Intimidation in the Court by F. Yazbak, MD, FAAP

[Guest guest]

http://www.vaccinationnews.com/intimidation-court

Intimidation in the Court

Intimidation in the Court

Writers never want to bore their readers. After publishing

my original three papers on the Cedillo case, Double

Standards[1], Busting Rules[2]

and Translation in the Court[3], I felt it was time

to leave further discussion of the case to others.

I was flattered and certainly grateful when Stone kindly

mentioned the three publications in his widely read Age of

Autism[4] column on November 8, 2010. The many

comments that Stone’s column generated were very interesting; one on

November 10 touched a sensitive cord:

“The question should be asked not why Fombomme was

treated with such reverence but why the opposing views and the people are

treated to disrespect.”

The following comments will focus on what happened to the very

first expert witnesses who dared to testify for the petitioner in Theresa

Cedillo and Cedillo, as parents and natural guardians of

Cedillo v. Secretary of Health and Human Services - No. 98-916V.

Before doing that, it may be worthwhile to review the original

statement in the vaccine injury compensation law on how the

hearings were to be conducted[5]:

“… (2) The special masters shall recommend rules to the Court of Federal

Claims and, taking into account such recommended rules, the Court of

Federal Claims shall promulgate rules pursuant to section2071 of title

28. Such rules shall –

(A) provide for a less-adversarial, expeditious, and informal proceeding

for the resolution of petitions…” (p. 12)

“Less adversarial” and indeed often cordial was the way hearings

used to be conducted. I clearly recall my personal experience in

two vaccine injury compensation cases, not too long ago.

The first was in the fall of 2001, shortly after the 9/11 tragedy

when Court Houses were still closed for security reasons. I was the

medical expert for the petitioners, in a case where the infant expired

shortly after vaccination.

The hearing was held in a hotel suite in Boston and I drove up to

the hearing. The Special Master and her Executive Assistant had arrived

by train the evening before and the expert for the DOJ, a distinguished

professor of pediatric infectious diseases had flown in early that

morning.

The Special Master sat at the head of the beautiful large

rectangular wooden table, we sat with our backs to the large windows and

the DOJ team sat across the table.

Everyone greeted everyone else, the tone of the whole proceeding

was very civil and it was all over by mid-afternoon.

The Special Master thanked us all and adjourned the hearing. As we

started packing our laptops and documents, the mother of the deceased

infant, apparently touched by the proceedings and the way she was

treated, pulled out her camera and asked us to stand together for a

souvenir photograph. We were all somewhat surprised at the request but no

one objected. We walked around the conference table to join the Special

Master and the respondent’s team and the young mom snapped two photos, as

I recall.

The Special Master and her executive assistant immediately left to

catch their train to Washington, the attorneys and the family followed

and I stayed back to talk with the HHS medical expert. We certainly did

not feel like opponents. We were simply two physicians with similar

interests, talking cordially, and we felt we had just served justice ...

as best we knew how.

When we were done, I offered to drive my distinguished colleague to

the airport. He thanked me profusely and told me that a medical

school classmate was on his way to pick him up and take him out to dinner

before his evening flight. We shook hands and I told him how honored I

was to have met him at last. Looking back, the only marginally upsetting

experience that day was driving out of town at rush

hour.

My other case was in 2003 in Washington DC, coincidentally in

front of the same Special Master. The DOJ attorney was thorough yet soft

spoken and kind. The main expert for HHS was a knowledgeable and very

well trained pediatric neurologist from a nearby state who had over 400

children with autism in his private practice.

Here again, the proceedings were very civil, we were done by late

afternoon and everyone said Good Bye before departing.

I walked over to my “opponent” to shake his hand and we spent

several minutes talking about his practice and what he perceived as being

his greatest challenges.

When we were done, he must have known that had we not been

located 500 miles apart, I would have certainly asked him to accept one

more patient in his very busy practice, my own grandson.

These were the good old days … indeed!

Now let us fast-forward …

A few months ago, I presented two long and detailed reports about a

vaccine injury compensation case. The Special Master requested more

information about the references I cited and I added a third detailed

report.

The expert for the respondent, a university professor, responded

with a very long CV and a short report about the case that

included personal comments about me and about the fact that I had

published “five opinion pieces not important enough to have abstracts

attached” (very much like this one). Just for fun, I looked up his

Pub Med publications: 12 of his 27 articles had no abstracts

either.

Unlike the majority of vaccine injury compensation hearings, the

Cedillo case was heard in the Ceremonial Courtroom, National Courts

Building, Washington D.C; the three Special Masters faced the

audience and the legal teams sat at their own tables, DOJ attorneys to

the left and the petitioners’ legal team to the right.

The audience sat behind a beautiful and ornate wooden banister that

went across the room, the Government’s experts and guests on the left and

the petitioners’ on the right.

The Cedillo hearing started on June 11, 2007.

After opening remarks, the plaintiff’s attorney called her first

expert, Dr. H. V. Aposhian[6] to the stand. His

testimony was honest, accurate and understandable, in spite of

difficulties with the loud speaking system. When he was done, the meeting

was adjourned for lunch.

The following is a summary of Dr. Aposhian’s training and

achievements according to the EPA.[7]

H. Vasken Aposhian received a Sc. B. in Chemistry from Brown

University and an M.S. and Ph.D. from the University of Rochester. He has

been a faculty member of the Department of Pharmacology, Vanderbilt

University College of Medicine; Department of Microbiology, Tufts

University College of Medicine, and Department of Pharmacology,

University of land College of Medicine. Since 1975, he has been

Professor of Molecular and Cellular Biology and Professor of Pharmacology

at the University of Arizona. He has extensive research experience and

publications dealing with the toxicology of heavy metals, in particular

arsenic and mercury. This has included enzymology of arsenic

biotranformation; the study of human populations in Chile, Inner

Mongolia, Romania, Mexico and rural Southwest China as to their body

burden of arsenic or mercury; the human metabolism of chelating agents;

and the biochemical genetics in particular gene transfer in mammalian

cells. His laboratory, at present, is searching for biomarkers for autism

using the latest proteomic techniques and trying to decipher the

polymorphisms in the human gene for human glutathione-S-transferase-omega

a crucial enzyme that reduces arsenic species. His teaching

responsibilities involve teaching human toxicology to a small class of

seniors. Dr. Aposhian is a member of the Society of Toxicology; the

American Society Of Biological Chemistry And Molecular Biology; and the

AAAS. He has recently given invited seminars at the EPA, the Health

Realties Institute, WHO/NIEHS meeting on Environmental Health of Children

in Central Asia held in Amity, Kazakhstan, Grand Rounds of the Tucson

Medical Center and the Canadian Chemistry Conference.

Dr. Aposhian is on the Editorial Board of the American Chemical

society journal Chemical Research. He participated in the writing of the

NAS/NRC monographs on “Arsenic in Drinking “Toxicology Of Methyl

Mercury”. He has served on numerous NIH, EPA and FDA ace Research

Foundation (NIEHS) and the Autism Research.

I do not think one needs to be a Ph.D. to concede that a

distinguished scientist with this education and achievements was

qualified enough to testify as an expert on mercury toxicity anywhere in

the world.

