ANOTHER AUTISM CASE WINS IN VACCINE COURT + A NEW THEORY OF AUTISM CAUSATION?

[Guest guest]

ANOTHER AUTISM CASE WINS IN VACCINE COURT

By Robert F. Kennedy, Jr.

_http://www.huffingtonpost.com/robert-f-kennedy-jr-and-david-kirby/vaccine-cou

rt-autism-deba_b_169673.html_

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-autism-deba_b_169673.html)

 

On February 12, the federal **Vaccine Court** in Washington issued a

sweeping ruling in three highly touted **test cases** against families who

claimed

that their childrens* autism had been caused by vaccines. The Special Masters

in those three cases found that Petitioners failed to establish causation

between MMR vaccines, the mercury-laced vaccine preservative thimerosal, and

autism (the court decision, which is under appeal, deferred any finding on a

thimerosal-only theory of causation). The rulings could have a significant

precedential impact on some 5,000 families who opted to bring their cases in

the

Omnibus Autism Proceedings (OAP) hoping that the vaccine court would

officially hold that the MMR vaccine or thimerosal had caused autism in their

children.

 

The New York Times joined the government Health Agency (HRSA) and its big

pharma allies hailing the decisions as proof that the scientific doubts about

vaccine safety had finally been *demolished.* The US Department of Health and

Human services said the rulings should **help reassure parents that vaccines

do not cause autism.** The Times, which has made itself a blind mouthpiece

for HRSA and a leading defender of vaccine safety, joined crowing government

and vaccine industry flacks applauding the decisions like giddy cheerleaders,

rooting for the same court that many of these same voices viscously derided

just one year ago, after Hannah Poling won compensation for her vaccine

induced autism.

 

But last week, the parents of yet another child with autism spectrum

disorder (ASD) were awarded a lump sum of more than $810,000 (plus an estimated

$30-40,000 per year for autism services and care) in compensation by the Court,

which ruled that the measels-mumps-rubella (MMR) vaccine had caused acute

brain damage _http://big.assets.huffingtonpost.com/BANKS_CASE.pdf_

(http://big.assets.huffingtonpost.com/BANKS_CASE.pdf) that led to his autism

spectrum

disorder.

 

The family of 10-year-old Bailey Banks won their case quietly and without

fanfare in June of 2007, but the ruling has only now come to public attention.

In the remarkably clear and eloquent decision, Special Master Richard Abell

ruled that the Banks had successfully demonstrated that **the MMR vaccine at

issue actually caused the conditions from which Bailey suffered and continues

to suffer.**

 

Bailey*s diagnosis is Pervasive Developmental Disorder -- Not Otherwise

Specified (PDD-NOS) which has been recognized as an autism spectrum disorder by

CDC, HRSA and the other federal health agencies since at least the 1990s.

 

In his conclusion, Special Master Abell ruled that Petitioners had proven

that the MMR had directly caused a brain inflammation illness called acute

disseminated encephalomyelitis (ADEM) which, in turn, had caused the autism

spectrum disorder PDD-NOS in the child:

 

The Court found that Bailey*s ADEM was both caused-in-fact and proximately

caused by his vaccination. It is well-understood that the vaccination at issue

can cause ADEM, and the Court found, based upon a full reading and hearing

of the pertinent facts in this case, that it did actually cause the ADEM.

Furthermore, Bailey*s ADEM was severe enough to cause lasting, residual damage,

and retarded his developmental progress, which fits under the generalized

heading of Pervasive Developmental Delay, or PDD [an autism spectrum disorder].

The Court found that Bailey would not have suffered this delay but for the

administration of the MMR vaccine, and that this chain of causation was... a

proximate sequence of cause and effect leading inexorably from vaccination to

Pervasive Developmental Delay. The Bailey decision is not an isolated ruling.

