Is the end of the Omnibus Autism Proceeding near?

2 Oct

The Omnibus Autism Proceeding (OAP or omnibus) is the way the Court of Federal Claims (vaccine court) has been handling the now 5,000+ claims submitted for autism as a vaccine injury. The Omnibus started officially in July of 2002 with Autism General Order #1. Along the way it was decided that the best way to handle the large number of claims was using “test cases”. Three test cases were heard for each of two “causation theories”. The idea was that “general causation” arguments could be made once, and very thoroughly, and the other cases could be decided on the outcome.

The first causation theory was that the MMR vaccine in combination with thimerosal could result in autism. The test cases for this theory were those of Michelle Cedillo, William Yates Hazelhurst and Colten Snyder. Attorneys for the families presented evidence for a mechanism where thimerosal was proposed to reduce the immune response and the MMR vaccine led to a persistent measles infection which, again as proposed, led to symptoms of autism. In all three cases the special masters (judges) ruled against the petitioner families. They found that the evidence did not support the mechanism proposed.

The second causation theory held that thimerosal in vaccines could result in autism. Three test cases were presented, again with individual and general causation evidence. The test cases, Jordan King and William Meade, and Colin Dwyer were heard. Their attorneys argued that mercury from the thimerosal in the vaccines accumulated in the brains and resulted in neuroinflammation which, in turn, resulted in autism. As with the MMR case, the special masters ruled against the petitioner families.

To put it simply: all the data and all the experts that could be put together to support the idea that vaccines cause autism weren’t persuasive. They came up with two stories (MMR and thimerosal) and neither story made a case that was even close (the special master’s word).

Some of the petioners appealed. Some appealed to multiple levels. The appeals were denied.

The Court recently issued an update letter. I quote part of it below:

As described above in part I of this Update, all of the court rulings in the six test cases described above have found no causal link between autism and MMR vaccines and/or thimerosal containing vaccines. Further, the PSC has informed the special masters that no additional OAP test cases are contemplated.

Therefore, the Office of Special Masters has begun discussions with members of the petitioners’ bar and respondent’s counsel about how best to conclude the approximately 4,700 autism cases remaining open on the court’s docket. To aid in that process, some petitioners’ counsel have contacted all of their OAP clients to advise them of the results in the test cases and to recommend a course of action with regard to their claims. Additionally, all petitioners who are not represented by counsel have been ordered to inform the court either that they wish to dismiss their claim or that they intend to proceed with their case. For petitioners who wish to continue with their claim, orders to identify a theory of causation, produce an expert report, and file additional evidence will follow. Petitioners’ counsel who have not yet done so are encouraged to contact their clients and determine how their clients wish to proceed.

The issue of attorneys’ fees and costs for petitioners’ counsel is part of the discussion about how to conclude proceedings on the OAP petitions. Mediation efforts are underway to develop methods to resolve the fees and costs issues, and a report on the progress in these talks is expected at the October judicial conference.

The special masters are assuming that no one will go forward with the MMR and thimerosal theories. Since those theories don’t hold up in court, it seems a good assumption.

Petitioners can still go forward as individual cases, as in any non-omnibus case. They will need to submit records and a theory of causation and support that theory in hearing.

The PSC (petitioner’s steering committee, a group of lawyers which has managed the Omnibus from petitioner’s side) has decided that no additional OAP (Omnibus) test cases are planned.

This is very important. They have no other theories to present. They don’t plan to present “too many too soon”. They don’t plan to present a Wakefield-like theory of persistent measles infections leading to “leaky guts”. They don’t plan to present a “mitochondrial autism” theory.

This last bit is very important. The Hannah Poling case made a lot of news when it was leaked that the government had conceded her case as a table-injury MMR encephalopathy. She was supposed to be one of the three thimerosal test cases. At the time of the concession and since, it was asserted that her case was “not rare” and that the attorneys were prepared to go ahead with the mitochondrial disorder story. It would appear that there are not many (if any) other “Hannah Poling” cases out there. There is at least one family pursuing a variation of the mitochondrial disorder theory. Alexander Krakow was scheduled to be a test case for the thimerosal theory and his family pulled out of the Omnibus to pursue the mitochondrial theory.