When the hearing reconvened, the Attorney for DOJ started her

cross-examination.

Now again, this was an important hearing and a high profile case;

the courtroom was full, and hundreds of people were listening by phone.

Furthermore, the transcripts were definitely going to be reviewed and an

appeal was certain regardless of the decision. After all, 5,000 cases

depended on the outcome of this and the other two test cases.

Yet right out of the gait, the DOJ attorney fired an intimidating

question only intended to get the witness rattled and “off

balance”. (p. 117)

Q. Good afternoon, Dr. Aphosian. Dr. Aphosian, you are not a medical

doctor are you?

A. Could you speak louder? I can’t hear you. Please?

At this moment, plaintiff’s attorney interrupted to inquire who the

gentleman sitting at the Respondent’s counsel table was. She was told it

was Dr. Brent.

[ Brent, MD, PhD, a medical toxicologist and Clinical Professor of

Medicine at the University of Colorado, testified for the

respondent.]

It should be mentioned that it is quite unusual for an expert

witness to be at counsel table when an expert for the other side is

testifying; yet this happened again and again during these proceedings

but never in the plaintiff’s corner.

Q: (Repeated) “Dr. Aposhian, are you a medical doctor? (p. 118)

A: No. I'm not.

Q: Are you a medical toxicologist?

A: It depends how you define the term medical toxicologist. What is your

definition?

Q. My definition would be someone who has an M.D. and an expertise in

toxicology.

A. I am not a medical toxicologist.

Q. Are you an immunologist?

A. I am not an immunologist…

Q. You are not a neurologist. Is that correct?

A. I am not an M.D., so I can’t be a neurologist.

Q. You don't know how measles virus affects the brain?

A. I spent 10 years of my research studying virology. I have papers

published in the Journal of Virology. I was the first one to show that a

virus could transfer genetic information that was not in it

originally…

Q. You are not a geneticist, are you?

[At home, listening comfortably, I smiled and whispered

“oops”]

A. I am considered to be a biochemical geneticist. The man I worked with

for three years at Stanford University got the Nobel Prize for studying

while I was with him, for determining how DNA was synthesized and was the

first one to synthesize an active - a biologically active DNA molecule.

So from the year 1959 after I also went to Tufts University School of

Medicine to teach to 1967 I was strictly a biochemical geneticist…

A while later, the attorney came back: (p. 124A)

Q. Have you ever treated or diagnosed a person with any form of

ethyl mercury toxicity?

A. I am not a physician so I would not treat anyone

Q. So you’ve never treated or diagnosed a person with any form of mercury

toxicity?

A. I have been asked my advice by physicians …

And on and on and on ... until the exhausted witness said (p.

202):

“Is it all right if I just stand up and stretch for a

minute?”

Special Master Hastings: Go ahead.

DOJ Attorney: I am almost done, but we can take a

break, if you would like to.

The witness: Thank you

Special Master Hastings: Doctor, let me take this time

to apologize to you too.

Here we are trying to get you to speak up, and it turns out your

microphone wasn't in proper working order, so I apologize.”

The DOJ attorney took a breath and went on asking the witness about

Thimerosal research including the Pichichero paper[8]

and the “half-life” of injected Thimerosal.

Q: You said that there was a flaw with that study, that you can’t compare

autistic children who receive vaccines, as to the half-life of ethyl

mercury in their blood. Is that correct?

A: What I did say, I believe, was that autistic children, if they have

mercury efflux disorder, would have different toxicokinetics and that the

data in normal children may not be applicable at all to a child who

cannot get rid of mercury …

I remember wondering at the time why the attorney for the

respondent chose to end her cross-examination with that particularly weak

study published in late 2002. The Rochester investigators had examined

blood, urine and stool specimens of 40 children who had received

thimerosal-containing vaccines and compared them with those from 21

children who had received thimerosal-free vaccines.

It is impossible to guess why the DOJ attorney chose to quote the

researchers’ estimate that the “blood half-life of ethylmercury was 7

days (95% CI 4-10 days)”?

May be she was impressed by their interpretation that:

“Administration of vaccines containing thiomersal does not seem to

raise blood concentrations of mercury above safe values in infants.

Ethylmercury seems to be eliminated from blood rapidly via the stools

after parenteral administration of thiomersal in vaccines.”

But the fact is that she totally missed the most important

sentence in the abstract: “We obtained samples of blood, urine, and

stools 3-28 days after vaccination.”

In most studies of this kind, the study protocol clearly

outlines how and when specimens are to be collected: Certainly always at

precise and clearly outlined intervals starting a short

time after vaccination.

In this study, there was only a single and convenient blood

draw: Parents of 2-month-old infants brought them back once,

when they pleased and at their convenience, between 3 and 21 days

following vaccination and parents of 6-month-old infants brought them

back, again when they could, just once between 3 and 27 days

post-vaccination.

Apparently no one in Rochester, where the study was done, or in

Washington DC at the hearing, wondered where the mercury went every hour

following vaccination or every day of the following four weeks. Was it

likely to still be going around and round in the blood waiting for its

half life and then whole life to end or was it more likely to have

settled in tissues including the brain?

Cross-examination of the witness ended after a while and Special

Master Hastings ordered a short break (p. 211A).

When the hearing reconvened, Special Master Hastings announced:

“All right folks. We’ll be starting again here if everyone will take his

position. Dr. Aposhian, you are still in the hot seat, I am

afraid.”

I remember wondering about the choice of words. The exhausted

witness must have too … as he murmured: " Still?”

The Special Masters asked more questions and then the hearing was

adjourned.

The same thing happened during the cross-examination of the

following expert witness, ’s gastro-enterologist Dr.

Arthur Krigsman. This time, the DOJ attorney was the same attorney who

had been so effusive about Dr. Fombonne’s accomplishments.1 3

Several other experts for the plaintiff also received a similar

treatment.

In spite of the clear language of the vaccine injury

compensation law, the Cedillo hearings were anything but

“less-adversarial”.

That was unfortunate for Cedillo, for many others who

are waiting and ... for JUSTICE!

References

[1]

http://www.vaccinationnews.com/double-standards-f-edward-yazbak-part-1-3-0

[2]

http://www.vaccinationnews.com/busting-rules-f-edward-yazbak-part-2-3

[3]

http://www.vaccinationnews.com/translation-court-F-edward-yazbak-part-3-3

[4]

http://www.ageofautism.com/2010/11/how-reliable-were-eric-fombonne-and-stephen-bustin.html

[5]

http://www.hrsa.gov/vaccinecompensation/authorizinglegislation.pdf

[6]

ftp://autism.uscfc.uscourts.gov/autism/cedillo/transcripts/day01-cor.pdf

[7]

http://yosemite.epa.gov/sab/sabpeople.nsf/WebPeople/AposhianH.%20Vasken?OpenDocument

[8]

Pichichero ME, Cernichiari E, Lopreiato J, Treanor J. Mercury

concentrations and metabolism in infants receiving vaccines containing

thiomersal: a descriptive study. Lancet. 2002 Nov

30;360(9347):1737-41.

