Vaccine Court: Autism Debate Continues

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ANOTHER AUTISM CASE WINS IN VACCINE COURT

By F. Kennedy, Jr.

On February 12, the federal " Vaccine Court " in Washington issued a sweeping

ruling in three highly touted " test cases " against families who claimed that

their childrens' autism had been caused by vaccines. The Special Masters in

those three cases found that Petitioners failed to establish causation between

MMR vaccines, the mercury-laced vaccine preservative thimerosal, and autism (the

court decision, which is under appeal, deferred any finding on a thimerosal-only

theory of causation). The rulings could have a significant precedential impact

on some 5,000 families who opted to bring their cases in the Omnibus Autism

Proceedings (OAP) hoping that the vaccine court would officially hold that the

MMR vaccine or thimerosal had caused autism in their children.

The New York Times joined the government Health Agency (HRSA) and its big pharma

allies hailing the decisions as proof that the scientific doubts about vaccine

safety had finally been " demolished. " The US Department of Health and Human

services said the rulings should " help reassure parents that vaccines do not

cause autism. " The Times, which has made itself a blind mouthpiece for HRSA and

a leading defender of vaccine safety, joined crowing government and vaccine

industry flacks applauding the decisions like giddy cheerleaders, rooting for

the same court that many of these same voices viscously derided just one year

ago, after Hannah Poling won compensation for her vaccine induced autism.

But last week, the parents of yet another child with autism spectrum disorder

(ASD) were awarded a lump sum of more than $810,000 (plus an estimated

$30-40,000 per year for autism services and care) in compensation by the Court,

which ruled that the measels-mumps-rubella (MMR) vaccine had caused acute brain

damage that led to his autism spectrum disorder.

The family of 10-year-old Banks won their case quietly and without

fanfare in June of 2007, but the ruling has only now come to public attention.

In the remarkably clear and eloquent decision, Special Master Abell

ruled that the Banks had successfully demonstrated that " the MMR vaccine at

issue actually caused the conditions from which suffered and continues to

suffer. "

's diagnosis is Pervasive Developmental Disorder -- Not Otherwise

Specified (PDD-NOS) which has been recognized as an autism spectrum disorder by

CDC, HRSA and the other federal health agencies since at least the 1990s.

In his conclusion, Special Master Abell ruled that Petitioners had proven that

the MMR had directly caused a brain inflammation illness called acute

disseminated encephalomyelitis (ADEM) which, in turn, had caused the autism

spectrum disorder PDD-NOS in the child:

The Court found that 's ADEM was both caused-in-fact and proximately

caused by his vaccination. It is well-understood that the vaccination at issue

can cause ADEM, and the Court found, based upon a full reading and hearing of

the pertinent facts in this case, that it did actually cause the ADEM.

Furthermore, 's ADEM was severe enough to cause lasting, residual damage,

and retarded his developmental progress, which fits under the generalized

heading of Pervasive Developmental Delay, or PDD [an autism spectrum disorder].

The Court found that would not have suffered this delay but for the

administration of the MMR vaccine, and that this chain of causation was... a

proximate sequence of cause and effect leading inexorably from vaccination to

Pervasive Developmental Delay.

The decision is not an isolated ruling. We now know of at least two other

successful ADEM cases argued in Vaccine Court. More significantly, an explosive

investigation by CBS News has found 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

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.

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; following vaccination a perfectly healthy child experiences

high fever, seizures, and other illnesses, then gradually, over about three

months, loses language, the ability to make eye contact, becomes " over-focused "

and engages in stereotypical head banging and screaming and then suffers

developmental delays characteristic of autism. Many of these children had

received the autism diagnosis. Yet the radioactive word " autism " appears nowhere

in the decision.

Instead the vaccine court Special Masters rest their judgments on their finding

that the vaccines caused some generalized brain injury, mainly

Encephalopathy/encephalitis (brain inflammation) or " seizure disorders " --

conditions known to cause autism-like symptoms. A large number of the children

who have won these judgments have been separately diagnosed with autism. HRSA

acknowledged this fact in a recent letter, but told us it does not keep data on

how many of these children were autistic.

