The Omnibus Autism Proceeding: effectively over

21 Jan

The Omnibus Autism Proceeding (OAP) was held in the U.S. Court of Federal Claims to group the large number of claims filed involving autism and vaccines. The Docket was opened on July 3, 2002, nearly 10 years ago. The last entry was placed 1 year ago. Since then many cases have been dismissed. About half the cases are left to hear, but the fact that the two causation theories presented (that the MMR vaccine causes autism and that Thimerosal causes autism) were both found to have no merit (“not even close” one special master put it) and no new theory is proposed by the Petitioners’ Steering Committee (the attorneys who presented the case for the petitioners) makes it clear that the group claim, the omnibus, is effectively over.

That is not to say that other claims are not proceeding through the court, or that new cases will not be presented. There is at least one case pursuing the idea of mitochondrial dysfunction and autism, as with the Hannah Poling case. ([edit to add–the case ongoing, which was briefly closed, is not the Hannah Poling case. See the comments below). The case was actually dismissed for lack of action by the petitioners but the special master allowed it to continue again).

Looking back, the Omnibus peaked in 2003 when 2,437 cases were filed (close to 1/2 of the total that would eventually be filed).

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23 Responses to “The Omnibus Autism Proceeding: effectively over”

  1. BobDilan January 21, 2012 at 22:37 #

    “The trial was a pig circus they never had a chance.”

  2. Chris January 22, 2012 at 01:09 #

    What are you trying to say with that silly comment? You made that quote on this blog once before and it made no sense then either.

    • Sullivan January 22, 2012 at 02:42 #

      The petitioners never had a good theory of causation, quality evidence nor experts who were actually experts.

      Remember the expert who claimed she worked at UCSF when she actually only used their library and went to their parties? Remember when she claimed one of the attorneys was making faces at her? Remember the guy who claimed he got the “rock” award and it turned out he had made it up?

      Remember the weak evidence?

      They didn’t have much of a chance. Arguing a false claim will do that.

  3. BobDilan January 22, 2012 at 15:39 #

    You are right Sully! There is absolutley no evidence that injecting newborns and infants 11 times with bolus doses of a short chain-alkyl mercury compound is dangerous. There is no evidence that short-chain alkyl mercury compounds are neurotoxic.

    • Sullivan January 23, 2012 at 20:04 #

      BobDilan,

      I am not a fan of the debate trick “You are right Sully” followed by a statement which has nothing to do with what I stated.

      I would add, you seem to want to bolster your argument by using technical terms. When you misuse one (for example, “bolus”) you make it clear you are using the terms for effect, not accuracy.

      You do summarize the mercury-causes-autism argument though. “Mercury in large doses can cause neurological injury therefore mercury in very small doses causes autism”. There are many missing steps in that logic, and the use of “short chain alkyl mercury compounds” in your sentence is more of a smoke screen than an example that you can actually fill in those steps.

  4. Science Mom January 22, 2012 at 17:17 #

    @ Bob, the OAP petitioners had plenty of time, resources and a pool of over 5,000 children to pick their best cases from; they failed to present even a modicum of evidence that the vaccines “more likely than not” caused autism. Every time the anti-vaxxers fail in a court it’s a fix. Well suck it up buttercup because now your fearless leaders are claiming that the U.S. is the only court that will be fair with regards to Wakefield. Just because it doesn’t go “your” way, doesn’t mean it wasn’t fair; it just means that you are barking up the wrong tree.

  5. Chris January 22, 2012 at 20:13 #

    BobDilan, so where did you get that quote from? I see you did not quite fully think about how it would be interpreted. And what vaccine in the present pediatric schedule is only available with thimerosal?

  6. BobDilan January 22, 2012 at 22:52 #

    Chris, psychiatrists hired by the government testifying to the safety of mercury are pigs. They do it for money and money only. The whole trial was a circus! Sciencemom, the court in Texas is a real court. The U.S. special vaccine court or the GMC hearings in the UK are not. The judge in Texas has no pony in the race. I hope Wakefield gets $billions.

    • Sullivan January 23, 2012 at 20:00 #

      “I hope Wakefield gets $billions”

      Mr. Wakefield would have to demonstrate that he was harmed for $billions (assuming he can win the case). Given that he was found guilty of serious professional misconduct and was unable to practice medicine anymore, how exactly does he prove a billion dollar damage?

  7. Chris January 23, 2012 at 00:22 #

    So, Mr. Dilan, instead of actual data and evidence, you are left with just good old fashion name calling. Good for you!

    Oh, and Wakefield did not study thimerosal, it was some version version of an MMR vaccine. No version of the MMR vaccine has ever contained thimerosal. And I believe it you look, you will see that neither Nicholas Chadwick nor Stephen Bustin were psychologists.

