Hannah Poling – Fine Points of the Law

11 Mar

The person answering the questions below is someone very familiar with the Vaccine Courts. I agreed to respect their privacy by not naming them but for ease of reference I’ll refer to them as Legal Larry.

David Kirby says:

In this case, HHS agreed to pay out compensation and there was no need to go to a hearing. The Polings could not reject the compensation agreement and insist on a hearing if they wanted to. This was supposed to be a test case. But the government did not want this to go to a hearing, not the Polings. But the family had no choice. Someone please correct me if I am wrong, but when you apply for VICP compensation, and you receive it, it’s pretty much take-it-or-leave-it at that point, very much unlike a regular civil lawsuit that might get a settlement “offer.”

Legal Larry says:

….I have seen the misunderstanding circulating. It appears to flow from an unfamiliarity with litigation. Vaccine litigation under this program really is no different than traditional litigation. Simple example: you accuse me of breaking your fence; I contest. You sue me since I disagree with your charge. As plaintiff, you have the burden of providing sufficient evidence for your case to proceed. You provide pictures of my tractor after rolling into your fence. I review those pictures and say “you are right.” I CONCEDE my liability to you. No trial is necessary, there is nothing to try. You have to accept my concession, or drop your claim against me (logically you cannot contest my concession without contesting the very basis for your filing your claim). Now, we have to resolve the damages. You ask for $1000, but after reviewing the damages I offer you $200. If you accept my offer (or we negotiate a different amount,say $500) we have SETTLED the case and it ends. If you reject my offer and we can’t agree on another number, the case proceeds to trial and the court will determine the amount. Apply the above to the Polling matter. *People are using concession and settlement synonomously and thus incorrectly*. I hope this helps.

Legal Larry was asked:

when you state ” If you reject my offer and we can’t agree on another number, the case proceeds to trial and the court will determine the amount. ” does “proceeds to trial” mean that it goes through the full trial procedure or does it mean that the awards phase is determined at trial?”

To which Legal Larry answered:

….just the awards phase, the concession eliminates the issue of liability – I conceded that I damaged your fence.

So, from that exchange we can see that David Kirby is half right. Within the context of the Omnibus, the Polings could not reject the ‘concession’. However, they could have rejected the settlement offer and gone on to a trial procedure to determine the final award. We can also see that concession and settlement are not the same thing at all.

But now we get to some murkier ground (who knew the autism community would have to become lay-person briefs as well as lay-person scientists eh?) because the fact is that the Poling’s could easily have rejected the whole damn thing. Sullivan on GM/WM did some work on this:

Now, what happens if they decline? They can file in Civil court.

Why does that matter? Well, consider the fire and brimstone from David Kirby:

Someone please correct me if I am wrong, but when you apply for VICP compensation, and you receive it, it’s pretty much take-it-or-leave-it at that point, very much unlike a regular civil lawsuit that might get a settlement “offer.”

I think you may be wrong Mr Kirby. They could’ve left it and gone for a Civil court action.

The Polings could not reject the compensation agreement and insist on a hearing if they wanted to.

Yes, they could have, See above.

And if anyone asks you why the family attorneys agreed to settle the Poling case, tell them they don’t know the first thing about Vaccine Court.

The issue is, I think that because people such as myself are suspiciously asking why the Poling’s agreed to the concession at all if they felt they had such a water-tight case. If they’re right then this case could’ve been the very first court case to ever establish vaccines are complicit in autism. The argument Kirby is putting forward is not correct. *The Poling’s could have rejected the claim and fought their case in trial* .

Why didn’t they?

Now let me be absolutely honest. If I was them, neither would I. Civil Courts require a scientific standard of proof. The Vaccine Court does not. In other words, the Poling claim in a Civil Court would’ve rested on _science_ .

I’ll be even more honest, I am happy to think of Hannah Poling have enough money to take care of her her whole life. This is one of the ethical conundrums of the Omnibus hearings for me. If it were up to me I’d like to see all 4,800 kids get enough money to assure their futures.

But is this the right way? The Poling’s could easily have rejected the ‘concession’ and gone to a Civil Court. They have elected not to. Over the last week there has been lots of breathless talk about fat ladies singing but by agreeing to the ‘concession’ that is absolutely the last thing the Poling’s have helped bring about. They have agreed to a statement that states that their daughter’s autism was not caused by vaccines. If they think it does, they should have gone to a Civil Court.

Again, I ask, why didn’t they?

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59 Responses to “Hannah Poling – Fine Points of the Law”

  1. bones March 14, 2008 at 13:39 #

    Sullivan, I absolutely agree.

    Look at all the press releases, DAN! conferences, and interviews, presentations and testimony of plaintiffs and their experts going back to 1999-2000(ACIP, IMFAR, Autism One, DAN!, IACC, CDC hearings, to name a few). Lump ALL those presentations, speeches, public comments, power points together, and someone tell me how many of them even mentioned mito disorder…someone…please.

    This fell into Shoemaker’s lap, and now he’s running with it.

    Schwartz, first of all, that would be a stated opinion, as opposed to “written definitively”.

    Secondly, not to get caught up in semantics, but there is a substantive difference between “There is no evidence of disease…” and “There is evidence of no disease…”. You’re initial comment assumes the latter.