We now know of at least two other successful ADEM cases argued in Vaccine

Court. More significantly, an explosive investigation by CBS News has found

that

since 1988, the vaccine court has awarded money judgments, often in the

millions of dollars, to thirteen hundred and twenty two families whose children

suffered brain damage from vaccines. In many of these cases, the government

paid out awards following a judicial finding that vaccine injury lead to the

child's autism spectrum disorder. In each of these cases, the plaintiffs'

attorneys made the same tactical decision made by Bailey Bank*s lawyer, electing

to

opt out of the highly charged Omnibus Autism Proceedings and argue their

autism cases in the regular vaccine court. In many other successful cases,

attorneys elected to steer clear of the hot button autism issue altogether and

seek recovery instead for the underlying brain damage that caused their client*s

autism.

 

Medical records associated with these proceedings clearly tell the tale. In

perhaps hundreds of these cases, the children have all the classic symptoms

of regressive autism; following vaccination a perfectly healthy child

experiences high fever, seizures, and other illnesses, then gradually, over

about

three months, loses language, the ability to make eye contact, becomes

*over-focused* and engages in stereotypical head banging and screaming and then

suffers developmental delays characteristic of autism. Many of these children

had

received the autism diagnosis. Yet the radioactive word *autism* appears

nowhere in the decision.

 

Instead the vaccine court Special Masters rest their judgments on their

finding that the vaccines caused some generalized brain injury, mainly

Encephalopathy/encephalitis (brain inflammation) or *seizure disorders* --

conditions

known to cause autism-like symptoms. A large number of the children who have

won these judgments have been separately diagnosed with autism. HRSA

acknowledged this fact in a recent letter, but told us it does not keep data on

how

many of these children were autistic.

 

The Vaccine Court, in other words, seems quite willing to award millions of

dollars in taxpayer funded compensation to vaccine-injured autistic children,

so long as they don't have to call the injury by the loaded term *autism.*

That hazard is particularly acute for vaccine victims who appear before the

Omnibus Autism Proceedings (OAP). Since that body's decisions are closely

watched, published and accorded the weight of precedent, many lawyers consider

the

burden of proof for petitioners to be impossibly high before the OAP Panel.

It was for this reason that Bailey*s attorney, Mark McLaren, elected to opt

out of the OAP and try his case separately, even though Bailey has been

receiving autism-related services in his home state and was eligible to file a

case

in the Court*s Omnibus Autism Proceedings (OAP).

 

McLaren told us he wanted to avoid the added burden facing petitioners under

the media glare and precedential weight attending OAP panel trials. **We

considered [the OAP route] because [bailey] is on the autistic spectrum of

disorders, but we thought we could try it separately and apart from the

Omnibus,

and not as a test case,** explained McLaren. **We thought we*d have a better

chance if we tried to on its own merit, away from the spotlights and the

precedent setting pressures that attend these OAP test cases - and it worked.**

 

Bob Krakow, a leading attorney for vaccine damaged children told that many

lawyers are now convinced that filing a claim in the OAP is a losing

proposition. **There*s a growing conviction that if you have a autistic client

who has

also been diagnosed with encephalopathy/encephalitis or seizure disorder,

you are better off not mentioning the word *autism* if you want to win the

case.** He recommended instead filing a non autism claim like **mental

retardation with seizure disorder** for an autistic client.

 

Although the vaccine court is mandated to fairly serve the victims of

vaccine injuries, their primary purpose and raison d'etre is to protect the

vaccine

program and vaccine makers. Damages are doled out from a 75-cent tax on

every vaccine sold and not from the vaccine makers. **You can understand why

special masters, burdened with their duty to protect vaccine programs, might be

unwilling to make the direct causal link between autism and vaccines,** Krakow

observed. **If you ask the big question and answer it in the affirmative,

there is a sense that it will damage the vaccine program irreparably.**

 

Vaccine Court judges are equipped with a draconian armory of weapons

deployable against plaintiffs intent on proving the causal connection between

vaccines and autism. Jury trials are prohibited. Damages are capped; awards for

pain and suffering are strictly limited and punitive damages banned altogether.

