By Kent Heckenlively, Esq.
Defense counsel began their case today and I expected fireworks. The question is whether after all the sound and fury they did much for their case. Based on the questions by the one of the Special Master at the end, I believe they may have done very little.
RESERVED OPENING STATEMENT BY MR. MATANOSKI – ATTORNEY FOR GOVERNMENT (PETITIONERS)
Matanoski opened respondent’s testimony by telling the court that over the weekend he considered making a motion for judgment as the record stands. He did not even think he needed to put on a defense. He claimed that the plaintiffs had not put on a case that even under the most generous interpretation should get a favorable ruling. It was a bold move, but one I believe that risks alienating the Special Masters even before their case had begun. What if any of the Special Masters thought the plaintiffs had put on a compelling case? Or even if the evidence is less than robust, the mere fact that such terrible injuries have been suffered by so many children, that they deserve their day in court? Defense is now in effect calling any of the Special Masters who might think there is something to these questions, an idiot.
Defense counsel claimed the evidence of petitioners was not scientifically reliable, but he would present a case because serious accusations had been leveled against the MMR shot, diseases which according to him cause more than 450,000 deaths a year worldwide. He painted Dr. Andrew Wakefield as the man at the center of this controversy, alleging the filed patent for his own mono-valent measles vaccine in 1997 gave him the incentive to falsify data and create a worldwide panic so people would rush to use his vaccine.
The experts for plaintiff were reviewed, and Matanoski explained why his experts on these issues were much more reliable.
DIRECT EXAMINATION OF DR. ERIC FOMBONNE BY MS. RICCIARDELLA – ATTORNEY FOR GOVERNMENT (RESPONDENTS)
Dr. Fombonne is a professor of Psychiatry at McGill University in Montreal, Canada. He is head of the Division of Child and Adolescent Psychiatry at McGill as well as head of the Autism Spectrum Program at Montreal Children’s Hospital. He went to medical school at the University of Paris and also has a master’s degree in Biostatic Methods in Human Physiology. He did his residency in psychiatry at the University of Paris and is a certified specialist in child psychiatry.
Dr. Fombonne is also organizer and teacher of a summer school program at the Autism Research Training Program, which is partially funded by the group, Autism Speaks. He regularly diagnoses autistic children, and claims to have diagnosed perhaps 2,000 children. He has 34 book chapters in various textbooks pertaining to childhood psychiatric and developmental disorders and has served on the Editorial Advisory Board of the Journal of Child Psychology nd Psychiatry. He was the associate editor of the Journal of Autism and Developmental Disorders and was the advisor to the Chief Medical Officer in the United Kingdom concerning the MMR and autism controversy.
After all this build-up I was shocked by the apparent laziness and outright misrepresentation of the petitioner’s claim of the first question asked of Dr. Fombonne. It reads, “Doctor, did Michelle’s receipt of thimerosal-containing vaccine in the MMR vaccine cause or contribute to her autism?” Maybe it was a court reporter’s mistake. However, it’s in the record and I’ll treat it as accurate. Here’s why it’s important.
THERE IS NO THIMEROSAL IN THE MMR VACCINE!
Defense counsel knows this the Special Masters have said this case must answer three very specific questions. 1. Does Thimerosal (mercury) affect the immune system? 2. Is there a connection between the measles vaccine and autism? 3. Is there a connection between Thimerosal, the measles vaccine, and autism? Petitioner’s case is built upon the theory that thimerosal used in other vaccines lowered the immune system of genetically-at-risk children who were unable to flush the mercury from their systems. Then, the MMR shot, which is a live-virus vaccine (thus no need for Thimerosal because that would kill the virus) gets injected into these kids and they develop chronic viral infections, which cause
their autism.
It’s one thing to disagree with the premise of an opponent’s argument. It’s another to misrepresent it and an attorney does so at his peril. These things get picked up on by judges.
Fombonne then ran through a description of autism although he kept stating that it was a scientist named Tanner who first identified the disorder in the United States, when his actual name was Kanner! (Again, maybe this was the mistake of the court reporter!) On explaining his theory that autism has always been with us, he described the work of Uta Frith who claimed a certain twelfth-century monk “certainly had autism”, as well as a certain Scottish scholar, and a feral child discovered living in the woods in medieval Europe.
