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Autism Organizations Unite in Brief to U.S. Court of Appeals for the Federal Circuit in Cedillo

Legal updateTwenty-three organizations sent a formidable message to the U.S. Court of Appeals for the Federal Circuit: enforce the law for vaccine injury compensation or acknowledge that this system is irrevocably broken.  Last week, these organizations filed an amicus curiae brief, or friend-of-the-court brief, in the case Theresa Cedillo, et al. v. Secretary of Health and Human Services ("Cedillo"), on appeal from the United States Court of Federal Claims, No. 98-VV-916.  The petitioners include advocacy organizations such as the Elizabeth Birt Center for Autism Law and Advocacy (EBCALA), as well as research organizations such as the Autism Research Institute.  A link to the brief and the full list of autism organizations signing it can be found [HERE].
 
In Cedillo, the Court of Federal Claims denied Michelle Cedillo's request for compensation, although many petitioners have received awards under the Vaccine Injury Compensation Program ("Program") in similar circumstances.  The organizations argue that the Cedillos were denied compensation because they said that their daughter's autism is a vaccine injury.  The theory of this first test case is that the MMR vaccine and thimerosal, the mercury-containing preservative, together contributed to Michelle Cedillo's autism.  As a supplement to the Cedillo family's briefing on appeal, the organizations provide the Court with another angle for consideration: that this case is actually a "test case" for the Vaccine Injury Compensation Program itself.
 
Indeed, Congress established the Program to provide compensation to those injured by vaccines “quickly, easily, and with certainty and generosity.”  The balance in the Vaccine Injury Compensation Trust Fund 75X8175 as of September 2009 was greater than $3.1 billion.  Congress intended the Program to create presumptions for “on-table” vaccine injuries that the Program would compensate administratively. The reality, however, has become adversarial litigation where special masters “protect” the national vaccine program rather than apply the law.  HHS has removed injuries from the Vaccine Injury Table.  Other injuries are not considered, despite the fact that 46 doses of nine new vaccines have been added to the CDC vaccine schedule. 


 
The Amici Curiae give examples how the Cedillo case exemplifies the prevailing conflict of interest in the Program between compensating victims and protecting the vaccine program.  One vivid example was when the Special Master in Cedillo abandoned his judicial role to opine that Michelle’s case was “one-sided,” that her doctors were “very wrong,” and that her doctors “are guilty…of gross medical misjudgment." The brief requests that the Court acknowledge that this type of language is biased and that the Federal Circuit review the entire record with neutrality according to the law.
 
Petitioners are not required under the Program to prove causation under the same standard that applies in most civil courts.  In fact, for "table" injuries, the Vaccine Compensation Act entirely removed the requirement that the victim prove causation and lowered the causation standard for all other cases.  Instead, the Program can find causation based on certain criteria, such as a temporal relationship between vaccination and symptoms specified in a Vaccine Injury Table or other proof.  If the table contains an injury or if the claimants meet the reduced causation criteria, the burden of proof should then shift to the government to show that the injury was “unrelated to the administration of the vaccine.”  However, for Michelle, one of her main diagnoses was encephalopathy, which HHS removed from the Vaccine Injury Table in March 1995 by administrative fiat.  Had the Cedillo family filed its claim three years earlier, in 1995, the Program presumptively would have compensated her for encephalopathy. In any event, the court's conclusion resulted in the burden of proof squarely remaining with the Cedillo family, allowing the government a "get out of jail free" card, not requiring it to state a reason, or even a suggested explanation, for her injuries.
 
The Cedillo family presented preponderant circumstantial evidence that the MMR vaccine contributed to Michelle's autism from treating physicians, medical experts, scientific literature, opposing experts and laboratory results.   There is no question, the Amici point out, that Michelle will require government assistance; the only question is where it will come from and whether it will be enough.  The Vaccine Trust Fund’s sole purpose is to compensate vaccine-injured victims for irreparable harm. To require the Cedillos to scrounge for scarce government resources to pay for Michelle’s vaccine injuries is not only irrational, it is profoundly unjust.  The organizations, therefore, look to the Federal Circuit to judiciously apply the law.
 
The Federal Circuit will hold oral argument sometime this spring and will likely rule before summer.  No matter which way the Federal Circuit decides, this case will have major impacts on the autism community and on the vaccine-autism debate in the United States.  
 
--Board Members of the Elizabeth Birt Center for Law & Advocacy (EBCALA)
 

Comments

Lisa @ TACA

There for the Cedillos

Benedetta

When you start reading the tables, you begin to understand how the government works. They make sure the critea is close, except for one or two little things that immediately eliminate everything else. It is a board game for them.

On top of this they elimnate lawyers, try finding a lawyer now or back then that knew anything about this, was probably two states away, and when a lawyer found out anything about this they were not eager to participate.

The temperature on the table was 102 and could not be a tenth of a degree higher. A pretty severe position to take.

And if that was not enough it had to be documented.

