HECKENLIVELY ON THE OMNIBUS AUTISM PROCEEDING: 5/30

By Kent Heckenlively, Esq.

Finding the Answers (Or Not!) – The Omnibus Autism Proceeding – Second Set of Hearings (Thimerosal & Autism) – Day Fourteen (Final Day) – May 30, 2008

One of the great injustices perpetrated against the parents of children with autism is the assertion that they just want someone to blame.  It is as heinous as the discredited claim that the failure of the mother to maintain eye-contact with her child during breast-feeding causes the psychotic break of autism.

The parents of children with autism want to find out what happened to their child, just like the parents of murdered children want to bring their killers to justice.

And if we can find out what happened to our children then the hope exists that we can medically intervene to improve their lives.  That is what the Autism Omnibus Proceeding is all about.

But it costs money to pay for these interventions.  The greatest hope of all the parents in this proceeding is not that the money they may receive goes to pay for a lifetime of care, but that it goes toward treatments which remove the need for a lifetime of care.

In the testimony today it was clear which side was looking for answers and which side wanted to merely muddy the waters.

Direct Examination of Dr. Marcel Kinsbourne (Expert Witness for the Families)

In this rebuttal testimony Dr. Kinsbourne first responded to the government’s production of a 30 year-old grievance report from the University of Toronto which had been sealed.  Dr. Kinsbourne noted that the charges were investigated and withdrawn and that a protective order was issued. 

He was not terminated from the University as a result of the investigation, but did resign, and was later offered an opportunity to rejoin, which he declined.

Dr. Rutter’s criticisms of Dr. Kinsbourne’s model of autistic over-arousal missed the point of what Dr. Kinsbourne was saying.  Dr. Kinsbourne was presenting a biologically plausible mechanism for neuro-inflammation and over-arousal, not saying it had been proven.

However, the autistic over-arousal argument is supported by findings from many researchers; including Dr. Asher’s article about glutamate and methylmercury neurotoxicity, the work of Dr. Purcell and others on post-mortem brain abnormalities of the glutamate neurotransmitter system in autism, several funded studies by the National Institute of Health on whether glutamate antagonists can help children with autism, Dr. Casanova’s article on columnar pathology in autism (specifically problems with the brains inhibitory neurotransmitter, GABA), and Dr. Courchese’s autism article which states at one point, “glial cells play key roles in brain organization during development as well as in neuro-inflammatory reactions”.  MRI findings are also consistent with ongoing neuro-inflammation.

On the question of whether brain astrocytes die during this inflammatory process, Dr. Kinsbourne said the answer is unclear.  Some may die, but it is not necessary to the process he is describing.  What is necessary is for the astrocytes to be acting abnormally in response to certain stressors and not regulating the flow of glutamate, which in turn activates neurons which would not have otherwise been activated.

Even Dr. Kemper, cited by the government, leaves open the possibility that neuro-inflammation may be related to a gene-environment interaction.  Dr. Kinsbourne believes his theory on the mechanism of injury in these cases is supported by the work of Drs. Vargas and Pardo.

Cross-Examination of Dr. Kinsbourne (Expert Witness for the Families)

The government attorney questioned his recall of criticisms of Dr. Kemper and Dr. Rust.

There were also come questions regarding a drug currently given to children with obsessive-compulsive disorder which was being tested for safety in the autistic population.  The authors of that study made no distinction between children with regressive and non-regressive autism.

Petitioner’s attorney objected that these questions went beyond the scope of rebuttal testimony.

Dr. Kinsbourne stated that neuro-inflammation is apt to cause a glutamate excess and that the three categories of agents which cause neuro-inflammation are persisting viruses, heavy metals, and neuro-degenerative disorders.

He was unable to state the amount of inorganic mercury which would cause problems in any specific individual, or when additional amounts might cause further harm.

The government attorney became so badgering on this point that the Special Masters told him that this was not final argument and that he needed to move to another line of questioning.

Dr. Kinsbourne admited that there are differing beliefs on the cause of both neuro-inflammation as well as whether the excess glutamate is a cause or effect of autistic behavior.  While he had in the past considered the question of heavy metals in regards to autism, it was only in the past few months that he had seriously considered the issue of mercury and its relation to autism.0
Direct Examination of Dr. Elizabeth Mumper (Expert Witness for the Families)

One of the confusing parts of Dr. Rust’s testimony was the great emphasis he placed on Rett’s syndrome, a known genetic disorder which occurs in girls, and his attempt to link it to autism which has no generally-accepted genetic component and strikes overwhelmingly in boys.  Equally confusing was Dr. Rust’s claim that Rett’s was now being identified in boys.

