Vaccine Freedom Rally & Lawsuits: Saving the Children

October 12, 2008

NVIC Vaccine E-Newsletter

October 10, 2008

by Barbara Loe Fisher

www.vaccineawakening.blogspot.comwww.NVIC.orgwww.StandUpBeCounted.org

Yesterday morning, New Jersey Moms Louise Kuo Habakus and Claudine Liss of the New Jersey Coalition for Vaccination Choice appeared on Fox News (Fox & Friends) http://www.foxnews.com/video2/video08.html? maven_referralObject=3144881 & maven_referralPlayli stId= & sRevUrl=http://www.foxnews.com/foxfriends to talk about the vaccine freedom rally next Thursday (October 16) in Trenton in support of conscientious belief exemption legislation giving New Jersey parents the legal right to follow their conscience when making vaccine choices for their children. After the show, Louise and Claudine were invited back for an informal, spirited discussion http://www.foxnews.com/video2/video08.html? maven_referralObject=3145131 & maven_referralPlayli stId= & sRevUrl=http://www.foxnews.com/foxfriends/ about the epidemic of chronic disease and disability and the recent flu vaccine mandate instituted in New Jersey for all children. Smart, sincere, passionate, and articulate, these two Moms are what the vaccine safety and informed consent movement is about and their call for freedom of choice echoes the one that has been made by parents of vaccine injured children for nearly three decades. For more information about how to stand with Louise, Claudine, Larry Palevsky, M.D., me and more than 500 parents registered to rally in Trenton next Thursday and make your voice heard for vaccine freedom, contact the NJ Coalition for Vaccination Choice at www.njvaccinationchoice.orgOn Monday, the Georgia Supreme Court issued a unanimous appeals court ruling that opened the door for families of vaccine injured children to sue vaccine manufacturers for vaccine design defects that lead to injury and death. The next day a Missouri Appeals Court upheld an $8.5 million judgment against American Cyanamid for injuries suffered by a man who contracted vaccine strain polio from a live oral polio vaccination as a child. Both civil court decisions rightly hold pharmaceutical companies accountable for failing to appropriately test and improve vaccines they sell to the public so that health risks from using the product can be eliminated or at least significantly reduced. When Congress passed the National Childhood Vaccine Injury Act of 1986, which was historic societal acknowledgment that vaccines can injure and kill and that the vaccine injured should be compensated even as vaccine availability should be protected, it was clear in both the legislative history and clarifying language accompanying the Act's passage that Congress never intended to give blanket, exclusive immunity to drug companies marketing vaccines for public use. Until this week, too many federal judges have misinterpreted the spirit and intent of the 1986 law. Hopefully, the Georgia decision will ultimately give parents of vaccine injured children the legal ability to hold drug companies accountable in a civil court of law for failing to reduce the reactivity of their products.Whether holding the pharmaceutical industry accountable in the judicial system or petitioning legislators to allow Americans to follow their conscience and exercise informed consent to medical risk taking, vaccine educated citizens in America are standing up for their civil rights in larger numbers. It is a good sign, a beacon of hope that the business of saving our children from a lifetime of chronic illness and disability has become a priority for more than a small minority of citizens. Saving our children is everyone's business and standing up for freedom of speech and conscience is the first order of business in a democratic society.Whether you live in New Jersey or another state - I hope to see you at the rally in Trenton on Oct. 16 and two days later on Oct. 18 at the Natural Living Conference in Mahwah sponsored by the Holistic Moms Network. http://home.homewebs.com/hmnannualconference/. ________