Vaccine defenders have an army of Department of Justice attorneys with

virtually unlimited resources for expert witnesses and other litigation costs.

Plaintiffs, in contrast, must fund the up front costs for experts on their own.

In a cultural choice that clearly favors defendants, vaccine court gives

overwhelming weight to written medical records which are often inaccurate --

over

all other forms of testimony and evidence. Observations by parents and other

caretakers are given little weight.

 

Worst of all -- plaintiffs have no right to discovery either against the

pharmaceutical industry or the government. Since autism is a behavioral

affliction rather than a precisely defined biological injury -- epidemiological

studies are critical to establishing its causation. But the greatest source of

epidemiological data is the Vaccine Safety Datalink (VSD) -- the government

maintained medical records of hundreds of thousands of vaccinated children --

which HHS has gone to great lengths to keep out of the hands of plaintiffs'

attorneys and independent scientists. Unfortunately the vaccine court has

judicially anointed this corrupt concealment by consistently denying every

motion by

petitioners to view the VSD. The raw data collected in the VSD would

undoubtedly provide the epidemiological evidence needed to understand the

relationship between vaccines and autism. The absence of such studies makes it

easy for

judges to say to plaintiffs they have not met their burden of proving

causation.

 

Meanwhile, CDC has actively, openly and systematically suppressed and

defunded epidemiological studies that might establish a causal link. CDC has

ignored repeated pleadings that it fund peer reviewed studies of unvaccinated

American cohorts like the Amish and home-schooled children. At the same time

the

agency has worked overtime ginning up a series of fatally-flawed European

studies purporting to dispute the link. Even a cursory critical examination

reveals that the oft-cited Danish, English, and Italian studies are rank

tobacco

science. Many of them were funded by CDC, a badly compromised agency,

performed by vaccine industry scientists, and published in miserably conflicted

journals.

 

Needless to say, the existence of these phony studies, combined with the

deliberate dearth of epidemiological evidence makes it easy for the special

masters to dodge a politically explosive finding by holding that there is

" insufficient evidence. "

 

And, speaking of tobacco, it*s worth recalling that for sixty years the

tobacco industry successfully defended a product that was killing one out of

every five of its customers against thousands of legal actions brought by its

victims and their families. Tobacco lawyers protected the cigarette companies

by

arguing that there was no proven link between tobacco and lung cancer. Bob

Krakow sees many parallels. Big tobacco uses the same tactic of manufacturing

research that seems to dispute the connection to exploit the burdens on

plaintiffs to prove causation. Big tobacco prevailed for six decades even

without

the help of supportive government agencies deliberately suppressing real

science and research. In that sense vaccine victims must leap a much higher

hurdle.

 

Despite the perilous odds stacked against them in vaccine court, the

evidence of a vaccine/autism link is so strong that vaccine court judges and

government agencies have now recognized at least two theories of how vaccines

cause

autism: the Vaccine-to-ADEM-to-ASD link in Bailey Banks* case, and

vaccine-induced aggravation of an underlying mitochondrial dysfunction that

caused

full-blown autism in the Hannah Poling case. Both theories are different from

those rejected in the three cases last week.

 

Perhaps, these new disclosures will prompt The Times, with all its

influence, to actually make prudent journalistic inquiries into the phony

science CDC

uses to defend its claims of **vaccine safety.** If it does, the paper will

realize it has once again been ill used by government agencies in a tragic

campaign of public deceit. The Times should make the reasonable demand that the

government health agencies finally release the Vaccine Safety Datalink for

independent scientific research and that CDC and HRSA lift their opposition to

genuine epidemiological studies that might finally provide real scientific

answers to this debate.

 

---

 

A NEW THEORY OF AUTISM CAUSATION?

By David Kirby

 

A ruling from Federal Vaccine Court -- that MMR vaccine caused an autism

spectrum disorder in a young boy named Bailey Banks -- flies directly in the

face of the triple-play decision against a vaccine-autism link issued by the

Court on February 12.