  2. Sullivan March 14, 2008 at 16:15 #

    Bones,

    there are a few “hits” in the biomed community on mitochondria. There was a recent paper by Rossingal and Bradstreet on mitochondria. Jill James mentioned mitochondria in passing at the IOM environment and autism conference.

    Schwartz–at some level we may be discussing two different things. If Hannah Poling had gone forward as a test case, they certainly would have had to bring up the mitochondrial issue. However, this was not the general strategy of the PSC based on their preparation. How much the mito issue would have been stressed–for Hannah Poling–is anyone’s guess. It certainly would not have helped (as in likely would have hurt) the other two test cases, making one wonder why they would have grouped them together.

    Also, there is no evidence that the concession was negotiated. The PSC submitted their initial report on her last fall. The HHS came back with their report, with recommendations for how the case should proceed (as required by law). That was mid Nov. 2007. That was the concession. The PSC had no ability to “negotiate” the concession. The HHS had admitted liability, what was there to negotiate?

    Negotiations would be likely in the damages and in the inclusion of the seizure disorder. “Negotiations” might mean different things to different people–I do not imply smoke filled rooms filled with lawyers. Instead, Mr. Shoemaker would have submitted report(s) of what supports Miss Poling would need throughout her life. Issues like what is her life expectancy? At what age does she leave her parent’s medical insurance? Would have been addressed.

  3. Kathleen Seidel March 14, 2008 at 22:52 #

    Re COI’s, Here’s the question I put to Dr. Poling on Dr. Novella’s blog:

    “You’ve declared your COI’s in this post. Why didn’t you declare your COI’s in your article in the Journal of Child Neurology — most notably, the fact that you were father to the the subject of the case-study, and party to a pending legal claim involving precisely the issues described in it?”

    He hasn’t responded, and I don’t expect he will. He stated in his reply that he did not intend to answer any questions. To my knowledge, he has not addressed this matter publicly. I wonder if he has addressed it with his co-authors.

    BTW, I didn’t see any IRB statement either, though I’m not sure to what extent IRB review is required for the sort of retrospective chart review that was described in the paper.

    I don’t begrudge the Poling family the award; it was obviously recommended after careful consideration of the facts of the case, and in accordance with the Congressional intent of generosity. I hope it will make their lives a little easier.

    Still, scientific and publishing ethics matter, especially when it comes to studies on disabled kids, and material presented as evidence in legal proceedings.

  4. Schwartz March 14, 2008 at 23:10 #

    bones,

    “Schwartz, first of all, that would be a stated opinion, as opposed to “written definitively”.

    Secondly, not to get caught up in semantics, but there is a substantive difference between “There is no evidence of disease…” and “There is evidence of no disease…”. You’re initial comment assumes the latter.”

    Fair comments.

  5. Schwartz March 14, 2008 at 23:18 #

    Kathleen,

    Do you know the COI guidelines for that journal (at that time)?

    WRT to the legal proceeding, I don’t think that’s as big an issue. There is no chance for misunderstanding as almost all cross examinations begin with questions about conflict of interest. The Special masters and defense would have had full access to question him, and they could judge his level of bias. Additionally, everyone in the trial would know the name.

    Published in the journal however, it was not obvious at all that he was the father. I certainly didn’t know until I later found out his name.

  6. Sullivan March 16, 2008 at 05:42 #

    “WRT to the legal proceeding, I don’t think that’s as big an issue. There is no chance for misunderstanding as almost all cross examinations begin with questions about conflict of interest. ”

    Since Dr. Poling will likely now not be on the stand, who is going to defend his conflict of interest on this paper?

    The fact that Dr. Poling was actively seeking a claim in Vaccine Court at the time of this paper severely weakens it as evidence, in my view.

    The fact that the PSC repeatedly made mistakes in the entry of this paper in their literature list raises a few questions as well. Were they that disinterested in it or were they trying to somehow hide it? The latter seems even less likely than the former.

  7. Schwartz March 17, 2008 at 02:37 #

    Sullivan,

    “Since Dr. Poling will likely now not be on the stand, who is going to defend his conflict of interest on this paper?”

    I already stated I agree with you that from a non-trial perspective, the journal article should list the COI. No debate from me on that point. However, who we blame for this depends entirely on the COI rules for that journal at the time of publication.

    Again, I can’t speak for the PSC. However, I can speak from experience, that in a single case alone, finding, correlating and organizing papers is extremely difficult. I can’t imagine the difficulties in reviewing 5000 cases and all sorts of possible variants. How many staff did they have?

  8. Sullivan March 17, 2008 at 16:49 #

    “Again, I can’t speak for the PSC. However, I can speak from experience, that in a single case alone, finding, correlating and organizing papers is extremely difficult. I can’t imagine the difficulties in reviewing 5000 cases and all sorts of possible variants. How many staff did they have?”

    They have ‘expert’ witnesses paid by the taxpayers to compile reports and lists of papers.

    ‘Look, there’s a paper in Prof. XX expert report. Let’s add it to the list.’

    Not really hard.

    ‘look, Dr. YY, we have kid(s) with mitochondrial disfunction who are going to be potential test cases. Do you think you could include that in your report?’

    Can I get the taxpayers to pay me for this advice?

  9. Schwartz March 18, 2008 at 01:15 #

    Sullivan,

    “Can I get the taxpayers to pay me for this advice?”

    Maybe you should apply? 🙂

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