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Health

‘Shocking cover-up’: DOJ lawyers committed fraud in vaccine injury case, CHD attorney alleges in motion

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From LifeSiteNews

By Brenda Baletti, Ph.D., The Defender

“The evidence submitted in support of the motion clearly shows that attorneys from the Department of Justice concealed and misrepresented highly relevant information from the special masters in the Vaccine Injury Compensation Program and the judges in the courts”

Rolf Hazlehurst, a Children’s Health Defense (CHD) staff attorney and father of a son with autism, filed a motion in federal court on April 2 alleging lawyers representing the U.S. Department of Health and Human Services (HHS) fraudulently concealed evidence that vaccines can cause autism.

In a motion filed in the U.S. Court of Federal Claims, Hazlehurst alleged that U.S. Department of Justice (DOJ) lawyers who represented HHS in vaccine injury cases repeatedly defrauded the judicial system – from the National Vaccine Injury Compensation Program (NVICP) to the U.S. Supreme Court.

That fraud led to thousands of families of vaccine-injured children being denied the right to compensation and the right to have their cases heard, according to the motion.

“This motion makes very serious and well-substantiated allegations of a massive scheme of fraud on the courts,” said Kim Mack Rosenberg, CHD general counsel who also is of counsel to Hazlehurst in the federal case.

“The evidence submitted in support of the motion clearly shows that attorneys from the Department of Justice concealed and misrepresented highly relevant information from the special masters in the Vaccine Injury Compensation Program and the judges in the courts,” Mack Rosenberg told The Defender.

Hazlehurst’s son Yates regressed into autism after being vaccinated as an infant. In the early 2000s, his family and thousands of others filed cases seeking compensation for vaccine-induced autism through the NVICP.

Unbeknownst at the time to the petitioners and the NVICP special masters, the DOJ’s star expert medical witness, Dr. Andrew Zimmerman informed DOJ attorneys during the ongoing omnibus proceedings that he had reversed his original opinion and determined that vaccines can and do cause autism in some cases.

In what Hazlehurst alleges was “a shocking cover-up,” instead of allowing Zimmerman to share his revised opinion, the DOJ attorneys relieved Zimmerman of his duties as a witness.

However, they continued to use excerpts from his unamended written opinion to make their case that vaccines did not cause autism – misrepresenting his position and committing “fraud on the court.”

According to the motion, the DOJ’s first act of fraud snowballed into a scheme of deception with far-reaching implications in which DOJ attorneys repeatedly misrepresented Zimmerman’s opinion and concealed other evidence that emerged during the test case hearings in the OAP in subsequent cases before multiple courts.

“As a result, thousands of cases in the Omnibus Autism Proceeding were denied compensation and the impact beyond the OAP is enormous,” Mack Rosenberg said. “This fraud affected the Vaccine Injury Compensation Program – especially the Omnibus Autism Proceeding – the Court of Federal Claims, the Court of Appeals for the Federal Circuit and even the U.S. Supreme Court.”

Hazlehurst said he is “asking the court to give this motion the serious attention it deserves.” He added, “At a minimum, the court should allow discovery and hold a hearing on this motion.”

Overturning a ruling due to fraud on the court is an extraordinary remedy reserved for extraordinary cases but according to Hazlehurst, “This motion we filed shows that this indeed is an extraordinary case.”

The DOJ has until April 30 to respond to the motion.

CHD CEO Mary Holland told The Defender, “Vaccines most definitely do cause autism, and the government has been lying about this reality for decades.”

Holland added:

With others, I published a law review article in 2011 showing that the government absolutely knew that vaccines cause autism – and yet they have covered it up and lied about it since the inception of the Vaccine Injury Compensation Program.

How many hundreds of thousands of children and families would have been spared the heartaches and crushing financial burdens of autism had the government come clean?

‘Exceptionally difficult’ to obtain compensation through NVICP

In the late 1980s, a substantial number of lawsuits for vaccine injuries related to Wyeth’s (now Pfizer) DPT vaccine, combined with “grossly insufficient compensation” for victims of vaccine injury, threatened the vaccine program’s viability.

In response, Congress passed the National Childhood Vaccine Injury Act of 1986, which established the “vaccine court.” The law gave the pharmaceutical industry broad protection from liability and proposed to compensate vaccine-injured children through the new NVICP.

