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?
Left Brain Right Brain 
Kev,
This is very helpful.
One outstanding question that I’m not quite clear on:
By accepting the concession, are they now bound by the VICP settlement process? e.g. If they don’t like the settlement offer, can they walk away into civil court? I agree it wouldn’t be a good idea, but do they still have that option?
I agree with your assessment that it is wise to take the concession offer. The Poling’s stated very clearly that their first priority was to secure financial aid to ensure the proper care of Hannah for her lifetime.
With that in mind, it is pretty clear that a civil litigation could cost enormous amounts of money with a much higher risk factor as you outlined. I would assume the vaccine manufacturers would easily appeal any loss as far as they could go and that would easily drag out the process for an extended amount of time.
In cases like this, it is not really realistic or feasible for a regular individual to go to civil court, especially if the primary objective will be met in VICP court.
Given this reality, it was certainly a wise tactic for the government to conceed the case before it went to trial as a reference case for Autism. They knew the option of civil court is infeasible for the plaintiffs, and by offering a concession, they can meet the primary objectives of the Polings, while attempting to limit the financial liability of the decision to a single case. That is also a no-brainer. Now the trial cases, go back to ones that are less clear in their outcome.
I only disagree with one key point in your post:
First, in medicine, there is no standard of proof, only quality of evidence. Given our state of medical science and the complexity of medicine in general, very little if anything can be proven conclusively
The standard of scientific evidence for court (or medicine for that matter) is not a clear line drawn in the sand — you can read many papers on that topic. Scientific evidence tracks a wide spectrum. Civil court requires a higher standard of scientific evidence (Daubert) than VICP. However, the VICP still relies on scientific evidence, just at a lesser point on the spectrum. For any of these parents to succeed in civil court will require a lot more evidence of a different nature. It doesn’t mean that supporting evidence doesn’t exist, it just means that the type and volume of evidence of causation must be far more established than it is today for civil court to accept it.
To point to VICP judgements as non-scientific is not accurate.
The vaccine court is a very different standard of proof. It was planned to be a lower level of proof than in a civil court.
In fact, to say “proof” is probably not accurate at all. In a civil court, one must “prove” a method of injury and an injury.
In the vaccine court, once one has demonstrated a plausible method by which injury occurs, the court must prove that a different method occured.
Very different standards.
Daubert does apply to the vaccine court.
Click to access Daubert%20Standard.pdf
Also,
I think that you will find that Daubert applies to the evidence presented, not to the proof of an argument.
Also, I mispoke above. It is not the court that must prove a different method, but the respondents.
Kev, I think this small and simple point needs to be shouted out, particularly in the direction of certain “friends.”
Great point… Except the way biomedders are spinning the facts the other way around. And good part of the media are buying it.
Kristina,
this statement is/may be true. However, I don’t think that the Polings had a choice. Once the HHS conceded the case, that part was no longer a part of the proceding.
However, as the example shows, this is the same as a civil action. Once the defending party concedes liability, the discussion of “how” is off the table for both.
Thanks “Legal Larry” & Kev. When I first heard of this case, in my mind I was thinking in terms of “guilty beyond a reasonable doubt” and was confused at how we even came to a concession. But, then I researched and realized this type of court runs much differently.
The majority of the public hasn’t realized that this is not the court we see on Law & Order (similar to the “CSI Effect”). The explanation here, especially with the distinction between “settlement” and “concession” can’t be highlighted enough. I know it is a much more boring story for newspapers to print than “Government is Poisoning Our Kids” but it needs to be told.
Sullivan,
I agree that Daubert only applies to civil court (I think that’s what I said above) and it deals with the evidence presented. However, the use of the word proof is still misleading. Civil court still has a lower burden of proof than criminal court. Additionally, proof in medicine is pretty much a misnomer. It rarely if ever exists. It’s all about the quality of evidence.
I think there would have been more entertaining silliness on the tab of the texpayers had the HHS not agreed that vaccines may have aggravated Hannah’s underlying mitochrondrial disorder leading to a developmental regression. Can you imagine the PSC’s “experts” trying to explain how they knew it was the thimerosal (not a generic bundle of vaccine ingredients, but specifically thimerosal) that did it. Especially since Zimmerman postulated that it was pertussis.
