Mercury Rising: The Omnibus Autism Proceeding and What Families Should Know before Rushing out of Vaccine Court
Mercur y Rising : The O mnibus Autism Proceeding and W hat Families Should Know before Rushing out of Vaccine Court
Gordon Shemin 0 1 2
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1 Shemin, Gordon. “Mercury Rising: The Omnibus Autism Proceeding and What Families Should Know Before Rushing Out of Vaccine Court.” American University Law Review 58 , no. 2
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Article 5
Mercury Rising: The O mnibus Autism Proceeding and W hat Families
Should Know before Rushing out of Vaccine Court
This comment is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol58/iss2/5
MERCURY RISING:
THE OMNIBUS AUTISM PROCEEDING AND
WHAT FAMILIES SHOULD KNOW BEFORE
RUSHING OUT OF VACCINE COURT
GORDON SHEMIN*
TABLE OF CONTENTS
∗ Articles Editor, American University Law Review, Volume 58; J.D. Candidate,
May 2009, American University, Washington College of Law; B.A. History and Philosophy,
2004, Boston College. Many thanks to Lewis Grossman and Rodney Patton for their
valuable insight and feedback. Thank you to my comment editor Adam Norlander
and to the staff of the American University Law Review for their hard work preparing
this piece for publication. Finally, I am grateful to my family and friends for their
constant encouragement and support.
Conclusion ...........................................................................................513
INTRODUCTION
On the morning of June 11, 2007, the wheelchair carrying
twelveyear-old Michelle Cedillo was pushed into the front of a courtroom of
the U.S. Court of Federal Claims in Washington, D.C.1 Michelle,
whose health began deteriorating seven days after receiving a
measles-mumps-rubella (MMR) vaccination and who currently suffers
from autism,2 wore hearing protection and hit herself repeatedly
before being wheeled out of the courtroom.3 A short time later,
opening statements began in the long-awaited case of Cedillo v.
Secretary of Health & Human Services.4
The Cedillo case is the first autism test case5 to go to an evidentiary
hearing in the “Vaccine Court,” a tribunal of special masters situated
within the Court of Federal Claims.6 In brief, the test cases are the
2008]
first part of a larger Omnibus Autism Proceeding (OAP)7 created by
the Vaccine
administration
containing the
Court in July, 2002, to determine whether the
of certain vaccines, and in particular vaccines
mercury-based preservative thimerosal,8 cause or
contribute to autism.9 After almost five years of arguments pertaining
to jurisdiction, discovery, procedure, and expert testimony,10 the
panel of three special masters was finally ready to listen to the
evidence and decide whether the vaccinations in question caused or
significantly aggravated Michelle’s condition.11
§ 300aa-12(c). Media accounts often refer to the Office of Special Masters as the
“Vaccine Court.” E.g., Mauro, supra note 2. This Comment uses the term “Vaccine
Court” to refer to the Office of Special Masters and the phrase “Vaccine Act” or “Act”
to refer to the National Childhood Vaccine Injury Compensation Act. For a fuller
description on the statutory structure of the Vaccine Act, see infra Part I.C.
7. See Autism General Order #1, In re Claims for Vaccine Injuries Resulting in
Autism Spectrum Disorder or a Similar Neurodevelopmental Disorder v. Sec’y of
Health & Human Servs., Autism Master File
(Fed. Cl. July 3, 2002)
,
2002 WL 31696785, available at http://www.uscfc.uscourts.gov/sites/default/
files/autism/Autism+General+Order1.pdf (setting out the reasoning for conducting
the OAP). As part of the OAP framework, the Vaccine Court created an Autism
Docket, which contains a complete list of the various legal filings, updates, court
orders, and rulings. United States Court of Federal Claims, Docket of Omnibus
Autism Proceeding, http://www.uscfc.uscourts.gov/node/2718 (last visited Oct. 1,
2008). All the filings on the Autism Docket have the same case caption, “In re Claims
for Vaccine Injuries Resulting in Autism Spectrum Disorder or a Similar
Neurodevelopmental Disorder” [hereinafter Omnibus Autism Proceeding]. For a fuller
discussion on the background of the vaccine-autism controversy and creation of the
OAP, see infra Part I.D–E.
8. Thimerosal is an organic compound that is approximately fifty percent
mercury by weight and has been used since the 1930s as a preservative in some
vaccines. U.S. Food and Drug Administration, Center for Biologics (...truncated)