Autism Omnibus crashing?

30 May

Another few points of interest in the Autism Omnibus proceedings.

Firstly and perhaps most significantly is the defining of the Omnibus proceedings as being at ‘crisis point’ by the Special Masters overseeing the case:

Petitioners were supposed to provide (by their own suggestion) test cases that would show, in the first instance, how MMR and thiomersal working in combination would cause autism. Special Masters agreed to this arrangement and dictated that three cases would be needed. So far, only one out of the 4,700 cases in the Omnibus can be found.

At (the) first status conference in December 20 2006, when the PSC (Petitioners – the parents) first proposed moving to a test case format, Special Master Hastings advised the PSC attorneys that for a ‘test case’ approach to be effective, the PSC would need to offer additional cases, rather than a single test case, for trial. Since that time, the PSC has stated that it will select two such cases, and has represented that it is working diligently on selecting the two cases. At the status conference held on Jan 25 2007, the PSC was orally instructed to designate such cases within 30 days (i.e. by Feb 24 2007). The PSC did not do so. At the status conference held on Feb 28 2007 the PSC representative stated that the teo cases would be designated within seven to ten days. That did not happen. After further discussion, we extended the deadline for designation until March 30 2007. that date, too, passed without any designation. At the status conference held on April 2 2007, the PSC attorney stated that the two cases would be designated on April 6 2007 but no designation was made by that date either We then extended the deadline to March 30, then again May 10, but, still no additional test cases have been designated.

So, out of the 4,700 cases filed under the Omnibus, apparently only one can show a theory about how MMR and thiomersal, acting in unison can cause autism. Which is weird considering that its a ‘fact’ amongst adherents of the vaccine hypothesis.

And how about that one case – Cedillo – what does that show?

…without going into detail, we note that the facts of that one ‘test’ case are fairly unusual and do not appear to be representative of the majority of the cases in the OAP (Omnibus Autism Proceedings).

Good grief. Could it be that, from the 4,700 cases in the Omnibus that there are _no cases_ representative of a general theory of how MMR and thiomersal working together cause autism? Back to the Special Masters – the emphasis in this passage is theirs, not mine.:

We want to stress that we believe we are at a _crisis point_ in the efforts to move the autism cases towards decision. The Office of Special Masters has adopted the approach toward these cases originally suggested by _petitioners’_ counsel and we have patiently waited almost _five years_ to give that approach a chance to succeed…..Either something must change or we will be required to go to a new approach.

And then the bombshell:

In the event that petitioners do not promptly come forward with additional test cases to allow us to pursue the ‘test case’ approach described above for handling the autism cases, it appears that the ‘omnibus approach’ to the autism cases may have to be declared a failure.

That is some pretty direct language. You’ve had five years, it says, we’ve done everything your way. Now shape up or ship out.

Things got worse for petitioners. For years they had been claiming that they couldn’t move forward without certain data (VSD data) being made available to them. It would seem that the Special Masters have seen this for the delaying tactic it clearly is as they have denied this motion.

They have denied it because they (rightly) claim that it is unnecessary and involved a lot of irrelevant data. They also note that petitioners should be able to make a case out of what they have and that petitioners failed to provide a good reason why this data was needed. Special Masters noted:

Finally we note that the PSC itself states that ‘the petitioners could very well establish general and individual causation in these Omnibus claims _without epidemiological evidence_ ‘

That’s what bragging gets you I guess.

Update: Daubert Ruling

The Special Masters also ruled on the applicability of Daubert in the Omnibus cases. Before we discuss that, lets have a brief refresher as to what it is.

Daubert is a legal precedent in the US that essentially makes the presiding judge the arbiter of good science. They _must_ under Daubert apply a very high standard of science. It speaks volumes that Martha Herbert, Boyd Haley, Mark Geier have all fallen foul of Daubert in the recent past. Under Daubert, Haley and Geier’s science was adjudged to be of such low quality that they never even testified – they were barred from doing so.

OK, so. Respondents asked the Special Masters to ensure that Daubert standards were applied to the causation issues in the Omnibus hearings. They even asked that four ‘expert’ witnesses be excluded under Daubert which was a legitimate thing to do.

If the Special Master had agreed with that request than that would have been game over for the whole Omnibus hearing. No expert witnesses = no causation = no case.