Michael Framson thanks for another word to describe hypotonic hyporesponsiveness. As far as the extreme sleepnessess it still did not matter that they could not wake my son up = they just let him sleep it off-after all it was ten o'clock at night when I brought him in, and he had had a big day, so he was just really tired. You know how infants are.

nhokkanen

Bravo! Michelle Cedillo and her family deserve justice. May it arrive swiftly. Kudos to all who crafted the language of the brief.

Theresa Cedillo

Our most heartfelt thanks to Mary Holland, the Elizabeth Birt Center for Law and Advocacy, the signing organizations, Age of Autism and Louis Conte.

The Cedillo Family: Michael, Theresa and Michelle

michael framson

Ginger, I don't know if this answers your question, but looking here: http://www.hrsa.gov/Vaccinecompensation/table.htm

Encephalopathy was given these qualifiers which WOULD NOT be symptoms of acute encephalopathy:
(E) The following clinical features alone, or in combination, DO NOT DEMONSTRATE an acute encephalopathy or a significant change in either mental status or level of consciousness as described above: Sleepiness, irritability (fussiness), high-pitched and unusual screaming, persistent inconsolable crying, and bulging fontanelle. Seizures in themselves are not sufficient to constitute a diagnosis of encephalopathy. In the absence of other evidence of an acute encephalopathy, seizures SHALL NOT be viewed as the first symptom or manifestation of the onset of an acute encephalopathy.

The reasoning for this is that if those symptoms were the criteria for "demonstrated brain involvement", then 75% of all the cases submitted to Vaccination Compensation Program would be awarded Compensation. The same 1995 rule also eliminated Hypotonic Hyporesponsive Episodes (HHE)and Residual Seizure Disorder(RSD) for the DPT.

Why would they do that, you may ask. Well, one of the hallmarks of a DPT reaction is HHE. Its a classic unmissable, unmistakeable DPT reaction. Something is really going haywire in a child. Again, you eliminate HHE and RSD and viola, DPT doesn't cause compensated-able reactions except in rare, rare, rare, cases of children vaccinated on Mars.

Robin Nemeth

Kristina,

Thank you. Going to the FDA's url that you've listed, I see that you are correct. I had thought that there were twenty five mcg of thimerosal, and that since thimerosal was half mercury well I figured I'd best err on the side of .. hmm, well 'caution' isn't the word I'm looking for. I guess I was just trying to be fair to the other side.

Honestly tho, lately, my main intention is just to get people to LOOK at the things the vaccine makers and health officials are saying. All they have to do is look a little bit and I'm hoping they can see that all of the contradictory nonsense has to mean that somebody's lying. I mean, it gets a little ridiculous listening to the pathetic nonsense they spew. For the past six years they've alternated back and forth between "there isn't any mercury" and "the mercury was never a problem, but it's been removed to humor the nutcases." And altho I know both statements to be untrue, even if I were wrong for heaven's sake why can't they make up their mind?

At any rate, I'm not getting paid to practice medicine, so try and fooking sue me. Ha.

Deborah (www.debstake.wordpress.com)

I saw the signing pages of the organizations that are supporting the petition to overturn Hastings obviously biased ruling and another prominent group is also missing from the list. A group founded by the late Bernie Rimland a group I stopped financially supporting years ago and apparently for good cause. The group?

The ASA.

Can anyone from the ASA (Jeff Sell and Lee Grossman you come to mind immediately) please address this obvious lack of support for one of our own??

Deborah (www.debstake.wordpress.com)

I saw the signing pages of the organizations that are supporting the petition to overturn Hastings obviously biased ruling and another prominent group is also missing from the list. A group founded by the late Bernie Rimland a group I stopped financially supporting years ago and apparently for good cause. The group?

The ASA.

Can anyone from the ASA (Jeff Sell and Lee Grossman you come to mind immediately) please address this obvious lack of support for one of our own??

Twyla

This is phenomenal.

Gatogorra

We're with the Cedillos all the way; these are the bravest people on earth. The initial decision was a perversion of justice. Thank God it's being addressed.

Kristina

Robin, the flu shots actually have 25 mcg mercury per dose.

For babies 6-35 months, it is true they get 12.5 mcg mercury per half dose, but they are given 2 doses, so it still comes out to 25 mcg. http://www.fda.gov/downloads/BiologicsBloodVaccines/Vaccines/ApprovedProducts/UCM182404.pdf

For kids ages 36 months to 9 years, it is even worse. They get a total 50 mcg mercury because they are given two full doses with 25 mcg mercury each. If they get both seasonal and H1N1, they get a total of 100 mcg mercury.

100 mcg mercury!!!!!! I can't believe how people have been led to believe kids aren't getting mercury in vaccines anymore.

Robin Nemeth

Oh yeah, I've been told by some that my bumper stick could be misinterpreted as being supportive of AS. I certainly wouldn't want that to happen and don't agree that it is, but should you have doubts, you might like this one better:

http://wideopenwest.com/~r_nemeth/peas.htm

Robin Nemeth

Jenny wrote: Out of 23 organizations signing, Autism Speaks not even listed? Wow.

And this surprises you?

I have a new bumper sticker. Anyone who'd like to can go here

http://wideopenwest.com/~r_nemeth/bumper_sticker_monkeys_flu_shot.htm

and print one up of their very own. (You buy the bumper sticker paper at any office supply store.) I cut mine lengthwise and put half on each side of my bumper.

