The Clear Legal Basis that Vaccines Cause Autism
By: J.B. Handley, Jr.
There are only a few people in the world I believe could end the autism epidemic single-handedly. The director of the CDC would be one, the president of the American Academy of Pediatrics probably another. Dr. Andrew Zimmerman, the former director of medical research at the prestigious Kennedy Krieger Institute at Johns Hopkins University, would be the third.
For years Dr. Zimmerman served as a go-to expert in “vaccine court” to dispute parental claims that vaccines caused their children’s autism. And as the reigning national expert on the topic of autism in the scientific community, Dr. Zimmerman’s opinions held tremendous weight: His written testimony helped deny the claims of the families of more than five thousand children with autism during an Omnibus Autism Proceeding in 2009 in vaccine court, as I will explain in a moment.
In the late 1990s a young doctor fresh out of medical school joined the Kennedy Krieger Institute in Baltimore as a resident and worked closely with Dr. Zimmerman. His name was Jon Poling. In 2000 Dr. Poling’s nineteen-month-old daughter, Hannah, experienced a massive regression into autism after her vaccinations, much as happened to my son. Unlike my son, Hannah’s parents had access to the most sophisticated autism research center in the world, and Dr. Zimmerman and several of his colleagues, including Dr. Richard Kelley, who was serving as director of Kennedy Krieger’s laboratory, tried to figure out what had happened to her, and why.
Of course, everyone at Kennedy Krieger initially approached the idea that vaccines had played a role in Hannah’s regression skeptically, including Dr. Poling himself. He was a decidedly mainstream neurologist, having attended Georgetown to get both his MD and PhD. He and his wife Teri had fully vaccinated Hannah, and he’d explain many times over the next few years that he wouldn’t have believed it if he hadn’t seen it himself.
Through an unexpected series of events, Dr. Poling and Dr. Zimmerman, colleagues at the most prestigious autism research facility in the world, nearly ended the autism epidemic in 2008. Because of Hannah Poling, Dr. Zimmerman became convinced that vaccines are indeed capable of causing autism under certain circumstances, representing a change in his previously held positions. Like any good scientist, Dr. Zimmerman appeared willing to go where the evidence took him, even toward something as inconvenient as a vaccine-autism connection.
Dr. Zimmerman’s professional opinion about what caused Hannah’s autism, given the tremendous weight he carried within the scientific c community and his long-time role as an expert witness, triggered a panic at both the CDC and the Department of Justice. It led to a quick twenty-million-dollar settlement with the Polings in 2010, but not before Hannah’s story became worldwide news.2
I’ve always had so many questions about the Hannah Poling case, Dr. Zimmerman, Dr. Kelley, and Dr. Poling. Soon after the news spectacle, the Polings disappeared from the public, never to be heard from again. Sources have told me that the Department of Justice made it clear to the Polings that if they wanted to receive their vaccine court compensation, they needed to keep quiet. They appear to have complied.
Very recently, however, Drs. Zimmerman and Kelley privately agreed to serve as expert witnesses in the first vaccine injury trial of any kind in a regular courtroom in more than thirty years. The trial is a medical negligence case in Tennessee, alleging that a pediatrician allowed a child to develop autism by vaccinating him when there was clearly excessive risk, based on previous reactions he’d had to vaccines. The boy’s name is Yates Hazlehurst, and he was one of three “test cases” in the aforementioned Omnibus Autism Proceeding back in 2009—only a year prior to the DOJ’s settlement with the Poling family—a case that was lost partially based on the written testimony of Dr. Zimmerman.3
Drs. Zimmerman and Kelley, under oath, provided depositions for the trial as expert witnesses. What’s significant is that in the future they would be testifying on behalf of the Hazlehurst family, confirming that in Yates’s case, vaccines caused his autism. Yes, you read that right. In 2009 the Omnibus Autism Proceeding concluded that Yates Hazlehurst’s autism was not caused by vaccination, a decision based partially on Dr. Zimmerman’s testimony—and a decision that, significantly, served as the basis for denying claims to more than five thousand other children.
Fast forward to 2017, and Drs. Kelley and Zimmerman are expert witnesses for the same child, and they are both saying, “with a reasonable degree of scientific certainty,” that vaccines caused Yates’s autism.
Confused yet? I know I was. Let’s start at the beginning.
The “Vaccine Court”
If vaccines cause autism, you’d think “vaccine court” would be a great place to find the evidence for it. Compensated claims typically include extensive details about timelines, medical tests, and doctors’ opinions. They read more like case reports in medical journals than legal settlements.
Established through the National Childhood Vaccine Injury Act of 1986, the original purpose of the vaccine court (officially called the United States Court of Federal Claims special masters) was to quickly and expeditiously pay any claims made by American citizens for vaccine injury. The vaccine court is buried within the Department of Health and Human Services (HHS), and when you petition the vaccine court because of a vaccine injury, you’re actually suing the federal government, and the lawyer representing the government (and therefore opposing your claim) will be a Department of Justice lawyer. Due process in vaccine court is nonexistent. there’s no jury, just a single court-appointed “special master” who hears your case and makes a decision.
