The New Testimonial Arena · Feb 25, 05:30 PM

The National Childhood Vaccine Injury Act of 1986 authorized establishment of the Vaccine Injury Compensation Program (VICP), which commenced operations on October 1, 1988. From its inception through the end of 1989, 172 vaccine-injury petitions were filed, and 22 cases were adjudicated. (1, 2) Each petition alleged vaccine injuries that occurred prior to the establishment of the Program, some as far back as 1950.

Previously, the only legal remedies available to those who believed that they or a family member had sustained a vaccine injury involved suing vaccine manufacturers — a costly, lengthy, cumbersome, adversarial process. The establishment of the VICP created a new forum for the evaluation of vaccine-injury claims, where attention could be appropriately focused on medical facts and evidence rather than questions of blame and liability, and where compensation could be awarded relatively quickly to those able to establish that they were entitled to it.

The VICP also created a new niche market for attorneys already experienced in medical malpractice, personal injury and vaccine injury litigation, and for the purveyors of expert testimony upon whom they relied. Among the first “regulars” in Vaccine Court proceedings were attorneys Michael Hugo, Kevin Conway, Anthony Colantoni, Clifford Shoemaker, and William P. Ronan III. Repeat experts included Dr. Mark Thoman, who testified six times; Dr. Kevin Geraghty, who testified four times; Dr. Marcel Kinsbourne, who testified five times; and Dr. Mark Geier, who offered testimony in eleven proceedings, some by affidavit, and most by live testimony.

The following review focuses on published decisions in cases involving Dr. Geier. (Certain of his fellow vaccine-litigation professionals will be featured in future essays.)

Auspicious Beginnings

During 1989, each of the eleven VICP cases in which Dr. Geier testified and for which published decisions are available resulted in a determination of eligibility, and an award of compensation. (3) By the end of June 1990 that number had risen to nineteen. (4)

Although the Vaccine Act charged the U.S. Department of Health and Human Services (HHS) with responding to vaccine-injury claims, the funding and staffing to carry out this statutory responsibility was not in place until July 1990. The testimony of petitioners and their experts therefore went unopposed during first year and a half of the Program’s existence.

Every published decision in cases where Dr. Mark Geier testified during his first, uncontested year and a half of Vaccine Court involvement describes him as an obstetrical geneticist with a special expertise on vaccines derived from his intensive review of the literature. (3-4) In all but three of these cases, his was the only medical expert testimony provided. During this period, judges and Vaccine Program special masters found him to be:

• “credible and convincing” (Special Master David A. Gerard, Bailey v. HHS)
• “well qualified” (Special Master George Hastings, Ionescu v. HHS)
• “prepared.. to speak authoritatively on the subject of adverse reactions to DPT vaccines” (Judge Bohdan Futey, Ciotoli v. HHS)
• “qualified to testify as a medical expert in this case” (Chief Special Master Gary Golkiewicz, Meredith v. HHS, Tafoya v. HHS, Berning V. HHS)

In Pusateri v. HHS, Special Master E. LaVon French described Dr. Geier as “the author of numerous publications in his field… [who] has performed extensive research on the results of endotoxins in commercial vaccines,” and determined that “his testimony is entitled to considerable weight.”

Special Master Paul Baird was more circumspect in his evaluation of Dr. Geier’s qualifications to offer expert testimony on the subjects of neurology and toxicology. Four of his 1989 decisions included the caveat:

“Although Dr. Geier’s uncontested testimony is not entitled to as much weight as would be the testimony of a neurologist or some other professional experienced in treating persons affected by neurotoxins, it is generally consistent with the guidance provided in § 14(b) of the Act and does satisfy the requirement of § 13(a)(1) of the Act that the court may award compensation only if a petitioner’s claims are substantiated by medical records or medical opinion.” (5)

Familiarity Breeds

From mid-1990 forward — once HHS began to scrutinize vaccine-injury claims and solicit outside experts to assess their plausibility — increasing numbers of Vaccine Injury Compensation Program (VICP) decisions discussed the limitations of Dr. Geier’s expertise, the increasingly speculative nature of his testimony, and the widening distance between his testimony and the facts of a given case. (6)

Special Master Baird was the first to issue a published decision dismissing a VICP case in which Dr. Geier testified. In Chronister v. HHS (decided on July 13, 1990), the petitioners alleged that their child’s disability and death resulted from the DPT vaccine. The court found that their recollection of the timing of events differed from contemporaneous medical records — a lapse not deemed to constitute perjury, but judged a “likely and understandable” error “colored by their desire to find an explanation.” According to the decision, that desire to find an explanation received a helping hand from Dr. Geier.

