Autism Omnibus Case – Warning to Counsel
Sturdivant v. HHS, (Fed. Cl. Spec. Mstr. Jan. 21, 2016) (Hastings, SM)
No Entitlement to Causation – Autism Omnibus Case; Warning to Counsel Regarding Reasonable Basis
The Court first held that a table encephalopathy had not been established because 1) a table vaccine had not been given, and 2) an encephalopathy, as defined by the QAI, did not occur.
The Court also held that a causation-in-fact claim had not been proven. The primary reason the claim failed is that Petitioner’s expert relied upon “very significant misassumptions of fact” as to the symptoms the child displayed during the days after the vaccines. Additionally, Petitioner’s expert, a pediatrician, was less qualified that Respondent’s pediatric neurologist to opine on causation. Finally, Petitioner’s expert presented no viable medical theory whatsoever.
As in prior OAP cases, the special master issued a warning to the Vaccine Bar: “Vaccine Act counsel are hereby put on notice that if counsel pursue, to a decision, theories allegedly linking vaccines causally to ASDs, and their evidence proves to be highly unpersuasive, I will not be inclined to conclude that there was ‘reasonable basis’ to pursue such cases to a decision. At this point, I cannot ethically award government funds to compensate counsel for pushing clearly unpersuasive theories to a decision. In other words, I strongly advise counsel in Vaccine Act cases to carefully scrutinize, for credibility, any cases in which a petitioner or an expert witness asserts a theory that a vaccination significantly contributed to the causation or aggravation of an ASD. If after deciding such a case, I am not persuaded that there was a ‘reasonable basis,’ under all of the circumstances, for pushing the case to a special master decision, I will be unlikely to award fees and costs, including the cost of experts, for the evidentiary hearing or the final stages of the proceeding.”