We know what we know
7 Apr….and maybe that should be enough, but many times it isn’t.
I’ll restart.
I have three kids. One is autistic, one is NT and one (god help us all) is a teenager.
Today, this beautiful Spring morning, one of my kids is off with xyr Grandad who is a game keeper. Another one has just come up to me with a lid on xyr head and said ‘hat!’. Another one has just said ‘sore’ after banging their leg.
Socialisation, imagination and communicative language. Which one is the autie? I think you’d be surprised.
Another person who might be surprised is the jackass-in-office that Mothersvox had to contend with recently. This guy says:
No, he was emphatic, she’s not autistic, he said. And it certainly wouldn’t make sense as an educational category for her. She’s not completely withdrawn, he said. She’s interested in what’s going on around her.
Uh-oh, sounds like someone’s not been around too many autistic people. As Mothersvox went on to say:
At that point I was thinking, Geez, all the autistic kids I know and read about are interested in what’s going on around them, and are engaged at some level with their families. I’m thinking, what sort of autistic kids do you know that are completely withdrawn. I don’t know any autistic kids like that . . .
And she’s right. But even if she _wasn’t_ – even if some autistic kids were completely withdrawn – being completely withdrawn is _not a diagnostic symptom of autism_ . It shocks me to hear of a doctor who thinks otherwise.
This idiot went on to rip the Vox family even more by using words like ‘psychosis’ and intimating that toileting decisions that _helped_ were bad choices.
OK, now. I wonder which one of my kids this Doc would pick as the autie?
I like Doctors by and large. They’re people who care in my experience. I link to a few Docs in my blogroll. NHS Blog Doc, Orac, Flea – some Hub members are Docs too. I don’t want to generalise and bash docs but it seems to be a regular failing of a lot of Docs that we’ve seen and who I’ve read about on many other parents blogs that they want to move beyond diagnosing into backseat parenting. This only seems to be the case in instances of special needs kids. I’ve yet to hear of a case of an NT kids parents being told that their toilet training decisions for their kids are holding back their child. My message to doctors who do not have autistic kids or who are not on the spectrum themselves is – thank you for your medical opinion/diagnosis but butt out of my parenting choices m’kay? Also, for jackasses such as the above – learning the diagnostic criteria might be a good thing before telling people their kids are/are not on the spectrum.
Docs (well, most) are good for medical matters. Parents are good for parental advice. Autistic people are good for advice about autism. If I ever met an autistic doctor with autistic kids then that’s the Doc I want.
Katie Wright’s big day
6 AprYesterday three big things happened to Katie Wright. Firstly, she joined the board of Directors of SafeMinds. Secondly she joined the board of directors of the National Autism Association. Thirdly, she appeared on the US Oprah Winfrey show.
The elusive Ginger blogged the NAA and SafeMinds news which was announced just before/during/after (depending on your timezone) the Oprah show.
The Opera show itself was a mixed bag apparently. There was a lot of self pity at the start:
“he’s not there, I don’t know where he is but he’s not there”
Oprah: A mystery affecting millions of families
“A bad day is a bad day and a good day is a bad day waiting to happen”
Please. Spare me. Not there?
However, a lot of people have also said there were some great moments:
I like the way the show ended with every single parent talking about the gifts their autistic children have given them! “He has made me more spiritual,” “He has made me look outside of myself,” “He takes people just as they are.” “He has given me someone to love way beyond what I ever thought possible.” Amen.
Sue also noted that no autistic adults were on the show and none were interviewed. That’s ridiculous.
However, part way through the show was the Katie Wright Experience. Apparently what happened was that Oprah asked a Doc on the show about vaccines and he repeated the scientific consensus – which is that vaccines have been refuted as a cause. Which is true. The show cut to a break. When it came back on, viewers were greeted by a visibly pink and flustered Katie Wright and then the host of the show told the audience that …..in fact I’ll quote from someone (who I won’t name so don’t ask) who was watching the show carefully:
To me it all seemed quite sane, except for Katie’s little blurt. A pediatrician of south Asian descent whose name I didn’t catch was periodically consulted from the dais by la Oprah, and gave what sounded like reasonable advice. At one point Oprah asked about causes–she didn’t use the word epidemic but said ‘what the cdc calls a health threat–and the pede gave a general response, genetics, possibly some environmental thing, and then Oprah said, “what about vaccines?” the pediatrician responded, “that’s controversial.” and oprah said, ‘well yeah, and?” or words to that effect. The pediatrician said the vaccine theory had been pretty well refuted. That was that, but after the next break, Katie Hildebrand, who was sitting next to Oprah, must have been chewing her ear off because la O told her to say her piece which she did in the usual incoherent shrieking way, “vaccines are not cleared of being responsible, children are given 37 different vaccines, my child has all kinds of immune problems, there’s an epidemic that keeps growing” etc. Oprah said, “there i can see you needed to get that off your chest, you don’t want to go home with that all bottled up. After all, you’re a mom.” the studio crowd applauded though they did not hoot or yell anything specific that i could detect on my tv screen.
