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Vaccine-Autism Decision a 'Major Disappointment' Says Autism Advocacy Community

Legal update Cedillo vs. Secretary of Health and Human Services Highlights Failure of the Vaccine Injury Compensation Program WASHINGTON, Aug. 30 /PRNewswire-USNewswire

The Elizabeth Birt Center for Autism Law and Advocacy (EBCALA) is deeply disappointed in the Court of Appeals for the Federal Circuit's decision to affirm Cedillo v. Secretary of Health and Human Services. EBCALA submitted a friend-of-the-court brief on behalf of 23 civil society organizations in January 2010 urging the Court of Appeals to reverse. In affirming the decision, the Court of Appeals failed to do justice by Michelle Cedillo and thousands of other petitioners in the Omnibus Autism Proceeding (OAP). This case, the first test case in the OAP, highlights the overall failure of the Vaccine Injury Compensation Program (VICP). As Rebecca Estepp, an OAP petitioner, said, "These are government lawyers, representing a government agency, presenting government-funded science to government judges, with no jury and no normal rules of evidence. Where's the justice in that?"

Michelle Cedillo, a 15-year-old girl, developed autism and many other severe medical problems in the immediate aftermath of her measles-mumps-rubella vaccine and other mercury-containing vaccines. Her lawyers advanced scientific and legal arguments that the combination of her mercury-containing and live virus vaccines substantially contributed to her life-threatening medical conditions. In EBCALA's view, Cedillo met the required standard of "more likely than not." While the Court of Appeals criticized some of the Department of Justice's conduct as "troubling," it did not find that the government's conduct merited reversal. EBCALA has grave concerns regarding a legal process that permitted the admission of critical evidence by the government at the last minute, not only foreclosing Cedillo's opportunity to challenge it, but unfairly precluding any inquiry into how the Department of Justice obtained the critical piece of evidence in the first place. The court's failure to inquire into this area raises serious questions regarding the due process and fair play of the VICP. Adding to EBCALA's concern was the Special Master's insufficient analysis of Cedillo's scientific biopsy results. A recent study by leading United States researchers – that the Court of Federal Claims elected not to admit – found no basis to question the reliability of the laboratory results, contrary to the government's position and the OAP's finding.

The Court of Appeals disappointingly failed even to criticize the Special Master's injudicious tone in his opinion, where he characterized the case as "one-sided" and accused Michelle's doctors as being "guilty…of gross medical misjudgment." "Impartiality is the bedrock of any judicial system, and the VICP failed to exhibit it in the Omnibus Autism Proceeding," said Mary Holland, Executive Director of EBCALA.

EBCALA and amici are now focused on Bruesewitz v. Wyeth, scheduled to be argued before the U.S. Supreme Court on October 6, 2010, a case that will determine proper interpretation of the 1986 National Vaccine Injury Compensation Act which created the VICP. Bruesewitz v. Wyeth will decide whether families like the Cedillos may bring claims of vaccine design defect to regular civil courts after having first filed in the VICP. For more information, contact Mary Holland, J.D., EBCALA Director at (917) 743-3868.

The following civil society organizations filed a friend-of-the-court brief in Cedillo v. HHS: Age of Autism (www.ageofautism.com)
Autism Action Network (www.autismactioncoalition.org)
Autism Human Rights and Discrimination Initiative (www.autismwebsite.com/autismdiscrimination)
AutismOne (www.autismone.org)
Autism File USA (www.autismfile.com)
Autism Research Institute (www.autismresearchinstitute.org)
Autism Trust USA (www.theautismtrust.com)
Coalition for Mercury-Free Medicine (www.mercury-freedrugs.org)
Developmental Delay Resources (www.devdelay.org)
Elizabeth Birt Center for Autism Law and Advocacy (http://ebcala.me)
Generation Rescue (www.generationrescue.org)
Life Health Choices (www.lifehealthchoices.com)
Maryland Coalition for Vaccine Choice (www.mdvaccinechoice.wordpress.com)
Medical Voices Vaccine Information Center (www.medicalvoices.org)
National Autism Association (www.nationalautismassociation.org)
National Vaccine Information Center (www.nvic.org)
New Jersey Coalition for Vaccination Choice (www..njvaccinationchoice.org)
New York Alliance for Vaccination Choice (website in formation)
The Coalition for Safe Minds (www.safeminds.org)
Schafer Autism Report (www.sarnet.org)
Talk About Curing Autism (www.talkaboutcuringautism.org)
Unlocking Autism (www.unlockingautism.org)
Wisconsin Vaccine Information Center (www.wisvic.org)