I don’t think in a million years their mercury non-experts could have shown a likely way that thimerosal could have caused Hannah to have a fever. They were not able to show that thimerosal at vaccine doses had any negative impact on the immune system. So what were they going to do, claim they got a message from outer space confirming that it was the thimerosal?
The Polings got off easy if they were going to try to claim it was thimerosal in any court based on the evidence that the PSC has presented so far.
I don’t think the parents of all 4,800 kids in the Omnibus need compensation of any kind, many of them might be in need, but I think it’s likely that some of them have made fraudulent claims and have just hitched their wagon’s to this bus. If something goes wrong in the US the first thing people start asking is who they can sue. Some of them can not cope with the idea that there’s no one to sue, that their kid is autistic or developmentally delayed and they sure can’t cope with the idea that it was their own genes and/or their own choices (drinking/smoking/taking drugs for example) that played the major part in what happened to their child. Or they can cope with that just fine, but they still want to play the victim role to see if someone will pay them cash to shut up.
Schwartz, the Polings are bound to the settlement iff they accept it – which they are under no obligation to do so.
Also, Daubert does apply in Vaccine Court – albeit at the special master’s discretion. It is applied to the methodolgy employed by the experts, as opposed to the conclusion obtained.
Kev, check w/ Legal Larry to be sure, but i believe the burden of proof shifts from the respondent back to the petitioner when an off-table injury is claimed. “Normally”, when a table injury is claimed, the burden is on respondent, Dept of HHS, to demonstrate the vaccine was not the cause of said injury.
In the OAP the burden of proof is placed on the PSC/parents because they are claiming an off-table injury (ie Autism).
I agree that Daubert only applies to civil court (I think that’s what I said above) and it deals with the evidence presented.
If this is what you are saying, then we do not agree.
Daubert applies in Vaccine Court. If you read enough decisions, you will see it in writing.
“The death rate from many of these diseases is far far lower than the incidence of autism which for some families is a death sentence to their dreams for their children.”
That’s quite a statement. For one, the death rate for those diseases is lower because of vaccines, correct? I wonder if a mother who lost her child to one of those diseases (either in the underdeveloped world today, or here in the U.S. before the vaccine was available) would really feel a kinship to a mother of an autistic child? Autism is not a death sentence, it is not fatal, is cannot be compared to death or the diseases that are being prevented by vaccinations.
To make such a correlation, absolutely turns my stomach.
Your statement, “death sentence for their dreams,” that is part of the problem. Parents today have preconceived ideas of what they want their children to be like and do. Why do you think we’ll have sex and eye color selection before long for couples wanting to conceive? There is a “neurotypical entitlement” growing, and it sickens me. Autism does not destroy dreams, perhaps you simply need to create new dreams.
My child was born autistic. If vaccines at one point “harmed” her, I could never feel that she, who is alive and breathing, was a “death sentence” or she isn’t worthy of having “dreams.” I would never give up on her, and this is what you imply, isn’t it? And, no, you cannot separate autism from a child, so when one says that “autism is a death sentence to dreams” you might as well say “my child is a death sentence to dreams.”
Interesting also, that you are “seeking people/MDs with similar thoughts.” Yes, that’s a wonderful way to achieve accurate results on a scientific study. Glad to see you are wanting to look at this from all sides (not).
“Civil Courts require a scientific standard of proof”.
Don’t think so. Balance of probabilities is all that’s required (the proverbial 50% plus a feather). Criminal court is more like the scientific standard.
IMO, the scientific gold standard is 95%, at least for stuff like randomised trials.
As I understand it, vaccine court is still working to the balance of probabilities, but I think the real difference is procedural: what can be admitted, what evidence must have previously been proofed in statements etc.
Schwarz:
_”By accepting the concession, are they now bound by the VICP settlement process? e.g. If they don’t like the settlement offer, can they walk away into civil court? I agree it wouldn’t be a good idea, but do they still have that option?”_
Not sure. I’ll ask.
Sullivan/Brian:
The _scientific_ standard is, as you say, Daubert. This would come into play in a Civil case in the sense that expert witnesses can be excluded if they’re um, not great. Its how Geier, Haley etc were barred from testifying at numerous court cases.