 

The Special Masters in those three cases inferred that the vaccine-autism

theory was the stuff of Alice in Wonderland fantasy, and virtually accused the

childrens* physicians of medical malpractice. (CNN*s Dr. Sanjay Gupta called

the Court*s language *snide,* and we agree).

 

Meanwhile, the US Department of Health and Human services said the rulings

should **help reassure parents that vaccines do not cause autism. ** But why

should parents feel reassured when two out of five autism cases (40%) - that

we know of - have won taxpayer-funded compensation in Vaccine Court?

 

The Ruling

 

In his decision, Special Master Abell ruled that the MMR vaccine produced a

side effect in Bailey called acute disseminated encephalomyelitis (ADEM).

ADEM is a neurological disorder characterized by inflammation of the brain and

spinal cord. The disorder results in damage to the myelin sheath, a fatty

coating that insulates nerve fibers in the brain. ADEM can be caused by natural

infections, especially from the measles virus. But it also is a recognized

post-vaccination injury, especially from vaccines for rabies, pertussis,

influenza, and MMR.

 

Evidence presented to support an MMR-ADEM link was compelling. It included a

1994 report from the Institute of Medicine that said it was biologically

plausible for a vaccine to **induce... an autoimmune response... by nonspecific

activation of the T cells directed against myelin proteins.**

 

In fact, both parties in the Banks case agreed **that the IOM has cited

demonstrative evidence of a biologically plausible relation between the measles

vaccine and demyelinating diseases such as ADEM,** the Court wrote.

 

Most cases of ADEM (80%) are in children. Symptoms usually appear within a

few days to a couple of weeks. They include: headache, delirium, lethargy,

seizures, stiff neck, fever, ataxia (incoordination), optic nerve damage,

nausea, vomiting, weight loss, irritability and changes in mental status.

 

I know of thousands of parents who witnessed many of these same symptoms

afflict their children shortly after vaccination, most typically the MMR. Did

these children with autism also suffer initially from ADEM or some subclinical

version of the disorder? We may never know (physical signs like myelin damage

are transitory).

 

Bailey Banks was given an MRI when his parents brought him to the hospital

16 days after his MMR vaccine, and that helped confirm his diagnosis. The

children I know who were brought in with similar symptoms were instead given

Tylenol and told to go home.

 

(Interestingly, Tylenol can affect production of glutathione, an essential

antioxidant and detoxifier. A preliminary study from UC San Diego showed that

children who were given Tylenol after their MMR vaccine were several times

more likely to develop autism than other children. **Tylenol and MMR was

significantly associated with autistic disorder,** the authors wrote. **More

research needs to be completed to confirm the results of this preliminary

study.**)

 

Is vaccine-induced ADEM (and similar disorders) a neurological gateway for a

subset of children to go on and develop an ASD? That question will now

become subject to debate. Thousands of parents have reported similar reactions

and

symptoms following vaccination, yet they lack radiological proof of ADEM or

related disorders in the form of an MRI. Meanwhile, most children with autism

do not present with myelin damage, but many do test positive for antibodies

to myelin basic protein (MBP).

 

Also worth noting is that ADEM causes an inflammatory response in the brain,

primarily in the microglial cells. It is also associated with abnormal

cytokine levels in the brain, and with autoimmunity. Autism, meanwhile, has

been

linked to brain inflammation, microglial cell activation, cytokine imbalances,

and autoimmunity.

 

In most cases, symptoms of ADEM disappear within a few weeks or so, and the

disorder may be treated with IV cortisone to help reduce inflammation. But

none of the children with autism that I know were ever examined or treated for

a possible case of ADEM or other acute cases of encephalitis/demyelinating

disorder. By now, their myelin damage may have repaired itself, yet the

damaging agents, (MBP antibodies), persist.