  8. Andrew January 23, 2012 at 01:39 #

    It’s amazing that people who claim to believe that vaccines containing mercury compounds are dangerous will defend Wakefield – if Wakefield is right that the MMR is the cause of autism, then the mercury theory is wrong. Yet the mercury brigade loves Wakefield – because of course, they don’t care what theory of causation he promotes as long as it fits their key assumption – that vaccines are bad.

  9. Science Mom January 23, 2012 at 04:34 #

    Chris, psychiatrists hired by the government testifying to the safety of mercury are pigs. They do it for money and money only. The whole trial was a circus!

    So I take it you have no constructive criticism of the HHS’ expert testimonies. I’d be rather disappointed with the quality of the petitioners’ “experts” if I were you. Oh and why didn’t Wakefield testify on behalf of his flock that seems pretty disrespectful to the people he convinced of vaccine injury.

    Sciencemom, the court in Texas is a real court. The U.S. special vaccine court or the GMC hearings in the UK are not. The judge in Texas has no pony in the race. I hope Wakefield gets $billions.

    Right got it; court decisions that don’t go your way, bad; Amurkin court in a red state, good. I’m going to hold you to that okay? And you are going to accept the judge’s decision right?

  10. Chris January 23, 2012 at 07:10 #

    Plus, the lawsuit in Texas has nothing to do with the science. Mr. Dilan seemed to have missed that not so minor point.

  11. Julian Frost January 23, 2012 at 12:00 #

    @BobDilan:

    The U.S. special vaccine court or the GMC hearings in the UK are not [real courts].

    Wrong. The GMC used the same evidentiary standard in finding charges proven against Wakefield as a Criminal Court. In addition, Wakefield had the option to appeal to the Courts in the UK. He didn’t, for some odd reason. As to the Vaccine Court, the first three cases in the OAP (Michelle Cedillo; Yates Hazelhurst; and Colten Snyder) were all appealed to Federal Court. All three lost. The families of Yates Hazelhurst and Michelle Cedillo then took their casse to the Federal Court of Appeals, and lost again. That’s two higher courts that upheld the verdicts. Even if you believe that Vaccine Court is not “real” court (and I disagree btw), you have to admit that two courts found that the MMR Vaccine does not cause Autism.
    ScienceMom called it correctly IMNSHO:

    Right got it; court decisions that don’t go your way, bad; Amurkin court in a red state, good.

    • Sullivan January 23, 2012 at 19:56 #

      Vaccine cases are heard in the Court of Federal Claims. The U.S. government considers it a court (hence the first word being “court”).

      The court does have some differences from what is commonly perceived of as a “court”. First and foremost, this is a court where the U.S. government is the respondent (think defendant). A sovereign state can not be sued without their permission, so this is a very rare instance where the U.S. has allowed itself to be brought to court.

      The evidentiary standards are lower for the vaccine court. Instead of a preponderance of evidence, a “reasonable doubt”, one needs to only attain “more likely than not”. “50% plus a feather”.

      The Althen standard is used rather than

      Accoording to Cliff Shoemaker, well known petitioner attorney for the vaccine court, Althen can be summarized as:

      1. The burden of proof is only the 3 prongs cited above;
      2. Epidemiology is not required;
      3. Medical literature is not required;
      4. Elimination of alternate causes is not required;1
      5. Proof of specific biological mechanisms is not required;
      6. Complete and direct proof of how vaccines affect the human body is not
      required; and
      7. Close calls are to be resolved in favor of claimants.

      The court can be much less formal than what is commonly perceived. This allows petitioners to present their own cases more easily. Also, this gives the special master (judge) the option to work with petitioners more easily. The example noted in the article above is a good one. The petitioners’ parents and attorney failed to meet deadlines or respond to the court. The case was closed. But, the court re-opened the case because. The child involved shouldn’t have to lose the case just because those putting forth the case for him/her didn’t do their job.

      How many defendants (as the U.S. government is in this case) would allow a case to be re-opened like that?

  12. Roger Kulp January 24, 2012 at 02:51 #

    I’ll play “Bob”.Can you even tell us,in your own words, “short chain alkyl mercury compund” is?

  13. MikeMa January 24, 2012 at 12:27 #

    Roger,
    If BobDilan could, he likely already would have. For the benefit of non-chemists:
    BobDilan uses the term ‘short chain alkyl’ to mask the differences between Ethyl- (a 2 carbon molecule) and Methyl- (a one carbon molecule) mercury. If he separates them, he has to admit there are differences. Ethyl mercury, used in a few vaccines as part of thimerosal, is rapidly flushed from the body and poses a infinitesimal risk while the methyl version, not used vaccines, is retained far longer and poses a greater risk. He lumps them together to exaggerate the risks.