The Vaccine Court, in other words, seems quite willing to award millions of

dollars in taxpayer funded compensation to vaccine-injured autistic children, so

long as they don't have to call the injury by the loaded term " autism. " That

hazard is particularly acute for vaccine victims who appear before the Omnibus

Autism Proceedings (OAP). Since that body's decisions are closely watched,

published and accorded the weight of precedent, many lawyers consider the burden

of proof for petitioners to be impossibly high before the OAP Panel. It was for

this reason that 's attorney, Mark McLaren, elected to opt out of the OAP

and try his case separately, even though has been receiving

autism-related services in his home state and was eligible to file a case in the

Court's Omnibus Autism Proceedings (OAP).

McLaren told us he wanted to avoid the added burden facing petitioners under the

media glare and precedential weight attending OAP panel trials. " We considered

[the OAP route] because [] is on the autistic spectrum of disorders, but

we thought we could try it separately and apart from the Omnibus, and not as a

test case, " explained McLaren. " We thought we'd have a better chance if we tried

to on its own merit, away from the spotlights and the precedent setting

pressures that attend these OAP test cases - and it worked. "

Bob Krakow, a leading attorney for vaccine damaged children told that many

lawyers are now convinced that filing a claim in the OAP is a losing

proposition. " There's a growing conviction that if you have a autistic client

who has also been diagnosed with encephalopathy/encephalitis or seizure

disorder, you are better off not mentioning the word " autism " if you want to win

the case. " He recommended instead filing a non autism claim like " mental

retardation with seizure disorder " for an autistic client.

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. Damages are doled out from a 75-cent tax on every

vaccine sold and not from the vaccine makers. " You can understand why special

masters, burdened with their duty to protect vaccine programs, might be

unwilling to make the direct causal link between autism and vaccines, " Krakow

observed. " If you ask the big question and answer it in the affirmative, there

is a sense that it will damage the vaccine program irreparably. "

Vaccine Court judges are equipped with a draconian armory of weapons deployable

against plaintiffs intent on proving the causal connection between vaccines and

autism. Jury trials are prohibited. Damages are capped; awards for pain and

suffering are strictly limited and punitive damages banned altogether. Vaccine

defenders have an army of Department of Justice attorneys with virtually

unlimited resources for expert witnesses and other litigation costs. Plaintiffs,

in contrast, must fund the up front costs for experts on their own. In a

cultural choice that clearly favors defendants, vaccine court gives overwhelming

weight to written medical records which are often inaccurate -- over all other

forms of testimony and evidence. Observations by parents and other caretakers

are given little weight.

Worst of all -- plaintiffs have no right to discovery either against the

pharmaceutical industry or the government. Since autism is a behavioral

affliction rather than a precisely defined biological injury -- epidemiological

studies are critical to establishing its causation. But the greatest source of

epidemiological data is the Vaccine Safety Datalink (VSD) -- the government

maintained medical records of hundreds of thousands of vaccinated children --

which HHS has gone to great lengths to keep out of the hands of plaintiffs'

attorneys and independent scientists. Unfortunately the vaccine court has

judicially anointed this corrupt concealment by consistently denying every

motion by petitioners to view the VSD. The raw data collected in the VSD would

undoubtedly provide the epidemiological evidence needed to understand the

relationship between vaccines and autism. The absence of such studies makes it

easy for judges to say to plaintiffs they have not

met their burden of proving causation.

Meanwhile, CDC has actively, openly and systematically suppressed and defunded

epidemiological studies that might establish a causal link. CDC has ignored

repeated pleadings that it fund peer reviewed studies of unvaccinated American

cohorts like the Amish and home-schooled children. At the same time the agency

has worked overtime ginning up a series of fatally-flawed European studies

purporting to dispute the link. Even a cursory critical examination reveals that

the oft-cited Danish, English, and Italian studies are rank tobacco science.

Many of them were funded by CDC, a badly compromised agency, performed by

vaccine industry scientists, and published in miserably conflicted journals.

