Newsletter – April 2009

The Bailey Banks case: US vaccine court admits vaccines cause autism; $1 million award

Now here’s a story most of us probably missed:

In a Feb 2009 award, a US vaccine court judge ruled that a child was permanently injured by MMR vaccine and was awarded lifetime damages totaling over $1 million.

The story was carried by very few news media, largely because of the implications in the vaccine injury legal arena. But in two brilliant articles authored by Robt F Kennedy Jr and David Kirby, the details of the Bailey Banks case are clearly described. [1,2] The reader is directed to those articles for the whole story. (Vaccine Court: Autism Debate Continues – 24 Feb 09)

What was significant about the Banks case was the new approach the injured child’s lawyers used to win the case.

The successful tactic used by the plaintiff’s lawyers in this case was simply not to label the injured child as autistic.

That term tends to result in a case being lumped in with other similar cases in big class actions, like the ponderous monster Omnibus Autism Proceedings, and then to be summarily dismissed as a group. This happened again just 2 weeks earlier in a well-publicized case carried in the New York Times and all major media. [3] This high profile case was precedent-setting and would have made the defendants (vaccine makers) liable not only for millions in settlement, but would have opened the floodgates for some 5000 vaccine-injured to obtain similar recoveries. So of course it ended with the judges reciting their usual mantra of ‘no possible connection’ between vaccines and autism, etc. which we have heard every few months in some case or other, ever since the organized barbecuing of Andrew Wakefield began some 10 years ago. [4]

But in this recent Banks case, which was awarded in Feb 2009, the lawyers went ahead and used expert witness testimony to describe the minutiae of the specific neurological damage suffered by the child, without ever using the word autism. It was proven in court beyond a doubt that Banks, the injured child, had sustained a permanent condition known as PPED or post encephalopathy disorder as a direct result of the MMR vaccine.

The judge said:

“the MMR vaccine at issue actually caused the conditions from which Bailey suffered and continues to suffer.” [1]

They went on to prove that Banks also fit all the criteria for another permanent brain injury known to doctors as acute disseminated encephalomyelitis
ADEM. So even though both these conditions have been recognized by CDC for years as part of the whole autism spectrum, by not focusing on that term, the lawyers were able to thoroughly characterize the nature of the damage to the brain cells and win the case: over a million in damages.

The point that must not be missed is the focus on terminology, semantics and word games that lawyers can use to change the nature of physical reality and pretend like the actual physical events are being addressed and ruled upon. That is to say, the term autism is just a word that was chosen by media and by pediatricians in the mid 1990s to attempt to describe the sudden epidemic in brain damaged children, which outbreak happened to follow the introduction of several new mercury vaccines all at once. What followed was the emergence of several groups of parents of these children who were outraged at the patronizing denials of government regulatory agencies like the FDA, CDC, and NIH about any possible connection with vaccines. And worse, these agencies’ refusal to allocate research funds that would actually rule out a vaccine connection.

These grassroots parents groups were unrelenting in their demand for investigation into the cause of over 1 million children suddenly having their brain development permanently reversed. Early on, some of the groups didn’t take on the media-assigned term autism, and instead simply described the new demographic as
vaccine damaged

The Banks case is just the most recently publicized example of that particular label – vaccine damaged – being successfully used in a court situation in order to navigate the minefield of denial, word games, and deliberate confusion that has been employed by rich industry lawyers over the past decade to defend the vaccine makers. Why this case is significant is that the defense usually prevails in these cases – and most of the permanently brain damaged children have lost all chance of recovering restitution either from government agencies who coerce parents into vaccinating, or from the industry who makes the vaccines.

Again, word games. The physical reality is simple, and incontrovertible: specific ingredients in vaccines which are injected into a little infant with no blood brain barrier, with an unformed nervous system and an unformed immune system – these ingredients prevent the child’s brain cells from forming normally. Especially with respect to myelination, and the microcirculation that is trying to build the infant brain. The reaction to things like mercury and MMR ingredients is the immature body’s best attempts at inflammation, which becomes chronic and prevents normal brain cells from forming. And also destroys existing brain cells. These facts are uncontested in mainstream neurology, as my text The Sanctity of Human Blood, 13th ed., [4] and hundreds of other sources, including those cited by Kennedy and Kirby, can easily show. These were the same sources used to prevail in the Banks case. As long as they didn’t use the word autism.

The Banks win is not an isolated event. The Kennedy article states that over 1300 vaccine injury cases have prevailed using the same legal strategy in the past few years. Kennedy explains why few people have ever heard about these cases.

The astounding reality underscored in this new situation is how well an entire epidemic of vaccine injured children, now numbering somewhere between 1 and 4 million children, how well it has been covered up from general notice by a ridiculously simple word game played by vaccine industry lawyers during the past decade.

Any case that wins in vaccine court is astounding in itself, considering the absence of a level playing field. In the history of vaccine litigation, the lawyers of the vaccine injured have always had to deal with an enormously corrupt position by the courts that government statistics on vaccine injuries is kept strictly classified. The US government knows exactly how many children have been injured by vaccines, and maintains these epidemiological figures in a secret file called the VSD or Vaccine Data Link. Having successfully defended against all subpoenaed demands by plaintiff’s attorneys over the past decade, the figures would obviously help not only the individual vaccine injury case, but would expose the vaccine industry to a flood of potential injury claims, many of them probably legitimate. The VSD information has never been seen by the general public and is not permitted to be even brought up in mainstream media. Such a position by the government demonstrates too clearly that it is the vaccine manufacturers and not the nation’s children who are being protected. [1]

The value of the Kennedy article is that it helps the reader realize just how devious and clever government defense counsel has been in the past ten years in getting claims of autism caused by vaccines thrown out. Same with Kirby’s article. In many cases it wasn’t necessarily that the children were any less injured from vaccines, but simply the legal tack chosen by their attorneys was able to be derailed and thwarted by a defense team who could bring in dozens of articles and studies all proclaiming no possible connection between autism and vaccines. Makes one think of how heartsick many of the parents of the lost cases in past years must feel, knowing that their efforts failed because of mere legal tactics and court terminology. Are their children any less injured than Bailey Banks?

My prediction is that industry lawyers are already scrambling to prevent hundreds of new vaccine injury cases from using this same tactic – true and forthright description of the actual neurological cell damage – in order to prevail in vaccine court. I really don’t see the tobacco phenomenon happening quite yet in the vaccine litigation venue.

What was it Shakespeare said we should first do to all the lawyers? I forget.

1. Kennedy, RF Another autism case wins in vaccine court 24 Feb 09

2. Kirby, D A new theory of autism causation? 24 Feb 09

3. Editorial: Vaccines exonerated on autism New York Times 12 Feb 2009

4. O’Shea T The sanctity of human blood: vaccination is not immunization, 13th ed. 2009.