Guest Blogger: Schwartz Chimes in on the Poling Decision

My friend Schwartz decided to chime in on my post yesterday. As always, Schwartz, your input is welcome and appreciated.

After reading Craig's post yesterday, I thought I might summarize what I see as the top few myths and mis-information floating around:

1) This decision wasn't about vaccines and Autism

Craig posted this comment from LBRB: "No. Hannah had a mitochondrial disorder, not autism."

In reality, Hannah had (she no longer has it) a mitochondrial disorder and after the vaccine damage she had Autism. So, Hannah Poling had and has Autism. Now, some people continually argue (LBRB included) that the ruling did not determine that the vaccines caused Autism. What did the government actually rule? That she suffered "regressive encephalopathy and features of Autism Spectrum Disorder" as a result of vaccine reaction. Another section of the concession reads: "features consistent with an Autistic Spectrum Disorder".

Let's first review the meaning of the term consistent: "Being in agreement with itself; coherent and uniform"

So she suffered features uniform with an Autistic Spectrum Disorder? Given that Autism is defined as a person meeting a specific set of criteria or "features", "uniform with the features of Autism" pretty obviously means that someone has Autism. The government conceeded the vaccines caused her to suffer brain damage resulting in features of Autism. Any way you slice it, the decision certainly was about the vaccine damage she suffered and her ensuing Autism among other issues. Those who continue to deny this have questionable credibility.

2) Hannah poling was rewarded for a standard table injury encephalopathy

This unsupported claim appears to be centered around the crowd at LBRB as well. It seems to be an attempt to blame the Polings for the length of time that the case took to resolve. The argument seems to be that had they just applied for a table injury as the special masters advised in a general statement, a similar outcome would have occurred much earlier. Unfortunately, the evidence available does not support that argument at all. In fact, the only weak evidence used to support this is the fact that the concession notes that Hannah suffered a "regressive encephalopathy" and the claim is that encephalopathy occurring between 5-15 days is a table injury. Now, let's review the evidence against this poor argument:

a) Hannah Poling did not suffer from Acute encephalopathy according to the advice of the special masters.

Autism cases involving Table Injuries have been compensated under the Program. If in a particular case there exist medical records demonstrating that such a qualifying "acute encephalopathy" occurred within the appropriate time frame, the petitioner or counsel should bring that to the assigned special master’s attention so that, if appropriate, the case can be processed without delay as a Table Injury.

http://www.uscfc.uscourts.gov/sites/default/files/autism/Autism+General+Order1.pdf

Note that the special master is talking about acute encephalopathy, not the regressive encephalopathy that Hannah was diagnosed with. If we review the vaccine injury table it also talks about "chronic encephalopathy" as well. However, there is a catch in the fine print: "If a preponderance of the evidence indicates that a child's chronic encephalopathy is secondary to genetic, prenatal or perinatal factors, that chronic encephalopathy shall not be considered to be a condition set forth in the Table."

http://www.hrsa.gov/vaccinecompensation/table.htm#2

I now refer to the concession where the government states about Hannah: "... significantly aggravated an underlying mitochondrial disorder, which predisposed her to deficits in cellular energy metabolism,..."

It seems that there is a lot of evidence that Hannah's injury were NOT a standard table injury as they involved a secondary factor and they didn't meet the diagnosis of either acute or chronic encephalopathy.

I am truly surprised that the much heralded research skills of Kathleen Seidel they reference at LBRB didn't point out these problems for them.

b) Hannah Poling's case was not determined by a special master

If Hannah Poling had applied for a table injury, it would have been a special master who would have performed the evaluation and made the decision. In the Hannah Poling case, the government actually had their own science team evaluate the case who decided to conceed it. That is a fundamentally different process. It is pretty disingenious to assume that the outcomes would have been even close to the same.

c) Hannah Poling's legal position likely benefited significantly from the Omnibus hearings

The possibility of a strong Omnibus case setting a precident for a vaccine damage/Autism connection would have been very damaging for the government. Given the circumstances, it is very clear that it was in their interests to conceed the case rather than have it become a public standard for future decisions. In these circumstances, they not only conceeded the case, but they were forced to recognize the outcomes of Autism and the outcome of seizure disorder which undoubtedly led to the large financial compensation package awarded. I highly doubt they would have done this in the case of a table injury. Even with Hannah Poling, they tried to avoid the outcome of seizures, but later conceeded that point as well. Does anyone really think a special master would have done the same? HINT: read the omnibus transcripts

In summary, the only evidence being used to support the claim that she suffered from a standard table injury is centered on one word: encephalopathy. Unfortunately, they seem to be missing the adjective and fine print.

3) The government didn't hide the details of the case, the Polings did

This is a myth that originated at LBRB way back when the initial concession was leaked to the press. The reality is that after the original concession, the Polings motioned to make the decision public. Since it is standard to seal the records of the cases, the government objected to the Poling motion. The Polings subsequently motioned for full disclosure. The government offered full disclosure only from the point of time AFTER the concession (in other words it would not have included the concession). The Special Master adjudicating the motion defered the ruling, but published an opinion supporting the government position. The Polings later withdrew the motion in the face of almost certain defeat.

Somehow in the minds of those at LBRB, this translated into the Polings trying to hide the details of the case because they couldn't get access to her medical records.

The latest rendition of this myth has manifested itself in the article quoted by Craig where Sullivan states: "The government did not "seal" the case—it is standard procedure to keep this information confidential until the settlement is completed."

Let's review this for a moment. The standard procedure dictated by the government is to seal the cases. In this case, the government specifically rejected an offer for full disclosure by the Polings. So it wasn't the government who sealed it, it was the procedure that did it.

Laughable.