Intimidation in the Court by F. Edward Yazbak MD

Intimidation in the Court

http://www.vaccinationnews.com/intimidation-court

Writers never want to bore their readers. After publishing my original three papers on the Cedillo case, Double Standards[1], Busting Rules[2] and Translation in the Court[3], I felt it was time to leave further discussion of the case to others.

I was flattered and certainly grateful when John Stone kindly mentioned the three publications in his widely read Age of Autism[4] column on November 8, 2010. The many comments that Stone’s column generated were very interesting; one on November 10 touched a sensitive cord:

“The question should be asked not why Fombomme was treated with such reverence but why the opposing views and the people are treated to disrespect.”

The following comments will focus on what happened to the very first expert witnesses who dared to testify for the petitioner in Theresa Cedillo and Michael Cedillo, as parents and natural guardians of Michelle Cedillo v. Secretary of Health and Human Services - No. 98-916V.

Before doing that, it may be worthwhile to review the original statement in the vaccine injury compensation law on how the hearings were to be conducted[5]:

“… (2) The special masters shall recommend rules to the Court of Federal Claims and, taking into account such recommended rules, the Court of Federal Claims shall promulgate rules pursuant to section2071 of title 28. Such rules shall –

(A) provide for a less-adversarial, expeditious, and informal proceeding for the resolution of petitions…” (p. 12)

“Less adversarial” and indeed often cordial was the way hearings used to be conducted. I clearly recall my personal experience in two vaccine injury compensation cases, not too long ago.

The first was in the fall of 2001, shortly after the 9/11 tragedy when Court Houses were still closed for security reasons. I was the medical expert for the petitioners, in a case where the infant expired shortly after vaccination.

The hearing was held in a hotel suite in Boston and I drove up to the hearing. The Special Master and her Executive Assistant had arrived by train the evening before and the expert for the DOJ, a distinguished professor of pediatric infectious diseases had flown in early that morning.

The Special Master sat at the head of the beautiful large rectangular wooden table, we sat with our backs to the large windows and the DOJ team sat across the table.

Everyone greeted everyone else, the tone of the whole proceeding was very civil and it was all over by mid-afternoon.

The Special Master thanked us all and adjourned the hearing. As we started packing our laptops and documents, the mother of the deceased infant, apparently touched by the proceedings and the way she was treated, pulled out her camera and asked us to stand together for a souvenir photograph. We were all somewhat surprised at the request but no one objected. We walked around the conference table to join the Special Master and the respondent’s team and the young mom snapped two photos, as I recall.

The Special Master and her executive assistant immediately left to catch their train to Washington, the attorneys and the family followed and I stayed back to talk with the HHS medical expert. We certainly did not feel like opponents. We were simply two physicians with similar interests, talking cordially, and we felt we had just served justice ... as best we knew how.

When we were done, I offered to drive my distinguished colleague to the airport. He thanked me profusely and told me that a medical school classmate was on his way to pick him up and take him out to dinner before his evening flight. We shook hands and I told him how honored I was to have met him at last. Looking back, the only marginally upsetting experience that day was driving out of town at rush hour.

My other case was in 2003 in Washington DC, coincidentally in front of the same Special Master. The DOJ attorney was thorough yet soft spoken and kind. The main expert for HHS was a knowledgeable and very well trained pediatric neurologist from a nearby state who had over 400 children with autism in his private practice.

Here again, the proceedings were very civil, we were done by late afternoon and everyone said Good Bye before departing.

I walked over to my “opponent” to shake his hand and we spent several minutes talking about his practice and what he perceived as being his greatest challenges.

When we were done, he must have known that had we not been located 500 miles apart, I would have certainly asked him to accept one more patient in his very busy practice, my own grandson.

These were the good old days … indeed!

Now let us fast-forward …

A few months ago, I presented two long and detailed reports about a vaccine injury compensation case. The Special Master requested more information about the references I cited and I added a third detailed report.

The expert for the respondent, a university professor, responded with a very long CV and a short report about the case that included personal comments about me and about the fact that I had published “five opinion pieces not important enough to have abstracts attached” (very much like this one). Just for fun, I looked up his Pub Med publications: 12 of his 27 articles had no abstracts either.

Unlike the majority of vaccine injury compensation hearings, the Cedillo case was heard in the Ceremonial Courtroom, National Courts Building, Washington D.C; the three Special Masters faced the audience and the legal teams sat at their own tables, DOJ attorneys to the left and the petitioners’ legal team to the right.

The audience sat behind a beautiful and ornate wooden banister that went across the room, the Government’s experts and guests on the left and the petitioners’ on the right.

The Cedillo hearing started on June 11, 2007.

