Appeals Court to Vaccine Court: Don’t be a Putz!

By Kent Heckenlively, Esq.

Nobody was more surprised by the decisions in Cedillo, Hazlehurst, and Snyder than me.  It wasn’t just that the decisions went against the theory of vaccines causing autism.  I understood how controversial this claim was, and the proof which would probably be needed to sustain it. 

What shocked me was the tone of the opinions, the vitriol against a position which sought to explain a disease which has confounded the medical establishment.  These three public test cases in the Omnibus Autism Proceeding were supposed to give guidance regarding the nearly 5,000 cases filed in the Vaccine Court alleging autism and other neurological problems resulting from vaccinations.  The decisions undercut all of those pending cases.

But away from the glare of media scrutiny the decisions made privately were much different. There was the government concession in the Poling case, in which the government doctors conceded that the nine shots Hannah Poling received in a single doctor’s visit reacted with an underlying mitochondrial disorder leading to her seizures and autism.  Closely following that decision was the win in the Bailey Banks case in which the court found that a vaccine had caused that child’s Pervasive Developmental Disorder (PDD is often used interchangeably with autism) due to an encephalopathy. 

There's a report of another win for a three-year-old child named Julia Colorado who suffered encephalitis and resultant brain damage from her MMR shot, although the opinion has not yet been published.  (Author's note - Julia's neurologist has been quoted as saying Julia has "signs of autism", but Julia's mother didn't "want that word in her records until Julia's case was decided." (HERE)  

The three public losses seem to be balanced against three private wins, suggesting that the vaccine-neurological problem theory is gaining credibility.

But all of this happened within the confines of the vaccine court.  I could lament that the court in Cedillo claimed that evidence of a measles virus in the gut of Michelle Cedillo four years post vaccination was not compelling.  The same court then asserted the failure of Yates Hazlehurst to get such a measles test was fatal to his case.  All this took place against a backdrop of labs being terrified to perform such a test for fear of being attacked as happened to Dr. Andrew Wakefield.  Similarly, the court in Snyder didn’t pay attention to the fact that Colten Snyder had completely recovered from his well-documented autism when he was treated for vaccine injury.  However, these were the complaints of a partisan in the vaccine-autism debate.

Now this June the U.S. Court of Appeals for the Federal Circuit has weighed in on how the vaccine court has been handling claims of vaccine damage.  In the case of the “Andreu v. Sec. of Health and Human Services” the appeals court overrode the vaccine court’s findings that the child’s DPT vaccination did not cause a seizure disorder. The twenty-six page decision can only be read as a slap in the face to the vaccine court and a warning shot across the bow that they need to be more careful in their rulings.

This case has also been reported on by the national media.  According to both National Law Journal (HERE) and CBS News (HERE) the child's "seizure disorder ultimately led to a low IQ and language and developmental delays.

What concerned me most about the three public test cases in the Omnibus Autism Proceeding was how the Special Masters seemed dismissive of the idea that vaccines are a medical intervention, which carry with it significant risks, not all of which are fully understood. 

From that start of the discussion in Andreu it was clear that the appellate court accepted this premise.  “Childhood vaccines, though an important part of the public health program, are not without risk.  Because vaccines often contain either killed bacteria, or live but weakened viruses, they can cause serious adverse effects . . . In effecting the Vaccine Act, Congress recognized that while most of the Nation’s children enjoy great benefit from immunization programs, a small but significant number have been gravely injured.”

In the vaccine court the standard used was the three-pronged “Althen” test which requires the claimant to prove: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.”

The court in Andreu found “Three fundamental errors infected the special master’s decision to deny Enrique compensation.  First, the special master incorrectly determined that the testimony of Enrique’s treating physician was insufficient to establish a logical sequence of cause and effect between the DPT vaccine Enrique received on October 31, 1995 and the seizure he experienced one day later.  Second, she insisted upon the Andreus an elevated evidentiary burden, requiring them to submit conclusive proof in the medical literature linking afebrile seizures to components in the whole-cell pertussis vaccine.  Finally, the special master erroneously determined that Enrique’s clinical picture precluded a finding that his seizure disorder was caused by an injury to the brain from the DPT inoculation.”

If this was a baseball game the vaccine court would have a zero batting average. The appeals court found the special masters messed up all three parts of the Althen test.  It’s difficult to read this as anything but a vote of “no confidence” in how the vaccine court is making their decisions.

The lack of confidence was further underscored by the final order of the appeal court.  Usually when an appeals court finds a trial court made mistakes they send the case back to the court to re-deliberate the matter while avoiding the cited mistakes.  It’s a sign of confidence from the appellate court that the trial court can fix its own mistakes.

However, that didn’t happen in this case.  The appeals court simply found that the Andreus had made their case, should receive damages, and that the only decision the vaccine court should make is the amount of damages.

