Action For Autism

RFK, Autism and the Vaccine Court

The Kennedy name still resonates with liberals and democrats around the world. So when Robert Kennedy weighed in on the vaccine-autism controversy with his article Deadly Immunity a lot of people took notice. Unfortunately for RFK some of them actually took the trouble to read the Simpsonwood transcript on which he based his tale of conspiracies and cover-ups and discovered that he had systematically distorted it in order to make it seem that it said the exact opposite of what it really said.

On that occasion he was promoting the idea that the miniscule amounts of mercury that used to be found in early childhood vaccines could cause autism. He is back again with another article promoting the vaccine autism connection. This time he has the US Court of Federal Claims (aka the Vaccine Court) in his sights.

RFK operates from a simple set of premises.

• The Vaccine Court exists to protect the vaccine program and vaccine makers.
  
• It employs a draconian armory of weapons deployable against plaintiffs intent on proving the causal connection between vaccines and autism.
• The standard of proof in the OAP is impossibly high.
• The CDC has actively, openly and systematically suppressed and defunded epidemiological studies that might establish a causal link. So the special masters in the vaccine court have to find for the government because of insufficient evidence.
  
• It’s Tobacco all over again only now it is the government and big pharma instead of the tobacco companies who are the villains. He even calls the studies that contradict his meanderings “tobacco science.”
  

Every one of his premises is wrong.  If it was just the case that  RFK does not know what he is talking about it would be a simple matter to educate him. But, just as with Simpsonwood, he has studied the evidence and twisted it to match his agenda.

RFK on the CDC

Let us start with his most outrageous accusations against the CDC, that they are actively suppressing research and funding junk science to protect the vaccine programme. He offers no evidence at all for this claim. He does not cite a single study that has been thwarted or quote from a single disgruntled whistleblower. The CDC funding comes from the federal budget and is subject to scrutiny and oversight by the Appropriations Committee. This year they are gently chided for spending so much time on autism research and reminded that cerebral palsy is in danger of being neglected.

The Committee is pleased with CDC’s progress in autism and developmental disabilities surveillance and is encouraged to learn of the launch of the largest ever epidemiologic study of potential causes of autism spectrum disorders. The Committee encourages CDC to build upon these successes and to also focus on the development of surveillance and research activities focused on cerebral palsy, another priority public health concern. (Page 110)

This will not please RFK. He wants vaccine studies not epidemiology. But that is being taken care of. The Appropriations Committee again.

ITEM
Autism and vaccines — The Committee continues to be aware of concerns about reports of a possible association between the measles component of the measles-mumps-rubella vaccine and a subset of autism termed autistic entercolitis. There have been presentations at medical meetings by researchers presenting data showing the presence of measles RNA in inflamed intestines of children with autism. The Committee continues its interest in this issue and encourages the interagency coordinating committee to continue to give serious attention to these reports. The Committee is aware that research is underway, supported by NIH, and encourages NIH to expedite this research. (Page 168-169)

RFK objects to epidemiological studies because they are supposed to be too crude to pick up the tiny numbers of vaccine susceptible figures. What we need instead are case control studies. Never mind that we are also supposed to believe that there is a vaccine induced autism epidemic affecting tens of thouands of children. Never mind that it was epidemiological studies that nailed tobacco as a cause of cancer and later nailed passive smoking while the tobacco industry relied on case control studies and dubious lab tests. So much for “tobacco science.”

Never mind. There was a case control study done recently. Two of the researchers had been witnesses for the families in the MMR litigation in the USA UK. The lead researcher, Mady Hornig had authored a study on mercury that was used by the petitioners in the Autism Omnibus. Another member of the research team Ian Lipkin explained how “the autism/parent advocacy community” had been involved in the design of the study to “ensure that all issues were being addressed.” The study was condemned by the autism/parent advocacy community when the results turned out to be

“inconsistent with a causal role for MMR vaccine as a trigger or exacerbator of either GI difficulties or autism [...] The work reported here eliminates the remaining support for the hypothesis that autism with GI complaints is related to MMR vaccine exposure. We found no relationship between the timing of MMR vaccine and the onset of either GI complaints or autism.”

Of course the fact that some of the funding and participants came from the CDC and the NIH was enough to invalidate the study in the eyes of true believers who judge research by its results, regardless of the merits of its methodology.

Vaccine Court

The same holds true of RFK’s opinion of the Vaccine Court. When Special Master Abell finds in favour of Bailey Banks it is “a remarkably clear and eloquent decision.” When three special masters find against the  test cases in the Autism Omnibus they are guilty of a “sweeping ruling.” Later he berates the special masters for placing undue reliance on medical records which are (allegedly) “often inaccurate.” But Bailey Banks won his case because in his“remarkably clear and eloquent decision.” Special Master Abell repeatedly cited Bailey’s medical records as corroborating his claim. RFK is not above citing medical records in evidence. Here for example.