What the Special Master has actually done is not quite that, but Plaintiffs should be very concerned. The Special Masters have agreed that Daubert standards should play an extensive role:

I agree with respondent that the principle that scientific evidence must be evaluated for reliability, set forth in Daubert v. Merrell Dow Pharmaceuticals….does have application to Vaccine Act cases.

That is big news. Plaintiffs need to realise that their science is going need to be of the utmost quality. However, the Special masters have decided that this proceeding is procedurally different enough that a small wrinkle should be introduced. This is a non-jury trial. In a jury trial, Daubert can be used (as I mentioned above) to exclude poor quality expert witnesses. This could also happen in a non-jury trial but the Special master has elected to not go that way. What they have decided to do is:

I conclude that the best procedure is to hear the testimony of the expert witnesses in question….I can then evaluate the reliability of the expert testimony in question [in the context of Daubert] and determine what weight it should be accorded, if any.

So, Daubert will apply, but instead of being used to exclude the possibility of juries hearing poor quality expert witnesses, as this is a non-jury trial, Daubert will be applied directly to the proffered testimony of the expert witnesses.

Whichever way you cut it, this is not good for Petitioners. They were staunchly opposed to the Daubert standard being applied at all as they knew it would mean that scientific standards of proof would apply. Standards that Boyd Haley and Mark Geier have already failed to meet in previous thiomersal/autism cases.

30 Responses to “Autism Omnibus crashing?”

  1. Ms. Clark May 30, 2007 at 07:31 #

    Sure looks like a bunch of people have enjoyed making the special master(s) dance like so many marionettes on the strings that these low-life ambulance chasers are pulling (disclaimer: not all lawyers are low-life ambulance chasers).

    It looks like the end game is not working out like the PSC thought it would. I remember a year or more ago how the PSC bluffed that there were these great studies that were about to be finished and about to be peer reviewed and about to be published, and that as soon as they got those results in hand they’d be ready to make their case, and they’d win for sure… uhuh.

    It has been suggested elsewhere that maybe the Cedillo case was offered because it was so bizarre, and that this is all about making confusion out of the proceedings in the hopes that some miracle will occur and the Feds will just get fed up and write these slime-balls a blank check out of disgust.

    It’s funny on EoHam they are discussing amongst themselves if they need to help out the PSC by offering any cases that could be used to prove the point… vaccines caused that kids autism.

    I think one BIG problem is that somehow the big legal brains for the mercury parents decided that the DDI urinary metals lab tests were solid, like heavy duty proof of heavy metal poisoning. The parents even discussed it as a strategy, they needed to have these mail order lab tests in order to cash in on the thimerosal injury cases.

    If the lawyers really thought that the lab tests would bowl over the opposition… and then later they realized that the lab tests are pure garbage… they might have realized that they have nothing. Surely they know how scummy most of their own paid professional witnesses are. Lyn Redwood talks about how much she disliked Geier at first, and Geier talked about how he disliked the mercury parents at first (in the book, Evidence of Forensic Shenanagins). There’s no love lost there between them, for sure.

    I hope the public turns on them for their lying manipulation for the last 6 years. The Law Firm of Watters and Krauts, et al, ought to pay for the damage they’ve done to autistic people and even for the harm done to innocent children by chelationists.

  2. Brian Deer May 30, 2007 at 09:02 #

    It’s the same pitiful story as in the UK. When it comes to the crunch, they simply can’t find any cases of autism that they can pin on a vaccine. They might exist. Anything might exist. But, on the preponderance, they can’t be demonstrated. I mean, “Johnny got the mercury with his DTP, and the MMR tipped him over the edge…” Per-lease.

    You have to remember that persons with autistic disorders significant enough to potentially claim money are amongst the most documented patients to move through an advanced health care system. All the stuff about people like my friend Andy being the first to take the children’s problems seriously is pure bollocks. These are, by and large, very extensively, and very expensively, investigated kids.

    What often happens is that a mother, inflamed by Wakefield, Geier et al, into believing that vaccines cause autism, shall we say “misremembers” their child’s history, is coached in this misremembrance by lawyers, but is then exposed to the most extraordinary forensic examination.

