Day Thirteen of the Autism Omnibus Proceeding – Hazlehurst v. the Secretary of Health and Human Services
By Kent Heckenlively, Esq.
A few years back there was a song called “It’s Hard out here for a Pimp” which was nominated for an Academy Award. As I read through the first of four days in the second test case for the Autism Omnibus Proceeding, Hazlehurst v. the Secretary of Health and Human Services, all I could think was that there must be some days when it’s equally hard to be a government attorney defending the current vaccination program.
This day of reviewing the history of Yates Hazlehurst from a happy baby to a severely impaired autistic child with significant gastro-intestinal problems was one of those days.
Opening remarks by Special Master Patricia Campbell-Smith:
Special Master Campbell-Smith welcomed the parties to the proceedings in Charlottesville, North Carolina and explained this was the second of three test cases involving nearly five thousand claims from the parents of children who believe their child’s autism was caused by vaccinations. The first was Cedillo, this is the second, and the third will be Snyder.
This specific hearing was to review the facts relating to Yates Hazlehurst, but also to develop a consistent framework to evaluate the other claims of vaccine damage.
Opening by Mr. Curtis Webb – Attorney for the Hazlehurst family (Petitioners):
In his opening Mr. Webb explained that this case would present information specific to Yates Hazlehurst, and specifically, that his vaccination on February 8, 2001, shortly before his first birthday, caused his progressive autism.
Webb detailed that on February 8, 2001 Yates received his MMR, HiB, hepatitis B, and Prevnar shot. He was sick at that doctor’s visit and was prescribed amoxicillin for an ear infection. Yates was sick for two weeks after his vaccination, and on February 20 had a rash, fever, and a cough which was reported to his pediatrician.
In late March and early April of 2001 he began showing less interest in people and began to engage in wild behavior, like running away from people at any opportunity. In June of 2001 he began to self-limit his diet and refused to eat many foods.
In late June and early July of 2001 Yates stopped using functional language, although he excelled in the recognition and reciting of numbers and letters. He also developed chronic diarrhea during this time.
In August of 2001 he began engaging in self-stimulatory behaviors such as winding toys up constantly, and spinning the wheels of any toy he could.
Yates’ diarrhea improved in 2002 with certain diet changes, as well as some changes implemented in 2003, but didn’t completely clear up until 2004 when his parent began their current regimen of enzymes and medications.
At the current time Yates still has delayed speech and will run away if not constantly supervised. He takes medication which allows him to sleep and limits his aggressive behavior.
Webb finished his presentation by stating his belief that thimerosal in combination with inflammation from the measles virus can cause a genetically predisposed child to develop autism.
Opening by Mr. Vincent Matanoski – Attorney for the Government (Respondent):
Mr. Matanoski began by apologizing to the court for his need to sit down during his remarks because of the requirements of the recording system.
Matanoski launched into his claim that the petitioners were not presenting any cohesive theory of cause and effect, only a series of hypotheses. He then laid out this series of hypotheses for the court.
First, that there is an unexplained rise in the incidence of autism. Second, that mercury accumulates in a special category of genetically susceptible children. Third, that the weakened measles virus in the MMR shot persists in these children, eventually causing gastric and brain inflammation that leads to autism.
In closing Matanoski attacked the idea of inflammatory bowel disease as a “fiction” perpetuated by Dr. Andrew Wakefield and his collaborators. He claimed the parental “hypotheses” were not reliable science and simply “unverified guesses” and “pseudoscience”.
Comments on the Openings of Attorneys Webb and Matanoski:
Webb presented a workman-like opening by stating the chain of events which led his clients to believe that vaccines had damaged their son, Yates. He also laid out what he believed the evidence would show. Webb did not draw unwanted attention to himself and if I were the judge I’d say, good job, now let’s move onto the testimony.
By contrast, I find Matanoski to be lacking in some important legal skills, and it’s not just because my sympathies lie on the other side. With his assault on “parental hypotheses” and his comparison of them to “pseudoscience” it’s clear what he thinks of the theory of vaccines being linked to autism.
What’s less clear is how he feels about the parents of these children and what they live with on a daily basis. His approach strikes me as that of a criminal defense attorney impugning the reputation of a murder victim as he struggles to defend his client. Matanoski’s co-counsel, Lynn Ricciardella, at least seems to understand that you can disagree with the theory of autism’s cause, while also acknowledging the struggle faced by the parents of autistic children on a daily basis.
