Misconduct, Mitochondria and the Omnibus Autism Proceedings
By Louis Conte
Robert F. Kennedy Jr., Chairman of Children’s Health Defense (CHD) and Rolf Hazlehurst, the father of a vaccine-injured child have petitioned Michael Horowitz, the Inspector General of the Department of Justice (DOJ) to investigate the conduct of two DOJ attorneys, Vincent Matanoski and Lynn Ricciardella. The two attorneys represented the Secretary of Health and Human Services in the National Vaccine Injury Compensation Program (NVICP), otherwise known as the “Vaccine Court”, in the Omnibus Autism Proceedings (OAP). The alleged actions of the two attorneys in the OAP were fraudulent and obstructed justice.
Kennedy and Hazlehurst have also written to the House of Representatives’ Judiciary Committee and the Senate’s Committee on the Judiciary requesting that the conduct of Matanoski and Ricciardella be investigated.
What is the NVICP?
The 1986 National Childhood Vaccine Injury Act established the National Vaccine Injury Compensation Program (NVICP) to ensure that children were quickly, compassionately and fairly compensated for vaccine injuries. The 1986 Act, passed by Congress and signed into law by President Ronald Reagan, effectively granted vaccine manufacturers freedom from civil tort liability. A petitioner who asserts that their child has suffered a vaccine injury must file a petition for compensation against the Secretary of Health and Human Services (HHS) in the NVICP.
The Secretary of HHS is defended by DOJ attorneys from the Civil Torts Branch. As originally conceived, the NVICP was intended to a be a non-litigious compensation program that was supposed to lean toward fairly compensating vaccine-injured children. Petitioners were to meet a “preponderance of the evidence” level of proof to establish that a vaccine injury occurred to merit compensation. This burden of proof is much less than the “beyond a reasonable doubt” standard that must be met in a criminal proceeding. However, the program has not functioned as Congress envisioned and now functions in a manner that many observers feel is not favorable to petitioners.
What Were the Omnibus Autism Proceedings (OAP) and Why Are They Important Now?
Special Masters, not judges, preside over cases in the NVICP. In 2002, the Special Masters of NVICP consolidated 5,400 petitioner claims asserting that vaccine injury caused their children’s autism into the Omnibus Autism Proceedings (OAP). The Special Masters then established hearings that would address the 5,400 cases through six test cases. Originally, there were to be nine test cases. These test cases would be used to test three theories of autism causation via vaccine injury: 1) Did thimerosal, the mercury preservative used in vaccines cause autism? 2) Did the MMR vaccine cause autism and 3) Did a combination of thimerosal and the MMR cause autism?
The Hazlehurst case and the Cedillo cases were test cases. Another particularly strong test case, that of Child Doe 77, was removed as a test case, settled and sealed by DOJ and the Secretary of Health and Human Services. The government conceded the case stating that the vaccines that Child Doe 77 received resulted in her suffering an encephalopathy (brain injury), seizures and “features of an autism spectrum disorder.” Because Child Doe 77 was removed as a test case, it could not be used to establish precedent on any of the other OAP cases.
The Special Masters ruled, in a series of sharply-worded decisions, that none of the theories of autism causation in the test cases were proven and the petitions were dismissed.
Recently Discovered Evidence Turns the OAP Ruling on Its Head
Kennedy and Hazlehurst allege that Matanoski and Ricciardella acted together to intentionally misrepresent the opinion of one of their own witnesses, Dr. Andrew Zimmerman, to conceal evidence of his true opinion from the Special Masters who presided in the “Vaccine Court” and the petitioners who were seeking justice and compensation. The evidence that Matanoski and Ricciardella concealed was a report authored by Dr. Zimmerman showing how vaccines may cause autism in a subset of children with underlying mitochondrial issues.
Dr. Andrew Zimmerman is regarded as perhaps the world’s leading pediatric neurologist in the field of autism research. He was selected by DOJ as an expert witness and submitted a report on the OAP test case, Cedillo v. HHS in which he rendered the opinion that the MMR vaccine did not cause autism in the Cedillo case. However, he informed the DOJ attorneys that his opinion should not be considered a “blanket opinion” which covered all of the OAP test cases. Indeed, in Child Doe 77, Zimmerman filed a report in which he offered the opinion that vaccines did cause this child child’s autism because Child Doe 77 had an underlying mitochondrial condition. Zimmerman’s report further stated that vaccines could well trigger a regression ending in autism in a subset – perhaps a small subset – of children with a pre-existing mitochondrial disorder.
What is Mitochondria dysfunction, why is it important in autism causation and why was it a critical issue in the OAP?
Mitochondria are organelles found in most cells that are responsible for cellular respiration: they convert food energy into ATP which powers cellular function. Mitochondrial dysfunction can lead to a myriad of functional disorders including muscle fatigue, speech disorders, heart disease, bowel problems and hearing difficulties which make mitochondrial disorders difficult to diagnose. Many of these same symptoms are commonly reported in children with autism and it is likely that a significant percentage of children with autism have mitochondrial dysfunction. Studies indicate that the percentage of people with autism who have underlying mitochondrial issues could be between twenty and fifty percent.
Dr. Andrew Zimmerman, a neurologist with the Kennedy Krieger Institute at Johns Hopkins, found that the mitochondrial dysfunction in Child Doe 77 was an underlying co-factor that, along with vaccines, that resulted in her regression into autism. While Dr. Zimmerman opined in his report that such events are “rare”, more research needs to be done to determine the true scope of the nexus between mitochondrial issues and vaccine injury.
