The Expert and Decorum By F. Edward Yazbak , MD , FAAP

It is not clear why the attorneys for the Department of Justice waited so long to call Stephen A. Bustin PhD as an expert witness in Cedillo v. Secretary of HHS and why his reports were filed so late.

It was certainly well known that Michelle Cedillo had evidence of measles virus genomic RNA in the gut and that her PCR test had been performed at Dr. John O'Leary's laboratory.

It was also well known that Dr. Bustin had spent an enormous amount of time at a significant cost to the MMR vaccine makers attempting to discredit Dr. O'Leary's results.

At the trial, Dr. Bustin was repeatedly seen talking with a British journalist whose sole purpose in life has been to attack and discredit Dr. Andrew J. Wakefield, the British physician who first suggested the need to research the role of MMR vaccination in regressive autism

A recent interview by Dr. Bustin may have been timed to influence upcoming GMC hearings in London .

What effect it will have on the U.S. Autism Litigation is hard to predict.

***

According to his web site [ http://www.sabustin.org/ ], Stephen A Bustin PhD is Professor of Molecular Science, Institute of Cell and Molecular Science Barts and the London, University of London and Visiting Professor of Molecular Biology School of Health and Social Sciences, Middlesex University.

The web site features a portrait of a smiling Dr. Bustin wearing a gold and red academic gown. Below the portrait and under “Latest News” is a link to “Expert witness evidence at MMR vaccine trial Washington, DC, 20th June 2007"

Just under Dr. Bustin's address and telephone number is the statement “I am grateful to Quantace for sponsorship of this web site” and a white rectangle with the name Quantace and a leaning halo. [ www.quantace.com ]

On the evening of Friday July 6, 2007 , I was visitor # 5990 and there was a note to the effect that the site had been updated on June 15, 2007 .

The transcript of the June 20 session (Day 8) became available on line on June 22.

The web site was re-updated on July 12, 2007

***

It may be advisable at this point to access [ ftp://autism.uscfc.uscourts.gov/autism/transcripts/day08.pdf ] and go to the Afternoon Session starting on page 1930 for Dr. Bustin's testimony.

The first three pages are worth reading as they are relevant to this report.

The ruling on the Bustin testimony that Special Master Hastings mentioned at the top of page 1932 (Order 61107, filed June 11, 2007 ) is reproduced below and available at [ http://www.uscfc.uscourts.gov/OSM/Autism/Order61107.pdf ] .

It clearly states: “For the purposes of the Omnibus Autism Proceedings (“OAP”) and for the reasons indicated in the ruling issued on June 8, 2007, in Cedillo v. Sec'y of HHS , the undersigned special masters will defer deciding whether we will rely on the reports of Dr. Bustin (Respondent's Exhibits WW and XX) as evidence in the OAP. However the parties may question Dr. Bustin or any other expert witness concerning the contents of these two reports at the proceedings commencing on June 11, 2007 .” The order was signed by Special Masters Denise K. Vowel, Patricia Campbell-Smith and Georges L. Hastings Jr.

The last paragraph on page 1932 contains the following statement by Special Master Hastings on lines 23-24 “I will decide later on whether to give those reports any weight…”

In her cross-examination of Dr. Bustin, plaintiff's attorney Sylvia Chin-Caplan inquired about his web site (p. 2047) and its sponsor, Quantace.

She then asked Dr. Bustin about his work relative to the now defunct United Kingdom MMR litigation “I think you indicated that you spent roughly 1,500 hours at 150 pounds sterling” and he answered “Yes, that is correct” (p. 2050). When further questioned, Dr. Bustin stated that he received his checks from the solicitors but that the funds actually came from Merck, Aventis and GSK. (p. 2053)

Ms. Chin-Caplan went on to ask the witness about what he was being paid to come and testify in the U.S. and he answered “It's $250 an hour while I am here and $125 an hour while I'm traveling and nothing while I'm sleeping I think. And also my airfare and hotel are being paid for. (p. 2053)

In a curious exchange with plaintiff's attorney, Dr. Bustin stated that his salary was 60,000 pounds, roughly $120,000 (p. 2052). If this is per annum, and if Dr. Bustin works 40 hour weeks, then it appears that at his full time job, he is making less than 29 pounds sterling an hour.

At the Washington , DC trial, Dr. Bustin was seen speaking repeatedly and at length with a British journalist named Brian Deer, who has long been obsessed with Andrew Wakefield and his research. Deer's vitriolic attacks on Wakefield may have influenced the General Medical Council (GMC) to initiate the upcoming hearings into the scientific activities of Dr. Wakefield and distinguished Professors John Walker-Smith and Simon Murch.