Prior to her cross-examination of Angela Hazlehurst, the mother of seven-year-old Yates, Ms. Ricciardelli said the following: “Everybody here at counsel table knows how much you, your husband, and your whole family have done for Yates . . . I think you said you have gone to the ends of the Earth, and it’s apparent, and you, your husband, and your family should be commended for it, and that’s one of the most important things we’ll say here today.”
I cannot imagine Mr. Matanoski expressing such a sentiment. It may seem like a small matter, but it looms large to me. Matanoski appears tone-deaf to the suffering of families of autistic children. I know the Special Masters are supposed to consider the evidence and not emotions, but people are rarely so compartmentalized.
If you as the attorney don’t know how to handle the family of a disabled child, why should the Special Master believe anything else you have to say? Special Masters, although they are no doubt accomplished and worthy of our respect, are still human beings, and you just missed something extremely important.
If you get the emotion wrong they’ll be wary of what else you have to say.
Direct Examination of Angela Hazlehurst by Curtis Webb – Attorney for Family (Petitioners):
Webb began his direct examination of Mrs. Hazlehurst by drawing a picture of the current condition of her son, Yates.
The longest sentence Yates can say is roughly five words. In answer to a question he’ll usually begin with simply one or two word answer, but if encouraged, may go up to five. He seems to be able to identify about a hundred items and can follow two-step instructions. He doesn’t engage in what would be considered “normal play” and does not have play with other children in any typical way. Yates goes to school, has a one on one aide, and is involved in a traditional Applied Behavior Analysis (ABA) program. He can generally feed himself, but cannot dress himself.
Yates is still likely to try to get out of the house. The Hazlehurst house has so many locks on their doors that they refer to it as “Fort Hazlehurst.” To help him sleep Yates is on the anti-psychotic medications Risperdal and Remeron. He takes digestive enzymes to help him with his food. Because of his digestive problems, at one point he had a distended stomach and his ribs poked through his skin, giving him the look often found on famine victims.
Yates also takes Lupron injections which are meant to lower testosterone levels. He has high testosterone levels and this caused aggressive behaviors. Because of the Lupron
injections he is now a much calmer child.
Currently Yates’ general health is good. He’s potty-trained, affectionate, and recently learned how to give an Eskimo kiss. He likes school and has a healthy appetite.
Turning from Yates’ current condition, Webb asked Mrs. Hazlehurst to detail the history of her son’s development.
Yates was born on February 11, 2000 and his Apgar scores were 8 and 9. He had colic for the first four weeks, but that was resolved. Yates smiled within the first month of life and was sleeping through the night at nine weeks. He sat-up at six months, crawled at seven, and walked at eleven months. His grandmother was fond of saying that his smile could light up a room when he walked in.
Mrs. Hazlehurst wrote on the calendar that he first said “mama” on December 5, 2001, and she vividly remembered him using lots of words that Christmas. He said “peas” for please, “tank you” for thank you, and he could say bye-bye, dada, and patty-cake. He was a very loving and expressive child who would wait in his crib for them in the morning, smiling with his arms outstretched, ready for them to pick him up.
(Do you understand now why I say that on days like this it’s got to be hard to be a government attorney? Even if you believe people need even more vaccinations, and hey, let’s see if we can give them not just on the first day of life, but in mom’s womb, testimony like this must make you pause for just a moment and think, but for the grace of God that could be me.)
Mrs. Hazlehurst then turned to Yates’ February 8, 2001 doctor’s visit. He was ill that day and she questioned the nurse as to whether he should have his vaccinations because of his illness, and also because he’d just been given an anti-biotic for an ear infection. The nurse told her it was fine.
At his first birthday party three days later Mrs. Hazlehurst remembered him looking typical, but dazed, and this was documented on videotape.
Mrs. Hazlehurst then recounted a good deal of what Mr. Webb had already covered in his opening. The red welts which appeared on February 20, the increasing hyperactivity, loss of words, and constant diarrhea. She recounted how when the family went to Norway in June of 2001 his hyperactivity was so bad they had to buy a harness and put it on him to keep him from running away.
The worst period of all was undoubtedly the time between March and June of 2002, before his diagnosis of autism. He was not responsive, cried a lot, and even when he would engage in some play by stacking blocks, would scream at the same time. He was also not sleeping and had terrible diarrhea.