“Petitioner states in the fee petition that she “brought her claim based on her ‘motherly intuition’ as to the events preceding her son’s seizures and cerebral palsy, and upon the opinion of causation so received from a highly recognized medical expert, Mark R. Geier, M.D.” Clearly, ‘motherly intuition’ is insufficient by itself to provide a reasonable basis for a claim… In this case, the parents’ testimony provided the necessary support for Dr. Geier’s opinion…

Although compensation was denied in Chronister, the petitioners received $12,271 to cover legal expenses, including the cost of their expert witness.

One more 1990 case in which he testified after Chronister resulted in an award to the petitioner (Grant v. HHS). Four others were dismissed by the end of the year.

“Petitioner’s expert, Dr. Mark Geier, stated that as a result of his review of the medical records, and after hearing the testimony of Mrs. Tucker, it was his opinion that there was no evidence of any cause for C[…]‘s seizures other than an adverse reaction to the DPT vaccine. The speculative nature of the evidence concerning compensable damages in this case provides an inadequate basis for an award of compensation.” (Special Master E. LaVon French, Tucker v. HHS)
“[W]hile Dr. Geier was qualified in this and many other cases as an expert on DPT, he is not a neurologist… Dr. Geier’s conclusion that the March 5, 1982, episode was a seizure is simply not in keeping with the weight of the evidence.” (Special Master Denis Hauptly, Lehmann v. HHS)
“On cross-examination, Dr. Geier testified that pediatric neurologists are normally the ones who determine that a child has a particular neurological disease. He also testified that it is the role of a neurologist to indicate whether or not staring is considered a sign of a seizure and that he would refer a child with staring to a neurologist to make a diagnosis. He said he did not know whether it was beyond his expertise to say whether or not staring was a seizure, but that a pediatric neurologist would be the best person to do it… Dr. Geier did not testify that seizures occurred and did not even claim competence to make such a diagnosis.” (Special Master Paul Baird, Beck v. HHS)
“Dr. Geier was asked if his opinion would change if there was a diagnosis of autism. Dr. Geier stated that such diagnosis is not ‘against his opinion’ but admitted that the question was ‘getting to the borderline of [his] area of expertise.’“ (Special Master E. LaVon French, Waddell v. Secretary of HHS) (emphasis added)

After these critical 1991 decisions, compensation was awarded in the cases Raines v. HHS and Allen v. HHS. In Allen, Special Master Hauptly found the testimony of both Dr. Geier and 1975 Nobel laureate and HHS expert Dr. David Baltimore to be equally unhelpful. Hauptly found his decision-making task difficult enough that he developed a matrix to assist him determining whether a given injury was compensable under the Vaccine Act. His choice to award compensation to the petitioners was well-founded enough to withstand a challenge by HHS.

Most of the Special Masters who had become increasingly familiar with Dr. Geier’s courtroom performance became increasingly less inclined to give credence to his testimony.

“Dr. Geier has no clinical experience and the value of his testimony, especially in the face of treating pediatricians and pediatric neurologists, is severely limited.” (Chief Special Master Gary Golkiewicz, Thelen v. Secretary of HHS, March 6, 1991)
“[T]he testimony of the expert witnesses was considered to be of very limited assistance to the undersigned in determining whether a Table injury occurred… Dr. Geier knows a lot about the DPT vaccine, but… [k]nowledge about DPT does not render one better able to diagnose a seizure, shock collapse or an encephalopathy.” (Special Master Paul Baird, McClendon v. HHS, July 3, 1991)
“Dr. Geier, in my view, strained to find something that was simply not there.” (Special Master George Hastings, Chapman v. HHS, April 23, 1991)
“[O]ther than petitioner’s expert, Dr. Mark Geier, an obstetrical geneticist, no expert who has ever testified before me has ever linked shock collapse, a vascular event, with seizures or encephalopathy, a neurological event.” (Special Master Elizabeth Wright, Mills v. HHS, February 20, 1992)

In July 1991, in his decision in Daly v. HHS, Chief Special Master Golkiewicz voiced his growing concerns regarding the now-familiar expert witness.