F. Yazbak

MD

Falmouth, Massachusetts

[Guest guest]

http://www.vaccinationnews.com/intimidation-court

Intimidation in the Court

Intimidation in the Court

Writers never want to bore their readers. After publishing

my original three papers on the Cedillo case, Double

Standards[1], Busting Rules[2]

and Translation in the Court[3], I felt it was time

to leave further discussion of the case to others.

I was flattered and certainly grateful when Stone kindly

mentioned the three publications in his widely read Age of

Autism[4] column on November 8, 2010. The many

comments that Stone’s column generated were very interesting; one on

November 10 touched a sensitive cord:

“The question should be asked not why Fombomme was

treated with such reverence but why the opposing views and the people are

treated to disrespect.”

The following comments will focus on what happened to the very

first expert witnesses who dared to testify for the petitioner in Theresa

Cedillo and Cedillo, as parents and natural guardians of

Cedillo v. Secretary of Health and Human Services - No. 98-916V.

Before doing that, it may be worthwhile to review the original

statement in the vaccine injury compensation law on how the

hearings were to be conducted[5]:

“… (2) The special masters shall recommend rules to the Court of Federal

Claims and, taking into account such recommended rules, the Court of

Federal Claims shall promulgate rules pursuant to section2071 of title

28. Such rules shall –

(A) provide for a less-adversarial, expeditious, and informal proceeding

for the resolution of petitions…” (p. 12)

“Less adversarial” and indeed often cordial was the way hearings

used to be conducted. I clearly recall my personal experience in

two vaccine injury compensation cases, not too long ago.

The first was in the fall of 2001, shortly after the 9/11 tragedy

when Court Houses were still closed for security reasons. I was the

medical expert for the petitioners, in a case where the infant expired

shortly after vaccination.

The hearing was held in a hotel suite in Boston and I drove up to

the hearing. The Special Master and her Executive Assistant had arrived

by train the evening before and the expert for the DOJ, a distinguished

professor of pediatric infectious diseases had flown in early that

morning.

The Special Master sat at the head of the beautiful large

rectangular wooden table, we sat with our backs to the large windows and

the DOJ team sat across the table.

Everyone greeted everyone else, the tone of the whole proceeding

was very civil and it was all over by mid-afternoon.

The Special Master thanked us all and adjourned the hearing. As we

started packing our laptops and documents, the mother of the deceased

infant, apparently touched by the proceedings and the way she was

treated, pulled out her camera and asked us to stand together for a

souvenir photograph. We were all somewhat surprised at the request but no

one objected. We walked around the conference table to join the Special

Master and the respondent’s team and the young mom snapped two photos, as

I recall.

The Special Master and her executive assistant immediately left to

catch their train to Washington, the attorneys and the family followed

and I stayed back to talk with the HHS medical expert. We certainly did

not feel like opponents. We were simply two physicians with similar

interests, talking cordially, and we felt we had just served justice ...

as best we knew how.

When we were done, I offered to drive my distinguished colleague to

the airport. He thanked me profusely and told me that a medical

school classmate was on his way to pick him up and take him out to dinner

before his evening flight. We shook hands and I told him how honored I

was to have met him at last. Looking back, the only marginally upsetting

experience that day was driving out of town at rush

hour.

My other case was in 2003 in Washington DC, coincidentally in

front of the same Special Master. The DOJ attorney was thorough yet soft

spoken and kind. The main expert for HHS was a knowledgeable and very

well trained pediatric neurologist from a nearby state who had over 400

children with autism in his private practice.

Here again, the proceedings were very civil, we were done by late

afternoon and everyone said Good Bye before departing.

I walked over to my “opponent” to shake his hand and we spent

several minutes talking about his practice and what he perceived as being

his greatest challenges.

When we were done, he must have known that had we not been

located 500 miles apart, I would have certainly asked him to accept one

more patient in his very busy practice, my own grandson.

These were the good old days … indeed!

Now let us fast-forward …

A few months ago, I presented two long and detailed reports about a

vaccine injury compensation case. The Special Master requested more

information about the references I cited and I added a third detailed

report.

The expert for the respondent, a university professor, responded

with a very long CV and a short report about the case that

included personal comments about me and about the fact that I had

published “five opinion pieces not important enough to have abstracts

attached” (very much like this one). Just for fun, I looked up his

Pub Med publications: 12 of his 27 articles had no abstracts

either.

Unlike the majority of vaccine injury compensation hearings, the

Cedillo case was heard in the Ceremonial Courtroom, National Courts

Building, Washington D.C; the three Special Masters faced the

audience and the legal teams sat at their own tables, DOJ attorneys to

the left and the petitioners’ legal team to the right.

The audience sat behind a beautiful and ornate wooden banister that

went across the room, the Government’s experts and guests on the left and

the petitioners’ on the right.

The Cedillo hearing started on June 11, 2007.

After opening remarks, the plaintiff’s attorney called her first

expert, Dr. H. V. Aposhian[6] to the stand. His

testimony was honest, accurate and understandable, in spite of

difficulties with the loud speaking system. When he was done, the meeting

was adjourned for lunch.

The following is a summary of Dr. Aposhian’s training and

achievements according to the EPA.[7]

H. Vasken Aposhian received a Sc. B. in Chemistry from Brown

University and an M.S. and Ph.D. from the University of Rochester. He has

been a faculty member of the Department of Pharmacology, Vanderbilt

University College of Medicine; Department of Microbiology, Tufts

University College of Medicine, and Department of Pharmacology,

University of land College of Medicine. Since 1975, he has been

Professor of Molecular and Cellular Biology and Professor of Pharmacology

at the University of Arizona. He has extensive research experience and

publications dealing with the toxicology of heavy metals, in particular

arsenic and mercury. This has included enzymology of arsenic

biotranformation; the study of human populations in Chile, Inner

Mongolia, Romania, Mexico and rural Southwest China as to their body

burden of arsenic or mercury; the human metabolism of chelating agents;

and the biochemical genetics in particular gene transfer in mammalian

cells. His laboratory, at present, is searching for biomarkers for autism

using the latest proteomic techniques and trying to decipher the

polymorphisms in the human gene for human glutathione-S-transferase-omega

a crucial enzyme that reduces arsenic species. His teaching

responsibilities involve teaching human toxicology to a small class of

seniors. Dr. Aposhian is a member of the Society of Toxicology; the

American Society Of Biological Chemistry And Molecular Biology; and the

AAAS. He has recently given invited seminars at the EPA, the Health

Realties Institute, WHO/NIEHS meeting on Environmental Health of Children

in Central Asia held in Amity, Kazakhstan, Grand Rounds of the Tucson

Medical Center and the Canadian Chemistry Conference.

Dr. Aposhian is on the Editorial Board of the American Chemical

society journal Chemical Research. He participated in the writing of the

NAS/NRC monographs on “Arsenic in Drinking “Toxicology Of Methyl

Mercury”. He has served on numerous NIH, EPA and FDA ace Research

Foundation (NIEHS) and the Autism Research.

I do not think one needs to be a Ph.D. to concede that a

distinguished scientist with this education and achievements was

qualified enough to testify as an expert on mercury toxicity anywhere in

the world.

