Vaccine Court Abuse

by John M. Curtis
(310) 204-8700

Copyright March 14, 2010
All Rights Reserved.                                

            Ruling March 12 that the mercury-based preservative Thimerosol does not cause autism, the U.S. Federal Claims Court, AKA “Vaccine Court,” rejected claims of three families alleging mercury-laced vaccines caused their children’s autism.  Friday’s ruling echoes a 13-month-old ruling that mercury preservatives combined with the triple-dose measles, mumps rubella vaccine [MMR] does not cause autism.  Judges, known as masters, at the Vaccine Court bought defense arguments, focusing too heavily on scientific causation, ruling against the plaintiffs.  Judges should know that few lawsuits require 100% proof but instead rate cases on the relative proportions of liability.  Whether plaintiffs wish to admit it or not, autism is a multivariate disorder, whose etiology is not caused by a single factor.  Forcing plaintiffs to prove 100% scientific causation is unrealistic and unreasonable..

           All diseases have multiple contributory factors, including autism.  When considering damages from car accidents, judges and juries are often asked to determine relative causation, namely, the extent to which the car accident contributed to the plaintiff’s, let us say, back injury.  Pre-existing ruptured discs or genetic weaknesses are taken into consideration when awarding damages.  Autism is no exception, where genetic, biochemical, nutritional, neurological, environmental factors, etc., all enter the picture.  If the court only looks at what role the mercury or virus plays in causing autism, it misses the essential point of portioning liability in various lawsuits.  If a severe back injury arises from a car accident, the insurance company usually pays the damages, knowing the plaintiff did not require scientific tests or medical treatment before the accident.

            Debating the nature of injury, courts decide not one factor caused the injury but the multiple variables of possible causation.  If genetic predispositions, in-born weaknesses, neurological or biological imbalances contribute to the injury, a jury or judge must apply common sense to assessing damages.  Most courts don’t quibble about how a “straw breaks the camel’s back” but rather accept the reality that, no matter how slight, a straw can, indeed, cause the injury.  Likewise, no matter how insignificant, mercury-based preservatives or the actual viral loads from single, double or triple-dose vaccines can also contribute to the development of autism or a host of other neurobehavioral problems.  “Find me another industry where the U.S. government defends their products in court and finds the science that exonerates them,” said J.B. Hundley, founder of Los Angeles-based Generation Rescue.

            Writing for the court, Special Master Densie K. Vowell, concluded that the petitioners did not meet their burden of proof.  “Petitioners propose the effects from mercury [in vaccines] that do not resemble mercury’s known effects in the brain, either behaviorally or at a cellular level.  To prevail, they must show that the exquisitely small amounts of mercury in [vaccines] that reach the brain can produce devastating effects that the large amounts experienced prenatally and postnatally from other sources to do not,” wrote Vowell.  Vowell’s analysis sounds like it was written not by a judge by a vaccine-maker’s scientist for exculpatory purposes.  Citing convoluted scientific explanations indicate judicial misconduct, demonstrating extreme prejudice against plainfiffs’ cases.  Vowell, a Vaccine Court judge, shouldn’t parrot the vaccine-makers arguments, no matter how convincing.

            Scientific evidence, largely stemming from vaccine-makers, doesn’t invalidate the clinical findings or anecdotal stories of parents witnessing firsthand changes in their own children.  If vaccines were so safe, why would a vaccine-maker-funded court be created in 1986 to settle vaccine-related injuries?  Developmental and behavioral injuries stemming from vaccines should be given a fair hearing.  It’s not reasonable, as Vowell insists, to hold vaccines to a different standard than other contributing factors to injuries.  No one has to prove 100% causation in car accidents when insurance companies cover some degree of liability.  “This case . .  . is not a close case.  The overall weight of the evidence is overwhelmingly contrary to the petitioners’ causation theories,” wrote Special Master George Hastings.  Hastings must consider unfair advantage given to multibillion-dollar, publicly-traded vaccine makers

             No plaintiff making a case in Vaccine Court should be held to an impossible legal standard, requiring rigorous scientific proof.  Plaintiffs’ families don’t have multimillion-dollar research budgets or facilities to throw hard science at vaccine makers as the ultimate standard of proof.  Judges, too, in Vaccine Court must show more balance, allowing anecdotal or clinical evidence to suffice in proving injury claims.  When plaintiffs in auto accident cases claim back injuries, insurance companies don’t demand scientific proof to verify injuries.  Nor should Vaccine Court require plaintiffs to marshal scientific proof to prove claims.  Judges must take into account how scientific proof is used to deny injuries, when chemical substances, no matter how innocuous, contribute verifiable injuries.  Expecting plaintiffs to prove one-factor “causation” in autism is precisely the defense of vaccine makers.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.