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.

Autism Litigation and the Vaccine Injury Compensation Program (Part 1)

After receiving 11 vaccinations containing the preservative, Thimerisol, in his first six months, our youngest son was diagnosed with autism. We tried to get to the truth about whether vaccines and/or the Thimerisol (mercury) preservative caused it. As you will see, there was no way to find out.

On June 19, 2002, an attorney in Florida filed our claim against the Vaccine Injury Compensation Program ("VICP"). We hoped to have experts who would investigate whether the MMR vaccine (measles, mumps, and rubella) and Thimerosol, the preservative which was used in (and subsequently removed from) most vaccines were the direct cause of our son's autism.

Almost 16 years later, we still do not know whether the vaccines caused or triggered Joey's autism.

Because the approximately 5,300 claims that were filed in the VICP were "tried" by three special masters appointed by the government, which in turn is paid vast sums of money by the insurance and pharmaceutical companies, we will never know. All vaccine injury claims in the United States must be filed in the VICP (in order to protect the health insurance companies, pharmaceutical companies and the doctors who administer the vaccines from frivolous claims and humongous jury awards). There is no trial, no judge, and no jury. The petitioners (us) were not given a chance to investigate the government's documents because the government decided what our attorneys were allowed to see and what they weren't. And then the special masters appointed by the government (remember, financed by the insurance and pharmaceutical companies - no conflict of interest there) decides whether there is a link.

As a concession to the "rights" of the victims of injury from vaccines, the government allowed the petitioners' attorneys to file for legal fees, which meant our lawyers were able to be paid for some of their work. Nine years after our case began and thousands of pages of medical records and documents filed later, our attorneys received just over $2,000. What an incentive to keep working, right?

The lawyers were greatly restricted in what they are allowed to see and what they were allowed to present. They were never allowed access to all of the documentation from the vaccine companies or the studies that were done regarding whether there is a link between vaccines and autism, which means they were fighting our fight with both hands tied behind their backs.

The litigation limped along. In August of 2005, our attorney wrote to tell us that some decisions had been made as to discovery and the government had provided approximately 180,000 pages of documentation, most of which related to product license applications (completely irrelevant to our claim, but they still had to be waded through). The attorneys continued to try to get study results and information on new research studies which were being conducted at George Washington University. They also were attempting to get "outcome" data relating to a 2003 study which had followed children who had been exposed to Thimerosol, but the government continued to stonewall our attorneys' efforts and they never got a look at any of those documents.

On August 9, 2005, we received a letter from our attorney which stated, in part,

"...it appears the government is playing "hide the ball" with the VSD (Vaccine Safety Datalink) data. The CDC no longer maintains the VSD, and instead pays millions of dollars per year to a third-party contractor to maintain the database; the VSD, therefore, is not longer in the "possession or control" of the CDC, and is not discoverable from the government...The VSD is now managed by "America's Health Insurance Plans," the national trade association for the HMOs! AHIP, in turn claims that it never "sees, touches, stores, or has anything to do with the actual data itself."

You can see why things were going slowly. Not to mention why nothing resembling real information ever had to be produced - the health insurance companies managed the database! The government had our attorneys chasing their tails. It had been three and a half years and we were no closer to an answer or a trial. Plus, we were still waiting on important scientific studies to be completed and published. It is my understanding that most of the children involved in this proceeding were around Joey's age. Of course, it would take years of following these children to determine scientifically whether there is or is not a link between the MMR vaccine, Thimerosol, and autism. We waited, along with thousands of other desperate parents, to find out if our son had been permanently damaged by the government mandated vaccine program.

We continued to seek treatment for Joey which was not covered by insurance, while our suit limped through the government's kangaroo court. That was a whole other fight that was finally won and health insurance companies are now required by law to provide coverage for autism treatments. Unfortunately, Joey was now 13 and much too old for those particular treatments to work. Fortunately, we got treatment through the school system and out of our own pockets. 

We were cresting the wave of the huge uptick in autism cases. Everything that we got, we fought for tooth and nail. Insurance companies are now legally mandated to cover autism treatments, but in 2002, it required ferocious advocating by parents to get the school systems and the insurance companies to treat our children.

Stay tuned for part two of this story. It's way too long for me to do in one post. 

Part one of three of a series on vaccine injury compensation.