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The next Hannah Poling. Not vaccine injured. No mitochondrial disease.

27 Jun

One of the main talking points for the idea that autism is a “vaccine induced epidemic” is the case of Hannah Poling. Hannah Poling was chosen as one of the test cases for the Omnibus Autism Proceeding (OAP). But before the case went to hearing, the Department of Health and Human Services conceded her case on the grounds that she met the criteria for a table injury. If you want more details there are a lot of discussions online, including a lot of misinformation. But basically a table injury means that Miss Poling met certain criteria in a prescribed time frame after receiving vaccines, so she is presumed vaccine injured. One can go into length about how this isn’t “the vaccine court decided vaccines caused her autism”, but that’s another story (if you are interested, Prof. Dorit Reiss discusses it in Vaccine Injury Compensation and Mitochondrial Disorders).

At the time, the Poling concession was big news, on CNN and elsewhere. The story broke when David Kirby released some of the details of the concession (the Rule 4c report, a report written by Department of Justice attorneys on behalf of HHS describing the concession.) Kirby was journalist/PR man working with groups promoting the idea that vaccines cause autism. Much of his writing was problematic at best, much more PR than journalism. Kirby stayed with the Poling story for some time, pushing the idea that mitochondrial disorders are highly prevalent in the autistic population and suggesting that these disorders were caused by vaccines. As part of that PR effort, he wrote this article:

The Next Vaccine-Autism Newsmaker: Not Isolated, Not Unusual

Which begins:

In February, I leaked news of the Federal government’s admission that vaccines had triggered autism in a little girl named Hannah Poling. The stunning revelation, though still reverberating around the world, was roundly downplayed by US officials, who insisted that Hannah had an extremely rare, genetic case of “aggravated” mitochondrial disorder, with zero bearing on other autism cases.

Dr. Julie Gerberding, Director of the US Centers for Disease Control and Prevention (CDC), rushed to the airwaves, exhorting parents to adhere to the nation’s intensive and virtually mandatory immunization schedule, and brushing off their legitimate anxieties by saying: “We’ve got to set aside this very isolated, unusual situation.”

Well, the days of setting aside are over: Hannah Poling is neither isolated nor unusual.

In fact, the boy who was selected to replace Hannah Poling as the first-ever thimerosal “test case” in so-called Vaccine Court, has just been found with many of the same unusual metabolic markers as… you guessed it, Hannah Poling.

You see, Hannah Poling was supposed to be a test case for the OAP. One of the arguments the families and attorneys were going to argue in the OAP was that autism is a form of mercury poisoning caused by thimerosal (which used to be in infant vaccines as a preservative.) That idea (and the Wakefield inspired MMR causes autism and bowel disease) failed to even come close to the rather lenient standard of proof of the vaccine court. No one knew for sure before the OAP hearings that the thimerosal argument would fail so completely. Those involved actually had a great deal of confidence. But even with this confidence, some families decided to leave the OAP when the Poling concession was made public.  Most notably Robert Krakow (an attorney and activist in the autism-is-vaccine-injury community) pulled his son’s case from the OAP. His son was to be one of the three thimerosal test cases and is the one Mr. Kirby was discussing in his “Not Isolated, Not Rare” article quoted above.

In many ways it was a strange decision on the part of Mr. Krakow. The expert report on the Krakow boy (made public as part of the OAP and since pulled) made no mention of mitochondrial dysfunction. Also, the court hadn’t decided that the idea that vaccines aggravate mitochondrial disorders causes autism. While many deny this, as an attorney Mr. Krakow must have known this point. Miss Poling was compensated because she showed signs of an encephalopathy soon after vaccination, so it was presumed that encephalopathy was caused by the vaccines. The Krakow boy’s history did not show this.

In another recent case, a vaccine court Special Master noted,

In Poling v. HHS, the presiding special master clarified that the family was compensated because the Respondent conceded that the Poling child had suffered a Table Injury–not because the Respondent or the special master had concluded that any vaccination had contributed to causing or aggravating the child’s ASD.