After opening remarks, the plaintiff’s attorney called her first expert, Dr. H. V. Aposhian[6] to the stand. His testimony was honest, accurate and understandable, in spite of difficulties with the loud speaking system. When he was done, the meeting was adjourned for lunch.

The following is a summary of Dr. Aposhian’s training and achievements according to the EPA.[7]

H. Vasken Aposhian received a Sc. B. in Chemistry from Brown University and an M.S. and Ph.D. from the University of Rochester. He has been a faculty member of the Department of Pharmacology, Vanderbilt University College of Medicine; Department of Microbiology, Tufts University College of Medicine, and Department of Pharmacology, University of Maryland College of Medicine. Since 1975, he has been Professor of Molecular and Cellular Biology and Professor of Pharmacology at the University of Arizona. He has extensive research experience and publications dealing with the toxicology of heavy metals, in particular arsenic and mercury. This has included enzymology of arsenic biotranformation; the study of human populations in Chile, Inner Mongolia, Romania, Mexico and rural Southwest China as to their body burden of arsenic or mercury; the human metabolism of chelating agents; and the biochemical genetics in particular gene transfer in mammalian cells. His laboratory, at present, is searching for biomarkers for autism using the latest proteomic techniques and trying to decipher the polymorphisms in the human gene for human glutathione-S-transferase-omega a crucial enzyme that reduces arsenic species. His teaching responsibilities involve teaching human toxicology to a small class of seniors. Dr. Aposhian is a member of the Society of Toxicology; the American Society Of Biological Chemistry And Molecular Biology; and the AAAS. He has recently given invited seminars at the EPA, the Health Realties Institute, WHO/NIEHS meeting on Environmental Health of Children in Central Asia held in Amity, Kazakhstan, Grand Rounds of the Tucson Medical Center and the Canadian Chemistry Conference.

Dr. Aposhian is on the Editorial Board of the American Chemical society journal Chemical Research. He participated in the writing of the NAS/NRC monographs on “Arsenic in Drinking “Toxicology Of Methyl Mercury”. He has served on numerous NIH, EPA and FDA ace Research Foundation (NIEHS) and the Autism Research.

I do not think one needs to be a Ph.D. to concede that a distinguished scientist with this education and achievements was qualified enough to testify as an expert on mercury toxicity anywhere in the world.

When the hearing reconvened, the Attorney for DOJ started her cross-examination.

Now again, this was an important hearing and a high profile case; the courtroom was full, and hundreds of people were listening by phone. Furthermore, the transcripts were definitely going to be reviewed and an appeal was certain regardless of the decision. After all, 5,000 cases depended on the outcome of this and the other two test cases.

Yet right out of the gait, the DOJ attorney fired an intimidating question only intended to get the witness rattled and “off balance”. (p. 117)

Q. Good afternoon, Dr. Aphosian. Dr. Aphosian, you are not a medical doctor are you?

A. Could you speak louder? I can’t hear you. Please?

At this moment, plaintiff’s attorney interrupted to inquire who the gentleman sitting at the Respondent’s counsel table was. She was told it was Dr. Jeffrey Brent.

[Jeffrey Brent, MD, PhD, a medical toxicologist and Clinical Professor of Medicine at the University of Colorado, testified for the respondent.]

It should be mentioned that it is quite unusual for an expert witness to be at counsel table when an expert for the other side is testifying; yet this happened again and again during these proceedings but never in the plaintiff’s corner.

Q: (Repeated) “Dr. Aposhian, are you a medical doctor? (p. 118)

A: No. I'm not.

Q: Are you a medical toxicologist?

A: It depends how you define the term medical toxicologist. What is your definition?

Q. My definition would be someone who has an M.D. and an expertise in toxicology.

A. I am not a medical toxicologist.

Q. Are you an immunologist?

A. I am not an immunologist…

Q. You are not a neurologist. Is that correct?

A. I am not an M.D., so I can’t be a neurologist.

Q. You don't know how measles virus affects the brain?

A. I spent 10 years of my research studying virology. I have papers published in the Journal of Virology. I was the first one to show that a virus could transfer genetic information that was not in it originally…

Q. You are not a geneticist, are you?

[At home, listening comfortably, I smiled and whispered “oops”]

A. I am considered to be a biochemical geneticist. The man I worked with for three years at Stanford University got the Nobel Prize for studying while I was with him, for determining how DNA was synthesized and was the first one to synthesize an active - a biologically active DNA molecule. So from the year 1959 after I also went to Tufts University School of Medicine to teach to 1967 I was strictly a biochemical geneticist…

A while later, the attorney came back: (p. 124A)

Q. Have you ever treated or diagnosed a person with any form of ethyl mercury toxicity?

A. I am not a physician so I would not treat anyone

Q. So you’ve never treated or diagnosed a person with any form of mercury toxicity?

A. I have been asked my advice by physicians …

And on and on and on ... until the exhausted witness said (p. 202):

“Is it all right if I just stand up and stretch for a minute?”

