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The Cedillo Appeal - Mary Holland is a "Friend" to the Court and Autism Community

Kent legal By Kent Heckenlively, Esq.

The autism community owes a great debt of thanks to attorney Mary Holland for putting together her excellent amici curiae (friend of the court) brief in the Cedillo appeal which can be found [HERE]. Ms. Holland was surprised to find there had never been an amicus brief in a vaccine case before the Court of Appeals for the Federal Circuit and was delighted with the 23 autism organizations who supported the brief.  She hopes that future issues concerning our community will generate a similar level of support.

A legal proceeding is a long process and sometimes it’s only in a brief such as the one that Holland put together that the outlines of what’s at stake, and what went wrong during the Omnibus Autism Proceeding become clear.

Michelle Cedillo was born healthy on August 30, 1994 and like other children at the time received twelve mandated vaccines containing ethyl mercury.  At her fifteen month check-up she received a measles-mumps-rubella vaccine and seven days later developed a 105 degree fever.  She also developed a rash.  As the months went by Michelle’s pediatrician noticed she was less verbal and continued to have a rash.  Around the time of her third birthday she was given a diagnosis of autism.  Now fifteen years old, Michelle cannot talk, walk unassisted, or care for herself.

Holland’s excellent brief recounts the history of the National Vaccine Injury Compensation Act of 1986 which was designed to ensure the vaccine supply, improve vaccine safety, and generously compensate vaccine victims.  Recovery was supposed to be based on certain criteria, such as a “temporal relationship between a vaccination and symptoms specified in a Vaccine Injury Table.” 


This point was made even more poignant by the fact that “Had the Cedillo family filed its claim three years earlier, in 1995, the Program presumptively would have compensated her for her encephalopathy, according to the Vaccine Injury Table.  By administrative fiat, however, HHS removed this presumption from the Table in March 1995, forcing Michelle and others to prove causation.  Although Judge Plager, in his dissent in Terran, eloquently explained how these changes violated the U. S. Constitution, he did not carry the day.”

As for the intention of the 1986 Act to advance the cause of vaccine safety the brief notes, “While 46 doses of nine new vaccines have been added to the Centers for Disease Control vaccine schedule, only one new symptom has been added to the table of injuries.”

Without doubt the single most important piece of physical evidence in the Cedillo cases was the finding by the Unigenetics Laboratory of Dr. John O’Leary of the vaccine-strain of the measles virus in a sample of intestinal tissue from Michelle Cedillo.  Holland’s brief stated six reasons why this evidence should be deemed reliable.

1.    All parties agreed that Dr. John O’Leary is a highly respected, leading scientist in the field of polymerase chain reaction (PCR) testing.

2.    The government witnesses, Drs. Bustin and Rima, were experts in previous hearings in the United Kingdom on a potential MMR-autism link and had been highly paid for that testimony by vaccine manufacturers.  Holland believed their strong affiliations with vaccine manufacturers should have been weighed against their claim of no link between vaccines and autism.

3.    Dr. Bustin’s testimony on the O’Leary lab was based on an inspection of lab notebooks which were not available to the Cedillo lawyers.  (Note – In traditional civil trials it's against the rules for all materials not to be available to both parties.)

4.    While Dr. Bustin was critical of procedures at the O’Leary laboratory, he only contested the accuracy of low levels of inflammatory markers.  Michelle Cedillo had “high copy numbers” for inflammation.

5.    Two reputable independent labs, Dr. Finbar Cotter’s London laboratory and Dr. Michael Oldstone’s U. S. laboratory, replicated the O’Leary lab results.  Replication by two additional labs is considered the standard for reliability in scientific testing.

6.    The O’Leary lab books that Dr. Bustin used for his testimony showed the O’Leary lab used both positive and negative controls.  Dr. Bustin could only point to a single episode of contamination in the lab, while experts for both sides agreed that contamination occurs in every laboratory.

Holland also did an admirable job in bringing up the issue of the denial of access to the Vaccine Safety Datalink.  “Although the Petitioners’ Steering Committee insisted that acces to the government’s best national vaccine safety data in the Vaccine Safety Datalink (VSD) was essential to the development of the test cases, Special Master Hastings never agreed to subpoena that critical, taxpayer-financed information to which HHS had access.  Furthermore, the Petitioners’ Steering Committee sought to obtain documents from various manufacturers in discovery, showing that they had been concerned about mercury in vaccines long before Dr. Wakefield.  Special Master Hastings denied such motions for discovery.”

There were additional issues brought up by Ms. Holland, such as a ten-fold mathematical error by government expert witness Dr. Rima in the Snyder case which caused him to declare the results for Michelle were “completely and utterly biologically implausible.”