Following that, Oprah apparently told the audience that this is what _Katie_ personally believed and it wasn’t supported by any CDC evidence.
Here’s _my_ summation of Katie Wright’s life at the moment.
Katie campaigned to get a Generation Rescue member on the board of Autism Speaks. Here’s how Brad Handley reported that event in a rant:
Kevin Barry, our former President, was hired by Autism Speaks. On his first day of employment, Mark Roithmayr informed Kevin that he was only there “as a favor to Katie†[ the mother of Bob and Suzanne Wright’s autistic grandson]
Katie has spoken of Brad and Kevin Barry as her mentors. Here’s Brad’s mention of Katie Wright:
I just want to share how damn proud I am of this family. Remember, there is no Christian Wright, his name is Christian Hildebrand.
Katie’s decision to be more public about her point of view is not some impulsive move. For almost two years now, quietly but firmly, she has lobbied her parents on the growing morass that Autism Speaks was becoming. By choosing to listen more to the “experts” than their own daughter, Katie’s parents selaed their own fate.
Two years. After which the Wright’s continue to listen to science, not Brad’s people.
Katie Wright has come to believe, after a long association with Brad Handley, that vaccines caused her sons autism. Katie had the king Rescue Angel himself hovering over her for the last two years. Has anyone ever told Katie that Brad is often wrong and never admits it even when its clearly demonstrated? I guess not.
Kim Stagliano (autism blogger – big on pooh) said:
This is a very big day when the SS Minnow overtakes the Titanic.
Really? _Really_ ?
From all I’ve read and seen, all that’s apparent is that the newest mercury mum on the block got appointed to two antivaccine groups and that made a bit of a fool of herself on television. The only difference is that this mercury mum happens to have parents who own and run an autism organisation that she’s just cut her ties from.
What I actually feel the Wrights are guilty of is: Listening to dinosaurs with degrees instead of their daughter, Deirdre Imus, and others speaking the truth, myself included.
In Brad’s world there is no greater sin than not listening to him. Maybe they did listen to you Brad and thought you were wrong.
So, after Katie Wright’s big day – the day the SS Minnow overtook the Titanic – what’s changed?
The world saw a visibly unstable mercury mum on TV being thrown a bone to rant about her pet theory for a few minutes and then the show carried on.
…and thats that. No scientific facts changed yesterday. Katie Wright confirmed herself as a woo-meister. All that means is people will be even less likely to listen to her than they were before. Autism Speaks must be breathing a sigh of relief she’s jumped ship.
History repeating itself
4 AprA recent story from the Canadian (thank you jypsy) Globe and Mail tells us:
Each child diagnosed with autism will accrue about $3.2-million (U.S.) in medical and non-medical costs over his or her lifetime…
The story leads off with this fact and continues with such vitally important things as:
“But we need to ask the question: Does investment early on have significant economic benefits later?” Dr. Bryson said.
Vital, I think you’ll agree. How about this one:
Earlier research estimated that autism costs the U.S. economy about $35-billion annually, and the Canadian economy $3.5-billion.
Wow. So this must be what it feels like to actually have a price on your head.
Anyway, this reminded me of something, this talk of money and the idea of people having a monetary value. Then I remembered:

The english translation reads:
60000 RM, this is what this person suffering from hereditary defects costs the Community of Germans during his lifetime. Fellow German, that is your money, too.
This was used to promote Hitler’s T4 Euthanasia program.
Maybe its just me but when people start using identical rhetoric to the Nazi’s I get a little bit nervous.
MMR and Autism – 2007 is the year
1 AprThis year, the Autism Omnibus hearing in the USA will examine the idea that MMR causes autism. They will do this by taking one of the plus 4,500 cases and looking at it as a ‘test case’. The case in question is the Cedillo family, mother Theresa (just a coincidence), father Michael and daughter Michelle.