Zimmerman authored reports on two cases, Cedillo v HHS. and Child Doe 77 v. HHS. Zimmerman wrote that vaccines did not cause autism in the case of Cedillo, but found differently in Child Doe 77. Zimmerman made clear to the two attorneys that his Cedillo report was not intended to be a “blanket” finding that applied to all the other OAP cases. However, Matanoski and Ricciardella selected portions of the Zimmerman report on the Cedillo case that served the interests of the government but failed to disclose his finding on Child Doe 77. The rules governing the NVICP require attorneys to disclose and share all information to all parties involved in proceedings to insure fundamental fairness and due process.
Full disclosure of case information is an expected common practice in U.S. Courts and a hallmark of “acting in good faith.” There are many instances where case decisions have been overturned when attorneys fail to fully disclose information to all parties. Kennedy and Hazlehurst assert that Matanoski and Ricciardella failed to disclose Dr. Zimmerman’s report and findings, “cherry picked” portions of the report favorable to their interests – against Dr. Zimmerman’s explicit request that they not do so – and then engaged in series of actions to keep the report and the subsequent settlement of the Child Doe 77 case from the petitioners and the public.
Kennedy and Hazlehurst then note that the deceptive conduct of Matanoski and Ricciardella eventually led to deceiving the United States Court of Appeals in the Hazlehurst case appeal and even the United States Supreme Court in the 2011 landmark case Brusewitz v Wyeth.
Zimmerman’s full opinion was devastating to the government’s case. Simply stated, it was now entirely possible that the government would lose thousands of the OAP cases. The cost could be into the billions and the fund that compensated the vaccine injured would be bankrupted.
Even worse, the government’s claim that vaccines are “safe and effective” would evaporate and the claim that “vaccines don’t cause autism” would be debunked.
After Dr. Zimmerman submitted his report, the DOJ attorney informed Dr. Zimmerman that he would no longer be needed as a witness on Cedillo or any other OAP test case. The DOJ attorneys then informed the Special Masters that Dr. Zimmerman would not be used as a witness in the OAP.
Instead of informing the Special Masters and petitioners of Dr. Zimmerman’s true opinion, as required by statute, DOJ kept his reports from them. Matanoski and Ricciardella then secretly settled the Child Doe 77. Ultimately, the settlement of the case was leaked and received significant media and public attention. While the attempt to keep the settlement secret failed, the plan to keep Dr. Zimmerman’s true opinion on how vaccines could cause autism was kept a secret – until recently.
It is fair to point out that the science used by the Special Masters in OAP has also come under fire. The research produced by Poul Thorsen for the CDC which seemingly exonerated thimerosal and the MMR vaccine in causing autism has been shown to have serious flaws. Thorsen is currently on the Department of Health and Human Service’s (DHHS) most wanted list. He is a fugitive from justice due to his indictment for stealing over one million dollars of CDC grant money. In 2014, Dr. William Thompson, a co-author of the CDC’s research often sited as proof that the MMR vaccine did not cause autism revealed that CDC researchers manipulated the design of the study inappropriately and even destroyed data that showed that the MMR vaccine did cause autism.
Dr. Zimmerman revealed the information about Matanoski’s and Ricciardella’s conduct during a recent deposition in a medical malpractice case brought against the doctor who administered Yates Hazlehurst’s vaccines in the State of Tennessee. Zimmerman revealed that he finds that Yates Hazlehurst regression into autism mirrors that of the regression in Child Doe 77.
The conduct of Matanoski and Ricciardella that Kennedy and Hazlehurst allege seriously undermines the decisions in the Omnibus Autism Proceedings. Thousands of children may well be victims of vaccine-induced brain damage featuring autism and of a shocking injustice of historical proportions. If true, the civil rights of thousands of petitioners have been violated. The decisions of the Special Masters in the Omnibus Autism Proceedings may now be invalid and strong arguments to re-open the proceedings could well have merit. Decisions on other vaccine injury cases and law, all the way to the Supreme Court, are thrown into question.
The damage is not limited to the legal world. The health of hundreds of thousands of children who have been diagnosed with autism since the alleged misconduct of Matanoski and Ricciardella could well lay at the feet of the US Department of Justice.
The safety of vaccines and the integrity of the nation’s immunization program are now open questions. It is critical that the information that Kennedy and Hazlehurst have brought to light be investigated forthwith.
This CHD action alert will help you ask the OIG and Judiciary committees for an investigation. Thank you.
Louis Conte is a polygraph examiner, writer, retired law enforcement officer and independent investigator. As a leading advocate for people with autism, he has championed their cause in state capitols and Washington, DC. He was the lead investigator for and co-author of a seminal paper on the autism-vaccine controversy, Unanswered Questions from the Vaccine Injury Compensation Program: A Review of Compensated Cases of Vaccine-Induced Brain Injury, in the Pace Environmental Law Review, which found that the National Vaccine Injury Compensation Program compensated many children with autism while publicly declaring that vaccines do not cause autism. He is the author of a novel, The Autism War and co-author with Tony Lyons of a work of non-fiction, non-fiction work, Vaccine Injuries: Documented Adverse Reactions to Vaccines, both published by Skyhorse.
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