The AP article by Mitch Weiss, Justin Pritchard and Troy Thiobodeaux reveals some of the flaws in National Vaccine Injury Compensation but ultimately misses the point; The NVICP has dismissed Congressional intent and devolved into a policy vehicle for the federal vaccine establishment.
It is true that attorneys representing petitioners have made millions of dollars. However, the Secretary of Health and Human Services altered the Vaccine Injury Table in the mid-1990’s and skewed the balance of the program in favor of the Department of Justice. This made the prospects of petitioner acting Pro Se (in their own behalf), virtually impossible. Cases are now intensively litigated and there is no way for petitioners to succeed without legal counsel who understand the program.
The journalists point to petitioners using expert witnesses of dubious credentials. The current state of affairs is that expert witnesses for petitioners are a dying breed. Why? The article tells you why; expert witnesses for petitioner often face negative consequences for saying that a vaccine caused injury – any injury. Note this excerpt from Harris v. Secretary HHS, No. 07-60V VACCINE CASE Filed: November 28, 2011
“Harris, 2011 WL 2446321 at *35 (emphasis added).
Dr. Kinsbourne’s unchallenged reference to written warnings of the manufacturer of the DTaP vaccine was not an “opinion” about the “toxoiding process,” he simply was repeating the manufacturer’s superior knowledge about those products. In addition, and more important, the Special Master’s condescending mischaracterization of Dr. Kinsbourne’s bona fides is out of line. Dr. Kinsbourne is not “ostensibly” a pediatric neurologist. See id. at *35.
No lesser academic institutions than Oxford University, Duke University Medical Center, the University of Toronto, Harvard Medical School, Boston University, and Tufts University have recognized Dr. Kinsbourne as an expert in this field, contrary to the views of the Special Master. Pet. Ex. 22 at 1-2.
The Special Master also misrepresented Dr. Kinsbourne’s current position in the New School in New York City, where he teaches neuroscience, not psychology, as the Special Master implies. Compare id. at 2 with Harris, 2011 WL 2446321 at *4.
Finally, the Special Master emphasized that Dr. Kinsbourne is “well-known” to special masters, because he testifies frequently in the Vaccine Program for petitioners. See Harris, 2011 WL 2446321 at *4.
Of course, the Special Master made no mention of the fact that the same is true of Dr. Wiznitzer. The Special Master’s proclivity to demean petitioners and their experts when he differs with their opinions is not unique to this case.
See e.g., Porter v. Sec’y of HHS, No. 2010-5162, 2011 WL 5840315 at **13-15 & n.4 (Fed. Cir. Nov. 22, 2011) (O’Malley, J. dissenting) (discussing this Special Master’s “remarkable” opinion for “the sheer number of references to credibility, demeanor and veracity” and character attack on an expert with whom he disagreed); Dobrydneva v. Sec’y of HHS, 94 Fed. Cl. 134, 147 (2010); Campbell v. Sec’y of HHS, 90 Fed. Cl. 369, 383-84 (2009).
The modest hourly compensation that physicians receive for rendering a professional medical opinion, based on decades of experience, does not compensate them for argumentum ad hominem disguised as “credibility determinations.” Professional careers of physicians are built and maintained based on their reputation in the medical community and among their peers. What rational, established physician would want to risk an assault on their credentials and professional standing to render an opinion in a Vaccine Act case under these circumstances?
The undersigned judge has seen other cases where knowledgeable physicians have declined to render a relevant, if not dispositive opinion, because they did not want to be subject to such “credibility determinations.” See Record in John Doe 21 v. Sec’y HHS, Docket No. 02-0411V (Dr. Lydia Eviatar, M.D., Professor of Pediatric Neurology at the Long Island Campus of the Albert Einstein College of Medicine declining to testify in remand proceeding before the same special master).
Allowing this type of unprofessional conduct to continue has had significant adverse consequences on the Vaccine Act Program.”
Note Judge Susan G. Braden’s closing comment again: “Allowing this type of unprofessional conduct to continue has had significant adverse consequences on the Vaccine Act Program.”
The AP journalists fail to note any of this clearly documented abusive conduct against petitioner experts. The issue isn’t that petitioner witnesses are controversial. The issue is that petitioner witnesses have been virtually hunted into extinction.
Weiss, Pritchard and Thiobodeaux correctly note that the program has wandered far from Congressional intent and even say why – the public health bureaucrats don’t want too many vaccine injury victims compensated because it hurts public confidence in vaccine safety. The program has never spent the money budgeted for publicity about the program because these bureaucrats want the program run in the shadows. The message is clear; this is not really the Vaccine Injury Compensation Program - it is the Vaccine Injury Minimization Program.
The journalists also note that one of the original test cases in the Omnibus Autism Proceedings (OAP) was conceded by the federal government – Child Doe 77. That this case was “pulled” from the OAP and the child was compensated because the vaccine injury “resulted in autism.” Why this incident doesn’t warrant the deeper attention of investigative journalists is curious, particularly in light of the findings in Unanswered Questions From the Vaccine Injury Compensation (Mary Holland, Louis Conte, Robert Krakow, and Lisa Colin, Unanswered Questions from the Vaccine Injury Compensation Program: A Review of Compensated Cases of Vaccine-Induced Brain Injury, 28 Pace Envtl. L. Rev. 480 (2011) Available at:http://digitalcommons.pace.edu/pelr/vol28/iss2/6).
In Unanswered Questions, Holland, Krakow, Colin and Conte (one of the authors of this commentary) identified 83 cases of vaccine-induced brain damage that included autism. This result was obtained by examining only a sliver of the compensated cases. It is important to note that Weiss, Pritchard and Thiobodeaux have received a substantial data base of cases from the VICP. In trying to understand the VICP, the authors of Unanswered Questions sought exactly this information from the federal government but were told that it would cost $750,000.00. The AP journalists have the data that the authors of Unanswered Questions sought.
After the concession in Child Doe 77, the Director of Division of Vaccine Injury Compensation (DVIC), Dr. Geoffrey Evans made the following statement, “There is this other side to compensation that we have to worry about, it’s not going to be long before there’s going to be public health consequences.” Did Evans conclude that it was going to be problematic for our government to continue its course of the current vaccination policy or was it problematic for our government to recognize that vaccine injuries do occur, cause serious side effects, and the failure of the government to conduct research and medical outcome studies of these injuries?
It is hoped that these journalists continue to dig because there is much more wrong with the VICP than just attorney fees. As the journalists indicate but don’t adequately emphasize, vaccine injury victims now face a hostile program that regards each petitioner as a threat to the policy interests of the federal government. Is justice for vaccine injury victims possible in this environment? Weiss, Pritchard and Thiobodeaux should spend more time on that unanswered question.
Wayne Rohde is the author of The Vaccine Court: The Dark Truth of America’s Vaccine Injury Compensation Program.