So the situation for the Krakow boy (and Hannah Poling)  was very, very different than David Kirby painted (as was often true). This wasn’t another Poling case. Mr. Krakow and his attorneys and experts would have to show that (a) his son had real signs of mitochondrial dysfunction, (b) the hypothesis that vaccines vaccines contribute to causing autism was valid (recall, it hadn’t been decided by hearing), (c) this hypothesis applied to his son even though his son didn’t show signs of encephalopathy following vaccination.

As you will see, none of these points were valid.

Mr. Krakow pulled his son’s case  in 2008. The case dragged on for 7 years as the Krakows tried to put together their argument. And it appears that they did not win. Based on the facts presented, these documents appear to be the final decision and a ruling on motions in the Krakow case. These have been anonymized so it is possible that these are not a discussion of the Krakow case, but since the facts so closely match, I will write as though it is the Krakow case for brevity and clarity.

The decisions are lengthy. This case is as involved–if not more–than those in the OAP itself. It’s as if this is the test case for a third OAP argument.

Here is a key paragraph from the documents:

“Petitioners have failed to show that A.K. had an underlying mitochondrial disorder. They have also failed to show that the onset of A.K.’s ASD was in any way related to his influenza vaccinations. Indeed, respondent persuasively presented significant evidence indicating that A.K.’s ASD onset predated his vaccinations. Nor did petitioners establish by preponderant evidence that A.K. experienced any regression of skills related to his ASD or his vaccinations””

The Krakow boy’s history is in no way similar to that of Hannah Poling. Since her case was conceded, we don’t know if she showed signs of autism before vaccination. We do know now that the Krakow boy did show signs of autism. Poling regressed. Krakow didn’t. Poling has evidence of mitochondrial disease. Krakow doesn’t.

There are other interesting statements in these documents. Here are a few. First:

“The measles, mumps, and rubella [“MMR’] vaccines are ordinarily administered in a combined MMR vaccination, but A.K. received his in three separate vaccinations administered on December 1, 2000 (mumps); December 19, 2000 (measles), and January 2, 2001 (rubella), when he was between 13-14 months of age”

Yes. The Krakow family was following the Wakefield-recommended “separate the MMR into single vaccines” schedule. Didn’t prevent autism. This seems like valuable information for the autism community, but Mr. Krakow chose to hold this information back.

The Special Master took on the general idea that vaccines trigger regression in people with mitochondrial disorders. The evidence is very much lacking and “remain speculative”.

Here, petitioners’ experts strained to stretch the idea of mitochondrial regression to encompass vaccines as triggers of such regression. As described above, that extension is completely unsupported by any scientific literature; it was presented in this case almost entirely through the opinion of Dr. Kendall, supported by one case report (Poling, Res. Ex. MM, Tab 14). Doctor Kendall’s and Dr. Shafrir’s further reliance on the Shoffner and Weissman papers was misplaced and their opinions that vaccines can act as triggers of mitochondrial regression were unpersuasive. Evidence that regression in ASD, a well-described phenomenon involving the loss social communication and behavior, “looks like” mitochondrial regression was also nearly non-existent. “Mitochondrial autism” may someday be accepted as a descriptor for co-morbid autism and mitochondrial disorder diagnoses, but there is little evidence that autism itself is caused by such disorder, and no evidence that autism causes mitochondrial disorders. While Dr. Kendall is one of the few mitochondrial disorder specialists in the U.S., her opinion that vaccines can trigger either onset of a mitochondrial disorder with symptoms looking like ASD, or ASD via a mitochondrial regression are insufficiently supported and remain speculative.

We parents are often hit with testimonials about how alternative medicine works wonders on autistic kids. With the OAP cases we heard about a child who had adverse reactions to chelation. In this case we hear that these alternative therapies just didn’t work:

Doctor Boris recommended a gluten-free, casein-free diet for A.K. and began therapies such as chelation, supplements to counteract the effects of his MTHFR gene defect, and autoimmune medications. Tr. at 168-69. He testified that A.K. “did not respond very well to most of the treatments [he] administered.”

In an interesting twist, The Krakow boy’s geneticist  recommended he get vaccinations:

I [the special master] noted that the geneticist who had been seeing A.K. had specifically recommended that he continue to receive vaccinations and indicated that he was a “good candidate” to receive seasonal vaccinations, such as influenza.

Many people have been trying to characterize the “vaccine court” (the Court of Federal Claims) as highly adversarial. But Mr. Krakow writes that “The tenor of VICP proceedings is exceptionally hostile and adversarial”. The record show the Court was far from hostile and adversarial.

Consider this. The record shows that Robert Krakow (an attorney who appears in the vaccine court) and the attorney he chose to take over his son’s case were not proactive in prosecuting their case:

Other than the filing of medical records, petitioners did little to advance their claim during the period in which [A.K.’s father] was attorney of record.


However, the glacial pace of progress toward a causation hearing continued for many months thereafter. Mr. McHugh’s representation has been marked with missed deadlines, repeated requests for delays, late filings, and difficulties in properly designating and filing exhibits. His failure to meet deadlines nearly cost petitioners the opportunity to fully litigate their son’s claim.

That last sentence refers to the fact that after years of delays and missed deadlines, the court was finally forced to dismiss the case for inaction:

Accordingly, after petitioners missed the deadlines set forth in my August 18, 2010 order, I ordered them to show cause why their case should not be dismissed for failure to prosecute and comply with court orders. See Order to Show Cause, issued Sept. 3, 2010 (ECF No. 98). After petitioners ignored the deadline in the show cause order, I dismissed their petition on October 13, 2010.

The Court allowed the family to petition and re-enter the vaccine program. Not only that, but the Court granted the motion to redact parts of the dismissal. The dismissal was available on the vaccine court website (where I found and read it) but was pulled.

Many in the “autism is a vaccine epidemic” community call for a repeal of the vaccine act and a return to the time when vaccine manufacturers could sued directly.  How many cases in regular court are dismissed and allowed back in?

We could go on as the decisions are lengthy but instead let’s get back to the key points above.  When David Kirby wrote his article he concluded “And there are many more Hannah’s out there, waiting to be counted.”  Just not so.  First off, the real Hannah Poling case isn’t what Kirby claimed. The Court has stated that neither they nor the government  “…concluded that any vaccination had contributed to causing or aggravating the child’s ASD.”  More importantly, this new  case isn’t about a child with mitochondrial disorder, or even regression. It is a case of a child who showed signs of autism before the vaccines the parents claim caused autism.

This is a case of one of the most vocal proponents of the idea that vaccines cause autism misleading the public.  Mr. Krakow probably believes the story he tells of his child’s development.  He probably believes the story about how contentious the vaccine court is. But the facts tell a very different story.

I am often asked why I can not support the idea that vaccines cause autism.  Thousands of parents tell the same story, I’m told.  The problem is that the parents stories don’t match the facts. We saw this with Jenny McCarthy. We saw this with the Omnibus Autism Proceeding test cases.  We’ve seen this with more vaccine court cases.  We’ve seen this with parent stories shifting in online discussions. And now we’ve seen this with “the next Hannah Poling”.

By Matt Carey

The Next Vaccine-Autism Newsmaker…5 years later

6 Feb

Years back, much focus in online autism parent community discussions focused on the Omnibus Autism Proceeding (OAP). This was the large “vaccine court” proceeding to explore if people could be compensated for autism as a vaccine injury. Those hearings were held in 2008, and the decisions went against the families.

A 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 those who filed claims and were included in the Omnibus Autism Proceeding. Statistics as of today show there were 5,635 claims included in the Omnibus, and 4,564 have been dismissed. 2 claimants have been compensated, with the caveat given that “**HHS has never concluded in any case that autism was caused by vaccination.” This leaves 1,069 cases still pending. A relatively small fraction of the original Omnibus, but a large number nonetheless.

Another way to look at this is the Omnibus proceedings are over, the docket hasn’t been updated for quite some time but there are still individual cases to be decided. Including one case that was rather prominent in the Omnibus: that of A. Krakow. He was intended to be one of the test cases for the thimerosal but was pulled out to pursue another argument: that metabolic dysfunction is involved. David Kirby referred to him as “The Next Vaccine-Autism Newsmaker”, following the supposed game-changer of Hannah Poling.

That was in 2008. As it’s been nearly 5 years, I checked the status of the case. It turns out the first hearing was held in December (a hearing on fact) and a second hearing is set for expert witnesses to testify in April of this year. One way to explore the arguments the family may be taking is to review the experts that are testifying. For example, the family has chosen Richard Deth as an expert. His work has not focused on mitochondria. On the other hand, Yuval Shafir is also listed as an expert and has listed many articles on mitochondria with his report. Richard Frye’s CV was submitted (he also has some work on mitochondria and autism), but I don’t see that an expert report from him has been submitted.

Other experts date from 2008 (from when he was going to be an Omnibus test case) include: Elizabeth A. Mumper, Robert S. Rust, Richard Deth and Sander Greenland.

(edit to add, I see a report in the docket from Marcel Kinsbourne in 2010).

So, is this going ahead as a “mitochondrial autism” case? The “Next Hannah Poling” as David Kirby claimed in Spectrum Magazine? Well, even Hannah Poling wasn’t the game-changer some people predicted. Probably the most we can say is that is 10 years old, with a docket 16 pages long, will finally be heard.

edit to add: For the curious, here is the docket.

By Matt Carey

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.

Sharyl Attkisson blogs the Hannah Poling settlement

10 Sep

I had forgotten Sharyl Attkisson. She is a reporter for CBS news who has covered vaccines in the past, but has been silent on the issue for the past year or more.

Her recent piece shows exactly the sort of reporting that frustrated me in the past: Family to Receive $1.5M in First-Ever Vaccine-Autism Court Award

In that piece she links to her piece from 2008 on the Hannah Poling case: Vaccine Case: An Exception Or A Precedent?

Here’s a quote from that earlier piece:

While the Poling case is the first of its kind to become public, a CBS News investigation uncovered at least nine other cases as far back as 1990, where records show the court ordered the government compensated families whose children developed autism or autistic-like symptoms in children including toddlers who had been called “very smart” and “impressed” doctors with their “intelligence and curiosity” … until their vaccinations.

They were children just like Hannah Poling.

What’s still being debated is whether the Poling case is an exception … or a precedent.

So, which is it? Were there children “just like Hannah Poling” or is this the “First-Ever Vaccine-Autism Court Award”?

Actually, it is neither. This isn’t the first vaccine court award involving autism, and the other cases are not “just like Hannah Poling”.

For real information on the other nine cases, read Kathleen Seidel’s piece on Few, professional or amateur, can compare the the thoroughness of Kathleen Seidel. For example, one case (the first I read involving autism from the vaccine court) is Suel v. HHS. Young David Suel had tuberous sclerosis, a condition known to be associated with autism and epilepsy. Epilepsy occurs in about 60 to 90% of individuals with TS. Autism occurs in about 25-50%. David Suel’s case was declared to be a “table injury” wherein the seizures began within a set period after his DPT vaccination. What is notable about that is the table for DPT was later changed–when it was shown that DPT was not responsible for inducing seizure disorders. In other words, had David Suel been vaccinated, or just filed, after the change in the table, he likely would not have been awarded damages.

“They were children just like Hannah Poling”? Is tuberous sclerosis just like mitochondrial disease? (answer: not even close).

Shall we go on? In her recent piece, Ms. Attkisson states:

In 2002, Hannah’s parents filed an autism claim in federal vaccine court. Five years later, the government settled the case before trial and had it sealed

Not accurate. The court did not “settle” the case in 2007. They conceded the case, and they were in the process of completing the settlement when someone leaked the information to the press. The government did not “seal” the case–it is standard procedure to keep this information confidential until the settlement is completed.

