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MOSS v. MERCK & CO.

No. 03-30958.

381 F.3d 501 (2004)

Scott MOSS, Individually and On Behalf of Amber Moss; Janice Moss, Plaintiffs-Appellants, v. MERCK & COMPANY, et al., Defendants, Merck & Company, Aventis Pasteur Inc., Individually and as Successor in Interest, Also Known as Connaught Laboratories Inc., Also Known as Pasteur Merieux, Also Known as Pasteur Merieux Connaught; Eli Lilly & Company, and Wyeth, Defendants-Appellees,

United States Court of Appeals, Fifth Circuit.

August 16, 2004.

Attorney(s) appearing for the Case

Scott R. Bickford, Spencer R. Doody, Martzell & Bickford, New Orleans, LA, Charles S. Siegel (argued), Waters & Kraus, Dallas, TX, for Plaintiffs-Appellants.

Erick Yukihiko Miyagi, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Merck & Co.

Bradley S. Wolff, Swift, Currie, McGhee & Hiers, Atlanta, GA, C. Edgar Cloutier, Christopher Jude Alfieri, Christovich & Kearney, New Orleans, LA, for Aventis Pasteur, Inc.

Bruce Robert Tepikian (argued), Deborah A. Moeller, Shook, Hardy & Bacon, Kansas City, MO, Charles L. Chassaignac, Brent A. Talbot, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for Eli Lilly & Co.

Kathleen A. Manning, McGlinchey Stafford, New Orlans, LA, Richard William Mark (argued), Orrick, Herrington & Sutcliffe, New York City, for Wyeth.

Before SMITH, BENAVIDES and PICKERING, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Plaintiffs Scott and Janice Moss ("the Mosses"), the parents of a young child who, they allege, developed autism as a result of receiving vaccines containing mercury, wish to pursue state law tort claims for injuries they suffered as a result of the child's condition. Although their claims are not barred by the literal terms of the National Childhood Vaccine Injury Act of 1986 (the "Vaccine Act"), 42 U.S.C. § 300aa-1 et seq....

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