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Mercury-Autism Fight Looms in Georgia
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Mercury-Autism Fight Looms in
Georgia
State on front line of expanding
cases over alleged cause of child regression
Jonathan Ringel
Fulton County Daily Report
March 25, 2002
Georgia appears to be one of the early testing grounds for litigation over
the alleged connection between autism and the use of mercury in
preservatives for children's vaccines.
One suit already has bounced from Fayette County Superior Court to U.S.
District Court and back to Fayette, where on Friday a dozen lawyers and a
judge tried to negotiate a scheduling order opposed by an unlikely
defendant: Georgia Power Co.
Like other mercury cases around the country, those in Georgia -- filed by
lawyer Michael N. Weathersby of Atlanta's Evert & Weathersby -- take on
pharmaceutical giants such as American Home Products Corp. (now Wyeth),
GlaxoSmithKline and Johnson & Johnson.
But Weathersby has added Georgia Power because, he argued, mercury emissions
from Georgia Power's plants contribute to the cumulative effect of mercury
exposure to the children.
VACCINES CITED
Weathersby acknowledged in an interview that he believes the mercury in the
vaccine preservatives is the primary reason children of his clients have
elevated mercury levels in their bodies. The plaintiffs claim mercury
poisoning has caused their children's neurological problems, including
autism.
Weathersby explained that he expects pharmaceutical companies to shift the
responsibility of mercury exposure to other environmental sources, such as
power plants.
Thus, Weathersby added Georgia Power to the list of defendants, because "I
don't have any intent of trying my case in front of an empty chair."
Pending further investigation, Weathersby said he expects to add other
defendants with no connection to vaccines, but he declined to name them.
Vaccine mercury plaintiffs have sued power companies in other states,
Weathersby said, including Louisiana.
For their part, the pharmaceutical defendants have denied that mercury
caused the children's neurological problems and appear set for a long fight.
The Fayette case features Alembik, Fine & Callner of Atlanta and Washington
D.C.'s Williams & Connolly for Wyeth; King & Spalding and Houston's
Fulbright & Jaworski for GlaxoSmithKline; Alston & Bird and Cleveland's
Arter & Hadden for Johnson & Johnson; and Chicago's Sidley Austin Brown &
Wood for Armour Pharmaceutical Company, another defendant.
Meanwhile, represented by Hugh B. McNatt of Vidalia's McNatt and Greene and
Mary K. McLemore of Troutman Sanders, Georgia Power is fighting to get out
of the cases, starting with the one in Fayette.
That case was brought by Lyndelle H. "Lyn" Redwood, who heads Safe Minds, a
national support group of parents with autistic children, and her husband,
William Thomas Redwood. They claim their son Will suffers from neurological
disorders as a result of mercury poisoning. Redwood v. American Home
Products, No. 2001V0612M (Fayette Super. filed July 9, 2001).
Last year, Georgia Power removed the Fayette case to federal court, arguing
that Weathersby fraudulently added the Georgia-based defendant to the case
just to keep it in a state court.
But U.S. District Judge Jack T. Camp of the Northern District of Georgia
sent the case back to Fayette.
Camp took note of Georgia Power's arguments that the mercury in the air is a
trifling amount and that the child had not been exposed to any more mercury
than anyone else in the area. But a doctor's affidavit countered that,
because the Redwoods lived near four power plants, mercury exposures from
the plants would have contributed to Will Redwood's condition.
Precedent required him to view the facts in favor of the plaintiff, Camp
said. He concluded, "Plaintiffs' claims of exposure to mercury are likely to
have evidentiary support both factually and legally after discovery is
conducted." Redwood v. American Home Products, No. 3:01-CV-125-JTC
(N.D. Ga. order Dec. 21, 2001).
That brought the case back to Fayetteville, where, on Friday, Chief Judge
Ben J. Miller of Fayette County Superior Court tried to resolve a dispute
between Georgia Power and the plaintiffs over the scheduling order.
DISCOVERY AND DEPOSITION
The problem stems from an underlying dispute over discovery and deposition
of the plaintiff's expert witnesses.
"I want some time so the plaintiff can manage discovery," Weathersby said in
an interview after the hearing. Also, without a scheduling order, he said,
the defendants have the resources to drag the case out forever.
"Georgia Power wants to make it short and incomplete," he said.
Weathersby said he would like the scheduling order to provide for discovery
from Georgia Power before the company's lawyers can depose his experts.
Weathersby explained that his experts can't make final scientific
determinations of Georgia Power's role until they see some of the company's
documents.
In court, Georgia Power lawyer McNatt noted that Weathersby's experts were
certain enough of their findings that they filed them in remand proceeding
in federal court. Therefore, he added, the experts should be willing to back
them up in deposition -- without the need for discovery beforehand.
"They filed the affidavits that kicked me out of federal court and down here
-- where I'm happy to be," McNatt told Miller.
SCHEDULING OPPOSED
McNatt added that Georgia Power objected to setting a scheduling order in
the case because it wants to move faster than the other parties.
McNatt said his client only needs about 90 days to take depositions and get
motions before the court. In comparison with what the pharmaceutical
companies face, he said, Georgia Power's part of the case is fairly simple.
"While mercury is the issue in this case, it is the only commonality we have
with the pharmaceutical companies," he said.
The brief hearing ended with Miller saying he was inclined to enter an
order, but he would prefer for the parties to arrive at one by consent.
The process soon may be repeated in Fulton State Court, where Weathersby has
filed another spate of mercury cases.
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image: Catherine
Lovett/Fulton County Daily Report
Evert & Weathersby's Michael Weathersby
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ALL INFORMATION, DATA, AND
MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION
PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS
OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR
LEGAL ADVICE. THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND
COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH
YOUR HEALTH CARE PROVIDER.
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