A Staten Island judge has dismissed a lawsuit filed by a woman who slipped and fell on a manhole cover, went into premature labor, and gave birth to a child who was later diagnosed with autism.
Supreme Court Justice Joseph Maltese ruled on Feb. 5 in Melnick v. Consolidated Edison, 102654/09, that although two studies had suggested a possible association between low birth weights and autism, there is no generally accepted causal link. Furthermore, he found that the studies were not relevant to the facts of the specific case.
No other court in the nation has ruled on a theory directly linking premature birth and low birth weight to autism, according to Maltese’s opinion.
The plaintiff, Lauren Melnick, slipped on a utility manhole cover belonging to Consolidated Edison, Inc. in January 2009. She was in her 34th week of pregnancy. She alleges that, as a result of the slip and fall, she went into premature labor that evening. She gave birth to a daughter, Jenny, who weighed five pounds, four ounces.
In August 2010, Jenny, who was not speaking, was diagnosed with autism/pervasive developmental delay (PDD). Melnick alleges that Jenny’s condition was caused by her premature birth, and, by extension, by Con Ed.
Justice John Fusco presided over a trial on liability. A jury found Con Edison 75 percent liable for the fall, and Melnick 25 percent liable. The jury did not decide whether the fall caused Jenny’s premature birth or autism.
The case was then assigned to Maltese for proceedings on damages. Con Edison moved for a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), on whether Melnick could present expert testimony supporting her theory of causation. Under the standard set forth in Frye, a scientific theory must be generally accepted in the relevant scientific community to be admissible.
The plaintiff’s expert, neurologist Allan Rubenstein, testified that he had examined Jenny, considered her medical and family history, and concluded that her premature birth caused her autism. In support of his opinion, he offered two studies showing a statistical association between low birth weights and autism. However, he conceded on cross-examination that the babies in these studies were considerably smaller at birth than Jenny. Moreover, he acknowledged, they were small for their gestational age, while Jenny, though born prematurely, was a normal weight for her gestational age.
Melnick also introduced two other studies suggesting a statistical association between low birth weight and autism, which were not cited by Rubenstein. Melnick further argued that the theory was not novel, because it is generally accepted that premature birth can cause developmental delays.
Con Ed’s expert, pediatrician David Kaufman, testified that there was no scientifically accepted causal link between premature birth or low birth weight and autism. He also testified that he had examined Jenny at age 3 and concluded that, while shy, she was of normal intelligence and had only mild autism/PDD. He testified that she had a good prognosis and would likely be able to go to mainstream schools.
Maltese ruled that Rubenstein could not testify that the slip and fall caused Jenny’s autism/PDD, and dismissed Melnick’s causes of action related to that alleged injury.
"Courts are not medical or scientific laboratories in which to experiment with novel theories of causative factors of disease or medical conditions," the judge wrote. "An association in medicine or science is different from causation. Causation may be easier to prove where a person slips and falls upon a utility manhole cover and thereby lands upon their backside resulting in an injury to their vertebra. But here the plaintiff-mother sustained no personal injury."
He added, "Here, the plaintiffs’ chain of causation is more protracted and remote requiring medical proof that is generally accepted within the medical community."
The judge rejected Melnick’s argument that the theory was not novel because of the established link between premature birth and developmental delay.
"The plaintiffs’ counsel is 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 judge said.
"General causation must first be established by medical researchers and scientists who have considered prematurity and low birth weight as a generally acceptable cause of autism/PDD," he said. "But the medical researchers have only shown a statistical association and have cautioned about establishing it as a cause of autism/PDD."
Furthermore, the judge said, even if the studies did show a causal connection between premature birth or low birth weight and autism/PDD, the theory did not fit the facts of the case, because Jenny was heavier than the babies in the studies.
"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," the judge concluded.
Con Edison was represented by Robin Dolsky and Daniel Ratner, partners at Heidell, Pittoni, Murphy & Bach, as well as its own attorney Rita Marin. Ratner declined to comment on the case.
Brian Brown, a partner at Zaremba Brownell & Brown, represented Melnick.
"We always knew that we had an uphill fight, but we felt, and continue to believe, that the traumatic circumstances surrounding her birth contributed to and/or caused" Jenny’s developmental delays, Brown said.
@|Brendan Pierson can be contacted at firstname.lastname@example.org.