Thimerosal and Autism on Trial: Closing statement by Mr. Matanoski

31 Jul

This is a portion of the government’s closing argument given by Mr. Matanoski. It is found on the audio from Dwyer called Day02-PM3.

First I want to point out on the specific causation … lawyers are kind of slick they move things around, they kind of play a shell game. When I heard the comments about a specific causation case it made it sound like respondent has a burden here to show what actually caused it. Actually the burden is on the petitioners to show that the vaccine caused autism. And respondent doesn’t have to show that it’s genetic in origin.

And I think that the comments about Dr Leventhal’s testimony on that point are a little off the mark. What Dr. Leventhal was saying, essentially, that most practitioners, most folks who study autism as a profession believe that it’s largely genetic in nature at that’s where the research has been directed and in fact it’s been fruitful in that regard. There’s still much more to do. But everything that has come out has pointed to genetics as very strongly associated with autism and most of the research that has been done has shown that autism would have a prenatal course. That it can essentially be seen, that the preconditions, if you will, for autism are in place beginning before birth, in most instances.

I think there also is a little bit of a misconception about what the force of Dr. Leventhal’s testimony was. He basically was saying that Colin’s case really is sadly no different than many of the cases that he sees, where there is a gradually emerging picture of difference, perhaps delays, but at least difference in the quality of behavior in the child as the child develops. It’s not necessarily apparent right from the start. That’s very rare. Most of the cases it’s apparent later and it may seem that a child has reached certain milestones has subsequently had trouble keeping those milestones. As the condition progresses there often is an improvement. That’s the natural course of the condition. What Dr. Leventhal was saying is, as time has gone on, more and more of the researchers have realized that if you look back in cases, that apparently seemed to have a normal trajectory and then there seemed to be a loss, that you see earlier signs and symptoms that all was not on a normal trajectory from the beginning.
That was the force of his testimony, and that testimony was backed up by other testimony by other testimony that the court has heard before he took the stand.
Dr. Lord who has specifically studied regressive autism made that point quite clear, that as this has progressed the concept of regressive autism has become more encompassing, that autism itself seems to have a progression where it appears that there is a loss but when one goes back, one sees that there is unusual, or differences in development earlier on in almost every case. And what Dr. Leventhal was saying is that as they gotten better, folks who do this for a living, folks who make their lives studying about studying autism they’ve realized that more and more of those cases they can see earlier on. And in very few instances when they’ve studied quite closely do they see that there isn’t some sign that the trajectory or the course is not the same as other children’s.

Dr. Mumper’s testimony which really wasn’t really much of the focus in the closing argument here. She seems to be relying on isolated lab results to come up to a conclusion that vaccines are the cause here. She’s been asked in this case and in other cases what would that pattern be, what do we need to look at? And in fact there doesn’t seem to be a particular pattern. In the King case certain test results were relied upon to draw the conclusion that thimerosal in vaccines were associated with autism in that case, or caused autism in that case. In the Mead case other results were looked at and thought to be, by Dr. Mumper, indicative that vaccines were causing, or evidence that vaccines were causing autism. And now in Colin’s case, we see yet a different pattern of test results being relied upon to reach that conclusion.

In fact those test results, with really no pattern, how can one say that there is any kind of clinical evidence from these test results that one can rely on to make that .. to draw those kinds of conclusions that Dr. Mumper is relying on.

And as you’ll see when you go through the testimony, we believe that she largely moved away from relying on any specific test result when questioned about each specific one she said that essentially that the mercury test result, the positive provocation, was really the only test that she had that showed that the mercury was there, and she was relying on to implicate thimerosal as a cause in this case, but then she admitted that she really didn’t know what the normal range would be for that test.
How can one say that this is an abnormal result when one doesn’t know what normal is?
Her testimony seems to be formed largely by the Defeat Autism Now world view which is that toxins and heavy metals are implicated in autism. And to use the example that Mr. Powers used of Tycho Brahe I think that comes to bear with her testimony as well. It doesn’t matter which test results she’s looking at it always comes back to a heavy metal or a toxin, when it could be that the acidosis that the lactic acid build up could be because the child was crying when the blood was taken. (35 min 30 sec)

I’m going to touch now on the general causation because that was a matter of some discussion by Mr. Williams. I see that the glutathione theory which is where we started with this general causation case seems to have dropped out. It wasn’t in the opening statement, it wasn’t in the closing statement. It seems that the theory of causation now is neuroinflammation and largely seems to be neuroinflammation alone. That was a theory that Dr. Kinsbourne recently advaced in this case. It obviously wasn’t present until just a couple of weeks before the trial in May.
This is something after six years in the making, this seems to have come up kind of at the very end.

Mr. Powers and Mr Williams have focused on the causation burden, and say that the information they have given on neuroinflammation meets that burden, that would be the causation burden under Althen and Grant, the specific criteria that they need to meet under that test that the court has articulated, the federal circuit’s has articulated.

Respondent starts a little earlier than that if you will in the calculation and that is about what evidence feeds into Althen and Grant. We start out with the analysis under Daubert about whether there is good scientific evidence to even meet that burden. So obviously the evidence that you have or the evidence that is being offered does not meet the criteria of good scientific or reliable evidence then you have nothing at all to test about whether you’ve met your legal burden under Althen.

