Cedillo vs. Health and Human Services case highlights failure of Vaccine Injury Compensation Program

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Aug 30 2010

The Elizabeth Birt Center for Autism Law and Advocacy (EBCALA) is deeply disappointed in the Court of Appeals for the Federal Circuit's decision to affirm Cedillo v. Secretary of Health and Human Services. EBCALA submitted a friend-of-the-court brief on behalf of 23 civil society organizations in January 2010 urging the Court of Appeals to reverse. In affirming the decision, the Court of Appeals failed to do justice by Michelle Cedillo and thousands of other petitioners in the Omnibus Autism Proceeding (OAP). This case, the first test case in the OAP, highlights the overall failure of the Vaccine Injury Compensation Program (VICP). As Rebecca Estepp, an OAP petitioner, said, "These are government lawyers, representing a government agency, presenting government-funded science to government judges, with no jury and no normal rules of evidence. Where's the justice in that?"

Michelle Cedillo, a 15-year-old girl, developed autism and many other severe medical problems in the immediate aftermath of her measles-mumps-rubella vaccine and other mercury-containing vaccines. Her lawyers advanced scientific and legal arguments that the combination of her mercury-containing and live virus vaccines substantially contributed to her life-threatening medical conditions. In EBCALA's view, Cedillo met the required standard of "more likely than not."

While the Court of Appeals criticized some of the Department of Justice's conduct as "troubling," it did not find that the government's conduct merited reversal. EBCALA has grave concerns regarding a legal process that permitted the admission of critical evidence by the government at the last minute, not only foreclosing Cedillo's opportunity to challenge it, but unfairly precluding any inquiry into how the Department of Justice obtained the critical piece of evidence in the first place. The court's failure to inquire into this area raises serious questions regarding the due process and fair play of the VICP. Adding to EBCALA's concern was the Special Master's insufficient analysis of Cedillo's scientific biopsy results. A recent study by leading United States researchers – that the Court of Federal Claims elected not to admit – found no basis to question the reliability of the laboratory results, contrary to the government's position and the OAP's finding.

The Court of Appeals disappointingly failed even to criticize the Special Master's injudicious tone in his opinion, where he characterized the case as "one-sided" and accused Michelle's doctors as being "guilty…of gross medical misjudgment." "Impartiality is the bedrock of any judicial system, and the VICP failed to exhibit it in the Omnibus Autism Proceeding," said Mary Holland, Executive Director of EBCALA.

EBCALA and amici are now focused on Bruesewitz v. Wyeth, scheduled to be argued before the U.S. Supreme Court on October 6, 2010, a case that will determine proper interpretation of the 1986 National Vaccine Injury Compensation Act which created the VICP. Bruesewitz v. Wyeth will decide whether families like the Cedillos may bring claims of vaccine design defect to regular civil courts after having first filed in the VICP.

For more information, contact Mary Holland, J.D., EBCALA Director at (917) 743-3868.

The following 23 civil society organizations filed a friend-of-the-court brief in Cedillo v. HHS:

Age of Autism (www.ageofautism.com)

Autism Action Network (www.autismactioncoalition.org)

Autism Human Rights and Discrimination Initiative (www.autismwebsite.com/autismdiscrimination)

AutismOne (www.autismone.org)