"NJ Assemblywoman Charlotte Vandervalk, Board-certified Pediatrician Dr. Lawrence Palevsky and National Vaccine Information Center co-founder Barbara Loe Fisher, will join NJ parents and professionals at a rally in Trenton for vaccination choice. Over 500 have pre-registered, requiring the city to close the streets, and more participants are expected. The speakers represent a cross-section of society including medical doctors, nurses, chiropractors, scientists, clergy, educators, soldiers, politicians, journalists, autism activists, homeschoolers and many parents. The NJ Coalition for Vaccination Choice (NJCVC) invites you to rally with them by the steps of the State House, outside Gov. Corzine's office. The Legislature will be in session. The group opposes the four new vaccine mandates including an annual flu shot for children ages 5 and under, required for daycare and pre-school. NJCVC supports the passage of bill A260/S1071 to allow a conscientious exemption to mandatory vaccination that will permit parents to select all, some, or no vaccinations for their children. A form of this parental right already exists in 19 other US states." - New Jersey Coalition for Vaccination Choice (October 7, 2008) ht tp://www.foxnews.com/video2/video08.html? maven_referralObject=3144881 & maven_referralPlayli stId= & sRevUrl=http://www.foxnews.com/foxfriends "The Supreme Court of Georgia on Monday upheld a state appeals court ruling that could open the door to product liability claims against vaccine manufacturers by the parents of autistic children. Ju stice George H. Carley wrote for a unanimous court that a Fulton County suit against manufacturers filed by the parents of an autistic child may to go to trial. The justices rejected what Carley described as a "far-reaching interpretation" of a federal vaccine statute that defendant vaccine manufacturers argued gave them sweeping immunity from liability..... Carley specifically focused on Congress' intent. He wrote that a reading of the federal vaccine act "and the congressional intent behind it show that the Vaccine Act does not pre-empt all design defect claims." Instead, Carley noted, the federal vaccine law "provides that a vaccine manufacturer cannot be held liable for defective design if it is determined, on a case-by-case basis, that the injurious side effects of the particular vaccine were unavoidable." But, the judge added, "The conditional nature of this clause contemplates the occurrence of side effects which are avoidable, and for which a vaccine manufacturer may be civilly liable. In order to bar all liability for defective design and to permit liability only for manufacturing and warning defects, Congress could easily have ..... made the bar to civil liability conditional on proper preparations and warnings.As the statute is actually written, however," Carley continued, "it is best understood as barring liability only for those side effects which were unavoidable by means other than proper manufacturing and packaging. Conversely, if such effects were avoidable by a feasible, alternative design, liability is not completely barred." Neither can federal law nor, by extension, Congress unilaterally pre-empt state causes of actions, Carley said. Instead, the justice noted that the question of whether a particular vaccine is unavoidably unsafe -- and therefore subject to immunity from liability -- is a question of fact for a jury to decide." - R. Robin MacDonald, Law.com (October 7, 2008) http://www.law.com/jsp/article.js p?id=1202425070398"A Missouri appeals court Tuesday upheld an $8.5 million judgment for a St. Louis man who contracted polio after receiving an oral vaccine as a child. A three-judge panel of the Court of Appeals' Eastern District also ruled that the vaccine's manufacturer owed about $2.8 million for prejudgment interest on top of the award because it refused to accept a pretrial settlement offer that was less than the amount awarded by a jury. Cortez Strong contracted polio in June 1987, shortly after receiving a second dose of the vaccine Orimune, which was made by American Cyanamid Co.....Strong sued American Cyanamid and the pediatrician who administered the vaccine. In 2005, a St. Louis jury cleared the doctor of liability but ordered American Cyanamid to pay Strong $1.5 million for pain and suffering, $2 million for future lost earnings and $5 million for future pain and suffering. The company appealed, contending there was insufficient evidence that it was legally liable for Strong's injuries. The company also sought to have the judgment reduced or set aside or that a new trial be ordered. Strong also appealed, seeking to be allowed to introduce rebuttal evidence against the physician and to have American Cyanamid be ordered to pay interest on the award. The appeals court rejected each request except Strong's appeal for prejudgment interest. " - Chris Blank, Associated Press (October 8, 2008) http://biz./ap/081008/mo_polio_ award.html?.v=1

Over 500 To Rally For Vaccination Choice at the State House in Trenton, NJ on Thursday, October 16, 2008 at 12:00 p.m.

ht tp://www.foxnews.com/video2/video08.html? maven_referralObject=3144881 & maven_referralPlayli stId= & sRevUrl=http://www.foxnews.com/foxfriends ht tp://www.foxnews.com/video2/video08.html? maven_referralObject=3145131 & maven_referralPlayli stId= & sRevUrl=http://www.foxnews.com/foxfriends/

