challenge as whether it was generally accepted within the medical community that vaccines cause autism. Te trial court memorandum opinion cited the court’s finding that the consensus medical community opinion was in an Institute of Medicine (IOM) Report which found that Timerosal did not cause autism. Te Court of Appeals opinion discussed various cases of the Daubert trilogy addressing the “analytical gap” between the evidence and the opinion. Essentially the Court weighed the reliability of the expert’s conclusions as an integral part of reaching its conclusion. Tis is a clear departure from its previous adherence to the traditional Frye test approach. On appeal, the Court of Appeals granted certiorari sua
sponte and reviewed the case on a de novo basis. Te Court praised the trial court’s opinion and reached the same conclusion. Te basis of the experts’ opinions included epidemiology that mercury caused neurological damage, mental retardation and autism in a single Japanese study. Timerosal exposed animal pathology studies confirmed Timerosal caused pathology similar to brain cell pathology seen in human autistics. Environmental emission studies showed a statistically significant increase in autism rates where mercury emissions were higher. In Vitro cell studies in laboratories showed mercury in low doses killed and impeded the development of nerve cells. Studies showed an increased incidence of mercury toxicity in autistics compared to those controls in Maryland, France and Australia. Genetic studies showed an increase in the occurrence of genetic variations known to impair mercury excretion in autistics. Finally, no single study offered by Wyeth tested whether Timerosal in vaccines was safe. Te Court of Appeals focused on epidemiology published
by a single Plaintiff expert and excluded the same, while not addressing the wide body of peer-reviewed studies identified above. Te Court of Appeals did not find there was an adequate basis of generally accepted as reliable peer-reviewed literature to support the Plaintiff ’s experts’ opinions. Instead they relied at length on the United States Government’s IOM review which disfavored causation, yet acknowledged they could not rule out general causation in a subpopulation of genetically susceptible children. Even thought this was the theory advanced by Blackwell’s experts, the Court relied upon the general conclusion of the government study that Timerosal in vaccines was not generally accepted to cause autism.
Te Court of Appeals engaged in an analysis that departed
from the traditional Frye standard. It engaged in a Frye-Plus- Reliability standard of review. Tis standard incorporates aspects of the Daubert trilogy of cases which permit a judge
to consider the expert’s conclusion when evaluating their methodology. Tis blended approach can lead the judge’s rule on the credibility of the expert’s opinion in the context of an admissibility hearing. In such an instance, the court usurps the role of the jury denying the plaintiff of their right to trial by jury.
Traditional Frye Jurisdictions Address Emerging Tort Causation Differently
Two current Frye test jurisdictions that continue to follow
the traditional approach are Illinois and California. Each has an exemplary case worth noting which addresses the contrast in Maryland’s evolution of their version of Frye. In Roberti v. Andy’s Termite & Pest Control, Inc., 6 Cal.
Rptr. 3d 827, 832 (2003), California’s highest Appellate Court overturned a lower court exclusion of expert testimony claiming exposure from the pesticide known as Dursban which was applied in a residence contributed to a child’s autism. Te Appellate Court reasoned:
Plaintiff ’s experts based their opinion testimony upon research papers and studies (primarily those conducted on animals)
in peer-reviewed journals regarding Dursban and its effects, and to some extent upon Trial Reporter / Winter 2010 19
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