Special Master Hastings: Go ahead.

DOJ Attorney:   I am almost done, but we can take a break, if you would like to.

The witness: Thank you

Special Master Hastings:   Doctor, let me take this time to apologize to you too.

Here we are trying to get you to speak up, and it turns out your microphone wasn't in proper working order, so I apologize.”

The DOJ attorney took a breath and went on asking the witness about Thimerosal research including the Pichichero paper[8] and the “half-life” of injected Thimerosal.

Q: You said that there was a flaw with that study, that you can’t compare autistic children who receive vaccines, as to the half-life of ethyl mercury in their blood. Is that correct?

A: What I did say, I believe, was that autistic children, if they have mercury efflux disorder, would have different toxicokinetics and that the data in normal children may not be applicable at all to a child who cannot get rid of mercury …

I remember wondering at the time why the attorney for the respondent chose to end her cross-examination with that particularly weak study published in late 2002. The Rochester investigators had examined blood, urine and stool specimens of 40 children who had received thimerosal-containing vaccines and compared them with those from 21 children who had received thimerosal-free vaccines.

It is impossible to guess why the DOJ attorney chose to quote the researchers’ estimate that the “blood half-life of ethylmercury was 7 days (95% CI 4-10 days)”?

May be she was impressed by their interpretation that: “Administration of vaccines containing thiomersal does not seem to raise blood concentrations of mercury above safe values in infants. Ethylmercury seems to be eliminated from blood rapidly via the stools after parenteral administration of thiomersal in vaccines.”

But the fact is that she totally missed the most important sentence in the abstract: “We obtained samples of blood, urine, and stools 3-28 days after vaccination.”

In most studies of this kind, the study protocol clearly outlines how and when specimens are to be collected: Certainly always at precise and clearly outlined intervals starting a short time after vaccination.

In this study, there was only a single and convenient blood draw: Parents of 2-month-old infants brought them back once, when they pleased and at their convenience, between 3 and 21 days following vaccination and parents of 6-month-old infants brought them back, again when they could, just once between 3 and 27 days post-vaccination.

Apparently no one in Rochester, where the study was done, or in Washington DC at the hearing, wondered where the mercury went every hour following vaccination or every day of the following four weeks. Was it likely to still be going around and round in the blood waiting for its half life and then whole life to end or was it more likely to have settled in tissues including the brain?

Cross-examination of the witness ended after a while and Special Master Hastings ordered a short break (p. 211A).

When the hearing reconvened, Special Master Hastings announced: “All right folks. We’ll be starting again here if everyone will take his position. Dr. Aposhian, you are still in the hot seat, I am afraid.”

I remember wondering about the choice of words. The exhausted witness must have too … as he murmured: "Still?”

The Special Masters asked more questions and then the hearing was adjourned.

The same thing happened during the cross-examination of the following expert witness, Michelle’s gastro-enterologist Dr. Arthur Krigsman. This time, the DOJ attorney was the same attorney who had been so effusive about Dr. Eric Fombonne’s accomplishments.1 3

Several other experts for the plaintiff also received a similar treatment.

In spite of the clear language of the vaccine injury compensation law, the Cedillo hearings were anything but “less-adversarial”.

That was unfortunate for Michelle Cedillo, for many others who are waiting and ... for JUSTICE!

References

[1] http://www.vaccinationnews.com/double-standards-f-edward-yazbak-part-1-3-0

[2] http://www.vaccinationnews.com/busting-rules-f-edward-yazbak-part-2-3

[3] http://www.vaccinationnews.com/translation-court-F-edward-yazbak-part-3-3

[4] http://www.ageofautism.com/2010/11/how-reliable-were-eric-fombonne-and-stephen-bustin.html

[5] http://www.hrsa.gov/vaccinecompensation/authorizinglegislation.pdf

[6] ftp://autism.uscfc.uscourts.gov/autism/cedillo/transcripts/day01-cor.pdf

[7] http://yosemite.epa.gov/sab/sabpeople.nsf/WebPeople/AposhianH.%20Vasken?OpenDocument

[8] Pichichero ME, Cernichiari E, Lopreiato J, Treanor J. Mercury concentrations and metabolism in infants receiving vaccines containing thiomersal: a descriptive study. Lancet. 2002 Nov 30;360(9347):1737-41.

F. Edward Yazbak MD
Falmouth, Massachusetts