The AP article by Mitch Weiss, Justin Pritchard and Troy Thiobodeaux reveals some of the flaws in National Vaccine Injury Compensation but ultimately misses the point; The NVICP has dismissed Congressional intent and devolved into a policy vehicle for the federal vaccine establishment.
It is true that attorneys representing petitioners have made millions of dollars. However, the Secretary of Health and Human Services altered the Vaccine Injury Table in the mid-1990’s and skewed the balance of the program in favor of the Department of Justice. This made the prospects of petitioner acting Pro Se (in their own behalf), virtually impossible. Cases are now intensively litigated and there is no way for petitioners to succeed without legal counsel who understand the program.
The journalists point to petitioners using expert witnesses of dubious credentials. The current state of affairs is that expert witnesses for petitioners are a dying breed. Why? The article tells you why; expert witnesses for petitioner often face negative consequences for saying that a vaccine caused injury – any injury. Note this excerpt from Harris v. Secretary HHS, No. 07-60V VACCINE CASE Filed: November 28, 2011
“Harris, 2011 WL 2446321 at *35 (emphasis added).
Dr. Kinsbourne’s unchallenged reference to written warnings of the manufacturer of the DTaP vaccine was not an “opinion” about the “toxoiding process,” he simply was repeating the manufacturer’s superior knowledge about those products. In addition, and more important, the Special Master’s condescending mischaracterization of Dr. Kinsbourne’s bona fides is out of line. Dr. Kinsbourne is not “ostensibly” a pediatric neurologist. See id. at *35.
No lesser academic institutions than Oxford University, Duke University Medical Center, the University of Toronto, Harvard Medical School, Boston University, and Tufts University have recognized Dr. Kinsbourne as an expert in this field, contrary to the views of the Special Master. Pet. Ex. 22 at 1-2.
The Special Master also misrepresented Dr. Kinsbourne’s current position in the New School in New York City, where he teaches neuroscience, not psychology, as the Special Master implies. Compare id. at 2 with Harris, 2011 WL 2446321 at *4.
Finally, the Special Master emphasized that Dr. Kinsbourne is “well-known” to special masters, because he testifies frequently in the Vaccine Program for petitioners. See Harris, 2011 WL 2446321 at *4.
Of course, the Special Master made no mention of the fact that the same is true of Dr. Wiznitzer. The Special Master’s proclivity to demean petitioners and their experts when he differs with their opinions is not unique to this case.
See e.g., Porter v. Sec’y of HHS, No. 2010-5162, 2011 WL 5840315 at **13-15 & n.4 (Fed. Cir. Nov. 22, 2011) (O’Malley, J. dissenting) (discussing this Special Master’s “remarkable” opinion for “the sheer number of references to credibility, demeanor and veracity” and character attack on an expert with whom he disagreed); Dobrydneva v. Sec’y of HHS, 94 Fed. Cl. 134, 147 (2010); Campbell v. Sec’y of HHS, 90 Fed. Cl. 369, 383-84 (2009).