A Capitol Hill
Mystery: Who Aided Drug Maker?
November 29, 2002
By SHERYL GAY
STOLBERG
WASHINGTON, Nov.
28 - Lobbyists for Eli Lilly & Company,
the pharmaceutical giant, did not have much
luck when they made the rounds on Capitol
Hill earlier this year, seeking protection
from lawsuits over a preservative in
vaccines.
Senator Bill
Frist, Republican of Tennessee, tucked a
provision into a bill that went nowhere.
When lawmakers rebuffed a request to slip
language into domestic security legislation,
a Lilly spokesman said, the company gave up.
Now, in a Washington
whodunit worthy of Agatha Christie, the
provision has been resurrected and become
law, as part of the domestic security
legislation signed on Monday by President
Bush. Yet in a city where politicians have
perfected the art of claiming credit for
deeds large and small, not a single member
of Congress - or the Bush administration -
will admit to being the author of the Lilly
rider. "It's turning into one of
Washington's most interesting parlor
games," said Dave Lemmon, spokesman for
Senator Debbie Stabenow, Democrat of
Michigan, who has promised to introduce
legislation to repeal the provision.
"There's a lot of guessing, a lot of
speculation as to who did this."
The provision forces
lawsuits over the preservative, developed by
Eli Lilly and called thimerosal, into a
special "vaccine court." It may
result in the dismissal of thousands of
cases filed by parents who contend that
mercury in thimerosal has poisoned their
children, causing autism and other
neurological ailments. Among them are Joseph
and Theresa Counter of Plano, Tex., devoted
Republicans whose party allegiance has run
smack into family ties.
The Counters'
6-year-old son, Joseph Alexander, was normal
and healthy until he was 2, they say. Then
he took an unexplained downward slide.
Today, the boy struggles with words. He
cannot zip his pants, snap buttons or tie
his shoes. His parents say tests eventually
showed that he had mercury poisoning, which
they attribute to vaccines. They sued last
year.
"I know that our
legislative system can be very, very messy
at times," said Mr. Counter, a
political consultant, who with his wife has
spent many thousands of dollars on medical
care and therapy for their son. "But
for them to attempt this, in the dead of
night? It disgusts me. This morning, I am
ashamed to be a Republican."
With lawmakers now
scattered across the country, Washington is
rife with speculation about who is
responsible for aiding Lilly, a major
Republican donor. During the 2002 election
cycle, the company gave more money to
political candidates, $1.6 million, than any
other pharmaceutical company, with 79
percent of it going to Republicans,
according to the Center for Responsive
Politics, a nonprofit research group that
monitors campaign finances.
Critics of the
provision, mainly Democrats and trial
lawyers, are quick to point out that the
White House has close ties to Lilly. The
first president Bush sat on the Lilly board
in the late 1970's. The White House budget
director, Mitchell E. Daniels Jr., is a
former Lilly executive. The company's
chairman and chief executive, Sidney Taurel,
was appointed in June by President Bush to
serve on a presidential council that will
advise Mr. Bush on domestic security.
The White House,
however, has said that it did not ask
Congress for the provision. Rob Smith, a
spokesman for Lilly, said that the company's
lobbyists "made absolutely no contact
with Mitch or anyone in his office about
this," and that Mr. Taurel "did
not at any time ask" for any favors.
"It's a mystery
to us how it got in there," Mr. Smith
said of the provision.
Senator Frist has said
it is a mystery to him as well. As the
Senate's only doctor, he sought to include
the provision in legislation that would
promote the availability of vaccines. But
the vaccine bill is stalled; Senator Edward
M. Kennedy, the Massachusetts Democrat who
is chairman of the Senate health committee,
opposes it. Mr. Frist's spokesman said he
did not seek to have the provision included
in the domestic security bill.
On Capitol Hill,
Congressional aides-turned-detectives have
traced the emergence of the provision to the
Veterans Day weekend. Flush from their
party's victories on Election Day, and with
a mandate from President Bush to pass a
domestic security bill, Republican
negotiators in the House and Senate holed up
for three days in the Capitol to hammer out
the details, said Richard Diamond, spokesman
for the retiring House majority leader,
Representative Dick Armey of Texas.
One aide said the
language mysteriously appeared in the House
version of the bill in entirely different
type than the rest of the measure, as though
someone had clipped it out of Mr. Frist's
legislation and simply pasted it in. Mr.
