By finding that vaccines do not play a role in causing autism, the U.S. Court of Federal Claims handed a significant defeat today to thousands of parents who blame the injections for their childrens’ disorders.
But while the rulings may prove to be a major hurdle for their cause, lawyers for many of the plaintiffs say they their legal efforts may only just be starting. They are already contemplating possible appeals, and talking about suing the pharmaceutical companies directly.
The decisions were handed down today in a trio of test cases meant to help guide future decisions by the claims court. More than 5,500 families have filed autism-related claims in the Federal Vaccine Compensation Program, many of which have been pending for more than a decade.
The families in today’s cases each claimed that a measles, mumps and rubella vaccine caused their children to develop autism after their immune systems had been weakened by thimerosal, a mercury-based preservative found in other vaccines. In separate opinions, three special masters for the court agreed that there was little evidence linking the vaccine to autism, or indicating that thimerosal could harm a child’s immune system.
“While Michelle Cedillo has tragically suffered from autism and other severe conditions, the petitioners have also failed to demonstrate that her vaccinations played any role at all in causing those problems,” the court stated in one of the opinions.
The same three court appointees are currently deliberating on a second set of autism cases in which the families are arguing that thimerosal was the lone culprit. But today’s opinions seemed to bode poorly for those cases as well, expressing skepticism toward the idea that autism could be caused by an injury after childbirth.
In one, the court appointee wrote that there was only “weak” evidence to suggest that autism could be caused by environmental factors, such as a vaccine, once a child had already been born. While he could not rule out the possibility that such factors might play a role, he wrote that the lack of proof “does make one cautious about attributing causation to any postnatal factor.”
There are opportunities for the families to appeal the rulings, first to a Court of Federal Claims judge, then to the U.S. Court of Appeals for the D.C. Circuit. Thomas Powers of Portland’s Williams, Love, O’Leary & Powers, who is serving as lead counsel for the entire autism proceeding, says there may be room for an appeal because he believes the court applied too strict a standard when weighing the scientific evidence.
“We’re not here to prove these cases scientifically because that’s not the burden that the program puts on us,” Powers says. “I think the special masters were imposing a standard and imposing a burden on this evidence in these cases that was higher than what is called for under the statute.”
Conway, Homer & Chin-Caplan partner Kevin Conway, whose Boston firm is representing 1,200 of the autism plaintiffs including one of the families in today’s cases, says there is also a chance some of his clients could decide to try their claims by suing pharmaceutical companies in state courts.
Although the law requires all vaccine related cases to be tried first with the claims court, it allows plaintiffs to opt out and file a normal civil suit if their complaint has been pending for than 210 days.
Suing a pharmaceutical company would require them to prove not just that the vaccines caused the autism, but that the corporation was at fault.
But that might not be much different than the current setup, Conway says.
“My sense is that fault would be the easy issue in these cases because of the mercury in the vaccines,” he says. “But the causation would be just as difficult.”