SOURCE Elizabeth Birt Center for Autism Law and Advocacy http://ebcala.me

Comments

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patrons99

Theresa Cedillo - speaking as someone well-versed in the school of legal hard-knocks, I sympathesize greatly with you and your family. I pray for you, for healing, and that you might find the fortitude to continue seeking a legal remedy for what happened to Michelle. The VICP failed you miserably. Maybe a real court will reach Michelle's injury. I know that being a "test case" was not of your choosing.

http://www.scribd.com/doc/17301455/Supplemental-Brief-and-Appendix-in-Support-of-Petition-for-Writ-of-Certiorari-071525

After nearly a decade, in half a dozen different judicial hellholds, a person might finally end up realizing that there is no LEGAL remedy and that there is no JUSTICE.

Who do I hold primarily responsible for both my injuries, my brothers' injury, my parents' suffering, your Michelle's injury, your suffering? PHARMA and their shills.

BTW - I would love to have my brothers' gut tested for vaccine-related measles and rubella virus. Mine too. We were raised in heavily-vaccinated military family.

JenB

Thank you to the families who labored so long and hard to petition our various branches of government and health agencies to address this manmade disaster! Every branch and agency has acted with self-interest first, or deferred their responsibility to those who are acting with self-interest first.

Jenny

I think the vaccine court should be shut down. Right now, the pharmaceutical companies only need to influence a few select individuals in order to deny justice to thousands of families and control the intentions of hundreds of thousands more. Reverting to the true court system would definately be more fair where parents could present to a jury of their peers.

Benedetta

CT teacher
Nail on the head.
Med school does brain washing !
Nursing school is even worse.

To get through nursing school you have to sit through class after class and listen to people that are suppose to be knowlegable about the subject - as well as passionate.

They are passionate because they too are brain washed.

It is a mad, mad world!

Twyla

Someday what is obvious will be generaly accepted. Someday.

MAKE AUTISM STOP

Dust off the hands ... one out of the vaccine court! I hope the Cedillo's find strength to carry the litigation onward.

And, boo-yah!, we won't be getting vaccines (environmental bullets) for generations. Doing the same thing over and hoping for a different result is the very definition of insanity. We have ample proof of that in the legal and medical communities.

MAKE AUTISM STOP

Theresa Cedillo

For Patrons99- In Michelle's case, yes, we claimed autism as a vaccine injury. Vaccine associated brain injury is being compensated under the VICP. Autism is brain injury. Encephalopathy is brain injury. Michelle has a diagnosis of both severe autism and severe static encephalopathy.

Michelle's intestinal biopsies tested positive for the vaccine strain measles virus RNA. The court said John O'Leary's lab was faulty. Then the court ignored and would not let into evidence the research of Hornig, Lipkin, et al which was released after Michelle's hearing. This scientific work validated John O'leary's work because our own CDC hired John O'Leary to help set up the labs in this study to look for measles virus RNA. The measles virus RNA was found in the intestinal biopsies of two of the children in the study. It was found in all three laboratories, including that of John O'leary. This validates his work and his findings and Michelle's findings. This was not allowed into evidence by the Special Master.


Theresa Cedillo

CT teacher

patrons99--I have been so discouraged that the medical profession has been so unable to apply critical thinking skills and recognize the dangers of vaccines. Your recognition of the problems and scientific explanations are so insightful. It totally boggles my mind that any thinking person could not understand the great potential for harm the vaccination process presents. Talk about voodoo medicine! What a witches brew of filthy material we are injecting into our bodies! How do you explain the blindspot of mainstream medicine in this regard? Is denial really that powerful? Or. are all physicians completely brainwashed in med school?

Steph M

I hope the Cedillo Family now has their lawyer seek the courts permission to go after the vaccine manufacturer. Has anyone heard any updates regarding the Georgia Supreme Court case regarding individuals suing the vaccine makers without going through the courts?

Autism Grandma

The Vaccine Court has failed miserably considering the initial laws governing it's purpose, which have been altered and ignored for the purpose of protecting the almighty vaccine industry. Barbara Loe Fisher explains the demise of the original intention which has proven to produce the opposite result in being detrimental to the vaccine injured instead of compensating them.

