Appellees Marcelo and Carolyn Ferrari, individually and on behalf of their minor son, brought suit against several vaccine manufacturers, including Appellants, alleging that their son suffered neurological damage caused by vaccines made with the preservative thimerosal, which contained the toxic substance mercury. Appellees’ claims under Georgia law included strict liability and negligence. They specifically alleged that Appellants could and should have manufactured children’s vaccines without thimerosal before Appellees’ son was vaccinated in 1998. The trial court granted partial summary judgment in favor of Appellants, ruling that Appellees’ design defect claims were preempted by the National Childhood Vaccine Injury Compensation Act of 1986, 42 USC § 300aa-1 et seq. Vaccine Act. Section 300aa-22 b 1 of the Vaccine Act reads as follows:No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.On appeal, the Court of Appeals summarized the parties’ arguments as follows:
Appellants argue that the Vaccine Act bars Appellees’ design defect claims because “any vaccine-related injury would be deemed ‘unavoidable’ if the vaccine was properly prepared and accompanied by proper warnings.” Cit. Appellants essentially equate FDA Food and Drug Administration approval with a determination that side effects are “unavoidable.” Cit. Appellees, on the other hand, assert that design defect claims are barred only if the side effects are determined on a case-by-case basis to be “unavoidable.” They argue that their child’s injuries could have been avoided if the defendants had used a mercury-free preservative for multi-dose vials of their vaccines or if they had simply manufactured single-dose vials that did not require a preservative.Ferrari v. American Home Products Corp. , 286 Ga. App. 305, 308 650 SE2d 585 2007. The Court of Appeals determined that two alternative readings of 42 USC § 300aa-22 b 1 exist:
