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In the months after Joseph Alexander Counter was born in 1996, he appeared to be progressing normally. He had met all his development milestones and by the age of 20 months had a growing vocabulary, says plaintiffs’ attorney Andrew Waters of Dallas’ Waters & Kraus. “He was able to say Mama and Dada and fire truck, sort of,” Waters says. “But then he lost all of his language and the only way he could communicate was by screaming.” The boy was diagnosed with autism and then tested and found to have high levels of mercury exposure. Seemingly, there was no explanation for this. As an infant, “Jac” — the boy’s nickname, based on his initials — hadn’t been unusually exposed to any heavy metals. But as the boy’s parents, Joseph and Theresa Counter, began researching Web sites and contacting support groups for parents of autism, a theory developed. From his first weeks of life onward, Jac had received all his scheduled vaccinations, and the vaccines he received contained a preservative called thimerosal. Thimerosal, by weight, was 49.6 percent mercury. In May 2001, the Counters, of Plano, Texas, sued a slew of vaccine and thimerosal makers, charging that exposure to the mercury in the vaccines caused Jac’s autism. Autism is a neurological disorder characterized by a range of symptoms, including social withdrawal, loss or lack of development of language, cognitive deficits, attention deficit traits, poor hearing, oversensitivity to light or sound, poor eye-hand coordination, jerky movements, such as thrashing about, or repetitive movements, such as circling, spinning or rocking in place. The symptoms usually emerge gradually during early childhood and will range in severity depending on the individual. It was the first case ever filed charging vaccine mercury poisoning, the opening of what has become an onslaught of litigation against the vaccine industry. Dozens of lawsuits, including putative class actions, have been filed across the country, claiming autism or other neurological defects were caused by exposure to mercury in vaccines. Dozens more lawsuits are scheduled to be filed in the next few weeks. At least three coalitions of plaintiffs’ lawyers have been established to pool resources and share information to litigate these claims. Plaintiffs’ attorneys in several states are now advertising on television and in print seeking prospective clients with autistic children. WAR CHEST “We’ve put together a war chest and are trying to get the cases developed,” says plaintiffs’ attorney Michael Gallagher of Houston’s Gallagher, Lewis, Downey & Kim. The interest from prospective plaintiffs is stunning, he says. “We’ve had phone calls from several thousand people.” Waters is part of a separate coalition of about 30 law firms nationally. “We’re considering about eight to nine hundred, and we’ve filed 45 or so,” he says. The firms in this coalition are also contributing to a litigation fund. The attorneys are working together, Waters says, “so we don’t have to reinvent the wheel.” He declined to say how much money the firms have contributed thus far, but adds, “it will take millions to litigate these cases.” The defendants include the vaccine makers, such as American Home Products Corp., Aventis Pasteur Inc., Merck & Co. and GlaxoSmithKline, and the makers of thimerosal, including Uriach Corp. and Emerck Inc. The plaintiffs are also suing Eli Lilly & Co., which invented the product and promoted its use as a preservative, Waters says. The claims include products liability, conspiracy and fraud. The suits over thimerosal are seen by some plaintiffs’ lawyers as one of the most enticing causes of action in recent memory. “The jury appeal is unparalleled,” says Waters. “In these cases, you have a small child whose whole life is ahead of him.” The child begins life normally, then “degenerates. It’s a devastating process.” As a result, the potential damages could be astronomical. “You’ve got 10, 20, 30 millions in a life-care plan,” he says. “That’s before talking about the emotional distress or the pain and suffering.” DEFENSE SIDE The defendants say that the litigation lacks any basis in reality. “There is an absence of any reliable scientific evidence” linking incidence of autism “to vaccines containing thimerosal,” says Nancy Pekarek, vice president of corporate media relations/U.S. for GlaxoSmithKline, which makes several vaccines with the preservative. Following an investigation into possible dangers, she says, “the Institutes of Medicine said there was no harm.” Thimerosal, a water-soluble organic mercury compound, has been used to prevent contamination and bacteria in vaccines since about 1940. Thimerosal was and is considered the most effective agent for preventing bacteria growth in vaccines, Pekarek said. But the plaintiffs contend that thimerosal is directly connected to a significant rise in the diagnoses of autism. “Autism once was really, really rare,” Gallagher says. “The incident rate was once one in 10,000 births. Now it’s 40 per 10,000.” In some areas, including California and New Jersey, “the rate is one in 150 births.” The use of thimerosal increased in the 1990s, says Kathleen Dailey of Portland, Ore.’s Williams Dailey O’Leary Craine & Love, as the vaccination schedule changed. Children still received the traditional diphtheria-tetanus-pertussis vaccine, but the newer HIB flu vaccine and the hepatitis B vaccine were added then. Many of these vaccine doses, depending on the manufacturer, contained thimerosal, thus upping the potential exposure, Waters asserts. This was exacerbated, Dailey says, by the reliance on multidose vials, which required preservatives to ward off contamination. As the amount of mercury-tainted vaccines delivered to infants increased, the number of autism cases increased as well, she says. A possible connection between thimerosal and autism was not suspected, however, until the late 1990s, says Lyn Redwood, president of Safe Minds, a support group for parents with autistic children. What set this off, she adds, was a rider on the 1997 Food and Drug Administration reauthorization bill that required the FDA to compile a list of drugs and foods that contained intentionally introduced mercury compounds. In June 1999, the FDA issued a report indicating that “infants who received thimerosal-containing vaccines at several visits may be exposed to more mercury than recommended by federal guidelines for total mercury exposure.” This news spread among parents with autistic children, says Redwood, who has an 8-year-old son who had been diagnosed with pervasive developmental disorder, a form of autism. Before this, she notes, “I never