The document above by the way establishes that they want the evidence they accumulate to be open to the other families but that they do not want the identities or the evidence of their expert witnesses to be made available online. I wonder why. If I may be so egotistical, it could have something to do with the fact that several bloggers have trounced both the data and the experts and they don’t want this happening any more.
Anyway. What do we know about the Cedillo’s?
We know that Michelle’s bioposies were examined by Professor O’Leary, one time colleague of Andrew Wakefield who went on to have his own results seriously questioned and who went to say:
Professor John O’Leary, who did the tests for solicitors representing the families of autistic children, said his scientific findings “did not support the MMR/autism hypothesisâ€.
We also know that Michelle was seen by Arthur Krigsman, who, despite claiming to replicate Wakefield’s discredited Lancet paper has had no papers on autism, or vaccines published at all. What he has had however, are numerous close calls with licensing bodies – in one instance he had to resign in order to escape official investigations into his conduct.
And what do the Cedillo’s believe has happened to Michelle?
We just found out the left hind foot bones in Michelle’s foot are deformed. Instead of being one on top of the other, they are growing side by side. Michelle is on pain meds nearly around the clock. She limps and walks with a side to side gait instead of forward like normal. This was caused by the Crohn’s associated arthritis (confirmed independely by 2 orthopedic spec and a ped rheumatologist AND Dr. Krigsman and Dr. Wakefield), which was caused by the Crohn’s disease caused by the vaccine strain measles RNA found in her bowel tissue from the MMR. Michelle gets periodic ocular inflammation – also from the Crohn’s disease. This gives her headaches.
Its terrible that such a young girl is in so much discomfort. But looking past that and concentrating solely on the science, we see that the Cedillo’s believe that Michelle contracted Crohn’s disease brought on by the measles element of the MMR.
So – Crohn’s _and_ autism? Searching VAERS, I find only seven cases that refer to ‘crohn’ and had the MMR vaccine. That’s pretty rare.
Even those who might be expected to support the MMR/autism hypothesis don’t. In an email to the Autism Biomedical Group on March 08, 2004, Vice President of SafeMinds Mark Blaxill stated:
epidemiological evidence (albeit from studies that have not carefully considered interaction issues), have not supported the broader proposition that “MMR causes autism.”
I will be very curious to see exactly who their experts are and what their evidence will be. If it really is, as I suspect, Andrew Wakefield, then they won’t be able to choose a worse time to invoke his ‘expertise’. Wakefield’s hearing at the GMC starts at about the same time.
Here’s a beginners guide to the MMR/autism hypothesis and what Wakefield claims to have found. The hypothesis states that the MMR vaccine, being a live vaccine, leaves bits of live Measles virus in the gut. Wakefield claimed to have found it there. This goes on to trigger autism.
No part of this hypothesis has ever been replicated and published in a decent journal. Wakefields closest colleague – Krigsman – has been unable to find a publisher for his ‘replication’ which indicates the quality of _his_ science. As reported above John O’Leary claimed to have replicated Wakefield’s work but it turned out there was a good chance his data was contaminated and he later stated none of his work showed a connection. Various epidemiological studies have also failed to find any link (as Mark Blaxill admits).
We also have two clinical science papers that demonstrate convincingly that Wakefield did indeed make a substantial error. One Paediatricsin Pediatrics was very damning:
The real-time assays based on previously published primers gave rise to a large number of positive reactions in both autism spectrum disorder and control samples.
Translation: We replicated Krigsman/Wakefield etc to their end point and there were lots of measles virus just like they said.
Almost all of the positive reactions in these assays were eliminated by evaluation of melting curves and amplicon band size.
Translation: We did the science properly just like they didn’t. When we did most, but not all of the positive reactions disappeared.
The amplicons for the remaining positive reactions were cloned and sequenced. No sample from either autism spectrum disorder or control groups was found to contain nucleic acids from any measles virus gene.
Translation: When we looked at the rest of the very small number of positives we had left we found no measles virus in any of them.
In the nested polymerase chain reaction and inhouse assays, none of the samples yielded positive results. Furthermore, there was no difference in anti-measles antibody titers between the autism and control groups
Translation: We double checked our methods and tools and there were now _no_ positive reactions at all. Further more, just for clarity – there were none in our non autistic people _or our autistic people_.