Medical records associated with these proceedings clearly tell the tale. In perhaps hundreds of these cases, the children have all the classic symptoms of regressive autism;

Medical records, like case control studies it seems, are only inaccurate when they fail to confirm your prejudices. Unlike RFK who is consistently inaccurate.

• RFK: Although the vaccine court is mandated to fairly serve the victims of vaccine injuries, their primary purpose and raison d’etre is to protect the vaccine program and vaccine makers.
• FACT: The VICP was established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines. The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines. The U. S. Court of Federal Claims decides who will be paid.
• RFK: Damages are capped; awards for pain and suffering are strictly limited and punitive damages banned altogether.
  
• FACT: Awards to the estate in a vaccine-related death are limited to $250,000 plus attorney’s fees and costs. Awards to individuals with an injury judged to be vaccine-related have averaged $1,022,699. There is no limitation on the amount of an award in a vaccine-related injury. However, the law does contain certain restrictions. Eg a $250,000 cap on pain and suffering. And how can you have punitive damages in a no fault compensation scheme?
  
• RFK Plaintiffs, in contrast, must fund the up front costs for experts on their own.
• FACT: If certain minimal requirements are met, the VICP will pay your lawyer’s fees and other legal costs related to your claim, whether or not you are paid for a vaccine injury or death. The VICP will not pay the fees of petitioners representing themselves, but will pay their legal costs, whether or not the claim is paid as long as certain minimal requirements are met. In effect, lawyers meet the up front costs of expert witnesses and bill the court at the end of the hearing.
• RFK: Worst of all — plaintiffs have no right to discovery either against the pharmaceutical industry or the government.
• FACT:
  (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by RCFC 26(b)(2)(C).

Vaccine Safety Database

RFK complains that the government is restricting access to the Vaccine safety Database to the detriment of plaintiffs. And so it should. The VSD contains over 7 million medical records. They are held by major private care organizations who have a duty to protect patient confidentiality. The VSD is not and never should be a happy hunting ground for vaccine injury compensation lawyers. Bona fide researchers should have access to the VSD but the antics of a pair of “researchers” who make their living as expert witnesses in vaccine cases has not helped anybody in this respect. As Casewatch reports.

In summary, during the first visit the researchers conducted unapproved analysis on their datasets and on the second visit attempted to carry out unapproved analyses but did not complete this attempt. This analysis, had it been completed, could have increased the risk of a confidentiality breach. Before leaving, the researchers renamed files for removal which were not allowed to be removed. Had it gone undetected, this would have constituted a breach of the rules about confidentiality.

MMR or DTP?

RFK states that

since 1988, the vaccine court has awarded money judgments, often in the millions of dollars, to thirteen hundred and twenty two families whose children suffered brain damage from vaccines. In many of these cases, the government paid out awards following a judicial finding that vaccine injury lead to the child’s autism spectrum disorder. In each of these cases, the plaintiffs’ attorneys made the same tactical decision made by Bailey Bank’s lawyer, electing to opt out of the highly charged Omnibus Autism Proceedings and argue their autism cases in the regular vaccine court. In many other successful cases, attorneys elected to steer clear of the hot button autism issue altogether and seek recovery instead for the underlying brain damage that caused their client’s autism.

The Omnibus was not established until 2002. So I doubt that many of these families opted out of its proceedings. As far as I know there are very few judicial findings that a vaccine injury led to an autism spectrum disorder. Kathleen Seidel found 9 cases which she reported on her Neurodiversity blog. If one looks at the statistics for the VICP it is apparent that there have been two spikes in petitions. The first occurred, reasonably enough in the first three years of the vaccine court and was overwhelmingly concerned with the old style DTP vaccine that was associated with encephalopathy and seizures. According to David Kirby the government sent CBS an email about these 1322 brain damaged children.

Slide 75

Email from HHS to CBS
Here are the numbers of compensable cases for encephalitis / encephalopathy and seizures in our database from October 1, 1988 to March 4, 2008.
Encephalitis/Encephalopathy    611
Seizure Disorders                     711
Total                                     1,322
There’s not much difference in the medical history and outcomes for children that were compensated for “encephalopathy” versus “seizures.”
Those compensated for encephalopathy often had seizures as part of their clinical picture, and vice versa.

How many of these were petitions for vaccine injury by the old DTP that had nothing to do with autism? It does not matter to RFK because he is trying to make the case that hundreds of autism claims have been settled that never mentioned the A word because to do so would bring down the wrath of the special masters upon you. He cites the unseen medical records as “evidence,” claiming that even though autism is not mentioned these records clearly show the pattern of regressive autism.

In fact autism has never been a barrier to claiming a vaccine injury. Bailey Banks attorney is quoted by RFK as saying that he decided not to go with the Omnibus because that would have made it harder to win. That is hardly surprising as in Bailey’s case a single incident of acute disseminated encephalomyelitis (ADEM) was alleged to have caused his problems. The omnibus was arguing for a persistent measles virus in the brain and never mentioned ADEM in any of the three test cases.

JFK’s other source is vaccine injury lawyer Robert Krakow.  But somehow, despite quoting him extensively, RFK never gets round to informing us that Krakow is himself the parent of an autistic child. He was intimately connected with the Omnibus for many years. In fact he was to be the replacement test case for Hannah Poling until he decided that the evidence for mercury causing autism was so weak that he jumped ship and is now pursuing his own claim for a vaccine induced mitochondrial disorder.

As to the alleged hostility of the special masters to autism claims, I am grateful to Anne who commented (no 5) on the Neurodiversity blog cited above as follows;

July 3, 2002 Autism General Order #1. There Chief Special Master Golkiewicz recounted how Cliff Shoemaker and other counsel for petitioners wanted to put the autism claims on hold pending scientific developments that they could use as proof of causation. Although the Special Master agreed to place the cases on hold, he forcefully reminded petitioners and their counsel that “[a]utism cases involving Table Injuries have been compensated under the Program,” and that cases like that should not be held up in the omnibus proceeding:

“One important caveat, however, is drawn to the attention of all petitioners and their counsel! There may be cases involving autistic-like disorders which manifested following an injury defined in the Vaccine Injury Table. That is, a vaccine may have suffered an episode involving a severe acute encephalopathy within 72 hours after a pertussis vaccination (DTP or DTaP), or 5 to 15 days after an MMR vaccination. If so, such an acute encephalopathy and any residual effects thereof would be presumed to be vaccine-caused pursuant to the Vaccine Injury Table. See 42 C.F.R. § 100.3(a) (10-1-97 version of CFR).5 However, this would apply only to cases falling within the current Vaccine Injury Table’s definition of “acute encephalopathy,” in which the vaccinee suffered a sudden, dramatic, and severe change in level of consciousness lasting at least 24 hours. 42 C.F.R. § 100.3(b)(2)(i)(A) and (D). The incident must have been “sufficiently severe so as to require hospitalization,” though actual hospitalization at the time need not have occurred. 42 C.F.R. § 100.3(b)(2)(i). Autism cases involving Table Injuries have been compensated under the Program. If in a particular case there exist medical records demonstrating that such a qualifying “acute encephalopathy” occurred within the appropriate time frame, petitioner or counsel should bring that to the assigned special master’s attention so that, if appropriate, the case can be processed without delay as a Table Injury.

Finally, petitioners should note that even after electing to have their case stayed pending the conclusion of the Omnibus Autism Proceeding, such election is not irrevocable. That is, if at a future time a petitioner determines that his own case should be separated from the Omnibus Autism Proceeding and processed separately, with the petitioner introducing case-specific proof of causation, such petitioner may request that a special master analyze his case. A special master will be assigned and the case will be processed as expeditiously as possible.”

(7/3/02 Autism General Order #1, pp. 6-8.)

So the special masters were inviting plaintiffs to submit claims for table injuries and bypass the Omnibus because they did not want children to suffer unnecessary delay in obtaining compensation, not because they were trying to cover up the alleged vaccine autism connection. Perhaps they remembered the previous spike in vaccine claimants when according to one attorney who spoke to Arthur Allen over a third of all claims had nothing to do with DTP. The government set the evidence barrier low and it was exploited. Predictably the government reacted and removed most of the injuries from DTP from the list that receieved automatic awards - the list of table injuries. And just to show how unworthy is RFK’s appraisal of the special masters as tools of the government here is another quote from Arthur Allen’s book. This time it is the senior special master, Gary Golkiewicz, commenting on the removal of DTP injuries from the table who told Arthur that the government had

“altered the game so that it is clearly in their favor. This group has a vested interest in vaccines being good. It does not take a mental giant to see the unfairness in this.”

So much for special masters as government stooges. I have had enough of RFK. I empathize with the commenter on his article who wrote that he never expected this to be the last piece he ever read by Robert Kennedy. I hope it is the last piece I ever have to read as well.

March 1st, 2009 Posted by Mike | MMR, autism Omnibus, journalism, vaccines | 7 comments