The Vaccine Court Saga Continues; New Case Fans the Flames of Controversy
Klaus Lahnstein - Getty Images
But first, a little back story:
Years ago, a special court was founded to manage claims of vaccine-related injuries. The court was created to expedite such claims - but also to protect vaccine producers from massive lawsuits. Over the years, the court has occasionally paid out claims, but has gone mostly unnoticed by the general public.
About a year ago, though, thousands of parents chose to file claims against the Vaccine Court, based on the theory that vaccines (specifically the mercury-based preservative thimerosal in some vaccines and/or the measles virus in the MMR vaccine) had caused the onset of the children's autism. Because the numbers were so large, the court chose to begin its proceedings by looking at nine test cases.
One of the cases originally chosen to be "tests" was that of Hannah Poling. But Poling's case never did come before the court. Instead, it was recently settled, with the court conceding that multiple vaccinations on a single day likely aggravated an underlying mitochondrial disorder which manifested itself in "autism-like symptoms." The CDC has stated that the Poling case was most unusual, and could not be used to prove that "vaccines cause autism." Some members of the autism community have disagreed vehemently.
Journalist David Kirby - who has written a great deal about the vaccine/autism controversy -- has been among the most vocal in claiming that mitochondrial disorders may be much more common than previously thought. Now, he writes:
...the boy who was selected to replace Hannah Poling as the first-ever thimerosal "test case" in so-called Vaccine Court, has just been found with many of the same unusual metabolic markers as... you guessed it, Hannah Poling.As written, this story certainly suggests that the Vaccine Court is deliberately choosing not to "test" cases that relate to mitochondrial disorder. It COULD be construed that they are doing so with ulterior motives. Or - they might simply be choosing to focus, instead, on cases that relate entirely to vaccines. At this point, it's hard to see through the fog - but there's no doubt that more information will be coming along - if not from the Vaccine Court itself then surely from other sources.Hannah's case was scheduled to be heard in Federal Claims Court on May 12 -- as one of three "test cases" of the theory that thimerosal (a mercury-based vaccine preservative) can cause autism.
Test cases will help address general causation issues in all 4,900 autism claims now pending in Vaccine Court. But following the government concession, Hannah was withdrawn as the first test case of the thimerosal theory, and attorneys scrambled to find a replacement: a young boy from New York.
Last week, however, the court announced that the replacement thimerosal test case was also being withdrawn, in order to "proceed to an individual hearing on a different theory of causation."
That theory, which applies to Hannah as well, maintains that children with dysfunctional mitochondria (the little batteries within each cell that convert food into energy) are susceptible to autistic regression, triggered by a vaccine-induced overtaxing of the immune system.
Stay tuned.
Comments
The following symptoms are used to diagnose what disorder?
Symptoms: seizures, loss of skills, gi tract problems, developmental delay, neuropathy, muscle weakness, endocrine imbalances, hearing and vision problems.
a) Autism
b) PDD-NOS
c) Asperger’s syndrome
d) Mitochondrial disease
answer: d
source: Mitochondrial disease criteria, diagnostic applications in children. Neurology 2006;67:1823-1826
Anyone with autism have any (all) of these symptoms?
Wow, Tom - that’s fascinating. Thanks very much for the insight. From what I can discern, the description you provide describes a very specific subset of folks with autism - by no means all, but certainly a decent percentage. Wouldn’t it be amazing if we could actually IDENTIFY and treat such a group?
Problem is, though, that mitochondrial disease is evidently set off by all kinds of things (any illness or trauma could do it - not just vaccines) - and treatments seem to be fairly sparse…
Lisa (autism guide)
“As written, this story certainly suggests that the Vaccine Court is deliberately choosing not to “test” cases that relate to mitochondrial disorder. It COULD be construed that they are doing so with ulterior motives.”
As written, the story actually suggests something very different.
In the first case, the HHS conceded liability, removing the child from the Omnibus test cases.
In this second case, the child’s father pulled the child out after the child’s lawyers wouldn’t put the case forward as a mitochondrial issue.
The Court is not deliberately avoiding the mito issue on this, second, child. The child’s laywers were.
Again, very different situations.
“Years ago, a special court was founded to manage claims of vaccine-related injuries.”
The so-called vaccine court is the U.S. Court of Federal Claims. It was founded over 150 years ago to adjudicate claims against the federal government. It has jurisdiction over claims under the National Childhood Vaccine Injury Act of 1986, as well as over a multitude of other types of claims for money against the federal government. For example, it has exclusive jurisdiction over claims by government contractors. It handles claims by Indian tribles. It handled claims for reparations by Japanese Americans under the Civil Liberties Act of 1988, and claims for losses arising from the federal bail-out of failed savings and loans, the Financial Institutions Reform Recovery and Enforcement Act of 1989. This court has a long history as the venue where the people can sue the government. It is a special court - that is, a court of special jurisdiction - but not in the way you describe it.
It was the attorneys for vaccine claimants, not the court, who requested that an omnibus autism proceeding be initiated to handle the volume of claims, and it was attorneys for the claimants who later proposed the use of “test cases.” Attorneys for the claimants are the ones who decide which cases will be test cases (although the court’s special masters have recently threatened to choose some test cases because of the claimants’ attorneys apparent inability to do so in a timely fashion).
In the Poling case, the court did not make any concession or any ruling on entitlement. The concession was made by the defendant/respondent, the Secretary of Health and Human Services. The court had no control over this whatsoever. In the Krakow case, the claimants asked the special master for an order permitting them to withdraw their case as a test case, and their motion was granted. To say that the court is somehow trying to avoid “testing” these cases flies in the face of reality.
One thing I find interesting is David Kirby’s pronouncements about the medical condition of the claimants in Poling and Krakow, since the medical records of these claimants are confidential and have never been made public. Just recently, the Poling family has made it clear that they do not consent to the public release of Hannah’s medical records — you can see that in the court’s April 10, 2008, order here. As far as I know, the Krakow family has not released their child’s records either. Clearly the Polings and the Krakows are taking advantage of the Vaccine Act’s confidentiality provisions that prevent the disclosure of medical records to non-parties, and that’s fine, of course. But as a result, not only are we prevented from checking on the accuracy of Mr. Kirby’s claims, but one has to wonder whether somebody who has access to these records has violated the law in making them available to Mr. Kirby. As Special Master Campbell-Smith cautioned in the April 10, 2008, order, the parties’ consultants and experts do have access to the records, and she said they should be required to sign non-disclosure agreements to safeguard against the leaking of confidential information.