But that doesn’t make a good story, does it?

Ms. Attkisson goes on:

In acknowledging Hannah’s injuries, the government said vaccines aggravated an unknown mitochondrial disorder Hannah had which didn’t “cause” her autism, but “resulted” in it. It’s unknown how many other children have similar undiagnosed mitochondrial disorder. All other autism “test cases” have been defeated at trial. Approximately 4,800 are awaiting disposition in federal vaccine court.

Mito-autism was a big thing for a while there. David Kirby took the story and ran with it–making a lot of mistakes along the way and propagating a lot of misinformation. It is unknown how many other children have similar disorders–but the researchers who studied cases like Hannah Poling have stated that cases such as hers are “rare”.

“All other autism “test cases” have been defeated at trial”.

What is conspicuous about the other “test cases” is that in none of them was it argued that the children were like Hannah Poling–i.e. the attorneys did not argue that a mechanism of autism through mitochondrial dysfunction aggravated by vaccines existed. In fact, one child named as a test case was pulled from that slot in order to argue that mitochondrial based case. The expert report filed for that child (since pulled from the Omnibus website) did not argue mitochondrial disorder or dysfunction at that time. In other words, the idea of a mitochondrial disorder being linked to autism was so alien from the cases being made by the attorneys for the families in the Omnibus that this child had to argue the case separately.

It is often pointed out that many autistics may have mitochondrial dysfunction. This is based largely on studies out of Portugal. It is left implied, and it is often believed that mitochondrial dysfunction means vaccine injury in these cases. This was the impression that David Kirby put forth and it was clearly wrong. First, mitochondrial disorders are a very broad spectrum. The type that Hannah Poling has is not the same as those detected in most autistics. Second, most reports of mitochondrial disorders and autism, including the Portugal studies, do not involve regression. Third, even amongst those children reported by the groups that identified Hannah Poling, regression was often idiopathic or followed fever clearly independent of vaccination.

I do not expect Ms. Attkisson to present the following (quality) information, so I will repeat it here:

Here are the answers to some questions posted to mitochondrial medicine experts and their answers:

When asked, to respond to the position: ‘‘I view the risk of vaccination in known metabolic disease patients to generally be outweighed by the risk of the infectious diseases being vaccinated against”

63.2% strongly agreed
31.1% agreed
0.9% disagreed
and 0.9% strongly disagreed.

Asked about the opinion that the risk of vaccination in metabolic disease was ‘‘greater than the risk of the infectious diseases being vaccinated against”

52.9% strongly disagreed
40% disagreed
3.5% agreed
and none strongly agreed

Omnibus decisions in–acknowledging the test case families

12 Feb

The Omnibus decisions on MMR are in. Answer: no. Clearly no, they did not find that MMR with or without thimerosal cause autism. The court found that the cases were without merit.

This will obviously be a topic much discussed in the next few days. But, for right now, I’d like to acknowledge the bravery of the families who allowed their stories to be the “test cases” for the omnibus: the Cedillos, the Hazlehursts and the Snyders.

Yes, I agree with the decisions by the Court. Yes, I think the vaccine question has and will continue to sidetrack the greater autism community from more important efforts. But, the Court made a point in the decisions that the families stepped forward with good faith.

They put their lives in the public eye. They can appeal (and I expect it will happen). But they can’t do what the Krakow’s did, and what appears to be an option for the rest of the Omnibus families: change the story and resubmit to the court.

It was a good decision, and good for the autism community as a whole. For me, I’m taking at least a day to process before blogging the decision. In that time, I’d like to acknowledge that the Cedillos, the Hazlehursts and the Snyders put themselves on the line for what they believe in. They did it to try to help other families. I can disagree with them and still acknowledge the bravery of that action.

The next mito-autism case?

