Medical Experts Not Willing To Testify About Shots

[Doc L]

Witnesses for Petitioners Are Often Tough to Find
Few medical experts are willing to testify in vaccine court that shots can
cause harm.
By Myron Levin
Times Staff Writer


The vaccine court can be a hostile place not only for petitioners but for
their expert witnesses too.

Take the case of Dr. Derek Smith. A neurologist and assistant professor at
Harvard Medical School, Smith had been retained to testify for people with
transverse myelitis, a potentially paralyzing neurological disorder.

Smith said he was "highly confident" that the tetanus vaccine could trigger
the ailment in certain vulnerable individuals. Officials with the Vaccine
Injury Compensation Program strongly disagreed.

Petitioners in vaccine court can have a tough time finding top experts, in
part because many doctors are reluctant to say vaccines can cause harm. But
Smith had no such qualms.

"He was so smart," said Sylvia Chin-Caplan, a lawyer for dozens of victims
of the neurological ailment. "I had somebody who had academic credentials,
who did research and had a clinical practice," she said. "Those are the best
people you can get."

Then Smith quit.

According to court papers and interviews, Smith decided to bail out after
complaints were lodged with his superiors by three other experts with a long
history of testifying for the government in vaccine court.

Smith had raised the ire of one of these men - Dr. Roland Martin, a
prominent researcher at the National Institutes of Health. The two had gone
head-to-head as opposing witnesses, and Martin claimed that Smith had
mischaracterized some of his research.

Early in 2002, Smith was informed by his supervisors, Dr. David Hafler at
Harvard and Dr. Howard L. Weiner of Brigham and Women's Hospital in Boston,
where Smith had his clinical practice, that people they respected told them
Smith "was ruining his reputation by his testimony in the vaccine program,"
according to a document filed in vaccine court.

Wary of antagonizing people who could affect his career, Smith decided to
drop out after testifying in one last case, according to Chin-Caplan and
other sources.

Although there were no explicit threats, Chin-Caplan said Smith was told in
so many words that he was jeopardizing his access to research funding.

His loss "was really heartbreaking," Chin-Caplan said. She also considered
it a case of witness tampering.

Smith declined to be interviewed. None of the five other doctors - his
supervisors and the three government witnesses - would comment.

Nor would program officials discuss the propriety of their witnesses
contacting Smith's bosses. They said in a written statement that they were
"not privy to and cannot control professional interactions on the part of
VICP medical experts."

It was not the first time a key witness for petitioners was lost to
hard-nosed tactics. Another time, Justice Department lawyers persuaded an
expert to switch sides, helping them defeat a string of claims.

The cases involved children who suffered seizures and brain damage after
diphtheria-pertussis-tetanus, or DPT, vaccinations. But the children also
had a congenital condition - tuberous sclerosis, or TS - that could trigger
seizures by itself. The issue was whether the shot or only TS was to blame.

Petitioners won a couple of these cases in the early 1990s, thanks to
testimony by Dr. Manuel Gomez of the Mayo Clinic, described in court rulings
as "the world's expert in TS."

Facing at least two dozen similar claims, the government mounted an
aggressive counterattack. It retained three experts who then published three
medical journal articles that supported the government's stand, according to
program records.

And without the knowledge of petitioners, government attorneys also
contacted Gomez, briefed him on the work of their other experts and retained
him as a defense expert.

Gomez was "the guru of tuberous sclerosis," said Robert Moxley, a Wyoming
lawyer for petitioners. His defection "was completely pivotal." Like
Chin-Caplan, Moxley described the government's actions as witness tampering.

In September 1997, Special Master Laura Millman issued a lengthy ruling in
the government's favor - basically finding that TS, not the vaccine, is
usually responsible when TS infants suffer seizures. Gomez, Millman noted,
had believed otherwise, "but in light of his more thorough education in the
literature (courtesy of respondent) he has changed his mind."

Her ruling led to the defeat of most TS claims.

Contacted recently, Gomez said he had altered his opinion "mainly from
accumulated evidence." Otherwise, he said, "I don't think I have much to
tell you."

Millman's ruling was affirmed in 2001 by the U.S. Court of Appeals for the
federal circuit, which also found no proof of improper conduct in the
government's hiring of Gomez.