Intimidation dr y
Writers never want to bore their readers. After publishing my original
three papers on the Cedillo case, Double Standards
, Busting Rules
and Translation in the Court
, I felt it was time to leave further
discussion of the case to others.
was flattered and certainly grateful when John Stone
kindly mentioned the three publications in his widely read Age of Autism
column on November 8, 2010. The many comments that Stone’s column
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
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.
doing that, it may be worthwhile to review the
original statement in the vaccine injury compensation law on
hearings were to be conducted:
“… (2) The special
masters shall recommend rules to the Court of Federal Claims and,
account such recommended rules, the Court of Federal Claims shall
rules pursuant to section2071 of title 28. Such rules shall –
(A) provide for a
less-adversarial, expeditious, and informal proceeding for the
petitions…” (p. 12)
“Less adversarial” and indeed often cordial was
hearings used to be conducted. I clearly recall my personal
in two vaccine injury compensation cases, not too long ago.
The first was in the fall of 2001, shortly
9/11 tragedy when Court Houses were still closed for security reasons.
the medical expert for the petitioners, in a case where the infant
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
train the evening before and the expert for the DOJ, a distinguished
of pediatric infectious diseases had flown in early that morning.
The Special Master sat at the head of the
large rectangular wooden table, we sat with our backs to the large
the DOJ team sat across the table.
Everyone greeted everyone else, the tone of the
proceeding was very civil and it was all over by mid-afternoon.
The Special Master thanked us all and
hearing. As we started packing our laptops and documents, the mother of
deceased infant, apparently touched by the proceedings and the way she
treated, pulled out her camera and asked us to stand together for a
photograph. We were all somewhat surprised at the request but no one
We walked around the conference table to join the Special Master and
respondent’s team and the young mom snapped two photos, as I recall.
The Special Master and her executive
immediately left to catch their train to Washington, the attorneys and
family followed and I stayed back to talk with the HHS medical expert.
certainly did not feel like opponents. We were simply two physicians
similar interests, talking cordially, and we felt we had just served
... as best we knew how.
When we were done, I offered to drive my
distinguished colleague to the airport. He thanked me profusely
me that a medical school classmate was on his way to pick him up and
out to dinner before his evening flight. We shook hands and I told him
honored I was to have met him at last. Looking back, the only
upsetting experience that day was driving out of town at rush
My other case was in 2003 in Washington DC,
coincidentally in front of the same Special Master. The DOJ attorney
thorough yet soft spoken and kind. The main expert for HHS was a
and very well trained pediatric neurologist from a nearby state who had
400 children with autism in his private practice.
Here again, the proceedings were very civil, we
by late afternoon and everyone said Good Bye before departing.
I walked over to my “opponent” to shake his
we spent several minutes talking about his practice and what he perceived as being his greatest challenges.
were done, he must have known that had we not been located 500 miles
I would have certainly asked him to accept one more patient in his very
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
case. The Special Master requested more information about the
cited and I added a third detailed report.
expert for the respondent, a university professor, responded with a
CV and a short report about the case that included personal
about me and about the fact that I had published “five opinion pieces not
to have abstracts attached” (very much like this one). Just for
looked up his Pub Med publications: 12 of his 27 articles had
the majority of vaccine injury compensation hearings, the Cedillo case
heard in the Ceremonial Courtroom, National Courts Building, Washington
Special Masters faced the audience and the legal
teams sat at
their own tables, DOJ attorneys to the left and the petitioners’ legal
audience sat behind a beautiful and ornate wooden banister that went
room, the Government’s experts and guests on the left and the
Cedillo hearing started on June 11, 2007.
opening remarks, the plaintiff’s attorney called her first expert, Dr.
the stand. His testimony was honest, accurate and understandable, in
difficulties with the loud speaking system. When he was done, the
adjourned for lunch.
following is a summary of Dr. Aposhian’s
training and achievements according to the EPA.
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
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.
do not think one needs to be a Ph.D. to concede that a distinguished
with this education and achievements was qualified enough to testify as
expert on mercury toxicity anywhere in the world.
the hearing reconvened, the Attorney for DOJ started her
again, this was an important hearing and a high profile case; the
full, and hundreds of people were listening by phone. Furthermore, the
transcripts were definitely going to be reviewed and an appeal was
regardless of the decision. After all, 5,000 cases depended on the
this and the other two test cases.
right out of the gait, the DOJ attorney fired an intimidating question
intended to get the witness rattled and “off balance”. (p. 117)
Good afternoon, Dr. Aphosian. Dr. Aphosian, you are not a medical
Could you speak louder? I can’t hear you. Please?
this moment, plaintiff’s attorney interrupted to inquire who the
sitting at the Respondent’s counsel table was. She was told it was Dr.
