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« Connie Howard of Vue Weekly Interviews Dr. Andrew Wakefield | Main | Special Masters Protect Vaccine Program and Deny Justice to Vaccine-Injured Children »

Second Round of Autism Omnibus Court Cases Decided

Legal update By Rebecca Estepp, TACA.

March 12, 2010

Today in Washington DC, the Special Masters of the Court of Federal Claims released their decisions in the second round of Omnibus Autism Proceeding (OAP) claims. Once again, the OAP has failed children with autism that exhibited regression after their routine childhood vaccinations.  All three cases: Mead, King and Dwyer were denied compensation.

First off, what is the OAP?

The National Childhood Vaccine Injury Act of 1986 (Public Law 99-660) created the National Vaccine Injury Compensation Program (VICP) in 1988. The VICP was created to ensure there was an adequate supply of vaccines and stabilize vaccine costs. Prior to this Act, there were only a handful of drug companies that producing vaccines.  These companies faced lawsuits in civil court when their vaccines caused injuries.  The drug companies lobbied for liability protection and the Act was passed.

A responsibility of the VICP was to establish and maintain an accessible and timely venue for individuals found to be injured by vaccines. The VICP was developed to be a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines. The U. S. Court of Federal Claims that decides these claims in court is commonly referred to as vaccine court.  Damages are paid to individuals from a government-maintained fund. Drug companies can no longer be sued in a civil court of law until the claim has gone through the VICP. For more information go to: HRSA Vaccine Compensation.

The VICP was set up for individuals who suffered an “on-the-table” vaccine injury.  That is an injury that happened within minutes or hours after receiving a vaccine.

In 2001, parents of children with autism started filing claims with VICP.  These claims were considered “off-the-table,” meaning the vaccine injury did not occur “on-the-table” or at the time of injection.  In July of 2002, the Special Masters (the term used for “judges” in vaccine court) established the procedure for addressing these claims and the Omnibus Autism Proceeding (OAP) was born. It was at that time that parents started flooding OAP with claims.  More than 5500 claims have been filed in the program to date.
For more information on the Omnibus cases & decision click HERE.

Who are the Mead, King and Dwyer families?

The Mead, King and Dwyer are families with many similarities. All three families have boys with autism.  All of the boys in these cases are the same age, 12 years old. Each family reported that their sons developed typically during the first year of their lives and then suffered a regression after their routine pediatric vaccines were administered.  William Mead and Jordan King are both from Portland, Oregon while Colin Dwyer is from Queens, New York. Interestingly, William Mead was developing so typically that he was a model for Pottery Barn.

TACA would like to take this time to recognize the extraordinary efforts of the Mead, King and Dwyer families along with their attorneys. These brave families put their children on the line for more than 5500 children in the OAP.  Their attorneys fought a brilliant battle in a very rigid court. These courageous families and their attorneys are truly our heroes.

When were these cases heard? What was the causation theory behind these cases?

These cases were heard in May and July of 2008. These three families were chosen as test cases number four, five and six in the OAP under the causation theory number two. Theory number two states that the thimerosal contained in the vaccines these boys were administered was the sole reason for their injuries.

Weren’t there decisions in the OAP last year?  What was the causation theory in those OAP Cases?

Last February the same court denied compensation to the first three OAP cases (Cedillo, Hazlehurst and Snyder) which had a different theory of causation. Those cases theorized that the first three children had suffered an injury due to the combination of thimerosal containing vaccines and damage done from the measles, mumps and rubella (MMR) vaccine.

Read  more information on the first OAP cases at TACA HERE.

Analysis of all OAP decisions

Hindsight is always 20/20. The analysis I wrote for the first round of OAP decisions was far too optimistic. I mistakenly theorized that the reason the first verdicts took 19 months to conclude was due to a close call the Special Masters must have had when coming to their decisions. I no longer hold that opinion.

While I recognize that the Special Masters had the herculean task of sifting through thousands upon thousands of pages of evidence, I believe it took over a year for the Special Masters to carefully choose the language in their verdicts to send the message that the OAP will not award compensation to children with autism. The Vaccine Court seems to be more concerned about protecting the perception of safety in the current vaccine schedule than compensating the children who were harmed in the immunization program.

This opinion change was confirmed today when the Special Masters concluded that Mead, King and Dwyer families did not meet their burden of proof.  I’d like to point out that the government did not offer any other explanation for these boys’ regressions, other than to claim that it was a vague, nonspecific genetic cause for which there was not a shred of evidence.

I attended the OAP hearings in 2007 and 2008. I was full of hope this was the venue that would finally lead to justice for vaccine-injured children. I was optimistic as I watched the parents testify and watched their dedicated attorneys fight for their clients. Unfortunately, I now view the OAP as a program where government attorneys defend a government program using government-funded science before government judges. This is hardly fair and I am afraid we never had a chance for justice for these children.

Is there any hope?

I know this all sounds very bleak. However, there are many reasons why there is still hope for children with autism who suffered vaccine reactions.