There was also some confusion with Rust’s claim of unusual head size growth in William, when the medical records did not support such a claim.

While Dr. Rust testified that parental reporting was an important factor in taking a child’s history, he had not read or listened to the testimony of the parents of the two boys in this case.

Dr. Rust was also inappropriately dismissive of many of the treatment modalities used by the Autism Research Institute.  For example, IVIG treatment has been shown to have dramatic effects in some children, but not autistic children as a group.  Other comments by Dr. Rust seemed to show a lack of medical understanding, such as why Valtrex would help some children, or how essential fatty acids assist in immune regulation, cell-to-cell communication, and heals the lining of the intestine.

The problem with doing double-blind crossover placebo controlled studies in this population is that these children often have multiple medical problems and if you concentrate on just one thing you may miss something that’s helpful to a subgroup.

On the question of the dangers of chelation, the only fatality associated with the procedure known to Dr. Mumper was a boy who received sodium EDTA, not calcium EDTA, a pharmaceutical error.

There were several comments about abnormalities shown by Jordan King prior to eighteen months on videotapes that Dr. Mumper wanted to discuss.  She noted good eye contact and social reciprocity with the mother in a tape of Jordan at 3 months, Jordan showing object permanency and social reciprocity at 16 months, contrasted with examples of autistic behavior after his vaccination.

In commenting on videos of William Mead, there was clear video evidence of William showing reciprocal interaction, smiling, and alertness at 5 months, saying “Hi dad!” at a year-old, and autistic behaviors of covering his ears and flapping his hands at 27 months.  There is also video of William clearly showing a distended stomach and touching his stomach in a way which suggests abdominal pain.

Cross-Examination of Dr. Mumper (Expert Witness for the Families)

Dr. Mumper admitted that she probably does give more weight to the findings of her colleagues at the Autism Research Institute since she has the opportunity to interact with

them and ask questions.

In treating for lead and mercury toxicity for chelation she usually looks for signs of irritability, excitability, and declines in cognitive performance.  Blood testing for heavy metal exposure is reliable only for acute, recent exposures.

Dr. Mumper is aware of the one death previously discussed from the administration of the wrong medication for a chelation procedure, and one other case, but not the four that the defense has mentioned.

She is not aware of any studies which have shown how fish oil treats persistent mercury in the brain.

The use of Valtrex may assist mercury removal by decreasing adenosine and thus boosting glutathione.

Dr. Mumper is comfortable using her clinical judgment in the absence of case-controlled studies.  She admits that the treatments she employs are targeting oxidative stress issues rather than mercury, and that there can be multiple causes for oxidative stress.

She agrees with some of the claims by expert witnesses for the government that parents can often miss subtle signs of autism in their children, but did not see any evidence of it in these cases.

Questions from the Special Masters

Special Master Hastings asked if the timing of Jordan’s symptoms were crucial to Dr. Mumper’s opinion.

Dr. Mumper replied that it doesn’t really matter as it’s known that mercury can have a latency period, as in the case of the Dartmouth researcher who spilled two drops of mercury on her latex glove, was fine for three or four months, then got dramatically sick, and died.  For her the crucial question is whether a child was developing normally, then had a change.

Special Master Campbell-Smith asked about recorded citations of head size for the two children, and the trends in the growth of head size.  No evidence exists for abnormal head growth for Jordan King, and the evidence for William Mead shows a slight elevation at the four, six and nine month check-ups, but after that it went down to near the 50th percentile.

Direct Examination of Dr. Eric Fombonne (Expert Witness for the Government)

Dr. Fombonne began by stating that none of the treatments used for Jordan King or William Mead are recommended by mainstream physicians and there is no evidence that they work.  (Author’s note – Aside from the evidence that something significantly
changed Jordan King and William Mead, I guess!)

He was surprised at some of the comments by Dr. Mumper about what was seen on the videotapes of Jordan King and William Mead.  It seemed as if she was simply looking whether certain behaviors were shown, not their quality.

Specifically, Jordan King did not seem to be much of a babbler, had only partial gestures, and did not seem to be seeking approval from others.

In the videos as reviewed by Dr. Fombonne, William Mead does not seem to have much spontaneous vocalizations, eye contact, or play with social reciprocity.