NJ Assemblywoman Charlotte Vandervalk, Board- certified Pediatrician Dr. Lawrence Palevsky and National Vaccine Information Center co-founder Barbara Loe Fisher, will join NJ parents and professionals at a rally in Trenton for vaccination choice. Over 500 have pre-registered, requiring the city to close the streets, and more participants are expected. The speakers represent a cross-section of society including medical doctors, nurses, chiropractors, scientists, clergy, educators, soldiers, politicians, journalists, autism activists, homeschoolers and many parents. The NJ Coalition for Vaccination Choice (NJCVC) invites you to rally with them by the steps of the State House, outside Gov. Corzine's office. The Legislature will be in session. The group opposes the four new vaccine mandates including an annual flu shot for children ages 5 and under, required for daycare and pre-school. NJCVC supports the passage of bill A260/S1071 to allow a conscientious exemption to mandatory vaccination that will permit parents to select all, some, or no vaccinations for their children. A form of this parental right already exists in 19 other US states. The media is urged to cover this high visual impact event: signs, banners, balloons, photos, children, music, personal stories, legislator appreciation ceremony. Rally Information: Rain or Shine, Thursday, October 16, 2008, Noon- 2 pm, 125 West State Street, Trenton, NJ, www.njvaccinationchoice.org for more rally details. Contact Louise Habakus vaxRSVP 917-553-4634 or Sue Collins NJAICV 908-403-4027 for more information. For reporters covering national and state political, education, health and children's issues. Find information for many local papers here: www.usnpl.com/njnews.php TAKE ACTION NOW1. Write your legislators. (go to The Vaccination Choice Hand-Delivered Letter Campaign http://www.njvaccinationchoice.org/letterwriting.html )2. Post flyers, (go to www.njvaccinationchoice.org and look in the purple box to download).3. Make signs and banners. 4. Bring photos of the children, in whose name or memory you are asking for choice. 5. Call and invite your legislators to the rally. Meetings are in session on 10/16. 6. Register! We need to make more accommodations as our numbers approach one thousand. E-mail vaxRSVP or go to www.njvaccinationchoice.org

Ga. Supreme Court Backs Vaccine Suit in Autism Case

by R. Robin McDonaldLaw.comOctober 7, 2008http://www.law.com/jsp/article.js p?id=1202425070398