***

On Wednesday July 4, 2007 , Spiked Online circulated an interesting article by scientific writer Dr. Michael Fitzpatrick in the United Kingdom and worldwide.

[ http://www.spiked-online.com/index.php?/site/article/3562/ ]

‘The MMR-autism theory? There's nothing in it'
Michael Fitzpatrick talks to Stephen Bustin, whose devastating testimony in
a US court demolished the last shred of evidence against vaccines
.

According to Dr. Fitzpatrick “Testimony in a US court last week by London-based molecular biologist Stephen Bustin comprehensively exposed the unreliability of O'Leary's findings, based on an investigation of his laboratory carried out in early 2004. ‘It has been incredibly frustrating', Professor Bustin told me on his return from the USA . ‘For three years we have been unable [for legal reasons] to reveal our findings. Now I want to get the message out about the O'Leary/Wakefield research: there's nothing in it'. Bustin's revelations follow a series of studies, using the most rigorous
techniques, which have failed to replicate O'Leary's results, while other researchers have disputed the existence of ‘autistic enterocolitis' as a
distinctive disease entity (see footnotes 1-3). All these results are reassuring to parents of autistic children, whose anxieties have been needlessly provoked by the Wakefield campaign. Parents facing decisions about immunisation can also be reassured that the MMR-autism scare has been shown to have no basis in science.”

Dr. Fitzpatrick went on to the real purpose of his article and its interesting timing just before the upcoming GMC hearings in London “…the testimony of Bustin and other expert witnesses was yet another blow for the anti-vaccine campaigners as Andrew Wakefield returns to London next week from his new base in a private clinic in Texas to face charges of professional misconduct at the General Medical Council.”

A little later, Dr. Fitzpatrick stated “Bustin's report on the O'Leary lab was key to the collapse of the anti-MMR litigation in the UK . When the lawyers at the Legal Services Commission discovered this authoritative investigation concluding that O'Leary's findings were unreliable they realised that, putting this together with the wider evidence against the MMR-autism thesis, the litigation had no chance of succeeding. Yet the lawyers leading the campaign refused to acknowledge openly that the scientific case against the MMR-autism link was overwhelming and advise their clients to conclude the action. Instead, they continued to pursue the case, allowing it to drag on for a small number of families, acting without legal aid funding, for a further three years.”

***

There will be evidently procedural and legal questions about all this.

The Bustin statement “ For three years we have been unable [for legal reasons] to reveal our findings. Now I want to get the message out about the O'Leary/Wakefield research: there's nothing in it” will certainly be taken very seriously by Special Masters Hastings , Vowel and Campbell-Smith.

According to Special Master Hastings and as clearly stated above, a decision has not yet been made to admit or not admit the Bustin reports as evidence in the Court proceedings. For Dr. Bustin to discuss them with a medical journalist as a fait accompli in such a personally-biased statement is at least presumptuous if not totally out of order. If the expert witness thought that he was forcing the hands of the U.S. judges with his statement to Dr. Fitzpatrick, he could be in for a surprise.

This indiscretion should also be a concern to the General Medical Council.

There is obviously an important question that needs to be asked: Why is it suddenly acceptable for Dr. Bustin to reveal his “findings” in England NOW - when he was unable to do so in the past three years?

In addition, there are two questions that Attorneys Matanoski and Babcock of the United States Department of Justice need to answer:

  1. When were they informed about the Fitzpatrick interview?

  2. Did they explain to Dr. Bustin explicitly what he could or could not discuss with the press before the end of the trial?

It was evident from Mr. Matanoski's remarks on Day 6 of the trial that he is not a fan of Dr. Wakefield. (p. 1224-1228).

[ ftp://autism.uscfc.uscourts.gov/autism/transcripts/day06.pdf ]

But even he should be very concerned about the Spiked Online article.

We sincerely hope that Special Masters Hastings , Vowel and Campbell-Smith will agree that Michelle Cedillo's rights were gravely compromised by Dr. Bustin's interview and refuse to admit his reports as evidence. Whether Dr. Bustin is allowed to ever testify again in the United States Court of Federal Claims is up to them. Whether he deserves to be compensated for his services at the Cedillo hearings is up to Mr. Matanoski.

F. Edward Yazbak , MD , FAAP

Falmouth , Massachusetts

July 12, 2007

Read more about the autism case in America by clicking here

Please reproduce PDF here

http://www.uscfc.uscourts.gov/OSM/Autism/Order61107.pdf

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