When the science fails you, turn to the legal option

10 May

A news conference today will confirm that autism/anti-vaccine groups have lost the scientific battle for the idea that vaccines cause autism as they turn to the legal battle instead.

…a new report in a New York law school journal, the Pace Environmental Law Review, could reignite the often-inflammatory debate over the issue. Based on a sampling of cases in which plaintiffs won settlements or awards in vaccine court, the authors found that many of the victims demonstrated evidence of autism – even though, perhaps as a legal tactic, their lawsuits emphasized other injuries.

Readers of this site might be forgiven for looking and yawning – here we go again. This is nothing but re-hash of already discussed material. But lets look at the main claim of this issue:

Of the 170 cases the report’s authors examined, 32, or 19 percent, provided documented evidence of autism or autism-like symptoms. The evidence in some cases included findings by the court that the children had autism, “autism-like symptoms” or “symptoms and behavior consistent with autism.” In other situations, third-party medical, educational or other court records confirmed an autistic disorder.

The report – at least in this news story – doesn’t seem to mention how many children were compensated for having autism. As we all kow ‘autism like symptoms’ or ‘symptoms and behavior consistent with autism.’ might be just that – but they are not autism. If they were I’m sure the court would’ve reported it.

And thats not all. Nobody seems to be giving an estimate for how many of these kids actual autism (not autism-like symptoms etc) was actually caused by an actual vaccine.

And thats *still* not all. One of the most problematic issues for this new ‘line of attack’ is this.

Daubert. This is the standard of science that should be used in legal cases. When Daubert is applied, the bottom line is that the best science must be applied. In _none_ of these cases was Daubert applied. In fact, in only one instance was Daubert applied – the Autism Omnibus hearings. And as we all know, they failed.

So here we have a fairly desperate roll of the dice. Eschewing science completely, the autism/anti-vaxxers have decided to turn their attention to the law. By muddying the legal waters, they are attempting to make it appear as if autism by any other name has been compensated in at least 19% of the cases they looked at.

The truth is, it hasn’t. The truth is that in no cases I can see has a case been established scientifically to show vaccines cause autism.

41 Responses to “When the science fails you, turn to the legal option”

  1. Stuart Duncan May 10, 2011 at 12:08 #

    It makes so little sense to me, that they’d even try this. From my understanding, most, if not all, cases avoided the use of the term autism except to describe “autism like symptoms” because any time they did say it was autism, they’d lose.
    At least, that was the situation in the Poling case, wasn’t it?

    Anyway, even if every case did say it was autism, all it would prove is that they never wanted drawn out court cases and just found it easier to settle with all these people.

  2. Navi May 10, 2011 at 14:18 #

    The thing with the VICP, is I think, if I read somewhere right, is that the injury just has to be “possibly” caused by the vaccine. I think if the litigators that pursue the vaccine/autism link really, honestly believed the vaccines triggered autism, they would research whether or not seizures can cause enough change in the brain to trigger autistic symptoms, because with seizure disorders, you don’t have a higher percentage of “seizure like symptoms” in children with autism, you have a much higher clinical rate of seizure disorders, in clinical patients with autism than in those without autism. And … vaccines can cause fevers…. fevers can cause seizures… Of course, the problem being, that the illnesses the vaccines prevent… can cause fevers… which can cause seizures…. hmmm…

  3. _Arthur May 10, 2011 at 14:52 #

    If I recall correctly, the Daubert standard was *not* even used in the Autism Omnibus hearings.
    Am I wrong ? I hope so.

    • Kev May 10, 2011 at 14:55 #

      We’re both right 😉

      It wasn’t used as part of the hearings but it was used to admit evidence (or maybe it was experts, I forget which) into the record that were to be used in the hearings.

  4. Maureen May 10, 2011 at 14:54 #

    Yes, parents will be reassured when they are told that vaccines don’t cause autism, it causes brain damage.

    • Kev May 10, 2011 at 15:33 #

      Maureen – no one’s saying thats great news. We’re saying that in terms of the debate ‘do vaccines cause autism’, this adds no weight to the side that claims they do.

  5. _Arthur May 10, 2011 at 14:58 #

    On a statistical standpoint, it is perfectly normal for autistic children to have adverse reaction to vaccines at the same rate than the greneral population.
    So one can *expect* that some VICP-compensated cases involve autistic children.

    That doesn’t show causation.

    And the term “austim-like seizures”, sometimes used in medical reports, is misleading, generally unrelated to autism.