It’s going to be very, very difficult for the Cedillo’s to overcome this.
Now, closer to home (for me anyway), there are a couple of new papers that discuss what impact the MMR really _did_ have on people. Here’s some real evidence of harm.
In “Tracking mothers’ attitudes to MMR immunisation 1996–2006“, we hear the alarming statistic of how much damage Wakefield et al did to the UK MMR program:
The proportion of parents believing MMRto be a greater risk than the diseases it protects against has fallen from 24% in 2002 to 14% in 2006. The proportion of ‘hard-core rejectors’ of MMR vaccine remains stable at 6%. There has been a gradual and sustained increase in the proportion of parents across all social groups saying MMR was completely safe/slight risk rising from 60% in 2002 to a current level of 74%. There now appears to be a sustained move away from fears over MMR safety and belief in the unfounded link to autism towards a more positive perception of the vaccine.
It a relief that the authors believe there is a sustained move back towards a more rational state of mind regarding MMR but its incredible that 24% of people ever believed that MMR was more risky than the diseases it protected against.
Its no surprise then, that in the years 1997/98 – 2004/05, MMR uptake dropped by a massive 10%. Of interest, when comparing that _fall_ in MMR uptake is the epidemic rhetoric that claims autism is sweeping the UK too. Both things can’t be true. If MMR causes autism then however one paints the stats, there should’ve been a 10% fall in autism.
One group of people truly have suffered through this period. They have been the front line recipients of the bad science of Wakefield et al: parents of autistic kids.
In the new paper, “MMR: marginalised, misrepresented and rejected? Autism: a focus group study“, investigators interviewed parents of autistic kids:
Of the parents whose children received the MMR vaccine, many felt guilty that they may have caused or contributed to their child’s autism. Some parents felt frustrated by health professionals’ lack of understanding of the negative impact the MMR controversy has had on them. Some parents were anxious about subsequent MMR decision-making for their children.
This is the legacy of Andrew Wakefield. Parents who are guilt ridden and unsure who to turn to. The study conclusions state:
The controversy has had a negative impact on some parents of children with autism. This has implications for health professionals, who need to be particularly aware of the issues these parents face in future MMR decision-making for their affected child and younger siblings.
These focus group discussions produced moving and often emotional accounts of parents trying to come to terms with their child’s diagnosis of autism against a backdrop of widespread public speculation about the role of the MMR vaccine in the aetiology of autism.
As Jim Sinclair states in his essay ‘Don’t Mourn For Us’:
Some amount of grief is natural as parents adjust to the fact that an event and a relationship they’ve been looking forward to isn’t going to materialize. But this grief over a fantasized normal child needs to be separated from the parents’ perceptions of the child they do have: the autistic child who needs the support of adult caretakers and who can form very meaningful relationships with those caretakers if given the opportunity.
The parents in these focus groups (and remember these people were interviewed when the MMR conspiracy theory was still well underway) never had a chance to move past the natural adjustment period and on to acceptance. When the media and ‘scientists’ continue to express certainty despite having absolutely no evidence that MMR causes autism its hard to get past the guilt. I know. That’s how I felt as well.
Parents often spoke angrily about how the MMR controversy had impacted on their lives. Even parents who stated that their
child’s autism was entirely genetic in origin felt affected by the uncertainty about the causes of autism which were heightened
by the controversy. For example, one mother who thought her son had been born with autism nonetheless found the speculation surrounding MMR upsetting, and stated that: … it makes you feel pretty damn rotten. I feel as if at the time I did the best for my boy… I wouldn’t have put my child through anything that I think would harm him. (G1: P3)
Thanks again Andy.
Katie Wright and Autism Speaks – woo confirmed
29 MarFor the last few weeks the subject of ire on the EoH maillist has been Autism Speaks, they’ve been the subject of some very nasty descriptions indeed. The reason is that the EoHers knew that Katie Wright, daughter of the owners of Autism Speaks, was taking her son Christian to a DAN! doctor and yet Autism Speaks were keeping this quiet.
Well, as blogged by David Kirby, Katie Wright has now confirmed that Christian is seeing a DAN! doctor (lets hope its not one of the paedophiles or Scientologists) and has gone ‘on the record’ as stating she believes vaccines caused Christians autism.
The mercury militia and David Kirby report this:
Many in the upper echelons of Autism Speaks have rejected any environmental hypothesis and insisted that autism is purely a genetic disorder — though Bob and Suzanne Wright (and the organization itself) remain officially neutral on this crucial question.