The Supreme Court of Georgia on Monday upheld a state appeals court ruling that could open the door to product liability claims against vaccine manufacturers by the parents of autistic children.Ju stice George H. Carley wrote for a unanimous court that a Fulton County suit against manufacturers filed by the parents of an autistic child may to go to trial. The justices rejected what Carley described as a "far-reaching interpretation" of a federal vaccine statute that defendant vaccine manufacturers argued gave them sweeping immunity from liability.Carley suggested that the U.S. Supreme Court may be asked to consider the question.The Georgia high court's ruling conflicts with two federal district courts and state courts in New York and Pennsylvania, which have considered similar suits brought by other parents of autistic children who claim vaccines triggered the onset of autism in their offspring.Those rulings have held that the federal National Childhood Vaccine Injury Compensation Act of 1986 pre-empts liability claims against companies which produce vaccines approved by the U.S. Food and Drug Administration if an injury or death resulting from a vaccine's side effects are considered "unavoidable."Lawyers for the drug companies have argued that the federal vaccine law deems any vaccine-related side effect to be "unavoidable" if the vaccine was properly prepared and accompanied by the proper FDA-mandated warnings.The law created a special, no-fault compensation system for victims of vaccine-related injuries in separate "vaccine courts" outside of the existing state and federal court systems. Lawyers for the drug companies that manufacture childhood vaccines have said the federal law was needed to ensure the availability of those vaccines and encourage their production by shielding the manufacturing companies from product liability claims stemming from the vaccines' known side effects.GEORGIA CASEThe case decided Monday concerns Stefan Ferrari, the son of Marcelo and Carolyn Ferrari. Stefan was born in 1998 and, after he was vaccinated, stopped speaking when he was 18 months old.The Ferraris sued two pharmaceutical firms, Wyeth and GlaxoSmithKline, that manufactured the vaccines. They claim that thimerosal -- a preservative containing mercury that until 2001 was commonly used in the production of childhood vaccines -- caused Stefan to develop neurological problems associated with autism. The Ferraris have also sued several thimerosal manufacturers.In 1999, the Centers for Disease Control and Prevention and the American Academy of Pediatrics recommended that thimerosal be removed from childhood vaccines, although the CDC maintains that no causal relationship has been established between vaccines containing thimerosal and autism. However, the mercury-containing preservative has not been found in recommended childhood vaccines, other than the flu vaccine, since 2001.In their suit, the Ferraris claim that the drug's design, specifically the use of thimerosal as a preservative, was flawed and that its alleged side effects could have been avoided had another preservative been used.Fulton County State Court Judge Susan B. Forsling in November 2005 granted partial summary judgment to the vaccine manufacturers on grounds of pre-emption, dismissing the design defect claims at the crux of the case.But a panel of the state Court of Appeals disagreed. Joined by Chief Judge Anne Elizabeth Barnes and Judge M. Yvette Miller, Presiding Judge J.D. Smith acknowledged the logic of other courts that have found that the legislative history indicates Congress' clear intent to pre-empt the issue. But he said a 2005 U.S. Supreme Court decision on pre- emption, Bates v. Dow Agro Sciences, 544 U.S. 431, meant the court couldn't look at the legislative history to determine Congress' intent and instead had to accept any plausible reading of the statute that avoided pre-emption.CONGRESS' INTENTWhile the Georgia high court on Monday affirmed the Court of Appeals, unlike that court, Carley specifically focused on Congress' intent.He wrote that a reading of the federal vaccine act "and the congressional intent behind it show that the Vaccine Act does not pre-empt all design defect claims."Instead, Carley noted, the federal vaccine law "provides that a vaccine manufacturer cannot be held liable for defective design if it is determined, on a case-by-case basis, that the injurious side effects of the particular vaccine were unavoidable."But, the judge added, "The conditional nature of this clause contemplates the occurrence of side effects which are avoidable, and for which a vaccine manufacturer may be civilly liable. In order to bar all liability for defective design and to permit liability only for manufacturing and warning defects, Congress could easily have....made the bar to civil liability conditional on proper preparations and warnings.""As the statute is actually written, however," Carley continued, "it is best understood as barring liability only for those side effects which were unavoidable by means other than proper manufacturing and packaging. Conversely, if such effects were avoidable by a feasible, alternative design, liability is not completely barred."Neither can federal law nor, by extension, Congress unilaterally pre-empt state causes of actions, Carley said. Instead, the justice noted that the question of whether a particular vaccine is unavoidably unsafe -- and therefore subject to immunity from liability -- is a question of fact for a jury to decide.Carley's exploration of Congress' intent was far- reaching. He cited a 1986 Congressional committee report that labeled "unavoidably unsafe products" as "those products which in the present state of human skill and knowledge cannot be made safe" and further stated that vaccines meeting that definition "not be the subject of liability."In addition, the committee report "does not use language which indicates that use of the compensation system is mandatory," Carley wrote, noting that the report called the vaccine injury compensation system only "an appealing alternative" to the courts."Thus, Congress defended the new compensation system by assuming that it would attract even vaccine-injured persons who may be able to prove that the vaccine was not made as safe as reasonably possible," Carley wrote. "Such an assumption about a no-fault compensation system is certainly questionable, to say the least. However, the assumption is not relevant for its accuracy, but rather for its illumination of congressional intent. .....In the committee's opinion, if a vaccine-injured person does not have a claim for a manufacturing or warning defect, he should find the compensation system appealing even though he is authorized to attempt to prove the existence of a safer design in the tort system."Carley also referred to a subsequent 1987 report by the same Congressional committee, which he described as "strikingly clear and emphatic."In that report, Carley singled out the following passage, "The Committee stresses that there should be no misunderstanding that the Act undertook to decide as a matter of law whether vaccines were unavoidably safe or not. This question is left to the courts to determine in accordance with applicable law."Finally, Carley's opinion took aim at prior court rulings on the subject. The federal courts, he wrote, "failed to explain how the National Vaccine Program set up by the Vaccine Act will better promote the discovery of safer alternative designs if manufacturers are given a blanket tort immunity for design defects." Nor did the district court cite any authority "for its conclusion that FDA approval alone renders a vaccine unavoidably safe," Carley wrote. "We hesitate to hold that a manufacturer is excused from making changes it knows will improve its product merely because an older, more dangerous version received FDA approval."To do so, he wrote, would have "the perverse effect" of granting complete immunity from liability to an entire industry. "In the absence of any clear and manifest congressional purpose to achieve that result, we must reject such a far-reaching interpretation ......at least until the Supreme Court of the United States has spoken on the issue."On Monday, the Ferraris' attorney, Lanny B. Bridgers of Atlanta, said that the couple "is obviously pleased and look forward to pursuing their claims at the trial court level."Daniel J. Thomasch, a partner with Orrick Herrington & Sutcliffe in New York, who argued the case in front of the Supreme Court for the drug companies, referred questions to Wyeth, formerly American Home Products Corp.Wyeth did not make a spokesperson available by press time. A spokeswoman for co-defendant GlaxoSmithKline said the company is disappointed with the ruling and currently evaluating its options.The case is American Home Products Corp. v. Ferrari, No. S07G1708.

