Rosemary Kessick's son was in lawyer's project which underlay vaccine scare

This page is material from the award-winning investigation by Brian Deer for The Sunday Times of London, the UK’s Channel 4 TV network and BMJ, the British Medical Journal, which exposed vaccine research fraudster Andrew Wakefield | Investigation summary

In February 1996, Wakefield had been hired by a firm of lawyers to perform research intended to support litigation against vaccine manufacturers, for which the leading test case would be brought by Rosemary Kessick who was involved in almost all aspects of the campaign. This report from The Independent in November 1996 reveals that Kessick's son had been recruited into research being run by a lawyer, Richard Barr, rather than admitted to hospital for purely clinical reasons, as Wakefield would later claim

Law: A shot in the dark; The complications from vaccine damage seem to multiply in the courtroom, writes Grania Langdon-Down The Independent (Law, Page 25) November 27 1996 Rosemary Kessick has watched her son William deteriorate from a bright, active toddler to a destructive eight-year-old who cannot talk, play or feed himself and who lives in a frantic, rushed world of his own. She blames the MMR (measles, mumps and rubella) vaccine for the devastating changes in William, now diagnosed as autistic and suffering from a debilitating inflammatory bowel disorder which can leave him screaming with pain.

William is one of 10 children taking part in a pilot study at the Royal Free Hospital in London, which is investigating possible links between the measles vaccine with the bowel disorder Crohn’s Disease, and with autism. The study is being organised by Norfolk solicitors Dawbarns, one of two firms awarded a contract in 1994 to co-ordinate claims resulting from the MMR vaccine.

Mrs Kessick, 42, had to give up her job as a business manager to look after William, the middle of her three children. William joined the other 300-plus children bringing claims through Dawbarns only in February, because the doctors she saw during her traumatic search for answers dismissed her fears about the vaccine out of hand.

“Within weeks of the vaccination, his development slowed down, then it stopped and then he regressed. Seeing what has happened to him has broken our hearts. It means so much to finally be listened to and to find people to stand up and say the safety of these vaccines must be investigated,” she says.

Concern about vaccination has resurfaced with the Government’s campaign to introduce a new MMR booster for all four-year-olds. Most of those children will have had their first MMR at about 15 months.

The Department of Health dismisses suggested links with autism and Crohn’s disease as the work of just one researcher, and argues that children are at far greater risk from measles than from the vaccine. The latest campaign, launched on the advice of an independent committee of doctors, was needed to stop the build-up of unvaccinated children, which would inevitably lead to new outbreaks of measles.

Dawbarns partner Richard Barr is co-ordinating the families’ claims. Depending on the results of the scientific study and counsel’s advice, he intends taking on the vaccine manufacturers using the Consumer Protection Act, 1987.

The Act was introduced to offer a system for dealing with no-fault liability without the need to prove negligence, and was intended to help cases such as those involving vaccine damage.

However, critics argue that it has not been widely used because of the extensive defences offered to manufacturers. These include the “development risks” defence which says manufacturers will not be liable if, with reasonably diligent research, they would not have been able to find the fault that is now causing the problem.

The development risks defence is being challenged in the European Court as being outside the terms of the European Directive on consumer protection legislation, because it effectively incorporates negligence back into the strict liability provision.

Mr Barr also intends to pursue the medical negligence aspect but, to date, there has never been a successful compensation claim for vaccine damage under negligence laws.

Mr Barr said: “The whole field of vaccine litigation was brought to a shuddering halt by the High Court judgement in Loveday and Renton in 1988, which involved the whooping cough vaccine.

“The case centres on whether the vaccine caused brain damage, but it went horribly wrong and the outcome was the judge concluded it did not. The case was based mainly on expert opinion rather than scientific evidence and the manufacturers were able to marshal massive resources to defeat the plaintiff’s experts. We will have to try to make sure we do not fall into the same traps.”

One result of the Loveday case was that the Legal Aid Board applied the result to all vaccine damage cases and generally refused to grant aid.

Mr Barr said: “For a year, we were without legal aid but we battled on until we were eventually granted it to pursue the possibility of bringing cases under the Consumer Protection Act.

“The benefit is you do not have to prove negligence - you simply have to prove the vaccine caused the damage and that it is an unsafe product. We will also have a strong argument that parents were given no, or insufficient, information or warnings about the possible risks of the vaccine to be able to give informed consent to its use.

“I am sure the manufacturers will try to discount any causal link between the vaccine and the damage suffered by the children. They will also argue that the benefits of being immunised far outweigh the risks from the vaccine. But we will argue that the dangers of these childhood disease have been exaggerated to terrorise parents into vaccinating their children.

“I also do not think the ‘development risk’ defence is a runner, because we would argue the mechanisms of how the damage is caused have been known since the Sixties when the measles vaccine was first being tested.”

He said another line of attack would be to focus on clusters of similar side-effects associated with particular batches of vaccine, although the main thrust remained against the vaccine as a whole.

Mr Barr, who refused to let his children be vaccinated, said their research was being helped by having an in-house scientist working on the cases. Kirsten Limb initially came to them as a client after her daughter was left severely disabled through medical negligence.

Jack Rabinowicz, a partner at Teacher Stern Selby, has been involved in vaccine damage cases for a decade and is chairman of the solicitors’ steering group dealing with whooping cough claims.

He was pessimistic about the likely success of cases brought against the vaccine rather than a specific “bad batch”.

“My view is that you have to show a child was damaged by vaccine from a bad batch, as happened in a case in Ireland in 1994 which resulted in more than pounds 2m compensation. The court found in favour of the claimant after hearing that the vaccine had failed internal toxicity tests but was still put on the market.

“A full frontal attack against the vaccine itself is much more difficult. The steering group is waiting for advice from counsel and, if it is reasonably optimistic, will issue writs early next year. They will involve product liability claims against manufacturers over specific ‘hot lots’ of the vaccine and medical negligence claims against individual doctors who ignored the contraindicational warnings about having the vaccinations.”

He said the cases were at the frontiers of medicine and law and the Legal Aid Board was rightly worried about committing public money unwisely. “There have been a number of disastrous product liability cases and these will be David against Goliath because the manufacturers and doctors have unlimited resources to fight their corner.

“I think the only thing that will change the situation is if Richard Barr and I get our cases off the ground and the manufacturers and doctors scream merry hell at the prospect of paying millions in compensation and put pressure on the government of whatever hue to provide state aid.”

The only help currently offered by the government is through the Vaccine Damage Pay Unit. Since it was set up in 1979, it has received 3,749 claims and made 883 awards. However, these have been capped at pounds 30,000 since 1991, and apply only if a child is 60 per cent disabled.

Mr Rabinowicz said: “If these children were birth victims they would receive about 2m each. These vaccine-damaged children would be looking probably for upwards of pounds 1m.”