20 Oct

It’s been nearly a year since the first autism/mitochondria case was conceded. The question of mitochondrial dysfunction and autism has evolved significantly in the minds of the public and insiders in that time.

Shortly after the concession, Tom Powers, lead attorney for the petitions was asked

.”..whether this was a possible break in the case, he replied that the particular case dealt with a claimant who had a diagnosed mitochondrial disorder. As a result, it probably won’t have much of an effect on the other cases.”

It wasn’t really on the radar for the Petitioners.

But, that was in December of 2007. In February of 2008, the concession document was leaked, followed by TV, online and print news-stories on the topic. Coincidentally, mitochondria and autism has changed from not “much of an effect on the other cases” to some people claiming as much as 1/2 of the Autism Omnibus cases being associated with mitochondria.

We’ve seen one Omnibus test case removed from the Omnibus because, the parents claim, the child’s case needs to be argued as a mitochondrial dysfunction case. We’ve gone from diagnosing mitochondrial dysfunction involving a difficult task of many tests and specialist’s opinions, to the point where David Kirby, a blogger, claims to be identifying mitochondrial dysfunction based on parental reports. We now have self-taught “experts” ready to answer questions on discussion boards about mitochondrial disorders, one of the extreme specialties of medicine.

While this is all lamentable, we now have the first “test case” for the mitochondrial autism notion, post concession. A family is arguing mitochondrial disorder (or an oxygen depletion disorder).

The case has gone through the first steps in the Court of Federal Claims (the “vaccine court”). The case hasn’t concluded, but a decision has been published. To summarize:

First, note that the parents are representing themselves, it appears. The decision notes:

On August 29, 2008, petitioners filed a Reply to the Order, making two assertions: (1) [The child] suffered from a mitochondrial disorder and oxygen depletion disorder which a later vaccination significantly aggravated, leading to autistic like symptoms (somewhat similar to the Hannah Poling case that respondent agreed to compensate); and (2) the vaccinations which [the child] received caused him mercury poisoning from thimerosal or ethyl mercury (which is the subject matter of the second round of autism cases in the Omnibus Autism Proceeding, the first round of cases having to do with MMR and autism).

Tthey seem to be both arguing the mitochondrial disorder idea and the Omnibus thimerosal theory. In support, they gave no expert medical reports. Instead, they submitted a single paper (which presumably is supposed to cover both, very different assertions):

by D.S. Baskin, et al., entitled “Thimerosal Induces DNA Breaks, Caspase-3 Activation, Membrane Damage, and Cell Death in Cultured Human Neurons and Fibroblasts,” published in 74 Toxicological Sciences (2003), available on the internet.

That’s really thin evidence (as discussed at some length by the Special Master). Some sort of expert report should link the theory to the specific child. The parents state:

They have not filed a medical report in support of their assertion of significant aggravation of [the child’s] autistic like disorder, claiming that no doctor would risk criticism from the medical community by providing such a report.

Anyone want to volunteer some names of people who would risk the criticism?

But, seriously, diagnosing a mitochondrial disorder is not a simple task. This isn’t something a parent (or David Kirby) can do by looking for similar markers to another case. Heck, it isn’t as though all the biomarkers for the conceded case are universally accepted by mitochondrial experts.

With such little support for the case, the Special Master was forced to conclude:

Petitioners have still not proved their assertion of significant aggravation.

Basically, the decision ends with a statement that the family has not made its case, but they have a chance to come back with a status report as to what their intentions are.

They have already signaled a possible intention:

Petitioners express an interest in suing civilly.

This case is built on even thinner evidence than most internet-discussion-group claims. At least with those, there are challenge tests, porphyrin tests or some other questionable test, together with the opinion of the doctor who ordered the questionable tests to support an idea of “mercury poisoning” or some such diagnosis. But here, we seem to have: the child is autistic, therefore it is mercury and/or mitochondrial disorder aggravated by vaccines.

