David Kirby’s back, and this time his anti-vaccine fear mongering induces…ennui

I sense a disturbance in the antivaccine Force, which is, of course, by definition the Dark Side.

Whenever I sense such a disturbance, there are a number of possible reactions that it provokes in me. One such reaction is alarm, as when antivaccine activists say something that is just clever enough to sound plausible enough that it might cause trouble. It never is, of course, but it often takes a close reading and some research to figure out what the game is and deconstruct the nonsense. Sometimes, my reaction is amusement, as when an antivaccine activist says something that is so hilariously dumb, so over-the-top in its scientific ignorance that it provokes chuckles or even guffaws as I read it, as, for instance, whenever Vox Day jumps into the antivaccine fray. Such excretions have a tendency to provoke some amused not-so-Respectful Insolence; that is, when I’m in the mood. Sometimes, my reaction is boredom, pure ennui. Such reactions are generally reserved for antivaccine nonsense that is so unimaginative, so derivative of lies and misinformation that antivaccinationists have been flogging before, that I’d really prefer to let the cup pass. However, I can’t, because I feel duty-bound, knowing that supporters of science-based medicine opposing the quackery that is the antivaccine movement are about to be buried in a tsunami (word choice intentional) of utter nonsense.

You know such a moment is fast upon us whenever David Kirby decides to address the vaccine-autism manufactroversy.

Of course, David Kirby is so 2005 or 2006. That was back when hardly a week passed without a dropping by Kirby appearing on that wretched hive of scum and quackery, The Huffington Post. These days, he rarely dips his toe into the antivaccine pool, but when he does he twists the catch phrase of the “most interesting man alive” from “stay thirsty my friends” to “stay stupid my friends,” which is just what he’s done this time. In a way, it’s oddly comforting to know that, even after all these years David Kirby can still bring home the stupid, flaming like napalm, and bring home the stupid he does in a post on—where else?—HuffPo entitled Vaccine Court Awards Millions to Two Children With Autism. He begins with what is, in essence, a bait and switch that is apparent in the title. You can see right there that what Kirby is going to try to convince people is that the National Vaccine Injury Compensation Program (VICP) through the Vaccine Court has “admitted” that vaccines cause autism by compensating children for vaccine injuries that include autism. We’ve heard this ploy time and time again. The routine is well-established and trotted out every so often to convince the credulous that somehow the government is “hiding” the “truth” that vaccines cause autism while paying off the parents of vaccine-injured autistic children.

It’s a transparent ploy for a variety of reasons. For one thing, the standard of evidence for the Vaccine Court is what has been referred to as “50% and a feather.” Basically, it’s the same standard of evidence as any other civil court: a preponderance of evidence. For another thing, Daubert rules are relaxed, and scientific evidence is not disallowed if it doesn’t meet Daubert standards. Finally, even if the VICP did reimburse parents because the Vaccine Court ruled that vacines cause autism, it would not be evidence that vaccines do, in fact, cause autism. After all, the courts have gotten it wrong on science time and time again, for example when there was a settlement of a class action lawsuit claiming that silicone breast implants cause all sorts of chronic systemic health problems. They don’t. No, courts don’t decide scientific conclusions; scientists do through evidence, experimentation, and hypothesis-testing that ultimately lead to a scientific consensus. Even if VICP did rule as David Kirby wants you to think it did, it would not mean that vaccines cause autism. More importantly, that’s not what the court ruled, and even David Kirby admits it:

The federal Vaccine Injury Compensation Program, better known as “vaccine court,” has just awarded millions of dollars to two children with autism for “pain and suffering” and lifelong care of their injuries, which together could cost tens of millions of dollars.

The government did not admit that vaccines caused autism, at least in one of the children. Both cases were “unpublished,” meaning information is limited, and access to medical records and other exhibits is blocked. Much of the information presented here comes from documents found at the vaccine court website.

Some observers will say the vaccine-induced encephalopathy (brain disease) documented in both children is unrelated to their autism spectrum disorder (ASD). Others will say there is plenty of evidence to suggest otherwise.

It’s exactly the same sort of issue again, and Kirby echoes a mailing I got from the Autism Action Network (another antivaccine quackery group), complete with a link to the order on one of the children, Ryan Mojabi. Of coure, the AAN can’t resist throwing this gem in:

And remember Andrew Wakefield lost his medical license for suggesting that there may be a connection between autism, the MMR and bowel disease, and that further study was warranted (but people should continue to immunize.)