“One last issue in this case bears discussion, the qualifications and testimony of Dr. Geier. Dr. Geier has testified in numerous vaccine compensation cases before this and other special masters. Increasingly, his qualifications to testify have come under attack… While after nearly three years into the Program this question of expertise may appear odd, it derives from the lack of hard knowledge about vaccine causation and the evolving nature of litigation under the Act. In any event, the timing of the question does not alter its relevance or importance.”
“In summary, this court is inclined to not allow Dr. Geier to testify before it on issues of Table injuries. Dr. Geier clearly lacks the expertise to evaluate the symptomatology of the Table injuries and render an opinion thereon… Through this opinion, counsel and petitioners are forewarned of the court’s position on Dr. Geier, or other doctors with little relevant experience, as an expert witness. In addition, the court admonishes Dr. Geier to reconsider his role, from an ethical and moral standpoint, as a witness under this Program. Several petitioners have lost cases solely on the little weight given to Dr. Geier’s opinion in those cases and tremendous duplication in expert fees is resulting from petitioners seeking second opinions after being informed of the serious deficiencies in Dr. Geier’s experience. Dr. Geier is unquestionably a true professional in his field, but, in most instances, he is outside of his field when testifying under this Program.” (emphasis added)

Shortly thereafter, he would reiterate his reservations in a July 1992 decision filed to Jensen v. HHS:

“Dr. Geier admittedly has no expertise in diagnosing Table injuries. The court also has serious reservations regarding his expertise on DPT related matters. While Dr. Geier is more familiar than most with the DPT medical literature, because of his lack of clinical practice, he is unable to relate the literature to the injured person. Therefore, Dr. Geier’s usefulness as an expert is limited to his review of the medical literature. The court sees this expertise of limited value. Furthermore, in this matter, the court is troubled by Dr. Geier’s testimony. Without any current literature or clinical experience to support him, Dr. Geier espouses a theory that the endotoxin contained in DPT causes DPT injuries and, in this case, caused J[…]‘s HUS. Dr. Geier consistently renders opinions in areas where he lacks expertise, with limited medical record support, and little or no support from the medical literature or the relevant medical community.”

Although originally sympathetic in her assessment of Dr. Geier, by mid-1992, Special Master Wright eventually came to similar conclusions as her colleague. In her June 1992 decision in the case Summar v. HHS, she wrote:

“I ultimately perceived the testimony of petitioners’ experts in this case — Dr. Mark Thoman and Dr. Mark Geier — to be of very limited value… [A]fter reviewing the testimony of each in a number of cases over the past three years, I have simply found the testimony of each to be of very little persuasive value in case after case. I thus recommend against use of such witnesses before me in future Program cases… If well qualified expert testimony cannot be obtained, counsel should carefully consider whether such circumstance indicates a patently non-meritorious case. Counsel choosing to pursue a very implausible case will run the risk of being denied reimbursement for the cost of an unqualified expert witness, and/or for the cost of their own time expended after the point at which a ‘reasonable’ attorney would have dropped the case.”

Credibility Wanes

Dr. Geier’s increasing difficulty in persuading the Court to adopt his interpretations of petitioners’ circumstances is documented in a string of decisions from 1992 and 1993. In Yeoman v. HHS, decided in March 1992, Special Master Richard Abell noted that:

“[S]eizures are neurological events, and Dr. Geier is a geneticist, not a neurologist… Dr. Geier provided an excellent example of his limited neurology training and background during the hearing. Dr. Geier consistently referred to the events following the first vaccination… as petit mal seizures. Both Dr. [Marcel] Kinsbourne and Dr. [Joel] Herskowitz, pediatric neurologists, testified categorically that this terminology was incorrect.”

In March 1992, in one of the earliest cases alleging injury from the measles-mumps-rubella (MMR) vaccine, Saia v. HHS, recently-appointed Special Master Laura Millman remarked sharply on a similar diagnostic lapse.