But now, Christian is getting better, and that wonderful news could change everything.
Well, firstly, I can’t recall anyone from Autism Speaks insisting that autism is purely a genetic disorder. If they did I think they’d be just about alone. Secondly, ‘Chrisitan is getting better’. Really? How is that described exactly?
“He’s definitely getting better,” Katie told me by phone. “He was a very sick kid, with an extended gut and inflamed intestines. We couldn’t do anything until we got that under control.” But once Christian started to improve physically, she said, he also began to get better emotionally, mentally and cognitively.
When Christian’s gut improved, his parents began trying other, still-unproven treatments like dietary changes (no wheat or dairy) chelation therapy (removal of heavy metals from the body) and methyl B-12, which could help restore a critical process called methylation – a needed tool for detoxification and proper nerve function that is apparently deficient in some autistic children.
“Christian is speaking now, though only when prompted,” Katie told me. “His eye contact is returning, and his crying and tantrums have subsided.” And she said, “His ability to attend has returned. Now he can sit and do his lessons and learn, whereas before he would just lie down and scream in pain, because his abdomen hurt so much. But he still has a long way to go.”
Perhaps most heartening to Katie is that Christian can now tolerate being in close contact with his brother, something that used to send the boy into screaming fits of anxiety.
Well I too am glad that Christian doesn’t have these gut problems anymore. But these aren’t autism and have nothing to do with autism. My daughter, who is also autistic, has never had an ‘extended gut and inflamed inststines’. Thats not to downplay Christian’s problems but its simply not realistic to equate these things with autism.
Christian (who is 5 and yet described by Kirby as a ‘toddler’) displays very similar behaviours to Meg at five (and at three) – she didn’t speak at all, she struggled with eye contact and she had big meltdowns. The thing she has in common with Christian is that their changes have occurred as they have grown older.
Kirby goes on to say:
So how will some Autism Speaks officials react to Katie’s statements? They could fall back on two recent, but highly inconclusive studies that support the autism-is-genetic paradigm, and continue to reject the environmental hypothesis. But I wouldn’t bet on it.
I’m unsure exactly what two recent genetic studies Kirby is talking about as he doesn’t name them but if they are written by decent scientists then I highly doubt they have written an off-the-cuff rejection of an environmental aspect to autism. If anyone does know what studies Kirby is referring to please say so I can check for myself. I find double checking Kirby’s words often reveals interesting things!
But hsi question is a good one. How _will_ Autism Speaks react? They are a ‘house divided’. They have the scientific teams that they inherited from NAAR and they have their ‘in house’ members that are media people. Will they go for the media or for the science? It seems that Kirby and the mercury militia are in no doubt about which way they _should_ go – they want a media driven Autism Speaks. An organisation that abandons science for woo.
It should be noted that the mercury militia are very, very good at media manipulation. From Brad Handley’s full page ads to Katie Wrights levering of Kevin Barry to get onboard Autism Speaks and of course, David Kirby’s fact free and often hilarious debating points. These are not people who let a media chance go unexplored. However, they cannot force science to show something that it does not.
Education data is the new black
26 MarOr, more accurately, Education data is the new CDDS.
Up until this year, David Kirby, Lenny Schafer, Rick Rollens et al said that CDDS data was the gold standard of autism data and because rates were rising during the 90’s according to CDDS data this proved that vaccines caused autism. Then they said this would be proved in 2005 – sorry, 2007 – when it was firmly established thiomersal was pretty much out of all vaccines in the US schedule excepting the voluntary flu jab. Kirby went so far as to say that if the CDDS rates didn’t fall by 2007 then this would be a significant blow to the thiomersal theory.
Guess what? No fall. In fact, there was a continued climb.
Next they all said – CDDS? That stuff is rubbish – California is ‘special’. No, no, no, what _really_ counts is educational data. In fact, just this morning, the latest Schafer Autism Report carried new data that showed how autism rates were still climbing.
But hang on….seeing as we _know_ that the amount of thiomersal in vaccines is essentially nil, and tests show that as early as 2002, over 80% of doctors surgeries reported they carried no thiomersal containing vaccines, how can we possibly carry on with the stupendously idiotic hypothesis that thiomersal in vaccines causes autism?
