The next mito-autism case?

20 Oct

It’s been nearly a year since the first autism/mitochondria case was conceded. The question of mitochondrial dysfunction and autism has evolved significantly in the minds of the public and insiders in that time.

Shortly after the concession, Tom Powers, lead attorney for the petitions was asked

.”..whether this was a possible break in the case, he replied that the particular case dealt with a claimant who had a diagnosed mitochondrial disorder. As a result, it probably won’t have much of an effect on the other cases.”

It wasn’t really on the radar for the Petitioners.

But, that was in December of 2007. In February of 2008, the concession document was leaked, followed by TV, online and print news-stories on the topic. Coincidentally, mitochondria and autism has changed from not “much of an effect on the other cases” to some people claiming as much as 1/2 of the Autism Omnibus cases being associated with mitochondria.

We’ve seen one Omnibus test case removed from the Omnibus because, the parents claim, the child’s case needs to be argued as a mitochondrial dysfunction case. We’ve gone from diagnosing mitochondrial dysfunction involving a difficult task of many tests and specialist’s opinions, to the point where David Kirby, a blogger, claims to be identifying mitochondrial dysfunction based on parental reports. We now have self-taught “experts” ready to answer questions on discussion boards about mitochondrial disorders, one of the extreme specialties of medicine.

While this is all lamentable, we now have the first “test case” for the mitochondrial autism notion, post concession. A family is arguing mitochondrial disorder (or an oxygen depletion disorder).

The case has gone through the first steps in the Court of Federal Claims (the “vaccine court”). The case hasn’t concluded, but a decision has been published. To summarize:

First, note that the parents are representing themselves, it appears. The decision notes:

On August 29, 2008, petitioners filed a Reply to the Order, making two assertions: (1) [The child] suffered from a mitochondrial disorder and oxygen depletion disorder which a later vaccination significantly aggravated, leading to autistic like symptoms (somewhat similar to the Hannah Poling case that respondent agreed to compensate); and (2) the vaccinations which [the child] received caused him mercury poisoning from thimerosal or ethyl mercury (which is the subject matter of the second round of autism cases in the Omnibus Autism Proceeding, the first round of cases having to do with MMR and autism).

Tthey seem to be both arguing the mitochondrial disorder idea and the Omnibus thimerosal theory. In support, they gave no expert medical reports. Instead, they submitted a single paper (which presumably is supposed to cover both, very different assertions):

by D.S. Baskin, et al., entitled “Thimerosal Induces DNA Breaks, Caspase-3 Activation, Membrane Damage, and Cell Death in Cultured Human Neurons and Fibroblasts,” published in 74 Toxicological Sciences (2003), available on the internet.

That’s really thin evidence (as discussed at some length by the Special Master). Some sort of expert report should link the theory to the specific child. The parents state:

They have not filed a medical report in support of their assertion of significant aggravation of [the child’s] autistic like disorder, claiming that no doctor would risk criticism from the medical community by providing such a report.

Anyone want to volunteer some names of people who would risk the criticism?

But, seriously, diagnosing a mitochondrial disorder is not a simple task. This isn’t something a parent (or David Kirby) can do by looking for similar markers to another case. Heck, it isn’t as though all the biomarkers for the conceded case are universally accepted by mitochondrial experts.

With such little support for the case, the Special Master was forced to conclude:

Petitioners have still not proved their assertion of significant aggravation.

Basically, the decision ends with a statement that the family has not made its case, but they have a chance to come back with a status report as to what their intentions are.

They have already signaled a possible intention:

Petitioners express an interest in suing civilly.

This case is built on even thinner evidence than most internet-discussion-group claims. At least with those, there are challenge tests, porphyrin tests or some other questionable test, together with the opinion of the doctor who ordered the questionable tests to support an idea of “mercury poisoning” or some such diagnosis. But here, we seem to have: the child is autistic, therefore it is mercury and/or mitochondrial disorder aggravated by vaccines.

The Special Master gave the family information on how to contact a lawyer familiar with the vaccine court. I hope, for their sake, they did. I doubt it will have much of an effect on their case, but at least they would have some advice as they move forward to civil court–where the expenses will be charged to the family.

14 Responses to “The next mito-autism case?”

  1. Kev October 20, 2008 at 15:03 #

    Ah dear 😦

    I feel for these parents. They’ve been led a merry dance and I strongly suspect Clarence Darrow could’t get them past Daubert in a civil hearing.

    The Cedillos remortgaged their home I heard. Its all so desperately sad. Even if I utterly disagree with them its horrible to think of them post decision. There’ll be no joy in these decisions.

  2. Sullivan October 20, 2008 at 15:57 #

    There is absolutely no joy in these decisions. Seeing a family take the thin arguments of the internet to the court is painful to read.

  3. Kate October 20, 2008 at 17:00 #

    I agree that there is no joy and am saddened to hear the measures parents go through (i.e. the Cedillo family) but I do worry that this latest mito case was merely going through the motions in order to take the case to the civil courts.

    I am not familiar with civil court matters (thank goodness) but does this mean the case will go before a jury?

    If this is so then I shudder to think what the results might be. The science that supports (or not) these cases is very difficult for a layperson to understand.

    I spent my summer following the Cedillo case. I remarked to a friend that I felt I had earned a medical degree during that time (not really but YKWIM).


