In the 63-page opinion of Blackwell v. Wyeth, the Maryland Court of Appeals affirmed the trial court’s exclusion of plaintiffs’ experts and grant of summary judgment. Maryland’s highest court is the latest to rule on cases alleging a connection between childhood vaccines with thimerosal (an organic mercury-based preservative) and autism and related injuries. The ruling basically holds in two parts that (1) a causal connection between the vaccines and autism is not generally accepted in the relevant scientific community; and (2) the plaintiffs’ experts were not qualified to give expert testimony under Maryland Rule 5-702.
The opinion is informative for any lawyer who relies on experts (which is most of us). The issue of expert testimony is frequently a tough one—it is common knowledge that fingerprints and DNA evidence are reliable science, but those methods were once on the fringe of accepted science. One of the responsibilities of judges is to play the role of gatekeeper—in general, they must keep the jury from hearing about many things, frequently including insurance, previous criminal activity, and they must not allow testimony on “junk” science. The scientific issue makes me uncomfortable for a number of reasons—one of the reasons I’m a lawyer is that I’m not a scientist, and I probably could never be a scientist. My brain just doesn’t work that way. I think a lot of lawyers and judges are in the same boat. It can be a difficult proposition for a person with little to no scientific training to be forced to rule on whether something is or is not “accepted science.”
It’s hard not to sympathize with the plaintiffs in these cases. Autism is not as easy to live with as movies and television depict—only a very small percentage of people with autism can be classified as “savants.” It may be that there is no causation between thimerosal and autism; or it may just be that the scientific community is still working out its internal struggles on the issue. Or perhaps, in close cases, it should be left to a jury to decide.