Extract from:
Lessons from MMR and the future of group
litigation funding
Journal of Personal
Injury Law, 2005, 1, 98-105
Q: What were the reasons
for which the MMR litigation failed?
Martyn Day: Clearly
the absolute reason was the withdrawal of
funding by the LSC. To go beyond that is
difficult because as a lawyer not party
to the case one can but gauge the
position from very much outside the
central core of the case. The great
difficulty that the claimants seem to
have had is that they were unable to
provide sufficient evidence of any real
causal link between the MMR vaccine and
autism. Clearly the initial study by Dr
Andrew Wakefield and his team was a good
start for them but it would seem that as
time went on this was not only not
supported by others but that the members
of the team who had initially signed
their names to the study, one by one,
dropped away from continuing to support
the thesis. As far as I understand it,
despite many noble efforts to try and
find a causal thesis that stood up, the
claimants failed to persuade the LSC that
the case had enough of a chance of
success for them to continue funding the
claim.
John Kelleher: The
litigation failed because the claimants'
advisers could not establish evidence of
a link between the MMR vaccine and
autism. Studies carried out after the
initial research by Dr Andrew Wakefield
undermined his research. It is worth
bearing in mind that the Legal Aid Board
first provided funding for an MMR-related
claim in 1992 and the first legal aid
certificate was granted to a claimant in
the litigation which subsequently
materialised in 1995.
The decision of the LSC to
remove funding was taken shortly after
around 60 expert reports had been
exchanged in the litigation. The LSC
press release stated that litigation was
very unlikely to prove the suspicion that
the MMR caused the claimants' children's
illnesses and this must have been based
on advice given in the legal advisers'
case reports.
Q: Is it appropriate for
a lawsuit to set out to prove a causal
relationship not generally accepted in
the relevant scientific community?
Martyn Day: While it
would be interesting to discuss the moral
rights and wrongs of whether such a
lawsuit is "appropriate", not
least because of the impact such claims
have on the clients, the more important
point now is where the MMR case has left
the legal field in these sorts of cases.
As a matter of fact the
court is very unenthusiastic about
accepting a causal relationship without
the support of the scientific community.
In the States the claimants benefit from
having to face a jury whose members tend
to be enthusiastic about accepting the
word of the experts before them
regardless of the wider scientific
support for that thesis. However, in this
country our judiciary are far more
conservative and seem to take the view
that unless the line being progressed is
very widely supported within the
scientific community, they will not
accept it. Without question the judiciary
are anxious about supporting speculative
theses in case such a decision comes back
to haunt them and their future careers.
It seems to me clear that
legal aid funding for claims without a
solid scientific foundation is now a
thing of the past. Cases such as MMR,
Gulf War Syndrome, Electromagnetic
Fields/childhood leukaemia are simply not
going to have the slightest chance of
being funded. I cannot then see lawyers
being prepared to take the risk to their
own pockets to pursue such cases when the
loss can be so great. This is compounded
by the likelihood that there will be no
insurance available for the claimants to
cover the defendants' costs and I for one
would not go back down that route, having
taken it when suing the tobacco
companies.
So, when seeing the recent
news that there is a study suggesting a
link between mobile phones and brain
cancer, rather than immediately ringing
those with cancer who have contacted me
over the years asking me to pursue a
claim, I can 'but sit and wait to see if
that evidence develops to beyond one
epidemiological study into a more
substantial body of evidence.
John Kelleher: No it
isn't. The requisite. level of
scientific support should come first.
Q: Is medical research
undertaken for the purpose of testing the
hypothesis at issue in the litigation
likely to be probative of the claimants'
case?
Martyn Day: My
experience is that the courts are not
massively enthusiastic about this sort of
research. They prefer to look at research
that has been done with a wider
perspective than simply that looked at
for the purposes of litigation. Obviously
the difficulty for the claimants is where
no such research exists or where it is
simply peripheral to the core thesis
being determined in the litigation. One
of the great difficulties with any such
research is that there will always be the
perception of bias unless the research is
carried out well away from anyone seen as
being a campaigner on the point at issue.
Undoubtedly, the more that
one can rely on wider-based research, the
more likely it is that the courts are
going to accept that.
John Kelleher:
Research undertaken with a view to
proving the hypothesis at issue will
generally be regarded with scepticism by
the courts. Aside from anything else, if
adopted and incorporated into an expert's
report, it will undermine the objectivity
of the expert who is charged with
presenting the evidence to the court,
unless handled with great care by
him/her. Most experts will probably want
to distance themselves from this kind of
approach.