Since 1989, when the vaccine court began to operate, these special masters have awarded more than $3.8 billion to vaccine-injured Americans (children and adults).4 Of the total cases filed since the court came into existence in 1998, there have been twelve hundred claims filed for death and eighteen thousand filed for injury. The DTP vaccine is the most common vaccine for claims to be filed against, with MMR in second place. Of the people who file claims with the court, approximately 34 percent end up receiving compensation; 2017 was actually the single biggest year for claims paid, with just over $282 million.
Rolf Hazlehurst, an assistant attorney general from Tennessee, has been an outspoken critic of the vaccine court, particularly since he had to fight his way through it as a claimant on behalf of his son Yates, who he believes developed autism as a result of his vaccinations. In a memorandum to the US Congress in 2013, Rolf Hazlehurst described the court:
Vaccine court is not a court of law. It is an administrative proceeding in which the most basic rules of law do not apply. In vaccine court, the Rules of Discovery, Evidence and Civil Procedure do not apply. There is also no judge or jury. In vaccine court, the American legal system has been replaced by what is known as a special master. A special master is an appointed government attorney.5
Why Does the Vaccine Court Exist?
This may seem like an elementary question, but it’s not. The purpose of the vaccine court is to protect the vaccine program, not to monitor vaccine safety or mete out justice. The year the vaccine court began operating—1989—is important to this story, because that’s also the birth year many point to as the beginning of a meteoric rise in the number of children with autism. Three other potentially monumental things happened in 1989: the hepatitis B vaccine was licensed, the Hib vaccine was licensed, and, for the first time, a second dose of the MMR vaccine was recommended for all American children.
When the vaccine court was established in 1986, there were only three vaccines given in the United States—DTP, polio, and MMR—and vaccination rates hovered between 50 and 60 percent nationally.6 Today, there are eleven vaccines for children, given in multiple doses, with vaccination rates hovering around 90 percent nationally. There is an enormous difference between the market the vaccine court was created to “protect” and the market today. In raw numbers there are
nearly four times as many vaccine doses given each year to children than there were in 1986, even though the US population has only grown by 0.3 in that same time period.
Beginning in 1989, the US vaccine schedule quickly morphed from the one the vaccine court was created to support to a far larger schedule with more complexity. This isn’t a coincidence;
the vaccine court removed all liability from vaccine makers, greatly altering the risk/reward calculation in their favor.
When the court was established, the word “autism” was never even discussed. By the late 2000s autism almost brought the entire court, and the vaccine program, to a screeching halt.
Changes Make It Nearly Impossible to Win Claims
Few people know that the vaccine court amended its rules in 1995 to make it harder to win a claim in vaccine court, largely due to the increasing number of claims made as the vaccine schedule became bloated. By revising its Vaccine Injury Table—a list of “accepted” injuries from various vaccines, the court quietly made the standard for proving a vaccine injury much higher. As one simple example, claims for DTP shots causing brain injury were paid on roughly 25 percent of filed cases before the 1995 changes and only 5.4 percent of cases after the changes were made, a decrease of more than 80 percent.7 Testifying before Congress in 1999, Barbara Loe Fisher, the president of the National Vaccine Information Center, explained:
The principal reason why the Vaccine Injury Compensation Program has become highly adversarial and is turning away three out of four claimants is that the Department of Health and Human Services (DHHS), with the assistance of the Department of Justice (DOJ), has wielded its discretionary authority to all but eliminate a just list of compensable events in the Vaccine Injury Table, thereby destroying the guiding tenet of presumption.8
Recognizing vaccine injury is no easy task; few doctors are able to recognize any of the signs. As I first mentioned in chapter 2, the United States has a vaccine injury reporting system called the Vaccine Adverse Event Reporting System (VAERS) database. Estimates are that VAERS captures roughly 1 percent of all vaccine injuries.9 How many vaccine injuries actually make it into vaccine court? A fraction of a fraction of a fraction of 1 percent. (I can’t find any accurate data, but the number is clearly tiny or the vaccine court would have exploded in size.)
The burden is on the parents to track “adverse events,” despite the fact that pediatricians almost never explain all of the possible side effects. Parents might be told to expect redness at the injection site, swelling, maybe some fussiness or mild fever. Nothing some infant Tylenol can’t fix.
Perusing the website of a vaccine court attorney today, you can see how strongly the decks are stacked against those injured by vaccines. Richard Gage & Associates, one of the top vaccine lawyers in the country, lets potential clients know that “obtaining compensation for a vaccine injury is a complex, sometimes extremely difficult process.”10 Parents of a child who received compensation shared their view about what the experience was like:
DOJ [Department of Justice] attorneys were disrespectful and combative. . . . The Compensation Program should be about compensation and not about defense of the vaccine program.11
A critical report from November 2014 about the vaccine court produced by the Government Accountability Office (a federal agency) found the court wasn’t accomplishing what it had been purportedly created to do: to make vaccine injury compensation quick and fair.12 The report noted that most claims take “multiple years to adjudicate” with 51 percent taking more than five years.
Parents who have filed claims in the court report that the compensation program has an “adversarial environment” and
a statute of limitations (three years from the date of injuries being exhibited) that reduces the likelihood that parents can even file claims. This is far worse when it comes to autism, a condition that wasn’t even contemplated when the court was created.
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Originally Posted by fisharmor
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