Oliver vaccine injury case – Court denies appeal of NVICP ruling

vaccine injury case

On January 9, 2019, the Federal Circuit’s Court of Appeals decided not to rehear an appeal by Laura and Eddie Oliver of a decision of a vaccine injury case (referred to as “Oliver”) by a special master of the National Vaccine Injury Compensation Program (NVICP) who ruled that the NVICP would not award compensation to their son for his developmental delays and seizure disorder.

Circuit Judge Pauline Newman dissented to the Court of Appeals decision, joined by Judge Jimmie V. Reyna. Although Judge Newman’s dissent carries no legal authority, it can be offered as persuasive materials in other cases. It should not, however, carry much weight, because Judge Newman’s dissent mischaracterizes the Oliver vaccine injury case, mischaracterizes the relevant science, and makes numerous other errors.

This article will examine the Oliver vaccine injury case along with the scientific issues involved. Continue reading “Oliver vaccine injury case – Court denies appeal of NVICP ruling”

Dorit Rubinstein Reiss – an index of her vaccine articles on this website

Dorit Rubinstein Reiss

Dorit Rubinstein Reiss – Professor of Law at the University of California Hastings College of the Law (San Francisco, CA) – is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines (generally, but sometimes moving to other areas of medicine), social policy and the law. Her articles usually unwind the complexities of legal issues with vaccinations and legal policies, such as mandatory vaccination and exemptions, with facts and citations.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination–she really is a well-published expert in this area of vaccine policy, and doesn’t stand on the pulpit with a veneer of Argument from Authority, but is actually an authority. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

She was also one of the many contributors to the book, “Pseudoscience – The Conspiracy Against Science.”

Many bloggers and commenters on vaccine issues will link to one or more of her articles here as a primary source to counter an anti-vaccine claim. The purpose of this post is to give you a quick reference to find the right article to answer a question you might have.

Below is a list of articles that Dorit Rubinstein Reiss has written for this blog, organized into some arbitrary and somewhat broad categories for easy reference. This article will be updated as new articles from Professor Reiss are published here. We also may update and add categories as necessary.


Continue reading “Dorit Rubinstein Reiss – an index of her vaccine articles on this website”

National Vaccine Injury Compensation Program facts

national vaccine injury compensation program

In this post I explain how one goes about proving a case in the  National Vaccine Injury Compensation Program (NVICP), and how that differs from proving a case in the civil courts, focusing on what it means to have a no-fault program and proving causation. I will use a case that started with the tragic death of a young child after a vaccine to illustrate the complexity and operation of the program, and also to address the idea of federal preemption, and how it limits the ability of those claiming vaccine injuries to use state courts for their claims.

Continue reading “National Vaccine Injury Compensation Program facts”

Vaccine injury payouts – another trope that abuses NVICP statistics

vaccine injury

Another day, another anti-vaccine trope finds it way out of the grave to enter the zombie apocalypse of anti-vaccine misinformation and lies. Today’s zombie trope is the one that the NVICP (National Vaccine Injury Compensation Plan, see Note 1) payouts are so huge that they the “prove” that vaccines are dangerous and should be kept it away from children.

My friend Liz Ditz wrote about this trope and gave it a solid debunking a couple of years ago. She is much nicer than yours truly, the cranky feathery dinosaur. We’re going to give it the full Skeptical Raptor treatment which means a lot of science, some snark, and a dollop of mockery. More seriously, I wanted to update her numbers and make a few more, possibly sarcastic, points. Continue reading “Vaccine injury payouts – another trope that abuses NVICP statistics”

Using NVICP cases to prove vaccine-autism link – anti-vaxxers get it wrong

vaccine-autism link

In general, the anti-vaccine religion lacks any scientific evidence supporting their beliefs about vaccine safety and effectiveness. So, they have to default to using memes and tropes based on anecdotes, fake science, or decisions made by the National Vaccine Injury Compensation Plan (NVICP). A recent paper, written by Dorit Rubinstein Reiss and Rachel Heap, reviewed how NVICP cases are being used and misused by anti-vaccine forces to prove an autism-vaccine link.

Mostly, the anti-vaccine zealots use NVICP cases to attempt to convince the world that there is actual “evidence” that vaccines cause autism spectrum disorders. Of course, we know that the vast body of scientific research tells us that there is no vaccine-autism link. Professor Reiss’ article examines key NVICP cases and shows how they are being used and misused by anti-vaccine forces.

This post is going to review some of the key points presented by Professor Reiss and Ms. Heap in their published article. Of course, their article is over 70 pages long (with extensive footnoting), so I’m just going to hit the key points. However, the full article (pdf) is an important and detailed discussion of the misuse and abuse of NVICP cases in an attempt to claim that there is a vaccine-autism link. Continue reading “Using NVICP cases to prove vaccine-autism link – anti-vaxxers get it wrong”

Vaccine Court – causation and administrative discretion

vaccine court

A recent case provides insight into how the decisions of the Special Master in the National Vaccine Injury Compensation Program – also known as the Vaccine Court – are reviewed by the appeals system. There are two issues I hope readers can take from this story:

  1. There is an elaborate system for appealing NVICP decisions. Next time someone tries to claim there is no appeal, or that the petitioners are not given a hearing, remind them they’re very wrong.
  2. The legal standard used to assess the Special Master’s findings of facts – what it is and how it works. What we see is that both the judge in the US Court of Federal Claims and the Circuit Court gave the Special Master’s decision pretty close scrutiny. 

