BRIAN DEER:
THE VANISHING VICTIMS Page 3
Margaret
Best followed the London trials. She sat in the
courtroom during the second. Her son Kenneth's case
would be heard 12 months later, and she needed to be
prepared. Stuart-Smith's ruling was undoubtedly a
setback. She wondered now whether she could win.
She
had been run off her feet preparing to do battle,
even flying to America three times. The sister body
of Fox's organisation, based in Virginia, had learnt
that because the vaccine was an organic product,
batches unavoidably varied in strength. They dubbed
the strongest "hot lots" and zeroed in on
them to launch punitive lawsuits.
Kenneth's
first trial ran for 35 days in front of Justice Liam
Hamilton, the Irish high court's president, aged 61,
a father of three. Some of Margaret's experts came a
long way: one from Hamburg, another from Los Angeles.
But, although she was gregarious and part of a big
family, only her estranged husband corroborated her
account of Kenneth's fits. Her chief expert was Peter
Behan, 49, a neurology professor from Glasgow
University. He said the DTP vaccine could injure in
the manner of a virus, possibly through an allergic
reaction.
The
plaintiff's counsel asked him: "What in your
view caused this condition?"
"I
should say I met his mother," the professor
responded. "I was struck by how decent and
honest she was." Later, he summed-up: "The
temporal profile, the repeated seizures, are all, to
me, virtually textbook examples of what has
previously been reported."
Margaret
also got help from a London solicitor who supplied a
document which showed that Kenneth's vaccine was at
least 2.5 times stronger than normal. In 1969, a
company microbiologist had released a 100-litre batch
- 200,000 doses - that had not been properly tested.
It was never established that this would have made
any difference, but the child's jab had come from a
"hot lot".
The
company was in trouble, but the trial's outcome still
pivoted on her evidence about the fits and when they
occurred. During closing arguments, Wellcome's lawyer
insisted that her recall about the timing was wrong,
but again did not say that she lied. "Her
genuineness is accepted," he submitted.
But
the high court president did not agree. "I think
it goes further," he said. "I am satisfied:
if her account is not accurate she is lying, that
there is no grey area, and there is no point in
trying to fuzz it."
"I
am not trying to fuzz it," the company's
barrister protested. "People can convince
themselves of the truth of events in retrospect. We
see it every day of the week in road traffic
accidents - and all sorts of accidents - people
engineering themselves into that position and
believing it themselves. I don't think your lordship
has to find she is lying if you reject her evidence.
She may well believe - "
The
judge cut him off. "If she is not lying
deliberately, the husband is. Both of them would not
convince themselves."
Hamilton
said he intended to "grasp the nettle," and
such exchanges produced 18 months of suspense before
he delivered his judgment in January 1991. He said
there was "a possibility" that the vaccine
could cause brain damage, that the company knew this
in 1969 and that it was "negligent in releasing
the batch". But when he turned to Kenneth's
fits, he said that he accepted the three doctors'
written records. "It inevitably follows that I
do not accept the evidence of Mr and Mrs Best with
regard to the onset of the attacks."
He
did not say that the parents were lying, but adopted
the company's submission. "I consider that they,
and in particular Mrs Best, have been under
considerable strain because of the tragic condition
of their son," he added, before contradicting
his own previous opinion. "And have convinced
themselves of the association of his condition with
the immunisation."
On
the judge's assessment another victim had vanished,
but his verdict, rejecting the claim for damages, was
not to stand. Seventeen months later, in June 1992,
Margaret returned to Dublin to hear three supreme
court justices give her victory after an appeal. The
doctors' records were circumstantial, they ruled,
while Margaret claimed certain recall. There were
also flaws in the GP's actions, such as delays in
rushing Kenneth to hospital.
But
ultimately the appeal turned, once again, on the
question of whether a mother could be believed.
Margaret gave such a detailed account about the fits,
her visits to the doctor and his alleged response,
that if it was false, the Supreme Court deduced, then
it followed that she could only be lying. But as the
company had conceded she was not lying, then,
logically, it ruled, her story must be true.
