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A couple whose son suffers from autism because of an alleged adverse reaction to thimerosal, a mercury-based preservative once present in vaccines for newborns, may not file suit in Pennsylvania against a group of pharmaceutical companies until they exhaust administrative remedies available through the National Vaccine Injury Compensation Program, the Pennsylvania Superior Court has ruled. In Cheskiewicz v. Aventis Pasteur Inc., et al., a three-judge panel upheld a Philadelphia Common Pleas Court ruling that Alan and Rita Cheskiewicz’s state court action was premature. According to the Superior Court opinion, the federal Vaccine Act of 1986 requires that before commencing any state or federal claims, vaccine claimants must first file a petition with the “no-fault” compensation program, a special tribunal of the Federal Court of Claims known as the Vaccine Court and located in Bethesda, Md. “The law is clear that parents were required to exhaust their Vaccine Act remedies before pursuing a state court action,” Judge Mary Jane Bowes wrote. “Parents’ failure to act in compliance with the act’s strict filing provisions precludes state court adjudication at this time.” Bowes was joined by Judges Michael T. Joyce and John T. Bender. The Cheskiewiczes filed a products liability suit in Philadelphia in May 2002, the opinion stated. Originally, they had taken their claims to federal court, but U.S. District Judge Norma L. Shapiro determined that no federal question was presented by their case. According to the opinion, their son A.J. was born in May 1994 and received certain vaccinations over the course of the next year. At 18 months, he began losing language and motor skills, and, in May 2001, he was diagnosed with disintegrative autism resulting from mercury toxicity. The Cheskiewiczes alleged, the opinion stated, that A.J.’s mercury poisoning was the result of exposure to thimerosal, a biocide used as a preservative in vaccines, including those administered to A.J., until the late 1990s. The opinion noted that the Cheskiewiczes’ suit was filed six-and-a-half years after the onset of A.J.’s symptoms — three-and-a-half years after the expiration of the Vaccine Act’s 36-month statute of limitations. “[The Cheskiewiczes] must litigate A.J.’s claim before the statutorily mandated forum created by the Vaccine Act,” Bowes wrote. “We acknowledge that despite the latent discovery of the causal connection between autism and mercury toxicity, parents’ Vaccine Act claim likely will be adjudged untimely.” The panel deemed “legally untenable” the Cheskiewiczes’ argument that they should be allowed to circumvent Vaccine Court proceedings because they only became aware of the link between autism and vaccination after the 36-month statute of limitations had passed. The court also rejected the Cheskiewiczes’ contention that a portion of their suit was not subject to the exhaustion requirement because their thimerosal case falls under a Vaccine Act exception involving instances in which a contaminant or adulterant was intentionally added to the vaccine in question. According to the opinion, the Cheskiewiczes argued that pursuant to the exception, their case should have been allowed to proceed in state court against the “Thimerosal defendants” — the companies, including Eli Lilly and Sigma-Aldrich, which actually produced the biocide. (The case’s “vaccine defendants,” which manufactured the vaccines in question, included GlaxoSmithKline, Wyeth and Aventis Pasteur.) “It appears that every federal court that ruled on this issue has held that injuries resulting from Thimerosal contained in vaccines are vaccine-related under the meaning of the act,” Bowes wrote, citing six 2002 decisions from a variety of federal district courts. “We see no reason to depart from the logic of these decisions, and sustain the dismissal of the claims against the Thimerosal defendants.” The court also concluded that both the Cheskiewiczes’ challenge of the constitutionality of the Vaccine Act and claims involving A.J.’s medical expenses should be addressed by the Vaccine Court itself. Denise H. Houghton of Cozen O’Connor, who represented Sigma-Aldrich, said defense counsel in the case petitioned the court to publish the memorandum opinion in Cheskiewicz, which was filed last month. “I think that the opinion is institutionally significant for both vaccine manufacturers and Thimerosal defendants,” Houghton said. According to lawyers involved in the case, GlaxoSmithKline’s attorneys were lead defense counsel in the case. The company’s legal team included Nina M. Gussack and Anthony Vale of Pepper Hamilton and Gray H. Miller of Fulbright & Jaworski’s Houston office. “We are certainly pleased by the ruling,” said GlaxoSmithKline spokeswoman Nancy Pekarek. “It is consistent with that of other courts around the country.” The Cheskiewiczes were represented by Miller & Associates attorneys Michele A. DiMartino and Christopher A. Gomez from the Bala Cynwyd office and Dominique D. Michel from the Alexandria, Va., office. They did not immediately respond to calls seeking comment. A bill before the U.S. House of Representatives’ Energy and Commerce Health Subcommittee would, among other changes, extend the current Vaccine Act statute of limitations from three to six years. The bill, titled the National Vaccine Injury Compensation Program Improvement Act, is sponsored by Reps. Frank Pallone Jr. of New Jersey and Dan Burton of Indiana.

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