Date: Fri, 7 Mar 2008 13:00

From: Barbara Legate

Subject: Causation, Multiple Sclerosis and Trauma

I expect there are black and white cases out there. Drug-damage effect cases would logically be in that category. Sitting down with a neurologist to discuss the inter-relationships between trauma and systemic disease will demonstrate that those are often not in the black and white category. Another example is the condition FOP, fibrodysplasia ossifcans progressive. At the time I litigated a case involving this disorder, it was being regarded, for the first time, as a form of auto-immune disorder. It is an excessive healing reaction. Consequently my client’s injury was thought to have caused the flare-up of the disorder. (It is nasty. A bruise becomes fibrous, and then it ossifies, spreads and becomes true bone. The sufferer ends up fixed at the major joints and some suffocate if it attacks the thoracic area.) What was interesting was the relationships being drawn between fibromyalgia and FOP. Without going into all of the medicine, the bottom line appeared to me to be that they did not know enough to give a definitive causal pathway, but they believe it exists. Those are complicated disorders, involving multiple systems of the body interacting with one another. They are experienced across the population on a continuum of severity. It would be wrong to say that because it was proven not to be connected in one case that a legal precedent then exists in all cases.

Barbara Legate

Please visit us at: www.legate.ca

150 Dufferin Ave Suite 302
London, ON N6A 5N6
Tel: 519-672-1953
Fax: 519-672-6689

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From: Jones, Michael
Sent: Friday, March 07, 2008 3:42 AM
Subject: RE: Causation, Multiple Sclerosis and Trauma

Incidentally, on science and proof the Irish and English High Courts reached opposite conclusions (on what seems to be the same evidence and same legal rule) on a link between whooping cough vaccine and brain damage (Best v Wellcome [1993] 3 IR 462 and Loveday v Renton, The Times 31 March 1988).

In Loveday it was concluded, taking into account a big national study, that it was possible that there was a causal link between whooping cough vaccine and brain damage in young children, but that it was not probable. Loveday was a test case. Since the answer reached by the judge was that it could not be shown, on a balance of probabilities, that there was a causal link, there was no prospect of demonstrating in any individual case that there probably had been a link.

Best concerned a batch of faulty vaccine (rather than the standard vaccine). Given that, the Court was prepared to accept medical evidence that, given the temporal connection between administration of the vaccine and the child's fits, there was probably a causal connection.

Seems to me that quite a few of these cases are working on "post hoc ergo propter hoc" causal reasoning, which is very common in lay thinking about the matter. Chairing social security tribunals dealing with appeals concerning industrial injuries, I often come across appellants who, following an accident at work, sincerely believe that all their medical problems after the accident can be attributed to the effects of accident, even those with an onset some years after the event (including one who thought that his diabetes was caused by his accident 3 or 4 years previously). But believing it doesn't necessarily make it so ...

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