The NVICP originally was designed to be a “swift, flexible, and less adversarial alternative to the often costly and lengthy civil arena of traditional tort litigation.”

To receive compensation, parents file a claim with the program.

The Court of Federal Claims (which oversees the program) appoints “special masters” – typically lawyers who previously represented the U.S. government – to manage and decide the individual claims. Attorneys may represent the petitioners, and the DOJ represents HHS.

NVICP proceedings are more informal than a typical courtroom. Unlike regular court proceedings, petitioners in the “vaccine court” have no right to discovery.

If a petitioner files a claim for a vaccine covered under the program and listed on the Vaccine Injury Table – the list of known vaccine side effects associated with certain vaccines within set time frames – it is presumed that a vaccine caused the petitioner’s injury and the petitioner is eligible for compensation without proof of causation.

However, if a petitioner experiences an “off-table injury” – an injury not listed on the table or that didn’t happen in the recognized injury time frame – the petitioner must prove by “a preponderance of evidence” that the vaccine caused the injury. Evidence includes medical records and expert witness testimony.

Claims must be filed within three years of the first symptom or two years of death.

Petitioners must provide a medical theory of the cause, a sequence of cause and effect, and show a temporal relationship between vaccine and injury.

However, the NVICP does not specify the required volume and type of evidence, so meeting the “preponderance of evidence” standard is largely at the discretion of the special master.

Petitioners can appeal NVICP cases to the Court of Federal Claims, the Court of Appeals for the Federal Circuit and ultimately to the U.S. Supreme Court.

It is “exceptionally difficult” to obtain compensation within the NVICP, Hazlehurst told The Defender. The proceedings are often turned into drawn-out, contentious expert battles and the backlog of cases is substantial.

The Vaccine Act of 1986 is unjust for petitioners, Hazlehurst alleges. And that injustice reached its zenith with the OAP, when the DOJ perpetrated fraud right under the noses of the special masters, signaling the beginning of the fraud on the courts that continues to this day.

Hazlehurst told The Defender he hopes his motion will shed light on the damage inflicted by this law and that it will ultimately help end the autism epidemic.

“The Vaccine Act of 1986 is one of the fundamental causes of the autism epidemic,” Hazlehurst said. “Understanding why this is true, and how the United States Department of Justice perpetrated fraud upon the courts, including the Supreme Court of the United States, is the key to ending the autism epidemic.”

A short history of the autism omnibus proceedings

By 2002, to address a “massive influx” of petitions alleging vaccine-induced autism, the Office of Special Masters combined over 5,000 claims into the OAP to determine whether vaccines cause autism and if so, under what conditions.

Initially, the NVICP planned to investigate causation issues and apply those general findings to individual cases. However, the program changed its strategy and instead selected six “test cases” by which it would examine the evidence for injuries caused by the measles mumps rubella (MMR) vaccine, thimerosal-containing vaccines (TCV), or a combination of both.

Then it would apply the findings of the test cases to other similar cases.

In doing so, Hazlehurst alleges, the court conflated general causation evidence with specific causation evidence from a few cases, without allowing for rules of discovery or evidence that would apply in an actual court.

This, Hazlehurst said, “was a recipe for disaster” as each test case was then used to determine the outcome for the remaining 5,000 cases.

Three cases – Cedillo v. HHSHazlehurst v. HHS, and Poling v. HHS – are at the center of the alleged fraud by the DOJ.

Fraud #1: the Zimmerman testimony

Hearings for the first OAP test case, Cedillo v. HHS, began in 2007. Zimmerman had worked with the DOJ to prepare an expert report on behalf of HHS finding that Michelle Cedillo’s autism had likely not been caused by the MMR vaccine.

Zimmerman later wrote in a 2018 affidavit that he attended the Cedillo hearing and listened to the testimony of Dr. Marcel Kinsbourne, another world-renowned expert in pediatric neurology.

On that basis, Zimmerman stated, he decided to clarify his written expert opinion about Michelle Cedillo, concerned it would be taken out of context.

Zimmerman spoke with DOJ attorneys to clarify that his expert opinion in the Cedillo case “was not intended to be a blanket statement as to all children and all medical science,” according to the 2018 affidavit.

