Audio of the Cedillo appeal part 1

15 Jun

The vaccine court case of Michelle Cedillo is apparently the last one of the Omnibus Autism Proceeding which is still undergoing appeals. I wrote about the appeal recently on LeftBrainRightBrain, but those were responding to second-hand accounts of the hearing.

With thanks to commenter Anne, the audio is here:

Cedillo appeal arguments

Below are notes I took on the first part of the hearing–the part where the lawyer from the Michelle Cedillo (also representing the rest of the petitioners) was speaking. I’ll get to the second half shortly. I tried to put my own commentary in italics.

Suffice it to say, the notion that the petitioners presented compelling arguments and the judges were entirely favorable to them isn’t born out from the audio.

Ms. Chin-Caplan (attorney for the petitioners, including Michelle Cedillo) argued that the rules of the civil procedure do not apply in the vaccine court and that the government used them as “a club and a shield”.

She complains that the government required them to go to a foreign jurisdiction (the UK) to obtain documents.

I found that odd in light of the fact that the petitioners did try to obtain documents from the UK as early as 2004.

In response to the complaint that the Special Masters required the petitioners to work with this foreign jursidction, the judge asks if the petitioners filed a motion (under rule 26) to compel the government to produce the documents. Ms. Chin-Caplan argued that the Federal rules of procedure do not apply in the vaccine court. The judge responded “that’s not quite true”. Under rule 7 of the vaccine rules, Ms. Chin-Caplan could have asked that the Federal rules be followed. The judge asked if the petioners made a motion to follow those rules.

The judge asks, since they wanted the underlying data why didn’t Ms. Chin-Caplan ask the Special Masters to “please compel the government to bring in the underlying data”. Rules were in place to do that, but the petitioners didn’t do this. Ms. Chin-Caplan discusses that they worked with counsel in the UK for advice on how to proceed in the UK. However, they gave up before filing for the documents.

Ms. Chin-Caplan argues that lack of due process was “pervasive” in the proceeding. One judge asks what other pervasive violations of due process existed. She referred back to the same situation about Dr. Bustin.

In other words, she dodged the question of “pervasiveness”.

Judge–weren’t you given the opportunity to follow-up and to question and challenge the testimony? Ms. Chin-Caplan talks about how new information was presented at the hearing.

She doesn’t discuss the opportunity to challenge the testimony in post-hearing briefs.

Judge–points out that the petitioners didn’t follow through on all avenues to get the material from the UK.

The petitioners abandoned the opportunity to request the material from the UK based on advice from the counsel they consulted with in the UK. In other words, they didn’t actually try to get the courts in the UK to unseal the documents.

Judge Lyn notes that there was a concession that Mr. Conway (Ms Chin-Caplan’s colleague in this case) conceded that the lack of access to these documents did not prejudice the case.

Ms. Chin-Caplan is stuck trying to argue that her own colleague’s concession was incorrect.

Ms. Chin-Caplan argued that the test-cases were supposed have the “general causation” arguments only made during the Cedillo hearing, not the Snyder hearing. Thus, when Dr. Rima testified in the Snyder hearing, council for the Cedillos were not present. Ms. Chin-Caplan argues that Dr. Rima presented a calculation based on information about Michelle Cedillo and that this was in error. She further argues that since she was not present for this hearing, she didn’t know about that until the decision was handed down and it included reference to this testimony.

I find it very odd that her argument is that she wasn’t following the other test cases in the Omnibus.

Ms. Chin-Caplan argues that she submitted the alleged Rima miscalculation–and added more post-hearing information that should have been admitted. This was filed for reconsideration of the decision. This includes a textbook by Prof. Zimmerman of the Kennedy Kreiger Institute and a paper.

The Judges point out that much of the information was available before the decisions were handed down. Ms. Chin-Caplan argues that the Special Master didn’t have time to read the textbook (it came out a month before the decisions).

One of the judges points out that the petitioners would still have a difficult time with the present state of the science proving their case.

Ms. Chin-Caplan notes that the Althen standard: that they have to present a plausible theory of events and have a timeline.

Ms. Chin-Caplan makes a statement I have a difficult time parsing: “Plausibility to some people for whatever reason seems to mean “possible”. But plausibility in the scientific and medical world means that it makes sense from a thinking it through from a scientific and medical standpoint that this can occur.”

Ms. Chin-Caplan discusses the theory they have for MMR causing injury in Miss Cedillo. A judge points out that Ms. Chin-Caplan appears to asking them to reweigh the evidence, which isn’t their job.

I would argue that Ms. Chin-Caplan and the others in the OAP did not present a plausible theory for how MMR would cause autism. Multiple witnesses for the government showed how each leg of their theory was implausible.

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