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Federal Circuit Overturns Court of Claims in Vaccine Liability Case



Young child receives whooping cough vaccine, and thereafter develops seizures. The Court of Claims held that there was no evidence that the seizures were caused by the vaccine, making the child ineligible for National Childhood Vaccine Injury Act compensation. But the Federal Circuit has just reversed (see decision here), in a decision that comes very close to saying that "post hoc, ergo propter hoc" is good enough evidence for the NCVIA.

Note, for example, the following quote by the court: "Here, the testimony of Deray, the pediatric neurologist who has treated Enrique since 1996, was sufficient to establish a logical sequence of cause and effect between the DPT vaccine Enrique received on October 31, 1995, and the seizure he experienced the next day. Deray stated unequivocally that he believed that the DPT inoculation caused Enrique's seizures, and explained that there were "[t]wo things" which caused him to reach this conclusion. First, although he was able to identify a cause for seizures in 70 to 75 percent of his patients, Deray had found no cause--other than the DPT vaccination--to explain the seizures that Enrique experienced." In other words, if we don't know what caused the seizure, and the seizure happened after the DPT exam, the plaintiff has met his burden to prove that the DPT exam caused the seizure. The fact that the child had had no observable fever before the vaccination (fever is a contra-indication, because it is established that feverish children can develop seizures from vaccines) was also deemed irrelevant by the court, because fevers are not always noted or checked.

The procedural posture of this case is important (overturning the Claims court implied that the Special Master on whom the Claims Court had relied made a "clear error" in his causation finding). It seems obvious to me that the Federal Circuit has a much more claimant-friendly attitude toward alleged vaccine victims than does the Court of Claims.

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.