All of these issues, though, are secondary to the central issue of Holland’s appeal, and to the frustration so many parents and medical professionals believe in regards to the entire vaccine compensation program.

The issue is whether the Vaccine Injury Compensation Program exists to compensate victims or to protect the integrity of the vaccine schedule.  Holland believes no better example exists than when Special Master Hastings “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.’”

An address in March of 2008 by Chief Special Master Gary Golkiewicz explored the tension between these differing goals in greater detail:

“We all know from the legislative history, Congressman Waxman, a primary architect of the Program, stated at several Congressional hearings, the purpose of the program is to promote receipt and production of vaccines by protecting manufacturers and administrators from liability, but also to compensate those who suffer from a vaccine-related injury.”

“However, Congressman Waxman also articulated a competing policy concern.  I call it protecting the vaccine’s integrity, and that is that vaccine does not cause every injury that follows immunization.  There’s a tension between these two objectives, a tension that affects dramatically the litigation of the cases, the parties’ argument and ultimately who wins.”


In arguing that autism seems to be “legally taboo” to the Special Masters, Holland wrote: “The Special Master and the Court of Claims perhaps denied Michelle’s petition because one of her vaccine-induced injuries was called ‘autism’.  While special masters have compensated many cases in which the petitioners’ injuries included autism, these awards, in name, were for mental retardation, acute disseminating encephalomyelitis (ADEM) resulting in Pervasive Developmental Delay/Not Otherwise Specified (PDD/NOS) and autistic-like symptoms with an underlying mitochondrial disorder.  To rule in Michelle’s favor is to reaffirm that vaccines are not harmless, and that they do sometimes cause adverse reactions.”

In concluding I want to give you the first paragraph of Ms. Holland’s argument in which she alludes to the twenty-three autism organizations who supported the brief, where we find ourselves today, and what she hopes will become the focus of research in the future.  I believe it may be one of the best single pieces of writing about autism I’ve come across.

“As organizations, we represent or serve the one and a half million people in the United States who have an autism spectrum disorder.  Autism is the fastest growing developmental disorder in this country and includes: (1) impairments in social interaction, (2) impairments in verbal and non-verbal communication, and (3) stereotypical restricted or repetitive patterns of behavior and interests.  For decades, the autism prevalence was four to five per ten thousand children.  In December 2009, the Centers for Disease Control announced that the rate among eight-year-olds is now 110 per ten thousand, or approximately one percent of all U. S. children.  As Dr. Thomas Insel, Director of the National Institute of Mental Health and Chair of the Interagency Autism Coordinating Committee said in light of these new numbers, “There is no question that there has got to be an environmental component here.’”

For the sake of the children we already have and the children yet to be born, we need to find that component.  I pray the courts do not stand in the way of that goal.


Kent Heckenlively is Legal Editor of Age of Autism

Comments

Randy

Talented, passionate - understatements. You're not making it easy to laugh at any lawyer jokes... :-)

I think this item is particularly interesting:

"...Special Masters may not 'cloak the application of an erroneous legal standard in the guise of a credibility determination and thereby shield it from appellate review'..."

I wonder how this finding, loosely translated (don't shoot the messenger just 'cause you don't like the message) would apply to other players in this ongoing saga, especially all the lazy journalists out there taking a dump on Wakefield. They can kick him all they want, but what's happening to Michelle and her family is far far FAR more damaging to the trust in vaccines and public health bureaucracies in general than anything Wakefield ever (or, for that matter, never) said or did. Looking into the events surrounding the injury to Michelle, as Mary has eloquently summarized in this brief, an obvious message emerges - if the "program" harms your kid you are basically screwed. As the brief suggests, this message may be set in stone if the appellate process doesn't make things right.

Michelle and her family are a symbol of courage. The Omnibus via the Special Masters, on the other hand, certainly seem to symbolize little more than "misguided policy over law".

Fed Up

Eli Lilly Thimerosal MSDS June 13, 1991
"Exposure to mercury in utero and in children can cause mild to severe mental retardation and mild to severe motor coordination impairment."

PAGE 89 Day 6 - June 18, 2007, Cedillo hearing
Q: And you mentioned retardation. If I'm understanding your slide correctly,
70 percent of people with autistic disorder also have mental retardation of some form?

Dr. Fombonne
A: Yes. Mental retardation is a correlate of autism which is significant. This figure
is for autistic disorder. For PDD and the rest, it's not very well known, probably less
than that. But for autistic disorder, it's about 70 percent."

