The Case of Hannah Poling: The question of disclosure

by Kristina Chew, PhD on May 1st, 2008

On April 11th, a new document in the case of Hannah Poling was filed. The document—Order Deferring Ruling on Petitioners’ Motion for Complete Transparency of Proceedings—-can be read here. The petitioners are Terry Poling and Jon Poling, the parents of “Hannah Poling, a minor.” The respondent is the Secretary of Health and Human Services. The Polings have requested that two Rule 4 Reports filed by the respondent be disclosed. (A Rule 4 Report is filed by respondent in a vaccine proceeding and incorporates medical information pertaining to the petitioner.)

One report states that Hannah’s seizure disorder was “not related to her vaccinations”; the second states that this was the case and that she qualifies for compensation. In late February-early March, it was learned that respondent’s Rule 4 Report had been made “publicly available in an electronic format.” The conclusion of the document is to defer a ruling on the petitioners’ motion for “complete transparency of proceedings”; while both parties express “willingness” to “provide consent,” such has not yet been reached.

Journalist David Kirby wrote his first post about the case of Hannah Poling on February 25th. On February 26th, in a post entitled The Vaccine-Autism Court Document Every American Should Read, Kirby posted (as he writes) a “verbatim copy of the US Government concession filed last November in a vaccine-autism case in the Court of Federal Claims, with the names of the family redacted” and noted that this document was the subject of his February 25th post.

A discussion about the new document is ongoing at Left Brain/Right Brain. I’ve summarized the document below (click on “read more”). A key distinction made in the response to the petitioners, the Polings, is about what constitutes “information” and what is considered “evidence.” Respondent argues that “evidence” is a narrower term and that there is “information” in the reports whose disclosure has “certain limitations” placed on it, in accordance with section 12(d)(4)(A) of the Vaccine Act.

A Rule 4 report was filed on November 9, 2007 in which respondent concedes that

“petitioner should be awarded compensation in accordance with 42 U.S.C. § 300aa-11(c)(1)(C)(ii). Respondent stated that, based on a review of the petition, medical records and affidavits, the “facts of this case meet the statutory criteria for demonstrating that the vaccination Hannah received on July 19, 2000, significantly aggravated an underlying mitochondrial disorder, which predisposed her to deficits in cellular energy metabolism and manifested as a regressive encephalopathy with features of autism spectrum disorder.” Rule 4 Reportat 7. Respondent further stated in the Rule 4 Report that the onset of Hannah’s complex partial seizure disorder, nearly six years after her July 19, 2000 vaccinations, was not related to her vaccinations. Rule 4 Report at 7. “

A Supplemental Rule 4 Report was filed by respondent on February 21 2008, after petitioners filed an expert report from Andrew Zimmerman, M.D., Hannah’s treating neurologist; this expert report was “in support of their claim that Hannah’s complex partial seizure disorder was a sequela of her vaccine-related injury.” The Supplemental Rule 4 Report contained respondent’s review of Dr. Zimmerman’s expert report. Respondent stated in it that:

“[h]aving reviewed this additional evidence, [medical personnel at the Division of Vaccine Injury Compensation, Department of Health and Human Services (DVIC)] now recommend[] compensation for Hannah’s seizure disorder as sequela of her vaccine-injury in accordance with 42 U.S.C. § 300aa-11(c)(1)(C)(ii).” Id. at 2. Based on respondent’s concession, a damages determination is now underway in this case.

After the Supplemental Rule 4 Report was filed, petitioners’ counsel “informally contacted the chambers of the undersigned requesting ‘permission [for all parties] to discuss the details involved in the case of Hannah Poling v. Dept. of Sec’y of Health and Human Svcs., 02-1466V.’ ” It was subsequently learned that

…respondent’s Rule 4 Report had become publicly available in an electronic format other than the format of the Public Access to Court Electronic Records (PACER) System, the court’s official electronic medium. Id. Quoting section 12(d)(4)(A) of the Vaccine Act, the undersigned stated that disclosure of the Rule 4 Report was proscribed by statute unless express written consent was obtained first.

On March 4, the Polings filed a motion requesting “complete transparency” of the proceedings. They stated that they “‘believe[] the public has a right to know the details of her case and the extent of the Respondent’s concession.’” Arguing that the “petitioners lack a legal basis for their request,” respondent holds that “contrary to petitioners’ representations, the term information is not limited narrowly to “evidence,” but is a broader term.” Petitioners have filed a Reply in which they state that “‘the disclosure of the rule 4 reports in this case are solely dependent on the will of the petitioners and that permission from respondent is not required,” and that “[t]here is nothing in these reports that is ‘information’ supplied by the respondent.”

In a Sur-Reply, respondent expresses a “willingness” to “‘agree[] to petitioners’ request for mutual consent to public disclosure in this case with the understand that such consent on the part of respondent [i]s effective only as to disclosures occurring after respondent’s representatives signed the consent.’” Respondent argues that the “stated basis” for his “concession of petitioners’ claim”—that Hannah Poling’s underlying mitonchondrial disorder was aggravated by vaccines and led to “regressive encephalopathy with features of autism spectrum disorder”—reflects respondent’s “reasoning,” and that this “reasoning” should be

construed as information as that term is used in section 12(d)(4)(A) of the Vaccine Act. Moreover, the disclosure of the direct dial number for respondent’s counsel could be construed to “constitute a clearly unwarranted invasion of privacy” in light of the strong public interest in and strong public opinions about autism cases in general and this case in particular. Respondent, however, has not advanced either of these arguments in the filed briefing.

While both parties have “mutually expressed willingness to provide consent,” they have been unable to execute a signed consent and a ruling on the petitioners’ motion is deferred for 60 days.

It is noted in passing that, due to an “earlier unauthorized disclosure,” the petitioners’ request that the two Rule 4 Reports be disclosed is “moot.”

Tags: asd, asperger, autism, david kirby, evidence, government, information, mercury, mitochondrial disease, Parenting, pdd-nos, vaccine court, Vaccines

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