Summary
The Court upheld dismissal of a consumer claim alleging that a hepatitis-B vaccine caused myositis and disability. On the evidence in this case, the complainant failed to establish the asserted condition and its causal connection to vaccination even on a preponderance of probabilities. Unsupported medical affidavits did not become sufficient proof merely because the manufacturer had not cross-examined their authors.
Issues
- Whether the complainant proved the alleged condition and its causal link to the vaccine.
- Whether untested medical affidavits established liability and omission of the alleged adverse reaction from product information amounted to deficiency on these facts.
Held
- The medical affidavits did not supply records, research or expert reasoning establishing the asserted causal link. One doctor described administration and later complaints; the other relied on reported experiences of third persons. The absence of cross-examination or interrogatories did not repair that evidentiary deficiency. (¶¶ 10, 11, 12, 13)
- The initial burden remained on the complainant. The medical condition and alleged vaccine causation were not established even on a preponderance of probabilities, and the requested muscle-biopsy material had not been furnished. (¶¶ 14, 17)
- On this record, the Court rejected the asserted manufacturer deficiency from omission of the alleged reaction, considering the certification evidence, the reported minimal incidence and the prescribing doctor’s role. The doctor’s potential responsibility was discussed, not adjudicated as a liability finding against him. (¶¶ 15, 16, 17)
Result
Appeal dismissed; NCDRC dismissal of the complaint upheld. No costs; pending applications disposed of.