Legal Bombshell in Autism Omnibus Proceeding!
By Kent Heckenlively, Esq.
In what can only be described as a legal bombshell, the government has withdrawn two of its three expert reports claiming that thimerosal has no connection to autism. The expert reports are from Dr. Thomas Clarkson and Dr. Laszlo Magos, two world-renowned in the field of toxicology, who have been working in medicine from the late 1950s and early 1960s.
A PubMed search under Clarkson lists 21 published articles concerning mercury and Magos worked for the prestigious Medical Research Council Laboratories in England, as well as co-authoring 4 articles on mercury with Dr. Clarkson.
In fact, Drs. Magos and Clarkson have been such cheerleaders for mercury that their work is high-lighted on a curious web-site www.mercuryfacts.org which takes issue with the finding from the National Academy of Sciences that at least 60,000 children in the United States are at risk from prenatal exposure to mercury from the consumption of fish by pregnant women.
The web-site is set-up by a group called the "Center for Consumer Freedom" and its research director is named David Martosko. According to a story by reporter Mark Matthews which ran on the ABC Channel 7 affiliate in San Francisco on May 3, 2006, Martosko was a music major in college, then an AM radio talk show producer before becoming the chief researcher for the Center for Consumer Freedom. The group came in for some harsh criticism in the story as being nothing more than a "non-profit front" for lobbying firms to "push their corporate message."
If this case was in the civil arena, the withdrawal of two expert reports of such magnitude would in all likelihood result in sanctions or a directed verdict. It's akin to two of the three alibi witnesses in a murder trial deciding to skip their testimony. There's no way to spin this as a positive development for the defense.
The withdrawal which is contained in a document on the court website and entitled “Order Concerning Theory 2 General Causation Rebuttal” sets out much of the procedural history, but leaves many vital questions unanswered.
Drs. Magos and Clarkson were apparently unwilling or unable to testify about the substance of their report which left the attorneys for the families having to call a witness to rebut the two expert reports. Surprisingly, the government then chose to withdraw the expert reports, leaving only the report and testimony of Dr. Jeffrey Brent, a scientist who has not devoted significant time to the question of mercury and autism. (At one point in his career it’s alleged that Dr. Brent claimed thimerosal to be as safe as “drinking water.”)
I spoke about these matters to Dr. Paul King, the science advisor for CoMed (web-site address www.mercury-freedrugs.org). According to Dr. King, at the time the reports were filed there were still significant questions about how mercury could harm the developing brain. The recent Peru study on hamsters, though, appears to be devastating, as well as the Texas study on the release of industrial mercury and autism rates, the Harvard papers on inflammation from the brain autopsies of people with autism, and the as-yet-unpublished study on monkeys which was presented at the International Meeting for Autism Research in London which was the subject of a previous article in Age of Autism by Dan Olmsted (Click HERE.)
But with the publication of these articles and others which the scientific community knows are ready for publication, Dr. King was of the opinion that the claims made in the expert reports could no longer be maintained.
I also spoke with David Geier about this latest development and he also agreed that this was knocking out some of the government's strongest pillars that autism is not related to thimerosal. Geier considered it difficult to underestimate the near-legendary reputation of these two experts in the field of toxicology. Their apparent unwillingness to testify on these matters suggests they cannot sustain their previous assertion that thimerosal has nothing to do with the autism epidemic.
An e-mail request to Dr. Clarkson asking for a comment on the withdrawal of his report has gone unanswered.
Although the parties are continuing to submit motions and it appears unlikely that there will be a decision this summer, the withdrawal of these reports are likely to have profound consequences.
Kent Heckenlively is Legal Editor of Age of Autism.
It is my understanding that as long as you meet the statute of limitations(which remains subject to various interpretations)by filing 3 years from when the autistic symptoms were noticed,then win or lose in vaccine court you can sue pharma in a civil court with a jury deciding the verdict.
My bet is any jury hearing the crap that was presented in the vaccine court,that the government put forth as proof would overwhelmingly rule in favor of the damaged children.
Posted by: Richard | July 19, 2008 at 12:42 AM
The Statute of Limitations clock starts at the "onset of symptoms" and this can be intrepreted differently, particularly if it has taken a long period of time to determine what is going on with your child, to find a doc that is willing to even consider the vax as a culprit, and to find a doc with the ability to make a diagnosis. This is a powerful tool for the gov't to time-bar claims and people need to be aware that the moment they believe their child has suffered a vax-related injury they must file paperwork with the system! Too many people are being denied because of the SOL and it needs to be changed! Also, you can't go to civil court unless you've gone throught the Program and it is much harder to prove your case in civil court. The Program requires a preponderance of the evidence of an injury which is described as "50% and a feather" and civil court has a much higher standard. The option of suing in civil court isn't nearly as appealing as most would like to believe.
