Mercury Falling
Homeland Security Act inoculates drug makers against autism lawsuits.
BY CHRIS LYDGATE
243-2122
  http://www.wweek.com/flatfiles/News3373.lasso

_____ When President George W. Bush signed the Homeland Security Act in the
White House on Monday, he praised the bill as a "heroic action" that
demonstrated "the resolve of this great nation to defend our freedom, our
security and our way of life."
Three thousand miles away, Portland lawyer Mike Williams rolled his eyes.

Williams represents hundreds of families who are suing pharmaceutical
companies--in particular, Eli Lilly--over a mercury-based preservative used
in some childhood vaccines. The families contend that the preservative
triggered neurological damage in their children, who have been diagnosed
with autism.

Last week, Williams was stunned to learn that an unknown lawmaker had
slipped a last-minute rider into the Homeland Security Act, shutting down
the lawsuits in the name of the war on terrorism.

"I thought I had lost my naiveté about the power of big money," Williams
told WW minutes after Bush signed the bill. "But even I was naive to think
Congress wouldn't do this. There was no notice, no warning, no debate--it
just came out of nowhere."

Sitting in his 19th-floor office, with a crystalline view of Mount Hood,
Williams, 55, is not exactly your buttoned-down tort geek. Rumpled in a
black waistcoat, he sports a gray-white beard and a shoulder-length shag of
hair. He holds a master's in philosophy from the University of
California-Berkeley, where he studied Wittgenstein and artificial
intelligence.

In the mid-'70s, frustrated by intellectual hairsplitting, he quit his
doctoral studies and became a truck driver, delivering propane in Montana.
"I was in my Zen and the Art of Motorcycle Maintenance phase," he explains.

Williams' wanderings eventually led to Harvard Law School, where he
graduated magna cum laude; in 1978 he moved to Eugene, where his very first
case concerned the Dalkon shield, a controversial contraceptive. Since then,
he has become one of America's top trial lawyers, litigating issues such as
asbestos, breast implants, fen-phen, Propulsid and Rezulin.

His latest obsession is thimerosal (thigh-MARE-oh-sahl), a preservative used
in childhood vaccines until 1999. His clients suspect thimerosal, which
contains the potent neurotoxin ethylmercury, is responsible for their
children's autism, a devastating neurological disorder that distorts
perception, behavior and speech.

The new legislation wipes out all thimerosal cases filed in state courts.
Instead, parents are supposed to apply to the National Vaccine Injury
Compensation Program, established by Congress in 1986 to handle rare cases
of damage from childhood vaccines. The program grants a maximum of $250,000
to families who can prove their children suffered harm; if parents lose,
they can file regular lawsuits.

Williams says the program is stacked against his clients in several ways.
First, parents must file a claim within three years of their children's
first symptoms. Autism is typically not diagnosed until 18 months after the
first symptoms appear, and two-thirds of his clients have already missed the
deadline. Under the new rules, he says, "they'll never get their day in
court."

Second, the burden of proof is harder to meet under NVIC, which requires
plaintiffs to show that a majority of scientists agree with them, as opposed
to state courts, where they need only find some experts.

Third, the limit of $250,000 is considerably lower than the typical award
for autism in state court. The lifetime costs of caring for an autistic
individual are estimated at $2 million.

Most importantly, the legislation means delay. It takes four to five years
to reach a decision under NVIC--an eternity for parents struggling to
provide for children who often require round-the-clock care.

The long delay also lengthens the odds against their lawyers, who don't see
any money unless they win a case. Williams reckons he will shell out
$200,000 in out-of-pocket costs plus $1 million worth of time to bring a
single case to trial. Some tort lawyers go bankrupt before they ever get to
stand before a jury. "The pharmaceutical companies can hire more lawyers
than anyone," Williams says. "It's some of the toughest litigation around."

There is little question that autism is on the rise. Last month, researchers
at University of California-Davis concluded that the nearly threefold surge
in California's autism rate--which now stands at 4 to 5 per 10,000
people--could not be explained by shifting definitions, misclassification or
migration.

Williams suspects the culprit is thimerosal, which was manufactured and
marketed by Eli Lilly as a preservative that could be dissolved in the
vaccine to stop bacteria from contaminating vials that might contain up to
100 doses in the same jar.

"It was a packaging issue," Williams says. "It was cheaper for the
manufacturer to produce multidose vials than to package them as single
doses."

Unbeknownst to parents, their children were being injected with a few
micrograms of mercury along with every dose of vaccine.

Starting around 1990, several new vaccines were added to the typical
childhood schedule, many of which came with thimerosal.

"So you have kids getting three or four doses of organic mercury in one
day--hundreds of times the current EPA limits, which are probably about to
be lowered," says Williams.

Many scientists scoff at the mercury hypothesis, but the theory got a big
boost in 1999, when the American Academy of Pediatrics urged vaccine makers
to quit using mercury-based preservatives. Last year, the federal Institute
of Medicine concluded that the link between autism and thimerosal was
"biologically plausible."

Williams is convinced that such evidence would be compelling, if he ever got
the chance to present it in court: "I think I could win the case if I would
just get to a jury."

One of the most remarkable things about the legislative legerdemain is that
its author remains unknown. "It's the Republican version of immaculate
conception," says Josh Kardon, chief of staff to Sen. Ron Wyden.

Congressional sources say the Republican leadership must have OKed the
rider. Eli Lilly, which made $1.6 million of political contributions in the
last election cycle, has strong ties to the Bush administration. Bush's
budget director, Mitch Daniels, formerly worked at Lilly; the company's CEO,
Sidney Taurel, sits on the Presidential Homeland Security Council; and the
president's father, George Bush, sat
on Eli Lilly's board of directors.