Uh, no. He lost his medical license for conflicts of interest, research misconduct, and unethical behavior, not because he suggested a connection between autism, MMR, and bowel disease. Nice try, though, and Wakefield was wrong about his purported “connection” between MMR and autism. Even Bob “I’m not anti-vaccine, no, really” Sears is in on the action, sarcastically saying on his Facebook page, “Vaccines don’t cause autism . . . except when they do.”

But let’s get back to David Kirby’s take on Ryan Mojabi’s case. What the Special Masters decided is summarized thusly:

On June 9, 2011, respondent filed a supplemental report pursuant to Vaccine Rule
4(c) stating it was respondent’s view that Ryan suffered a Table injury under the Vaccine
Act – namely, an encephalitis within five to fifteen days following receipt of the
December 19, 2003 MMR vaccine, see 42 C.F.R. § 100.3(a)(III)(B), and that this case is
appropriate for compensation under the terms of the Vaccine Program.

In addition, although Ryan clearly has neurological problems, as Catherina points out there is no evidence of actual autism. In fact, if you go and look up earlier records, you’ll find that the child did not demonstrate any ASD behaviors on CHAT screenings:

On May 10, 2004, at Ryan’s sixteen month well-child visit, Dr. Armstrong completed a Checklist for Autism in Toddlers (CHAT) screen. Ps’ Ex. 4 At 25. That CHAT screen indicated that Ryan was interested in other children, pretend play, peek-a-boo, points with index finger, makes eye contact, and brings object for show. Id. On January 25, 2005, Dr. Armstrong examined Ryan for his twenty-four month well-baby check. Ps’ Ex. 4 at 31. During the visit, Dr. Armstrong conducted another CHAT screen, and again Ryan postively performed each of the listed behaviors.

The parents’ story is in fact rather difficult to accept, as Kirby inadvertently seems to point out. One interesting point is that Ryan’s family took him on a trip to Iran not long after being vaccinated. There was a stop in Paris, where the child was claimed to be very febrile, but the parents didn’t take him to a doctor. Moreover, the doctor’s records before the family left showed no sign of a severe reaction to the MMR and hepatitis B vaccine:

At trial, however, the government argued powerfully that written medical records, and the recollections of Ryan’s doctor, were inconsistent with his parents’ testimony. If Ryan had truly suffered an MMR encephalopathy, for example, his family would never have taken him overseas. And his parents’ complaints of ASD symptoms were raised a full year after returning from abroad, they alleged. It looked like the family had a weak case.

Indeed, if you look at the findings of fact in the case, the mother’s testimony is rather confused and at odds with the medical records and the doctor’s recollection, just as Kirby conceded. For example, Mrs. Mohabi stated that her child cried loudly and was very uncomfortable and that she called the doctor’s office more than once. Dr. Armstrong’s office notes and recollection were:

Dr. Armstrong had no recollection of the symptoms that Mrs. Vahabi described after Ryan’s first MMR vaccination and prior to the Mojabis’ travel to Iran. Id. at 155- 156. Nor did Dr. Armstrong have any recollection of receiving phone calls from the Mojabis during the period of time between Ryan’s MMR vaccination and the Mojabis’ departure for travel. Id. at 155-156. He testified that if he had been informed of Ryan’s alleged symptoms of restlessness and eye-twitching after the receipt of the vaccinations, he would have wanted to see Ryan back at the office. Id. at 181. He also testified that he would have been concerned about shaking and high-pitched crying. Id.

the doctor did conceded that it’s possible, based on the algorithm at Kaiser Permanente that the call was not deemed urgent enough to go through to him, but he also pointed out that the algorithm guides the call screeners to take certain actions based on what symptoms are described. The discrepancies between the mother’s testimony and the contemporaneous documentary record led the court to conclude back in 2009:

Here, while the undersigned found petitioners to be earnest in their testimony, it is difficult to reconcile petitioners’ later-recalled account of certain dramatic events following Ryan’s vaccination with the dearth of medical records corroborating their account. A review of the filed medical records suggests that petitioners may have recalled during the fact hearing events of importance that actually occurred later than the time period in question. But, in the absence of other evidence that supports the account that petitioners provided, the undersigned cannot credit certain parts of the Mojabis’ testimony. Specifically, the undersigned cannot credit petitioners’ testimony that prior to the family’s departure for Paris, Mrs. Vahabi placed numerous calls to Dr. Armstrong’s office on Ryan’s behalf describing the same type and degree of symptoms that she conveyed to the undersigned during the hearing. There is simply no corroboration of petitioners’ testimony in the record. Although the record-keeping practices by Kaiser Permanente have been shown during this proceeding to be disappointingly flawed, the absence of any record of Mrs. Vahabi’s calls strongly suggests that either the calls were not placed or, as Dr. Armstrong testified, the call handler did not deem the described symptoms to be of sufficient concern to warrant mention to Dr. Armstrong. Nor does it appear from the documentary record that the frequency of Mrs. Vahabi’s alleged calls to Dr. Armstrong’s office were sufficient to trigger either a message trail or a responsive call from Dr. Armstrong’s office. Additionally, Dr. Armstrong had no recollection of any calls from petitioners during the period between Ryan’s vaccination and the family’s departure for Paris. Tr. II at 156.