Brent, MD, PhD, a medical toxicologist and Clinical Professor of
the University of Colorado, testified for the respondent.]
should be mentioned that it is quite unusual for an expert witness to
counsel table when an expert for the other side is testifying; yet this
happened again and again during these proceedings but never in the
(Repeated) “Dr. Aposhian, are you a medical doctor? (p. 118)
No. I'm not.
Are you a medical toxicologist?
It depends how you define the term medical toxicologist. What is your
My definition would be someone who has an M.D. and an expertise in
I am not a medical toxicologist.
Are you an immunologist?
I am not an immunologist…
You are not a neurologist. Is that correct?
I am not an M.D., so I can’t be a neurologist.
You don't know how measles virus affects the brain?
I spent 10 years of my research studying virology. I have papers
the Journal of Virology. I was the first one to show that a virus could
transfer genetic information that was not in it originally…
You are not a geneticist, are you?
home, listening comfortably, I smiled and whispered “oops”]
I am considered to be a biochemical geneticist. The man I worked with
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
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…
while later, the attorney came back: (p. 124A)
Have you ever treated or diagnosed a person with any form of ethyl
I am not a physician so I would not treat anyone
So you’ve never treated or diagnosed a person with any form of mercury
I have been asked my advice by physicians …
on and on and on ... until the exhausted witness said (p. 202):
it all right if I just stand up and stretch for a minute?”
Master Hastings: Go ahead.
Attorney: I am almost done, but we can take a break, if you
witness: Thank you
Master Hastings: Doctor, let me take this time to apologize
we are trying to get you to speak up, and it turns out your microphone
in proper working order, so I apologize.”
DOJ attorney took a breath and went on asking the witness about
research including the Pichichero paper and the “half-life” of
You said that there was a flaw with that study, that you can’t compare
children who receive vaccines, as to the half-life of ethyl mercury in
blood. Is that correct?
What I did say, I believe, was that autistic children, if they have
efflux disorder, would have different toxicokinetics and that the data
normal children may not be applicable at all to a child who cannot get
remember wondering at the time why the attorney for the respondent
chose to end
her cross-examination with that particularly weak study published in
investigators had examined blood, urine and stool specimens of 40
had received thimerosal-containing vaccines and compared them with
21 children who had received thimerosal-free vaccines.
is impossible to guess why the DOJ attorney chose
to quote the researchers’ estimate that the “blood half-life of
was 7 days (95% CI 4-10 days)”?
be she was impressed by their interpretation that: “Administration
of vaccines containing thiomersal does not seem to raise blood
of mercury above safe values in infants. Ethylmercury seems to be
from blood rapidly via the stools after parenteral administration of
the fact is that she totally missed the most important
sentence in the abstract: “We obtained samples of blood, urine, and
3-28 days after vaccination.”
most studies of this kind, the study protocol clearly
outlines how and when specimens are to be collected: Certainly always
and clearly outlined intervals starting a short time after
this study, there was only a single and convenient
blood draw: Parents of 2-month-old infants brought them back once,
they pleased and at their convenience, between 3 and 21 days following
vaccination and parents of 6-month-old infants brought them back, again
they could, just once between 3 and 27 days
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
four weeks. Was it likely to still be going around and round in the
waiting for its half life and then whole life to end or was it more
have settled in tissues including the brain?
of the witness ended after a while and Special Master Hastings ordered
break (p. 211A).
the hearing reconvened, Special Master Hastings announced: “All right
We’ll be starting again here if everyone will take his position. Dr.
you are still in the hot seat, I am afraid.”
remember wondering about the choice of words. The exhausted witness
too … as he murmured: "Still?”
Special Masters asked more questions and then the hearing was
same thing happened during the cross-examination of the following expert
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
other experts for the plaintiff also received a similar
spite of the clear language of the vaccine injury compensation
Cedillo hearings were anything but “less-adversarial”.
was unfortunate for Michelle Cedillo, for many others who are waiting
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