By Dan Olmsted
It was possible, walking out of federal appeals court into the bright sunshine in Washington on Thursday, to imagine Michelle Cedillo getting a fair shake after all – to imagine the three appeals court judges ordering the special master in vaccine court to review his rejection of her claim that vaccine injury caused autism, among other grievous harms.
It was possible to think that because the judges seemed downright appalled by the government’s reliance on an expert report from a sealed British proceeding without the “underlying data” – the laboratory books with actual facts and figures that would show whether the Irish lab run by John O’Leary was really as bad as the government witnesses said – that it couldn’t be trusted when it said it found vaccine-strain measles in Michelle’s gut.
“I have a very positive feeling about the federal judges,” said Sylvia Chin-Caplan, who argued the appeal.
“I leave with the sense that the judges were very troubled that the government had not acted in good faith,” said Mary Holland. “Those judges were very troubled by what the government’s done – very troubled.”
Photo: Michelle's uncle Philiip Cono and Attorney Sylvia Chin-Caplan.
Several times, members of the three-judge panel noted the vaccine court hearings were supposed to be non-adversarial and wondered why the government introduced the expert report without even asking the British court for the underlying data on which the report is based. The judges pointed out that this made cross-examination virtually impossible. Noting DOJ’s non-request, Judge Dyk said, “I find that a little strange,” and “that doesn’t look right, does it?” Ms. Ricciardella, the DOJ lawyer, asserted that the report was rightfully admitted and that had the underlying data been included, “it would have buttressed our case.” Judge Dyk smiled and asked, “How do you know that?” to laughter in the courtroom.
The three-judge panel is expected to rule in about a month. If the government loses, it could ask for the entire appeals court bench to hear argument. And even if it goes back to vaccine court, Special Master Hastings has already said he would have ruled the same way with or without the British testimony. (A sick irony is that the validity of O’Leary’s lab work has since been confirmed in a study that, supposedly, ruled out the MMR as a cause of gut disease in autism. They’ve got us coming and going, or so they think.)
But on this sunny June day it seemed better to side with possibility than pessimism. Theresa Cedillo could not attend because Michelle is not well, but her brother Phillip Cano spoke.
“Michelle’s not doing that well right now,” Cono said at a gathering at a nearby restaurant after the hearing. “She’s a trooper so I think she’ll hang in there.”
“We all need to remember we live in the greatest nation on earth,” he said, “and hope eventually there will be something very positive to come out of this.”
Said Mary Holland: “We’ll be back.”
Dan Olmsted is Editor of Age of Autism.