When the hearing reconvened, the Attorney for DOJ started her

cross-examination.

Now again, this was an important hearing and a high profile case;

the courtroom was full, and hundreds of people were listening by phone.

Furthermore, the transcripts were definitely going to be reviewed and an

appeal was certain regardless of the decision. After all, 5,000 cases

depended on the outcome of this and the other two test cases.

Yet right out of the gait, the DOJ attorney fired an intimidating

question only intended to get the witness rattled and “off

balance”. (p. 117)

Q. Good afternoon, Dr. Aphosian. Dr. Aphosian, you are not a medical

doctor are you?

A. Could you speak louder? I can’t hear you. Please?

At this moment, plaintiff’s attorney interrupted to inquire who the

gentleman sitting at the Respondent’s counsel table was. She was told it

was Dr. Brent.

[ Brent, MD, PhD, a medical toxicologist and Clinical Professor of

Medicine at the University of Colorado, testified for the

respondent.]

It should be mentioned that it is quite unusual for an expert

witness to be at counsel table when an expert for the other side is

testifying; yet this happened again and again during these proceedings

but never in the plaintiff’s corner.

Q: (Repeated) “Dr. Aposhian, are you a medical doctor? (p. 118)

A: No. I'm not.

Q: Are you a medical toxicologist?

A: It depends how you define the term medical toxicologist. What is your

definition?

Q. My definition would be someone who has an M.D. and an expertise in

toxicology.

A. I am not a medical toxicologist.

Q. Are you an immunologist?

A. I am not an immunologist…

Q. You are not a neurologist. Is that correct?

A. I am not an M.D., so I can’t be a neurologist.

Q. You don't know how measles virus affects the brain?

A. I spent 10 years of my research studying virology. I have papers

published in the Journal of Virology. I was the first one to show that a

virus could transfer genetic information that was not in it

originally…

Q. You are not a geneticist, are you?

[At home, listening comfortably, I smiled and whispered

“oops”]

A. I am considered to be a biochemical geneticist. The man I worked with

for three years at Stanford University got the Nobel Prize for studying

while I was with him, for determining how DNA was synthesized and was the

first one to synthesize an active - a biologically active DNA molecule.

So from the year 1959 after I also went to Tufts University School of

Medicine to teach to 1967 I was strictly a biochemical geneticist…

A while later, the attorney came back: (p. 124A)

Q. Have you ever treated or diagnosed a person with any form of

ethyl mercury toxicity?

A. I am not a physician so I would not treat anyone

Q. So you’ve never treated or diagnosed a person with any form of mercury

toxicity?

A. I have been asked my advice by physicians …

And on and on and on ... until the exhausted witness said (p.

202):

“Is it all right if I just stand up and stretch for a

minute?”

Special Master Hastings: Go ahead.

DOJ Attorney: I am almost done, but we can take a

break, if you would like to.

The witness: Thank you

Special Master Hastings: Doctor, let me take this time

to apologize to you too.

Here we are trying to get you to speak up, and it turns out your

microphone wasn't in proper working order, so I apologize.”

The DOJ attorney took a breath and went on asking the witness about

Thimerosal research including the Pichichero paper[8]

and the “half-life” of injected Thimerosal.

Q: You said that there was a flaw with that study, that you can’t compare

autistic children who receive vaccines, as to the half-life of ethyl

mercury in their blood. Is that correct?

A: What I did say, I believe, was that autistic children, if they have

mercury efflux disorder, would have different toxicokinetics and that the

data in normal children may not be applicable at all to a child who

cannot get rid of mercury …

I remember wondering at the time why the attorney for the

respondent chose to end her cross-examination with that particularly weak

study published in late 2002. The Rochester investigators had examined

blood, urine and stool specimens of 40 children who had received

thimerosal-containing vaccines and compared them with those from 21

children who had received thimerosal-free vaccines.

It is impossible to guess why the DOJ attorney chose to quote the

researchers’ estimate that the “blood half-life of ethylmercury was 7

days (95% CI 4-10 days)”?

May be she was impressed by their interpretation that:

“Administration of vaccines containing thiomersal does not seem to

raise blood concentrations of mercury above safe values in infants.

Ethylmercury seems to be eliminated from blood rapidly via the stools

after parenteral administration of thiomersal in vaccines.”

But the fact is that she totally missed the most important

sentence in the abstract: “We obtained samples of blood, urine, and

stools 3-28 days after vaccination.”

In most studies of this kind, the study protocol clearly

outlines how and when specimens are to be collected: Certainly always at

precise and clearly outlined intervals starting a short

time after vaccination.

In this study, there was only a single and convenient blood

draw: Parents of 2-month-old infants brought them back once,

when they pleased and at their convenience, between 3 and 21 days

following vaccination and parents of 6-month-old infants brought them

back, again when they could, just once between 3 and 27 days

post-vaccination.

Apparently no one in Rochester, where the study was done, or in

Washington DC at the hearing, wondered where the mercury went every hour

following vaccination or every day of the following four weeks. Was it

likely to still be going around and round in the blood waiting for its

half life and then whole life to end or was it more likely to have

settled in tissues including the brain?

Cross-examination of the witness ended after a while and Special

Master Hastings ordered a short break (p. 211A).

When the hearing reconvened, Special Master Hastings announced:

“All right folks. We’ll be starting again here if everyone will take his

position. Dr. Aposhian, you are still in the hot seat, I am

afraid.”

I remember wondering about the choice of words. The exhausted

witness must have too … as he murmured: " Still?”

The Special Masters asked more questions and then the hearing was

adjourned.

The same thing happened during the cross-examination of the

following expert witness, ’s gastro-enterologist Dr.

Arthur Krigsman. This time, the DOJ attorney was the same attorney who

had been so effusive about Dr. Fombonne’s accomplishments.1 3

Several other experts for the plaintiff also received a similar

treatment.

In spite of the clear language of the vaccine injury

compensation law, the Cedillo hearings were anything but

“less-adversarial”.

That was unfortunate for Cedillo, for many others who

are waiting and ... for JUSTICE!

References

[1]

http://www.vaccinationnews.com/double-standards-f-edward-yazbak-part-1-3-0

[2]

http://www.vaccinationnews.com/busting-rules-f-edward-yazbak-part-2-3

[3]

http://www.vaccinationnews.com/translation-court-F-edward-yazbak-part-3-3

[4]

http://www.ageofautism.com/2010/11/how-reliable-were-eric-fombonne-and-stephen-bustin.html

[5]

http://www.hrsa.gov/vaccinecompensation/authorizinglegislation.pdf

[6]

ftp://autism.uscfc.uscourts.gov/autism/cedillo/transcripts/day01-cor.pdf

[7]

http://yosemite.epa.gov/sab/sabpeople.nsf/WebPeople/AposhianH.%20Vasken?OpenDocument

[8]

Pichichero ME, Cernichiari E, Lopreiato J, Treanor J. Mercury

concentrations and metabolism in infants receiving vaccines containing

thiomersal: a descriptive study. Lancet. 2002 Nov

30;360(9347):1737-41.

