Sometimes judges save what they really want to say for the end of their orders; and sometimes, even when one side clearly and justifiably prevails in a lawsuit, there are no winners. That is the sad tale of Doe v. Merck & Co., No. 16-CV-04005, 2019 WL 1298270 (E.D.N.Y. Mar. 21, 2019), which represents one narrow slice of the nefarious anti-vaxxer movement that has caused untold harm to children and adults alike.
In Doe, the minor plaintiff sued a vaccine manufacturer and the federal government alleging that a measles, mumps, and rubella (“MMR”) vaccine caused him to develop autism, also known as autism spectrum disorder (“ASD”). Let’s pause here to make one thing clear: As we have chronicled time and again, there is no scientific evidence whatsoever that vaccines cause autism.
That lack of evidence, however, did not deter these plaintiffs, who appear to have been fighting this battle for many years. You see, in order to stabilize a vaccine market in which a rise in lawsuits threatened to limit the supply of certain vaccines, Congress enacted the Vaccine Act in 1986 to provide a no-fault liability scheme for vaccine-related injury claims. Petitioners can file claims with the “Vaccine Court,” and a special master adjudicates the claims according to preset tables. Under this no-fault scheme, the petitioner does not have to prove causation, so long as the alleged injury is listed in the “Vaccine Injury Table.” Dissatisfied petitioners can appeal to the Court of Federal Claims, and they can file traditional tort lawsuits only after exhausting this process. Id. at *2.
In the early 2000s, thousands of petitioners filed claims in the Vaccine Court on behalf of children with autism, including our Doe plaintiff. Some had received MMR vaccines, some received vaccines with thimerosal (a preservative), and some received both. Id. at *2. As it turns out, Doe was chosen as one of the thimerosal “test cases,” and the special master concluded in a 200-page decision that “there was no scientific evidence of any causal link between [thimerosal-containing vaccines] and autism.” The special master issued that decision more than 9 years ago. Doe did not appeal, and he never claimed in the Vaccine Court that an MMR vaccine caused his autism. Id.
Fast forward to the current case. The crux of the Doe plaintiffs’ current complaint is that the vaccine manufacturer and the federal government engaged in a conspiracy to approve and market the vaccine despite the purportedly known autism link, thus causing minor Doe’s autism. Id. at *1. The district court, however, dismissed the complaint on all grounds. With regard to the manufacturer, Doe never claimed in the Vaccine Court that an MMR vaccine caused his autism. Because he failed to exhaust his administrative remedies, the district court had no jurisdiction over his personal injury claims. Id. at *2-*3.
Doe likewise had not alleged fraud or a conspiracy to commit fraud because every purported representation that Doe alleged occurred after he received his vaccine, negating reliance. Id. at *3, *4. As for the plaintiffs’ request that the court revoke the manufacturer’s MMR license and enjoin the state of New York from requiring vaccine boosters, the court lacked authority to revoke a license issued by the FDA, and the state of New York was not a party. Id. Finally, the plaintiffs alleged no particular duty that the Secretary of Health and Human Services breached, and any claim that the Secretary breached a duty to ensure the safety of childhood vaccines was already litigated in the Vaccine Court. Id. at *4.
In the end, Doe’s lawsuit was a complete legal misfire driven by science deniers with questionable motives, and the defendants rightfully prevailed. There are, however, no winners. Doe and his parents still endure a difficult and poorly understood condition, and the defendants had to endure (as they have many other times) completely baseless litigation that undermines public confidence in vaccines, which are among the most important public health developments of all time.
We agree wholeheartedly with the district court’s final words, which it took verbatim from the special master who rejected Doe’s thimerosal claim in 2010:
[U]nfortunately, the [Does] (and uncounted other parents of children with ASD) have relied upon practitioners and researchers who peddled hope, not opinions grounded in science and medicine. My heart goes out to parents like the [Does] who struggle daily, emotionally and financially, to care for their children, but I must decide cases based on the law and not sentiment.
We can’t think of anything else to add.