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Second Round of Autism Omnibus Court Cases Decided

Posted Mar 12 2010 12:00am

Legal update By Rebecca Estepp, TACA.

March 12, 2010

Today in Washington DC, the Special Masters of the Court of Federal Claims released their decisions in the second round of Omnibus Autism Proceeding (OAP) claims. Once again, the OAP has failed children with autism that exhibited regression after their routine childhood vaccinations.  All three cases: Mead, King and Dwyer were denied compensation.

First off, what is the OAP?

The National Childhood Vaccine Injury Act of 1986 (Public Law 99-660) created the National Vaccine Injury Compensation Program (VICP) in 1988. The VICP was created to ensure there was an adequate supply of vaccines and stabilize vaccine costs. Prior to this Act, there were only a handful of drug companies that producing vaccines.  These companies faced lawsuits in civil court when their vaccines caused injuries.  The drug companies lobbied for liability protection and the Act was passed.

A responsibility of the VICP was to establish and maintain an accessible and timely venue for individuals found to be injured by vaccines. The VICP was developed to be a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines. The U. S. Court of Federal Claims that decides these claims in court is commonly referred to as vaccine court.  Damages are paid to individuals from a government-maintained fund. Drug companies can no longer be sued in a civil court of law until the claim has gone through the VICP. For more information go to: HRSA Vaccine Compensation.

The VICP was set up for individuals who suffered an “on-the-table” vaccine injury.  That is an injury that happened within minutes or hours after receiving a vaccine.

In 2001, parents of children with autism started filing claims with VICP.  These claims were considered “off-the-table,” meaning the vaccine injury did not occur “on-the-table” or at the time of injection.  In July of 2002, the Special Masters (the term used for “judges” in vaccine court) established the procedure for addressing these claims and the Omnibus Autism Proceeding (OAP) was born. It was at that time that parents started flooding OAP with claims.  More than 5500 claims have been filed in the program to date.
For more information on the Omnibus cases & decision click HERE.

Who are the Mead, King and Dwyer families?

The Mead, King and Dwyer are families with many similarities. All three families have boys with autism.  All of the boys in these cases are the same age, 12 years old. Each family reported that their sons developed typically during the first year of their lives and then suffered a regression after their routine pediatric vaccines were administered.  William Mead and Jordan King are both from Portland, Oregon while Colin Dwyer is from Queens, New York. Interestingly, William Mead was developing so typically that he was a model for Pottery Barn.

TACA would like to take this time to recognize the extraordinary efforts of the Mead, King and Dwyer families along with their attorneys. These brave families put their children on the line for more than 5500 children in the OAP.  Their attorneys fought a brilliant battle in a very rigid court. These courageous families and their attorneys are truly our heroes.

When were these cases heard? What was the causation theory behind these cases?

These cases were heard in May and July of 2008. These three families were chosen as test cases number four, five and six in the OAP under the causation theory number two. Theory number two states that the thimerosal contained in the vaccines these boys were administered was the sole reason for their injuries.

Weren’t there decisions in the OAP last year?  What was the causation theory in those OAP Cases?

Last February the same court denied compensation to the first three OAP cases (Cedillo, Hazlehurst and Snyder) which had a different theory of causation. Those cases theorized that the first three children had suffered an injury due to the combination of thimerosal containing vaccines and damage done from the measles, mumps and rubella (MMR) vaccine.

Read  more information on the first OAP cases at TACA HERE.

Analysis of all OAP decisions

Hindsight is always 20/20. The analysis I wrote for the first round of OAP decisions was far too optimistic. I mistakenly theorized that the reason the first verdicts took 19 months to conclude was due to a close call the Special Masters must have had when coming to their decisions. I no longer hold that opinion.

While I recognize that the Special Masters had the herculean task of sifting through thousands upon thousands of pages of evidence, I believe it took over a year for the Special Masters to carefully choose the language in their verdicts to send the message that the OAP will not award compensation to children with autism. The Vaccine Court seems to be more concerned about protecting the perception of safety in the current vaccine schedule than compensating the children who were harmed in the immunization program.

This opinion change was confirmed today when the Special Masters concluded that Mead, King and Dwyer families did not meet their burden of proof.  I’d like to point out that the government did not offer any other explanation for these boys’ regressions, other than to claim that it was a vague, nonspecific genetic cause for which there was not a shred of evidence.

I attended the OAP hearings in 2007 and 2008. I was full of hope this was the venue that would finally lead to justice for vaccine-injured children. I was optimistic as I watched the parents testify and watched their dedicated attorneys fight for their clients. Unfortunately, I now view the OAP as a program where government attorneys defend a government program using government-funded science before government judges. This is hardly fair and I am afraid we never had a chance for justice for these children.

Is there any hope?

I know this all sounds very bleak. However, there are many reasons why there is still hope for children with autism who suffered vaccine reactions.

1. These three decisions will be appealed. The appeal process begins immediately in the OAP.

2. Bruesewitz v. Wyeth—On March 8, the Supreme Court voted in favor of hearing this vaccine injury case. The issue in this case is not whether or not the child was harmed by a vaccine, rather the Supreme Court will decide on whether or not parents have the right to sue a drug company outside of the VICP.  Mary Holland, Esq. and Jim Moody, Esq. wrote a wonderful article on this upcoming case for the Age of Autism. Read more HERE.

3. Theresa Cedillo and Michael Cedillo v. Secretary of Health and Human Services—This amicus curae brief was filed in February backed by twenty-three autism organizations in the US Court of Appeals for the Federal Circuit.  Read more HERE.

4. The above legal cases will take many months to move forward which allows more time for science to develop. This could possibly help our side of the argument.

5. The Dr. Poul Thorsen situation is still evolving. Dr. Thorsen was a lead scientist in the Danish studies conducted in 2003 that showed that vaccines and autism were unrelated. Dr. Thorsen is now missing with $2 million of Danish Universities’ money.  Read more of this explosive story HERE.

6. The Hannah Poling and Bailey Banks cases. These two children with autism were awarded compensation for damage done to them during their routine childhood vaccinations. The difference for these two children was their cases were heard outside of the OAP and were compensated for conditions like seizure disorder and encephalopathy.  Read more about Hannah Poling and Bailey Banks: Poling HERE  and Bailey-Banks HERE .   

7. One in four parents now believes in the autism/vaccination connection! And no wonder. There is substantial evidence that a susceptible set of children have reacted to their vaccines. The number of children with autism has been skyrocketing for years and there is still no explanation from the government or the medical establishment for the increase. Read more at CBS News HERE.  

8. The newly formed Coalition for Vaccine Safety is spear heading many new vaccine safety initiatives including the call for Congressional Hearings on this topic. For more information on this coalition click HERE.

I ended last year’s decision analysis with “this fight is not over.” I feel even more devoted to that statement this year. While I do think the OAP is broken, needs reform and provides very little chance that any child will receive compensation from it, I don’t think the vaccine and autism connection issue is dead. This fight is far from over.

 Rebecca Estepp is Media Relations Director for TACA.



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