However, this cannot happen in the Omnibus. The SM’s ruled that they would not disallow anyone from testifying but that they _might_ apply a Daubert standard to what was said in their private deliberations.
Brian (and all), we may be going a bit astray.
A special master, when rendering a final judgemnet – whether the preponderance of the evidence demonstrates the vaccine(s) in question more likely than not caused the injury – considers the totality of the evidence. That is to say, fact-witness testimony + expert witness testimony + contemporaneous records are all afforded individual weight at the sole discretion of a special master.
Generally speaking, if the special master is considering a table injury the burden falls on the respondent because it has already been demonstrated/accepted for purposes of vaccine court procedure that X-vaccine has been known to cause Y-injury.
When dealing with an off-table injury, such is the case with the OAP, the burden of proof falls on petitioner because it has yet to be accepted/shown/proven, etc…that a vaccine can cause Y-injury – in this case, Y = autism.
Now in terms of expert testimony, specifically petitioner’s expert, the respondent’s (HHS) can argue at an evidentiary hearing as to how much weight should be afforded to said expert’s opinion.
[here’s where it gets a little confusing]
While the special master may apply Daubert to the methodology used by said expert in forming his/her opinions, this is NOT a typical Daubert Hearing (as defined by civil procedure). There is no argument, once it gets to the evidentiary hearing, as to whether or not the expert’s opinion should be allowed into evidence (as is the case w/ a typical civil court Daubert hearing).
The special master, at this point, is merely attempting to determine how much weight, if any, the expert’s opinion should be afforded. However, the final ruling is based on all evidence presented.
Speaking of Daubert and feathers and all, y’all may be interested in reading this piece; it’s a summary of Haim v. HHS, the first VICP order that referenced Daubert, followed by a little lagniappe about Terran v. HHS.
Raising the Bar
“They have agreed to a statement that states that their daughter’s autism was not caused by vaccines.”
I must have missed that part of the document, could you provide the location in the document where they make this statement?
Ms. Clark, you said:
“Can you imagine the PSC’s “experts” trying to explain how they knew it was the thimerosal (not a generic bundle of vaccine ingredients, but specifically thimerosal) that did it.”
Maybe like this?
http://adventuresinautism.blogspot.com/2008/03/boyd-haley-comments-on-thimerosal-and.html
bones,
If they get an offer, reject it, and go to VCIP court, get a judgement on amount, do they have to accept that or can they still go to civil court? My assumption would be that they would be bound to the courts’ decision, but that is a pure guess on my part.
or
Since they accepted the concession, If they get an offer, can they reject it, and go straight to civil court to fight the action and skip the vaccine court hearing?
Ms. Clark,
They were not able to show that thimerosal at vaccine doses had any negative impact on the immune system. So what were they going to do, claim they got a message from outer space confirming that it was the thimerosal?
I believe they were intending to show that mercury contributes/causes mitochondrial disorder/disfunction. If that is the case, then they would argue that the mito disfunction, combined with high immune activity (from vaccines OR illness) put the system under excessive oxidative stress resulting in brain injury. Read the case study, it’s well described there.
My understanding from the statements made and from studies forwarded by Maria that mercury has been associated with mitochondrial disorder.
Additionally, that was only one of two possible theories they were going to present.
Schwartz,
They (petitioners) don’t accept/reject a concession, they are able to accept/reject only the entitlement/settlement offer. Once the concession is made there’s no need for an evidentiary hearing – insofar as proving damage is concerned. Keep in mind too an evidentiary hearing is granted at the discretion of the special master, concession or not. The special master may deem an evidentiary hearing to be unnecessary, after reviewing submitted evidence (eg, affidavits, declarations, med recs, etc.)
That said, once entitlement to compensation is delared, the special master then holds a damges hearing where additional evidence is submitted to assist the special master in determining the appropriate amount of compensation (eg, a life-care plan).
Once this occurs petitioners have 90 days to file an election (1) accepting entitlement as prescribed by the court, or (2) file a civil action. If petitioners fail to file an election w/in the 90 day time frame, a default judgemnet of “acceptance” is entered automatically.
Additionally, that was only one of two possible theories they were going to present.
