Twenty-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)