Intimidation in the Court
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