Rebuttal Cross-Examination of Dr. Fombonne (Expert Witness for the Government)

Dr. Fombonne admitted that the medical treatment received by Jordan King and William Mead does not appear to have harmed them and that they have improved.  Petitioner’s attorney did not allow him to comment on the meaning of those improvements.

Dr. Fombonne agreed that evidence from video-tapes can be difficult to interpret.

Re-Direct Examination of Dr. Fombonne (Expert Witness for the Government)

In reviewing video-tapes of children with autism he relies on his clinical experience.

Direct Examination of Dr. Johnson (Expert Witness for the Government)

Dr. Johnson is a neuro-toxicologist.

He believes Dr. Kinsbourne’s theory on neuro-inflammation is the weakest type of hypothesis one can find in science.

In his opinion, current research indicates that neuro-inflammation is an outcome rather than a cause of disease.

Dr. Kinsbourne’s own review of the Purcell article shows that the brains of people with autism have more glutamate receptors than normal and thus should be able to handle extra glutamate.  If astrocytes are unable to mop up glutamate there will be excitotoxicity, followed by neuron death.

Cross-Examination of Dr. Johnson (Expert Witness for the Government)

Dr. Johnson believes glutamate levels should be measured in autistic brains.  He did not know whether the Purcell investigators had concluded that blockage of some of the glutamate receptors might improve symptoms in autism.

He admits that the Pardo and Vargas investigators found chronic and ongoing inflammation in post-mortem brains of autistic patients across a wide range of ages, but without massive neuronal death.

Special Master Questions

Special Master Vowell asked why he was so confident that excess glutamate would kill neurons.  His response was that they use glutamate to kill cells in the lab all the time.

Direct Examination of Dr. Jeffrey Brent (Expert Witness for the Government)

Dr. Brent said that while mercury is known to decrease glutamate uptake in astrocytes, the dose from commercial vaccines would not have that effect.

Dr. Brent usually sees patients and takes a complete history.

In regards to chelation (he is a toxicologist), he notes that most people will have an increase in their excretion of heavy metals when provoked with a chelating agent.  He has in fact chelated people.  He did not find the levels excreted by Jordan King and William Mead to be unusual.

He believes that the use of supplemental glutathione to treat mercury toxicity is not warranted by existing data.

Cross-Examination of Dr. Brent (Expert Witness for the Government)

Dr. Kinsbourne’s hypothesis is based on the idea that microglial activation releases proinflammatory cytokines that harm astrocytes. 

In the Asher paper he cited for his belief that Dr. Kinsbourne’s hypothesis was incorrect, they used in vitro rat cells which did not have microglial.  Dr. Brent agreed that the Asher work did not involve the use of microglia in the Petri dish with the rat brain cells.

Closing Remarks of Attorney Thomas Powers (Attorney for the Families)

In his closing remarks, Powers did not intend to summarize the evidence presented (that will happen later in motions and pleadings), but wanted to address what he saw as some key points about the Autism Omnibus Proceeding.

The first is that this trial is taking place in a dynamic scientific environment in which new information is always coming up.  The petitioners have sought to keep the court and respondents aware of these developments, but there is no way to predict what findings might be published next.

The second is that the respondent in this case, the Department of Health and Human Services has an affirmative duty to stay abreast of the science and protect the health of the country.  Thus, it should not come as any surprise to them that new findings are constantly being reported.

The final point is that this proceeding is set up to be non-adversarial so that those individuals injured by the vaccines can quickly receive compensation.  Instead, it has degenerated into a situation in which the government attorneys seem bent on attacking the credibility of the petitioner’s expert witnesses by doing such things as attacking Dr. Bradstreet as being an exorcist, bringing up a more than thirty-year-old employment dispute involving Dr. Kinsbourne, or the attacks on Dr. Mumper because she is a clinician rather than somebody who does original research.

Closing Remarks of Attorney Vincent Matanoski (Attorney for the Government)

Mr. Matanoski began by stating how much he admired the families of these children for their hard work and dedication.

The threshold matter in his opinion, though, was a scientific question.  He describes the petitioner’s case as disjointed and contradictory.  He thinks that Dr. Kinsbourne’s mechanism for damage is merely an untested hypothesis.

He believes the experts on behalf of the government presented a much more compelling case than Dr. Deth and Kinsbourne.  In his opinion, the reliable scientific evidence all leads to the conclusion that vaccines don’t cause autism.

Thoughts on this Day of Testimony

I’ve said before that there are two competing narratives in this trial.