“[P]etitioner’s own medical expert cannot distinguish between measles and measles vaccine as the cause of M[…]‘s encephalopathy. This inability would be harmless if respondent had provided no evidence of a factor unrelated… But respondent has provided such evidence… It then becomes incumbent upon petitioner to refute respondent’s evidence by a preponderance of her own evidence. This she failed to do, despite Dr. Geier’s insouciant comments about the legal consequences of his inability to state that measles vaccine is more likely than not the cause of M[…]‘s encephalopathy… Dr. Geier never discusses the significance of onset time in his conclusory affidavits, a peculiar omission considering that onset of measles and fever is crucial to disposition of this case. Perhaps because Dr. Geier’s expertise is in DPT vaccine, not measles vaccine, and in genetics and obstetrics, not neurology or pediatrics, his omission is understandable. His lack of medical knowledge, however, does not avail petitioner.”

Three months later, she would be more cursorily dismissive in her opinion in Ormechea v. HHS:

“[Dr. Geier’s] testimony is based on his self-generated expertise in DPT-vaccine injuries. Because Dr. Geier has made a profession of testifying in matters to which his professional background (obstetrics, genetics) is unrelated, his testimony is of limited value to the court.”

The lack of support within the scientific community for Dr. Geier’s opinions on vaccines was addressed by Special Master Abell in his June 1992 decision in Aldridge v. HHS:

“Dr. Geier’s testimony is necessarily only a summary of the medical literature on DPT reactions… The theories espoused by Dr. Geier are not those of a majority of the medical community… Dr. Geier admitted that his theory on a presumed lowering of the blood brain barrier has not been medically proven. His postulations on the synergistic workings of toxins and endotoxins likewise are speculative… In summary, Dr. Geier provided a number of mechanisms by which DPT could have damaged J[…]‘s central nervous system. He did not, however, provide any positive evidence that any of these mechanisms actually occurred in this case.”
“…Additionally, when referring the court to medical literature in an attempt to rule out infection as a cause of J[…]‘s encephalopathy, Dr. Geier cited two outdated editions of medical textbooks that allegedly indicated that a DPT encephalopathy would be accompanied by elevated cell counts in the cerebrospinal fluid. The current editions of these textbooks do not support this claim. Dr. Geier relied on a section discussing a reaction to smallpox vaccine rather than DPT vaccine to prove this same point. I find it disquieting that a witness whose expertise depends entirely on review of medical literature would fail to consider, fail to have available and fail to cite the current authority. Were Dr. Geier an attorney, he would fall below the ethical standards for representation. The undersigned is of the opinion that it is cheek at best for a medical expert to quote from an outdated text, and, if he must do so for whatever reason, it is at best negligent if not a fraud on the court to fail to state ab initio. To intentionally rely on outdated medical texts as authority for a given position approaches the disingenuous… His credibility, and therefore his testimony, suffers as a result of his lack of candor or preparation by directing the court to questionable authority in support of his position.” (emphasis added)

To Procure & Defend

Notwithstanding the increasing numbers of rulings critical of Dr. Geier’s testimony, by the end of 1992, petitioners’ attorneys had offered him as an expert in over fifty VICP proceedings. The bulk of his business was derived from those who had by that time made the Vaccine Program their primary professional milieu: Anthony Colantoni, Michael Hugo, Kevin Conway, Curtis Webb, Michael McLaren, Richard Gage, Thomas Gallagher, and Clifford Shoemaker.

In October 1992, Special Master John Edwards issued one of his first published comments on Dr. Geier’s testimony in his ruling in Einspahr v. HHS. In this decision, Edwards specifically addressed the lawyers responsible for putting him on the stand over and over again.

“Dr. Geier’s speculative testimony is essentially worthless to a special master. Yet, all petitioners’ counsel and Dr. Geier waste an inordinate amount of time by presenting this testimony in Program cases. As of the date of this decision on entitlement, all petitioners’ counsel are on notice that the special master will no longer allow Dr. Geier to offer his speculative testimony about pertussis toxin or endotoxin until Dr. Geier is able to apply the various theories to the particular case.”

