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Appeals Won’t Succeed – Olmsted Isn’t Honest

Posted Jun 11 2010 5:37pm
There is close to zero chance of the Court of Appeals overturning the Special Masters decision in another of the vaccines cause autism cases, Cedillo.

It is important for those hoping that these appeals to succeed to know that it is very, very, unlikely to happen and that the process before the Special Masters is finished. Writers who know better, such as Dan Olmsted at Age of Autism, do a disservice to their readers when they don’t explain this.

To test Age of Autism’s censorship policy,  parts of this posting were submitted as a comment to the article by Dan Olmsted.

Age of Autism comment begins
All 6 of the autism test cases found against the plaintiffs.  All 6 were appealed to the District Court --- none succeeded.  The Court of Appeals in Hazlehurst did not overturn the decision.

In Olmsted on Autism: Day in Court at Age of Autism, Dan Olmsted reports on the June 10, 2010 oral argument before the Court of Appeals in Cedillo. 
His report does a disservice to the readers of Age of Autism, by giving them false hope that the decision in Cedillo might be reversed.  Yes, there is a chance that it might be reverse, but it is extremely unlikely. And Olmsted should have explained why. He didn’t.
Olmsted writes:
“I have a very positive feeling about the federal judges,” said Sylvia Chin-Caplan, who argued the appeal.
 I leave with the sense that the judges were very troubled that the government had not acted in good faith,” said Mary Holland [who appeared on behalf of organizations that blame vaccines for autism]. “Those judges were very troubled by what the government’s done – very troubled.”
He goes on to give examples from the oral hearing. If this were a normal newspaper report for a general audience, Olmsted’s reporting would be so-so. But from an expert on the topic and for a specialized audience it is wrong.

The only argument before the Court of Appeal that had merit is that the Special Masters allowed in testimony from a UK expert when they shouldn’t have as some of the information was based on reports that the British government had not released so they could be presented in these hearings.  The specials masters kept the record open for a year and told the plaintiffs that they would join with them in an application asking the British government to release the documents.  The plaintiffs never applied to have the documents released.

The Court of Appeal panel in Hazlehurst faced roughly the same arguments as the Cedillo panel. The Court of Appeal reviews the trial court decision 'de novo', or brand new. If they don't like the trial court decision, they replace it with theirs. However, the appeals court and the trial court can't merely replace their judgment for the Special Master.   All quotes below are from the Court of Appeals decision in Hazlehurst.
By statute, the Court of Federal Claims may set aside the special master's decision "only if the special master's fact findings are arbitrary and capricious, its legal conclusions are not in accordance with law, or its discretionary rulings are an abuse of discretion."
Appeals courts are very limited in what they can do when they disagree with the facts decided by a trial court (in a criminal matter) or the medical facts (before the Special Master).  But normally the Court of Appeal can substitute its views on admissible evidence for that of the trial court (criminal court) or the Special Masters.  That isn’t the case here, because following the statute that governs the Vaccine Court, Rule 8 states
In receiving evidence, the special master will not be bound by common law or statutory rules of evidence but must consider all relevant and reliable evidence governed by principles of fundamental fairness to both parties." Vaccine R. 8(b)(1) (2009).
Even if the Court of Appeals thinks that the Special Master was wrong when letting in Dr. Bustin’s testimony after giving the plaintiffs a year to apply to the British for access to the reports, that isn’t enough for them to substitute their opinion for that of the Special Master.
So there is near zero chance that the appeal would succeed. Dan Olmsted should have said so and explained why.

end comment sent to Age of Autism

Some additional quotations from Hazlehurst:
If the special master has considered the relevant evidence of record, drawn plausible inferences, and articulated a rational basis for the decision, "reversible error will be extremely difficult to demonstrate."
Vaccine [Court] Rule 8 provides that "[i]n receiving evidence, the special master will not be bound by common law or statutory rules of evidence but must consider all relevant and reliable evidence governed by principles of fundamental fairness to both parties." Vaccine R. 8(b)(1) (2009). That rule echoes the statutory requirement that the special master "shall consider . . . all . . . relevant medical and scientific evidence." 42 U.S.C. § 300aa-13(b)(1). The rule, like the statute, directs the special master to consider all relevant and reliable evidence, unencumbered by traditional rules of admissibility, while being guided by principles of fairness. We conclude that the special master complied with that directive when considering Dr. Bustin's evidence.
The special master's decision to admit and consider Dr. Bustin's testimony and reports was in full accord with the principle of fundamental fairness. Although not obligated to do so, the petitioners chose to introduce the Unigenetics data and thus placed its validity squarely in issue. Fairness dictated that the government be given an opportunity to refute that critical evidence.
As the special master noted, Dr. Bustin's testimony and reports are highly relevant. They speak directly to the reliability of evidence central to the petitioners' theory of causation: the detection of persistent measles virus in autistic children who received the MMR vaccine. As the Court of Federal Claims observed, once the petitioners introduced that evidence, "the special master was duty-bound to assess the reliability of those studies."
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