He specified that advances in science, medicine and his own clinical research had led him to believe there were exceptions in which vaccinations could cause autism.

He also referred the attorneys to a paper he published with colleagues in 2006, the Poling paper, describing the case of an unidentified child who suffered regressive autism following vaccine adverse reactions. The paper suggested a possible association between mitochondrial dysfunction, vaccinations and regressive autism.

After communicating this evidence to DOJ attorneys, the DOJ dismissed Zimmerman as a witness but continued to use his written opinion as general causation evidence.

The DOJ was also allowed to use that report, submitted in one test case, as general causation evidence in other test cases.

None of the petitioners in the test cases could cross-examine Zimmerman, because he was no longer a witness. This was only possible because the federal rules of evidence do not apply in NVICP proceedings.

Yates’ case, Hazlehurst v. HHS, was the second test case in the OAP. His treating neurologist, Dr. Jean-Ronel Corbier testified Yates’ autism was likely caused by a genetic predisposition combined with an environmental insult in the form of vaccinations administered when Yates was ill. (Yates was a patient of Zimmerman in 2002.)

Corbier’s theory of causation in Yates was similar to the theory developed by Zimmerman in the Poling paper and shared with DOJ attorneys.

Yet, despite knowing Zimmerman had concluded that in a subset of children like Yates, vaccines can cause autism, the DOJ “intentionally and fraudulently” misrepresented Zimmerman’s expert testimony in its closing statements in Yates’ case, Hazlehurst alleges.

DOJ attorneys selectively quoted Zimmerman’s expert report from the Cedillo case, telling the court that Zimmerman found there was “no sound evidence to support a causative relationship with exposure to both or either MMR and/or mercury,” when Zimmerman had explicitly told the DOJ that his opinion was the opposite, according to the affidavit.

Fraud #2: the Hannah Poling case

Three weeks after closing arguments in Yates’ case, the DOJ quietly conceded Hannah Poling’s case, which was on the verge of becoming the fourth test case.

Hannah regressed into autism over several months after being vaccinated against nine diseases at one doctor’s visit.

In 2003, Poling’s father, Jon, a physician and trained neurologist, and mother, Terry, an attorney and nurse, filed an autism petition against HHS under the NVICP for their daughter’s injuries.

Jon Poling was a co-author of the 2006 paper with Zimmerman that analyzed an unnamed child, later revealed as Hannah Poling, who had a mitochondrial disorder – a condition with which Yates was later diagnosed.

In 2007, just three weeks after the lead DOJ attorney misrepresented Zimmerman’s opinion during the hearing in Hazlehurst, the same DOJ attorney submitted a report to the special masters conceding that in the case of Poling v. HHS, Hannah’s “regressive encephalopathy with features of autism spectrum disorder” (i.e., regressive autism) was caused by a vaccine injury, based upon a preponderance of the evidence standard.

This was the same neurological diagnosis Zimmerman had made for Yates in 2002.

According to court documents, if HHS had not conceded Poling, Poling v. HHS would have been designated as a test case. However, because the DOJ conceded the case, it was taken out of the omnibus and the DOJ had the case records sealed – although they were later leaked to the press and published in the Huffington Post in 2008.

In March 2008, Hannah’s parents moved to make the proceedings transparent and available to the public, but the DOJ opposed the motion and the NVICP deferred a ruling on the motion for 60 days.

During those 60 days, the DOJ filed amendments to its report conceding the Poling case. It retroactively changed the basis for compensation to say that Hannah had a “table injury.”

This meant that instead of conceding that the petitioners had proven with a preponderance of evidence that the vaccines caused her autism, they said she had a presumptive injury on the vaccine table, in which causation is presumed.

By conceding the Poling case, opposing the parents’ motion for complete transparency and changing the basis for compensation, the DOJ was able to conceal fraud and critical material evidence of how vaccines cause autism, according to Hazlehurst.

Fraud #3: appellate courts and the U.S. Supreme Court

On Feb. 12, 2009, the special masters denied compensation in the first three cases. They found the petitioners failed to establish causation between MMR or TCV vaccines and autism.

In Hazlehurst’s case, the NVICP explicitly relied on the portion of Zimmerman’s expert report that DOJ attorneys misrepresented.

