The Autism-Vaccine Courtroom Knockout Team · Jan 23, 07:00 PM

The Baltimore City Circuit Court’s December 2007 ruling in Blackwell v. Sigma Aldrich (Case 24-C-04-004829) represents the latest addition to a developing series of judicial dismissals of expert witnesses presented by plaintiffs alleging that administration of vaccines and thimerosal-containing medical products resulted in the development of autism in their children.

The Blackwell court’s exclusion of Dr. Mark Geier, Dr. Stephen Siebert, Dr. Elizabeth Mumper, Prof. Richard Deth, and Prof. Boyd Haley, closely follows several similar decisions:

June 2007: Redfoot v. Ascher (Case C:05-2045PJH, U.S. District Court for the Northern District of California) — Dr. Geier, Prof. Haley, Prof. George Lucier, Dr. Arthur Krigsman and Dr. James Jeffrey Bradstreet precluded from testifying in a case alleging autism causation by thimerosal-containing saline nasal spray.
July 2006: Doe v. Ortho Clinical Diagnostics (Case 1:03CV00669, U.S. District Court for the Middle District of North Carolina) — Dr. Geier, Prof. Haley and Prof. Lucier precluded from testifying in a case alleging autism causation by thimerosal-containing vaccines and RhoGAM injections.
November 2005: Easter v. Aventis (Case 5:03-cv-00141-TJW, U.S. District Court for the Eastern District of Texas, Texarkana Division) — Dr. Geier, Prof. Haley, Prof. Lucier and Dr. Bradstreet prevented from testifying in a case alleging autism causation by thimerosal-containing vaccines, RhoGAM injections, and power plant emissions.

Redfoot, Doe and Easter were federal cases; in each instance the court applied the standards for admissibility of scientific evidence established by the U.S. Supreme Court in its 1993 decision in Daubert v. Merrell Dow Pharmaceuticals. Pursuant to Daubert, parties to a federal case must demonstrate that the scientific studies or data upon which their experts rely are trustworthy — that is, they must be grounded in sound scientific principles and methodology — and that they are relevant to the task at hand.

In Redfoot, Judge Phyllis Hamilton ruled:

“[T]he court has found, however, that Dr. Geier’s testimony must be excluded because he is not qualified as a pediatrician, neurologist, toxicologist, or epidemiologist, and because his opinion is not reliable… [T]here is no evidence that Dr. Geier has either the training or the background to diagnose autism or to treat autism in any child… Drs. Lucier and Haley submitted no expert reports and are not A[…]‘s treating physicians… [E]ven though [Drs. Bradstreet and Krigsman] are A[…]‘s treating physicians, it appears that plaintiffs are seeking to have them offer true ‘expert’ opinion, about matters as to which they are not percipient witnesses, rather than having them testify about A[…]‘s diagnosis, treatment, or prognosis.”

In Doe, Judge James A. Beaty found that:

“[U]pon being subjected to extensive cross examination, much of Dr. Geier’s analysis, based upon his collective review of a motley assortment of diverse literature, proved, in the Court’s view, to be overstated… . For example, in examining Dr. Geier’s methodology, the Court notes that Dr. Geier could not point to a single study, including anything that he had published, that conclusively determined that the amount of thimerosal in RhoGAM when given not to the fetus but to the mother, as in this case, could cause autism… This Court must find more than the ‘hypothesis and speculation,’ engaged in by Dr. Geier in this instance, in order to allow Dr. Geier to rely upon the methodology he used in forming a conclusion based upon his review of the literature presented to the Court… [T]he Court finds that Dr. Geier’s literature review, in this instance, does not meet the Daubert standard of being both derived by the scientific method and relevant to the ‘task at hand.’”
“…[T]he Court is particularly concerned as to a potential bias in Dr. Geier’s methodology and ultimate conclusion given the recency of Dr. Geier’s research into the cause of autism, which he admittedly began in only the last two and a half years, a time period that also represents the pendency of this lawsuit… [T]he Court finds that Dr. Geier (1) was not specifically qualified to perform a differential diagnosis of a pediatric neurological disorder, and, that (2) he did not properly perform the differential diagnosis given his failure to consider within his analysis the high probability that an unknown genetic cause cannot be ruled out as the specific cause of Minor Child Doe’s autism.”
“Dr. Haley’s report does not state an expert opinion that thimerosal causes autism, rather just that he has a theory about how such a thing could happen… [T]he Court finds that neither of the proffered reports of Dr. Haley nor Dr. Lucier are sufficiently reliable under Daubert on the general causation issue because neither is relevant to the ‘task at hand.’ It would be an unacceptable scientific leap to suggest that they serve as proof, by a preponderance of the evidence, of Plaintiff’s claim that the thimerosal in RhoGAM can cause autism.”