F. Yazbak

MD

Falmouth, Massachusetts

[Guest guest]

http://www.vaccinationnews.com/intimidation-court

Intimidation in the Court

Intimidation in the Court

Writers never want to bore their readers. After publishing

my original three papers on the Cedillo case, Double

Standards[1], Busting Rules[2]

and Translation in the Court[3], I felt it was time

to leave further discussion of the case to others.

I was flattered and certainly grateful when Stone kindly

mentioned the three publications in his widely read Age of

Autism[4] column on November 8, 2010. The many

comments that Stone’s column generated were very interesting; one on

November 10 touched a sensitive cord:

“The question should be asked not why Fombomme was

treated with such reverence but why the opposing views and the people are

treated to disrespect.”

The following comments will focus on what happened to the very

first expert witnesses who dared to testify for the petitioner in Theresa

Cedillo and Cedillo, as parents and natural guardians of

Cedillo v. Secretary of Health and Human Services - No. 98-916V.

Before doing that, it may be worthwhile to review the original

statement in the vaccine injury compensation law on how the

hearings were to be conducted[5]:

“… (2) The special masters shall recommend rules to the Court of Federal

Claims and, taking into account such recommended rules, the Court of

Federal Claims shall promulgate rules pursuant to section2071 of title

28. Such rules shall –

(A) provide for a less-adversarial, expeditious, and informal proceeding

for the resolution of petitions…” (p. 12)

“Less adversarial” and indeed often cordial was the way hearings

used to be conducted. I clearly recall my personal experience in

two vaccine injury compensation cases, not too long ago.

The first was in the fall of 2001, shortly after the 9/11 tragedy

when Court Houses were still closed for security reasons. I was the

medical expert for the petitioners, in a case where the infant expired

shortly after vaccination.

The hearing was held in a hotel suite in Boston and I drove up to

the hearing. The Special Master and her Executive Assistant had arrived

by train the evening before and the expert for the DOJ, a distinguished

professor of pediatric infectious diseases had flown in early that

morning.

The Special Master sat at the head of the beautiful large

rectangular wooden table, we sat with our backs to the large windows and

the DOJ team sat across the table.

Everyone greeted everyone else, the tone of the whole proceeding

was very civil and it was all over by mid-afternoon.

The Special Master thanked us all and adjourned the hearing. As we

started packing our laptops and documents, the mother of the deceased

infant, apparently touched by the proceedings and the way she was

treated, pulled out her camera and asked us to stand together for a

souvenir photograph. We were all somewhat surprised at the request but no

one objected. We walked around the conference table to join the Special

Master and the respondent’s team and the young mom snapped two photos, as

I recall.

The Special Master and her executive assistant immediately left to

catch their train to Washington, the attorneys and the family followed

and I stayed back to talk with the HHS medical expert. We certainly did

not feel like opponents. We were simply two physicians with similar

interests, talking cordially, and we felt we had just served justice ...

as best we knew how.

When we were done, I offered to drive my distinguished colleague to

the airport. He thanked me profusely and told me that a medical

school classmate was on his way to pick him up and take him out to dinner

before his evening flight. We shook hands and I told him how honored I

was to have met him at last. Looking back, the only marginally upsetting

experience that day was driving out of town at rush

hour.

My other case was in 2003 in Washington DC, coincidentally in

front of the same Special Master. The DOJ attorney was thorough yet soft

spoken and kind. The main expert for HHS was a knowledgeable and very

well trained pediatric neurologist from a nearby state who had over 400

children with autism in his private practice.

Here again, the proceedings were very civil, we were done by late

afternoon and everyone said Good Bye before departing.

I walked over to my “opponent” to shake his hand and we spent

several minutes talking about his practice and what he perceived as being

his greatest challenges.

When we were done, he must have known that had we not been

located 500 miles apart, I would have certainly asked him to accept one

more patient in his very busy practice, my own grandson.

These were the good old days … indeed!

Now let us fast-forward …

A few months ago, I presented two long and detailed reports about a

vaccine injury compensation case. The Special Master requested more

information about the references I cited and I added a third detailed

report.

The expert for the respondent, a university professor, responded

with a very long CV and a short report about the case that

included personal comments about me and about the fact that I had

published “five opinion pieces not important enough to have abstracts

attached” (very much like this one). Just for fun, I looked up his

Pub Med publications: 12 of his 27 articles had no abstracts

either.

Unlike the majority of vaccine injury compensation hearings, the

Cedillo case was heard in the Ceremonial Courtroom, National Courts

Building, Washington D.C; the three Special Masters faced the

audience and the legal teams sat at their own tables, DOJ attorneys to

the left and the petitioners’ legal team to the right.

The audience sat behind a beautiful and ornate wooden banister that

went across the room, the Government’s experts and guests on the left and

the petitioners’ on the right.

The Cedillo hearing started on June 11, 2007.

After opening remarks, the plaintiff’s attorney called her first

expert, Dr. H. V. Aposhian[6] to the stand. His

testimony was honest, accurate and understandable, in spite of

difficulties with the loud speaking system. When he was done, the meeting

was adjourned for lunch.

The following is a summary of Dr. Aposhian’s training and

achievements according to the EPA.[7]

H. Vasken Aposhian received a Sc. B. in Chemistry from Brown

University and an M.S. and Ph.D. from the University of Rochester. He has

been a faculty member of the Department of Pharmacology, Vanderbilt

University College of Medicine; Department of Microbiology, Tufts

University College of Medicine, and Department of Pharmacology,

University of land College of Medicine. Since 1975, he has been

Professor of Molecular and Cellular Biology and Professor of Pharmacology

at the University of Arizona. He has extensive research experience and

publications dealing with the toxicology of heavy metals, in particular

arsenic and mercury. This has included enzymology of arsenic

biotranformation; the study of human populations in Chile, Inner

Mongolia, Romania, Mexico and rural Southwest China as to their body

burden of arsenic or mercury; the human metabolism of chelating agents;

and the biochemical genetics in particular gene transfer in mammalian

cells. His laboratory, at present, is searching for biomarkers for autism

using the latest proteomic techniques and trying to decipher the

polymorphisms in the human gene for human glutathione-S-transferase-omega

a crucial enzyme that reduces arsenic species. His teaching

responsibilities involve teaching human toxicology to a small class of

seniors. Dr. Aposhian is a member of the Society of Toxicology; the

American Society Of Biological Chemistry And Molecular Biology; and the

AAAS. He has recently given invited seminars at the EPA, the Health

Realties Institute, WHO/NIEHS meeting on Environmental Health of Children

in Central Asia held in Amity, Kazakhstan, Grand Rounds of the Tucson

Medical Center and the Canadian Chemistry Conference.

Dr. Aposhian is on the Editorial Board of the American Chemical

society journal Chemical Research. He participated in the writing of the

NAS/NRC monographs on “Arsenic in Drinking “Toxicology Of Methyl

Mercury”. He has served on numerous NIH, EPA and FDA ace Research

Foundation (NIEHS) and the Autism Research.

I do not think one needs to be a Ph.D. to concede that a

distinguished scientist with this education and achievements was

qualified enough to testify as an expert on mercury toxicity anywhere in

the world.