The Hazlehursts appealed to the Court of Federal Claims and the Court of Appeals for the Federal Circuit, both of which upheld the special master’s decision – by relying on Zimmerman’s misrepresented opinion and knowingly fraudulent statements made by a DOJ attorney, according to Hazlehurst.

Those prior decisions directly influenced the U.S. Supreme Court’s decision in the Bruesewitz v. Wyeth.

In that case, Wyeth, now Pfizer, argued that a decision favoring the Bruesewitz family – who was attempting to sue the company for their daughter’s vaccine injury – would lead to a “flood of frivolous lawsuits,” including by the families from the omnibus.

Amicus briefs from the American Academy of Pediatrics, GlaxoSmithKline, Merck and Sanofi Pasteur on behalf of Wyeth relied on Hazlehurst v. HHS and other OAP decisions that were based on the misrepresentation of Zimmerman’s testimony that there was “no scientific basis” that vaccines cause autism.

The Supreme Court ruled that the National Childhood Vaccine Injury Act, and the NVICP it created, preempt all design-defect claims against vaccine manufacturers by individuals seeking compensation for injury or death.

In oral arguments and in their written opinions, the justices explicitly cited the portions of the amicus briefs citing Hazlehurst v. HHS and other OAP rulings that relied on the DOJ misrepresentations in their rulings.

Since that ruling, the special masters have continued to rely on the DOJ’s fraudulent claims to deny compensation to families filing complaints in the NVICP.

Robert F. Kennedy Jr., CHD chairman on leave, and Hazlehurst in September 2018 filed a complaint with the DOJ Office of Inspector General outlining what they then knew about the DOJ’s fraud during the OAP.

The DOJ Office of Professional Misconduct investigated and responded in a June 2019 letter that it found no wrongdoing.

In that letter, however, the Office of Professional Responsibility conceded the DOJ had in fact kept Zimmerman’s testimony while dismissing him as a witness in order to avoid creating the appearance that he had changed his opinion and to prevent the petitioners from cross-examining him, according to Hazlehurst.

The ‘fraud on the court’ doctrine 

It has taken 17 years, Hazlehurst said, since the DOJ’s first alleged act of fraud upon the court, for him to gather all of the admissible evidence necessary to “connect the dots and reveal the DOJ’s web of deceit” to make this claim under the “fraud on the court” doctrine.

Under this doctrine, codified as Rule 60(d)(3) in the rules of the Court of Federal Claims, there is no time limit for the court to overturn a judgment made on the basis of fraud on the court.

The petitioner must demonstrate that there was fraud, intent to defraud and that the fraud affected more than one instance of litigation – putting the integrity of the judicial process at stake.

Hazlehurst alleges DOJ attorneys committed fraud by knowingly making false statements and offering evidence they knew to be false and that they did not take remedial action to disclose information they knew to be false and misleading to the court.

The special masters themselves have an obligation to consider all relevant evidence, but didn’t, in this case, Hazlehurst said. Instead, they ignored the contradictions in Zimmerman’s opinions and ignored the Poling evidence.

This is particularly problematic for NVICP cases, where petitioners can’t conduct meaningful discovery or cross-examination and the special masters’ oversight is the only meaningful safeguard to prevent the DOJ’s abuse of power, according to Hazlehurst.

“There is nothing fair about a government proceeding where the government controls the admissibility of evidence,” he said.

Hazlehurst said that by forcing people injured by vaccines into an administrative program, petitioners are deprived of the basic constitutional rights to due process and equal protection under the law. “It should be declared unconstitutional,” he said.

This article was originally published by The Defender — Children’s Health Defense’s News & Views Website under Creative Commons license CC BY-NC-ND 4.0. Please consider subscribing to The Defender or donating to Children’s Health Defense.

Alberta

Early Success: 33 Nurse Practitioners already working independently across Alberta

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Nurse practitioners expand primary care access

The Alberta government’s Nurse Practitioner Primary Care program is showing early signs of success, with 33 nurse practitioners already practising independently in communities across the province.

Alberta’s government is committed to strengthening Alberta’s primary health care system, recognizing that innovative approaches are essential to improving access. To further this commitment, the Nurse Practitioner Primary Care Program was launched in April, allowing nurse practitioners to practise comprehensive patient care autonomously, either by operating their own practices or working independently within existing primary care settings.

