Jun 11 2007

Mercury/Autism Controversy Goes to Court

Science has a very troubled relationship with the legal system in the US. So I am less than optimistic about the outcome of a hearing that begins today regarding a claims made by 9 families that their child’s autism was caused by thimerosal – a mercury based preservative that until around 2002 was found in childhood vaccines. The claim has no scientific basis, but that unfortunately does not mean we can predict the outcome of the hearings.

The hearing will take place in a U.S. Court of Federal Claims presided over by three “special masters” appointed for the purpose. The Federal government maintains a fund to compensate those who are injured by vaccines. It’s a fair system – vaccines are mandated for entry into the public education system (although most states protect parents who opt out). And, even without this, society basically asks that its citizens get vaccinated not only to protect themselves but to protect everyone else. In exchange we set aside a fund to compensate those who are injured by vaccines.

Over the past 8 years 4,800 families have filed claims for compensation based upon the belief that their child contracted autism as a direct consequence of their vaccines. At first autism was linked to the MMR vaccine, and when the scientific evidence shot this down claims shifted to the mercury in thimerosal in some childhood vaccines (but not the MMR vaccine). A grassroots phenomenon emerged, and has been at increasing odd with the scientific evidence.

The bottom line at this point is that the evidence has not shown any link between vaccines in general or thimerosal specifically to autism spectrum disorder. Further, the notion that there is an epidemic, or increasing incidence, of autism is in serious doubt and the best evidence suggests the increased number of diagnoses is an artifact of definition and surveillance. Further, removing thimerosal from childhood vaccines has not changed the incidence of autism. (See my prior blogs on this issue – listed below – for more details and references.)

If the Federal hearing listens to the scientific evidence, then it should be a fairly brief and straightforward hearing with a clear result in the end. The scientific community has already picked over this issue, and the conclusions are well-established, even if there are still lingering details, as with all scientific issues. But history is not a cause for optimism.

For a quick background, in 1923 the Frye rule was established, which basically says that scientific evidence presented in a trial must be the “generally accepted” opinion of the scientific community. This was a good rule of thumb for the courts, even if it was imperfect. (See Peter Huber’s book, Junk Science in the Courtroom, for a good review of courtroom science under the Frye rule.) But in 1994 the Frye rule was essentially thrown out by the Supreme Court who ruled that any scientific evidence can be presented in court and it would be up to the judge in the case of judge trials, and the jury in the case of jury trials to decide what is credible.

To give one historical example, a similar scenario unfolded with regard to silicone breast implants and alleged autoimmune or neurological disorders. A grassroots movement of “victims” emerged, with their cherry picked “experts” touting bad science and dismissing the more credible science that was emerging. Dow Corning was essentially bankrupted by the lawsuits against it, and eventually paid out 3.2 billion dollars to settle the suits. Meanwhile, research eventually showed that there is absolutely no link between silicone breast implants and the alleged disorders for which Dow Corning was sued.

The dangers with the mercury/autism controversy are significant. A legal victory for the mercury believers would have a very negative impact. First, it would provide undeserved credibility to claims for a mercury/autism link. In the mind of the public, a courtroom victory means vindication – even if it completely goes against the science. It would also create a legal precedent that would make vaccine producers feel very vulnerable to liability. This is a huge problem.

Vaccines are among the most successful and effective public health measures ever employed. They have saved countless lives and significantly improved the health of the human population. Vaccine manufacturers, however, are increasingly cautious about producing vaccines because of all the liability that comes with them, and the hysterical fears that a vocal minority are raising about vaccines. Pharmaceutical companies who produce vaccines have no intention of going the way of Dow Corning. They would just as soon not sell vaccines rather than face bankruptcy at the hands of a dysfunctional legal system ruled by pseudoscience and hysteria.

That is precisely why there is proposed legislation to protect vaccine producers from liability, in exchange for producing the vaccines the public needs. Of course, such efforts are portrayed by the anti-vaccine crowd as evidence for a conspiracy between a corrupt government and big pharma. But of course, their goal is to bring down vaccine producers. They don’t believe vaccines work, and/or that they are actually causing greater harm.

Essentially the situation we have is that a small minority of hysterical activists, armed with pure pseudoscience, is threatening the availability of an effective life-saving pillar of modern healthcare by exploiting weaknesses in the U.S. legal system. The issue should be determined by the best scientific evidence available. Rather, we are at the mercy of the three appointed judges. We can only hope they have sufficient scientific literacy, and hear the proper testimony, so that they can come to a correct decision. Judge Jones came through in the Dover Intelligent Design trial. We may be pleasantly surprised with the vaccine/autism hearing.

But it remains to be seen if solid science or hysterical pseudoscience will rule the day.


Other Neurologica Blog Entries and articles on the Merury/Autism ControversyFear Not: Vaccines Do Not Cause Autism

Still No Association Between Autism and Mercury in Vaccines

Another Salvo in the Mercury/Autism Controversy

Autism Genetics and Controversies

Other blogs on the same topic

The Autism Omnibus by Orac

Cedillo v HSS Vaccine Hearing by Autism Diva

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