Fombonne’s testimony regarding general principles in recognizing autism was strong, although he claimed that even when all possible genetic factors are taken into account, 90% of all autism is “idiopathic”, meaning that doctors cannot find a reason. He cited certain brain abnormalities, such as the loss of Pukinje cells, or larger amounts of white matter in the brain, but could draw no definitive conclusions.
Among possible causes of autism, he noted that there were increased numbers of autistic children among the children exposed to the drug thalidomide. Thalidomide was used for morning sickness in the 1960’s, but after wide usage was found to cause limb deformities in children. I actually knew two children who had thalidomide deformities when I was growing up.
Another possible cause was viral exposure as there was a high number of autistic children who were born to the mothers who contracted rubella during a large outbreak in 1963 and 1964.
A man-made chemical contributing to autism? Viral exposure contributing to autism? I thought we were in plaintiff’s case for a moment. I hoped the attorneys for the petitioners picked up on these statements.
Fombonne was quite effective when he reviewed Michelle’s video-tapes and pointed out what he claimed were early signs of autism. First, he noted she was a content, non-demanding child who had a late social smile. Second, there was evidence of motor delay. She didn’t crawl until nine months, sit until eleven months, and wasn’t independently walking at fifteen months. He also claimed her records showed early evidence of macrocephaly (abnormal head size). There were some comments about how she was fixated on the Sesame Street show in an abnormal way in a video of her taken at eight months.
I thought this was the strongest testimony presented by the defense.
In the final questions, Dr. Fombonne testified he did not believe that autistic children suffered from bowel troubles any more than normal children, and if they did, it was not related to their autism.
CROSS-EXAMINATION OF DR. FOMBONNE BY MS. CHIN-CAPLAN – ATTORNEY FOR PLAINTIFFS (PETITIONERS)
Ms. Chin-Caplan began by pointing out that in his sixty-two page report on Michelle Cedillo, he only started discussing Michelle specifically on page fifty-two.
Plaintiff’s counsel then asked whether Fombonne had correlated Michelle’s head size with body weight and length. Michelle’s head size was at the 95th percentile, but so was her weight. Her length was a lower percentage. Fombonne replied that length was a better comparison than weight, so there was still a discrepancy. However, defense’s other expert witness on this matter, Dr. Andrew Zimmerman (not testifying, but his report is on record in this case), claimed he did not have an opinion as to whether head size was better correlated with weight or length.
When questioned, Dr. Fombonne did not express an opinion as to whether the measles virus is a strong immunosuppressant. He also had no opinion on the question of fever and immunosuppression.
Fombonne was questioned as to an article he’d written saying that pediatricians were pretty accurate in picking out developmental problems with their patients. This was contrasted with the lack of any concerns expressed by Michelle’s pediatrician prior to her MMR vaccination.
Plaintiff’s counsel directed Fombonne’s attention to a well-known article identifying the early indicators of autism in children and noted that far from being quiet, contented children, their behavior was marked by irritability, distress, and disregulation. Fombonne admitted that there was wide variation. According to the cross-examination, very few of
Michelle’s behaviors matched those in the article.
Fombonne was then directed to his own article in which he stated there was no good epidemiological evidence to support or refute Wakefield’s suggestion of a link between bowel disorders and autism. Fombonne also talked about how Wakefield had earlier been investigating a link between the MMR vaccine and increased rates of Crohn’s disease in the general population.
While Fombonne does not believe in a link between bowel disorders and autism, it was pointed out to him that Autism Speaks, one of the main financial backers of his summer “Autism Research Training Program”, has had various forums of the gastro-intestinal problems of autistic children and has even put forth a protocol for examining these problems.
DIRECT EXAMINATION OF DR. EDWIN COOK BY MS. TRACI PATTON – ATTORNEY FOR GOVERNMENT (RESPONDENTS)
Dr. Cook received his bachelor’s degree from Southern Methodist University and got his M.D. at the University of Texas-Medical Branch of Galveston. He was chief resident at the University of Chicago and has fellowship training in child and adolescent psychiatry. He’s the holder of a pharmacogenic patent, which has the distinction of being the first time a drug treatment is linked to a specific gene that is disordered.