Reading the following article by Barbara Loe Fisher really helped me to understand the total picture of what has evolved. I highly recommend reading the entire article as she also cites case law in support of the original intention which is not being followed in the least. I condensed her statements here:

The Vaccine Injury Compensation Program: A Failed Experiment in Tort Reform?

Advisory Commission on Childhood Vaccines, November 18, 2008

http://www.nvic.org/injury-compensation/vaccineinjury.aspx

Statement of the National Vaccine Information Center

Barbara Loe Fisher, Co-founder & President

"The Vaccine Injury Compensation Program: A Failed Experiment in Tort Reform?"

November 18, 2008

"Although the vaccine manufacturers and pediatricians may have been primarily concerned with liability protection while Congress was anxious to protect vaccine supply and delivery, parents in the 1980’s were assured that a federal compensation system would even the playing field for vaccine victims and their attorneys. We were assured that, unlike a lawsuit in civil court, the federal compensation system would be based on the presumption that a vaccine or combination of vaccines caused the child’s injury or death if no other demonstrated cause could be found. The emphasis was on presumption and there was recognition that this presumption, in the absence of scientific data and certainty, would be in the plaintiff’s favor even if that presumption would result in some children being compensated who were not, in fact, vaccine injured."....

"In the 1990’s, DHHS chose to wield discretionary authority given under the Act to change the rules and eliminate almost all on-Table adverse events that would allow for presumption of causation. With the assistance of the Department of Justice, DHHS turned the administrative compensation process into a highly adversarial, lengthy, expensive, traumatic and unfair imitation of a court trial for vaccine victims and their attorneys. The only difference is that the trial is now conducted in the U.S. Court of Claims in front of one individual who acts as judge and jury.

Ironically, parents who helped create the Act in the 1980’s were told that Congress needed to grant the Secretary of DHHS broad discretionary authority to alter the Vaccine Injury Table so the Secretary could expand the list of presumptions for injuries associated with existing and future vaccines to make the system more inclusive not less inclusive. We never imagined DHHS would take away existing presumptions from the Table because the stated purpose of the Act was to err on the side of compensating potential vaccine victims in order to offer an effective alternative to vaccine injury lawsuits.".....

"What are other signs that obtaining federal compensation has become a highly adversarial, time consuming process and that the Act does not do what Congress intended it to do?

In 1986, federal health officials recommended 23 doses of seven vaccines be given to children from two months to six years of age and most of these were mandated by states. The Act, in fact, was supposed to protect the supply of those seven vaccines for tetanus, diphtheria, pertussis, polio, measles, mumps and rubella. Since then, 46 doses of nine new vaccines have been added to the CDC recommended schedule for girls (43 doses of eight new vaccines for boys) and many state health departments have either mandated most of them or are in the process of mandating them. Today, there are twice as many opportunities for vaccine injury or death to occur during childhood than before the Act was passed more than two decades ago.

But with this increased vaccine adverse event risk exposure, what has been done to minimize increased vaccine risks and also to fairly compensate those injured by one or more of the new vaccines?

DHHS has recommended every one of the nine new vaccines for universal use, which allows all nine to be added to the compensation program. This gives automatic liability protection to the drug companies marketing these nine new vaccines as well as to all doctors administering them.

When parents look at the Table of Compensable Events, what do they see? They see that no signs, symptoms or injuries have been added to the Table for these nine new vaccines – except anaphylaxis within four hours for hepatitis B vaccine. They see that if their child is injured or dies after getting one of these vaccines, they are in for a long, hard fight to obtain federal compensation in the U.S. Court of Claims.

And when they check out the statistics on the Health Resources & Services Administration (HRSA) website (http://www.hrsa.gov/vaccinecompensation) they find out that two out of three individuals applying for vaccine injury compensation have been turned away empty handed even though to date about $1.8B has been awarded to more than 2,200 plaintiffs out of some 12,000 who have applied. And they learn that nearly 5,000 of the vaccine injury claims are sitting in limbo because they represent children who suffered brain and immune system dysfunction after vaccination but have been diagnosed with regressive autism, which is not listed on the Table of Compensable Events. Yet there is $2.7B sitting unawarded in the Trust Fund and people suggesting all sorts of ways to use that money for all sorts of reasons other than for compensating vaccine victims.