  14. interested party January 25, 2012 at 17:18 #

    Sullivan & aka’s,

    Your “article” “Onimbus proceeding effectively over” along with some of your additional comments are incorrect.

    For example you state, “That is not to say that other claims are not proceeding through the court, or that new cases will not be presented. There is at least one case pursuing the idea of mitochondrial dysfunction and autism, as with the Hannah Poling case. (The case was actually dismissed for lack of action by the petitioners but the special master allowed it to continue again).

    Sull.. You may need to change your wording on this as it sounds as though you are saying that the Hannah Poling case was dismissed for lack of action which of course is not true. Perhaps the special master (versus judge)allowed the case to continue because after the unprofessional tongue-lashing of the physicians in at least one of the three test cases in the Omnibus it might be difficult to find any physician willing to put themselves through such a circus…for what? The problem will be that if the court is allowed to continue speaking (intimidating) in this manner, the VICP program will end up dissolving and we will be back to civil court again. I doubt that the manufacturers want that. They will be back on the hook again.

    You also state, “The evidentiary standards are lower for the vaccine court. Instead of a “preponderance of evidence”, a “reasonable doubt”, one needs to only attain “more likely than not”, “50% plus a feather”.

    Sull…I think you might be confused. Preponderance of the evidence is a civil standard of proof. “Preponderance of the evidence” IS “more likely than not” or “50% plus a feather.” “Reasonable doubt” is a criminal standard such as “beyond a reasonable doubt.” Again, this is PO rhetoric from an old NYT article. Are you sure you are not related?

    You say, “The Althen standard is used rather than…?”

    “Accoording to Cliff Shoemaker, well known petitioner attorney for the vaccine court, Althen can be summarized as:

    1. The burden of proof is only the 3 prongs cited above;
    2. Epidemiology is not required;
    3. Medical literature is not required;
    4. Elimination of alternate causes is not required;1
    5. Proof of specific biological mechanisms is not required;
    6. Complete and direct proof of how vaccines affect the human body is not
    required; and
    7. Close calls are to be resolved in favor of claimants.”

    Sull…The “Althen” is simply a case that is relied on in making a determination of the “preponderance of the evidence” or 5″0% and a feather”. Quite simply, in a typical civil case, there would be a much wider latitude of “Discovery” including depositions of witnesses,well before trial. This allows for a more accurate determination by both parties as to the merits of a case. In the vaccine court, while certain evidence may be allowed that would be considered “informal”, the petitioners are NOT allowed discovery of the very things that settle cases out of court every day, the “smoking gun” if you will… the checks and balances that keep products safe. For example…Merck internal emails regarding Vioxx is a good example of a civil case with appropriate Discovery…as to intent for, example. Another example would be..in a civil case in general, the manufacturers, named as defendants, would have to turn over (during discovery) manufacturing details and problems which could fully explain a condition that otherwise would make absolutely no sense…For example, we might discover that on a specific month, an MMR “batch” was contaminated or the lids had debris. If for example, this batch was not discovered until later, it could be distributed all over the country and might be very difficult if near impossible to detect a problem since the “table” does not list “sudden death” or “meningitis” as an injury. When lot numbers were all sent to the same place, it would be much easier for physicians and HCP to detect such a problem. Now that lot numbers are specifically NOT sent to individual places…well.

    So, although the VICP program was intended to be fair and to compensate those who are injured by vaccines, a known “unavoidably unsafe product” (for some individuals), it has turned out not to side in favor the petitioners. It makes sense that the petitioners would not have to prove that a vaccine is known to cause a condition because, many vaccines are not going to know what conditions can be caused or exacerbated until AFTER the vaccine is on the market and widely distributed. Even when it is discovered, they are often denied publication by journals do to conflict of interests with advertisers or peer reviewers. This has been common knowledge for some time.

    It is confusing that you indicate Shoemaker listed Althen and 3 prongs but then do not list the three prongs. The list you do give however, as Althen is interesting… If this list was actually what the court in the Omnibus cases had to follow… right or wrong, the Omnibus cases would have likely won, right or wrong. I encourage you to review the arguments that were given.

    • Sullivan January 25, 2012 at 18:57 #

      ““That is not to say that other claims are not proceeding through the court, or that new cases will not be presented. There is at least one case pursuing the idea of mitochondrial dysfunction and autism, as with the Hannah Poling case. ”

      There is at least one petitioner pursuing Mitochondrial dysfunction, as with the Hannah Poling case. That child’s case was closed. Not the Hannah Poling case. Since I was the first to write about the Hannah Poling settlement, I am well aware of that.