He has diagnosed and treated autistic patients since 1984. He spends two days a week in a clinical setting working with autistics. He researches the genetics of autism and has a brother who has a condition which is similar to autism. He’s the author of more than 150 peer-reviewed articles of which about 30 deal with the genetics of autism.
Dr. Cook wasted no time in stating his belief that it’s less possible for individuals to be genetically predisposed to react to Thimerosal and/or the MMR vaccine in a way to trigger autism “than for the earth to be the center of the solar system.” He may not have helped his credibility when he stated he didn’t even know how you would “test the possibility.” I wonder how far Galileo would’ve gotten if he hadn’t known how to test his theories.
Dr. Cook seemed to be on stronger ground when he discussed studies of identical and fraternal twins and the rate of autism, showing a strong genetic link and how other neurological conditions don’t appear immediately, but only after the passage of some time.
CROSS-EXAMINATION OF DR. COOK BY MS. CHIN-CAPLAN – ATTORNEY FOR PLAINTIFF (PETITIONERS)
Ms. Chin-Caplan started the cross-examination by detailing how work on the genetics of autism. In what may have seemed comical, she went through all of the various genes Cook has researched for a connection to autism, with all of them having given only a slight or no correlation to autism.
Cook responded that there are over 20,000 genes and it’s difficult to find the one which may be responsible for autism, but scientists like him would keep on looking.
Plaintiff’s attorney asked if in his opinion there can be post-delivery insults which cause autism, and he said he was aware of cases in Tanzania in which malaria contributed to autism.
Chin-Caplan asked if in a hypothetical fact pattern that a court might award compensation when somebody has had an MMR vaccination, suffers a seizure which leads to encephalopathy, then develops autism. Cook thought that this hypothesis was an impossible fact pattern, but Chin-Caplan then asked if his opinion would change if he knew that this Vaccine Court had previously awarded compensation on those exact facts. He did not seem to give an answer.
Plaintiff’s counsel then asked if he was aware that the Institute of Medicine held a meeting in April of 2007 on “Autism and the Environment” which looked at environmental triggers. He didn’t attend the conference, although he’d heard about it.
SPECIAL MASTER VOWELL HAS QUESTIONS FOR DR. COOK
Maybe the best way to figure out how a case is going is to listen to the questions which get asked by a judge. Special Master Vowell had two questions at the end of Dr. Cook’s testimony which indicated to me that she grasps what the essential questions are of this trial.
Her first question was, can environmental triggers affect gene expression? The question was beautiful in its simplicity. We all know examples of the guy who lives to a hundred even though he smokes a pack of cigarettes a day, while an occasional smoker for a few years gets lung cancer. We all know that smoking is harmful, but the truth is it will be more harmful to some than to others.
Why should mercury injected into babies be thought of as any different than cigarette smoke being blown into their faces?
To his credit, Dr. Cook said, yes, environmental triggers can affect gene expression.
Vowell then asked his opinion of the article by Dr. Martha Herbert of Harvard Uiversity entitled “Autism: A Brain Disorder or a Disorder that Affects the Brain?” (This is probably the best article by a leading researcher attempting to pull together the various strands of evidence from multiple sources that something has gone wrong in the immune system of autistic children.) Cook responded that he was aware of the article and thought it was good to consider all the possibilities.
FINAL THOUGHTS ON THE DAY’S TESTIMONY
I was prepared to feel deflated after the first day of the defense’s presentation, but I’m cautiously optimistic.
I didn’t hear a lot of science which refuted the claims of the petitioners. In fact, they even admitted that chemical and viral exposures are correlated to autism. It seems as if they’re holding onto the life-raft of a genetic explanation, but even they admit it doesn’t completely keep their theory afloat.
Defense takes the approach that it needs to compare the claims of the parents of autistic children to those who believe the earth is the center of the universe. I think that’s overkill and will only damage their credibility. Everybody acknowledges that these children are seriously impaired. It doesn’t present a good impression to get angry at parents who want answers.
Ask questions that show you understand the other side’s case. If you have science, show it. If you don’t, the Special Masters will ask the good questions you didn’t.
If you don’t ask the right questions it will seem like you don’t want to know the answer.
Kent Heckenlively has worked as an attorney, a television producer and is now a beloved science teacher.
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