The fact that the compensation program is not working the way parents were promised it would work and Congress intended it to work is also demonstrated by the fact that parents of vaccine injured children and their attorneys have been forced to seek justice in the civil courts."....

"There is enough blame to go around when looking at why the 1986 National Childhood Vaccine Injury Act has not lived up to the spirit and intent that prompted the 99th Congress to work so hard to create and pass it. Congress itself walked away from providing oversight after the 1989 Amendments were passed, even though sporadic attempts have been made in the House and Senate in bills that sought to address substantive issues such as extending the statute of limitations and increasing the $250,000 death benefit and pain and suffering limit.

There is little that can be done to recapture a dream of justice that has turned into a nightmare for thousands of families with vaccine injured children, who have been denied federal compensation, while vaccine manufacturers and doctors have enjoyed unprecedented liability protection for the past two decades. That liability protection has made it easy for four dozen doses of nine new vaccines to be added to the childhood vaccine schedule, some of them fast tracked, without any studies being conducted to evaluate the potential long term adverse health effects of giving children an unprecedented number of vaccines throughout childhood.

That liability protection has made it easy for the CDC and AAP to narrow contraindications to vaccination so severely that almost no health condition qualifies as a reason not to vaccinate, placing many more vulnerable children at higher risk for suffering vaccine reactions that are often dismissed by pediatricians and government health officials alike as “a coincidence.” It is no wonder that estimates for reporting of vaccine associated health problems, hospitalizations, injuries and deaths by vaccine providers to the VAERS system is only between one and ten percent.

The fact that unprecedented numbers of highly vaccinated children are now suffering from chronic disease and disability compared to a quarter century ago calls into question the wisdom of an Act, which has made it easier for industry to rush to market new vaccines that government officials mandate while shielding vaccine makers and providers from liability for any harm that is done. The fact that there has been no attention paid by industry and government to minimizing vaccine risks, including no scientific research – as the Act called for – into identifying individuals at high risk for suffering vaccine adverse responses so their lives can be spared – speaks volumes about the disconnect between the intent of Congress to prevent vaccine injuries and deaths and the intent of those operating the federal compensation system to deny they exist.

For this reason, many parents I have spoken with maintain that the Vaccine Injury Compensation System is a failed experiment in tort reform that should be repealed. They believe the vaccine injured should be able to return to the courts, where discovery is allowed, to sue vaccine manufacturers for design defect and failure to warn and sue pediatricians who carelessly implement one-size-fits-all vaccine policies rather than adhere to the precautionary principle to “First, do no harm.”

The decision of whether or not the Vaccine Injury Compensation Program is worth saving belongs to the smart, vaccine educated parents with young children today, who you will be hearing from as they stand up in greater numbers across this country for the legal right to make informed, voluntary vaccine decisions for their children. I promise you, they will not wait another quarter century for those of you operating this program to do what you were supposed to do a long, long time ago."


patrons99

Sylvia - "But the corruption has only grown in the last ten years. Families are fighting the devil himself now."

Amen to that! Well-stated. We all need prayer, perhaps now more than ever.

Sylvia

I admire the Cedillo's so much for their determination. I decided not to pursue a claim over ten years ago because everything I heard told me it was usesless - that it was a corrupt system and there was practically no hope of prevailing. Since we were financially secure, I decided to put my energies elsewhere. I wish I had been wrong. I wish I could say I SHOULD have devoted the thousands upon thousands of hours the the Cedillo family put into their case. I wish I could say I made the wrong choice, and that families can and do get a small helping of justice once in a while. But the corruption has only grown in the last ten years. Families are fighting the devil himself now.

How as a country did we ever allow this to happen?

State

We do know that vaccines can cause some injury - my husband for example (in the 1970s) had seizures and was hospitalized twice after the pertussis vaccine - they decided he was allergic to it. He was on anti-seizure meds until he was five. I must say I do like the way Brain Balance - www.brainbalancecenters.com - is approaching autism and adhd. Not only are they cleaning up diet and adding supplements after examining blood work, they then add behavioral modification, brain strengthening exercises, and therapy. It's really a whole-person approach to correcting neuro-behavioral disorders.

cmo

They have to set up a corrupt court system to protect the "liability free vaccine industry,"

...so they can make money to pay off their Vioxx & other problems.