Mr. T

In an article in Science, March 4,1977, Jonas and Darrell Salk warn that,"Live virus vaccines against influenza or poliomyelitis may in each instance produce the disease it intended to prevent... the live virus against measles and mumps may produce such side effects as encephalitus (brain damage).

Louise Kuo Habakus

All - please read the brief so you can understand the combination of talent, experience, training and passion that Mary brings to the table. She is a Harvard- and Columbia-educated, NYU law school professor. And I'm proud to be her partner in crime (truth).

Benedetta

Cherry:
I will try to remember that next time. But really there was so much to say in such little time. I never even got the chance to ask how her daughter-in-law and her son both with epilepsy and both reacting to vaccines --- got together!!!! I guess that makes me nosey to want to know.

What little time we had she was questioning me what I thought her family's rights were to keep her grandson from getting his vaccines.

Teresa Conrick

To Jen in TX:

The big issue with your hypothesis of 1970's lead and autism now is that lead has always (and much more before the 70's,) been around. It is less now due to parents and their efforts through legislation to get, not only the levels down in the environment, but also those in a child that signify *danger*.

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2212280/

Parents are again, pulling the alarm on toxic mercury , as well as aluminum. What is so hard to understand about that?

Jenny

To Jen in Tx: Good Point, lead could definately play a part. I believe a report recently came out of Cincinnati following kids through to adulthood that showed that even after lead levels decline in the brain, the brain never goes back to the original "norm." I'm not sure what it does to the rest of the body, immune system, etc., but it seems unlikely that it would only affect a brain. Adding more neurotoxins on top of that via vaccines could be just the straw that breaks the camel's back. I know that some colleges require vaccinations or proof of vaccinations, which means there could be population of men and women being vaccinated starting maybe 5 to 10 years prior to parenthood. How long would cumulative heavy metals affect the immune system, could they still be affecting those men and women by the time they bare children? Do they wear off by the time the men and women hit their 30's? That's why I'm interested in how the number fall in the study for people in their 30s.

omnibusted

With regard to the issue of the court acting as "protector of the vaccine program" Judge Sweeney addressed this in her decision (pg 56-59)found here: http://www.uscfc.uscourts.gov/sites/default/files/SWEENEY.Snyder081109a_0.pdf

In addition, the oral argument, captures the tone and flavor of the interaction with Mr. Powers the best.

Sounded to me like Judge Sweeney was not too happy with petitioners assertion.


ftp://autism.uscfc.uscourts.gov/autism/aoa.html

candace

so very true burd, but i would include waman and all pharma and goverment who lived the good life knowing they poisioned a generation of kids..i laugh when i hear politicians say we must lead in the US in science and math..ect..who is going to lead when the children are brain injuried and sick at such alarming rate and the rest sent to war..the only ones who will make it are the children who parents quit vaccinating..unbelieveable! i thank the cedillo and mary holland for standing strong against this corrupt system. candace

Jen in TX

"Of course I think examining levels of aluminum and mercury in mothers at various age ranges would be helpful insight, and could be examined compared to various maternal vaccinations over those years."

My goodness, somehow it always comes back to vaccinations, doesn't it?

Frankly, if metal exposure is an avenue we should be looking at, it seems as though LEAD would be a far more plausible possibility, since a lot of those older moms giving birth in recent years would have grown up in the 1970's with lead based paint and gasoline.

Cherry Sperlin Misra

To Benedetta, This is an interesting account! Please do tell people like this to start today helping themselves by avoiding mercury through fish, dental amalgams, vaccines and high fructose corn syrup - and if they are interested further, they could avoid lead and aluminium too. This will help their bodies to eliminate the mercury already there.

Jennifer Keefe

I couldn't agree more. I am honored to have Mary as part of our community and to call her a friend.

Jenny

Off topic question: I read today some research coming out of UC Davis stating age of mother as it increases, increases the risk of autism in the child when the woman is in the 20's and father is >40 (though they don't know why and it could only account for 5% of the 600% increase in autism in California.) However, I am not understanding any information from it re: when both parents are in their 30s. It would seem that most parents are relatively close in age, as opposed to spread out. Of course I think examining levels of aluminum and mercury in mothers at various age ranges would be helpful insight, and could be examined compared to various maternal vaccinations over those years. If anyone reads it and gains insight re: the 30 somethings, I'd be interested in hearing your opinion.

Gatogorra

There's a "tension between these two objectives" all right.

I never knew that Waxman was so blatant about the program's purpose to "promote" receipt and production of vaccines by "protecting" manufacturers and administrators from litigation.

Promoting commercial products, protecting industry as opposed to protecting the health of children and protecting individual rights. I'm sure there's a name for that-- something to do with oligarchy.