would have made a correlation between my son’s disability and vaccines.” At 2 months of age, Redwood says, her son Will received 62.5 mcg of mercury from three infant vaccines. The Environmental Protection Agency’s standard allowable dose, based on the boy’s weight, was 0.5 mcg, she says. “These large injected bolus exposures continued at 4, 6, 12 and 18 months to a total mercury exposure of 237.5 mcg.” During his first year of life, said Redwood, her son progressed normally. He began regressing shortly after his first birthday. Despite the FDA’s report that infants were being exposed to larger-than-recommended doses of mercury, there was no ordered recall. But the FDA did ask the vaccine makers to reduce the mercury content and the companies complied, said Pekarek. In 2000, the Centers for Disease Control issued a report based on its study of thousands of children who had been given thimerosal-containing vaccines. The study indicated that the data was inconclusive in connecting thimerosal exposure and autism. But as the news of the presence of mercury in vaccines spread among parents with autistic children, these parents began doing additional research, Redwood says. What particularly clicked with these parents was that the symptoms and manifestations of mercury poisoning almost perfectly dovetailed with the signs of autism, adds Gallagher. “I’ve handled some mercury poisoning cases and there is an amazing similarity in how this progresses,” he says. After hearing about the possible thimerosal-autism connection, Redwood had her son’s hair tested and discovered that he had a mercury level of 4.8 ppm, well above the EPA’s 1 ppm action level for mercury toxicity. Her group, Safe Minds, filed a Freedom of Information Act request with the CDC in February 2001 seeking all information about its research. Last fall, the group received what it considered the smoking gun, says Safe Minds attorney Elizabeth Birt, who’s a parent of an autistic child and an associate at Chicago’s Ross & Hardies. The CDC’s research had initially found that children who were exposed to 62.5 mcgs of mercury in vaccines in the first three months of life were 2.48 times more likely to develop autism. Anything over two is considered significant, Birt says. “This report never saw the light of day,” adds Waters. Instead, the researcher, Thomas Verstraeten, added more children to the epidemiological study. The new numbers brought the correlation down to 1.69 times; this figure was cited in the final report. But, he adds, all the children added were under the age of 2 — or below the age when autism is diagnosed. The researcher, Waters asserts, was subsequently hired by GlaxoSmithKline as a consultant. As the parents began gathering information, they also began looking for lawyers. And the lawyers contacted began sharing information. Michael Williams of Williams Dailey co-founded and heads the Mercury Vaccine Alliance, an organization of about a dozen plaintiffs’ firms that have been involved in filing individual lawsuits and class actions in several states, including Oregon, Washington, New Hampshire, Maine and Massachusetts. The attorneys in this coalition will be attempting to get class-certified, Williams says. Last July, Williams Dailey filed a class action in state court in Portland, Ore., on behalf of autistic children, contending the plaintiffs had been damaged by exposure to thimerosal. The class action is seeking medical monitoring, as well as recovery for injuries. There is a separate medical monitoring class action for plaintiffs “who have been exposed, but are not symptomatic,” Dailey says. King v. Aventis Pasteur Inc., No. 0106-05780 (Multnomah Co., Ore., Cir. Ct.). Waters and the other lawyers are eschewing the class action approach, he says, determining that individual lawsuits are the proper method of pursuing personal injury claims. The exact number of cases filed so far is a moving target. Waters has filed more than 50 and is considering several hundred others. Lyn Redwood’s attorney, Michael Weathersby of Atlanta’s Evert & Weathersby, has filed her lawsuit in Georgia and will be filing another dozen more in the next 30 to 60 days. Redwood v. American Home Products Corp., No. 2001V0612M (Fayette Co., Ga., Super. Ct.). Not all autistic children are likely plaintiffs, however, Waters says. If a child shows symptoms from birth of autism, then Waters will not take the case. Instead, he says, he is looking for a child who is normal at birth, and, generally, for the first year beyond. “You have to make sure it’s a regressive case,” he says. To prove regression, he adds, complete medical records are essential; videotapes of the child before and after the regression are also critical. “There is a typical fact pattern,” adds Weathersby. “Most have achieved early language fluency and then it’s like a switch flips. The child becomes regressively autistic.” Boys are more likely to undergo this transformation than girls, Weathersby says. “It’s about 4 or 5 to one. Mercury sensitivity is more prevalent in males.” A ‘TIME BOMB’ “The symptoms don’t happen immediately after vaccination,” adds Waters. “There is a significant latency period,” he says. The doses of mercury are cumulative and act like a time bomb in the child. The number of potential plaintiffs could be enormous. Waters estimates that as many as one-third to one-half of autistic children were injured through exposure to mercury in vaccines. Dailey adds that mercury in vaccines could also be connected to other neurological disorders in children. This includes attention deficit disorder, Dailey says. The vaccines sold in the United States no longer contain thimerosal, but the ingredient continues to be used in vaccines sold or donated in other nations, Redwood says. In addition, since there was no recall, vials of thimerosal-laced vaccines already purchased are still used in the U.S., she says. The Counter lawsuit will likely be the first of these thimerosal actions to go to trial. It’s scheduled for February 2003. The plaintiffs have already received more than 20,000 documents from the defendants and have scheduled several depositions of defense personnel for mid-April. Counter v. American Home Products, No. 15285 BH01 (Brazoria Co., Texas, Dist. Ct.). Whatever the results of these trials, the litigation itself may have some harmful effects on future generations of children, Pekarek says. In Britain, she says, following a recent controversy over the measles vaccine, fewer children had the vaccinations and “there was a measles outbreak in the U.K. Whenever people become afraid of vaccines, the incidence of disease rises.”

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