Needless to say, the existence of these phony studies, combined with the

deliberate dearth of epidemiological evidence makes it easy for the special

masters to dodge a politically explosive finding by holding that there is

" insufficient evidence. "

And, speaking of tobacco, it's worth recalling that for sixty years the tobacco

industry successfully defended a product that was killing one out of every five

of its customers against thousands of legal actions brought by its victims and

their families. Tobacco lawyers protected the cigarette companies by arguing

that there was no proven link between tobacco and lung cancer. Bob Krakow sees

many parallels. Big tobacco uses the same tactic of manufacturing research that

seems to dispute the connection to exploit the burdens on plaintiffs to prove

causation. Big tobacco prevailed for six decades even without the help of

supportive government agencies deliberately suppressing real science and

research. In that sense vaccine victims must leap a much higher hurdle.

Despite the perilous odds stacked against them in vaccine court, the evidence of

a vaccine/autism link is so strong that vaccine court judges and government

agencies have now recognized at least two theories of how vaccines cause autism:

the Vaccine-to-ADEM-to-ASD link in Banks' case, and vaccine-induced

aggravation of an underlying mitochondrial dysfunction that caused full-blown

autism in the Hannah Poling case. Both theories are different from those

rejected in the three cases last week.

Perhaps, these new disclosures will prompt The Times, with all its influence, to

actually make prudent journalistic inquiries into the phony science CDC uses to

defend its claims of " vaccine safety. " If it does, the paper will realize it has

once again been ill used by government agencies in a tragic campaign of public

deceit. The Times should make the reasonable demand that the government health

agencies finally release the Vaccine Safety Datalink for independent scientific

research and that CDC and HRSA lift their opposition to genuine epidemiological

studies that might finally provide real scientific answers to this debate.

---

A NEW THEORY OF AUTISM CAUSATION?

By Kirby

A ruling from Federal Vaccine Court -- that MMR vaccine caused an autism

spectrum disorder in a young boy named Banks -- flies directly in the

face of the triple-play decision against a vaccine-autism link issued by the

Court on February 12.

The Special Masters in those three cases inferred that the vaccine-autism theory

was the stuff of Alice in Wonderland fantasy, and virtually accused the

childrens' physicians of medical malpractice. (CNN's Dr. Sanjay Gupta called the

Court's language " snide, " and we agree).

Meanwhile, the US Department of Health and Human services said the rulings

should " help reassure parents that vaccines do not cause autism. " But why should

parents feel reassured when two out of five autism cases (40%) - that we know of

- have won taxpayer-funded compensation in Vaccine Court?

The Ruling

In his decision, Special Master Abell ruled that the MMR vaccine produced a side

effect in called acute disseminated encephalomyelitis (ADEM). ADEM is a

neurological disorder characterized by inflammation of the brain and spinal

cord. The disorder results in damage to the myelin sheath, a fatty coating that

insulates nerve fibers in the brain. ADEM can be caused by natural infections,

especially from the measles virus. But it also is a recognized post-vaccination

injury, especially from vaccines for rabies, pertussis, influenza, and MMR.

Evidence presented to support an MMR-ADEM link was compelling. It included a

1994 report from the Institute of Medicine that said it was biologically

plausible for a vaccine to " induce... an autoimmune response... by nonspecific

activation of the T cells directed against myelin proteins. "

In fact, both parties in the Banks case agreed " that the IOM has cited

demonstrative evidence of a biologically plausible relation between the measles

vaccine and demyelinating diseases such as ADEM, " the Court wrote.

Most cases of ADEM (80%) are in children. Symptoms usually appear within a few

days to a couple of weeks. They include: headache, delirium, lethargy, seizures,

stiff neck, fever, ataxia (incoordination), optic nerve damage, nausea,

vomiting, weight loss, irritability and changes in mental status.

I know of thousands of parents who witnessed many of these same symptoms afflict

their children shortly after vaccination, most typically the MMR. Did these

children with autism also suffer initially from ADEM or some subclinical version

of the disorder? We may never know (physical signs like myelin damage are

transitory).

Banks was given an MRI when his parents brought him to the hospital 16

days after his MMR vaccine, and that helped confirm his diagnosis. The children

I know who were brought in with similar symptoms were instead given Tylenol and

told to go home.

