Autism Omnibus: Cedillo appeal denied

11 Aug

In the Autism Omnibus Proceeding there were three “test case” hearings to decide if autism can be considered a “vaccine injury” due to MMR. In all three cases, the special masters (judges) decided that there wasn’t enough evidence. In fact, it “wasn’t even close”.

All three have been appealed. The first appeal was denied a few weeks ago.

The second appeal decision is in
, for the test case that was the hearing for Michelle Cedillo. This case had the most “general causation” information and so was the most complicated.

As with the Hazelhurst appeal document, this document is a very good summary of the hearing.

Here is the summary of the appeal arguments:

The Cedillos assert seven arguments in their motion for review to show that the Special Master’s decision is arbitrary, capricious, an abuse of discretion, and contrary to law: (1) A panel of three Special Masters should not have heard the general causation evidence; (2) The Special Masters should not have allowed the last-minute expert reports and testimony of Dr. Stephen Bustin; (3) The Special Master improperly discounted the medical diagnoses and opinions of Michelle Cedillo’s treating physicians; (4) The Special Master improperly ignored concessions made by Respondent’s expert witnesses; (5) The Special Master ignored important aspects of Michelle Cedillo’s evidence; (6) The Special Master abused his discretion by refusing to consider important post-hearing evidence; and (7) the Special Master’s decision was contrary to law. Petitioners’ arguments four and five include multiple sub-parts, specifically raising the testimony of six expert witnesses and seven substantive areas of Petitioners’ evidence that the Special Master allegedly mis-evaluated.

Probably the key to the entire MMR-causes-autism idea, and the first subject that the appeals judge covered was the question of whether measles virus can be considered to persist in intestinal tissue. The petitioners case in this respect depends heavily on studies by Dr. Wakefields group and samples taken from Michelle Cedillo which both rely on the Unigenetics laboratory of Dr. O’Leary.

Without the test results of the Unigenetics Laboratory, Petitioners have lost a cornerstone to their causation theory. The fact that Petitioners did not prove the existence of any persistent vaccine-strain measles in Michelle Cedillo’s body leaves Petitioners well short of meeting their prima facie case that the MMR vaccine played any role in causing Michelle’s autism. Under these circumstances, Petitioners failed to meet their burden of proof by a preponderance of the evidence, and thus the burden never shifted to Respondent to rebut Petitioners’ proof. See Althen, 418 F.3d at 1278. The Special Master’s decision regarding the Uhlmann Study and the Unigenetics testing is reasonable in all respects, and could not in any sense be regarded as arbitrary, capricious, or an abuse of discretion.

Since the MMR test cases were heard, another very important study has been published, further showing that there is a lack of persistent measles virus in children with autism and bowel problems.

Without going into the details on the other points in the decision, we can jump to the conclusion and see that it is succinct and clear:

The issue before our Court is not to determine the causes of autism. The Court can only hope that medical professionals succeed in identifying the causes and developing a cure for this tragic disease. Rather, the Court’s task is to weigh the Special Master’s February 12, 2009 decision under the applicable review standards of the Vaccine Act, and determine whether it should affirm or modify the decision to any extent. After performing this review, the Court is satisfied that the Special Master’s decision is rational and reasonable in all respects, and is in accordance with law. For the reasons addressed above, the Special Master’s decision is AFFIRMED.

Or, to put it more succinctly:

Petitioners still have the burden of proving their claims by a preponderance of the evidence, and the Special Master reasonably concluded that they failed to do so.

There is still one more MMR appeal in the works. Given the results of the first two, my guess is that the attorneys are preparing for the next step in the journey towards a civil case.

Without more evidence to support their case, I would have serious doubts about the MMR hypothesis winning in a civil trial. Since the omnibus hearing, there is more good evidence against the MMR hypothesis and the plaintiffs will face more stringent evidence rules.

11 Responses to “Autism Omnibus: Cedillo appeal denied”

  1. bensmyson August 11, 2009 at 12:04 #

    Not surprising, but still extremely disappointing.

    Justice may have to take place in the streets before this argument about vaccines and autism is all over.

  2. Chris August 11, 2009 at 17:20 #

    Is “justice may have to take place in the streets” a kind of threat? If you don’t get your beliefs verified through science or law you will take it to the streets?