Cross-examination of Angela Hazlehurst by Lynn Ricciardella – Attorney for
Ms. Ricciardella began her cross-examination by complimenting all of the hard work and
dedication shown by the Hazlehurst family towards Yates. As a practical matter, it was the right way to begin this cross-examination.
Ms. Ricciardella had only a few questions for Mrs. Hazlehurst. She elicited from Mrs. Hazlehurst that the first medical report of Yates’ lack of attention and hyperactivity was made at his two-year check-up in February 2002 with Dr. Carlton Hayes.
Mrs. Hazlehurst recalled that Yates became a picky eater some time before the Norway trip in June 2001, and that he also had severe diarrhea at that time.
They were able to be seen by Dr. Timothy Buie, a gastroenterologist at Harvard University because Yates’ grandfather is a gastro-enteroligist. The Hazlehursts wanted the best for their son and Yates’ grandfather generated a list of the best gastro-enterologists in the country and Dr. Buie was on the list.
Yates is currently being treated by Dr. Mark Geier. They had read about his work, talked to a family whose child was receiving treatment from Dr. Geier, and researched his protocol. Dr. Geier has never charged them more than a hundred dollars for a consult.
They continue to do phone consults with Dr. Buie at Harvard.
Questions from Special Master Campbell-Smith:
The special master had a question about the incident Mrs. Hazlehurst related in which Yates would scream while playing with blocks. Specifically, Campbell-Smith wanted to know if that was an isolated incident or a common occurrence.
Mrs. Hazlehurst answered that it was a common occurrence at the time and also added another detail. Yates would often lie over the arm of the couch and press his stomach against it, as if in pain.
When there were no more questions, Mrs. Hazlehurst thanked the court for allowing them to tell their story. She also wanted to thank their family members and friends who were back home watching their children without which they could not be at the hearing.
It was a classy end to her testimony.
Direct Examination of Ann Gerrard by Curtis Webb – Attorney for Family (Petitioners):
Ann Hazlehurst Gerrard is the aunt of Yates Hazlehurst, and sister of father Wolf Hazlehurst. She and her family live about five minutes away from the Hazlehursts in Tennessee.
At the time Yates was born Mrs. Gerrard had two daughters, aged two and three and a half. They saw a lot of Yates, often simply stopping by when they were out running errands.
According to Mrs. Gerrard, Yates interacted a lot with the girls and during his first year
there was nothing to suggest he had any problems. He interacted easily with the girls, playing peekaboo as well as passing the ball back and forth to each other. Mrs. Gerrard especially remembered Christmas 2000 as a happy time where Yates was interested in playing with everybody.
In January of 2001 there was an unusual snowfall in Tennessee and the girls dressed Yates up in one of their winter suits and they went outside where they showed him how to make snow angels and snowballs. Mrs. Gerrard did not notice anything unusual about his speech during his first year.
All of that changed after his first birthday. Yates went from being a joy to a terror. They wondered if the terrible twos had come early for him. Yates didn’t want to play with people, ran away from them, and she wondered if her brother and sister-in-law needed parenting classes.
Cross-examination of Ann Gerrard by Ms. Ricciardella – Attorney for Government (Respondent):
Ms. Ricciardella had no questions for Mrs. Gerrard.
Kind of tells you something, doesn’t it?
Direct examination of Aud Hazlehurst by Mr. Webb – Attorney for Family (Petitioners):
Mrs. Aud Hazlehurst is the paternal grandmother of Yates Hazlehurst.
Mrs. Hazlehurst lived just a few minutes away from her son and daughter-in-law in Tennessee. She saw her grandson all the time as the family is very close.
Mrs. Hazlehurst is Norwegian, and she often talked to her children and grandchildren in Norwegian. During the first year of his life Mrs. Hazlehurst spent a lot of time with her grandson. He appeared normal, interacting with his cousins and hitting appropriate milestones. In that first year he learned to say dada, “bubba” for bottle, and “pease” for please. Yates often spent the night at his grandparents’ house and usually slept all through the night.
All that changed after his first birthday. He seemed to be sick with a runny nose all the time and to be running a constant low-grade fever. He lost interest in his cousins and was always running away. On a family trip to Norway for a wedding in June of 2000 she recalled being very scared for Yates’ health because his belly was distended as if from famine and his ribs could clearly be seen. Yates also seemed to have swollen lyumph nodes.