  6. Catherina May 10, 2011 at 15:17 #

    here is the paper, every bit as bad as I expected http://bit.ly/ilh0iF

  7. Kev May 10, 2011 at 15:24 #

    It has to be read very, very carefully, but when it is one phrase is clearly missing: vaccines caused autism.

  8. brian May 10, 2011 at 15:34 #

    Most of the compensated cases that the authors reviewed involved the DTP vaccine. Encephalopathy and seizures following DTP vaccination are likely due to pre-existing genetically determined channelopathies, and thus have nothing whatsoever to do with vaccination except that (a) many such mutations cause febrile seizures, and so may happen to be revealed by vaccination-induced fever, and (b) as expression of the mutant gene changes in the months after birth, seizures begin following months of apparently normal development, approximately coincident with the age at which DTP is given. The best-studied channelopathy was described by Dravet, who noted: “Marked slowing or stagnation of psychomotor development, accompanied by psychotic or autistic traitsand hyperactivity, was observed between the ages of one and four years. [Wolff M, Cassé-Perrot C, Dravet C. Severe myoclonic epilepsy of infants (Dravet syndrome): natural history and neuropsychological findings. Epilepsia. 2006;47 Suppl 2:45-8]

    It would be surprising indeed if some of the affected children did not manifest “autistic traits,” but that clearly does not suggest that those traits developed as a result of vaccination.

  9. Catherina May 10, 2011 at 15:45 #

    oh Brian, what does Dr. Dravet know, just because the disease carries her name?! We know we need “more research”, or to speak with the authors: “Far more research would be needed, including large, population-­based epidemiological studies, to conclude that vaccines played no role or even no aggravating role in the onset of such catastrophic symptoms.” They clearly haven’t got the foggiest understanding of neurology and molecular biology. Sigh.

  10. Navi May 10, 2011 at 17:16 #

    _Arthur, I wasn’t suggesting “seizure like symptoms” was anything valid. I was using that as something that obviously doesn’t exist. 😉 and the Psychologists that study autism at the University of Michigan have noted a high rate of comorbid seizure disorders in clinical patients with autism. That’s not “autim like seizures…” Just in case that comment was in response to me… I’m guessing it wasn’t… but I did mention seizures so I wanted to be sure. 😉

  11. Orange Lantern May 10, 2011 at 17:21 #

    From the paper:

    This assessment of compensated cases showing an
    association between vaccines and autism is not, and does not
    purport to be, science.


  12. Stuart Duncan May 10, 2011 at 18:11 #

    Here is what I saw:

    Every parent that stood on those steps and spoke into the microphone made it very clear that they are not anti-vaccine and that they are there to push for congress to perform more research and make vaccines safer.
    Meanwhile, in the ustream chat room, parent after parent screamed (via all caps) “I’M ANTI-VACCINE!”.. a couple of them even repeatedly entered “vaccines don’t work.”

    To be clear, even Wakefield once said, and I quote: “I’ve not said “Don’t get vaccinated”. I strongly advocate for the use of single vaccines.”

    Clearly, people are getting the wrong message. If they won’t even listen to the people that are saying what they want to hear, how can we expect them to listen to news/information that they do not want to hear???

  13. Angela May 10, 2011 at 18:44 #

    To the Author:

    Science never failed, but with the money involved it is easy to buy scientific results to cover up future losses. Now the truth has decided to go legal and speak the same language.

  14. Orange Lantern May 10, 2011 at 19:06 #

    A little off topic (sorry), but is there a reason why the April 26 post “Childhood Vaccinations and ASD: No Relationship Between Number or Schedule of Vaccinations and Diagnostic Outcome or Severity” is missing?


    Here is the Google Cached version: http://webcache.googleusercontent.com/search?q=cache:uBp6OhhROMEJ:leftbrainrightbrain.co.uk/2011/04/childhood-vaccinations-and-asd-no-relationship-between-number-or-schedule-of-vaccinations-and-diagnostic-outcome-or-severity/+site:leftbrainrightbrain.co.uk+Childhood+Vaccinations+and+ASD+imfar+abstracts&cd=8&hl=en&ct=clnk&gl=us&source=www.google.com

    And is this abstract available from an original source online? I have not been able to find it, but I thought I would ask.

    • Sullivan May 10, 2011 at 20:00 #

      Orange Lantern,

      the abstracts are still under embargo. They were not supposed to be made public so early. When I heard about that, I removed the posts. I expect the embargo to lift tomorrow with the IMFAR press conference. When the embargo is lifted, I will repost.

  15. Kev May 10, 2011 at 19:13 #

    Angela, you speak the language of the conspiracy theorist. Its not impressive at all.

