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
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."
Copyright The New York Times Company