Many thanks to Mary Holland, the courageous Cedillos and the organizations supporting the brief on behalf of all children's health and rights-- something not currently considered by the vaccine court process as it is.

Benedetta

I spent out 1000 dollars between three different lawyers and got no where. Just money down the drain. Maybe I should have spent another 1000 dollars - or even 2,000 but I had to decide if this money should go toward justice or toward medical stuff, or even keeping a roof over my family.

Ignorance of the whole justice - legal system was my bane, and I would say it is for the majority of those parents of vaccine damaged kids.

I visited a health department recently and talked to an older woman that came in with her daughter-in-law and little grandson.

Her pretty daughter-in-law had a strangness in her eyes - I could see the whites at the bottom of them and I thought she was on some sort of drug.(she was - and epileptic drug)

The grandmother had stained caloused hands so I took a chance and asked her what she had been doing - she ran a berry farm and it was blackberry season. She had to stop and drive her daughter-in-law into town (since she has epilespy from a vaccine shot) to the health department - she said her son who was also damaged by a vaccine use to epilepsy too, but was better -it had changed to extreme anxiety instead.

I did not ask what they were doing at the health department but I was told by the grandmother it was not to get any vaccines for her grandson, they were very picky what the the baby would get.

I suppose they had no money for medical help either.

So how was this woman who runs a blackberry farm supppose to get legal help. She was angry about what had happened, but scared of the legal system. She was afraid a lawyer would take what little she had. And although I have found some very decent, hardworking, idealistic, wonderful people who are lawyers there are plenty out there that are not. Getting justice in America is at best a crap shoot for most Americans, and I do not know enough about it to even know how the problem could be helped,

I think though that going through the federal government instead of helping has ended up being one more confusing hurtle that only a hand full of lawyers do understand.

Lawyers easy to find are those that know about drug reactions - they know that system, but vaccines hiding behind the federal government court stumps them.

Theresa Cedillo

Kent - Thank you for brining attention to the talent and dedication of Mary Holland. I hope everyone realizes what a blessing it is to have Mary in our community.

As always - thank you Mary for being right on target.

Darian (nickname)

Something is awfully fishy here. Why would they choose those with ties to vacine maufactors be asked to testify against this case? Goes to my thwory that more than just the legislative branch of goverment are bed fellows with big pharma. Or Big Pharma holds money over thier heads like I would hold a treat for a dog to jump up and get.

So to such goverment and to these individuals who would deny justice I say "Jump doggy, come on, get the big green! Jump doggy!"

Perhaps I am to harsh?

david burd

Mary Holland's brief before the Court of Appeals for the Federal Circuit is a brilliant beacon, presenting truth and facts, and the incoherent conflicting arguments of professionals who are blind to the terrible dangers of vaccine ingredients. Only blind belief, and/or paid to stay blind, can "educated" doctors ignore the abundant evidence of vaccines' damage.

For 100 years and the generations that lived through it, the Industrial Revolution rained indescribable toxins on the local citizenry - and autistic kids were essentially non-existent.

For a decade starting 1944, literally millions of tons of DDT and other pesticides heavily polluted the food supply of America and other countries - and autistic kids were essentially non-existent in the children of these generations.

Starting after WWII, toxic, dense layers of smog generated by vehicles settled over the most heavily populated regions and were inhaled by scores of millions of parents and their new children - and autistic kids were essentially non-existent.

From time immemorial many medical papers exist that do cite specific examples of infants being poisoned (and dying) directly attributed vaccines such as diphtheria or tetanus or small pox - but virtually no autism per se, though permanent brain damage to innocent kids was common.

But, when new vaccinations/immunizations began to rise exponentially 30 years ago, to the present rivers of toxic soups injected into just-born infants, did also arise in tandem the onslaught of autism and all the other horrific bowel disabilities and such as autoimmune afflictions and life-threatening allergies.

I am, in fact, a rocket scientist. But it does not take a rocket scientist to understand the deadly dangers of vaccine ingredients - it merely takes honest evaluation. Which is not possible when such Dr. Thomas Insel has clearly sold his soul to the pharmaceutical devil.

Pierre Morin


Dear Kent

While reading your brief on Mary Holland legal action, I remembered something I wrote a very long time, in the naivety of my youth.

“ There are circumstances when individuals will face extra ordinary events and hardship. Some will bow to these circumstances and accept their condition, while others will endeavour to respond to these seas of troubles in an extra ordinary fashion”.
Pierre Morin 1976

It is quite clear that this affirmation of my youth can be reflected in the day-to-day action of Parents of autistic children, but it also clear that Mary and Theresa bring it to a new level, \\

Pierre Morin

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