Other than the recent statements, do you have any proof of this? I can’t find any good indication that the PSC had an intention to go forward with a mitochondrial disorder approach–either before or after the concession.
I believe they were intending to show that mercury contributes/causes mitochondrial disorder/disfunction. If that is the case, then they would argue that the mito disfunction, combined with high immune activity (from vaccines OR illness) put the system under excessive oxidative stress resulting in brain injury. Read the case study, it’s well described there.
Really? I did a search of the Poling paper and found no mention of the words “thimerosal” or “mercury”. Perhaps we are looking at different papers? I was looking at “Developmental Regression and Mitochondrial
Dysfunction in a Child With Autism”. Perhaps I made a mistake. What part are you depending on for the mercury hypothesis?
Bones,
you left out an important part–in the rules, when they discuss going to a civil court, they mention that they can “file for civil action for damages for the alleged injury or death.”
It is a question whether they can take the entire case–and argue causality– to civil court at this point.
Sullivan,
I stated their options clearly: accept entitlement or file in civil court.
You say “they mention that they can “file for civil action for damages for the alleged injury or death.” Well, yeah, assuming they reject the offer of entitlement…and what else would they file for on behalf of their damaged or deceased child?
“It is a question whether they can take the entire case—and argue causality—to civil court at this point.”
Are you suggesting this to be their only reason for filing in civil court? If so, there may be a myriad of reasons for doing so. Amend their complaint to include request for punitive damages, unhappy with entitlement offer per se, to name a couple.
I’m not sure I understand your point. Please explain.
Sullivan,
Yes, you’re right, if they proceeded to civil court they would ultimately have to prove causation.
It becomes more difficult in civil court, however, because, among other things, they would have to prove general causation (ie, that it’s biologically plausible for ‘A’ to cause ‘B’) AND specific causation (that ‘A’ caused ‘B’ in the claimant in particular.
Also, they would open their experts up to a type of cross examination not typicallly allowed in vaccine court.
I think it’s a simple answer. Why SHOULD they go to civil court? Kirby and his asshattery aside, they were there to get help and compensation. They got it. For them, I suspect this was a winning situation. What would a civil suit get them? They would have had gone back to uncertain, all to get… What? What did they have to gain?
Unlike Kirby, I don’t assume all the people in the Omnibus are there to prove a point. I think they got exactly what they came for, and good on them for NOT drawing it out to the detriment of them and their children.
Sullivan,
This comes directly from Dr. Poling at the press conference. Transcribed (painstakingly by me):
I’m sorry, I should have been more clear. The part about oxidative stress leading to brain damage comes from the paper. The theory of Thimerosal comes from the press conference quoted above.
Dr. Poling also presents his opinions on Thimerosal and vaccination in his post at Age of Autism.
That’s great–they present now that they had planned to use this as a strategy.
Tell me, what data are there that this is really the case.
You see, I took a look at the available information and found it lacking in support of this claim.
Bones,
sorry, I should have been more clear.
If they move to civil court, I think that they can only fight for damages. The liability question is already off the table.
So, moving to civil court would not allow them to fight to prove the method of causation. Again, this is my interpretation only.
Looking back a couple of posts, I see I was not very clear.
Schwartz–you claim that the PSC planned to use this argument in court. There isn’t any evidence before Mr. Shoemaker’s comments on TV. The case as presented so far–the general expert reports, the expert reports on the test cases, and the scientific literature do not present a picture of a legal team ready to include mitochondria to support their claims.
Also, what would you do if your example of a “typical” case were to be conceded and, thus, inappropriate for the Omnibus? Wouldn’t you replace her with the next good example of mitochondria dysfunction?
They didn’t do that. Take a look at the expert reports on the three test cases–no emphasis whatsoever on mitochondria.
MJ –
Features of does not equal diagnosis of. Therefore the Poling’s, by agreeing to this interpretation, have made their position clear – at most, the vaccines gave Hannah some features of autism. It did not give/cause/trigger/contribute to autism.
I realise that this entirely depends on what one’s own personal definition of meeting the criteria is, but based on the symptoms listed by Dr Zimmerman, I can’t see she met a diagnosis of autism *as a result of the vaccines* .