The Special Master gave the family information on how to contact a lawyer familiar with the vaccine court. I hope, for their sake, they did. I doubt it will have much of an effect on their case, but at least they would have some advice as they move forward to civil court–where the expenses will be charged to the family.

Alexander Krakow – The Next Bombshell

27 Apr

And so, the next twist in the Autism Omnibus is revealed. Writing in Spectrum Publications in a piece rather hopefully entitled ‘The Next Hannah Poling’ David Kirby writes:

….the boy who was selected to replace Hannah Poling as the first-ever thimerosal “test case” in so-called Vaccine Court, has just been found with many of the same unusual metabolic markers as… you guessed it, Hannah Poling.


….the court announced that the replacement thimerosal test case was also being withdrawn, in order to “proceed to an individual hearing on a different theory of causation.”


“We want to pursue an additional theory, not a different theory,” the boy’s father told me. “We are by no means abandoning the thimerosal theory of causation but, in the context of the test case, the thimerosal theory would have eclipsed our other evidence, including evidence of metabolic dysfunction,” such as impaired mitchondria and low cellular energy.

The boy is Alexander Krakow, son of EoH regular, lawyer Bob Krakow. Up until very recently, lawyer Bob could be heard trumpeting the evils of thiomersal to the exclusion of just about everything else (MMR aside of course). Now, however, the Krakow’s have a new hypothesis (DK refers to ‘theory’ through his article but it isn’t a theory) – but note they still give a shout out to thiomersal anyway.

Now, much as DK and the Krakow’s might want to think this is important, it really isn’t. This situation is in no way similar to Hannah Poling’s. In that scenario, HHS said she was vaccine damaged (but again, despite what DK says, there was no concession she had been made autistic by her vaccines – an opinion the medical evidence and mitochondrial experts agree with) and they recommended awarding damages uncontested. In Alexander Krakow’s case, his _parents_ have withdrawn him from the Omnibus. No science has been presented, HHS have not said anything at all about his medical conditions. All we have so far is the Krakow’s opinion that their son has a mitochondrial disorder.

This is especially interesting in the light of the report of the Krakow’s own hand-picked medical expert, DAN doctor Elizabeth Mumper – not only _a_ DAN! doctor but the ‘Medical Director’ of ARI.

This report prepared by Mumper states:

In my best professional judgement… is more likely than not that the thimerosal in the childhood vaccines Alexander Krakow received was a substantial contributing factor to his neurodevelopmental problems.

So the ARI medical director blames thiomersal. What did she have to say about mitochondria?

Well, nothing. The word ‘mitochondria’ is not mentioned once in the whole report.

In his article DK talks about Alexander Krakow having the same ‘markers’ as Hannah Poling. He neglects to say what they are however, or how he concludes they are markers. He also neglects to mention how the DAN! medical director singularly failed to detect any of these so called ‘markers’.

Perhaps the biggest mark against Alexander Krakow having ‘mito induced autism from vaccines’ is the fact that his medical report (which stated the thiomersal dunnit) made no mention of a fever or raised temperature. If I recall correctly, it was a key part of the Hannah Poling scenario that the vaccines had given her a fever and it was this which aggravated her underlying mitochondrial disorder and in turn caused her autism. Alexander Krakow’s medical report mentioned no fever at all.

David must also be aware of the fact that the ‘markers’ he refers to are, at best, markers of mitochondrial issues. Lots kids with mito issues have them. They bear no relation to vaccine injury. I was disappointed to see this issue being talked around but I have some hopes that later this year – towards the autumn maybe – this issue will be made abundantly clear.

So, all in all I am deeply puzzled as to how this is ‘the next bombshell’ or even how Alexander Krakow can be considered to have any kind of mitochondrial related autism issue. The HHS definitely did not concede this case and my guess is that they will be more than happy – given Bob Krakow’s own expert medical report into his son – to contest when their case comes up separately.

My further guess is that we will see some more people switch horses sometime fairly soon. I’m also guessing that – like the Krakow’s – it will be done against their lawyers advice.