When the hearing reconvened, the Attorney for DOJ started her

cross-examination.

Now again, this was an important hearing and a high profile case;

the courtroom was full, and hundreds of people were listening by phone.

Furthermore, the transcripts were definitely going to be reviewed and an

appeal was certain regardless of the decision. After all, 5,000 cases

depended on the outcome of this and the other two test cases.

Yet right out of the gait, the DOJ attorney fired an intimidating

question only intended to get the witness rattled and “off

balance”. (p. 117)

Q. Good afternoon, Dr. Aphosian. Dr. Aphosian, you are not a medical

doctor are you?

A. Could you speak louder? I can’t hear you. Please?

At this moment, plaintiff’s attorney interrupted to inquire who the

gentleman sitting at the Respondent’s counsel table was. She was told it

was Dr. Brent.

[ Brent, MD, PhD, a medical toxicologist and Clinical Professor of

Medicine at the University of Colorado, testified for the

respondent.]

It should be mentioned that it is quite unusual for an expert

witness to be at counsel table when an expert for the other side is

testifying; yet this happened again and again during these proceedings

but never in the plaintiff’s corner.

Q: (Repeated) “Dr. Aposhian, are you a medical doctor? (p. 118)

A: No. I'm not.

Q: Are you a medical toxicologist?

A: It depends how you define the term medical toxicologist. What is your

definition?

Q. My definition would be someone who has an M.D. and an expertise in

toxicology.

A. I am not a medical toxicologist.

Q. Are you an immunologist?

A. I am not an immunologist…

Q. You are not a neurologist. Is that correct?

A. I am not an M.D., so I can’t be a neurologist.

Q. You don't know how measles virus affects the brain?

A. I spent 10 years of my research studying virology. I have papers

published in the Journal of Virology. I was the first one to show that a

virus could transfer genetic information that was not in it

originally…

Q. You are not a geneticist, are you?

[At home, listening comfortably, I smiled and whispered

“oops”]

A. I am considered to be a biochemical geneticist. The man I worked with

for three years at Stanford University got the Nobel Prize for studying

while I was with him, for determining how DNA was synthesized and was the

first one to synthesize an active - a biologically active DNA molecule.

So from the year 1959 after I also went to Tufts University School of

Medicine to teach to 1967 I was strictly a biochemical geneticist…

A while later, the attorney came back: (p. 124A)

Q. Have you ever treated or diagnosed a person with any form of

ethyl mercury toxicity?

A. I am not a physician so I would not treat anyone

Q. So you’ve never treated or diagnosed a person with any form of mercury

toxicity?

A. I have been asked my advice by physicians …

And on and on and on ... until the exhausted witness said (p.

202):

“Is it all right if I just stand up and stretch for a

minute?”

Special Master Hastings: Go ahead.

DOJ Attorney: I am almost done, but we can take a

break, if you would like to.

The witness: Thank you

Special Master Hastings: Doctor, let me take this time

to apologize to you too.

Here we are trying to get you to speak up, and it turns out your

microphone wasn't in proper working order, so I apologize.”

The DOJ attorney took a breath and went on asking the witness about

Thimerosal research including the Pichichero paper[8]

and the “half-life” of injected Thimerosal.

Q: You said that there was a flaw with that study, that you can’t compare

autistic children who receive vaccines, as to the half-life of ethyl

mercury in their blood. Is that correct?

A: What I did say, I believe, was that autistic children, if they have

mercury efflux disorder, would have different toxicokinetics and that the

data in normal children may not be applicable at all to a child who

cannot get rid of mercury …

I remember wondering at the time why the attorney for the

respondent chose to end her cross-examination with that particularly weak

study published in late 2002. The Rochester investigators had examined

blood, urine and stool specimens of 40 children who had received

thimerosal-containing vaccines and compared them with those from 21

children who had received thimerosal-free vaccines.

It is impossible to guess why the DOJ attorney chose to quote the

researchers’ estimate that the “blood half-life of ethylmercury was 7

days (95% CI 4-10 days)”?

May be she was impressed by their interpretation that:

“Administration of vaccines containing thiomersal does not seem to

raise blood concentrations of mercury above safe values in infants.

Ethylmercury seems to be eliminated from blood rapidly via the stools

after parenteral administration of thiomersal in vaccines.”

But the fact is that she totally missed the most important

sentence in the abstract: “We obtained samples of blood, urine, and

stools 3-28 days after vaccination.”

In most studies of this kind, the study protocol clearly

outlines how and when specimens are to be collected: Certainly always at

precise and clearly outlined intervals starting a short

time after vaccination.

In this study, there was only a single and convenient blood

draw: Parents of 2-month-old infants brought them back once,

when they pleased and at their convenience, between 3 and 21 days

following vaccination and parents of 6-month-old infants brought them

back, again when they could, just once between 3 and 27 days

post-vaccination.

Apparently no one in Rochester, where the study was done, or in

Washington DC at the hearing, wondered where the mercury went every hour

following vaccination or every day of the following four weeks. Was it

likely to still be going around and round in the blood waiting for its

half life and then whole life to end or was it more likely to have

settled in tissues including the brain?

Cross-examination of the witness ended after a while and Special

Master Hastings ordered a short break (p. 211A).

When the hearing reconvened, Special Master Hastings announced:

“All right folks. We’ll be starting again here if everyone will take his

position. Dr. Aposhian, you are still in the hot seat, I am

afraid.”

I remember wondering about the choice of words. The exhausted

witness must have too … as he murmured: " Still?”

The Special Masters asked more questions and then the hearing was

adjourned.

The same thing happened during the cross-examination of the

following expert witness, ’s gastro-enterologist Dr.

Arthur Krigsman. This time, the DOJ attorney was the same attorney who

had been so effusive about Dr. Fombonne’s accomplishments.1 3

Several other experts for the plaintiff also received a similar

treatment.

In spite of the clear language of the vaccine injury

compensation law, the Cedillo hearings were anything but

“less-adversarial”.

That was unfortunate for Cedillo, for many others who

are waiting and ... for JUSTICE!

References

[1]

http://www.vaccinationnews.com/double-standards-f-edward-yazbak-part-1-3-0

[2]

http://www.vaccinationnews.com/busting-rules-f-edward-yazbak-part-2-3

[3]

http://www.vaccinationnews.com/translation-court-F-edward-yazbak-part-3-3

[4]

http://www.ageofautism.com/2010/11/how-reliable-were-eric-fombonne-and-stephen-bustin.html

[5]

http://www.hrsa.gov/vaccinecompensation/authorizinglegislation.pdf

[6]

ftp://autism.uscfc.uscourts.gov/autism/cedillo/transcripts/day01-cor.pdf

[7]

http://yosemite.epa.gov/sab/sabpeople.nsf/WebPeople/AposhianH.%20Vasken?OpenDocument

[8]

Pichichero ME, Cernichiari E, Lopreiato J, Treanor J. Mercury

concentrations and metabolism in infants receiving vaccines containing

thiomersal: a descriptive study. Lancet. 2002 Nov

30;360(9347):1737-41.