MJ also, Dr Poling recently wrote (I’m not sure where but it appeared on various blogs)
Sullivan:
Its another question isn’t it? I read it as, the argument is for damages yes, but I don’t see how causation/liability can simply be transferred in that way. We’re talking (IMO) about parents who want to prove that vaccines caused their daughters autism. If they want to do that they have to refuse to accept the concession and effectively start a new action.
“MJ also, Dr Poling recently wrote (I’m not sure where but it appeared on various blogs)”
– Age of Autism
“I don’t want to dwell on mercury, as this theory is not why HHS conceded Hannah’s case (imo).”
The HHS *would never* say this theory is why they conceded, even if it is the reason.
– Age of Autism
aha. Cheers.
Yeah, Sullivan, I misread your initial post, sorry.
In terms of moving to civil court (for whatever reason), I believe, petitioners would have to start all over again. You have to remember it’s an entirely different burden of proof over there – not to mention different rules for discovery, cross examination, etc. Not quite as user friendly, as vaccine court.
Think of O.J. Simpson (heh-heh-heh, sorry but it’s the only example I have). He won in criminal court but lost in civil court. Why? The lesser burden of proof in civil court is an easier hurdle to get over (compared to criminal court).
In the Poling’s case, or any other OAP case, they would be moving from a very low burden of proof to a more difficult one in civil court.
My thoughts, they’d never do it unless Shoemaker thinks he could recoup a punitive reward by demonstrating a failure to warn, malicious intent, or willful neglect, etc…on the part of the vaccine manufacturer. But that would also be adding another hurdle for him to jump. He would first have to prove general causation + specific causation just to obtain a compensatory reward (like that in vaccine court), THEN he would have to demonstrate the the manufacturers acted in such a way (see above) that pltff deserved a punitive reward as well.
I don’t see Cliff investing that much time and effort knowing his usual band of brothers (Geier, Bradstreet, Haley, Lucier, et al) have all lost past Daubert motions.
Mr. Shoemaker et al. are trying to create the mindset that vaccines do cause autism. I can’t see this having an effect on the Special Masters and, hence, the AOP. I don’t think they will be affected by public opinion either way.
So, this would suggest that they are working on either gathering new clients or, and I think this is more likely, trying to create a better environment for civil actions post Omnibus.
Kev, you said –
“Features of does not equal diagnosis of. Therefore the Poling’s, by agreeing to this interpretation, have made their position clear – at most, the vaccines gave Hannah some features of autism.”
True, the government’s concession does not contain explicit language saying that the child in fact does have autism or that the autism was caused by vaccines.
I would like to point out though that the document in question was entirely authored by the government. So what it says it what they wanted it to say, not what the parents would have said. It would be interesting to see the other documents to see what they have to say.
However, as you say, it implies that “the vaccines gave Hannah some features of autism”. So my question would be if it gave her some “autism like” features, assuming that she does have autism, where did the other “features” come from?
Sullivan,
I am going by Dr. Poling’s comments not Mr. Shoemaker! I don’t know how the whole Omnibus proceeding works, but it certainly appears that Dr. Poling and his colleagues that worked with him on Hannah’s case were also familiar and studying mitochondrial problems in the Autistic population. If they were to be called as witnesses, then I’m guessing they themselves would be able to present the evidence on the theory.
You can ignore the comments by Dr. Poling and the lawyers, because you are guessing at the PSC’s intentions based on public records of their submissions pre-case.
But let’s be clear. A lot of people are trying to beat around the bush by blaming the strategy on the lawyers. Dr. Poling himself made clear concise statements about this. If you content that this was not going to be their strategy, you are accusing Dr. Poling of lying on national television.
I can assume that the evidence and witnesses gathered for the Poling case itself was sufficient for a general causation theory. If I recall, the second test case didn’t bring a whole lot of experts to bear so her own experts may very well have been enough.
In order to prove a mitochondrial disfunction, very specific tests would have to have been done at the time of illness. You’ll note that the disfunction in Hannah has disappeared, so performing tests at a later date is not
Clearly Hannah’s case is somewhat unique in that both her parents were medical professionals, and her father was a specialist in the field of Neurology. Additionally, he was already working with similar experts in the field, and consquently was able to follow a very difficult trail.