In spite of Chief Special Master Golkiewicz’s previous warnings, Clifford Shoemaker offered Dr. Geier as an expert witness in a December 1992 hearing in which Golkiewicz was presiding. Rejecting the expert testimony presented by the petitioner in Ultimo v. HHS, Golkiewicz ruled that:

“Dr. Geier is unqualified to testify on Table injuries, and although Dr. Geier is qualified to discuss the state of medical literature regarding DPT vaccinations, Dr. Geier due to his lack of clinical practice is unqualified to relate the findings of the literature to the facts of a given case. Even if Dr. Geier’s affidavit was considered it would be of no help to petitioner. Dr. Geier found a Table case based upon the onset within 3 days. As discussed [above], the facts did not support this timing of onset. Dr. Geier does state in characteristic unsupported fashion that, ‘It is my opinion, even if D[…]‘s first seizures appeared 4 days following his DPT shot, that it is more likely than not that D[…]‘s current neurological condition which includes his residual seizure disorder and brain damage were the result of his second DPT shot that the received 12/6/62.’ No support is given for this statement. Accordingly, it deserves and receives no weight.”

Affirming his colleague’s dismissal of Ultimo v. HHS, in April 1992 Judge Moody Tidwell issued a stern warning regarding Mr. Shoemaker’s subsequent courtroom criticisms of the Chief Special Master:

“…Petitioner contends that ‘this special master has demonstrated a consistent pattern of bias in [Vaccine Act] cases, making them more adversarial that Congress had intended and requiring a higher level of proof than any jury could possibly require.’ Petitioner claims that if the facts in this case had been presented to a jury, petitioner would have been awarded compensation. Petitioner has offered no citations or evidence supporting her charge of bias. Similarly, petitioner cites no authority in support of her charge that the Chief Special Master has made Vaccine Act cases ‘more adversarial’ than Congress intended. The Chief Special Master did not apply a higher burden of proof than is statutorily mandated, as discussed above. Moreover, Vaccine Act cases are not tried to a jury, so petitioner’s speculative claim is irrelevant.”
“This sort of personal attack on the Chief Special Master is highly inappropriate, contentious, and unpersuasive. Petitioner claims that the National Vaccine Injury Compensation Program (Program) has ‘become a bankrupt system, morally and monetarily.’ The Chief Special Master is a key administrator of the Program. Petitioner in effect accuses the Chief Special Master of subverting the intent of Congress in establishing the Program. The court will not condone such frivolous, unsubstantiated accusations. Accordingly, the court finds that petitioner’s final objection is completely without merit. Petitioner is forewarned that any repetition of such groundless accusations may cause the court to entertain sanctions against petitioner and petitioner’s counsel pursuant to RCFC 11.”

Special Master Edwards offered a particularly damning assessment of Dr. Geier’s candor in his July 1993 decision in Marascalco v. HHS.

“The special master rejects specifically Dr. Geier’s testimony. In the special master’s view, Dr. Geier’s September 1990 affidavit in this case was seriously intellectually dishonest… [T]he special master finds that Dr. Geier ignored portions of C[…]‘s medical records in forming his opinion in this case. The special master concludes that Dr. Geier’s September 1990 affidavit is nothing more than an egregious example of blatant, result-oriented testimony… [T]he special master finds that Dr. Geier’s baseless September 1990 affidavit in this case undermines wholly his credibility as a witness. Dr. Geier did not rehabilitate his credibility during his testimony at the hearing.” (emphasis added

In contrast to her colleagues, thoughout this period and throughout the greater part of her tenure in the VICP, Special Master French would be consistently positive in her assessment of Dr. Geier’s qualifications and credibility. In a 1991 decision in the case Sumrall v. HHS she declared him “highly relevant and credible,” with expertise that “probably exceeds that of most pediatric neurologists,” in spite of the fact that he “never examined or treated Angel, has never treated a seizure disorder, and cannot read an EEG, a CT scan.” The decision survived an appeal by HHS.

to be continued

Notes and Cases

1. Molly Treadway Johnson, Carol E. Drew, Dean P. Miletich. Use of Expert Testimony, Specialized Decision Makers, and Case-Management Innovations in the National Vaccine Injury Compensation Program. Federal Judicial Center, 1998

