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The first of three test cases on whether the measles, mumps, and rubella (MMR) vaccine can cause autism opened in the US Court of Federal Claims this week, just days after the hopes of parents in the United Kingdom for a High Court trial of their claims were dealt a final blow.
Last Friday at the High Court in London, Mr Justice Keith disbanded a group action against vaccine manufacturers by 2000 parents who blame MMR for triggering autism in their children.
The UK action ground to a virtual halt in 2004 when the Legal Services Commission withdrew legal aid for the group action, but a few parents soldiered on. Now the few remaining autistic children will have their claims withdrawn or struck out. Only two children, neither of whom has autism, now have public funding to sue manufacturers over the vaccine.
Mr Justice Keith ruled last week, against the parents' wishes, that three scientific reports commissioned by the manufacturers for the UK litigation may be handed over to the US Department of Health and Human Services, which is fighting claims by 4800 families of children with autism and related disorders under the national vaccine injury compensation programme. The judge ruled that the children's medical details must be kept anonymous when the reports are used.
The no fault programme is outside the tort system, but hearings are under the aegis of the Court of Federal Claims.
In three test cases, starting with that of 12 year old Michelle Cedillo from Arizona, lawyers for the parents will put forward three theories: that autism, autistic spectrum disorders, and related disorders can be caused by the MMR vaccine, by other childhood vaccines containing the mercury preservative thiomersal (known in the US as thimerosal), or by a combination of thiomersal containing vaccines and MMR.
The case is bound to reignite the controversy that led to a global scare when Andrew Wakefield, a gastroenterologist, called for a move to single vaccines at a press conference in 1998 to publicise research indicating possible links between the measles virus, autism, and bowel disease.
UK parents have filed a complaint with the Judicial Complaints Board after discovering that the High Court judge Nigel Davis, who rejected the children's appeals against the withdrawal of legal aid, failed to disclose that his brother was a main board director of GlaxoSmithKline, the parent company of one of the vaccine manufacturers being sued. A spokesman for the Judicial Communications Office said that the possibility of a conflict of interest arising from his brother's position “did not occur” to the judge.
Jennifer Horne-Roberts, a barrister whose 18 year old autistic son was one of the would-be claimants, said: “Legal aid has spent Â£15m [€22m; $30m], not a penny of which came to our children. I think it's a travesty of justice that we didn't get a trial in this country.”
Dr Wakefield, who faces disciplinary charges before the General Medical Council, is one of 17 expert witnesses for Michelle Cedillo, whose hearing is expected to last three weeks. If she is successful the US government could be ordered to pay more than $1m in compensation, as well as legal costs.
The UK's no fault scheme for vaccine damage has a cap of Â£100000, from which victims have to pay their legal costs. Because the scheme pays little in comparison with what a successful litigant might win, parents with children who will need looking after for life often resort to the courts.
But the legal costs of court cases are so high that the Legal Services Commission is increasingly reluctant to fund group actions in court.
Peter Todd, the solicitor who represents the two children who still have legal aid, said: “I think the system here is crazy and badly needs to be reformed.”