F. Yazbak

MD

Falmouth, Massachusetts

[Guest guest]

http://www.vaccinationnews.com/intimidation-court

Intimidation in the Court

Intimidation in the Court

Writers never want to bore their readers. After publishing

my original three papers on the Cedillo case, Double

Standards[1], Busting Rules[2]

and Translation in the Court[3], I felt it was time

to leave further discussion of the case to others.

I was flattered and certainly grateful when Stone kindly

mentioned the three publications in his widely read Age of

Autism[4] column on November 8, 2010. The many

comments that Stone’s column generated were very interesting; one on

November 10 touched a sensitive cord:

“The question should be asked not why Fombomme was

treated with such reverence but why the opposing views and the people are

treated to disrespect.”

The following comments will focus on what happened to the very

first expert witnesses who dared to testify for the petitioner in Theresa

Cedillo and Cedillo, as parents and natural guardians of

Cedillo v. Secretary of Health and Human Services - No. 98-916V.

Before doing that, it may be worthwhile to review the original

statement in the vaccine injury compensation law on how the

hearings were to be conducted[5]:

“… (2) The special masters shall recommend rules to the Court of Federal

Claims and, taking into account such recommended rules, the Court of

Federal Claims shall promulgate rules pursuant to section2071 of title

28. Such rules shall –

(A) provide for a less-adversarial, expeditious, and informal proceeding

for the resolution of petitions…” (p. 12)

“Less adversarial” and indeed often cordial was the way hearings

used to be conducted. I clearly recall my personal experience in

two vaccine injury compensation cases, not too long ago.

The first was in the fall of 2001, shortly after the 9/11 tragedy

when Court Houses were still closed for security reasons. I was the

medical expert for the petitioners, in a case where the infant expired

shortly after vaccination.

The hearing was held in a hotel suite in Boston and I drove up to

the hearing. The Special Master and her Executive Assistant had arrived

by train the evening before and the expert for the DOJ, a distinguished

professor of pediatric infectious diseases had flown in early that

morning.

The Special Master sat at the head of the beautiful large

rectangular wooden table, we sat with our backs to the large windows and

the DOJ team sat across the table.

Everyone greeted everyone else, the tone of the whole proceeding

was very civil and it was all over by mid-afternoon.

The Special Master thanked us all and adjourned the hearing. As we

started packing our laptops and documents, the mother of the deceased

infant, apparently touched by the proceedings and the way she was

treated, pulled out her camera and asked us to stand together for a

souvenir photograph. We were all somewhat surprised at the request but no

one objected. We walked around the conference table to join the Special

Master and the respondent’s team and the young mom snapped two photos, as

I recall.

The Special Master and her executive assistant immediately left to

catch their train to Washington, the attorneys and the family followed

and I stayed back to talk with the HHS medical expert. We certainly did

not feel like opponents. We were simply two physicians with similar

interests, talking cordially, and we felt we had just served justice ...

as best we knew how.

When we were done, I offered to drive my distinguished colleague to

the airport. He thanked me profusely and told me that a medical

school classmate was on his way to pick him up and take him out to dinner

before his evening flight. We shook hands and I told him how honored I

was to have met him at last. Looking back, the only marginally upsetting

experience that day was driving out of town at rush

hour.

My other case was in 2003 in Washington DC, coincidentally in

front of the same Special Master. The DOJ attorney was thorough yet soft

spoken and kind. The main expert for HHS was a knowledgeable and very

well trained pediatric neurologist from a nearby state who had over 400

children with autism in his private practice.

Here again, the proceedings were very civil, we were done by late

afternoon and everyone said Good Bye before departing.

I walked over to my “opponent” to shake his hand and we spent

several minutes talking about his practice and what he perceived as being

his greatest challenges.

When we were done, he must have known that had we not been

located 500 miles apart, I would have certainly asked him to accept one

more patient in his very busy practice, my own grandson.

These were the good old days … indeed!

Now let us fast-forward …

A few months ago, I presented two long and detailed reports about a

vaccine injury compensation case. The Special Master requested more

information about the references I cited and I added a third detailed

report.

The expert for the respondent, a university professor, responded

with a very long CV and a short report about the case that

included personal comments about me and about the fact that I had

published “five opinion pieces not important enough to have abstracts

attached” (very much like this one). Just for fun, I looked up his

Pub Med publications: 12 of his 27 articles had no abstracts

either.

Unlike the majority of vaccine injury compensation hearings, the

Cedillo case was heard in the Ceremonial Courtroom, National Courts

Building, Washington D.C; the three Special Masters faced the

audience and the legal teams sat at their own tables, DOJ attorneys to

the left and the petitioners’ legal team to the right.

The audience sat behind a beautiful and ornate wooden banister that

went across the room, the Government’s experts and guests on the left and

the petitioners’ on the right.

The Cedillo hearing started on June 11, 2007.

After opening remarks, the plaintiff’s attorney called her first

expert, Dr. H. V. Aposhian[6] to the stand. His

testimony was honest, accurate and understandable, in spite of

difficulties with the loud speaking system. When he was done, the meeting

was adjourned for lunch.

The following is a summary of Dr. Aposhian’s training and

achievements according to the EPA.[7]

H. Vasken Aposhian received a Sc. B. in Chemistry from Brown

University and an M.S. and Ph.D. from the University of Rochester. He has

been a faculty member of the Department of Pharmacology, Vanderbilt

University College of Medicine; Department of Microbiology, Tufts

University College of Medicine, and Department of Pharmacology,

University of land College of Medicine. Since 1975, he has been

Professor of Molecular and Cellular Biology and Professor of Pharmacology

at the University of Arizona. He has extensive research experience and

publications dealing with the toxicology of heavy metals, in particular

arsenic and mercury. This has included enzymology of arsenic

biotranformation; the study of human populations in Chile, Inner

Mongolia, Romania, Mexico and rural Southwest China as to their body

burden of arsenic or mercury; the human metabolism of chelating agents;

and the biochemical genetics in particular gene transfer in mammalian

cells. His laboratory, at present, is searching for biomarkers for autism

using the latest proteomic techniques and trying to decipher the

polymorphisms in the human gene for human glutathione-S-transferase-omega

a crucial enzyme that reduces arsenic species. His teaching

responsibilities involve teaching human toxicology to a small class of

seniors. Dr. Aposhian is a member of the Society of Toxicology; the

American Society Of Biological Chemistry And Molecular Biology; and the

AAAS. He has recently given invited seminars at the EPA, the Health

Realties Institute, WHO/NIEHS meeting on Environmental Health of Children

in Central Asia held in Amity, Kazakhstan, Grand Rounds of the Tucson

Medical Center and the Canadian Chemistry Conference.

Dr. Aposhian is on the Editorial Board of the American Chemical

society journal Chemical Research. He participated in the writing of the

NAS/NRC monographs on “Arsenic in Drinking “Toxicology Of Methyl

Mercury”. He has served on numerous NIH, EPA and FDA ace Research

Foundation (NIEHS) and the Autism Research.

I do not think one needs to be a Ph.D. to concede that a

distinguished scientist with this education and achievements was

qualified enough to testify as an expert on mercury toxicity anywhere in

the world.

