Momtezuma Tuatara
30-12-08, 09:48 AM
I'm sure you've heard about this case (http://www.uscfc.uscourts.gov/sites/default/files/ABELL.ZELLER073008.pdf)but the comment below comes from a UK lawyer:
The US Court ruled [July 2008] in favour of this little boy Benjamin Zeller that as a result of the MMR vaccination received on 17 November 2004, Benjamin, suffered persistent, intractable seizures, encephalopathy, and developmental delay.
All other published decisions are found here (http://www.uscfc.uscourts.gov/opinions_decisions_vaccine/Published?op0=%3D&filter0=**ALL**&op1=%3D&filter1=**ALL**&op2=OR&filter2=**ALL**).
Please note that:-
the standard of proof being applied in this special US Court is identical to that in the English Court.
just like the English Court, these cases are decided by judge alone sitting without a jury.
"It also seems evident that the vaccine was a substantial factor in causing the injury found by the Court, which, prima facie, would appear to satisfy the element of proximate cause in this case. Applying the traditional legal rule from Tort law, that Respondent takes Petitioner as he finds him (a.k.a. the “Eggshell Skull Rule”), the fact that Benjamin may have had a genetic predisposition or a physiologic susceptibility does not defeat Petitioner’s case as a superseding factor. So long as the vaccine was a substantial factor, and its influence was not overborne by a superseding cause, the Court is justified in ruling that the proximate causation requirement is satisfied.
The logical sequela of these findings of fact is that Petitioners have carried their burden of proof on the issue of vaccine-related causation. Inasmuch as the other elements of § 300aa–11 (b) and (c) have already been satisfied, the Court holds that Petitioners have met their burden on their case in chief, on the ultimate issue of entitlement to compensation.
The burden now shifts to Respondent to proffer a factor unrelated to the vaccine as either a more likely cause of the injury found by the Court, or as a superseding cause of the injury that obviated any effect of the vaccine. This Respondent has not done. The only medical explanation proffered by Respondent was the predestination of intractable seizures, encephalopathy, and developmental delay based on an undetermined genetic predisposition toward neurodegeneration. As discussed by the Court above when addressing proximate causation on Petitioner’s case in chief, the Court’s findings in this case are inconsistent with a ruling that Benjamin’s genetic susceptibilities overbore the effect of the vaccine as a superseding cause. Likewise, there is not a preponderance of evidence from within the medical records that any specific alternative diagnosis–not a single named etiology confirmed by testing–could be identified. Unconfirmed speculation by a few treating doctors, as with Dr. Wiznitzer’s hypothesization, were unconfirmed by testing in the first instance, and unsupported by the medical records in the second. Consequently, the Court concludes that there is not a factor unrelated to overcome Petitioner’s evidence on causation."
The US Court ruled [July 2008] in favour of this little boy Benjamin Zeller that as a result of the MMR vaccination received on 17 November 2004, Benjamin, suffered persistent, intractable seizures, encephalopathy, and developmental delay.
All other published decisions are found here (http://www.uscfc.uscourts.gov/opinions_decisions_vaccine/Published?op0=%3D&filter0=**ALL**&op1=%3D&filter1=**ALL**&op2=OR&filter2=**ALL**).
Please note that:-
the standard of proof being applied in this special US Court is identical to that in the English Court.
just like the English Court, these cases are decided by judge alone sitting without a jury.
"It also seems evident that the vaccine was a substantial factor in causing the injury found by the Court, which, prima facie, would appear to satisfy the element of proximate cause in this case. Applying the traditional legal rule from Tort law, that Respondent takes Petitioner as he finds him (a.k.a. the “Eggshell Skull Rule”), the fact that Benjamin may have had a genetic predisposition or a physiologic susceptibility does not defeat Petitioner’s case as a superseding factor. So long as the vaccine was a substantial factor, and its influence was not overborne by a superseding cause, the Court is justified in ruling that the proximate causation requirement is satisfied.
The logical sequela of these findings of fact is that Petitioners have carried their burden of proof on the issue of vaccine-related causation. Inasmuch as the other elements of § 300aa–11 (b) and (c) have already been satisfied, the Court holds that Petitioners have met their burden on their case in chief, on the ultimate issue of entitlement to compensation.
The burden now shifts to Respondent to proffer a factor unrelated to the vaccine as either a more likely cause of the injury found by the Court, or as a superseding cause of the injury that obviated any effect of the vaccine. This Respondent has not done. The only medical explanation proffered by Respondent was the predestination of intractable seizures, encephalopathy, and developmental delay based on an undetermined genetic predisposition toward neurodegeneration. As discussed by the Court above when addressing proximate causation on Petitioner’s case in chief, the Court’s findings in this case are inconsistent with a ruling that Benjamin’s genetic susceptibilities overbore the effect of the vaccine as a superseding cause. Likewise, there is not a preponderance of evidence from within the medical records that any specific alternative diagnosis–not a single named etiology confirmed by testing–could be identified. Unconfirmed speculation by a few treating doctors, as with Dr. Wiznitzer’s hypothesization, were unconfirmed by testing in the first instance, and unsupported by the medical records in the second. Consequently, the Court concludes that there is not a factor unrelated to overcome Petitioner’s evidence on causation."