(Interestingly, Tylenol can affect production of glutathione, an essential

antioxidant and detoxifier. A preliminary study from UC San Diego showed that

children who were given Tylenol after their MMR vaccine were several times more

likely to develop autism than other children. " Tylenol and MMR was significantly

associated with autistic disorder, " the authors wrote. " More research needs to

be completed to confirm the results of this preliminary study. " )

Is vaccine-induced ADEM (and similar disorders) a neurological gateway for a

subset of children to go on and develop an ASD? That question will now become

subject to debate. Thousands of parents have reported similar reactions and

symptoms following vaccination, yet they lack radiological proof of ADEM or

related disorders in the form of an MRI. Meanwhile, most children with autism do

not present with myelin damage, but many do test positive for antibodies to

myelin basic protein (MBP).

Also worth noting is that ADEM causes an inflammatory response in the brain,

primarily in the microglial cells. It is also associated with abnormal cytokine

levels in the brain, and with autoimmunity. Autism, meanwhile, has been linked

to brain inflammation, microglial cell activation, cytokine imbalances, and

autoimmunity.

In most cases, symptoms of ADEM disappear within a few weeks or so, and the

disorder may be treated with IV cortisone to help reduce inflammation. But none

of the children with autism that I know were ever examined or treated for a

possible case of ADEM or other acute cases of encephalitis/demyelinating

disorder. By now, their myelin damage may have repaired itself, yet the damaging

agents, (MBP antibodies), persist.

ADEM is said to be rare, but the disorder may be grossly under-diagnosed (or

misdiagnosed). Even the government's chief witness against 's case

testified that he sees patients with ADEM " on a fairly regular basis. " What's

more, 's was the third successful vaccine-ADEM case argued in Vaccine

Court (that we know of) so far.

Can ADEM Cause PDD/ASD?

Special Master Abell had no trouble linking MMR to ADEM in Banks' case.

But linking his ADEM to PDD/ASD was more difficult.

There is no medical literature to support an ADEM-PDD link. The government's

expert witness, Dr. Mac, testified that " all the medical literature

is negative in that regard. " Instead, he proposed an alternative hypothesis for

's PDD (he suggested it was caused by glucose transporter 1 deficiency).

But Special Master Abell berated the government's witness in much the same way

that Hastings et al. had criticized witnesses for the families in their three

cases.

" This (glucose) hypothesis, which (Mac) declined to incorporate as a

plausible, probable theory of explanation, was used by Respondent to blunt

Petitioner's theory of ADEM, " Abell wrote. " This hypothesis was not given to a

reasonable degree of medical probability or certainty, and Respondent's expert

admitted that it was merely 'a possible, not necessarily a probable diagnosis.' "

Abell also chided Mac for his assertion that " all the medical literature

is negative " in regards to an ADEM-PDD link. " However, soon thereafter, he

corrected this statement by clarifying, 'I can find no literature relating ADEM

to autism or [PDD],' " Abell wrote. " It may be that Respondent's research reveals

a dearth of evidence linking ADEM to PDD, but that is not the same as positive

proof that the two are unrelated, something Respondent was unable to produce.

Therefore, the statement that 'all the medical literature is negative' is

incorrect. "

The Court also took Mac to task for insisting that 's initial

symptoms were not 100% consistent with the signs of ADEM. " His distinction seems

one of degree, not of type, and strikes as a trifle semantic, " Abell sniffed. He

also noted that Mc was having a hard time determining 's current

diagnosis. " He ultimately concluded that ' falls into the large group of

children with autism/PDD in which by our current evidence-based medicine we

rarely can make a specific diagnosis.' "

Special Master Abell seemed to lend more credence to witnesses for the Banks

family.

Chief among them was Dr. Ivan , a neurologist and psychiatrist. Dr.

testified that " the majority of patients with ADEM improve significantly, " but

added that " the exception to this rule is when patients have been exposed to

measles, just like in the case of MMR vaccine, " in which case subsequent brain

damage " may occur in up to 50 percent of patients. " He said such events include

" mental syndromes such as PDD and others, " and opined that " up to 50 percent of

patients...who have had ADEM will show (PDD) as a consequence. "

Dr. , a member of the US Military, gave his testimony by phone from Mobile,

AL where, the next day, he was to ship out for a tour of duty in Iraq..

In his conclusion, Special Master Abell wrote:

The Court found that 's ADEM was both caused-in-fact and proximately

caused by his vaccination. It is well-understood that the vaccination at issue

can cause ADEM, and the Court found, based upon a full reading and hearing of

the pertinent facts in this case, that it did actually cause the ADEM.

