Amicus Curiae Carson v. Health and Human Services
Autism One has weighed in on an important case in the appeals courts because of the manifest injustice worked by the Court in limiting a child’s legal rights.
Download Carson Amicus for Autism One as Filed
The Court, in which all vaccine injured have to make their claim for vaccine injury, imposes, inexplicably, the shortest and most inflexibly applied time limitation on filing a claim. In the so-called vaccine court, a child has only three years from the onset of symptoms of an injury to file a claim. In other kinds of injury claims, children usually can file up to the time they are 21 years old.
In the case in which Autism One has filed an Amicus Curiae (“friend of the court”) brief, Carson v. Health and Human Services, the child, Kit Carson, filed a claim more than three years after he supposedly experienced a speech delay. The Court found that Kit’s filing was untimely since the onset of symptoms of his autism - the supposed speech delay - occurred more than three years prior to the filing of his claim. The Court dismissed the case even though none of Kit’s doctors felt that the speech delay was related to or signaled the onset of Kit’s injury, later diagnosed as autism, among other diagnoses. A judge who dissented from the opinion finding Kit’s claim untimely, noted that none of Kit’s doctors identified autism as beginning with a possible speech delay, also finding that speech delay is not necessarily part of the onset of autism. As the dissenting judge wrote. Kit Carson lost his right to bring a claim before he or his parents could have known he had a claim. Autism One believes this circumstance is manifestly unjust. As stated in the dissent in Carson v. HHS, “A limitations period cannot start to run before the existence of the cause of action that it limits.”
We thank Robert Krakow, Esq. (quoted above), founder of EBCALA, who filed and coauthored this brief (with coauthors Susan Lee and Helen Sturm), for this work on an important legal issue on behalf of children and families. “Thank you” also to Bob for working from the beginning of the process preceding the Chicago 2013 conference to bring together politicians for the discussion on information key to vaccine-injured children.
Thank you for this action. I'm perplexed at how a court can rule something such as speech delay as a first sign of vaccine injury, but no such information is provided to parents prior to consenting to a vaccine. It's funny how things these become facts when convenient but otherwise "unscientific" coincidental correlations that are irresponsible to connect to any vaccine.
One might think, the medical community would oppose such denials of justice. It's not like the "vaccine program" would want all parents who vaccinate and see such delays in their children to file a claim just to be prepared for the worst, though maybe that would actually be appropriate. Maybe most cases of speech delay in the U.S. have a vaccine role and maybe these "delays" often impact the individual adversely for life. As things are the entire vaccine program at best operates in a state of grotesque informed consent violation.
Posted by: Jeannette Bishop | November 14, 2013 at 12:17 PM
1. Thalidomide
A judge made a surprise ruling in a Philadelphia court on September 27, 2013. Some persons who were hurt by the drug thalidomide say that new evidence shows this drug could cause birth defect on one side of the body, as well as (more famously) bilaterally. They never knew until now that they were thalidomide victims so could not have sued. Instead of dismissing the case on the basis of statute of limitations, the judge is allowing it to go to discovery phase. Plaintiffs say the files of the drug company may show that the company knew of the unilateral birth defects.
2. Tolling of SOL
Please note that I am not a lawyer. It is my understanding that the “tolling” of the statute of limitations begins when any “legal disability” is removed. Every child has youth as a legal disability. So, if she reaches her majority at age 16, her disability is lifted on that date. Thus, if the civil action is one for which the state has a three-year statute of limitations, she has until age 19 to sue. I don’t know what the deal is if the guardian had sued on the child’s behalf. Logically it seems the child would not get a second chance. (See Gallop v Cheney for interesting case!). Benedetta, is that what you mean?
3. Dissent in Wyeth
Justice Sonia Sotomayor, with Justice Ruth Bader Ginsburg joining, dissented in Bruesewitz v Wyeth on February 22, 2011, regarding a disability from DPT vaccine. Sotomayor argued that Congress in the 1986 Vaccine Act did not intend to prevent lawsuits being filed against manufacturers in STATE court. In my opinion, she proves that it is a wrong judgement, by Scalia et al, to deprive a party of the right to sue, as the Act did not call for that. (I also believe that had the Act called for that, it would have been an unconstitutional law and hence void, but that is not needed here.) The following is from Sotomayor’s dissent:
“The plain text and structure of the Vaccine Act thus compel the conclusion that §22(b)(1) pre-empts some—but not all—design defect claims. Contrary to the majority’s and respondent’s categorical reading, petitioners correctly contend that, where a plaintiff has proved that she has suffered an injury resulting from a side effect caused by a vaccine’s design, a vaccine manufacturer may invoke §22(b)(1)’s liability exemption only if it demonstrates that the side effect stemming from the particular vaccine’s design is “unavoidable,”…
The Committee [that decided in 1987 how the compensation would be funded] emphasized that “there should be no misunderstanding that the Act undertook to decide as a matter of law whether vaccines were unavoidably unsafe or not,” and that “[t]his question is left to the courts to determine in accordance with applicable law.”
