Omnibus Autism Alert

March 23, 2009

Click here to view the Cedillo decision

In 1994, Barbara Snyder filed a claim alleging a rubella vaccine caused her to suffer chronic arthralgia (joint pain) and fibromyalgia. Barbara died on April 28, 2005 before a decision. On May 6, 2005, eight (8) days after Barbara's death, a special master issued a decision denying her claim. Conway, Homer & Chin-Caplan appealed the case on behalf of her estate. On February 9, 2006, Judge Thomas Wheeler of the U.S. Court of Federal Claims reversed the special master's decision, based upon the opinions of Barbara's treating doctors contained in her medical records. He ruled that Barbara's estate was entitled to compensation for Barbara's medical expenses, lost earnings, and pain and suffering. Judge Wheeler sent the case back to the special master to calculate compensation for these items. He also directed the special master to determine if Barbara's death was so due to the vaccine, thereby entitling the estate to the statutory $250,000 death benefit. The special master then determined that Barbara suffered damages of $554, 323 during her life time for lost earnings, medical expenses, and pain and suffering. He also decided that Barbara's death was due to the vaccine, but that the estate was only entitled to the $250,000 death benefit (not the additional $ 554,323 in "living" damages). Once again, the case was appealed to Judge Wheeler, who awarded the estate the entire $804,323. The government appealed the Federal Circuit Court of Appeals. On February 12, 2008, fourteen (14 years) after the petition was filed, the Court of Appeals ruled that the "plain language" of the Vaccine Act says that the estate is entitled to the full $804,323.

The post-hearing brief in Cedillo v. Sec'y of HHS, the first autism test case, is 264 pages long. In it, Michelle argues that vaccines caused her many injuries, including autism. The brief summarizes Michelle's medical history, the opinions of 17 expert witnesses, and much of the scientific literature upon which they rely. It also describes the purposes of the Vaccine Program, prior decisions in the Vaccine Program, and the relaxed standards of proof for a petitioner. The respondent's response is due on January 11, 2008. Michelle will have an opportunity to reply to the responent's response. Her reply is due February 11, 2008.

On March 9, 2006, in a clear victory for petitioners in the Vaccine Program, the Federal Circuit Court of Appeals issued Capizzano v. Sec'y. The Court held, once again, that petitioners need not present peer-reviewed scientific literature to prevail. It is enough, the Court said, if a petitioner provides a medical theory linking an injury to the vaccine, a logical sequence of cause and effect between the vaccine and the injury (significantly, the Court found that the opinions of treating doctors should be given great evidentiary weight when considering the logical sequence of cause and effect), and an appropriate temporal relationship between them. This can be accomplished, the Court stated, by medical records or by an expert opinion. Peer-reviewed literature, pathological markers, rechallenge and general medical acceptance, are unnecessary. Once a petitioner has provided this information, the Court said, he or she will be compensated unless the government show the injury was caused by something else. In the past, special masters have discounted the opinions of treating physicians unless they were supported by peer-reviewed scientific literature.

On February 24, 2006, Special Master Laura Millman ruled that a hepatitis B vaccine caused an adult woman to suffer transverse myelitis (TM), a serious neurological, demyelinating disorder. The evidence in this case was stronger than most, because the petitioner suffered two separate episodes of TM after two separate hepatitis B vaccines (a "challenge/rechallenge" case). However, significantly, the Special Master also found probative value in a variety of pieces of circumstantial evidence, such as an appropriate temporal relationship between the vaccines and the episodes of TM, the absence of another likely cause, similar case reports, the opinions of the petitioner's treating doctors, and other cases of vaccine-related TM filed in the Vaccine Program. This decision, we believe, bodes well for numerous other petitioners who allege that a hepatitis B vaccine caused a neurological demyelinating disorder.

In a landmark decision by the Court of Appeals for the Federal Circuit, the Court lightened the burden of proof for petitioners in the Vaccine Program.

Please read the following message for an important announcment regarding any potential autism claim!

Please check your client log-on status for a recent update on February 5, 2008.

Special Master Millman has found that the hepatitis B can cause transverse myelitis (see, Stevens v. Sec'y of HHS), GBS (see, Peugh v. Sec'y of HHS), CIDP (see, Gilbert v. Sec'y of HHS) and MS (see, Wedertish v. Sec'y of HHS). All the foregoing cases can be located under the "Decisions" tab at this website.

People thought to be injured by influenza vaccines given annually will be eligible for compensation under National Vaccine Injury Compensation Program (VICP), effective July 1, 2005.