In Easter v. Aventis (Case 5:03-CV-141, U.S. District Court for the Eastern District of Texas, Texarkana Division), Judge John T. Ward excluded the testimony of Dr. Jeffrey James Bradstreet due to the plaintiffs’ admission prior to trial that they were unable to prove that thimerosal had caused their child’s autism.

“[T]he court may look past some of the defendants’ specific critiques of Dr. Bradstreet — that he never examined Jordan before rendering an opinion of mercury poisoning and that he failed to insist on additional testing with respect to this particular child. On this record, what renders Dr. Bradstreet’s opinion inadmissible is the plaintiffs’ concession that they cannot prove that Jordan Easter’s autism was caused by thimerosal… The plaintiffs’ inability to prove that Jordan Easter’s autism was caused by thimerosal in this particular case renders suspect Dr. Bradstreet’s ability to utilize these studies [by Blaxill, James, Holmes, Bradstreet, and Hornig] to conclude reliably that thimerosal caused the co-morbid conditions independently from whatever caused the autism.”

(Since the plaintiffs had acknowledged that “specific causation” could not be proved, the Easter court found it unnecessary to address the reliability and admissibility of “general causation” experts Haley, Lucier and Geier.)

Also in 2004, a California court dismissed Prof. Haley’s testimony in People v. Altaire Pharmaceuticals (Case 2001-026727, Superior Court of California; cited in documents filed to Easter v. Aventis). In Altaire, Prof. Haley alleged that the amount of thimerosal contained in nasal sprays exceeded the maximum allowable dose level under California law. The court determined that Prof. Haley’s calculations were “not credible,” recalled that he “has no hands-on toxicology experience,” observed that his views on mercury’s “potential link to conditions such as autism have been disproved or discredited,” and deemed irrelevant the studies upon which he relied.

In making its December 2007 determination in Blackwell, the Baltimore court utilized the evidentiary standard articulated in the U.S. Supreme Court’s 1923 decision in Frye v. United States, which held that opinions expressed in court by scientific experts must be generally accepted in the relevant scientific community. (Although the 1993 Daubert decision articulated a more flexible standard of admissibility than in Frye, the Daubert decision is only binding in federal cases; the Frye “general acceptance” standard continues to be utilized in Maryland, Florida, California, Illinois, and several other states.) The Blackwell court determined that the scientific evidence presented by plaintiffs in support of their thimerosal-causes-autism hypothesis did not meet the Frye standard in that it was not generally accepted in the relevant scientific community. The court further held that the plaintiffs’ experts did not satisfy the requirements of the Maryland Rules of Evidence, in that they did not possess sufficient knowledge, skill, experience, training or education to allow them to testify on the causation issues in question, and did not possess a sufficient factual basis to support their testimony.

“[T]his Court finds that the plaintiffs have failed to establish that the hypothesized link between thimerosal and autism is generally accepted as reliable within the relevant scientific community. In that context, the methodologies used by the plaintiffs’ experts are deeply flawed… Each of the Geier and Geier epidemiology studies uses one or more of the following databases: the Vaccine Adverse Effect Reporting System (“VAERS”); the Vaccine Safety Datalink (“VSD”); the Department of Education database (“DOE”); and the California Department of Social Services. On the record established in this proceeding, this Court finds that Geier and Geier improperly use these databases and draw conclusions from the data that could not be drawn through the use of generally accepted principles of epidemiology.”
“The plaintiffs have not cited — and the Court has failed to unearth — any case in which a proffered expert has been permitted to offer a novel causation opinion that directly contradicts every generally accepted epidemiological study addressing the issue of causation… Causation opinions on the etiology of autism simply cannot be based on a differential diagnosis methodology that fails to even consider the most prevalent alleged cause of autism, namely, a gene or series of interacting genes that have not yet been identified.”

Notwithstanding these exhaustive analyses in cases applying three different standards of evidentiary admissibility, most of the members of the now-multiply-dismissed vaccine plaintiffs’ expert witness team remain on the roster of experts profferred by over five thousand Vaccine Injury Compensation Program (VICP) petitioners in the Omnibus Autism Proceeding (OAP), which is hosted at the U.S. Court of Federal Claims. The same team is undoubtedly waiting in the wings to testify for the plaintiffs in Sykes v. Glaxo, now pending in the U.S. District Court for the Eastern District of Virginia, and in dozens of other lawsuits alleging harm from vaccines.

