US Court Rules In Favour Of Family In MMR Vaccine Case Ben Zeller Jr
JOHN
US Court Rules In Favour Of Family In MMR Vaccine Case Ben Zeller Jr
http://www.uscfc.uscourts.gov/sites/default/files/ABELL.ZELLER073008.pdf
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.
Please note that:-
a.. the standard of proof being applied in this special US Court is
identical to that in the English Court.
b.. 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."