The first is that certain children are genetically vulnerable to certain toxic insults and that because the vaccination schedule before the age of five has mushroomed from 10 to 36 that there has been a startling increase in neurological problems.

The second narrative is that the amount of toxins and biological agents contained in vaccines is still far below the level at which children will suffer harm in significant numbers. 

But there is a corollary to these narratives.

In the first narrative these children can be helped.  In the second these children are subject to some as yet-unknown genetic malady, or just plain bad luck, from which recovery is impossible.

It has been said that America is a hopeful nation.  We believe in answers.  We were the first to fly.  We made it to the moon.  One group is fighting to bring children out of autism and has some results.  The other wants to leave them there and has their results.

The decisions in Cedillo, Snyder, and Hazlehurst should come out this summer. 

We will learn which narrative was more compelling to the Special Masters.

Kent Heckenlively is Legal Editor for Age of Autism.

Comments

[Theresa Cedillo]

Thank you once again Kent for your insightful look at the Omnibus proceedings.

Theresa

[Tanner's Dad]

Comments posted on the ABC news article Gov't Examines Link between Autism and Vaccines
Mitochondrial Disorders Implicated
http://abcnews.go.com/GMA/Story?id=5276589&page=2

my son spoke... my son got shots...my son stopped speaking...
Doctors told me it was autism... They told me there was no hope...

I started a Defeat Autism Now protocol and my son said his first words in six years... "Hi Daddy" for father's day

If it looks like a duck... walks like a duck...quacks like a duck...
Then guess what it is a ....

Smoking is safe....Smoking is healthy... we should all smoke... Right?

It has been said that America is a hopeful nation. We believe in answers. We were the first to fly. We made it to the moon. One group is fighting to bring children out of autism and has some results. The other wants to leave them there and has their results.

I have hope that the government, the medical establishment, the education system, the legal system, the insurance system, our religious community and our American (world) citizens will come to the aid of my son and all the others robbed of their voice.www.ageofautism.com
tanners dad 11:23 PM

I hope it was ok to quote you Kent that was well stated... Thanks.

[Jeff Ransom]

Wait, am I missing something?

Special Master Vowell asked Dr. Johnson (Expert Witness for the Government) why he was so confident that excess glutamate would kill neurons. His response was that they use glutamate to kill cells in the lab all the time.

So if thimerosal kill brain neurons/cell in the lab then it must be able to cause autism. Right Dr. Johnson?

[North Dakota Supports You]

I do not believe for a second that parents are looking for someone to blame, as you have researched more than most parents on this issue. The parent is the expert when it comes to their child. (All too often our instincts or beliefs are over-rided by the "experts"). Hold onto your convictions, try to remain strong. More of us are listening. More of us are talking. More of us are believing!

[Treatment helped genetics?]

"Dr. Fombonne admitted that the medical treatment received by Jordan King and William Mead does not appear to have harmed them and that they have improved."

What "medical treatment" might this be? The one called DAN! that has been discredited by mainstream medicine? The one that involves chelation of heavy metals namely mercury and aluminum that was injected into the kids via the vaccines? The one that makes some kids recover and improves nearly all of them? Might this be the treatment the 2 kids' parents got for them?

I wonder if genetics would allow for the improvement of the symptoms of autism if indeed that was all regressive autism was about.

[PhillyMom]

"One of the great injustices perpetrated against the parents of children with autism is the assertion that they just want someone to blame."
Well said Kent. We are trying to fix the problem, not the blame! Instead of discussing how these children are getting better, disparage the parents and muddle the conversation.

[ObjectiveAutismDad]

Kent, thank you for keeping us up to date on these historical hearings. I also wanted to thank you for the following statement which I think sums up the situation in general:

"It has been said that America is a hopeful nation. We believe in answers. We were the first to fly. We made it to the moon. One group is fighting to bring children out of autism and has some results. The other wants to leave them there and has their results."

Those who refer to us as anti-vaccine, mercury militia, just out to get attention/money, etc. don't have a clue how much we really just want our kids to improve. Hopefully the outcomes of these hearings will steer more of the rest of the world in our direction.

[Jeanne]

"One group is fighting to bring children out of autism and has some results. The other wants to leave them there and has their results."

And so the question becomes, WHY do they want to leave them there? WHY is the government not studying the recovered/improved kids?

My Answer: Because they do not want to know WHY they are getting better, as finding that answer would lead them to what is REALLY wrong with our kids.