There are also a lot of other oddities about this story. For instance, despite multiple visits to doctors in Iran, Ryan was not admitted to the hospital, and he appeared to be fine for seven weeks after his last visit to an Iranian doctor, up until the mother brought him home at the end of February. Ultimately, the Vaccine Court ruled to compensate Ryan’s family because he appeared to have suffered a “table injury” of encephalitis. Why it decided to do this is unclear, but Kirby hints at dark conspiracies (in his usual fashion), pointing out that “something changed,” implying that it was new evidence under seal that did it. Maybe. Maybe not. What is clear is that, whatever the reasoning for the court’s final decision, the court did not compensate the Mojabi family for Ryan having an ASD. From the evidence that is publicly available, it doesn’t even sound as though Ryan has an ASD.

The second case discussed is Emily Lowrie, whose mother is Jillian Moller. Kirby, as is his wont, presents this case as David versus Goliath, with the government fighting to crush the child and her mother. (It is David Kirby we’re talking about, after all.) The story is actually somewhat different from that of Ryan Mojabi in that there was actually fairly convincing evidence that Emily suffered symptoms within two weeks of having received her vaccinations. She probably did suffer encephalopathy in close enough temporal association with vaccination to be, as the court ruled, a table injury. But evidence of vaccines causing Emily to become autistic? There is none. In fact, unlike the case of Ryan Mojabi, autism or autism spectrum disorder isn’t even mentioned in the ruling.

None of this stops Kirby from prime Grade A conspiracy-mongering:

The case dragged on for years, with motions and counter-motions, status reports and expert medical reports. In 2007, Moller filed for summary judgment. That also took years, as more medical records were submitted to bolster Emily’s case.

After the ASD diagnosis, the judge reportedly became convinced that Emily would prevail. “My attorney said she was angry, she felt forced into a corner with no choice but to find for us,” Moller said. “She said, ‘Emily has autism, and I don’t want to give other families who filed autism claims any hope.'”

This is lame, even for David Kirby. It’s pure hearsay, the mother complaining about being “badgered” on the stand. That’s how the legal system works, and I understand how uncomfortable it can be. Your opponent’s lawyers can cross-examine you on the stand, and it can be very uncomfortable; then your lawyers get to cross examine your opponent’s witnesses. From the transcripts I read, there was at least one respondent witness who likely had a hard time on the stand. I realize that it might not seem fair that parents with a special needs child has to be subjected to cross examination, but that’s the way the legal system works. It would be nice if there were a better way, but even various review boards would rely to some extent on a bit of an adversarial system. More importantly, however, what we have here is a plaintiff claiming that her lawyer told her that the judge became very angry that she would have to compensate Emily once she was diagnosed with autism because she didn’t want to give antivaccinationists hope. Seriously? The judge would have to be pretty careless to say something so utterly stupid in front of a plaintiff’s attorney, or even where attorneys could overhear.

Besides, having followed cases going through the Vaccine Court since 2005 or so, I smell hyperbole. In every case that I’ve examined, not only have the Special Masters (who do most of the questioning of parents) not been confrontational, but they’ve bent over backwards to give parents a chance to tell their stories in as non-judgmental a manner as possible. True, various parents’ expert witnesses don’t always fare so well (given that more than a few of them in the Autism Omnibus were anti-vaccine quacks, that’s not surprising), but the parents themselves, as far as I’ve been able to tell, have not been subjected to the same sort of questioning. One wonders if Mrs. Moller simply can’t take having her story questioned even gently.

As much sympathy as I might have for Mrs. Moller as the mother raising a special needs child, I find this story difficult to believe, particularly coming from David Kirby. In the end, he’s playing the same game he’s been playing since 2004. The difference is that right now he’s nowhere near as good at it as he was back in the day. Back in 2005, when I first encountered Kirby, I actually had to think a bit in order to deconstruct the various twists and turns of tortuous logic strung together by cherry picked facts mixed with misinformation. In 2013, all I feel is ennui, because it’s so easy to pick Kirby’s latest apart. But I do it because it has to be done. If I and other bloggers can keep even just a few parents on the fence from falling for Kirby’s spin, it’s worth it.