Another few points of interest in the Autism Omnibus proceedings.
Firstly and perhaps most significantly is the defining of the Omnibus proceedings as being at ‘crisis point’ by the Special Masters overseeing the case:
Petitioners were supposed to provide (by their own suggestion) test cases that would show, in the first instance, how MMR and thiomersal working in combination would cause autism. Special Masters agreed to this arrangement and dictated that three cases would be needed. So far, only one out of the 4,700 cases in the Omnibus can be found.
At (the) first status conference in December 20 2006, when the PSC (Petitioners – the parents) first proposed moving to a test case format, Special Master Hastings advised the PSC attorneys that for a ‘test case’ approach to be effective, the PSC would need to offer additional cases, rather than a single test case, for trial. Since that time, the PSC has stated that it will select two such cases, and has represented that it is working diligently on selecting the two cases. At the status conference held on Jan 25 2007, the PSC was orally instructed to designate such cases within 30 days (i.e. by Feb 24 2007). The PSC did not do so. At the status conference held on Feb 28 2007 the PSC representative stated that the teo cases would be designated within seven to ten days. That did not happen. After further discussion, we extended the deadline for designation until March 30 2007. that date, too, passed without any designation. At the status conference held on April 2 2007, the PSC attorney stated that the two cases would be designated on April 6 2007 but no designation was made by that date either We then extended the deadline to March 30, then again May 10, but, still no additional test cases have been designated.
So, out of the 4,700 cases filed under the Omnibus, apparently only one can show a theory about how MMR and thiomersal, acting in unison can cause autism. Which is weird considering that its a ‘fact’ amongst adherents of the vaccine hypothesis.
And how about that one case – Cedillo – what does that show?
…without going into detail, we note that the facts of that one ‘test’ case are fairly unusual and do not appear to be representative of the majority of the cases in the OAP (Omnibus Autism Proceedings).
Good grief. Could it be that, from the 4,700 cases in the Omnibus that there are _no cases_ representative of a general theory of how MMR and thiomersal working together cause autism? Back to the Special Masters – the emphasis in this passage is theirs, not mine.:
We want to stress that we believe we are at a _crisis point_ in the efforts to move the autism cases towards decision. The Office of Special Masters has adopted the approach toward these cases originally suggested by _petitioners’_ counsel and we have patiently waited almost _five years_ to give that approach a chance to succeed…..Either something must change or we will be required to go to a new approach.
And then the bombshell:
In the event that petitioners do not promptly come forward with additional test cases to allow us to pursue the ‘test case’ approach described above for handling the autism cases, it appears that the ‘omnibus approach’ to the autism cases may have to be declared a failure.
That is some pretty direct language. You’ve had five years, it says, we’ve done everything your way. Now shape up or ship out.
Things got worse for petitioners. For years they had been claiming that they couldn’t move forward without certain data (VSD data) being made available to them. It would seem that the Special Masters have seen this for the delaying tactic it clearly is as they have denied this motion.
They have denied it because they (rightly) claim that it is unnecessary and involved a lot of irrelevant data. They also note that petitioners should be able to make a case out of what they have and that petitioners failed to provide a good reason why this data was needed. Special Masters noted:
Finally we note that the PSC itself states that ‘the petitioners could very well establish general and individual causation in these Omnibus claims _without epidemiological evidence_ ‘
That’s what bragging gets you I guess.
Update: Daubert Ruling
The Special Masters also ruled on the applicability of Daubert in the Omnibus cases. Before we discuss that, lets have a brief refresher as to what it is.
Daubert is a legal precedent in the US that essentially makes the presiding judge the arbiter of good science. They _must_ under Daubert apply a very high standard of science. It speaks volumes that Martha Herbert, Boyd Haley, Mark Geier have all fallen foul of Daubert in the recent past. Under Daubert, Haley and Geier’s science was adjudged to be of such low quality that they never even testified – they were barred from doing so.
OK, so. Respondents asked the Special Masters to ensure that Daubert standards were applied to the causation issues in the Omnibus hearings. They even asked that four ‘expert’ witnesses be excluded under Daubert which was a legitimate thing to do.
If the Special Master had agreed with that request than that would have been game over for the whole Omnibus hearing. No expert witnesses = no causation = no case.
What the Special Master has actually done is not quite that, but Plaintiffs should be very concerned. The Special Masters have agreed that Daubert standards should play an extensive role:
I agree with respondent that the principle that scientific evidence must be evaluated for reliability, set forth in Daubert v. Merrell Dow Pharmaceuticals….does have application to Vaccine Act cases.
That is big news. Plaintiffs need to realise that their science is going need to be of the utmost quality. However, the Special masters have decided that this proceeding is procedurally different enough that a small wrinkle should be introduced. This is a non-jury trial. In a jury trial, Daubert can be used (as I mentioned above) to exclude poor quality expert witnesses. This could also happen in a non-jury trial but the Special master has elected to not go that way. What they have decided to do is:
I conclude that the best procedure is to hear the testimony of the expert witnesses in question….I can then evaluate the reliability of the expert testimony in question [in the context of Daubert] and determine what weight it should be accorded, if any.
So, Daubert will apply, but instead of being used to exclude the possibility of juries hearing poor quality expert witnesses, as this is a non-jury trial, Daubert will be applied directly to the proffered testimony of the expert witnesses.
Whichever way you cut it, this is not good for Petitioners. They were staunchly opposed to the Daubert standard being applied at all as they knew it would mean that scientific standards of proof would apply. Standards that Boyd Haley and Mark Geier have already failed to meet in previous thiomersal/autism cases.

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