When the hearing reconvened, the Attorney for DOJ started her

cross-examination.

Now again, this was an important hearing and a high profile case;

the courtroom was full, and hundreds of people were listening by phone.

Furthermore, the transcripts were definitely going to be reviewed and an

appeal was certain regardless of the decision. After all, 5,000 cases

depended on the outcome of this and the other two test cases.

Yet right out of the gait, the DOJ attorney fired an intimidating

question only intended to get the witness rattled and “off

balance”. (p. 117)

Q. Good afternoon, Dr. Aphosian. Dr. Aphosian, you are not a medical

doctor are you?

A. Could you speak louder? I can’t hear you. Please?

At this moment, plaintiff’s attorney interrupted to inquire who the

gentleman sitting at the Respondent’s counsel table was. She was told it

was Dr. Brent.

[ Brent, MD, PhD, a medical toxicologist and Clinical Professor of

Medicine at the University of Colorado, testified for the

respondent.]

It should be mentioned that it is quite unusual for an expert

witness to be at counsel table when an expert for the other side is

testifying; yet this happened again and again during these proceedings

but never in the plaintiff’s corner.

Q: (Repeated) “Dr. Aposhian, are you a medical doctor? (p. 118)

A: No. I'm not.

Q: Are you a medical toxicologist?

A: It depends how you define the term medical toxicologist. What is your

definition?

Q. My definition would be someone who has an M.D. and an expertise in

toxicology.

A. I am not a medical toxicologist.

Q. Are you an immunologist?

A. I am not an immunologist…

Q. You are not a neurologist. Is that correct?

A. I am not an M.D., so I can’t be a neurologist.

Q. You don't know how measles virus affects the brain?

A. I spent 10 years of my research studying virology. I have papers

published in the Journal of Virology. I was the first one to show that a

virus could transfer genetic information that was not in it

originally…

Q. You are not a geneticist, are you?

[At home, listening comfortably, I smiled and whispered

“oops”]

A. I am considered to be a biochemical geneticist. The man I worked with

for three years at Stanford University got the Nobel Prize for studying

while I was with him, for determining how DNA was synthesized and was the

first one to synthesize an active - a biologically active DNA molecule.

So from the year 1959 after I also went to Tufts University School of

Medicine to teach to 1967 I was strictly a biochemical geneticist…

A while later, the attorney came back: (p. 124A)

Q. Have you ever treated or diagnosed a person with any form of

ethyl mercury toxicity?

A. I am not a physician so I would not treat anyone

Q. So you’ve never treated or diagnosed a person with any form of mercury

toxicity?

A. I have been asked my advice by physicians …

And on and on and on ... until the exhausted witness said (p.

202):

“Is it all right if I just stand up and stretch for a

minute?”

Special Master Hastings: Go ahead.

DOJ Attorney: I am almost done, but we can take a

break, if you would like to.

The witness: Thank you

Special Master Hastings: Doctor, let me take this time

to apologize to you too.

Here we are trying to get you to speak up, and it turns out your

microphone wasn't in proper working order, so I apologize.”

The DOJ attorney took a breath and went on asking the witness about

Thimerosal research including the Pichichero paper[8]

and the “half-life” of injected Thimerosal.

Q: You said that there was a flaw with that study, that you can’t compare

autistic children who receive vaccines, as to the half-life of ethyl

mercury in their blood. Is that correct?

A: What I did say, I believe, was that autistic children, if they have

mercury efflux disorder, would have different toxicokinetics and that the

data in normal children may not be applicable at all to a child who

cannot get rid of mercury …

I remember wondering at the time why the attorney for the

respondent chose to end her cross-examination with that particularly weak

study published in late 2002. The Rochester investigators had examined

blood, urine and stool specimens of 40 children who had received

thimerosal-containing vaccines and compared them with those from 21

children who had received thimerosal-free vaccines.

It is impossible to guess why the DOJ attorney chose to quote the

researchers’ estimate that the “blood half-life of ethylmercury was 7

days (95% CI 4-10 days)”?

May be she was impressed by their interpretation that:

“Administration of vaccines containing thiomersal does not seem to

raise blood concentrations of mercury above safe values in infants.

Ethylmercury seems to be eliminated from blood rapidly via the stools

after parenteral administration of thiomersal in vaccines.”

But the fact is that she totally missed the most important

sentence in the abstract: “We obtained samples of blood, urine, and

stools 3-28 days after vaccination.”

In most studies of this kind, the study protocol clearly

outlines how and when specimens are to be collected: Certainly always at

precise and clearly outlined intervals starting a short

time after vaccination.

In this study, there was only a single and convenient blood

draw: Parents of 2-month-old infants brought them back once,

when they pleased and at their convenience, between 3 and 21 days

following vaccination and parents of 6-month-old infants brought them

back, again when they could, just once between 3 and 27 days

post-vaccination.

Apparently no one in Rochester, where the study was done, or in

Washington DC at the hearing, wondered where the mercury went every hour

following vaccination or every day of the following four weeks. Was it

likely to still be going around and round in the blood waiting for its

half life and then whole life to end or was it more likely to have

settled in tissues including the brain?

Cross-examination of the witness ended after a while and Special

Master Hastings ordered a short break (p. 211A).

When the hearing reconvened, Special Master Hastings announced:

“All right folks. We’ll be starting again here if everyone will take his

position. Dr. Aposhian, you are still in the hot seat, I am

afraid.”

I remember wondering about the choice of words. The exhausted

witness must have too … as he murmured: " Still?”

The Special Masters asked more questions and then the hearing was

adjourned.

The same thing happened during the cross-examination of the

following expert witness, ’s gastro-enterologist Dr.

Arthur Krigsman. This time, the DOJ attorney was the same attorney who

had been so effusive about Dr. Fombonne’s accomplishments.1 3

Several other experts for the plaintiff also received a similar

treatment.

In spite of the clear language of the vaccine injury

compensation law, the Cedillo hearings were anything but

“less-adversarial”.

That was unfortunate for Cedillo, for many others who

are waiting and ... for JUSTICE!

References

[1]

http://www.vaccinationnews.com/double-standards-f-edward-yazbak-part-1-3-0

[2]

http://www.vaccinationnews.com/busting-rules-f-edward-yazbak-part-2-3

[3]

http://www.vaccinationnews.com/translation-court-F-edward-yazbak-part-3-3

[4]

http://www.ageofautism.com/2010/11/how-reliable-were-eric-fombonne-and-stephen-bustin.html

[5]

http://www.hrsa.gov/vaccinecompensation/authorizinglegislation.pdf

[6]

ftp://autism.uscfc.uscourts.gov/autism/cedillo/transcripts/day01-cor.pdf

[7]

http://yosemite.epa.gov/sab/sabpeople.nsf/WebPeople/AposhianH.%20Vasken?OpenDocument

[8]

Pichichero ME, Cernichiari E, Lopreiato J, Treanor J. Mercury

concentrations and metabolism in infants receiving vaccines containing

thiomersal: a descriptive study. Lancet. 2002 Nov

30;360(9347):1737-41.

F. Yazbak

MD

Falmouth, Massachusetts