    “Oh, yes,” says mom, “I kept telling the doctors it was the MMR, but they never wrote it down. I took my child back to the doctor, but he never made any record…”

    I’m not saying that many of these mothers don’t genuinely believe what they’ve read in newspapers, or heard from people like Wakefield. By and large, these aren’t the crooks, quacks and idiots who have driven this thing. And nobody could feel anything other than the greatest compassion for so many of them, who sometimes have to bring up seriously disabled kids with next to no extra financial or emotional support.

    But – and I may have said this before – when the only DTP test case to come to trial on the specific facts in England, in 1986, it ended with the mother baying at the court, and THE CHILD’S legal team walking off the job on account of the fact she was plainly lying.

    With the MMR action here, it was, again, the children’s own lawyers who informed the Legal Services Commission, in 2003, that, after reading the reports, they didn’t believe they could make a case that the shots caused autism.

    So, the mercury moms can make calls on the EoH website, but that will only make things worse.

  3. Brian Deer May 30, 2007 at 11:34 #


  4. laurentius-rex May 30, 2007 at 11:46 #

    Indeed and remember it is psychology at work here not science. Psychology is what determines a witnesses reliability with a certain amount of Sociology thrown in and a liberal sprinkling of economics, in fact a lot of economics considering the only motivation for all this is financial gain.

    And they accuse “big pharma” of profiteering !!

    No they are ambulance chasers, corrupted by greed, and like any gangster jealous of the profits of another mob, eager for a piece of the action.

  5. Rich May 30, 2007 at 11:53 #

    Do any legal types out there know why, as Arthur Allen states in his Slate piece, the Autism Court has a lower standard of scientific evidence?

  6. Joel Smith May 30, 2007 at 12:09 #


    It has a lower standard of evidence because it also has other disadvantages for the plaintif, namely a limitation on damages per case (which is why these lawyers wanted 4500 cases – gotta buy that new boat, after all). The idea of the court was “we’ll give you something to encourage you to use this process instead of using the traditional court process, since you’ll also be helping us out.”

  7. Bonnie Ventura May 30, 2007 at 12:15 #

    Rich, it’s because vaccine court decisions are made by special masters who have significant medical expertise, rather than by juries. The special masters are assumed to be capable of determining the validity of scientific evidence, whereas juries would be easily confused.

    Kev wrote a post in March that addressed this subject and linked to a federal court document discussing it in more detail:

  8. rich May 30, 2007 at 12:25 #

    Thanks Joel,
    It all challenges credulity. If any damages were awarded, it would not only go totally against scientific consensus but would mean that many more people would go unvaccinated, leading to more illnesses, at great cost — human suffering and economic hardship. I just find it hard to believe this whole thing is even going forward at all. The so-called scientific evidence presented in this hearing by the plaintiffs will come from the same cast of characters, who happen to have Ph.D.s after their name, with their anecdotal evidence and few terrible articles in third rate journals while Pediatrics, JAMA, etc. are treated as if they are insignificant. And when you look at the scientific community, it seems that people are just incredibly weak: they are reluctant to take a stand. People like Kevin and others on this site, Ms. Clark, and others are taking a stand, of course, but aside from a very small number of scientists most seem unwilling to say anything definitive. It’s so frustrating! You’d think NIH or some institution could just take a stand. But they say things like “one can never rule out anything” and explain their equivocation on the basis of being good scientists. But it could also be weakness and fear.

  9. Club 166 May 30, 2007 at 12:47 #

    The court’s document states that if the test case approach is declared a failure, then they would have to move forward on an individual case basis.

    Could it be that this is what the plaintiffs want? Having realized that they’ll lose at this point, hope that by flooding the courts with case after case that one of them would be decided on behalf of the plaintiffs? This would then give them precedent for filing more. It would be an expensive proposition, but may be their only hope at this point.

  10. Kev May 30, 2007 at 12:56 #

    Rich – there’s a similar process over here in the UK, except it never even gets to trial. What happens is that a parent/person thinks they/their relative has been injured by a vaccine and they make a claim to the Vaccine Damage Payment Unit. That claim, and all accompanying medical paperwork that pertain to the claim are examined and a decision is made.

    Its a no-fault system like the US vaccine court.

    Fact is that making vaccines is massively unprofitable. The last time vaccines were dragged through the mire the entire industry was nearly bankrupted and just about every vaccine manufacturer essentially said ‘screw you guys, I’m going home’. This left us with the worrying prospect of no more vaccines being manufactured.