At the center of each of these claims is a developmentally disabled child or young adult in need of comprehensive educational, social and household supports, and often in need of specialized medical care. Each is cherished by parents who seek to ensure that their child’s needs can be met for a lifetime. Each of these parents has come to hold the retrospective belief that their child’s developmental disability is the consequence of a vaccine reaction — a harm for which compensation should be paid. Each is supported in this belief by attorneys who specialize in pressing vaccine-injury claims, and the small coterie of scientists who provide reports and testimony supporting those claims. Court dockets have swelled, in large part, due to “public education efforts” addressed to parents of autistic children by these individuals, and by organizations promoting the goals of pre-existing vaccine-injury litigants.

Expert reports are especially crucial in “off-table” Vaccine Injury Compensation Program cases — that is, cases in which petitioners bear the burden of proving that a vaccine caused a condition for which they seek compensation. Every pending autism claim falls into this category. Even in cases in which no hearing is held, one or more expert reports must be submitted to establish whether the petitioner has in fact sustained a vaccine injury.

With so many claims pending, one can be certain that many thousands of billable hours will be logged before the Omnibus Autism Proceeding comes to a close. Members of the expert witness team for the OAP petitioners — including those recently precluded from testifying in state and federal courts — have already expended considerable efforts testifying and preparing reports on both general and specific causation. For instance, Dr. Krigsman testified as a causation expert in the OAP’s first “test case,” Cedillo v. Secretary of the Department of Health and Human Services (HHS) (Case 98-916V, U.S. Court of Federal Claims [USCFC]), and Dr. Bradstreet as a treating physician in the third “test case,” Snyder v. HHS (Case 03-654V, USCFC). Dr. Mumper has submitted expert reports to King v. HHS (Case 03-584, USCFC) and Mead v. HHS (Case 03-215V, USCFC). Dr. Geier submitted an expert report to Poling v. HHS (Case 02-1466, USCFC) after HHS conceded that a child’s pre-existing health problems (though not his autism) were aggravated by a vaccine reaction.

Numerous questions are raised by this recent flurry of compensable activity by individuals promoting a theory of autism causation already carefully considered yet overwhelmingly dismissed by the greater scientific community.

Which courts have ever accepted the autism-vaccine plaintiffs’ experts’ testimony?
What are the rules of evidence that pertain to Vaccine Injury Compensation Program proceedings?
Who promotes “experts” of questionable expertise and qualifications?
When the Omnibus Autism Proceeding draws to a close, who will pay for all of the plaintiffs’ “expertise,” and how much?

These questions will be explored in a series of articles to be published on this weblog over the coming weeks.

Comments


  1. Dr. JJ Bradstreet testified at the Autism Omnibus case, on Nov 5 2007.
    ftp://autism.uscfc.uscourts.gov/autism/snyder/transcripts/day01.pdf

    from page 140 (Direct) to page 290 (recross).

    We learn that young Colten Snyder was subjected to
    -Chelation
    -Hyperbaric oxygen treatments
    -Oral immunoglobulins
    -Nystatin/Diflucan/Vermox
    -Secretin
    -Taurine, N-acetil Cystine
    -Alpha Lipoic acid
    -numerous other supplements

    From the proceedings, Colten is far from cured so far.

    — _Arthur    Jan 23, 07:49 PM    #

  2. It amazes me that with so many rejections of these people’s testimony, that lawyers persist in trying to have them admitted as experts.

    How desperate they must be.

    Joe

    — Club 166    Jan 23, 09:53 PM    #

  3. It is such a relief to find that woo hasn’t been playing well in the courts. I love the “thwack” sound of reality hitting these puffed-up claims of relevance and expertise.

    — isles    Jan 23, 11:39 PM    #

  4. Joe, not knowing anything about US law, but isn’t it merely a case of amassing billable hours? There doesn’t have to be a real case to be answered, just parents to be persuaded that there may be a pot of gold at the end of the litigious rainbow that may help to look after the kids when they’re gone. I doubt that there’d be a single lawyer who believes in the ‘right’ of these cases. You, the taxpayer are picking up the tab and a nice little rort it is too. The lawyers can’t lose. The parents can and you, the taxpayer can, but not the lawyers.

    — Alyric    Jan 24, 01:13 PM    #

  5. Now there's a great word I'd never heard before -- rort -- a scam, a fraud, or other scurrilous activity. Thanks for the vocabulary expansion, Al!

    — Kathleen Seidel    Jan 24, 01:39 PM    #

  6. Alyric,

    That, and the possibility of settlement. From the pltff lawyer perspective, they’re hoping to sneak a Geier, Haley, et al past a Daubert/Frye/Havner hearing via a sleeping/sympathetic judge. If they can accomplish that the corps. would be more likely to settle. Not definite, mind you, but more likely nonetheless. If, God forbid, that does occur, then the expert’s “star power” is increased for the next case (“look your honor, he/she passed a Daubert Challenge), a snowball effect ensues.

