Stefan Ferrari's parents say he was a talkative toddler until he got a round of booster shots with a mercury preservative. Now age 10, he hasn't spoken since those shots.
The Ferrari family asked the Georgia Supreme Court on Tuesday to rule that vaccine maker American Home Products Corp. can be held liable for damages in a civil case. The family believes they can prove that thimerosal, the mercury-based preservative, caused Ferrari's disability.
Attorneys for American Home Products argued that a 1986 federal law bans vaccine manufacturers from being held liable in civil courts for vaccine-related injuries or deaths if they were spurred by "unavoidable" side effects, properly prepared and accompanied with directions and warnings.
The case has drawn the ire of the vaccine industry as well as powerful right-leaning lobbying groups from the U.S. Chamber of Commerce to the conservative Pacific Legal Foundation.
Seven other state courts have ruled that the federal laws pre-empt any state law that might give families the power to challenge the vaccine manufacturers. But the Georgia Court of Appeals became the first appellate court in the nation to rule that the federal law doesn't take precedence over state tort law.
An attorney for the vaccine maker told Georgia's high court that the federal law has helped make vaccines available throughout the U.S. Attorney Daniel Thomasch told the justices that other courts have concluded Congress wanted the law to pre-empt state law, in part so that manufacturers aren't subjected to a mishmash of different state standards.
Ferrari's attorney, Lanny Bridgers, contended the federal law was meant to "supplement, not displace, state tort law," and asked the court's seven justices not too be swayed by earlier legal decisions.
Families of autistic children have claimed in court that thimerosal is linked to autism, although government lawyers say the Centers for Disease Control and Prevention has rejected any link.
Thimerosal has been removed in recent years from standard childhood vaccines, except flu vaccines that are not packaged in single doses. The CDC says single-dose flu shots currently are available only in limited quantities.