American Journal of Law & Medicine

Vaccine Act: Fifth Circuit reinstates action against Thimerosal manufacturer--Moss v. Merck & Co. (1).(Select Recent Court Decisions)

Vaccine Act: Fifth Circuit Reinstates Action Against Thimerosal Manufacturer--Moss v. Merck & Co. (1)--The U.S. Court of Appeals for the Fifth Circuit held that parents of a child injured by a vaccine can sue in federal court for their own injuries suffered as a result of the child's medical condition. (2) Because Thimerosal, a mercury-containing preservative used in several childhood vaccines, is not a vaccine under the plain meaning of the statute, the manufacturer, Eli Lilly & Co. ("Eli Lilly") is not entitled to the protections of the National Childhood Vaccine Injury Act of 1986 (the "Vaccine Act"). (3)

Plaintiffs Scott and Janice Moss, the parents of a young child who allegedly developed autism as a result of receiving vaccines containing mercury, pursued state law tort claims for injuries they suffered, including loss of consortium, as a result of the child's medical condition. Plaintiffs filed suit in the U.S. District Court for the Western District of Louisiana against Merck & Co., Aventis Pasteur Inc., Wyeth Inc., and Eli Lilly. In the district court, the claims against Merck & Co., Aventis Pasteur Inc., and Wyeth Inc. (the "Vaccine Defendants") were dismissed on the grounds that the Vaccine Act precluded a tort remedy for a vaccine-related injury. …

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