The Cedillo Decision
["They created the Vaccine Court to keep us out of
civil court."]
The Cedillo Appeal – Justice Delayed
By Kent Heckenlively, Esq.
http://www.ageofautism.com/2009/08/the-cedillo-appeal-justice-delayed.html
August 17, 2009
There’s an old story about how people act when they’ve made up their mind and
don’t want it changed. A guy goes to his neighbor’s house and asks to borrow
his lawnmower. The neighbor says he’s really sorry but he lent it to his
cousin. The guy replies he just saw the lawnmower in the neighbor’s garage as
he was walking over. The neighbor responds, “What does the reason matter? I’m
not going to let you borrow my lawnmower anyway.”
Reading the decision in the Cedillo appeal gives me a greater appreciation of
that story. It doesn't seem to matter what's presented, the Special Masters are
still going to deny any connection between vaccines and autism.
The Cedillo case depended a great deal of the identification of the measles
virus discovered in an intestinal biopsy taken from Michelle Cedillo and
analyzed by the Unigenetics Laboratory of Dr. John O’Leary. The court agreed
that “the general reputations of Unigenetics and Dr. O’Leary are good.” (P. 11)
It also agreed that the reliability of the Unigenetics Laboratory was “the
single-most critical issue in the case.” (P. 10)
There was discussion of other studies, namely the Uhlmann study which supported
the finding of a measles infection in the guts of children with autism, and the
Afzal and Souza studies which did not support those findings. The main
criticism of the Uhlmann study by the Souza group was the contention that they
used primers which were not specific to positively identify the measles virus
and mistakenly identified human genetic material as the measles virus. There
were other criticisms of the Unigenetics findings, raising questions of DNA
contamination and reliability.
In a legal case each side will generally say that the other side’s evidence is
not reliable. It’s to be expected.
On the issue of DNA contamination, though, the testimony was pretty clear that
DNA contamination is an issue only if there are relatively low numbers of the
virus detected. Michelle Cedillo’s test results showed high levels of the
measles virus, and thus even from the testimony, should not be something cited
by the Special Masters in their review. On the issue of reliability, it’s
curious that while the court admits that the general reputation of the lab and
Dr. O’Leary are good, they unaccountably failed in this instance. (Author's
note - The U.S. government later hired Dr. John O'Leary to set up two labs for
the Hornig/Lipkin study on the prevalence of the measles virus in the guts of
children with autism. Amazing how one day the government is trying to destroy
your reputation and soliciting your help on another.)
But the expert witnesses for the Cedillos also had their opinions on the Afzal
and Souza studies. (The Afzal and Souza studies went against the claim that the
measles virus was related to autism.) They noted that those studies relied on
red blood cells rather than a gut biopsy for running their tests. The Cedillo
experts claimed that the measles virus wasn’t replicating in blood cells, only
in those areas like the gut and the brain, causing both the digestive and
cognitive problems. But doing intestinal biopsies on children with autism is
one of the very procedures which got Dr. Andrew Wakefield in such trouble,
resulting in claims he was performing unnecessary procedures.
And this is where the independent judgment of the court is supposed to come in.
One side says you didn’t perform the tests the way you should. That's fair game
and deserves to be explored. The other side says, you can’t find the measles
virus in the red blood cells of affected children, only in the gut which you can
biopsy, or the brain, which short of an autopsy, is exceedingly difficult. You
should consider that claim as well.
But that didn't happen in the Cedillo case. The Special Masters accepted one
side, and paid no attention to the other. I acknowledge these are confusing
issues, but where's the evidence disputing the claim that measles virus is not
present in red blood cells, but only affected organs? The Court acted as if
these issues weren’t even worthy of consideration. And if Dr. O'Leary's lab was
so incompetent in detecting the measles virus, why did our own government later
hire him to set up two such labs?
A similar narrowness of vision was present in other parts of the decision. The
third criterion to be satisfied to obtain recovery is a “proximate temporal
relationship between vaccination and injury.” The medical records for Michelle
Cedillo are actually quite compelling in establishing a short time period
between her vaccinations and the development of her problems.
“A May 2, 1997 letter from an Arizona neurologist, Dr. William Masland, deserves
particular mention. After examining Michelle Cedillo on May 2, 1997, Dr.
Masland noted that Michelle lost her speaking ability after her post-MMR fever
episodes. He further stated ‘it would appear that there was some neurological
harm done at the time of the fevers.’ He added, ‘whether this was a
post-immunization phenomenon or a separate occurrence, would be very difficult
to say.’ The Special Master concluded that Dr. Masland’s letter, at most,
speculated as to whether the MMR vaccine was causing Michelle’s neurologic
abnormality and did not constitute an opinion that the MMR vaccine caused
Michelle’s autism.” (P. 20-21)
This last sentence turns the standard for recovery on its head. It wasn’t the
role of the neurologist to say the MMR vaccine caused Michelle’s autism! He was
acting as a physician, an independent observer, noting the timing of various
occurrences and his own opinion. Since the linking of vaccines to autism is
probably the most contentious issue in medicine today, it seems as if he was
being cautious, but thorough. The decision as to whether vaccines are linked to
autism rightfully belongs to either a court, or medical research done pre and
post vaccination for children who are normally developing and those with
autism.
How can the court claim it was the place of the examining neurologist to assert
this was definitely a vaccine injury? That would have been too great a
presumption for him to make. He was merely preserving a record, not settling the
most controversial issue in medicine. If he had said the MMR shot definitely
caused Michelle Cedillo's autism I have little doubt the Special Masters would
have thrown out his report as being without proper foundation.
As an attorney I can't overstate the importance of the impartiality of the court
in determining the truth of a claim. There's nothing more corrosive to a
society than injustices which are allowed to continue. It's little surprise
that many protesters who feel themselves to the be the victims of injustice
carry signs which read, "No justice, no peace!" Injustice tears at the very
fabric of society.
I know this will be disputed by some, but the fault in Cedillo wasn’t with the
evidence, or the way the attorneys presented the case. The fault was with the
Special Masters and may lie in a prejudice that even they don’t fully
appreciate.
Like the neighbor who doesn’t want to part with his lawnmower the Special
Masters don’t want to acknowledge that vaccines may be linked to a condition
which in twenty-five years has gone from 1 in 10,000 to 1 in 100. It doesn’t
matter what we present to them. That lawnmower will still stay in the garage.
If there's any good to be found in the denial of the Cedillo appeal and others
it's that there's no longer any need to remain in Vaccine Court. The claims can
now move into the civil trial system with more favorable rules of discovery and
evidence. I know the attorneys and their families must be both financially and
emotionally exhausted but I strongly urge this effort to continue.
I believe a change in neighbors, from the Vaccine Court to the regular civil
trial system, can bring us our long-sought justice. It's what the
pharmaceutical companies have been dreading for more than 20 years. They
created the Vaccine Court to keep us out of civil court.
It is now within the power of those representing these cases to make the worst
nightmares of the pharmaceutical companies come true.
The full text of the opinion is
HERE.
Kent Heckenlively is a Contributing Editor to Age of Autism