    Too bad. The science has been done, the link between vaccines and autism does not exist. It is a dead link… “It’s not pinin’! ‘It’s passed on! This link is no more! It has ceased to be! It’s expired and gone to meet its maker! It’s a stiff! Bereft of life, it rests in peace! If you hadn’t nailed it to the perch it’d be pushing up the daisies! Its metabolic processes are now ‘istory! It’s off the twig! It’s kicked the bucket, it’s shuffled off its mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-LINK!! ” (hat-tip to Monty Python and the dead parrot sketch)

  3. Patrick August 11, 2009 at 18:08 #

    Or conversely, people could write to their representatives and senators to request supports and services be made readily available to any on the spectrum who ask for them.

    Why didn’t I say Need them here? Because in many state and federal programs I have seen, that a qualification process is involved with overly restrictive requirements. Like the age discrimination that occurs in applying for PDD benefits in at least one N.W. U.S state. I reported my problems before age 18, but the med/psych community hadn’t even included the disorder in their guide book yet.

  4. RJ August 11, 2009 at 18:31 #

    “Justice may have to take place in the streets before this argument about vaccines and autism is all over.”

    Given that those who still subscribe to the debunked ‘autism is caused by vaccines’ camp are the substantial minority, that won’t last long. I think they would have more luck burning accused witches at the stake.

  5. Ringside Seat August 11, 2009 at 18:50 #

    A baying mob of the pitifully misled and distressed is pretty much all that’s left on MMR. Roll on the results on Wakefield.

  6. Robin Nemeth August 12, 2009 at 20:46 #

    I’m no lawyer but it’s been my understanding that parents must first take their case to the special vaccine court before they can go to a regular court.

    I’ve always felt pretty sure that when the evidence is presented to a fair minded jury, rather than to appointed ‘Special Masters’ (a term which always leaves me envisioning parents as drooling dogs begging for their Master to throw them a bone), justice will at last be done.

    I’m too old to be out and about in the streets. But I’ve heard it said ‘no justice, no peace’.

  7. Robin Nemeth August 12, 2009 at 20:59 #

    I’m not a lawyer but it’s my understanding that parents of vaccine damaged children must first go to the special Vaccine Court before going to a regular court. You’d think Americans would see this as a civil rights violation, but they don’t see civil rights violations that don’t affect them personally, I guess.

    If this does go to a regular court, now, and evidence is at last presented to a regular jury of fair minded peers instead of being tried and judged by a Special Master ( a term which has always made me envision parents making the claim that their child was harmed by vaccines as drooling dogs, waiting for a bone to be tossed to them from their master), I’ve always felt that justice will at last be done.

    I’m too old to be out and about on the streets. But I have heard it said “no justice, no peace.”

    • Sullivan August 12, 2009 at 21:39 #

      Robin Nemeth,

      thanks for taking the time to respond.

      The point of going to the vaccine court is actually a

      In essence, the U.S. government accepted that it holds liability for injuries caused by vaccines. One can not sue a sovereign state directly. The state must grant permission. That is what the U.S. did in setting up the vaccine court and the procedures involved there.

      In doing so, the government made restrictions on the awards granted. I think it is time to revisit the $250,000 cap on pain and suffering, for example. The government also relaxed the rules for the Court to operate under. They allow a lower standard of evidence. In fact, they encourage the special masters to allow evidence that might otherwise be dismissed.

      One still has the same rights to try in a civil court after going through the vaccine court. However, that comes with tighter restrictions on evidence.

  8. David N. Brown August 16, 2009 at 09:15 #

    Looks like this is another appeal where the special masters are personally accused of corruption or misconduct, another being from Ronald Homer near the beginnning of the year. This strikes me as “anti-vax” litigants digging their own grave: If they make a habit of accusing every judge who rules against them, they give the judiciary as a whole reason never to give them so much as a hearing.

  9. Sullivan August 16, 2009 at 15:43 #

    David N. Brown,

    I read the Cedillo appeal when it first came out. It struck me then (and now) that it was speaking as much to the public as to the appeals judge. And, by the public, I mean largely their clients (the Omnibus petitioners).

  10. David N. Brown August 17, 2009 at 00:34 #

    There certainly is a strong element of attempting to gain public sympathy, but that’s something else I find odd. There’s ample precedent for publicity, even when favorable to one’s side, creating problems in court. (Ex. a plea bargain in the weird “Tyrannosaurus Sue” case fell through because it was disclosed.) This makes my wonder if much of “vaccine-autism” publicity is being made on the complainants’ own initiative, maybe even against their lawyers’ advice.

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