"Having regard to the defendants' express
disavowal, which they maintained in this court on
this appeal, of any suggestion that the Bests were
inventing the story which they told concerning these
convulsions," the chief justice, Tom Finlay,
ruled, "it seems to me extremely difficult to
conceive of any form of strain or obsession which
could possibly create the detailed account."
*****
I
returned to see her towards the end of August,
pulling up again at her electric gates and crunching
up the drive to the house. We sat that night at the
kitchen table, where 21 months previously I had
prodded her for background colour. Spurred by her
victory, at least six more court cases were pending
in Ireland and the government had begun a trawl of
medical records in search of more "hot lot"
victims. Another trial was due in Australia. And in
Britain four new potential test cases had been
granted legal aid, with dozens more under review.
Over
steak and chips, I remarked on my confusion over
where she had phoned the doctor from. She said that
in 1969 a lady had lived 500 yards down the hill from
her cottage outside Kinsale. "She was the only
one that had a telephone within the area," she
said. "But on the night in question the nearest
telephone was actually down in the village, outside
the actual post office. It was a public box."
A few
minutes later we got to Kenneth's repeat DTPs after
his apparent first fits. "You would need to be
very stupid," I suggested, "to be told that
this was a consequence of the vaccine and then go
back and do it again."
"You
wouldn't," she replied. "Because there was
nothing wrong with Kenneth: to say Kenneth was still
Kenneth at four months and you wouldn't see any
difference. You might see what Kenneth was getting
were fits. But they would stop after 30 seconds. They
might stop after 10 minutes and then Kenneth was
grand again." She stressed that she was then
only 22. "You can't put an old head on young
shoulders."
Finally,
we came to the supreme court's argument. I tried to
summarise it: that her story was so detailed that
either she was telling the truth or she was
deliberately lying. But since the company had not
accused her of lying, she must be telling the truth.
Nobody, I suggested, would stand up in court and
accuse her of making things up.
"No,
well, they needn't have said that I wasn't
either," she responded. "They could have
kept their mouths shut, perhaps then, and left the
gate open, you know? But they said it: that I wasn't.
But they didn't have to say anything. If they'd said
nothing and just conducted their defence and didn't
open their mouths about whether they thought I was
lying, or whether I was telling the truth, or whether
I was confused - it didn't matter a damn - if they
had said nothing they might have been better
off."
Indeed
they might, but these were legal technicalities.
There was also the human dimension. As we talked,
Margaret kept glancing towards a closed-circuit TV
screen, then monitoring the electric gates. Kenneth,
now aged 29, was out for a drive with Margaret's
live-in friend Christy Foley. They would be back at
any time.
At
10pm the headlights of a Nissan Maxima blurred the
screen. Margaret pressed a button to open the gates.
Then Kenneth walked in, picked up some chips and was
led off to his annexe room.
He
was short, not much more than 5ft in height, with a
big, severely balding head. His right hand was thrown
back across his shoulder, clutching a clump of
tangled wool. It was his greatest passion to blend
balls of wool. He also liked the motion of cars, the
sounds of music and the splash of bath-time water. He
recognised nobody, was doubly incontinent, had never
spoken, but sometimes screamed.
As
Margaret dealt with him I had a moment for
reflection, from the safety of not being a father.
What would it have been like to have been in her
situation: to have the agony of suspicion and then
the horror of knowing there was "something
wrong" with your child? Then the hospital
visits, the prayers for cures, the disbelief, the
anger, the rage. Then comes the question "Why
us?" - a question that often leads to divorce.
Was it something we did? An accident at birth, or
even some error before that? In Ireland, especially,
grandparents ransacked history to discover
"which side" it came down. It was easy to
see why the vaccine and drug companies might be
welcome scapegoats for the burden of guilt.
Later
would follow the practical questions. Who will look
after our child? From childhood to adolescence, to
adulthood and beyond. What happens then, when parents
are gone?
Moments
later I heard banging and scratching at a door.
"Is that a dog?"
"No,"
Margaret said. "That's Kenneth."
*****
|
briandeer.com |