 

ADEM is said to be rare, but the disorder may be grossly under-diagnosed (or

misdiagnosed). Even the government*s chief witness against Bailey*s case

testified that he sees patients with ADEM **on a fairly regular basis.**

What*s

more, Bailey's was the third successful vaccine-ADEM case argued in Vaccine

Court (that we know of) so far.

 

Can ADEM Cause PDD/ASD?

 

Special Master Abell had no trouble linking MMR to ADEM in Bailey Banks*

case. But linking his ADEM to PDD/ASD was more difficult.

 

There is no medical literature to support an ADEM-PDD link. The government*s

expert witness, Dr. John MacDonald, testified that **all the medical

literature is negative in that regard.** Instead, he proposed an alternative

hypothesis for Bailey*s PDD (he suggested it was caused by glucose transporter

1

deficiency).

 

But Special Master Abell berated the government's witness in much the same

way that Hastings et al. had criticized witnesses for the families in their

three cases.

 

**This (glucose) hypothesis, which (MacDonald) declined to incorporate as a

plausible, probable theory of explanation, was used by Respondent to blunt

Petitioner's theory of ADEM,** Abell wrote. **This hypothesis was not given to

a reasonable degree of medical probability or certainty, and Respondent*s

expert admitted that it was merely *a possible, not necessarily a probable

diagnosis.* **

 

Abell also chided MacDonald for his assertion that **all the medical

literature is negative** in regards to an ADEM-PDD link. **However, soon

thereafter,

he corrected this statement by clarifying, *I can find no literature

relating ADEM to autism or [PDD],* * * Abell wrote. **It may be that

Respondent*s

research reveals a dearth of evidence linking ADEM to PDD, but that is not the

same as positive proof that the two are unrelated, something Respondent was

unable to produce. Therefore, the statement that *all the medical literature

is negative* is incorrect. **

 

The Court also took MacDonald to task for insisting that Bailey*s initial

symptoms were not 100% consistent with the signs of ADEM. **His distinction

seems one of degree, not of type, and strikes as a trifle semantic,** Abell

sniffed. He also noted that McDonald was having a hard time determining

Bailey*s

current diagnosis. ** He ultimately concluded that *Bailey falls into the

large group of children with autism/PDD in which by our current evidence-based

medicine we rarely can make a specific diagnosis.* **

 

Special Master Abell seemed to lend more credence to witnesses for the Banks

family.

 

Chief among them was Dr. Ivan Lopez, a neurologist and psychiatrist. Dr.

Lopez testified that **the majority of patients with ADEM improve

significantly,** but added that **the exception to this rule is when patients

have been

exposed to measles, just like in the case of MMR vaccine,** in which case

subsequent brain damage **may occur in up to 50 percent of patients.** He said

such events include **mental syndromes such as PDD and others,** and opined

that

**up to 50 percent of patients...who have had ADEM will show (PDD) as a

consequence.**

 

Dr. Lopez, a member of the US Military, gave his testimony by phone from

Mobile, AL where, the next day, he was to ship out for a tour of duty in Iraq.

 

In his conclusion, Special Master Abell wrote:

 

The Court found that Bailey*s ADEM was both caused-in-fact and proximately

caused by his vaccination. It is well-understood that the vaccination at issue

can cause ADEM, and the Court found, based upon a full reading and hearing

of the pertinent facts in this case, that it did actually cause the ADEM.

Furthermore, Bailey*s ADEM was severe enough to cause lasting, residual damage,

and retarded his developmental progress, which fits under the generalized

heading of Pervasive Developmental Delay, or PDD. The Court found that Bailey

would not have suffered this delay but for the administration of the MMR

vaccine, and that this chain of causation was not too remote, but was rather a

proximate sequence of cause and effect leading inexorably from vaccination to

Pervasive Developmental Delay. And he added this:

 

Petitioner*s theory of PDD caused by vaccine-related ADEM causally connects

the vaccination and the ultimate injury, and does so by explaining a logical

sequence of cause and effect showing that the vaccination was the ultimate

reason for the injury. Does Bailey Banks Have Autism?