    If pltff’s attys can get just one case to settle for even say $10,000 (U.S.) the ramifications would result in a huge payday for them. Think about it: $10,000 × 5,000+ potential cases.

    Thankfully, their experts are transparently flawed, and this has yet to occur.

    — bones    Jan 24, 06:06 PM    #

  7. I tell you Bones, this is enough to turn me into a flaming cynic, that is, if I wasn’t one already:)

    — Alyric    Jan 25, 11:06 AM    #

  8. It’s ironic, in a way. For as much of a fraud as Geier is, you hope the pltff attys keep using him. At least then you’re assured they’ll never gain any credibility. Unfortunately, in the mean time, vulnerable parents are filled with false hope and potentially harmful elixirs.

    On an aside, if I may, my hat off to Ms. Seidel. I’ve been monitoring Geier’s antics for many, many years now, and it was very refreshing to see that someone else was too. You’ve done a fine job of staying away from the hyperbole and ad hominem – qualities more than well represented by the likes of Best & Co. Your essays are always coherent & factual. Kudos.

    — bones    Jan 25, 02:47 PM    #

  9. bones, I try to restrain myself, but it's hard sometimes — really hard. So thanks for noticing, and thanks for your kind words.

    — Kathleen Seidel    Jan 25, 07:07 PM    #

  10. The Autism-Vaccine Courtroom Knockout Team • Jan 23, 06:00 PM
    The Baltimore City Circuit Court’s December 2007 ruling in Blackwell v. Sigma Aldrich (Case 24-C-04-004829) represents the latest addition to a developing series of judicial dismissals of expert witnesses presented by plaintiffs alleging that administration of vaccines and thimerosal-containing medical products resulted in the development of autism in their children.
    The Blackwell court’s exclusion of Dr. Mark Geier, Dr. Stephen Siebert, Dr. Elizabeth Mumper, Prof. Richard Deth, and Prof. Boyd Haley, closely follows several similar decisions:
    June 2007: Redfoot v. Ascher (Case C:05-2045PJH, U.S. District Court for the Northern District of California) — Dr. Geier, Prof. Haley, Prof. George Lucier, Dr. Arthur Krigsman and Dr. James Jeffrey Bradstreet precluded from testifying in a case alleging autism causation by thimerosal-containing saline nasal spray.
    July 2006: Doe v. Ortho Clinical Diagnostics (Case 1:03CV00669, U.S. District Court for the Middle District of North Carolina) — Dr. Geier, Prof. Haley and Prof. Lucier precluded from testifying in a case alleging autism causation by thimerosal-containing vaccines and RhoGAM injections.
    November 2005: Easter v. Aventis (Case 5:03-cv-00141-TJW, U.S. District Court for the Eastern District of Texas, Texarkana Division) — Dr. Geier, Prof. Haley, Prof. Lucier and Dr. Bradstreet prevented from testifying in a case alleging autism causation by thimerosal-containing vaccines, RhoGAM injections, and power plant emissions.

    The above is one small part of your blogs and shows a remarkable ability to support lunacy.

    People not only interested in autism but who have done paid research, published peer reviewed work and been intensively working to find both a cause and a cure for autism are being denied their DAY IN COURT.

    It is inconceivable that any truly INDEPENDENT person can support such interference with normal democracy and freedom.

    I certainly cannot see any rational explanation for the barricade against science and truth. We can see irrational explanations if we look at investigations into thalidomide, tobacco, asbestos et al.

    The Baltimore case in particular first denied any support for the child harmed by vaccines and then completed the lynching by a summary judgement.

    Perhaps you could with your immense legal expertise clear this point for me?

    If you have one LIAR wishing to support a motion then you cannot have a summary judgement.

    Am I correct?

    If you have nothing to hide why the imprressive farago of legalise.

    If as you say there is nothing to hide then frank and open disclosure will show up the stupidity of this subpoena.

    Dr James Jeffrey Bradstreet

    Prof Richard Deth

    Dr Mark Geier

    Prof Boyd Haley

    Dr Arthur Krigsman

    Prof George Lucier

    Dr Elizabeth Mumper

    Dr Stephen Seibert

    All incapable and incompetent of being able to give witness in a court of law?

    REALLY what kind of JUSTICE system do you have in the USA if you are frightened of INCOMPETENTS?

    Perhaps it is because they are not INCOMP

    — johnfryer    Apr 7, 05:44 AM    #