Diamond said all the negotiators supported
the move, but would not say who was
responsible.
"If you want to
give somebody credit for it," he said,
"Mr. Armey takes ultimate credit. It's
his bill. We are happy to wrap ourselves
around it, but Mr. Armey is not a doctor,
like Senator Frist. He's the source of the
language."
Whether thimerosal is
truly harmful is the subject of intense
scientific controversy. Earlier this year,
the
National Academy
of Sciences issued a report saying there was
no scientific evidence either to prove or
disprove a link between thimerosal and brain
disorders like autism.
But the academy did
find that such a link was "biologically
plausible," and so it urged
pharmaceutical companies to eliminate
thimerosal, which has already been removed
from many vaccines, as quickly as possible.
The Lilly rider closes
a loophole in a 1986 law that requires
victims to file claims with the vaccine
court, which awards payments from a
taxpayer-financed compensation fund, before
going to civil court. But the law covered
only vaccines themselves, not their
ingredients, which meant people like the
Counters could sue ingredient manufacturers
like Lilly directly.
While Washington
debates the origins of the provision,
families are fuming. Some say the government
fund will do them no good, because they have
missed the statute of limitations - three
years from the date symptoms first appear -
for filing claims. Scott and Laura Bono of
Durham, N.C., say that while their son
Jackson, now 13, showed symptoms similar to
autism six or seven years ago, it was not
until August 2000 that they learned he had
mercury poisoning. They filed suit just the
other day.
Aware of the
controversy, lawmakers in both parties have
pledged to alter the thimerosal rider, but
are arguing about how to do so. While many
Democrats want it repealed, Republicans have
suggested that they may simply alter the
language to apply to future cases only.
"I'll believe it
when I see it," said Mr. Waters, the
Counters' lawyer.
In the meantime, Mr.
Smith, the Lilly spokesman, said his company
would soon go to court to seek dismissal of
the suits.
That news made Theresa
Counter cry. "It just makes me
sick," she said. "I cannot tell
you how devastating it is to think that we
might have to start all over."
One aide said the
language mysteriously appeared in the House
version of the bill in entirely different
type than the rest of the measure, as though
someone had clipped it out of Mr. Frist's
legislation and simply pasted it in. Mr.
Diamond said all the negotiators supported
the move, but would not say who was
responsible.
"If you want
to give somebody credit for it," he
said, "Mr. Armey takes ultimate credit.
It's his bill. We are happy to wrap
ourselves around it, but Mr. Armey is not a
doctor, like Senator Frist. He's the source
of the language."
Whether thimerosal is truly
harmful is the subject of intense scientific
controversy. Earlier this year, the National
Academy of Sciences issued a report saying
there was no scientific evidence either to
prove or disprove a link between thimerosal
and brain disorders like autism. But the
academy did find that such a link was
"biologically plausible," and so
it urged pharmaceutical companies to
eliminate thimerosal, which has already been
removed from many vaccines, as quickly as
possible.
The Lilly rider
closes a loophole in a 1986 law that
requires victims to file claims with the
vaccine court, which awards payments from a
taxpayer-financed compensation fund, before
going to civil court. But the law covered
only vaccines themselves, not their
ingredients, which meant people like the
Counters could sue ingredient manufacturers
like Lilly directly.
While Washington
debates the origins of the provision,
families are fuming. Some say the government
fund will do them no good, because they have
missed the statute of limitations — three
years from the date symptoms first appear
— for filing claims. Scott and Laura Bono
of Durham, N.C., say that while their son
Jackson, now 13, showed symptoms similar to
autism six or seven years ago, it was not
until August 2000 that they learned he had
mercury poisoning. They filed suit just the
other day.
Aware of the
controversy, lawmakers in both parties have
pledged to alter the thimerosal rider, but
are arguing about how to do so. While many
Democrats want it repealed, Republicans have
suggested that they may simply alter the
language to apply to future cases only.
"I'll
believe it when I see it," said Mr.
Waters, the Counters' lawyer.
In the meantime,
Mr. Smith, the Lilly spokesman, said his
company would soon go to court to seek
dismissal of the suits.
That news made
Theresa Counter cry.
"It just
makes me sick," she said. "I
cannot tell you how devastating it is to
think that we might have to start all
over."
http://www.nytimes.com/2002/11/29/politics/29VACC.html?ex=1039804644&ei=1&en=5e4500ce024200bc