    So, these systems were developed. A limited pool of money was established by vaccine manufacturers and/or governmental bodies and people were told that they could go through the acknowledged vaccine claims system and if they won they’d get a set amount of money (its £100k over here) and the vaccine makers would have no actual liability. Potential claimants were also told that they wouldn’t have to meet such a stringent set of scientific criteria.

    To me, its more about acknowledging the power of lawyers to screw people and manipulate the system than good or bad science. The whole system is basically saying – you and I both know you can’t scientifically prove a damn thing because its simply not true. However, you and I _also_ both know that your lawyers can cast enough doubt around to make it look bad and drag it out and bankrupt us into the bargain – therefore lets do it this way and cut out the legal nastiness.

    However, at the time no-one banked on 4,700+ people all claiming at once. This is a special set of circumstances. There’s another edict been made by the Omnibus court that I forgot to blog about which touches on this. I’ll amend this post accordingly some point soon.

  11. Kev May 30, 2007 at 12:59 #

    _”Could it be that this is what the plaintiffs want? Having realized that they’ll lose at this point, hope that by flooding the courts with case after case that one of them would be decided on behalf of the plaintiffs?”_

    That has been floated as a possibility. However, its a very, very risky thing to do. Daubert would _definitely_ apply and at the moment, no decent science exists. As it stands at the moment, if all these 4,700 cases were heard individually tomorrow then they would, under Daubert, all fail. The science simply isn’t there.

  12. TheProbe May 30, 2007 at 13:18 #

    Daubert does apply as the Special Masters said in their denial of the defense’s Daubert motion to exclude. They took the position that the claimants’ shall have their day in court (otherwise the whining that they are victims of a conspiracy would be deafening) and then the evidence could be evaluated under Daubert. The claimant’s evidence is nothing more than a house of cards with reciprocal studies supporting each other with no independent proof. Knock out Geier and Haley, and voila, no foundation.

    Another interesting point is that the hearings are open to the public.

  13. Kev May 30, 2007 at 13:24 #

    Yup – just amended the above entry to talk about the Daubert ruling.

  14. bones.0504 May 30, 2007 at 13:30 #

    “Do any legal types out there know why, as Arthur Allen states in his Slate piece, the Autism Court has a lower standard of scientific evidence?”

    I think Mr. Allen’s point is a court’s threshold for “proof” of causation is generally not as stringent as the scientific community’s. For example the judge in a vaccine court is merely ruling on whether or not (1) it is generally accepted in the scientific community that ‘A’ causes ‘B’, and then, (2) if so, does the evidence in this particular instance show that ‘A’ caused ‘B’.

    Additionally, the judge and/or jury can also be potentially swayed by other non-scientific factors as well such as (in this instance)the emotionality of an injured baby, a crying parent testifying about how her helpless child was injured by the big mean pharma giant, etc…etc…etc…

    From the public or lay-person’s perspective, a ruling in favor of petitioner would be seen as equivalent to a ruling in favor of causation. In other words, if the court rules in favor of compensating the parent(s), then Joe Public will interpret this ruling as proof that vaccines cause autism.

    Lastly, while the Daubert standard, re the admission of scientific evidence, is applied in vaccine court, the special master has the option of hearing the testimony before its application. This differs from the protocol when a jury is involved. If a jury is involved, then the judge is obligated to apply Daubert before the expert testifies in order to protect the jury from potentially harmful information.

    From purely a risk/benefit perspective it is always better to not have the expert testify at all, no matter how fraudulent Geier’s…errrr…ehhh…I mean the expert’s testimony may be.

  15. Rich May 30, 2007 at 14:37 #

    I have learned a lot from the comments. Thank you! I wonder who the four experts are that HHS wanted excluded.

  16. isles May 30, 2007 at 15:02 #

    The order denying the PSC’s requested VSD data was significant, I thought, because of its length and vehemence. The Special Masters are clearly running out of patience for the PSC’s failure to get its act together and present an actual case.

    I also thought it was telling that the Special Masters said, in essence, “we’ve seen the rest of the evidence already and we don’t think anything from the VSD is going to change our minds.”