If you read any documentation about mito dysfunction, disorders, disease, it is very often not recognized, and the tests are not standard. This could easily explain the PSC’s inability to find another well documented case to submit.
Dr. Poling undoubtedly thinks both theories have merit, and there certainly appears to be documented links between mercury and mito disfunction. He is also speaking out very forcefully that Hannah only had a mito disfunction, not disease and that there was no evidence pre-vaccination that she had any mito disfunction. That also lends credence to his statements that they intended to present this as a second potential hypothesis.
A child who is deaf or blind may have “some features of autism.” Deaf children have been diagnosed as autistic with their hearing loss not diagnosed at the time of their getting the autism or autism spectrum label.
No doubt a child who develops a form of brain damage can exhibit some features of autism. That doesn’t mean that most people with autism are deaf or blind, or frankly brain damaged, now does it?
If you content that this was not going to be their strategy, you are accusing Dr. Poling of lying on national television.
No, I am pointing out that Mr. Shoemaker’s statements on TV and to Mr. Poling, do not match the facts.
Dr. Poling seems like a good an honorable man. I have little doubt that he said what he believed to be the truth. He is basing this, most likely, on the information he got from his lawyer and on what he (Dr. Poling) would have expected the case to be.
The fact is that the PSC knew about the Poling case long before they submitted expert reports. The expert reports–for whatever reason, we can speculate on many–did not include mitochondria as part of their line of reasoning.
It is fair to say that I find it difficult to reconcile Mr. Shoemaker’s assertion that this was going to be a big part of their case with the lack of discussion by their own experts.
Or, let’s put it another way–if I had a case in the Omnibus and I was counting on a mitochondrial disorder argument, I would not be happy with the way this case is being handled right now.
“I am going by Dr. Poling’s comments not Mr. Shoemaker! I don’t know how the whole Omnibus proceeding works, but it certainly appears that Dr. Poling and his colleagues that worked with him on Hannah’s case were also familiar and studying mitochondrial problems in the Autistic population. If they were to be called as witnesses, then I’m guessing they themselves would be able to present the evidence on the theory.”
Scwartz, do you think Dr Poling would be conflicted in terms of preparing a case report on his own child, and, subsequently, testifying as an expert neurologist on her behalf?
And speaking of testifying, would he be a fact witness (as her father or treater), or an expert neurologist?
I realize you don’t know the answer, but I assume you would have an opinion and I am interested in your thoughts.
bones,
As I’ve stated several times, I explicitly noted the Conflict of Interest when I found out he was her father — a while after reading the study. It was not noted in the excerpt posted here, and I don’t know if Conflicts of Interest or the fact he was her father were listed on other pages of the journal.
If indeed it is not listed anywhere in the journal, it is certainly another mark against general COI reporting requirements and/or enforcement. It may or may not reflect on Dr. Poling himself depending on whether he violated the specifics of the journal Conflict of Interest rules. I suspect they are narrowly worded, but I have no evidence of such. At a minimum it is further damning evidence of the poor conflict of interest standards in the peer-review journal industry.
As for his ability to testify, I see no reason why he can’t testify as both an expert and as the father. I have no direct objection to conflict of interest as long as it is declared. It is up to the special masters to determine the weight of one’s evidence (and influence on any opinions for the study) based on the open disclosure of evidence. During the trials many of the opening cross examination questions deal with the conflicts of interest. To ban everyone with a conflict of interest would practically eliminate the majority of the witnesses who testified at the trials so far.
We know that COI introduces bias in studies. Given the nature of case studies, they are not nearly as succeptible to bias in the outcome or conclusion given that all of the data and diagnosis are laid bare for all to see. This is not at all the same for epidemiology, where the studies are at high risk for false positives and negatives, and the researchers have far greater influence on the outcome (study design, population selection/exclusion, statistical calculations, and formulation of the null hypothesis).
I’m assuming that the full Poling medical records would have been submitted for review by all parties, so there is nothing to hide and any bias could easily be questionned at a trial.
I highly suspect they would have provided other expert neurologists (his colleagues) as the expert witnesses even if they did use his expertise. But then, I don’t know for sure.
Do you feel differently?
“He is basing this, most likely, on the information he got from his lawyer and on what he (Dr. Poling) would have expected the case to be.”