Mrs. Hazlehurst kept asking her husband, a gastro-enteroligist to do something for their
grandson. He eventually got in touch with a doctor in England, Dr. Simon Murch, who recommended Dr. Buie at Harvard.
At the time Yates began constantly naming letters and numbers she thought he might be a
genius. She was also concerned that her talking to him in Norwegian might be behind some of his evident difficulty in normal speech.
Cross-examination of Aud Hazlehurst by Ms. Linda Renzi – Attorney for Government (Respondents):
Ms. Renzi first asked whether at the time she thought Yates felt hot she’d ever taken a temperature reading of him. Mrs. Hazlehurst replied that he was so squirmy that a rectal or mouth thermometer was impossible, and she found that the ear thermometers always seemed to give low readings.
When she took her own temperature it recorded it as several degrees below normal.
Ms. Renzi next asked whether she’d gotten her information about the gastro-intestinal problems of autistic children from the internet. Mrs. Hazlehurst replied she didn’t know how to really use the internet and had gotten her information from talking to people she knew.
Ms. Renzi had no further questions.
Direct Examination of Rolf Hazlehurst by Curtis Webb – Attorney for Family (Petitioners):
Rolf Hazlehurt is the father of Yates Hazlehurst.
During the first year of Yates’ life Rolf had no concerns about his son’s development. The only unusual event was that after his six-month vaccination Yates screamed for several hours with a sound unlike Rolf had ever heard before.
Rolf and his wife Angela were considering taking Yates to the emergency ward, but then he fell asleep and seemed to be fine the next day. A few days later his aunt Bert reported that Yates had some unusual trembling or shaking, as if he was cold. Aunt Bert saw two of these episodes and Angela saw a few.
According to Rolf his son’s language development was normal, but that all changed after his February 8, 2001 vaccination. He recounted that he felt that his son’s behavior was just a case of boys developing later. Mr. Hazlehurst then went over the behaviors Yates exhibited from the age of one until his diagnosis of autism at the age of two.
He also believes that when he visited with his son’s pediatrician at his 18 month well-baby visit that some of his answers were incorrect. When the doctor asked about specific instances of Yates development like speaking words, Yates had said words in the past, but they were declining by the 18 month check-up.
Cross-examination of Rolf Hazlehurst by Ms. Ricciardella – Attorney for Government (Respondents):
Ms. Ricciardella elicited from Mr. Hazlehurst that he didn’t call the pediatrician about the
several hour long screaming episode after Yates’ six-month vaccination. He believes his wife later reported this incident to the pediatrician, as well as the shaking episodes.
Yates is being followed by pediatric neurologist Dr. Corbier. Rolf obtained the name from a DAN (Defeat Autism Now) list of doctors provided by Dr. Bernard Rimland, founder of the Autism Research Institute. Yates was also seen by Dr. Zimmerman of Johns Hopkins Hospital.
Mr. Hazlehurst noted in an affidavit that Yates had chronic swollen lymph nodes, which his pediatrician said was common in children with autism. The pediatrician, Dr. Carlton Hayes, also said that the reported low-grade fevers were also common in autistic children and that his Yates’ high yeast readings were likely to be a sign of immuno-deficiency.
Concluding Thoughts on this Day of Testimony:
Regardless of what happened this was going to be a tough day for the defense. Ever since Dr. Bernard Rimland demolished the “refrigerator mother” theory of autism you just don’t get any traction blaming the parents.
You can claim the parents are misguided, but you can’t claim they were responsible.
This brings me to what I believe is the central dilemma of this case. While there are weaknesses to each side, the simple fact is that one side has a theory, and the other doesn’t.
As stated by government attorney Matanoski, these parents believe there’s a genetic subgroup of kids who don’t easily rid themselves of heavy metals, especially mercury. They get their vaccinations, and in return they’re vulnerable to the weakened viruses in the vaccines, specifically the measles virus, which causes neurological complications. Yeast and other micro-organisms might also be involved.
But the government really doesn’t have a theory of what causes autism. It’s a little like defending a murder suspect simply by saying he didn’t do it. It may be true, but people want more. If your client didn’t do it, they want to know who might have committed the crime. If you can’t throw suspicion on somebody else, they’re probably going to convict your guy.
And maybe that’s the right decision.
Kent Heckenlively has worked as an attorney, television producer, and is now a science teacher. He is the father of a daughter with autism.