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Recently, when we talked about vaccine litigation, it was mainly about the challenge of public health policy that requires medical staff, public university students, etc. to be vaccinated against COVID-19. We are happy to report that these challenges have not lingered at the first instance court level for too long, such as here, here, and here. There was a time when lawsuits against manufacturers of many different vaccines were prevalent and intense. One of the responses to this was the National Children’s Vaccine Injury Act enacted in 1986, which established a fund to compensate for certain injuries allegedly related to certain vaccines and prioritize manufacturers of these vaccines File a claim for infringement. The Supreme Court upheld the pre-emption clause of the bill in 2011, and since then, product liability lawsuits regarding vaccines have been relatively quiet. The bill does not include a shingles (shingles) vaccine, and as far as the case is concerned, there is a considerable (approximately 2500 outstanding cases) MDL regarding whether the shingles vaccine will cause shingles.
MDL was located in the Eastern District of Pennsylvania before Judge Bartle. (Although we don’t go back like some people do, we remember the hearing before Judge Bartle a long time ago, including a case that was finally admitted in the Lance appeal.) We wrote some information about numbers on our blog The good ruling from this MDL, from the jurisdiction of the dependents to the complaint, to the statute of limitations and then to legal misconduct. The lawsuit has developed into a leading case and challenged the plaintiff’s specific causal experts. In the Zostavax (Zoster Vaccine Live) product. Liab. Litigation, MDL No. 2848, 2021 WL 5631687 (ED Pa. December 1, 2021). In order to undermine the suspense, the court ruled out the causal opinion that challenged the five plaintiffs in a reasonable opinion, which sees through the misleading that sometimes trips the court when applying Rule 702 to specific causal opinions.
When it comes to Rule 702 and specific causality, the bane of our existence is the misunderstanding of the concept of differential diagnosis by some courts. (Please refer to here and here for some of our dissatisfaction.) In addition to the general concern about courts shirk their gatekeeper responsibilities, we have also seen some cases in which experts use differential diagnosis (or identification of the cause) of the plaintiff It is regarded as a completely independent requirement that satisfies general causality. We have seen cases where it is sufficient to claim that the defendant’s product is the most probable cause of the underlying cause under consideration; to be a possible cause, it must be more likely than all other potential causes combined. We have seen such cases, and the analysis of whether the underlying cause has been correctly excluded is no more in-depth than "experts say that she did so based on her training, experience, and clinical judgment." We have seen that the interpretation of diagnostic research, pathology or images by the plaintiff’s experts far exceeds the interpretation of them by the plaintiff’s attending doctor. We have seen some cases. Even if the time of contact with the defendant’s product and the time of the so-called complications are not checked, it is considered supportive, but the appeal to the time relationship is largely conducive to the questioned causal opinion. Reliability.
Zostavax's decision did not make these mistakes. Excluding the specific causal opinions of questioned experts as unreliable is to demonstrate the value of common sense in fulfilling the role of gatekeeper. We will not interpret the court’s analysis of each plaintiff separately like the court does, but confuse them. The first problem recognized by the court is that when the allegation is that the vaccine caused a situation that it should prevent, it is logically difficult to find a specific causal relationship, because the vaccine does not (or promise) 100% effectiveness, and this situation It happened anyway in the relevant population. Because shingles is caused by the reactivation of the virus that causes chickenpox, and almost all people over the age of 30 in the United States suffer from chickenpox, approximately one-third of adults will develop shingles during their lifetime. ID. at 1. Reactivation obviously occurs randomly, or can be caused by various stressors. Therefore, the court’s statement “There is no doubt that the defendant has proposed an obvious alternative cause for the plaintiff’s shingles, namely the activation of the natural wild-type virus lurking in their body” can be applied to anyone who has not undergone a simple PCR test to distinguish vaccines The type of virus used in and the type of virus that caused them to have chickenpox in the past. ID. At *3. "A simple PCR test?" One might ask. "Then why don't we look at the test results of each plaintiff?" Well, none of these five people. why not? we do not know.
However, its meaning should be obvious. In order for the differential diagnosis to be meaningful—and the Third Circuit was an early adopter of a potentially reliable method of adopting differential diagnosis as a specific causal view (paired with a reliable general causal view)—it requires more than just guessing. Herpes comes from the virus in the vaccine, not from the reactivation of the latent dormant virus. Perhaps the rash caused by shingles—its typical presentation—differs depending on the virus that caused it, and experts seem to have hinted this to at least one plaintiff. This cannot be a reliable basis, because experts have not even seen pictures of the rash, nor have they been able to identify medical documents describing different appearances based on virus types (but manufacturers can identify documents that say they look indistinguishable). ID. 4. Perhaps the relationship between vaccination and the onset of symptoms provides a reliable basis. However, the onset time of the five plaintiffs was 7 days, 10 days, 4 months, 1 year, and 4 years respectively. Experts claim that these all support causality, although he has no literature basis.
The court cannot adopt expert testimony solely based on the ergo propter hoc fallacy after the fact that the occurrence of evidence such as vaccination must be the fallacy of the cause of the injury and other incidents that occurred later.
ID. At *7 (omitting quotation). We hope that more courts can see that the same expert’s inconsistent causality approach weakens the reliability of his opinions to everyone, because inconsistencies often indicate that the expert has not used any method other than justifying the established conclusion.
Other arguments for excluding "wild" viruses in favor of viruses in vaccines were considered. Perhaps the location of the rash or its duration suggests some kind of fingerprint of the vaccine. No. There is no literature to support this, and the plaintiff’s statement is very different. Isn't there some potential triggering stress before the rash occurs? Similarly, some people have obvious pressure, some people don't. For those who do, experts turn to believe that the vaccine virus may have been triggered. "[S] Because whether a person is vaccinated or not, stress will activate herpes zoster. Any practice that relies on stress to cause attenuated live viruses instead of wild-type viruses to cause herpes zoster is untenable." ID. At six o'clock.
In the final analysis, none of these plaintiffs have a basis to rule out "wild" viruses. Obviously, this is the source of the expert's ipse dixit opinion, even though he called for a differential diagnosis. We cannot say better than the court:
In a lengthy oral argument over the pending motion, the court asked the plaintiff’s lawyer to direct the court to exclude the reactivation of the wild-type virus as the cause in one or more places where the plaintiff suffered from the expert’s report or Dr. Poznanski’s testimony. Shingles. The lawyer admitted frankly and admirably that Dr. Poznanski’s initial and third reports did not have such an impact on any plaintiff, nor did it clearly state in his second report. Similarly, lawyers cannot quote anything about the main points in Dr. Poznanski’s testimony. According to the lawyer, any possibility of excluding wild-type viruses is implicit or must be inferred at best. Unfortunately, for the plaintiff, Dr. Poznanski’s words did not have any tension or extension to satisfy Daubert or Rule 702 of the Federal Rules of Evidence.
ID. At *9. The Zostavax court insisted that the expert explain how he reached his conclusions at every step of his so-called differential diagnosis, which we hope more courts will see when fulfilling their gatekeeping role. Sometimes, the differential diagnosis is just a label, not a true method of assessing a particular causality.
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