2. National Vaccine Injury Compensation Program Statistics Reports

3. 1989 cases
Bailey v. HHS (Case 88-56V, 1989 U.S.Cl.Ct. LEXIS 321; September 6, 1989)
Cline v. HHS (Case 88-71V, 1989 U.S.Cl.Ct. LEXIS 320; September 27, 1989)
Davis v. HHS (Case 89-18V, 1989 U.S.Cl.Ct. LEXIS 310; October 3, 1989)
Pusateri v. HHS (Case 88-63V, 1989 U.S.Cl.Ct. LEXIS 329; October 10, 1989)
Ionescu v. HHS (Case 88-64V, 1989 U.S.Cl.Ct. LEXIS 335; October 19, 1989)
Siegfried v. HHS (Case 88-68V, 1989 U.S.Cl.Ct. LEXIS 333; November 9, 1989)
Ciotoli v. HHS (Case 88-59V, 1989 U.S.Cl.Ct. LEXIS 232; November 9, 1989)
Newton v. HHS (Case 88-67V, 1989 U.S.Cl.Ct. LEXIS 236; November 15, 1989)
Monteverdi v. HHS (Case 88-78V, 1989 U.S.Cl.Ct. LEXIS 288; December 5, 1989)
Pollard v. HHS (Case 88-61V, 1989 U.S.Cl.Ct. LEXIS 342; December 7, 1989)
Seman v. HHS (Case 89-56V, 1989 U.S.Cl.Ct. LEXIS 294; December 9, 1989)

4. 1990 cases
Gowan v. HHS (Case 88-57V, 1990 U.S.Cl.Ct. LEXIS 30; January 26, 1990)
Meredith v. HHS (Case 88-75V, 1990 U.S.Cl.Ct. LEXIS 50; March 2, 1990)
Alger v. HHS (Case 89-31V, 1990 U.S.Cl.Ct. LEXIS 84; March 14, 1990)
MacWithey v. HHS (Case 88-62V, 1990 U.S.Cl.Ct. LEXIS 157; April 2, 1990)
Tafoya v. HHS (Case 88-58V, 1990 U.S.Cl.Ct. LEXIS 152; April 6, 1990)
Batdorf v. HHS (Case 89-77V, 1990 U.S.Cl.Ct. LEXIS 167; April 11, 1990)
Berning v. HHS (Case 89-19V, 1990 U.S.Cl.Ct. LEXIS 236; June 13, 1990)
Essex v. HHS (Case 89-57V, 1990 U.S.Cl.Ct. LEXIS 266; June 28, 1990)

6. 1989-1990 Baird cases
Siegfried v. HHS (Case 88-68V, 1989 U.S.Cl.Ct. LEXIS 333; November 9, 1989)
Seman v. HHS (Case 89-56V, 1989 U.S.Cl.Ct. LEXIS 294; December 9, 1989)
Alger v. HHS (Case 89-31V, 1990 U.S.Cl.Ct. LEXIS 84; March 14, 1990)
MacWithey v. HHS (Case 88-62V, 1990 U.S.Cl.Ct. LEXIS 157; April 2, 1990)