[The law] exempts vaccine manufacturers from tort liability only upon a showing by the manufacturer in each case that the …side effects stemming from the vaccine’s design could not have been prevented by a feasible alternative design that would have eliminated the adverse side effects without compromising the vaccine’s cost and utility.
II The majority’s argument [also] … ignores that the default rule under the Vaccine Act is that state law is preserved. As explained above, §22(a) expressly provides that the “[g]eneral rule” is that “State law shall apply to a civil action brought for damages for a vaccine-related injury or death.” Absent a clear statutory mandate to the contrary, there is no reason to think that Congress intended … to eliminate the traditional incentive and deterrence functions served by state tort liability in favor of a federal regulatory scheme providing only carrots and no sticks.” [end of quote from Sotomayor dissent, 2011]
4. Murder and Treason SOL
For most crimes there is a statute of limitations, but not for murder and treason. Interestingly, the 1986 Vaccine Act, which is codified at 42 US C §300aa, holds that the drug manufacturers’ exemption from liability does not apply if they engage in “fraud,” “intentional and wrongful withholding of information” from federal regulators, or “other criminal or illegal activity” 42 USC 300aa 23(d)(2).
Of course, even someone who is statutorily exempt from liability for civil damages is never exempt – never – from prosecution for crime. Please see my website ProsecutionForTreason.com.
Posted by: Mary W Maxwell, PhD, LLB | November 13, 2013 at 09:43 PM
Bob;
Nope they can not.
I made sure that I busted my gut on this before my son reached age 21 -- becausse every year since that encephalopathy event there has been something new and different, and terrifying -- esp during the teen years.
So no they cannot sue on their own behalf. The vaccine compensation court as that locked up tight too.
Posted by: Benedetta | November 13, 2013 at 06:22 PM
I share Nancy's appreciation for Robert Krakow, Esq., EBCALA and Autism One for spotlighting injustices of the National Vaccine Injury Compensation Program -- particularly the unfair three-year statute of limitations.
Please understand that I am not accusing PARENTS .. including my own family .. for not filing a claim on behalf of their child during the very limited .. by deliberate legal design .. the "statute of limitations" .. that PARENTS are being held liable for.
I would like to ask if a CHILD who reaches 18 or 21 years of age .. (my 14 year old grandson) .. can then file a claim of injury for THEMSELVES .. arguing it is not THEIR fault that their PARENTS did not file a claim during the arbitrary three year "statute of limitations" period?
In other words .. is there legal precedent for a CHILD .. the injured party .. who becomes legal age to sue for themselves .. can argue they ought not be held accountable for the failure of their parents to meet the established "statute of limitations" of their childhood .. that effectively prevented the parents from doing so?
Posted by: Bob Moffitt | November 13, 2013 at 05:38 PM
My thanks to Robert Krakow, Esq., EBCALA and Autism One for spotlighting injustices of the National Vaccine Injury Compensation Program -- particularly the unfair three-year statute of limitations.
When pediatricians say "he'll grow out of it" year after year, young vaccine injury victims are denied the compensation that pays for the early intervention therapies and biomedical treatments that provide the most success.
It's disgraceful how medical trade unions have collaborated with government and industry to misinform consumers and block information about vaccine injury symptoms and treatment, ensuring that more cases occur and more victims suffer.
Even now, the pharma-funded group Every Child By Two has alerted subscribers to contact Congress insisting that the VICP works just fine, vaccine injuries are "rare," and "false claims" and "fringe groups that have had their day in court" are trying to "derail the system."
Also ECBT asks writers to use intros that may or may not be true: "I am a concerned parent", "My child contracted a vaccine preventable disease", "I am a public health advocate and witnessed the outbreaks", "I fear that the increase in vaccine exemptions in my community may put children at risk."
Imagine these same ever-so-caring public health people writing that automobiles are safe and victims of sudden acceleration and exploding gas tanks do not deserve compensation for their health damage because automakers will be driven out of business and people could no longer drive.
Posted by: nhokkanen | November 13, 2013 at 04:40 PM