There’s an old story about how people act when they’ve made up their mind and don’t want it changed. A guy goes to his neighbor’s house and asks to borrow his lawnmower. The neighbor says he’s really sorry but he lent it to his cousin. The guy replies he just saw the lawnmower in the neighbor’s garage as he was walking over. The neighbor responds, “What does the reason matter? I’m not going to let you borrow my lawnmower anyway.”
Reading the decision in the Cedillo appeal gives me a greater appreciation of that story. It doesn't seem to matter what's presented, the Special Masters are still going to deny any connection between vaccines and autism.
The Cedillo case depended a great deal of the identification of the measles virus discovered in an intestinal biopsy taken from Michelle Cedillo and analyzed by the Unigenetics Laboratory of Dr. John O’Leary. The court agreed that “the general reputations of Unigenetics and Dr. O’Leary are good.” (P. 11) It also agreed that the reliability of the Unigenetics Laboratory was “the single-most critical issue in the case.” (P. 10)
There was discussion of other studies, namely the Uhlmann study which supported the finding of a measles infection in the guts of children with autism, and the Afzal and Souza studies which did not support those findings. The main criticism of the Uhlmann study by the Souza group was the contention that they used primers which were not specific to positively identify the measles virus and mistakenly identified human genetic material as the measles virus. There were other criticisms of the Unigenetics findings, raising questions of DNA contamination and reliability.
In a legal case each side will generally say that the other side’s evidence is not reliable. It’s to be expected.
On the issue of DNA contamination, though, the testimony was pretty clear that DNA contamination is an issue only if there are relatively low numbers of the virus detected. Michelle Cedillo’s test results showed high levels of the measles virus, and thus even from the testimony, should not be something cited by the Special Masters in their review. On the issue of reliability, it’s curious that while the court admits that the general reputation of the lab and Dr. O’Leary are good, they unaccountably failed in this instance. (Author's note - The U.S. government later hired Dr. John O'Leary to set up two labs for the Hornig/Lipkin study on the prevalence of the measles virus in the guts of children with autism. Amazing how one day the government is trying to destroy your reputation and soliciting your help on another.)
But the expert witnesses for the Cedillos also had their opinions on the Afzal and Souza studies. (The Afzal and Souza studies went against the claim that the measles virus was related to autism.) They noted that those studies relied on red blood cells rather than a gut biopsy for running their tests. The Cedillo experts claimed that the measles virus wasn’t replicating in blood cells, only in those areas like the gut and the brain, causing both the digestive and cognitive problems. But doing intestinal biopsies on children with autism is one of the very procedures which got Dr. Andrew Wakefield in such trouble, resulting in claims he was performing unnecessary procedures.
And this is where the independent judgment of the court is supposed to come in. One side says you didn’t perform the tests the way you should. That's fair game and deserves to be explored. The other side says, you can’t find the measles virus in the red blood cells of affected children, only in the gut which you can biopsy, or the brain, which short of an autopsy, is exceedingly difficult. You should consider that claim as well.
But that didn't happen in the Cedillo case. The Special Masters accepted one side, and paid no attention to the other. I acknowledge these are confusing issues, but where's the evidence disputing the claim that measles virus is not present in red blood cells, but only affected organs? The Court acted as if these issues weren’t even worthy of consideration. And if Dr. O'Leary's lab was so incompetent in detecting the measles virus, why did our own government later hire him to set up two such labs?
A similar narrowness of vision was present in other parts of the decision. The third criterion to be satisfied to obtain recovery is a “proximate temporal relationship between vaccination and injury.” The medical records for Michelle Cedillo are actually quite compelling in establishing a short time period between her vaccinations and the development of her problems.
“A May 2, 1997 letter from an Arizona neurologist, Dr. William Masland, deserves particular mention. After examining Michelle Cedillo on May 2, 1997, Dr. Masland noted that Michelle lost her speaking ability after her post-MMR fever episodes. He further stated ‘it would appear that there was some neurological harm done at the time of the fevers.’ He added, ‘whether this was a post-immunization phenomenon or a separate occurrence, would be very difficult to say.’ The Special Master concluded that Dr. Masland’s letter, at most, speculated as to whether the MMR vaccine was causing Michelle’s neurologic abnormality and did not constitute an opinion that the MMR vaccine caused Michelle’s autism.” (P. 20-21)
This last sentence turns the standard for recovery on its head. It wasn’t the role of the neurologist to say the MMR vaccine caused Michelle’s autism! He was acting as a physician, an independent observer, noting the timing of various occurrences and his own opinion. Since the linking of vaccines to autism is probably the most contentious issue in medicine today, it seems as if he was being cautious, but thorough. The decision as to whether vaccines are linked to autism rightfully belongs to either a court, or medical research done pre and post vaccination for children who are normally developing and those with autism.
How can the court claim it was the place of the examining neurologist to assert this was definitely a vaccine injury? That would have been too great a presumption for him to make. He was merely preserving a record, not settling the most controversial issue in medicine. If he had said the MMR shot definitely caused Michelle Cedillo's autism I have little doubt the Special Masters would have thrown out his report as being without proper foundation.
As an attorney I can't overstate the importance of the impartiality of the court in determining the truth of a claim. There's nothing more corrosive to a society than injustices which are allowed to continue. It's little surprise that many protesters who feel themselves to the be the victims of injustice carry signs which read, "No justice, no peace!" Injustice tears at the very fabric of society.
I know this will be disputed by some, but the fault in Cedillo wasn’t with the evidence, or the way the attorneys presented the case. The fault was with the Special Masters and may lie in a prejudice that even they don’t fully appreciate.
Like the neighbor who doesn’t want to part with his lawnmower the Special Masters don’t want to acknowledge that vaccines may be linked to a condition which in twenty-five years has gone from 1 in 10,000 to 1 in 100. It doesn’t matter what we present to them. That lawnmower will still stay in the garage.
If there's any good to be found in the denial of the Cedillo appeal and others it's that there's no longer any need to remain in Vaccine Court. The claims can now move into the civil trial system with more favorable rules of discovery and evidence. I know the attorneys and their families must be both financially and emotionally exhausted but I strongly urge this effort to continue.
I believe a change in neighbors, from the Vaccine Court to the regular civil trial system, can bring us our long-sought justice. It's what the pharmaceutical companies have been dreading for more than 20 years. They created the Vaccine Court to keep us out of civil court.
It is now within the power of those representing these cases to make the worst nightmares of the pharmaceutical companies come true.
The full text of the opinion is HERE.
Kent Heckenlively is a Contributing Editor to Age of Autism