  4. Joseph October 20, 2008 at 17:23 #

    I think what they are trying to do is piggyback the thimerosal hypothesis in a mito case, which currently is considered more plausible. Imagine what would happen if they were to succeed. Immediately they would say a thimerosal case has won in court.

  5. Dr Aust October 20, 2008 at 17:23 #

    As has been repeatedly pointed out by scientists, as well as in court, an in vitro (cells in a dish) experiment or study proves zilch in terms of a theory (let alone a demonstration) of causation in man.

    Zilch. Zip. Nothing. Nada.

    I speak as someone who does experiments on cells in dishes with toxic chemicals and measures things like “oxidative stress”,changes in cell membrane properties and cell death.

    If that paper is all the plaintiffs have got, then someone should advise them strongly to forget it. Don’t lawyers have a duty to advise clients of what would be in their best interests?

  6. Kev October 20, 2008 at 18:51 #

    Kate – there is a process known as Daubert in which (in a civil case) any science to be used as evidence has to be rigorously tested as to its legitimacy before it ever gets presented to a jury. The Geier’s and Boyd Haley have both failed Daubert hearings and their evidence was inadmissible. The plaintiff lost on both occasions.

  7. Another Voice October 20, 2008 at 20:20 #

    If they had to remortgage their home, would that have been to pay for treatment? I am under the impression that the government is paying for the legal bills in these cases.

    Is that correct?

  8. Anne October 20, 2008 at 21:19 #

    This case is about over. The McLaughlins filed their motion for dismissal on October 9, 2008, so a judgment of dismissal should be entered in the near future. After that, they can file in civil court if they want, but if they couldn’t get an expert for the VICP claim, it’s unlikely that they will find one for their civil case. This isn’t the type of case that can be tried without an expert.

    Dr. Aust, the McLaughlins never had an attorney in their VICP case. They filed and handled it themselves. They may have trouble finding an attorney to file their civil case as well.

    Another Voice, petitioners don’t usually recover their attorneys’ fees and costs until after the case is over, although sometimes the Special Masters grant an award of interim fees. It isn’t done on an “as you go” basis. The Cedillos have filed a motion for an interim award of fees. HHS’ response is due November 9, 2008. I think the order on this motion will be very interesting.

  9. Sullivan October 21, 2008 at 00:48 #

    Thanks Anne,

    I felt I should check the docket since the status report was due 10 days ago.

  10. Ms. Clark October 21, 2008 at 09:26 #

    The way I understood it was that the Cedillos took out a loan to go to DC with their daughter for two or three weeks.

    I believe that they’ll be reimbursed generously by the Special Master(s) for their expenses incurred for being a test case. So they’ll probably at least break-even as far as any expenses related to suing the gov’t vaccine system. Unless someone can show that their lawyers and they brought the case in bad faith, that they all knew all along that there was no connection between Michelle’s problems and vaccines.

    … but I’ll stand corrected on that if I misunderstood the vaccine court’s procedures or what the Cedillos took the loan out for.

  11. dr treg October 21, 2008 at 12:21 #

    According to this article

    there are two types of D.N.A. – nuclear and mitochondrial. Hannah had abnormalities of both
    1. Mitochondrial D.N.A.
    2. Nuclear D.N.A.
    Mitochondrial abnormalities appear to occur in up to 1:50 people.
    Mitochondrial abnormality screening is expensive and the results may be difficult to interpret in relation to causing disease.
    Hannah had a mutation of the 16S ribosomal RNA gene. Only five cases have been reported.
    Paediatricians seem to feel that the wrong message was sent out to families with A.D. members without further research.
    Is the legal profession advising such patients and their families appropriately?
    “Hard cases make bad law”.

  12. Another Voice October 21, 2008 at 16:19 #

    Thanks for clarifying this Anne; I had thought these cases were taken on a contingency basis.

    This does raise another question. Recently, I read that one of the Special Masters had objected to the bills being submitted by the attorneys as duplicative and overstated. Then would the people pursuing these cases already have paid attorney fees that were duplicative and overstated?

    I understand the Special Masters reviewing these bills to make sure the attorneys are not ripping off the government but who is protecting the plaintiffs?

  13. Anne October 21, 2008 at 18:22 #

    Another Voice, I didn’t mean to imply that petitioners pay the attorneys. They don’t. The attorneys get paid reasonable fees for their work on the case out of the compensation fund if the case was brought and maintained in good faith.

  14. Dr Aust October 22, 2008 at 21:30 #

    Re. Dr Treg’s coments – all the discussion of mito “abnormalities” and genetic testing is complicated by the fact that a mitochondrial mutation doesn’t necessarily cause anything.

    Prometheus at Photon in the Darkness did a real 5-star post on this which is here, and includes “Mitochondrial genetics 101”. The take-home is that talk about “1 in 50 may have mitochondrial abnormalities” is completely wrong, and that the resulting cry for genetic screening of autistic kids, or presumptive treatment of (non-existent) mitochondrial disorders, is based on a whole series of scientific misunderstandings. It will, though, doubtless be used as a rallying call by the biomedical / mitochondrial theory types to claim they are being ignored:

    “THEY refuse to screen our kids for these mutations that WE KNOW are out there!!”

    Basically, if the kid has a real mitochondrial abnormality the way to tell is by clinical observation, history and family history. Serious mitochondrial problems, enough to compromise function, can be investigated in various ways, but random DNA screening, or mitochondrial sequencing, is not going to help. I don’t doubt it will make some unscrupulous folks a pile of money, though.

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