Growing Divide Among Courts On Vaccines

Nurse prepares syringe and bottle of flu vaccine AP

The National Law Journal recently reported on a DPT (diphtheria, whole-cell pertussis, tetanus) vaccine case that was reversed on appeal, reports CBS News investigative correspondent Sharyl Attkisson.

The Federal Circuit Court decided that a boy vaccinated at 8 weeks is entitled to compensation, after all.

According to the claim, the vaccination caused a seizure disorder that led to the child, Enrique Andreu, developing a low IQ and language and developmental delays. The Appeals Court (Federal Circuit Court) decided the Special Master (Judge) in the original decision "erroneously… determined that the testimony of Petitioner's physicians was insufficient to establish 'a logical sequence of cause and effect' leading to Petitioner's vaccine-related injury; and (erroneously) imposed upon Petitioner an elevated evidentiary burden, requiring conclusive proof in the medical literature linking Petitioner's symptoms to the vaccine at issue."

In plain language, the Appeals Court sent a message to the Special Masters in Vaccine Court: that they are (at times) interpreting the evidence too harshly against the Plaintiff. In the words of the Plaintiff's attorney: the Special Masters "require a burden of proof that's just too high." The government which defended the case has not made comment. It's not the first time the Appeals Court has sent such a message to the Vaccine Court. Yet sources say the Appeals Court has not given blanket guidance to the Vaccine Court to help it come into synch with the Appeals Court interpretations and philosophy. If the Vaccine Court's burden of proof is too high, then what should it be? Where is the bar set?

With those questions yet unanswered, some observers believe reversals such as in the Andreu case could have implications in the autism test cases currently on appeal. The plaintiffs lost three autism test cases soundly in Vaccine Court and all are under appeal. The same law firm that handled the Andreu DPT case is also handling two of the test cases.

Here's the full article by the National Law Journal.


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    Sharyl Attkisson is a CBS News investigative correspondent based in Washington.

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