  16. Stuart Duncan May 10, 2011 at 19:14 #

    If getting a settlement from doctors is proof of something, then what does this prove?

    Mom Awarded $7 Million After Child Born With Disability

    It doesn’t say what the disability is in the article, but if it’s autism, then surely this settlement is counter “proof” that it was never the vaccines.

  17. Kev May 10, 2011 at 19:17 #

    OL – not sure, I’ll ask Sullivan in case he removed it.

  18. _Arthur May 10, 2011 at 19:57 #

    That’s OK, Navi, I was just pointing out that I’m unsure if “autism-like seizures” has a precise medical definition, or if it is merely a convenient catch-all term.

    One thing is sure, is that anti-vaccine groups have already been harping that “autism-like” song when comparing autism and heavy metals poisoning. The 2 conditions are not at all alike, even if you can find symptoms that superficially resemble each other.

  19. passionlessDrone May 10, 2011 at 20:11 #

    Hello friends –

    Not to defend what is surely a poor paper, but I do think that it is more than a bit dissonant in the credulity to believe that one in 38 Korean children is on the spectrum, but then to turn around and quibble about the semantics of ‘symptoms and behavior consistent with autism’ when the topic is vaccination.

    For example, does anyone think that any of the previously undiagnosed children in Korea who were receiving no services, and were mainstreamed in classrooms with no aides, have behaviors more consistent with autism than Hannah Poling? Seriously. Is there anyone who really believes that?

    I didn’t see any skepticism applied towards using the ASSQ

    – pD

    • Sullivan May 10, 2011 at 20:50 #


      I see much the same issue. We are in a topsy-turvey world, where the vaccine-injury proponents have claimed to have found a “hidden horde”. I find it highly ironic, considering that the claim has always been that autism is so obvious that no one could miss it. One of the children in the paper had his own doctor state that he wasn’t autistic. It’s the government who claimed, without actually observing the child, that he was autistic.

      Given that I don’t see this paper as being very good from the outset, I don’t see much reason to un-diagnose those who haven’t even really been diagnosed.

      As to skepticism towards the ASSQ: keep in mind that the ASSQ was not the diagnostic tool. It was a screening tool. The Kim study used actual diagnosis of the individuals.

      • Sullivan May 11, 2011 at 07:50 #

        Here’s a comment by Maurine Meleck, just 8 days ago:

        What utter rubbish this is. You mean to tell me that the study showed that those adults with autism now had never been diagnosed before. Give me a break. And they weren’t aware of thier condition! What did they or their parents think they had-Restless Leg Syndrome? What standards did the testers use on the adults to diagnose them with autism? A knee hammer?
        This is obviously another effort to persuade the population that vaccines are all safe and they better get their jabs.
        Believ me, if one had a child with full blown autism–they’d know.
        Maurine Meleck, SC

        Now, just such a short time later, we are presented with a “study” which finds a whole group of autistics who were previously unidentified. They were given great scrutiny, and the diagnosis wasn’t found. In at least one case, the parents actually argued against the child being autistic, and now some attorneys, decades later, have determined that this person is autistic.

        Yes, it isn’t that a problem with the “hidden horde”. It’s when it isn’t “our” hidden horde that we complain, eh?

        Heck, the CDC prevalence numbers rely upon children, 8 year olds, who are undiagnosed. If it weren’t for that, there would be no ADDM network. They would just count the existing autism diagnoses in educational and medical records. The Ms. Meleck’s of the workd have been using those numbers to justify the “epidemic” for years. While at the same time denying that people could be misdiagnosed.

        I’m going no further than the fact that this new “study” relies greatly on a presumption of injury that was incorrect. Well, that and some other factors. There is some interesting reading in who they are rediagnosing, though.

        For whoever is interested, here is the definition of autism used by the court in the early days:

        7 Autism is a severe mental disorder with onset in infancy characterized by preoccupation with “inner thoughts, daydreams, fantasies, delusions, and hallucinations; egocentric, subjective thinking lacking objectivity and connection with reality. The self often predominates to the total exclusion of that which is not self.” Dorland’s Medical Dictionary 169 (27th ed. 1988). “It differs from . . . mental retardation in the presence of intelligent, responsive facies and in that the full syndrome of infantile autism is not produced by mental retardation.” Dorland’s at 495-97.

  20. Angela May 10, 2011 at 20:13 #

    Kev I speak the language of a parent who has seen with my own eyes!! Have you seen it or just read mainstream news?