 

Bailey Banks does not have *classic* or full-blown autism. But he has been

diagnosed with PDD-NOS, which is squarely on the autism spectrum of disorders.

There was quite a bit of back-and-forth on Bailey*s diagnosis in the ruling,

whose heading included the term **Non-autistic developmental delay.** At

several points in the proceedings, witnesses took great pains to say that Bailey

does not have *autism* which, technical speaking, is true.

 

On the other hand, Special Master Abell included notations declaring that

**Pervasive Developmental Delay describes a class of conditions, and it is

apparent from the record that the parties and the medical records are referring

to Pervasive Developmental Disorder Not Otherwise Specified (PDD-NOS).**

 

Even so, some will argue that Bailey does not have an ASD. They are simply

wrong. The diagnosis of PDD-NOS was added to the list of autism spectrum

disorders in the 1980s. It was precisely from the inclusion of these *milder*

cases into the total number, that the CDC came up with the estimate of 1-in-150

US children with some form of *autism/ASD.*

 

So, if Bailey does not have ASD, then the number of *autism* cases is well

below the 1-in-150 mark and needs to be revised downward (the CDC once

estimated that 40% of ASD cases were *non-autistic* in the classic sense).

 

What*s more, Bailey does not have a *mild* form of ASD -- he struggles every

day with endless challenges. He receives autism services in his home state

and attends a special school for children with autism. Bailey was also

completely eligible to file a case in the Court*s Omnibus Autism Proceedings

(OAP),

along with 5,000 other claims.

 

And besides, if the government chooses after-the-fact to argue that Banks

simply has another form of brain damage but not, specifically *autism,* is

that really any comfort?

 

This particular theory of causation -- Vaccine-to-ADEM-to-ASD -- is

different from the three cases that lost, and different than the theory in the

Hannah

Poling case (vaccine-induced aggravation of an underlying mitochondrial

dysfunction caused full-blown autism).

 

So we now have two novel theories of how vaccines might contribute to ASD --

both ADEM and mitochondrial dysfunction are recognized by the Court as

contributing factors.

 

And yet the government insists it has never made an award for vaccine

induced ASD, just vaccine related ASD.

 

**The government has never compensated, nor has it ever been ordered to

compensate, any case based on a determination that autism was actually caused

by

vaccines,** said David Bowman, a spokesman for HHS*s Health Resources and

Services Administration. **We have compensated cases in which children

exhibited

an encephalopathy, or general brain disease. Encephalopathy may be

accompanied by a medical progression of an array of symptoms including autistic

behavior, autism, or seizures.**

 

**Some children who have been compensated for vaccine injuries may have

shown signs of autism before the decision to compensate,** he added, **or may

ultimately end up with autism or autistic symptoms, but we do not track cases

on

this basis.**

 

Unfortunately, the track record on vaccines is cloudy in this particular

Court: Three out of four ADEM cases have been successful; and (at least) two

out

of five ASD cases have also won.

 

People will argue that ADEM is rare; that vaccines *only* caused PDD in

Bailey; and that this was a legal and not scientific decision. The problem is

we

don*t know how prevalent ADEM is because we never looked; while *PDD* is

interchangeable with *ASD* in the language of public health. And, the three

cases

that lost were also *legal* decisions.

 

Robert Kennedy, Jr. and I would love nothing more than to reassure parents

that the nation*s current vaccine program is 100% safe for all kids, and that

zero credible evidence has been presented to link vaccines with autism. But

that simply isn*t true -- as at least two court cases have found.

 

Autism

 

ANOTHER AUTISM CASE WINS IN VACCINE COURT

By Robert F. Kennedy, Jr.

 

On February 12, the federal **Vaccine Court** in Washington issued a

sweeping ruling in three highly touted **test cases** against fami...

 

 

 

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