In Case Of First Impression, Court Rejects Claim That Premature Birth Causes Autism/Pervasive Developmental Disorder

After slipping and falling on a manhole cover while in her thirty-fourth week of pregnancy, the plaintiff went into preterm labor and gave birth to her daughter the next day. The infant weighed five pounds, four ounces at birth and she was assigned APGAR scores of 9 at one minute and 9 at five minutes.

The infant received oxygen and ventilator assistance for three days, and was discharged eight days after she was born. Upon discharge, she was noted to be neurologically intact, with no evidence of hypoxic ischemic encephalopathy. At fourteen months of age, she was diagnosed with autism/PDD.

After a jury found that the utility company’s negligence caused or contributed to the plaintiff mother’s slip and fall, the utility company, facing a multi-million-dollar settlement demand, turned to HPM&B to litigate the following medical-legal issue: whether the infant’s premature birth and moderately low birth weight were causally related to the diagnosis of autism/PDD.

HPM&B’s Robin R. Dolsky and Ana M. Vizzo successfully moved for a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) andParker v. Mobil Oil, 7 N.Y.3d 434 (2006) to test the admissibility of plaintiffs’ causation theories.

At the hearing, plaintiff offered testimony by an expert in pediatric neurology who had examined the infant at the ages of seventeen months and three years and eight months. He testified that the infant had developmental delays that were consistent with autism disorder. While he maintained that low birth weight was statistically associated with the presence of autism, under cross-examination by Ms. Dolsky he conceded that “nobody knows” the “actual mechanism.” Moreover, he acknowledged that the infant in this case was not in fact small for her gestational age because she weighed 2381 grams.

HPM&B offered expert testimony by a pediatric neurologist who testified that low birth weight and prematurity are not generally accepted causes of autism within the medical community. The expert explained that the finding in some studies that there is an “association” between low birth weight and autism is not significant because an “association” is not the same as a cause. He added that in any event the infant-plaintiff did not have a very low birth weight.

In precluding plaintiffs from recovering on a theory that the infant’s premature birth caused her to develop autism/PDD, the court relied on excerpts from the Physicians’ Desk Reference, which states that the “term [association] implies that the cause is unknown.” The court also noted that HPM&B had offered numerous peer-reviewed studies which find that autism/PDD is primarily a genetic or environmental disorder, while plaintiffs had offered no studies concluding that a premature birth is a cause of autism/PDD.

Ultimately, the court found that plaintiffs’ expert was “equating the general developmental delays of a slightly premature birth to a diagnosis of Autism Spectrum Disorder with Pervasive Developmental Delay, which is a quantum leap of causation.” The court observed that “[t]he medical community has not established causes other than genetics or environmental factors for autism/PDD. It is not the role of a jury of laypersons to find additional causes of autism/PDD where the medical researchers have not found such causes.”

Click here to read the article in the New York Law Journal