Perhaps one of the biggest surprises from what Mr. Powers has seen and heard in his interactions with the Department of Justice lawyers is that the pharmaceutical companies do not seem to be closely monitoring these cases, or otherwise directing the defense.  He thinks the reason is that the liability shield which has been erected by the Vaccine Court makes the pharmaceutical industry feel relatively secure that even if they lose, the resultant penalties will be an amount they can afford.

Mr. Powers has also been impressed at the thoroughness with which the Special Masters have been going through the voluminous medical and scientific research provided by the petitioners.  As an example, petitioners recently sent the Special Masters an updated list of medical and scientific information comprising more than 200 journal articles.  One of the Special Masters called up and said that it appeared that article 167 was missing a page two and a page four.  Their questions have also been well-informed and it appears they understand the case which is being made for vaccine injury.

One issue which has come up recently is that one of the cases set for review is likely to be settled by the government.  According to an e-mail posted on the web-site for the Autism Omnibus Proceeding by Mr. Powers, “Within the last week we learned that respondent is conceding one of the potential cases that vaccines caused the “significant aggravation” on an underlying condition.” 

When I questioned Mr. Powers about whether this was a possible break in the case, he replied that the particular case dealt with a claimant who had a diagnosed mitochondrial disorder.  As a result, it probably won’t have much of an effect on the other cases.

Mr. Powers generally felt good about the conduct of the proceeding.  He thinks there’s a strong chance that several of the cases will receive favorable judgments and that could get things moving pretty quickly for the rest of the claimants.  Although he originally thought the Special Masters would have their decision in February or March of 2008, he now thinks it more likely to be somewhere in May or June.

I asked Mr. Powers what he thought would happen in the legal and political realms if there started to be favorable judgments in some of the cases.  Although he thought it unlikely that the immunity shield provided by the Vaccine Court would be breached, he thought it likely that pressure would build to open up those who could file under the statue of limitations.

Like many people, more than three years passed after my daughter started to have her problems before I even considered that vaccines might have played a role.  Therefore, I was outside of the statute of limitations as many other families are.  Mr. Powers thought there would be a window of time for people to file their claims, after which the class would be closed.  He also thought that if judgments started to come back in favor of parents and their families that the pharmaceutical companies would kick in additional money to keep the program going out of fear that these cases could end up in civil courts.

Although there is a lot that is unusual about the forum of the Vaccine Court (like the inability to compel discovery of relevant documents), there are certain advantages.  For example, the award given to a family isn’t subject to attorney’s fees (often at least 1/3 of the recovery in most cases), and it won’t be subject to insurance claims for reimbursements.  The money will go to help our kids.

On a personal note, I can’t help but feel that true justice for our kids is still being denied.  In a just system these claims would be in civil courts, where attorneys would able to compel the discovery of relevant documents, call people to the stand, and let a jury of our peers render a verdict.  The drug companies know what a disaster that would be for them. We would win such a fight.  That’s why the pharmaceutical companies hide behind the shield of the Vaccine Court.  It’s difficult for me to put into words how deeply this injustice eats away at my respect of the law. 

There’s an ancient Roman maxim which goes justitia fiat, ruat coelum, which means, let justice be done, though the heavens fall. We are still a long way from that ideal.

However, we owe a great debt of thanks to people like Thomas Powers who are waging this legal fight for us under very difficult circumstances.  They are powerful warriors on a difficult battlefield and they deserve our respect.

Kent Heckenlively is the father of a daughter with autism. He has worked as an attorney, television producer, and is now a science teacher.