Feh. Never mind. Thiomersal is out of favour these days. These days its all about Aluminium or whatever other vaccine ingredient people want to wring their hands about.
Anyway, here’s a post I came across on EoH today:
I just found this newsletter from last fall- vaccine rates dropping funding short- sounds good to me. Too bad we are not counting AUtism rates like CA.
and it linked to this PDF which says:.
Alarmingly, our childhood vaccine rates have dropped from the highest in the nation to just below the national average. From 90% of two year olds fully immunized to less than 80%.
The inference is clear, right? If only we could count the number of autistic people in Maine up to and including 2006 I bet we’d see them dropping as the vaccine uptake in Maine dwindled. And hey – this should be an easy drop to find in the state that had the highest vaccine uptake in the nation, right? Oh, if _only_ someone had tracked the autism numbers in Maine!!!
Well, worry no more – the great guys at the Vaccine Autoimmune project have. (IE link only, poor web development ahoy!). Lets take a look shall we?
| State | 2000-2001 | 2005-2006 | Percentage Increase |
|---|---|---|---|
| Maine | 150 | 311 | 107 |
Huh??
Wait now…you mean to tell me that vaccine uptake _fell_ over 10% and yet autism _increased_????
Miraculous – whatever can it mean???
New: Autism Parents Forum
25 MarI’m launching a new project today primarily for parents of autistic children (of any age) which I’ve called Autism Parents.
I wanted to set up a forum where parents of autistic people who weren’t necessarily interested in the idea of cure could get together and swap hints/tips on parenting in an easier format than a blog could allow.
Its got boards for education, medical, officialdom where you can ask questions or answer questions from other parents just like you and me as well as boards for discussing books/movies/TV programmes and news stories etc related to autism.
Please go and signup, get posting and please – spread the word!
Brandon Williams, dead at 5
23 Mar2006 was a bad year. The worst of years. A lot of autistic kids were killed by their parents. I got sick of writing about these stories. Not bored, don’t misunderstand me, but sick, really physically sick that a parent could do this to a child. That the parent of a disabled child could do this.
Seems like there’s no respite from this insanity just yet:
Before he died, 5-year-old Brandon Williams was fed sleep-inducing medicine twice a day. His mother, Diane L. Marsh, 39, would sometimes tie him up or plunge his feet into scalding water to discipline him, a sheriff’s official said. On Wednesday night, Brandon died after his mother gave him a lethal dose of 12 Tylenol PMs when he complained of having flu symptoms, the official said.
What the hell can you say about someone who would tie up and scald their own child? That they’re scum? Sub-human? Yes, you can say that but it won’t bring Brandon back.
Reading this report on Brandon’s death makes me despair for the future of humanity. A mother who totured her 5 year old autistic boy, two lodgers who either participated or stood by and watched and a father who apparently never noticed.
Sickening. Please mourn Brandon and remember those who have gone before him. Its pathetic that the one positive we can take from this is that at least he is out of the hands of his parents.

Daubert and the Autism Omnibus
17 MarI recently wrote about how the petitioners in the Autism Omnibus were trying to remove the need for their evidence to be scientific by fighting against the ‘daubert’ principle. I concluded that piece with a downbeat message that it was all too possible for petitioners to remove the need for their ‘science’ to actually _be_ science.
A regular reader (who happens to be a lawyer – no, not Wade) passed on a fascinating document (its 120 (searchable) pages – be prepared) to me which discussed the role of Daubert. My reader passed the link on to me with the explanation:
You will see a Court of Federal Claims Special Master, a couple of law professors, and some federal appeals court judges discussing causation and Daubert in vaccine cases.
Its a big (120 page) document so I’m going to concentrate on what these esteemed bodies thought of the role of Daubert in terms of applying it to the Vaccine Act. First a quick recap.
Oversimplifying things, cases tried under the Vaccine Act have almost no standard of evidentiary proof. That suits that Autism Omnibus petitioners as they _have_ no evidence or proof.
Daubert is usually applied in a _Federal_ court and demands that scientific evidence presented to that court is of a good standard of science.
That’s the basic position. If you want to read more about why these two positions are adopted for the differing courts then read the document I’ve linked to. Its just too big to go into all these things in a single blog entry.
So, ordinarily, Daubert would not apply to cases tried under the Vaccine Act. However, this omnibus proceeding is far from an ordinary situation.
