In this case involving an issue of first impression, we are called upon to address whether the National Childhood Vaccine Injury Compensation Act of 1986 “Vaccine Act”, 42 USC § 300aa-1 et seq., preempts a lawsuit for injuries allegedly caused by the routine vaccination of a child.1 The trial court concluded that a portion of the plaintiffs’ claims are preempted by the Vaccine Act and granted partial summary judgment in favor of the defendants. For the reasons set forth below, we reverse. Summary judgment is proper when no genuine issue of material fact appears and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. We review the grant or denial of a motion for summary judgment de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Insurance Corp. , 226 Ga. App. 459 1 486 SE2d 684 1997. So viewed, the record shows that Marcelo and Carolyn Ferrari, individually and on behalf of their minor son, Stefan Ferrari, sued nine children’s vaccine manufacturers “vaccine defendants”,2 nine thimerosal manufacturers,3 and one rhogam manufacturer4 for alleged neurological damage to their son caused by vaccines containing thimerosal preservative, which in turn contained mercury. According to the Ferraris, their son’s neurological damage was caused by the mercury, which is toxic to humans. The Ferraris also sued Georgia Power, claiming that mercury emissions from its power plants also injured their son. The Ferraris asserted claims under Georgia law for strict liability and negligence. The Ferraris alleged the vaccine defendants negligently researched, manufactured, tested or failed to test, warned or failed to warn, and failed to recall thimerosal-containing vaccines. According to the Ferraris, the vaccine defendants could and should have manufactured children’s vaccines without thimerosal before their son was vaccinated in 1998.
SmithKline Beecham Corporation, GlaxoSmithKline Biologicals, S. A., and Wyeth filed answers denying liability and moved for summary judgment in their favor, claiming that the Vaccine Act preempted the Ferraris’ claims. The trial court found that the preemption doctrine applied and granted partial summary judgment to the vaccine defendants on the Ferraris’ design defect claims, their failure-to-warn claims to the extent that they alleged a failure to warn the plaintiffs or the general public, and their breach of warranty claims to the extent they asserted that the vaccines were defectively designed. On appeal, the Ferraris assert that the trial court erred by: 1 finding that its design defect claims are preempted; and 2 refusing to consider constitutional arguments raised by the Ferraris after the court had orally announced its ruling in favor of the vaccine defendants.