6. 1990-1993 cases
Chronister v. HHS (Case 89-41V, 1990 U.S.Cl.Ct. LEXIS 302, July 13, 1990; 1990 U.S.Cl.Ct. LEXIS 482, December 4, 1990)
Grant v. HHS (Case 88-70V, 1990 U.S.Cl.Ct. LEXIS 298; July 13, 1990)
Tucker v. HHS (Case 89-44V, 1990 U.S.Cl.Ct. LEXIS 358; August 31, 1990)
Lehmann v. HHS (Case 89-99V, 1990 U.S.Cl.Ct. LEXIS 388; October 2, 1990)
Beck v. HHS (Case 90-151V, 1990 U.S.Cl.Ct. LEXIS 447; November 2, 1990)
Waddell v. HHS (Case 90-197V, 1990 U.S.Cl.Ct. LEXIS 481; December 3, 1990)
Raines v. HHS (Case 90-240V, 1991 U.S.Cl.Ct. LEXIS 47; January 29, 1991)
Allen v. HHS (Case 90-409V, 1991 U.S.Cl.Ct. LEXIS 46; January 31, 1991; 1991 U.S.Cl.Ct. LEXIS 485; August 30, 1991)
Thelen v. Secretary of HHS (Case 90-22V, 1991 U.S.Cl.Ct. LEXIS 85; March 6, 1991)
McClendon v. HHS (Case 90-579V, 1991 U.S.Cl.Ct. LEXIS 305; July 3, 1991)
Chapman v. HHS (Case 90-731V, 1991 U.S.Cl.Ct. LEXIS 164; April 23, 1991)
Mills v. HHS (Case 90-460V, 1991 U.S.Cl.Ct. LEXIS 106; February 20, 1992)
Daly v. HHS (Case 90-590V, 1991 U.S.Cl.Ct. LEXIS 368; June 26, 1992)
Jensen v. HHS (Case 90-1606V, 1992 U.S.Cl.Ct. LEXIS 340; July 10, 1992)
Summar v. HHS (Case 90-415V, 1992 U.S.Cl.Ct. LEXIS 291; June 18, 1992)
Yeoman v. HHS (Case 90-1049V, 1992 U.S.Cl.Ct. LEXIS 123; March 9, 1992)
Saia v. HHS (Case 90-2556V, 1992 U.S.Cl.Ct. LEXIS 173; March 27, 1992)
Ormechea v. HHS (Case 90-1683V, 1992 U.S.Cl.Ct. LEXIS 274; June 10, 1992)
Aldridge v. HHS (Case 90-2475V, 1992 U.S.Cl.Ct. LEXIS 284; June 11, 1992)
Einspahr v. HHS (Case 90-0932V, 1992 U.S.Cl.Ct. LEXIS 507; October 28, 1992)
Ultimo v. HHS (Case 90-2045V, 1992 U.S. Claims LEXIS 27; December 11, 1992; 1993 U.S. Claims LEXIS 17; April 6, 1993)
Marascalco v. HHS (Case 90-1571V, 1993 U.S. Claims LEXIS 96; July 9, 1993)
Sumrall v. HHS (Case 90-135V, 1991 U.S.Cl.Ct. LEXIS 14; January 10, 1991; 1991 U.S.Cl.Ct. LEXIS 152; April 17, 1991)

Comments


  1. Thank you, as always, for your clear presentation of information. You spare your readers much fact-checking by so thoroughly linking the sources of your information.

    With such hot-button issues as autism, vaccines, and any discussion of correlation between the two, it is vital that cool-headed thinking prevails. I, for one, appreciate your efforts in this area and greatly respect your acumen in presenting the facts.

    — Steve D    Feb 25, 11:27 PM    #

  2. Wow! That’s amazing, but not unsurprising considering what the Doctor dabbles in these days. Now I’d like to know if anybody attempted to reason with Special Master French?

    — Alyric    Feb 28, 09:51 AM    #

  3. I imagine so. Compare these three passages from cases decided in 1999, 2003, and 2004. In the first -- a case in which compensation was awarded — she was almost defensive about his qualifications and expertise. In the second, she remarked favorably on his expertise, but discounted his testimony as irrelevant, and found that the petitioners had not demonstrated a vaccine injury. In the third — taken from the last published opinion she wrote for a case involving Dr. Geier prior to her retirement — she echoes the sentiments that her colleagues had been expressing for the last decade, and incorporates into the decision the growing string of unfavorable decisions that had accumulated by that time.

    from 1999: Oetting v. HHS (Case 95-785V, 1999 U.S. Claims LEXIS 148, June 11, 1999)

    [15] Dr. Geier's claim as to the volume of literature supporting a causal link between pertussis vaccine and subsequent neurological injury is not exaggerated. Copies of Dr. Geier's notebooks have been filed in several vaccine cases. Articles to the contrary, of course, have been filed and considered as well.
    [16] Dr. Mark Geier is certified by the American Board of Medical Genetics as a "genetics counselor." He describes himself as a specialist in obstetrical genetics. He holds also a Ph.D. in genetics. Respondent points out that the American Board of Medical Genetics (ABMG) no longer certifies genetic counselors. As of 1991, the Board requires additional qualifications beyond those required when Dr. Geier was certified. The court takes note also of respondent's caveat as to a possible error on Dr. Geier's CV describing a former faculty position between 1981 and 1984 as an "associate" professor whereas an "adjunct" professor may have been a more appropriate term. The court's decision in this case is not based on Dr. Geier's testimony, but neither will the court discard his testimony as unreliable. The value of Dr. Geier's testimony lies primarily in his unusual knowledge of the medical literature relating to adverse side effects of pertussis vaccine and his own research into the toxins contained in the pertussis vaccine. This court gives Dr. Geier appropriate credibility for his knowledge related to those areas in which he is qualified to opine. The court gives greater weight to the opinions of the pediatric neurologists as to symptomatology in any individual case.