Since being announced, the program has garnered a promising response. A total of 67 applications have been submitted, with 56 approved. Of those, 33 nurse practitioners are now practising autonomously in communities throughout Alberta, including in rural locations such as Beaverlodge, Coaldale, Cold Lake, Consort, Morley, Picture Butte, Three Hills, Two Hills, Vegreville and Vermilion.

“I am thrilled about the interest in this program, as nurse practitioners are a key part of the solution to provide Albertans with greater access to the primary health care services they need.”

Adriana LaGrange, Minister of Health

To participate in the program, nurse practitioners are required to commit to providing a set number of hours of medically necessary primary care services, maintain a panel size of at least 900 patients, offer after-hours access on weekends, evenings or holidays, and accept walk-in appointments until a panel size reaches 900 patients.

With 33 nurse practitioners practising independently, about 30,000 more Albertans will have access to the primary health care they need. Once the remaining 23 approved applicants begin practising, primary health care access will expand to almost 21,000 more Albertans.

“Enabling nurse practitioners to practise independently is great news for rural Alberta. This is one more way our government is ensuring communities will have access to the care they need, closer to home.”

Martin Long, parliamentary secretary for rural health

“Nurse practitioners are highly skilled health care professionals and an invaluable part of our health care system. The Nurse Practitioner Primary Care Program is the right step to ensuring all Albertans can receive care where and when they need it.”

Chelsae Petrovic, parliamentary secretary for health workforce engagement

“The NPAA wishes to thank the Alberta government for recognizing the vital role NPs play in the health care system. Nurse practitioners have long advocated to operate their own practices and are ready to meet the growing health care needs of Albertans. This initiative will ensure that more people receive the timely and comprehensive care they deserve.”

Jennifer Mador, president, Nurse Practitioner Association of Alberta

The Nurse Practitioner Primary Care program not only expands access to primary care services across the province but also enables nurse practitioners to practise to their full scope, providing another vital access point for Albertans to receive timely, high-quality care when and where they need it most.

Quick facts

  • Through the Nurse Practitioner Primary Care Program, nurse practitioners receive about 80 per cent of the compensation that fee-for-service family physicians earn for providing comprehensive primary care.
    • Compensation for nurse practitioners is determined based on panel size (the number of patients under their care) and the number of patient care hours provided.
  • Nurse practitioners have completed graduate studies and are regulated by the College of Registered Nurses of Alberta.
  • For the second consecutive year, a record number of registrants renewed their permits with the College of Registered Nurses of Alberta (CRNA) to continue practising nursing in Alberta.
    • There were more than 44,798 registrants and a 15 per cent increase in nurse practitioners.
  • Data from the Nurse Practitioner Primary Care Program show:
    • Nine applicants plan to work on First Nations reserves or Metis Settlements.
    • Parts of the province where nurse practitioners are practising: Calgary (12), Edmonton (five), central (six), north (three) and south (seven).
  • Participating nurse practitioners who practise in eligible communities for the Rural, Remote and Northern Program will be provided funding as an incentive to practise in rural or remote areas.
  • Participating nurse practitioners are also eligible for the Panel Management Support Program, which helps offset costs for physicians and nurse practitioners to provide comprehensive care as their patient panels grow.

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Addictions

BC Addictions Expert Questions Ties Between Safer Supply Advocates and For-Profit Companies

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By Liam Hunt

Canada’s safer supply programs are “selling people down the river,” says a leading medical expert in British Columbia. Dr. Julian Somers, director of the Centre for Applied Research in Mental Health and Addiction at Simon Fraser University, says that despite the thin evidence in support of these experimental programs, the BC government has aggressively expanded them—and retaliated against dissenting researchers.

Somers also, controversially, raises questions about doctors and former health officials who appear to have gravitated toward businesses involved in these programs. He notes that these connections warrant closer scrutiny to ensure public policies remain free from undue industry influence.

Safer supply programs claim to reduce overdoses and deaths by distributing free addictive drugs—typically 8-milligram tablets of hydromorphone, an opioid as potent as heroin—to dissuade addicts from accessing riskier street substances. Yet, a growing number of doctors say these programs are deeply misguided—and widely defrauded.