Mo. court upholds $8.5M polio vaccine awardAppeals court upholds $8.5M award to St. Louis man who contracted polio from vaccine

by Chris BlankAssociated PressOctober 8, 2008http://biz./ap/081008/mo_polio_ award.html?.v=1

JEFFERSON CITY, Mo. (AP) -- A Missouri appeals court Tuesday upheld an $8.5 million judgment for a St. Louis man who contracted polio after receiving an oral vaccine as a child.A three-judge panel of the Court of Appeals' Eastern District also ruled that the vaccine's manufacturer owed about $2.8 million for prejudgment interest on top of the award because it refused to accept a pretrial settlement offer that was less than the amount awarded by a jury.Cortez Strong contracted polio in June 1987, shortly after receiving a second dose of the vaccine Orimune, which was made by American Cyanamid Co. Strong said he was frequently teased, struggled to fit in with other children and now has limited use of his left arm and right hand.Strong sued American Cyanamid and the pediatrician who administered the vaccine. In 2005, a St. Louis jury cleared the doctor of liability but ordered American Cyanamid to pay Strong $1.5 million for pain and suffering, $2 million for future lost earnings and $5 million for future pain and suffering.The company appealed, contending there was insufficient evidence that it was legally liable for Strong's injuries. The company also sought to have the judgment reduced or set aside or that a new trial be ordered.Strong also appealed, seeking to be allowed to introduce rebuttal evidence against the physician and to have American Cyanamid be ordered to pay interest on the award.The appeals court rejected each request except Strong's appeal for prejudgment interest.Judge Kenneth M. Romines dissented from Tuesday's 2-1 ruling, contending a new trial was warranted because Strong's attorneys didn't prove part of their case. Romines also disagreed with the majority and would have allowed Strong to present his rebuttal evidence against his doctor.Polio is caused by three types of viruses. Oral vaccines for the three types were derived from strains that use living but weakened virus. American Cyanamid grew larger volumes of the vaccine by passing it through the kidney cells of monkeys, which results in "production seeds." Federal regulations required that the "seeds" be tested on monkeys to determine if they could cause illness.American Cyanamid was purchased in 1994 and is now part of New Jersey-based Wyeth. The vaccine given to Strong was discontinued in 2000.A spokesman for Wyeth said Tuesday the company is studying its next step."We are considering our appellate options and recourse for further review," spokesman Doug Petkus said. "We still believe the case was wrongly decided."But an attorney for Strong said he believes the appeals court ruling will likely be the last legal hurdle."It's been a long time coming for Cortez, and we couldn't be happier," attorney Thomas Germeroth said.

National Vaccine Information Center

NVIC E-News is a free service of the National Vaccine Information Center and is supported through donations.NVIC is funded through the financial support of its members and does not receive any government subsidies. Barbara Loe Fisher, President and Co- founder.Learn more about vaccines, diseases and how to protect your informed consent rights www.nvic.org

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