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Legal Ruling on Anthrax I lawsuit: Government's position not substantially justified

08/23/07

Kudos to attorneys Lou Michels and Mark Zaid!

Attached find the DC Court's ruling on attorney fees. It is a decisive conclusion to the Anthrax 1 litigation. The key is that the Plaintiffs were the "prevailing party" and the defendant's / government's position was not "substantially justified" as was their argument in their attempt to avoid a technical "loss" and the payment of attorney's fees.

Excerpt: "The Court, however, finds more persuasive the argument that the proposed order could not have meant to approve AVA for inhalation anthrax when it explicitly stated that it found no evidence to prove AVA's effectiveness against inhalation anthrax. In fact, the 2003 final order had to directly contradict the scientific conclusions in the proposed order regarding the Brachman study in order to support the
position that AVA was effective against inhalation anthrax. See id. at 7. Given the explicit qualifications in the proposed order and the reversal in analysis in the 2003 final order, the Court concludes that defendants' litigation position was not substantially justified ... In this case, there is no question that plaintiffs have prevailed overall as they achieved the permanent injunctive relief that they sought."

Bottomline: it is now definitive legal precedent that the AVIP was illegal from it's inception through Dec '05. Now on to the pending Anthrax 2 litigation, and a court determination whether the same reversal of scientific opinion is substantially justifiable for the new licensure of anthrax vaccine after FDA ignored and dismissed negative public comment in the finalized rule making process.

For more information: AnthraxEAJAOpinion.pdf

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