Posted by: mom2 | July 18, 2008 at 01:24 PM
THANK GOD!
My heart jumps for joy for all the families of autistic kids out there. I pray you see your side of the story aired out for all the world to see. You are an amazing group of people and deserve nothing but the best.
Teresa Holler www.holler4health.com
Posted by: Teresa Holler | July 17, 2008 at 06:06 AM
to Laura:
the clock on the statute of limitations starts ticking from when the first symptom appeared. not when child was diagnosed, or vaccinated, although a lot of kids symptoms started within days of vaccination.
Posted by: Fed Up | July 16, 2008 at 11:23 PM
How does the statue of limitatioans work? Is it three years from vacinations or 3 years from arriving to a diagnosis?
Posted by: Laura | July 16, 2008 at 10:18 PM
My guess is that their is an army of lawyers licking their chops just hoping they can file a civil suit against Pharma on this one.Once they bring the evidence before a jury the families of the injured will own Pharma.
Posted by: Richard | July 16, 2008 at 02:22 PM
Kieth,
I think the Secial Masters have done the families a great service by including the following stement in their letter to HHS:
Mr.Powers then stated that the peititioners might wish to file a motion that certain unspecified inferences be drawn from the respondent's decision to withdraw the reports of Dr.s Magos and Clarkson. As we noted during the conference, we will certainly consider any such motion."
This shows that the Special Masters are themselves open to the question of "What the hell is this all about?".....
Tim
Posted by: Tim Kasemodel | July 16, 2008 at 02:21 PM
Kent
is there anything in those reports that could come back to bite them and help our side as the reason for being thrown out?
Or is there something there that if/when some/all of these cases are taken to a civil court would hurt the vaccine companies defense?
I wonder a similar thing about them not dragging the Polings through the process. That there could be something there they don't want to bring to the public record.
Posted by: Keith | July 16, 2008 at 01:54 PM
The rats are scurrying for the exits right quick. Who can blame them? Between Poling, Healy, the airing of reality in the Omnibus proceedings, these guys would be crazy to go down in history defending the indefensible. At least they had the sense to figure this out.
JB
Posted by: JB | July 16, 2008 at 01:05 PM
If they play the statute game or primo medical documentation game there is always civil court.
Posted by: Holly M. | July 16, 2008 at 12:05 PM
"I'd bet that a bunch of the cases currently filed could be thrown out on a strict interpretation of the statute of limitations"
Fed Up:
This issue is currently *being addressed* and would benefit my own child (who is a part of the 5,000) if it succeeds.
UndertheRadar
Posted by: UndertheRadar | July 16, 2008 at 10:18 AM
Well, Kent, you made my day! When facts and reality make it too hard for "them" to dance around the issue, we are getting closer. Wonder how the other side is tsking this news?
Teresa
Posted by: Teresa Conrick | July 16, 2008 at 10:03 AM
They may draw some very stringent guidelines for autism as a table injury. A few families will be able to meet the burden of proof set forth by the special masters, but most will not. This approach by the special masters, in their minds, could satisfy all involved. Keeps the medical establishment happy, shuts up most of us autism folks, and makes the govt. happy. This is where the 3 year statute of limitations can work in their favor, this in conjunction with strict medical proof, could limit the damages and satisfy both sides at the same time. I'd bet that a bunch of the cases currently filed could be thrown out on a strict interpretation of the statute of limitations, and a bunch more could be thrown out for not having enough medical proof of injury, labs etc. So they may be able to whittle down the 5000 number to a couple of hundred.
Posted by: Fed Up | July 16, 2008 at 09:41 AM
"Although the parties are continuing to submit motions and it appears unlikely that there will be a decision this summer, the withdrawal of these reports are likely to have profound consequences"
So, when might a verdict reasonably be expected? And what form exactly will a verdict take? Will it be to compensate these families, and then to allow the other cases in to be heard individually?
Thanks for the great update.
Posted by: Jack | July 16, 2008 at 09:10 AM
This is the biggest news since the Poling case. The silence is staggering.
Posted by: Fed Up | July 16, 2008 at 08:41 AM
Interesting assessment.
Isn't that Dr. Peter King cited in the article actually D.r Paul King, or is there another Dr. King that I had just not yet heard of?
How do you know that Clarkson and Magos are behind the www.mercuryfacts.org website? I didn't see their names anywhere on the website. Not questioning your facts, just curious to know more about these guys are and their
involvement with that website.
Sue
Posted by: Sue | July 16, 2008 at 08:14 AM