While there may be a case or two that we hear about from here on out, it appears that the Omnibus, the “class action” type phase, is over.

14 Responses to “Is the end of the Omnibus Autism Proceeding near?”

  1. _Arthur October 2, 2010 at 01:26 #

    But all the lawyers’ fees of all the 4,700 plaintiffs will be drawn from the Vaccine Fund, is that right ?
    And if any plaintiff wants his lawyer to work some more, and to press his case before the Vaccines Court some more, the fees will be ultimatimely borne by the Court too ?

    So, there is no downside do continuing the proceedings, your lawyer’s time costs you nothing, it’s all paid up, or will be.
    I hope I’m wrong on that.

  2. Mike Stanton October 2, 2010 at 09:54 #

    The lawyers will walk away with their fat fees. But what will the parents do now that their hopes of compensation have gone? And not only that. I think that by now the money is probably less important than the sense of vindication that parents were seeking from a successful outcome. It will take some serious psychological readjustment before some of them can get on with their lives and the task of raising their autistic children.

  3. Science Mom October 2, 2010 at 20:27 #

    Since the NVICP compensates legal and expert fees for good-faith cases, I wonder how those cases that were part of the OAP and choose to continue, will be handled if they opt for the same or similar causation hypotheses.

  4. daedalus2u October 3, 2010 at 16:50 #

    I wouldn’t think that a lawyer could bring multiple “good-faith” cases for multiple theories of causation based on the same facts.

    Given the evisceration of the “science” presented to demonstrate causation, if I were a lawyer and brought the same “science” again to the same court, I would worry about being sanctioned. Of course as a scientist I would have worried about bringing such a nonsense case the first time.

  5. _Arthur October 4, 2010 at 00:51 #

    Kathleen has a recent post about the Hepatitis B Omnibus, where the VICP Special Masters refused to refund about $110K of “costs”, $97K of it being “consulting fees” to Geier & Geier, $37.5K to Geier junior, who has no MD. The $44K expense related to a trip to France and Italy, to attend a conference, was flatly refused.

    The Special Master explains in loving detail why the expenses, especially the expense for which no invoices are provided, have been disallowed.

    David Geier, who has an MD and is board-certified in genetics, may serve as a consultant, but not as an expert about Hepatitis B matters, and cannot serve as an expert paid as if he was a consultant either.
    Mark Geier, who is not qualified, may not serve, even as a consultant.

  6. Catherina October 4, 2010 at 10:44 #

    Arthur – Mark is the MD, David is Baby Doc sans MD

  7. Gary October 13, 2010 at 19:00 #

    Anybody who reads this know of doctors who will sign affidavits on behalf of individual petitioners moving forward?

    For those of you opposed to this process, please do not respond. I hope you feel better in the morning.

    • Sullivan October 13, 2010 at 20:19 #


      contrary to how many would try to paint me, I do believe there are adverse reactions to vaccines. I also believe that petitioners deserve the best in representation and expert witnesses. I agree with the Court that the explanations for autism as a vaccine injury presented in the Court as test cases were far from convincing.

      I also believe that petitioners in general have not had access to excellent expert witnesses. Dr. Mark Geier and Dr. Marcel Kinsbourne are two doctors you will find quite often in the court decisions. Some attorneys may even recommend them. The Court has made it very clear, very very clear in the case of Dr. Geier, that these witnesses are far from persuasive. The fact that I believe petitioners should be aware of the limitations of these two gentlemen does not mean I feel that people should not put cases forward.

      That said, what do you man by “sign affidavits”? Do you mean prepare expert reports? For that, much would depend on the argument you are putting forth. One would hope that the doctors who have directly examined your child (I assume this is on behalf of your child) would be the first source for such reports. Then one would look to experts in the fields that are key to your argument. I.e. a metabolic specialist, should that be your argument, or a neurologist, etc.

      Good luck.

  8. Chris October 13, 2010 at 21:01 #

    Gary, try this list.


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