    Kev, I’m all impressed by how up-to-speed you are on the US legal system! I think you’re a better lawyer at this point than some PSC members. 🙂

  17. Brian Deer May 30, 2007 at 15:31 #

    Last week in the High Court in London, the judge almost lost it. It was a case management conference, essentially to shut down the last vestiges of a few cases of parents who hadn’t discontinued or had their claims struck out of the collapsed MMR lawsuit.

    It was a very tragic day, seeing a handful of parents – who hadn’t the slightest prospect of prevailing – trying to set aside almost 10 years of litigation, and £15m of public spending, which had centred on Wakefield’s allegation that measles caused a gut disease, which caused autism in 8 named children. Instead, they wanted to reactivate the litigation with a completely different mechanism and with different children’s cases. They’ve even filed an appeal to overturn a practice direction of the Lord Chief Justice issued in 1999, which set up the class action.

    At times, the judge looked like a cartoon cat, drumming his fingers on the bench.

    But, to me, the most appalling thing of all was the deeply moving spectacle of one mother who’d written a narrative about her child (which she kindly let me read). It included a huge slug of how my pal Andy was some kind of hero. It was like the penny just hadn’t dropped. I don’t know if it ever will.

    She didn’t cry, but I’ve seen mothers doing that in court, holding up pictures of their children. No doubt we’ll see some of that in DC.

    The cruelty to these parents is just beyond belief. IMHO.

  18. Anne May 30, 2007 at 18:30 #

    Vaccine cases in the U.S. Court of Federal Claims have a lower standard of proof of causation for “table injuries.” If the claimant’s injury is on the vaccine injury table for the vaccine in question, and was sustained in the time frame shown on the table, then causation is presumed. This is supposed to provide vaccine-injured claimants with speedy, no-fault compensation for their injuries. The compensation is limited, however, and if the claimant doesn’t want to accept it, he or she can then bring an action in a court of general jurisdiction, subject to the usual proof requirements.

    Autism is not a “table injury,” though. In vaccine court, litigants can bring claims for non-table injuries, but causation is not presumed. The claimant has to prove causation in two steps: (1) general causation — that the vaccine can cause injuries of the type the claimant suffered; and (2) specific causation — that the vaccine did cause the injury in this particular case.

    The omnibus proceeding was created so that the issue of general causation could be decided and then applied to multiple cases, rather than holding every claimant to the burden of proving it in his or her individual case. Then, each claimant would have to prove that the vaccine caused his or her particular injury.

    Scientific evidence proves general causation, and it has to be reliable evidence. That’s where Daubert comes in. I don’t think there is a reduced standard of scientific evidence in cases that involve non-table injuries like autism.

    Apparenly the claimants’ lawyers are having trouble with proving both aspects of causation. We know the problems with the general aspect — whether there is reliable scientific evidence that thimerosal, the MMR, or the two combined *can* cause autism. But also, the petitioners steering committee has stated that it is having trouble determining the thimerosal exposure of the claimants. In any given case, if you can’t prove that the kid had thimerosal in his vaccines, and when and how much, it is hard to prove that thimerosal caused the kid’s injury.

  19. Ms. Clark May 30, 2007 at 20:30 #

    Brian Deer,

    Thanks for the link to that video. I had never seen that before. Wakefield looked cute in that black chinese pantsuit thing with the white trim. The “shaolin master” probably hurt fewer people that Wakefield in his gut doctor incarnation has.

  20. laurentius-rex May 30, 2007 at 22:18 #

    Yes but can the not so amazing Randi prove that if a tree falls in a forest and there is nobody there that it makes a sound? I doubt it, because I have already decided that the answer is that it does not!

  21. Lyn Blaxwell Fredwood May 31, 2007 at 07:56 #

    This is going out to my home boys, my Andys – Wakefield and Waters.


  22. laurentius-rex June 1, 2007 at 23:03 #

    Dear Dear, Brian me old pal me old beauty, don’t go getting your antlers in a twist, whatever happened to Steve Laufer, not what he seemed was he? last time I met him he was writing speeches for Willi Brandt, thought it was a bit sus at the time. Perhaps Chairman Laufer is a journalist himself now.

  23. Ms. Clark June 2, 2007 at 03:43 #

    Larry, did you shut down the hub?

  24. Ms. Clark June 2, 2007 at 08:39 #

    Never mind previous question. The answer was “no.”