  21. passionlessDrone May 10, 2011 at 20:14 #

    err. fat finger continuation. . . . (sorry)

    I didn’t see any skepticism applied towards using the ASSQ, a questionairre with a microscopic pubmed footprint, used as a tool to arrive at staggeringly high levels of children with autism. That strikes me as intellectually inconsistent with applying high degress of skepticism towards medical records indicate children had behaviors consistent with autism.

    – pD

  22. Kev May 10, 2011 at 20:20 #

    Angela what is ‘it’? Do you mean have I an autistic child? If so, then yes.

  23. daedalus2u May 10, 2011 at 20:36 #

    The Daubert standard was applied in the Autism Omnibus, but because the Special Masters were sufficiently knowledgeable they applied the standard after testimony as they made their decisions, not before allowing the testimony. They specifically did this to allow petitioners to put forward even stuff that was of low scientific value because the Special Masters could tell what was and what wasn’t.

    Since the Special Masters would be the ones both deciding if testimony was up to Daubert standards and also deciding the case, it made no sense to have the testimony put forward twice. Once would be enough.

  24. _Arthur May 10, 2011 at 20:50 #

    No Daubert pre-trial hearings, but using Daubert as a guideline for weighting evidence, that’s how I recall it; thanks D2U.

  25. Sniffer May 10, 2011 at 23:35 #

    Dear All,

    “Methinks the Pharma supporters doth protest too much,”



  26. Sniffer May 10, 2011 at 23:37 #

    Dear All,

    “The Pharma supporters doth protest too much, methinks.”



  27. Sniffer May 10, 2011 at 23:48 #

    Dear All

    “Urged not to speak out!”




  28. Stuart Duncan May 10, 2011 at 23:55 #

    My response to the press conference (before I learned that the Pace Law University had no involvement in it):

    • Sullivan May 11, 2011 at 01:44 #

      Stuart Duncan,

      I believe PACE law students did a lot of the hard work on this by sifting through the cases.

  29. TJ Weldy May 11, 2011 at 00:17 #

    Autism is just symptoms. Autism-like symptoms is Autism. It is a DSM IV diagnosis – there is no objective test for Autism. Google the DSM IV diagnosis, and learn.

  30. Stuart Duncan May 11, 2011 at 00:24 #

    TJ, That’s sort of true but there are several other conditions that exhibit symptoms similar to autism without actually being autism.

    Here are some examples: http://www.autism-resources.com/autismfaq-simi.html

  31. Stephanie May 11, 2011 at 13:00 #

    As a parent of a 2yr old who is about to have his final testing at the Marcus Autism Center (I am hoping he fails), I have said this before and will say it again. I would rather have a child with Autism then a dead one because of not getting a shot.

  32. Sniffer May 11, 2011 at 19:02 #

    Dear Stephanie,

    I hope he fails reading your post is so sad.

    This might help you see the dark side on here.


    Mnooklear Attack

    buy mnooklear attack mugs, tshirts and magnets

    The type of desperate attack in which public health officials and drug companies engage when trying to hide their causal roles in the the autism epidemic. Usually involves hiring drug addicts. The main goals of Mnooklear Attacks are to protect shareholders and to keep CDC staff out of jail.

    Did you see the Mnooklear Attack on universally respected journalist Robert MacNeil?



  33. RAJ May 12, 2011 at 00:31 #

    ‘Autism is just symptoms. Autism-like symptoms is Autism. It is a DSM IV diagnosis – there is no objective test for Autism. Google the DSM IV diagnosis, and learn’

    It’s remarkeable, autism like symptoms are not auitsm when it comes to court cases. But the same expert witnesses who defend these cases are the first to say the autism type symptoms are present in up to 30% of the general population.


    Apparently autism traits in brain damaged infants and children are not ‘autism’ but autism traits are present in up to 30% of the general population. There ar many perfectly normal parents who having a handicapped child suddenly declare themselves to be ‘on the spectrum’.

    Autism is everywhere, except apparantly in the vaccine courts, where autism type symptoms are not autism.

  34. McD May 12, 2011 at 01:50 #

    @ Angela. I too am the mum of a severely autistic child and can confirm the dramatic change that came about, right after he was vaccinated. Literally, right before my eyes, in a matter of days: https://leftbrainrightbrain.co.uk/2011/02/sloppy-science-a-perfect-example-of-how-the-anti-vaccine-crowd-will-listen-to-anything/#comment-155070


  1. Has the Vaccine Court Compensated over 70 Families for Autism? – VAXOPEDIA - May 23, 2018

    […] When the science fails you, turn to the legal option […]

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