I loathe this organization. I cannot help but see them as complicit.

Nora

To MB: Pg 42 of the document has the list of signers.

Boy andI am happy to see this. United Front for Autism. You can put a fist on that!
Get Autism Speaks to join and then we go international. AUTISM POWER! NEXT THE GMC!

Pamela

MB

The list of signers are on the last two pages

Jenny

Out of 23 organizations signing, Autism Speaks not even listed? Wow.

A Mom

Right Benedetta. A tax. Not paid by the people who made the faulty vaccines - the people who have refused for decades to clean them up, but by the parents of the children who are and may very well be vaccine injured.

What a deal the pharmaceutical companbies got for their crimes againtst humanity !!!! - On the backs of our children and families, taxpayers, and people who continuously have to pay rising insurance premiums.

Where is the outrage from the masses outside of the ASD - vaccine injured community?

Benedetta

Ginger;
A little after 1987 the table said that the child had to have a fever of 102.5 or 103 something like that.

AND it had to documented in the emergency room or by a doctor. DOCUMENTED!

THe emergency rooms at least in my little country town did not even keep records of who came into the emergency room nor did they even keep records of who was admitted to the hospital. CAN YOU BELIEVE THAT?!

Not only that but if the temperature was higher than 102.5 or 103 then the child did not qualify --- then they said it was a febrile seizure and not an injury from a vaccine. This is what happened six weeks after my child's intial reaction to a vaccine.

As far as the the intial reaction of encephalapathy - by the time I got to the emergency room my son was cool, sleeping like a normal little baby, peditricians acted like nothing really wrong with this baby, so they observed him over night and when he woke up the next morning -

"Well he is fine, go home, you crazy mom; but really you are so dumb, we should take this baby away from you, but since you are so dumb, MOM, well this baby really doesn't have a chance but to be probably real dumb too."

"OH, he was walking and now he only gets up to his knees, and when he tries and he has a really wide stance -- well some babies just do that."

"Oh, he has seizures, well it genetic, you, MOM have a poor memory - you told us that febrile seizures run in you family and your husband's family" Well Mom did not recall telling them this?????? OR it even being true????

"Oh, not babbling like he should, well we will help you get some speech thearpy in a few years if it continues" (The peds did not - I moved heaven and earth to find people to work with him, people that the peds should have known existed and sent us too right away, with out me hunting them down, and finding out after I spent 800 dollars for tuition into a plush pre-kindergarden class]

A few years later: "OH, he is not pedalling a tricycle? Well he does not want to probably" (No, he just sits on it all the time straining, and cries as he watches his sister pedal hers around the yard and down the street.)

Oh, I still have a raw nerve on this one.

Benedetta

A Mom;
My understanding is that there is a tax collected by the federal government for every vaccine child or adult receives, just for this purpose.

I am unsure who this tax it collected from?
Is it from the parents or from the drug company that supplied the vaccine?

BUT I DO KNOW:
This money is suppose to be in the bank waiting, but like every thing else the federal government touches this money is pushed around to other places where money is short supply within the federal government.

So, probably most of this money is over at the EPA helping pay the salaries of big brainy scientists studing ways to save tiger beetles, or little silver minnows, or Great Lake Water snakes

MB

I can't seem to find the list of signers -- can someone direct me to it?

A Mom

The pharmaceutical companies should have to pay for vaccine injuries and reimburse the government (for medicaid/medicare) as well as insurance companies who have covered the costs of vaccine injury. They make billions in profits every year and so far aren't the least bit scathed by the crimes against humanity they have perpetrated.

Why aren't taxpayers up in arms about this?

While I'm at it - lest we forget:
http://www.autism.com/triggers/vaccine/mercurylong.htm

Autism: A Unique Type of Mercury Poisoning
Sallie Bernard (sbernard@nac.net)
Albert Enayati, B.S., Ch.E., M.S.M.E.**
Teresa Binstock
Heidi Roger
Lyn Redwood, R.N., M.S.N., C.R.N.P.
Woody McGinnis, M.D.

Ginger Taylor

Encephalopathy was removed from the table in 1995? But it is listed on there now.

I am confused.

Terri Lewis

So in 1994, encephalopathy was recognized as a legitimate type of vaccine injury; in 1995 (after March) it no longer was.

And the reasoning behind this?

No scientific reasoning, merely an "arbitrary" decision--after all, the government can't begin to provide financial assistance to all the children and teens and young adults who have, as of this date, suffered vaccine injury.

Thank you for bringing this to light.

Fed Up

I read most of this brief, and Cedillo's attorney makes some very strong arguments. I think the Cedillo's will get justice.

Bob Moffitt

"However, for Michelle, one of her main diagnoses was encephalopathy, which HHS removed from the Vaccine Injury Table in March 1995 by administrative fiat."

Gee, I wonder if Toyota would like the opportunity to remove "sudden unintended acceleration" as a reason to recall millions of their autos?

omnibusted

What other products have/enjoy this type of LIEabilty protection? This is crazy- Is this still the u.s.a. ???

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