  25. John Markins June 15, 2007 at 23:13 #

    Try having an autistic grand daughter that became autistic after her shots…what tree are you hanging in? You sound like the drug companies are supporting you. I sure hope that you don’t have someone with autism in your immediate family.

  26. Kev June 16, 2007 at 04:07 #

    My daughter is autistic John. You sound like the alternative health market is supporting you – what are you? Some kind of Small Pharma Shill?

  27. Phil June 17, 2007 at 00:30 #

    More simplistic assumptions, Kev. I wonder how many idiots like this are named “John”? I just wonder if the US education system is as good as it’s made out to be with all this lazy thinking going on. “Oh my child is autistic because of the shots” and leaves it at that.

    Really convincing argument that one!

  28. Kevin July 12, 2007 at 14:57 #

    I really do not understand why comments like these are made. Have you walked in another’s shoes. Do you know what they are going through? Have you researched the topic yourself? After two of my children were diagnosed autistic, I thought back at the time they were getting shots and remembered that we were given a paper by the pediatrician that presented the risk factors of vaccinations. One of them was BRAIN DAMAGE. It did not specify what exactly, how it could occur after vaccinations, or what in the vaccinations would cause it. I guess we know now. Unfortunately, some people unaffected by their shots as a child have limited brain capacity anyway (blogger). Why is Wakefield being dragged before a medical review board at this particular time. The timing is interesting? Pharmaceutical companies do not make a profit on vaccinations!? Then why the intense effort to protect the practice? You sir are not seeing many things. Most importantly you are not seeing the suffering of children.

  29. HN July 12, 2007 at 17:27 #

    Kevin wrote “I really do not understand why comments like these are made. Have you walked in another’s shoes. Do you know what they are going through? ”

    Perhaps then, you should read the blog posts for comprehension. Just two comments above your comment Kev reiterates that he does have an autistic daughter.

    Right now there is no real scientific evidence that vaccines routinely cause autism. If you checked that paper again you will see that the percentage is very very small. Those risks are outlined in more detail for each disease and vaccine here:

    Last year there was an epidemic of mumps in the Midwest: … if you read this you will learn that several people ended up with meningitis and encephalitis, including four who became deaf. Way back before there was the MMR vacccine, deafness was much more common than it is today… because it was often caused by measles, rubella and mumps.

    Vaccines do not provide 100% immunity, which is why there needs to a high enough coverage to provide herd immunity. This is what is now being compromised due to the efforts of the “scientists” who testified for the petiotioners. Including the lady who claimed to be affiliated with the Univ. of California, San Francisco because she “used its library and went to their parties”.

    Now go back and read the above blog post, and especially the last paragraph which I will repeat: “Whichever way you cut it, this is not good for Petitioners. They were staunchly opposed to the Daubert standard being applied at all as they knew it would mean that scientific standards of proof would apply. Standards that Boyd Haley and Mark Geier have already failed to meet in previous thiomersal/autism cases.”

    Just answer one question:

    1) Which vacccines in the present pediatric schedule are more dangerous than the actual disease?

    When you answer that question include all real scientific evidence that shows that the vaccine is more dangerous than the disease. Show exactly which studies show that the DTaP or Tdap is worse than getting pertussis, tetanus or diphtheria… or that the MMR is worse than mumps, measles or rubella.

  30. HN July 13, 2007 at 06:20 #

    While folks are ignoring me, I’ll add the question that has yet to be answered.

    The MMR in question is the Merck MMR that was approved for use in the USA in 1971. This is the exact same vaccine that was introduced in the UK in 1988 (the biggest difference being the mumps strain*** see note below). So why it is that in this vaccine’s thirty-plus years of use, is it only since it started use in the UK that it became a problem?

    ***Mumps strains… there are a few mumps strains in various vaccines. One that was commonly used was the Urabe strain. It unfortunately causes meningitis. But the one mumps strain that does not cause problems is the Jeryl Lynn strain, which is what is in the Merck MMR vaccine. You can read all about its development in…..061227951/ .

    Now the funny thing is that folks in the UK who wanted single vaccines, decided to illegally import a mumps vax with the more dangerous Urabe strain!
    See….._n12644054 .

Comments are closed.

%d bloggers like this: