Autism Litigation ane the Vaccine Injury Compensation Program (Part 2)

In a February 6, 2007 letter from our attorney in Florida, we found out that after a year of argument and debate, the special masters had decided to hold a series of hearings on each of the three various potential causes of vaccine related autism. They directed the petitioners' attorneys (us) to designate "test cases" that were representative of the children whose injuries were a direct result of the exposure to Thimerosol and the MMR vaccine. The test cases would be tried in sequence beginning June 11, 2007. So much for our day in court. Out of 5,300 cases, only six would be heard.

Medical records from each claimant were collected, reviewed, and analyzed by our attorneys to determine which cases best represented the claims that the vaccines had caused our children's autism. It was assumed that if there was a favorable outcome in the test cases, the government would then agree that vaccines had injured our children as well and compensate us accordingly.

In August of 2007, our Florida attorney handed our case off to an attorney in Kentucky. Our new attorney had found (in the hundreds of thousands of pages of discovery) a Merck inter-office memo dated in 1991. Merck manufactured and sold the MMR, DPT, HIB, and Hepatitus B vaccines, with the preservative, Thimerosol.

The problem discussed in the memorandum: "The key issue is whether thimerosol, in the amount given with the vaccine, does or does not constitute a safety hazard." 

Merck was aware that the mercury found in Thimerosol might constitute a safety hazard in 1991! And here is the conclusion of the Merck memorandum:

"If 8 doses of thimerosol containing vaccine were given in the first 6 months of life (3 DPT, 2 HIB, and 3 Hepatitis B) the 200 ug of mercury given, say to an average size of 12 lbs., would be about 87X the Swedish daily allowance of 2.3 ug of mercury for a baby of that size...It is reasonable to conclude...that thimerosol should be removed from single-dose vials when it can be removed, especially where use in infants and young children is anticipated."

Merck inter-office memorandum, 1991. (Emphasis mine.)

They knew. They knew. But the special masters refused to allow our lawyers to present this evidence. Why? 

By the way - how many vaccines did your children get in their first six months of life? My children all had a lot more than eight.

In 2008, Hannah Poling, a child of about Joey's age, was awarded $1.5 million for the first year (and $150,000 for each year thereafter, up to $20 million) after she received nine vaccines in one doctor's visit that immediately resulted in marked Encephalophy and autistic symptoms. Her case was severe and clearly related to receiving the vaccines. Prior to her visit to the doctor, she was a healthy, vibrant, engaged child. Three days after the visit and the nine vaccinations, "she developed high fevers, stopped eating, didn't respond when spoken to, began showing signs of autism, and began having screaming fits. In 2002, Hannah's parents filed an autism claim in Vaccine Injury Compensation Program court. Five years later, the government settled the case before trial and had it sealed."

The problem with Hannah's award was that the government conceded that autism had resulted from those nine vaccinations she received in one day (before the 5300 cases that had subsequently been filed came before the special masters in the VICP court). A concession is different from a determination by a court after a trial. 

"In Hannah’s case, the Department of Health and Human Services advised the Department of Justice not try her case and to compensate Hannah for the injuries incurred after her vaccinations.  The public did not find out about the concession until journalist David Kirby wrote about it in the Huffington Post on February 25, 2008. In a sense, Hannah was the first autism/vaccine injury case on record to be reconciled even though her case did not go to trial.

We have many questions as to why the government would concede this case before trial and rule against others that had similar evidence."

Because Hannah's case was conceded and did not go to trial, the other @5,300 families still waited on the special masters to make a ruling on our individual cases. In February 2009, the first decisions were handed down. The special masters found no relationship between autism and the vaccines. All in all, six test cases were eventually argued before the VICP court and six cases were found not to be related.  Because these cases were dismissed with no ability to appeal (because this was not an actual "court"), the remaining petitioners could choose to bring their cases to the VICP independently or quietly walk away.

In an order entered by the Office of Special Masters in the United Stated Court of Federal Claims (that kangaroo court referred to previously), the court wrote, "The decisions in the test cases are not binding on other petitioners in the OAP (Omnibus Autism Proceedings) who claim that vaccines cause ASD (Autism Spectrum Disorder). However, unless petitioners have different evidence or theories not presented in the test cases, the results in the test cases indicate that the instant claim is unlikely to be successful."

We had evidence; the court refused to even look at it.

Our lawyers recommended that we withdraw from the vaccine litigation in February of 2011 and we agreed to do so. There was really no point to our continuing when they had already said there was no chance that we would win.

The problem I have with the decision is that the six test cases weren't fairly tried in an actual court and therefore were not bound by constitutional rules of law. The VICP was developed to protect vaccine manufacturers from huge jury awards to keep them researching, developing, and manufacturing vaccinations. These vaccinations are then mandated by the government to be given our children before they are allowed to attend school. (I was late on one of Joey's vaccinations by a few days and the school made me pick him up and get him vaccinated before they would let him come back. If I wanted him to be in school, I had no choice but to get the vaccines.)

I want to state here that I am not anti-vaccination. Do I believe that the vaccinations caused Joey's autism? I have absolutely no idea because we were never allowed to investigate the outcomes of the studies that would have told us whether or not there was a link. There was no access to the databases that had the information we needed because they were controlled by the HMO's. They were not accessible to legal discovery by our attorneys because we were not suing them in a "real" court of law, because we couldn't sue them in a "real" court of law.

There may not be any link between vaccines and autism. But if there isn't, why did the special masters concede Hannah Poling's case before it could be heard by the VICP and why were we not allowed to look at the outcomes of the studies which would have indicated there was no link?

Almost ten years after filing our initial claim, we no longer had any legal recourse to find out if vaccines caused Joey's autism.

Stay tuned for part 3...the end of the story.