Furthermore, 's ADEM was severe enough to cause lasting, residual damage,

and retarded his developmental progress, which fits under the generalized

heading of Pervasive Developmental Delay, or PDD. The Court found that

would not have suffered this delay but for the administration of the MMR

vaccine, and that this chain of causation was not too remote, but was rather a

proximate sequence of cause and effect leading inexorably from vaccination to

Pervasive Developmental Delay.

And he added this:

Petitioner's theory of PDD caused by vaccine-related ADEM causally connects the

vaccination and the ultimate injury, and does so by explaining a logical

sequence of cause and effect showing that the vaccination was the ultimate

reason for the injury.

Does Banks Have Autism?

Banks does not have " classic " or full-blown autism. But he has been

diagnosed with PDD-NOS, which is squarely on the autism spectrum of disorders.

There was quite a bit of back-and-forth on 's diagnosis in the ruling,

whose heading included the term " Non-autistic developmental delay. " At several

points in the proceedings, witnesses took great pains to say that does

not have " autism " which, technical speaking, is true.

On the other hand, Special Master Abell included notations declaring that

" Pervasive Developmental Delay describes a class of conditions, and it is

apparent from the record that the parties and the medical records are referring

to Pervasive Developmental Disorder Not Otherwise Specified (PDD-NOS). "

Even so, some will argue that does not have an ASD. They are simply

wrong. The diagnosis of PDD-NOS was added to the list of autism spectrum

disorders in the 1980s. It was precisely from the inclusion of these " milder "

cases into the total number, that the CDC came up with the estimate of 1-in-150

US children with some form of " autism/ASD. "

So, if does not have ASD, then the number of " autism " cases is well below

the 1-in-150 mark and needs to be revised downward (the CDC once estimated that

40% of ASD cases were " non-autistic " in the classic sense).

What's more, does not have a " mild " form of ASD -- he struggles every day

with endless challenges. He receives autism services in his home state and

attends a special school for children with autism. was also completely

eligible to file a case in the Court's Omnibus Autism Proceedings (OAP), along

with 5,000 other claims.

And besides, if the government chooses after-the-fact to argue that Banks simply

has another form of brain damage but not, specifically " autism, " is that really

any comfort?

This particular theory of causation -- Vaccine-to-ADEM-to-ASD -- is different

from the three cases that lost, and different than the theory in the Hannah

Poling case (vaccine-induced aggravation of an underlying mitochondrial

dysfunction caused full-blown autism).

So we now have two novel theories of how vaccines might contribute to ASD --

both ADEM and mitochondrial dysfunction are recognized by the Court as

contributing factors.

And yet the government insists it has never made an award for vaccine induced

ASD, just vaccine related ASD.

" The government has never compensated, nor has it ever been ordered to

compensate, any case based on a determination that autism was actually caused by

vaccines, " said Bowman, a spokesman for HHS's Health Resources and

Services Administration. " We have compensated cases in which children exhibited

an encephalopathy, or general brain disease. Encephalopathy may be accompanied

by a medical progression of an array of symptoms including autistic behavior,

autism, or seizures. "

" Some children who have been compensated for vaccine injuries may have shown

signs of autism before the decision to compensate, " he added, " or may ultimately

end up with autism or autistic symptoms, but we do not track cases on this

basis.

Unfortunately, the track record on vaccines is cloudy in this particular Court:

Three out of four ADEM cases have been successful; and (at least) two out of

five ASD cases have also won.

People will argue that ADEM is rare; that vaccines " only " caused PDD in ;

and that this was a legal and not scientific decision. The problem is we don't

know how prevalent ADEM is because we never looked; while " PDD " is

interchangeable with " ASD " in the language of public health. And, the three

cases that lost were also " legal " decisions.

Kennedy, Jr. and I would love nothing more than to reassure parents that

the nation's current vaccine program is 100% safe for all kids, and that zero

credible evidence has been presented to link vaccines with autism. But that

simply isn't true -- as at least two court cases have found.

Love, Gabby. :0)

http://stemcellforautism.blogspot.com/

 

" I know of nobody who is purely Autistic or purely neurotypical. Even God had

some Autistic moments, which is why the planets all spin. " ~ Jerry Newport