Mercury Rising: The Omnibus Autism Proceeding and What Families Should Know before Rushing out of Vaccine Court

American University Law Review, Dec 2008

This Comment sheds light on the “opt-out” provision of the Vaccine Act. It namely discusses the effect of short-form petitions and their impact on subsequent civil action, by examining consequences flowing from the Omnibus Autism Proceeding. In short, it argues that the Vaccine Court erred with its decision to permit short-form petitions by overlooking that procedure’s long-term implications on vaccine plaintiffs. In addition, this Comment lays out a scenario to illustrate the potential pitfalls of a hasty exit from the OAP and offers some guidance to plaintiffs to avoid this outcome. The final part of this Comment offers some ideas for improving the Vaccine Act to ensure that such an anomaly does not occur in the future.

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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 0 This Comment is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information , please contact , USA 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 2 Th e American University Washington College of Law , USA Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Health Law Commons, and the Torts Commons Recommended Citation - 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)


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Gordon Shemin. Mercury Rising: The Omnibus Autism Proceeding and What Families Should Know before Rushing out of Vaccine Court, American University Law Review, 2008, Volume 58, Issue 2,