Continue reading “Vaccine Court – causation and administrative discretion”

Vaccine informed consent – mandates and liability

vaccine informed consent

Several people have asked me whether having school mandates is in tension with the idea of vaccine informed consent . The answer is no. While school mandates have some effect on parental autonomy, the doctrine of informed consent should not be conflated with autonomy.

For a somewhat different reason, imposing sanctions on those who do not vaccinate is also not a violation of informed consent. Continue reading “Vaccine informed consent – mandates and liability”

Lyme disease vaccine – good for dogs but not for humans

Lyme disease vaccine

If you go to your veterinarian to get the Lyme disease vaccine for your dog, just make an appointment and your dog will be vaccinated against this serious disease. If you go to your pediatrician to get the Lyme disease vaccine for your children, give up now. It’s simply not available.

Is it because Lyme disease is more serious to your dog than your children? Nope. Is it because Big Pharma makes more money from dogs than humans? No. Is it because the Lyme disease vaccine is safer for a dog than in a human? Not really.

Enough with the guessing game. The blame for why there isn’t a Lyme disease vaccine for children can be placed right where some of you expect it to be – anti-vaccine activists. This was in the mid-1990s, and the internet was barely usable without Google to help us, but there were people pushing the same narrative that we hear about the cancer preventing HPV vaccine – the Lyme vaccine was worse than the disease. Let’s take time to look at this story.

Continue reading “Lyme disease vaccine – good for dogs but not for humans”

Who are you going to believe about vaccines

In one corner, we have Jenny McCarthy, former Playboy Playmate of the Year, Dr. Andrew Wakefield, and pseudoscience with an extra dose of quackery. In the other corner, we have the Centers for Disease Control, the Institute of Medicine for the National Academy of Sciences, UK’s National Health Service, and the National Vaccine Injury Compensation Program (what is commonly called the Vaccine Court). The battle is over MMR vaccine, a mixture of three live attenuated viruses administered by injection for immunization against measles, mumps and rubella (formerly known as German measles).

Let’s take a close look at the participants. First, Jenny McCarthy, whose extensive medical and science education includes….not much. In 2005, she announced that her child was diagnosed with autism, a diagnosis about which there is some doubt. McCarthy believes that vaccines caused her son’s autism, although that view is unsupported by any scientific or medical evidence. Her public appearances and statements have increased the public perception of this link, and may have led to decreased immunization rates and increased incidence of measles. McCarthy has stated that chelation therapy helped her son recover from autism. Essentially, McCarthy claims that mercury in vaccines causes autism, which has been rejected by scientific and clinical studies, and that the use of chelation somehow reversed the effects of the “mercury exposure.” In fact, the National Institute of Mental Health has concluded that autistic children will not receive any benefit to balance the risks of cognitive and emotional problems induced by the chelating agents used in this treatment. Really, she should stick to modeling and bad movies.

Dr. Andrew Wakefield is a whole different story. He, and 12 other researchers, published a paper in the British medical journal in 1998, The Lancet, which reported on 12 (yes 12) children with developmental disorders. They linked eight of these children to MMR vaccinations. The paper described several bowel symptoms and the possible link to the vaccine. He even gave a name to the syndrome, autistic enterocolitis. After publication of the paper, confidence in the MMR vaccine fell; pediatricians in the United Kingdom thought the British government was either hiding evidence of the link, or was failing to prove it.

Brian Deer, a reporter for the Sunday Times of London, wrote an article in the British Medical Journal that showed that Dr. Wakefield not only was in error, but probably altered key facts to show a link to autism, and outright fraudulent act.  In the meantime, 10 of the 12 original co-authors of the Lancet article retracted their authorship.  Then, in early 2010, the Lancet retracted the paper with this statement:

…it has become clear that several elements of the 1998 paper by Wakefield et al are incorrect, contrary to the findings of an earlier investigation. In particular, the claims in the original paper that children were “consecutively referred” and that investigations were “approved” by the local ethics committee have been proven to be false. Therefore we fully retract this paper from the published record.

Of course, a recent review of studies of the links between vaccines and autism find that there is no scientific support for the link.  They concluded:

 No credible evidence of an involvement of MMR with either autism or Crohn’s disease was found.

This might be an intellectual or philosophical discussion of science, except for one major problem. Vaccination rates have dropped in the UK, to as low as 85%. In 2006, there were 449 cases of measles in the UK. Before Wakefield’s report, there were only 56 cases in the UK in 1998. In the US, there have been measles and pertussis (whooping cough) outbreaks attributed to the falling vaccination rate (falling from 98% to 92% in a few years).

What worries me is what do we do when a scientist and professional like Andrew Wakefield publishes an article that sets the medical world on its figurative head? The great thing about science is that it is not dogmatic.  Researchers moved quickly to understand the link, then to debunk it.  And it was a trained journalist, who uncovered the fraud.  But the consequences of that one article carries on today.  People still think that vaccines cause everything.  It doesn’t.  Nevertheless, when it comes to medicine and science, we shouldn’t listen to Playboy Playmates.

Go get your children vaccinated. The risk from measles far outweighs the non-risk of autism.