It's refreshing to find an appeals court which seems to care about the importance of these cases.  The mistakes that the appeals court found in the Andreu case are the same ones I believe were made in Cedillo, Hazlehurst, and Snyder.  I had initially been apprehensive about further appeals of the autism cases, but the decision in the Andreu case gives me hope. However, there is a disturbing trend for the Vaccine Court to award damages to children with autism by focusing on their other problems such as encephalitis, seizures, and "language and developmental delays", or PDD as in the case of Bailey Banks.

If the claimants dare mention the word "autism" it seems they run the risk of losing in the Vaccine Court.  It's akin to how in past centuries "homosexuality" was "the love which dare not speak its name."  Hopefully the appeals court will put an end to this foolishness in future decisions.

I can't predict the course our claims will take through the legal system.  I know there have been disappointments, especially for the Cedillo, Hazlehurst, and Snyder families.  There may be more losses but there will also be victories.  I thought I'd end with a poem from Sir Andrew Barton, a sixteenth century poet.

"I'm a little wounded

But I am not slain

I'll lay me down for to bleed awhile

Then rise with you

To fight again."

Our legal warriors need to continue the battle.

Kent Heckenlively is Legal Editor of Age of Autism

Comments

[Rolf Hazlehurst]

Yes. Laughing out loud.

Rolf Hazlehurst

[Natasa]

To Ben: I think a huge percentage of cases of Autism developed under the same or similar mechanisms as Hannah Poling and Ms Banks. In a massive percentage of cases these mechanism would have been a contributing factor to the severity of child's disorder.

[Adriana]

Rolf,

They laughed? Twenty members of the DOJ? Please write that post soon. Every ugly, stinking detail and full physical descriptions.

[candace passino]

Rolf..are you serious they were laughing? I would have lost it...they are laughing because their lie has become the truth in there ridiculous court..dont give up..keep right on showing up..we are behind you we know the truth..it just needs a venue in which to be heard...we will pray for you and cedillo.s...doj is laughing about their power to be so wrong..the truth will prevail soon..candace

[ben]

What percent of cases of Autism do you think developed under the same mechanisms as Hannah Poling and Ms Banks?

[Theresa Cedillo]

Thank you Kent, Age of Autism and the support from readers - As always, we continue to pray for justice and fairness for our children. Our very ill children, not the autism/vaccine controversy, must remain the focus of what is happening here.

Theresa Cedillo

[Rolf Hazlehurst]

Oral arguments were heard on the first round of the Hazlehurst appeal in The United States Court of Federal Claims on June 11, 2009. We lost. To be more accurate the Judge said we would not win, but he would read the court’s opinion one more time before he issued a ruling, at which point approximately 20 or more attorneys and staff for the DOJ burst out in laughter. I failed to see the humor in the sarcasm of the Judge.

Rolf Hazlehurst

[Kevin D]

CBS was the ONLY popular news agency that ran this case. Thanks to Sharyl Attkisson again.

Sad how only one news story on this in the popular news outlets. But funny how everyone reported the other news on how the vaccine court found the others non-compensatory.

[Adriana]

Thank you so much for the update and clarification, Kent. I think many of us have been in shock since the decisions on the test cases. It's not that it came as a surprise that the venue was a kangaroo court but, as you said, the degree of flagrancy and contempt on the part of the Special Masters was staggering.

We'll have the Cedillo family heavily in our thoughts for the coming weeks.

[Twyla]

Thanks for this excellent summary. Will sense prevail in the end, or will the vaccine court remain in Alice-in-Wonderland mode, making "curiouser and curiouser" decisions whenever there is a diagnosis of autism?

[Benedetta Stilwell]

Justice delayed is not justice!!!!

[Teresa Conrick]

Great summary Kent, as I didn't know all the details. How crazy it seems and legally unfair.

My best to the Cedillo's next week and hoping that the Hazlehurst, and Snyder families also get appeals in. We need true justice and not a disturbing trend of government denial, hostility and industry protection.

[Joan Campbell]

Yes a very good article
I'm wishing Theresa Cedillo the best of luck with her appeal.
We have the same problem over here in the UK. I was part of the MR/MMR group litigation when our legal aid was taken away from 1,300 families. That figure is just the tip of the Iceberg.
view our autism vaccine awareness rally last march and read the speakers comments on
www.openyoureyestoautism.com We will never give up

[dan olmsted]

great post, kent. i really didn't understand the interaction of the appeals court with the vaccine court, or the three "test" cases and the other three that have kind of snuck up below the radar, so thanks for this very helpful and ultimately encouraging overview. the cedillo appeal will be heard next week -- dan

[Tanners Dad]

The roller coaster continues. Great post. Tale of two worlds. Always in support. The "Real" Court will have its day! Lawmakers can not neuter the Court system.