1. These three decisions will be appealed. The appeal process begins immediately in the OAP.

2. Bruesewitz v. Wyeth—On March 8, the Supreme Court voted in favor of hearing this vaccine injury case. The issue in this case is not whether or not the child was harmed by a vaccine, rather the Supreme Court will decide on whether or not parents have the right to sue a drug company outside of the VICP.  Mary Holland, Esq. and Jim Moody, Esq. wrote a wonderful article on this upcoming case for the Age of Autism. Read more HERE.

3. Theresa Cedillo and Michael Cedillo v. Secretary of Health and Human Services—This amicus curae brief was filed in February backed by twenty-three autism organizations in the US Court of Appeals for the Federal Circuit.  Read more HERE.

4. The above legal cases will take many months to move forward which allows more time for science to develop. This could possibly help our side of the argument.

5. The Dr. Poul Thorsen situation is still evolving. Dr. Thorsen was a lead scientist in the Danish studies conducted in 2003 that showed that vaccines and autism were unrelated. Dr. Thorsen is now missing with $2 million of Danish Universities’ money.  Read more of this explosive story HERE.

6. The Hannah Poling and Bailey Banks cases. These two children with autism were awarded compensation for damage done to them during their routine childhood vaccinations. The difference for these two children was their cases were heard outside of the OAP and were compensated for conditions like seizure disorder and encephalopathy.  Read more about Hannah Poling and Bailey Banks: Poling HERE and Bailey-Banks HERE.   

7. One in four parents now believes in the autism/vaccination connection! And no wonder. There is substantial evidence that a susceptible set of children have reacted to their vaccines. The number of children with autism has been skyrocketing for years and there is still no explanation from the government or the medical establishment for the increase. Read more at CBS News HERE. 

8. The newly formed Coalition for Vaccine Safety is spear heading many new vaccine safety initiatives including the call for Congressional Hearings on this topic. For more information on this coalition click HERE.

I ended last year’s decision analysis with “this fight is not over.” I feel even more devoted to that statement this year. While I do think the OAP is broken, needs reform and provides very little chance that any child will receive compensation from it, I don’t think the vaccine and autism connection issue is dead. This fight is far from over.

 Rebecca Estepp is Media Relations Director for TACA.


 


 

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I have an autistic child and it started after here mmr shots , the regression . It would be nice for someone to addmit that ther is a link between the two there are to many cases that say otherwise and it is not fair to our children .now im not saying to go sueing people because the mmr shot does more good for our children than harm but it would be nice to see the government step in to do alot more research on the link between the too for the sake or OUR children. because as it does good it also does bad and no one will help us with our problems and yeat it is mandatory for our children to have these shots to go to school . sincerly daniel ashkettle

hi Matt, why don't you suggest what else we should be perseverating on? that time I cleaned the shower with caustic chemicals while pregnant? the plastic kitchen spatula that gets overheated when I cook food? the camera flash my son endured while a baby? the baby bottles? the mattress? the flame retardant nightclothes? gosh, all these might make a little sense, but there's no group of parents even making a peep about these things...you know why? because vaccines make the MOST sense. You do not inject untested amounts of vaccine ingredients in tiny babies without some that can't handle it!!!! you just CAN'T do it.
somebody PLEASE think up something that makes more sense than vaccines and I will drop this train of thought like a hot potato! matt, do you think ANY of us like this!?!? we're not having fun here, we are reporting what we saw and what makes most sense.

Nice article, Becky!

What Dave doesn't realize is that people in the public health communications chain are simply repeating what they're told. They parrot party epidemiology rather than investigating biological studies or looking at children's medical records. They're not paid for original thought -- just for marching in place to orders from above.

The critical flaw in the vaccine juggernaut is that unlike other consumer products, this system does not factor in the ethical handling of vaccine injuries -- to learn from them, to prevent them.

The Slim-Fast diet drink makers listened to their consumers' reports of product contamination, a massive recall was enacted, and that negative memory quickly faded.

State health departments' PR people keep applying verbal band-aid solutions to sticky situations -- Thorsen, Gardasil, mumps vax failure -- but never come to the rescue of the affected constituents. Consequently consumers' criticism of this failed system should come as no surprise.

Bad, bad apples.

What can we do to prove our point? My child is recovering, but not yet recovered. But many of you who are lucky and smart enough to have recovered children should prove it to the government. The courts won't listen, but you can make the scientists listen:

http://clinicaltrials.gov/ct2/show/NCT00938054

"Similarly, there are a large number of anecdotal reports of children with autism who, following intensive biomedical intervention (e.g., gluten/casein free diets, vitamin supplements, chelation), are indistinguishable from their typically developing peers."

Yes, lets flood the world with recovered autistic children!

"The advocacy group Autism Speaks said "the proven benefits of vaccinating a child to protect them against serious diseases far outweigh the hypothesized risk that vaccinations might cause autism. Thus, we strongly encourage parents to vaccinate their children to protect them from serious childhood diseases.""
http://www.newsobserver.com/2010/03/12/385444/court-says-thimerosal-did-not.html

How ya like them apples?

