SPRINGFIELD -- The parents of an autistic child have asked the Illinois Supreme Court to reinstate their lawsuit against vaccine makers they blame for their son's condition.

Lower courts have held that Druanne and Ronald Reilly, parents of Christopher Reilly, should have sought compensation from the so-called Vaccine Court, which operates under the auspices of the Court of Federal Claims.

The National Childhood Vaccine Injury Act of 1986 precludes traditional tort actions until administrative remedies have been exhausted, but the Reillys contend that their son's alleged injury does not qualify under the Vaccine Act, because of the nature of the injury and timing of the autism diagnosis.

"Clearly, the lower court rulings are of vital interest to the citizens of the state of Illinois and especially to children who are completely denied any redress for their injuries solely because their parents were not made aware of any symptoms of their condition until after the statute of limitations within the Vaccine Act had passed," the Reillys contend in a petition for leave to appeal.

According to the appellate court opinion in his case, Christopher Reilly was born in 1995. Over the next two years, he was given a standard battery of vaccinations, which allegedly included thimerosal, a mercury-based preservative.

Christopher Reilly was diagnosed with autism in 1998.

His parents contend that his autism was caused by the mercury in thimerosal and filed a lawsuit alleging product liability, breach of warranty, negligence, consumer fraud and battery, as well as intentional infliction of emotional distress.

The suit named several vaccine manufacturers and thimerosal makers as defendants.

The defendants sought dismissal by arguing that the Vaccine Act precluded state-court jurisdiction according to 42 U.S.C. section 300aa-1.

The companies also sought dismissal of the emotional distress count on the basis that their products were approved by the Food and Drug Administration; thus, their conduct could not, as a matter of law, rise to the level of extreme conduct required to support a charge of intentional infliction of emotional distress.

Cook County Circuit Judge Lynn M. Egan granted both motions, dismissing the claims.

That decision was affirmed in part on Sept. 28, 2007, by the 1st District Appellate Court. The case was reinstated and remanded, however, as to the thimerosal manufacturers. Justice Mary Jane Theis wrote the opinion with Justices Patrick J. Quinn and Joy V. Cunningham concurring. Reilly v. Wyeth, No. 1-06-1174.

Theis explained that the Vaccine Act is intended to expedite damage awards and to protect vaccine manufacturers from litigation. Individuals seeking compensation for a "vaccine-related injury" must file a petition against the U.S. secretary of Health and Human Services.

Cases are considered first by special masters, then the Court of Federal Claims and, if necessary, the U.S. Court of Appeals for the Federal Circuit. After the Court of Claims rules on a case, the claimant may accept an award and waive tort rights, or reject an award and pursue relief in court.

The Vaccine Act mandates dismissal of civil actions based on "vaccine-related injury," but the Reillys contend their son's injury was related to thimerosal, not the vaccine itself. The act has an exception for injuries "associated with an adulterant or contaminant intentionally added to such a vaccine," making the status of thimerosal a fact question that should survive a motion to dismiss according to 42 U.S.C. [sec] 300aa-33(5), the parents claim.

Theis looked up the words "adulterant" and "contaminant," neither of which are defined in the Vaccine Act. Webster's Third New International Dictionary (1993) defines the former as something "corrupt, debased, or ... impure by the addition of a foreign or a baser substance," while the latter is something that "corrupts or infects."

But a "preservative" is something added to prevent "decay, discoloration, or spoilage," according to Webster's.

"Thus, under the plain meaning of those words" Theis wrote, "thimerosal, as used in the vaccines, is the antithesis of an adulterant or contaminant within the meaning of [the Vaccine Act] because its purpose is to prevent the corruption of the vaccine.

"At the time the vaccine was made, it was 'intentionally added' as an approved ingredient in the formulation of a vaccine to preserve it," Theis wrote, citing a federal rule that stated, "Products in multi-dose containers shall contain a preservative." 21 C.F.R. [sec] 610.15 (2006). She also cited 10 published federal and state decisions holding that thimerosal was not a contaminant under the Vaccine Act.

But in their petition for leave to appeal to the high court, the Reillys contend that the Appellate Court overlooked Mead v. Aventis Pasteur Inc., 2002 WL 31973718 (D. Org.), a ruling on a class-action over thimerosal.

"The Mead court held that because plaintiffs had alleged harms precipitated by the toxic mercury contained within thimerosal, it was entirely possible that a state court could find that plaintiffs did not suffer a vaccine-related injury," the petition contends.

"The Appellate Court's determination below that thimerosal does not fit the definition of an adulterant or contaminant was based solely on the dictionary definition of the terms, as the statute provides no guidance as to what constitutes an 'adulterant' or 'contaminant,' " the Reillys contend. "Thus, it cannot be concluded, as a matter of law, that the introduction of mercury to the vaccine is not an adulterant."

The Reillys are represented by Joseph A. Power Jr. and Devon C. Bruce of Power, Rogers & Smith P.C.

The case is Christopher Reilly, etc., et al. v. Eli Lily & Co., et al., No. 105578.