Witnesses for Petitioners Are Often Tough to Find:
Few medical experts are willing to testify in vaccine court that shots can cause harm.

Mon, 29 Nov 2004 15:29:41 -0800


By Myron Levin, Times Staff Writer

The vaccine court can be a hostile place not only for petitioners but
for their expert witnesses too.

Take the case of Dr. Derek Smith. A neurologist and assistant professor
at Harvard Medical School, Smith had been retained to testify for people
with transverse myelitis, a potentially paralyzing neurological disorder.

Smith said he was "highly confident" that the tetanus vaccine could
trigger the ailment in certain vulnerable individuals. Officials with
the Vaccine Injury Compensation Program strongly disagreed.

Petitioners in vaccine court can have a tough time finding top experts,
in part because many doctors are reluctant to say vaccines can cause
harm. But Smith had no such qualms.

"He was so smart," said Sylvia Chin-Caplan, a lawyer for dozens of
victims of the neurological ailment. "I had somebody who had academic
credentials, who did research and had a clinical practice," she said.
"Those are the best people you can get."

Then Smith quit.

According to court papers and interviews, Smith decided to bail out
after complaints were lodged with his superiors by three other experts
with a long history of testifying for the government in vaccine court.

Smith had raised the ire of one of these men - Dr. Roland Martin, a
prominent researcher at the National Institutes of Health. The two had
gone head-to-head as opposing witnesses, and Martin claimed that Smith
had mischaracterized some of his research.

Early in 2002, Smith was informed by his supervisors, Dr. David Hafler
at Harvard and Dr. Howard L. Weiner of Brigham and Women's Hospital in
Boston, where Smith had his clinical practice, that people they
respected told them Smith "was ruining his reputation by his testimony
in the vaccine program," according to a document filed in vaccine court.

Wary of antagonizing people who could affect his career, Smith decided
to drop out after testifying in one last case, according to Chin-Caplan
and other sources.

Although there were no explicit threats, Chin-Caplan said Smith was told
in so many words that he was jeopardizing his access to research funding.

His loss "was really heartbreaking," Chin-Caplan said. She also
considered it a case of witness tampering.

Smith declined to be interviewed. None of the five other doctors - his
supervisors and the three government witnesses - would comment.

Nor would program officials discuss the propriety of their witnesses
contacting Smith's bosses. They said in a written statement that they
were "not privy to and cannot control professional interactions on the
part of VICP medical experts."

It was not the first time a key witness for petitioners was lost to
hard-nosed tactics. Another time, Justice Department lawyers persuaded
an expert to switch sides, helping them defeat a string of claims.

The cases involved children who suffered seizures and brain damage after
diphtheria-pertussis-tetanus, or DPT, vaccinations. But the children
also had a congenital condition - tuberous sclerosis, or TS - that could
trigger seizures by itself. The issue was whether the shot or only TS
was to blame.

Petitioners won a couple of these cases in the early 1990s, thanks to
testimony by Dr. Manuel Gomez of the Mayo Clinic, described in court
rulings as "the world's expert in TS."

Facing at least two dozen similar claims, the government mounted an
aggressive counterattack. It retained three experts who then published
three medical journal articles that supported the government's stand,
according to program records.

And without the knowledge of petitioners, government attorneys also
contacted Gomez, briefed him on the work of their other experts and
retained him as a defense expert.

Gomez was "the guru of tuberous sclerosis," said Robert Moxley, a
Wyoming lawyer for petitioners. His defection "was completely pivotal."
Like Chin-Caplan, Moxley described the government's actions as witness

In September 1997, Special Master Laura Millman issued a lengthy ruling
in the government's favor - basically finding that TS, not the vaccine,
is usually responsible when TS infants suffer seizures. Gomez, Millman
noted, had believed otherwise, "but in light of his more thorough
education in the literature (courtesy of respondent) he has changed his

Her ruling led to the defeat of most TS claims.

Contacted recently, Gomez said he had altered his opinion "mainly from
accumulated evidence." Otherwise, he said, "I don't think I have much to
tell you."

Millman's ruling was affirmed in 2001 by the U.S. Court of Appeals for
the federal circuit, which also found no proof of improper conduct in
the government's hiring of Gomez.