Hey Dave. Your wit and insights are breathtaking. Do you hang out over at Scienceshags?

I knew this had been decided when I saw that the government lawyers did not make any real effort to win this case.
Why bother when you know the fix is in?

Not at all surprised but saddened nonetheless. Thank you to the Mead, King, and Dwyer families. Your fortitude inspires me.

What a sad, sad day. These families deserve better than a government willing to sacrifice their children to protect their precious vaccines.

Bensmyson--

I'm gonna make it up for all of The Sunday Times
I'm gonna make it up for all of the nursery rhymes
They never really seem to want to tell the truth
I'm so tired of you, America

agh.

A STACKED DECK

The 1986 vaccine act with an eviscerated table of injuries as of 1995.

The vaccine act established and pays for the VSD. The VSD is used against the parents and plaintiffs who are not allowed access to the data to conduct their own studies.

The DOJ, CDC et al can spend endless resources, fund studies to use against the parents; those resources are denied to the plaintiffs.

A special masters finding of compensation doesn't apply to another special masters case even if the cases are identical.

STACKED DECK = NO JUSTICE.

The only way to get to the truth is to use enhanced interrogation techniques(including water boarding)on every one who attended SIMPSONWOOD, the 2004 IOM committee starting with Marie McCormick. Oh, and what the hell, lets just throw in Brian Deer for fun.

We are all witnesses to the cancer which is eating this country alive. Every institution we thought was honest.....isn't.


Matt, your earnestness is misplaced. Stop talking at us and start listening to us. We have children's medical records, not epidemiology. We have before-and-after videos.

Sadly children will continue to get sick and die of vaccine-preventable diseases regardless of your pleading. Vaccines fail.

And vaccines have many serious side effects -- optic neuritis, encephalopathy, ADEM, eosophinilic esophagitis. Look at the vaccine injuries on the NVICP table, and those removed from it.

You don't realize that denial of these injuries amounts to gross mismanagement of tax-funded public health programs. Your words would best be directed at the CDC, which believes it can continue its hit-and-run, one-size-fits-all vaccination protocol.


Going to a town that's already been burned down.....

Gatogorra, Im tired of it too. Thanks for the soundtrack to my despair.

big pharma have bought off all the scienceist, and doctors and nurses and the CDC, NIH, WHO and the media and the special masters even too! I bet the special masters just cashed big checks from big pharma.

Either that or vaccines don't cause autism.

Would making videos of your child before and for two weeks after every vaccination help make the case? You'd have to have some kind of independent dating in the video.

I realize that people get their kids vaccinated because they trust vaccines and that when their kids become ill the last thing they want to do is get out the video camera....

I'll be back in fighting form tomorrow.

http://www.youtube.com/watch?v=4fDJCKZ3R10

To Mary Ludwig:

The Hannah Poling case had a mother who was an attorney and a father who was a respected physician. They won.

Matt-- really, bugger off. You're about as sincere as a Jolly Roger.

@Matt - If you don't understand the vaccine/toxin/mercury-to-autism connection, then you don't belong on this website. Our scientists and doctors have the evidence and, thankfully, they are treating our kids by detoxing them. Guess what? They're successful in recovering our kids. They have the answer(s). We're up against Pharm and Big Businesses who have paid off the governments - they have the money, the PR, the voice and the mainstream news. They've fooled doctors into thinking pills are the answers to health ailments. If you don't understand the connection, then go to a DAN meeting and educate yourself. *the more you know*

Instead of spending so many resources on attempting to prove a link between vaccines and autism which does not exist, I am pleading for groups like yours to start focusing on other causes and treatments. This continued perseveration on vaccines is not only providing false hope but is harmful as well as detracting from meaningful and potentially helpful research. It is time to end this fight before more and more children begin to get sick and die from preventable illnesses.

One of the factors leading to the very rare wins is not mentioning the "A" word.

"Unfortunately, I now view the OAP as a program where government attorneys defend a government program using government-funded science before government judges. This is hardly fair and I am afraid we never had a chance for justice for these children."

Sadly, you're right Becky.

The special masters of those who appointed the Special Masters,
http://www.opensecrets.org/lobby/indusclient.php?lname=H04&year=2009

We (OK, someone really smart with time to do so) should study the factors leading to the very rare wins in Vaccine Court, like having a recent MRI proving a child's neuro health before a round of vaccinations, then one after showing the brain damage, for example, --- or having a world class doctor and nurse or lawyer as your Father and Mother respectively - ooops that's not very realistic but what lesson can we take from that (keep meticulous medical records of neurotypical health then decline and being able to fund a legal battle), and whatever other factors led to a win, if not an award ....

Maybe our autism groups should be putting millions into legal defense not genetics research, etc., etc. Or my favorite idea, put millions into biomed scholarships and clinics, flooding the world with recovered children so everyone says yes I know a recovered child, NOT I know someone with autism.

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