by Robert Ambrogi - Editor
BullsEye Newsletter: September 2006
A federal court ruling excluding all expert testimony
that the drug-preservative thimerosal caused a minor child's
autism is likely to have repercussions well beyond the case in
which it came.
In Winston-Salem, N.C., U.S. District Judge James A. Beaty Jr. dismissed a lawsuit
against the manufacturer of the drug RhoGAM. The suit alleged that thimerosal
in the drug caused the minor plaintiff's autism. The judge issued the dismissal
after he granted a defense motion to exclude all expert testimony drawing a link
between thimerosal and autism.
"[W]ithout [the expert's] testimony, Plaintiffs are unable to meet their
burden to demonstrate that the thimerosal in Defendant's RhoGAM product caused
[Plaintiff's] autism, a result that leads directly to the failure of all of Plaintiffs'
claims," Beaty wrote.
The ruling comes as nearly 5,000 claims await disposition in an omnibus proceeding
pending before the U.S. Court of Federal Claims under the National Vaccine Injury
Compensation Program. The claims allege that thimerosal in childhood vaccines
is the cause of claimants' autism disorders.
Judge Beaty acknowledged the significance of his ruling in light
of these cases, but said, "[T]his opinion does not determine
that future plaintiffs with autistic children will never be able
to establish causation in similar cases. However, what it does
determine is that, at this point in time, Plaintiffs have failed
to present sufficient evidence from which a jury could conclude
the thimerosal in RhoGAM caused [plaintiff's] autism."
The decision to exclude all expert testimony came after a three-day Daubert hearing.
The hearing focused on the testimony of Dr. Mark Geier, the leading proponent
of the thimerosal-autism link and an expert witness in many of the vaccine cases.
The court noted that the bulk of Dr. Geier's testimony was "not based upon
his own research, but instead upon a review of the relevant literature." But
the literature he relied on, the court went on to conclude, "does not add
up to the opinion and conclusion that Dr. Geier is offering."
Given this, Judge Beaty concluded that the plaintiffs had failed to establish
under Federal Rule of Evidence 702 that Dr. Geier should be allowed to testify
concerning the general question of whether exposure to thimerosal in RhoGAM could
cause autism.
"Time and additional well-reasoned research may yet bring much needed light
to the difficult question that this case poses for Plaintiffs and many others
similarly situated, but no such answers can be reached on the record currently
before the Court," Judge Beaty wrote.
"Accordingly, notwithstanding the valiant effort by Plaintiffs in this case,
Defendant’s Motion for Summary Judgment must be allowed and this case must
be dismissed with prejudice."
The case is Doe v. Ortho-Clinical Diagnostics Inc., Case No. 1:03CV00669
(M.D. N.C. July 6, 2006). It is available on the court's Web site at: www.ncmd.uscourts.gov/Opinions/Jul06/03cv669op.pdf.
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