Our position has been throughout this that the petitioners’ evidence that they have offered, the testimony that they’ve offered, fails to meet that standard of reliability that is set out under Daubert and that this court applies. Daubert stands for the proposition that there are not multiple kinds of scientific evidence. A kind for scientists to use and a kind for judges to use. There is only one kind of scientific evidence. It is the kind that scientists use. That is the kind that judges are supposed to be looking for as well. …

Kathleen Seidel’s neurodiversity weblog has more from the Dwyer case, including audio excerpts.

Elizabeth Mumper – Autism Omnibus, Dwyer vs HHS

When I heard Mr. Matanoski say, “when one doesn’t know what normal is,” it occurred to me that it could be used as a slogan or strapline for the autism/biomed organization that is led in part by Dr. Mumper.

8 Responses to “Thimerosal and Autism on Trial: Closing statement by Mr. Matanoski”

  1. Alexander Cominos July 31, 2008 at 04:31 #

    Two common mistakes people make: 1) When they hear something like “10% of cases of autism are from a known genetic origin,” they think this means that 90% of autism cases are not genetic, when in fact what it really means is opnly that the exact genetic relationship is known in 10%, while scientists are still working on the rest. Autism genetics is still young. 2) When they hear that someone had a “high” post-provocation mercury level they hear the word high uncritically. As Matanoski’s team, with a little help from the special master, elicited from Mumpers, there is no reference range, so no one knows what is normal or not in a post-provocation test. Surprisingly, in one of the transcripts I saw over on a competing autism blog, the blogger said that Mumpers said something inaudible. I heard it clearly. She said, in response to the special master, who asked how she knew that a value of 17 was high for Colin Dwyer when there are no reference ranges, that it based on her “conversations” with toxicologists and her experience. Not a very compelling answer. One hopes the special masters will apply Daubert as they should.

  2. Guest Blogger Transcriber July 31, 2008 at 04:52 #

    I noted that Dr. Mumper essentially misrepresented one fact. She seemed to imply that there is a standard for provoked urine heavy metals in adults, but, she lamented, it’s so unfortunate that they don’t have them for children. If there is a standard for provoked urines in adults–even for the laboratories that she uses–then why aren’t those laboratories using those standards for their lab test reports? She also said something that made no sense to this listener, while wandering off on a tangent she said that she longed for a the norms for provoked urine tests from a past, pre-industrial society. What would norms from 2 centuries ago tell her about today? I believe the Chinese had been using mercury for hundreds of years before their industrial age.

  3. RAJ July 31, 2008 at 15:04 #

    “Two common mistakes people make: 1) When they hear something like “10% of cases of autism are from a known genetic origin,” they think this means that 90% of autism cases are not genetic, when in fact what it really means is opnly that the exact genetic relationship is known in 10%”

    The 10% of cases with a known genetic cause is not proven. The conditions where it is claimed that a genetic cause has been found (Fragile X, Down’s Syndrome, Tuberous Sclerosis, Rhett Syndrome and others) are not necessarily genetic causes of autism. All of these disorders are mental retardation syndromes with a small subgroup having enough isolated secondary symptoms shared by many neurologically impaired children to qualify for an ASD diagnosis.

    There is also a lack of evidence in all of these genetic mental retardation syndromes in that the broad autism phenotype in the parents have not been observed.

    For example, the social problems seen in mentally retarded Fragile X boys does not resemble the social problems that Kanner first reported in 1943. The social problems observed in these boys are problems of social anxiety and shyness not a pervasive lack of responsiveness to other people.

  4. Ringside Seat July 31, 2008 at 20:36 #

    The temporal links are almost always made up, and usually based on some lawyer’s reading about some other vaccine with a totally different profile.

  5. Tsu Dho Nimh July 31, 2008 at 22:16 #

    If there is a standard for provoked urines in adults—even for the laboratories that she uses—then why aren’t those laboratories using those standards for their lab test reports?

    There is none that I remember, from my med tech days. It would be difficult, because it gets into dosage and patient size and which chelating agent you used.

    The problem of doing the provoking in non-exposed adults (a hundred or so, to get a good reference level) would require deliberately using a powerful chelating drug on them, without much of a reason.

    A 24-hour unprovoked urine collection and assay is the best measurement, or a blood test.

  6. brian August 1, 2008 at 00:44 #

    “The 10% of cases with a known genetic cause is not proven. The conditions where it is claimed that a genetic cause has been found (Fragile X, Down’s Syndrome, Tuberous Sclerosis, Rhett Syndrome and others) are not necessarily genetic causes of autism.”

    There is absolutely no reason to believe that because a mutation in a particular gene can cause mental retardation or other problems mutations that affect that particular gene cannot, therefore, also cause autism.

  7. gwynfryn August 1, 2008 at 23:04 #

    So how long will it take? I note you haven’t deleted my comments, so respect for that!


  1. The Truth Is Out There, But Smallpox? - July 31, 2008

    […] I was always struck by one detail in particular in these parent accounts of a vaccine “causing” their child to “become autistic.” Many of the accounts emphasized that, “one day” a child was fine—normal—and then he or she had a shot or shots and the next day, overnight, the child had autism. The “onset” of autism was, accordingly, often linked to a child receiving a vaccine, and was indeed said to be “caused” by the vaccine. Chronology has been given a big role in the hypothesis about vaccines or something in vaccines somehow leading to autism: In the Autism Omnibus “vaccine court” hearing last year for then 12-year-old Michelle Cedillo, videotapes showed that she had already been showing signs of delayed and/or unusual development prior to receiving her vaccines. [A transcript from the most recent Autism Omnibus trial can be read here.] […]

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