... all marketed under the very popular "it's to save the children" format.

vaccines cause real damage

I don't know who is more of a slime, Kristina Chew or Alison Singer. They are both very bitter people whose jealousy towards parents who have had success with biomed is so obvious. Why else would they feel the need to preach all the time telling anyone who will listen that their beliefs are correct and everyone else is wrong. Seeing their outcomes I'll do and believe the opposite of what they are spewing. I truly feel for their kids that their parents' bitterness and ignorance has blinded them.

patrons99

I am greatly saddened for both the Cedillos and the Fletchers. The pace of legal action is glacial. Bringing legal action is never for the faint of heart. I applaud both families for fighting the good fight. Just as a strategic point, for the lawyers involved: was the word “autism” actually used in the complaint? Is use of the word autism a double-edged sword which may actually limit a legal cause of action? Real question: would legal causes of action stand a greater chance of success using the term vaccine-associated brain injury? Personally, I have no doubt that vaccines cause vaccine-associated brain injury. In fact, I believe that vaccines cause MANY diseases. The evidence in support of this view has grown precipitously over time. The relevant question is now, how could vaccines NOT cause disease?

Marianne

http://www.care2.com/causes/health-policy/blog/vaccines-dont-cause-autism-no-they-dont/

Isn't it a shame that this loser parent has nothing better to do than continually spend her time trying to discredit the thousands of cases of vaccine injuries out there. Chew is an absolutely horrid excuse of a human being.

Rolf Hazlehurst

It is highly misleading for the Government to refer to "Vaccine Court" as a Court. As one of the Court of Appeals Judges stated during the oral argument in the Cedillo hearing, "this (Vaccine Court) is not a court of law".
Appeals are based upon violations of the Rules of Law, but the Rules of Law including the Rules of Civil Procedure, the Rules of Discovery, and the Rules of Evidence do not apply in Vaccine Court. It is a "Court" in name only.
The reality is that the Vaccine Industry's Court is nothing more than a procedural hurdle, which has prevented vaccine injured children from having their day in court for 25 years.
Hurray, we are finally over the vaccine court hurdle. I am not stoping until I get to a real Court with a real Judge a real Jury and the Rules of Law apply.

Rolf Hazlehurst

Bob Moffitt

"Impartiality is the bedrock of any judicial system, and the VICP failed to exhibit it in the Omnibus Autism Proceeding," said Mary Holland, Executive Director of EBCALA.

Amen to that .. and .. I would like to add .. "impartiality" must also be exhibited by Court of Federal Appeal Justices.

Such as .. where is the evidence of impartiality of the Federal Appeal Justices? These Justices resorted to using a legal euphemism ("troubling").. to avoid finding in favor of Michelle Cedillo's appeal?

By the way .. I can't help but ask .. was Autism Speaks offered opportunity to join the 23 Autism organizations that signed the "friend of the court" brief submitted by EBCALA?

Theresa Cedillo

For an amazing parent and Warrior Mom: Mary Holland and all those fighting for our children at EBCALA: Thank you for your amazing support in our legal efforts. The work you are doing for our children is a fitting memorial to Liz Birt who never gave up in her fight for justice. I am certain Liz is looking down with pride.

The Cedillo Family

Jenny Allan

Quote from AoA's article:-
"that the Court of Federal Claims elected not to admit – found no basis to question the reliability of the laboratory results, contrary to the government's position and the OAP's finding."

Yes!! In spite of Brian Deer's rantings and a very superficial examination of Professor O'Leary’s laboratory by, of all persons, a representative from the vaccine manufacturers, this research has NEVER been discredited in any proper scientific or peer reviewed study. Like Dr Wakefield's Lancet article, it is all hearsay, slurs innuendoes and downright untruths, many perpetrated by,(proud of himself, Brian Deer himself!! The fact that Mr Deer is a journalist with no scientific or medical qualifications whatsoever, and was blatantly 'commissioned' to discredit Wakefield in order to protect vested political and big pharma interests, was completely ignored by both the GMC and this US appeal court.

I was brought up to believe that our politicians are all 'honorable' persons, our doctors are all 'compassionate and caring', and our courts are all dedicated to ensuring proper justice is administered.

Disillusioned? You bet!!

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