      The list I gave is a direct quote from Mr. Shoemaker.

      Let’s not get into the misuse of the “unavoidably unsafe” term, shall we? I find that the people who promote that are typically people who are using it as a scare tactic.

      “For example, we might discover that on a specific month, an MMR “batch” was contaminated or the lids had debris. ”

      In which case the manufacturers could likely be sued. Unlike the misinformation given out the Hannah Bruesewitz case did not close the door to all liability claims.

      The rest of your comment appears to be the standard arguments which have not held up.

      I wish you well with whatever your interest is in this. However, I don’t wish you the ability to trump science and knowledge.

    • Sullivan January 25, 2012 at 20:15 #

      “Perhaps the special master (versus judge)allowed the case to continue because after the unprofessional tongue-lashing of the physicians in at least one of the three test cases in the Omnibus it might be difficult to find any physician willing to put themselves through such a circus…for what?”

      The reason the case has been allowed to continue is not a part of the public record anymore. By request of the family, it was redacted. It was in the public record for a short time, though, and the reasons given are not what you are proposing.

    • Sullivan January 25, 2012 at 21:04 #

      interested party,

      now that I have a little more time to respond

      “Sull.. You may need to change your wording…” Edit added to the article.

      “The problem will be that if the court is allowed to continue speaking (intimidating) in this manner”

      No one complained of intimidation during the proceedings. In fact there was a sentiment that the proceedings went well. One can look at blog posts by a former attorney at another well read blog for that history.

      It is not intimidation to point out that “expert” witnesses are inflating their resumes. It is not intimidation to demonstrate that the “experts” who work for the court are generally far from experts. Frankly I feel that the petitioners deserved much better than what they got, both from the expert witnesses and the attorneys.

      And, when one claims a “circus”, shall we recall that “Experts” working for the PSC are suing the PSC.

      “You say, “The Althen standard is used rather than…?”” Small point, but you misplaced your quotes. I did not finish the statement, true. I wrote “The Althen standard is used rather than”, not what you quoted.

      The point being that there is a different standard used in the CFC than in civil courts, unlike what another commenter stated.

      “I encourage you to review the arguments that were given’

      I have. I listened to the Omnibus when it was held. I read the transcripts when they were available. I read the decisions. I read the appeals.

      The petitioners did not have a good case. “not even close” is how one special master put it, and I agree.

      “It makes sense that the petitioners would not have to prove that a vaccine is known to cause a condition because, many vaccines are not going to know what conditions can be caused or exacerbated until AFTER the vaccine is on the market and widely distributed.”

      I am unsure of what point I have made that you are responding to here. This is fundamental to the court and the law which created it. Not all injuries are table injuries and table injuries do not have to be determined in pre licensure trials.

      I don’t see the relevance of the discussion of Vioxx and discovery related to that case. The CFC is supposed to be a “no fault” court. If one wishes to pursue a claim that the manufacturers had manufacturing problems (as in the example you gave) one still can as far as I can tell. That would have to be in civil court. And at that point discovery could ensue. The purpose of the Omnibus was not supposed to be to do discovery for civil cases.

      I see now what you are saying. Here are the three prongs per Mr. Shoemaker:

      Concisely stated, Althen’s burden is to show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury. If Althen satisfies this burden, she is ‘entitled to recover unless the [government] shows, also by a preponderance of evidence, that the injury was in fact caused by factors unrelated to the vaccine.” (Althen, at 5.) The burden of proving an alternate cause shifts to the government. This is important, particularly in cases where, through no fault of the Petitioner, the doctors caring for the injured party did not do all the testing necessary to exclude every conceivable cause, and now, years later, it is too late to do so.

      I’ve said it before (even some in this discussion). I think that the petitioners deserve better. They deserve better experts. They deserve better attorneys. They deserve better compensation.

      I don’t think these were the reasons why the test cases in the Omnibus failed. The MMR hypothesis was based on extremely poor, possibly fraudulent research. The thimerosal hypothesis was more of a conjecture than a scientific theory and the data are strongly against it.

      Here we are, a year since the last docket entry for the Omnibus. About 1/2 the cases are dismissed. There are a number where the petitioners didn’t stay in touch with the court and couldn’t be found. The petitioners steering committee (PSC) is not proposing any alternative theory of causation.

Trackbacks/Pingbacks

  1. The Next Vaccine-Autism Newsmaker…5 years later « Left Brain Right Brain - February 6, 2013

    […] year ago I wrote (The Omnibus Autism Proceeding: effectively over), and while, yes, as an “Omnibus” it is effectively over, there is still activity for […]

  2. Autism Omnibus Proceedings – Vaxopedia - September 8, 2016

    […] The Omnibus Autism Proceeding : effectively over […]

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