    from 2003: Dixon v. HHS (Case 01-605V, 2003 U.S. Claims LEXIS 399, November 25, 2003)

    Petitioners presented the testimony of Dr. Geier. Dr. Geier is not a neurologist, but is a board certified geneticist who has been deeply involved in the field of vaccine epidemiology. He ranks high among those who have studied vaccine issues through the medical literature on vaccines, databases, studies, articles and information on vaccine safety and efficacy in vaccine policy. He has published many articles involving vaccine matters. The tenor of his testimony in this case addressed the importance of statistical databases in providing statistical reliability and validity in interpreting the epidemiology and issues relating to autism and various vaccines. His testimony, however, does not address directly the core issue in this case, i.e., the presence or absence of an encephalopathy. The import of his testimony is primarily related to causes of autism. His expertise relates more to the large issues related to autism but does not inform the court in its decision about the cause of N[...]'s present condition.
    Dr. Geier has recently proposed a data-sharing process that would improve the reliability of present statistical data that would include the present VAERS statistical database. It would be helpful in interpreting the epidemiology and issues relating to the autism controversy. He is not alone. Dr. Yazback is of the same opinion, according to his testimony.

    from 2004: Jeffries v. HHS (Case 99-670V, 2004 U.S. Claims LEXIS 273, October 5, 2004)

    The court does not find Dr. Geier's testimony probative, adding the present matter to a long line of vaccine cases finding little or no value in Dr. Geier's testimony. As has been the case with several special masters in the Program, [39] the undersigned discounts Dr. Geier's testimony for several reasons. First, Dr. Geier is an obstetrician and geneticist. He has been trained in those specialties but not in epidemiology. Accordingly, Dr. Geier does not meet the AMA's guidelines for expert witnesses. The guidelines clearly set forth the minimal requirements a doctor must fulfill to be considered an expert witness. Of primary importance is that the testifying doctor be an expert in the field for which he opines, and that formal training in that field is essential.
    [39] Dr. Geier's testimony has been accorded no weight in other vaccine cases: Thompson v. Secretary HHS, 2003 U.S. Claims LEXIS 161, No. 99-0436, 2003 WL 22143972 (Fed. Cl. Spec. Mstr. May 23, 2003); Haim v. Secretary of HHS, 1993 U.S. Claims LEXIS 145, No. 90-1031V, 1993 WL 346392 (Fed. Cl. Spec. Mstr. Aug. 27, 1993) (Dr. Geier's testimony is not reliable, or grounded in scientific methodology and procedure. His testimony is merely subjective belief and unsupported speculation."); Marascalco v. Secretary of HHS, 1993 U.S. Claims LEXIS 96, No. 90-1571V, 1993 WL 277095 (Fed. Cl. Spec. Mstr. July 9, 1993) (where the special master described Dr. Geier's testimony as intellectually dishonest); Ormechea v. Secretary of HHS, 1992 U.S. Cl. Ct. LEXIS 274, No. 90-1683V, 1992 WL 151816 (Cl. Ct. Spec. Mstr. June 10, 1992) ("Because Dr. Geier has made a profession of testifying in matters to which his professional background (obstetrics, genetics) is unrelated, his testimony is of limited value to the court.") Daly v. Secretary of HHS, 1991 U.S. Cl. Ct. LEXIS 368, No. 90-590V, 1991 WL 15473 (Cl. Ct. Spec. Mstr. July 26, 1991) ("The court is inclined not to allow Dr. Geier to testify before it on issues of Table injuries. Dr. Geier clearly lacks the expertise to evaluate the symptomatology of the Table injuries and render an opinion thereon.").

    If you read enough of these cases, you can get a good sense of the "judicial personality" of each author. From my reading, I get the sense that Special Master French is a deeply intelligent, compassionate, generous, uncynical person, and inclined to stick up for people she trusts.

    The VICP Special Masters play quite a Solomon's role, and they all have my sincere respect.

    — Kathleen Seidel    Feb 28, 03:44 PM    #