Here I completely disagree. It appears to me from both the writing of Dr. Poling on Thimerosal, and the statements he made at the press conference, that the Thimerosal theory was one they researched, not some pressure applied by the lawyers as many people are trying to assert.
1) He has written definitively about his opinion on whether Thimerosal should be in vaccines
2) He has written definitively as to his opinion that her Mito disfunction did not exist pre-vaccination, and that there is no evidence that it was exclusively genetically caused
His statement in the press release is pretty clear:
He’s not saying, “these are the theories proposed by my legal team”, he’s stated very clearly the two theories he wants to publicly discuss.
He goes out of his way here to back up the theory by saying that there is plenty of evidence of mercury toxicity and it’s association with mitochondrial disfunction. This statment defends one of his theories that it was involved in Hannah’s illness. The same applies for his blog response to Dr. Novella where he again discusses the actual epidemiological evidence that runs counter to the theory and why it isn’t useful in these cases.
This doesn’t sound like something he is being unwittingly dragged into as many people would like to believe. In fact, most of his statements are extremely well presented and thought out. I find it highly unlikely that he is going to say anything he doesn’t believe in. The fact that they even had a press conference and responded to blog entries — which I’m sure any lawyer would disuade — tells me Dr Poling wanted to get his opinion out there and is being very careful what he is saying.
As for the legal strategy, I have learned from personal experience, that legal strategy may not seem completely illogical to the lay person. In fact, legal strategies are very specific to the area of law, and the specific circumstances. I am certainly not qualified to guess at the overall PSC strategy, and only those privy to it, really know what they are trying to do.
We’ll never really know how well the strategy worked since a win or loss may not reflect the value of the strategy (i.e. you can still win with a bad strategy, and you can lose with a good one). Only if they lay it out, and other experts crtique it, will we really be able to judge it in hindsight.
Schwartz, sorry didn’t catch your opinion on it the first go-around – which is why I asked.
Myself, and this is purely hypothetical, if Dr. [insert any name here] were to testify as an expert neurologist, and were he/she to submit as evidence to his/her claim a clincal trial or case report that involved his/her child as a participant, I would afford his/her opinion very very little weight – assuming he/she were allowed to testify at all (as an expert witness).
As a fact witness, absolutely, however, in my opinion, the example above is the very definition of a conflict of interest.
…but I’m no special master.
“He has written definitively as to his opinion that her Mito disfunction did not exist pre-vaccination…”
Where?
I can guess what the strategy is, since I have read the expert witness reports.
Let’s put it simply, if I had a kid like Miss Poling and I read the expert reports, I would be mightily annoyed that the lawyers were neglecting my case.
The lawyers are only now saying, “hey, let’s get some kids tested for mitochondrial disfunction”. They aren’t saying, “In preparation for this case we were testing kids and have XX% we think are good candidates for this argument.”
If I were a parent of one of those kids getting tested now, I would, again, be mightily annoyed. Why the heck didn’t the lawyers tell those parents that this was a possible strategy. Even more–why didn’t they tell those parents that this was a possible eitiology, with a different treatment plan than they might currently be on?
So, now they say, “We were planning on using this strategy all along”. Yeah. What are they supposed to say. “Well, we were caught flat footed on this.”?
Fact: the expert reports don’t include the mitochondrial argument
Fact: the list of literature doesn’t include many papers–certainly it is missing a lot of important papers–to support a mitochondrial arguement
Fact: the three test cases expert reports do not present the mitochondrial argument.
What, were the lawyers going to go in and say, “Gotcha! We aren’t doing this at all”. It’s the surprise attack strategy!
That would have gone over really well with the Court, I am sure.
Bones,
In the press conference:
Dr. Poling:
“There is no evidence that suggests that this difference in genetic code that hannah had caused any disease or there was really any unlying mitochondrial disfunction prior to that July 2000. “
Sullivan,
If the mito disfunction is a tranistory problem (as it appears to have been in Hannah) then there would no longer be any evidence of it.
Unless the tests were done at the time of injury, or shortly thereafter, it may be long past any opportunity to gather any evidence of the problem. Additionally, my understanding is that muscle biopsies are quite painful so there has to be good clinical reasons to do them at any point in time.
Do we know when they started negotiating a concession?