Ultimately, Somers argues, safer supply is exacerbating the country’s addiction crisis.

Somers opposed safer supply at its inception and openly criticized its nationwide expansion in 2020. He believes these programs perpetuate drug use and societal disconnection and fail to encourage users to make the mental and social changes needed to beat addiction. Worse yet, the safer supply movement seems rife with double standards that devalue the lives of poorer drug users. While working professionals are provided generous supports that prioritize recovery, disadvantaged Canadians are given “ineffective yet profitable” interventions, such as safer supply, that “convey no expectation that stopping substance use or overcoming addiction is a desirable or important goal.”

To better understand addiction, Somers created the Inter-Ministry Evaluation Database (IMED) in 2004, which, for the first time in BC’s history, connected disparate information—i.e. hospitalizations, incarceration rates—about vulnerable populations.

Throughout its existence, health experts used IMED’s data to create dozens of research projects and papers. It allowed Somers to conduct a multi-million-dollar randomized control trial (the “Vancouver at Home” study) that showed that scattering vulnerable people into regular apartments throughout the city, rather than warehousing them in a few buildings, leads to better outcomes at no additional cost.

In early 2021, Somers presented recommendations drawn from his analysis of the IMED to several leading officials in the B.C. government. He says that these officials gave a frosty reception to his ideas, which prioritized employment, rehabilitation, and social integration over easy access to drugs. Shortly afterwards, the government ordered him to immediately and permanently delete the IMED’s ministerial data.

Somers describes the order as a “devastating act of retaliation” and says that losing access to the IMED effectively ended his career as a researcher. “My lab can no longer do the research we were doing,” he noted, adding that public funding now goes exclusively toward projects sympathetic to safer supply. The B.C. government has since denied that its order was politically motivated.

In early 2022, the government of Alberta commissioned a team of researchers, led by Somers, to investigate the evidence base behind safer supply. They found that there was no empirical proof that the experiment works, and that harm reduction researchers often advocated for safer supply within their studies even if their data did not support such recommendations.

Somers says that, after these findings were published, his team was subjected to a smear campaign that was partially organized by the British Columbia Centre on Substance Use (BCCSU), a powerful pro-safer supply research organization with close ties to the B.C. government. The BCCSU has been instrumental in the expansion of safer supply and has produced studies and protocols in support of it, sometimes at the behest of the provincial government.

Somers is also concerned about the connections between some of safer supply’s key proponents and for-profit drug companies.

He notes that the BCCSU’s founding executive director, Dr. Evan Wood, became Chief Medical Officer at Numinus Wellness, a publicly traded psychedelic company, in 2020. Similarly, Dr. Perry Kendall, who also served as a BCCSU executive director, went on to found Fair Price Pharma, a now-defunct for-profit company that specializes in providing pharmaceutical heroin to high-risk drug users, the following year.

While these connections are not necessarily unethical, they do raise important questions about whether there is enough industry regulation to minimize potential conflicts of interest, whether they be real or perceived.

The BCCSU was also recently criticized in an editorial by Canadian Affairs, which noted that the organization had received funding from companies such as Shoppers Drug Mart and Tilray (a cannabis company). The editorial argued that influential addiction research organizations should not receive drug industry funding and reported that Alberta founded its own counterpart to the BCCSU in August, known as the Canadian Centre of Recovery Excellence, which is legally prohibited from accepting such sponsorships.

Already, private interests are betting on the likely expansion of safer supply programs. For instance, Safe Supply Streaming Co., a publicly traded venture capital firm, has advertised to potential investors that B.C.’s safer supply system could create a multi-billion-dollar annual market.

Somers believes that Canada needs more transparency regarding how for-profit companies may be directly or indirectly influencing policy makers: “We need to know exactly, to the dollar, how much of [harm reduction researchers’] operating budget is flowing from industry sources.”

Editor’s note: This story is published in syndication with Break The Needle and Western Standard.

The Bureau is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

Dr. Julian M. Somers is director of the Centre for Applied Research in Mental Health and Addiction at Simon Fraser University. He was Director of the UBC Psychology Clinic, and past president of the BC Psychological Association. Liam Hunt is a contributing author to the Centre For Responsible Drug Policy in partnership with the Macdonald-Laurier Institute.

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