby said, including Louisiana. For their part, the pharmaceutical defendants have denied that mercury caused the children’s neurological problems and appear set for a long fight. The Fayette case features Alembik, Fine & Callner of Atlanta and Washington D.C.’s Williams & Connolly for Wyeth; King & Spalding and Houston’s Fulbright & Jaworski for GlaxoSmithKline; Alston & Bird and Cleveland’s Arter & Hadden for Johnson & Johnson; and Chicago’s Sidley Austin Brown & Wood for Armour Pharmaceutical Company, another defendant. Meanwhile, represented by Hugh B. McNatt of Vidalia’s McNatt and Greene and Mary K. McLemore of Troutman Sanders, Georgia Power is fighting to get out of the cases, starting with the one in Fayette. That case was brought by Lyndelle H. “Lyn” Redwood, who heads Safe Minds, a national support group of parents with autistic children, and her husband, William Thomas Redwood. They claim their son Will suffers from neurological disorders as a result of mercury poisoning. Redwood v. American Home Products, No. 2001V0612M (Fayette Super. filed July 9, 2001). Last year, Georgia Power removed the Fayette case to federal court, arguing that Weathersby fraudulently added the Georgia-based defendant to the case just to keep it in a state court. But U.S. District Judge Jack T. Camp of the Northern District of Georgia sent the case back to Fayette. Camp took note of Georgia Power’s arguments that the mercury in the air is a trifling amount and that the child had not been exposed to any more mercury than anyone else in the area. But a doctor’s affidavit countered that, because the Redwoods lived near four power plants, mercury exposures from the plants would have contributed to Will Redwood’s condition. Precedent required him to view the facts in favor of the plaintiff, Camp said. He concluded, “Plaintiffs’ claims of exposure to mercury are likely to have evidentiary support both factually and legally after discovery is conducted.” Redwood v. American Home Products, No. 3:01-CV-125-JTC (N.D. Ga. order Dec. 21, 2001). That brought the case back to Fayetteville, where, on Friday, Chief Judge Ben J. Miller of Fayette County Superior Court tried to resolve a dispute between Georgia Power and the plaintiffs over the scheduling order. DISCOVERY AND DEPOSITION The problem stems from an underlying dispute over discovery and deposition of the plaintiff’s expert witnesses. “I want some time so the plaintiff can manage discovery,” Weathersby said in an interview after the hearing. Also, without a scheduling order, he said, the defendants have the resources to drag the case out forever. “Georgia Power wants to make it short and incomplete,” he said. Weathersby said he would like the scheduling order to provide for discovery from Georgia Power before the company’s lawyers can depose his experts. Weathersby explained that his experts can’t make final scientific determinations of Georgia Power’s role until they see some of the company’s documents. In court, Georgia Power lawyer McNatt noted that Weathersby’s experts were certain enough of their findings that they filed them in remand proceeding in federal court. Therefore, he added, the experts should be willing to back them up in deposition — without the need for discovery beforehand. “They filed the affidavits that kicked me out of federal court and down here — where I’m happy to be,” McNatt told Miller. SCHEDULING OPPOSED McNatt added that Georgia Power objected to setting a scheduling order in the case because it wants to move faster than the other parties. McNatt said his client only needs about 90 days to take depositions and get motions before the court. In comparison with what the pharmaceutical companies face, he said, Georgia Power’s part of the case is fairly simple. “While mercury is the issue in this case, it is the only commonality we have with the pharmaceutical companies,” he said. The brief hearing ended with Miller saying he was inclined to enter an order, but he would prefer for the parties to arrive at one by consent. The process soon may be repeated in Fulton State Court, where Weathersby has filed another spate of mercury cases.

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