JUDGE VOWELL: Well, let’s pick up on the issue of Daubert and Kumho Tire. Those decisions are mentioned nowhere in our trilogy of cases. In a program such as the vaccine program where there are no juries to be unfairly influenced, what role does Daubert play, or what role should a Daubert analysis play?
MS. GREY: I think that, like you said, in many ways they wouldn’t be applicable. We don’t have juries. We have a very sophisticated fact finder. Federal Rules of Evidence, Federal Rules of Procedure don’t apply here.
So that’s the basic positions. However:
MS. GREY: there is a reason why Daubert developed that is still applicable here, and that is to test the basis for an expert’s opinion. Why do we need that? Because when you have an area that is bereft of evidence like this, you don’t have the normal processes of a trial to test the assumption.
So you don’t have cross-examination that’s going to work as well. You don’t have the opposing evidence that will work as well. And that’s why you probably would be well-suited to take Daubert and apply it in this setting, even though you’re not protecting the jury from junk science. There are other reasons that underlie Daubert that would be applicable here.
And what are those other reasons?
MS GREY: You always, I think, want to probe the underlying basis for whatever opinion is being proffered in the Special Master’s Court. We don’t want to just rely on expert credentials alone. You want to see, was there any adherence to professional or technical standards? What is the basis for the opinion?
An excellent point. Only Daubert can give you this. And surely it would be utter madness to make such a judgement without taking a very careful look at _how_ results were obtained when looking at the results themselves. We know that the ‘science’ presented by the mercury militia is on the surface good but when looked at closely starts to unravel like a badly made sweater.
And here’s a paragraph assured to make the Bradstreets and Geiers of this world blood run cold:
Just like any other witness, a scientist, a doctor is going to be subject to biases, to value judgments that are coming from his own setting that could affect his view on the question of causation, which is why you want the Special Master or the trial Court to still probe the basis for the decision rather than just relying solely on the fact that the expert is making that assertion and is well-credentialed in that area.
Yikes. Will Jeff Bradstreet discover a renewed interest in his family again before this all kicks off?
What else?
Mr GREEN: at some point the idea of, okay, put up, expert, what have you got, is something that needs to be done, and Daubert is doing that under the aegis of Rule 702 and the admissibility of an expert testimony. It could be done at the hearing when an expert testifies, but it needs to be done.
It needs to be done. That’s the bottom line. There needs to be a test of expert testimony and Daubert is the way to do it.
But why? I said I didn’t want to go into the nuts and bolts of the legalities but we should maybe talk about why Daubert, which usually only applies in a Federal court setting, should also apply in a Vaccine Act court according to these people.
MS. GREY:…For 100 years, courts would allow treating physicians to testify about causation or about any subject as long as it was an inference that was the type that physicians normally make in the course of their practice. That would be the test; that we wouldn’t look beyond that. But that, as we keep describing, has changed gradually, especially in the last 10, 15 years. Why? What happened, we had an explosion of toxic tort cases, and there were a lot of experts that were willing to testify about causation without real strong scientific studies…… That brought us Daubert [.]
In other words, the sheer amount of new cases revolving around the issue of toxicity and vaccines led to a situation where it was no longer good enough to waive the standard (or lack thereof) of evidence. To prove toxicity, science had to be science. Hence Daubert. Ms Grey goes on to give a good example:
Let me just give you an example that will seem very exaggerated, but it’ll just show my point. If an infant develops a brain tumor after he gets a measles vaccine, this kind of post hoc reasoning would say, the vaccine caused the tumor. This kind of reasoning is going to be rejected by scientists. Why is that? Hundreds of thousands of infants receive a measles vaccine every year. A few of them will develop brain tumors. That’s the coincidence factor.
One of the fascinating aspects of this document is that the Special Master present – Judge Vowell – is also on the Autism Omnibus case as a Special Master (there are three in total). In reference to a non-expert physician opining that a vaccine _caused_ the problem, she asked:
Is it not, though, circumstantial evidence from which other circumstantial evidence I might reasonably infer causation?
The answer given by both Law Professors was essentially ‘no’:
You could take it into account, but it doesn’t qualify it. In other words, Capizzano (another precedent like daubert) probably in my mind went a little bit too far because it’s relying on the treating physician’s testimony to basically make out the whole case, and I think that that’s not strong enough.
There’s no resolution in this document but it seems clear to me – where an increasing amount of cases revolve around a scientific need for scientific evidence – Daubert will increasingly apply.
Recent Comments