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FIFTH
SECTION
CASE OF SOLOMAKHIN v. UKRAINE
(Application
no. 24429/03)
JUDGMENT
STRASBOURG
15
March 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Solomakhin v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet
Fura,
Boštjan
M. Zupančič,
Ann
Power-Forde,
Ganna
Yudkivska,
Angelika
Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 7 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24429/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Sergey Dmitriyevich
Solomakhin (“the applicant”), on 22 July 2003. The
applicant having died in September 2010, Mrs Vera Petrovna
Solomakhina, his mother, expressed the wish to pursue the
application.
- The
applicant was represented by Ms I. Gavrilenko, a lawyer practising in
Donetsk. The Ukrainian Government (“the Government”) were
represented by their Agent, Mr Y. Zaytsev, from the Ministry of
Justice.
- The
applicant alleged, in particular, that the court proceedings in his
case were excessively lengthy and that his health had suffered as a
result of medical malpractice.
- On
6 May 2008 the Court declared the application partly inadmissible and
decided to communicate the above complaints under Articles 6 and 8 of
the Convention to the Government. It also decided to rule on the
admissibility and merits of the remaining parts of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lived in Donetsk. He died on
13 September 2010.
- On
23 November 1998 the applicant sought medical assistance from the
Donetsk City Hospital No. 16 (Центральна
міська клінічна
лікарня № 16
м. Донецька
– “the Hospital”), where he was diagnosed as having
an acute respiratory disease. He was prescribed out-patient
treatment.
- On
his next visit to the Hospital on 27 November 1998 the applicant was
tested for his reaction to a vaccination against diphtheria. The test
showed no susceptibility to diphtheria antigens.
- On
28 November 1998 the applicant was vaccinated against diphtheria.
According to the applicant, the vaccination was contraindicated for
him.
- On
30 November 1998 the applicant was examined by a doctor, who
indicated that the applicant’s state of health had improved and
that the treatment had given positive results. He was diagnosed with
tracheobronchitis, which was confirmed during his further visits to
the doctor on 3, 4 and 7 December 1998.
- From
28 December 1998 the applicant spent more than half a year at
different medical institutions receiving treatment for a number of
chronic diseases (for instance, pancreatitis, cholecystitis,
hepatitis, colitis).
- On
4 February 1999 the Chief Doctor of the Hospital reprimanded doctor
Ya. and nurse Sh. for vaccinating the applicant although he had
consistently objected to the vaccination and while he was being
treated for an acute respiratory infection. He considered that they
had violated the rules concerning vaccinations and ordered them to
pass a test on those rules.
- On
26 April 1999 the applicant instituted proceedings in the
Budyonnovskiy District Court in Donetsk against the local department
of public health (Донецький
міський відділ
охорони здоров’я)
and the Hospital, seeking compensation for damage to his health. He
alleged that the vaccination on 28 November 1998 had been
conducted whilst he was ill and had resulted in him suffering from a
number of chronic diseases. He also complained that the vaccine had
been of poor quality as it had been uncertified, had expired and had
been stored in inappropriate conditions. He complained that the
doctors had tried to falsify the relevant medical records and to
conceal the negative effects of the vaccination.
- Between
30 May and 30 June 2000, 17 July 2000 and 29 January 2001, 2 and 30
January 2002 and 4 March 2002 and 17 February 2003 medical expert
examinations were conducted into the applicant’s allegations.
- On
2 June 2003 the court found against the applicant. With reference to
the conclusions of the medical expert examiners, the court
established that the applicant’s diseases had no causal link to
his vaccination. It noted that the applicant had not had an allergic
reaction or showed other signs that would normally have appeared
within several days following the vaccination. The only disease that
could be associated with the vaccination was urticaria (commonly
known as hives), which the applicant had suffered from more than
eight months after the vaccination and which could not therefore have
had any causal link to it. The court also established that the
applicant had not had any acute symptoms of any disease upon
vaccination and therefore that his vaccination had not violated any
medical rules. Furthermore, the epidemic situation in the Donetsk
region had called for his vaccination against diphtheria. The court
noted that no physical force had been applied to the applicant and
that, being an adult of sound mind, he could have refused to have the
vaccination, as he had done before on several occasions. The court
noted that although the vaccination had not been performed in the
vaccination room as required by the regulations, it had been
conducted by a qualified nurse in a doctor’s office, in a
doctor’s presence, with prior verification of the applicant’s
reaction to such a vaccination, and it had not caused the applicant
to have any negative side-effects. The court also noted that the
applicant’s allegations about the quality of vaccine had been
speculative and had not been confirmed by any evidence. The court
observed that none of the applicant’s diseases had had a causal
link to the vaccination and that the applicant had spent so much time
in hospital because he had been attempting to obtain disabled status.
The court also examined the applicant’s allegations about the
alleged falsification of medical records and rejected them as
unsubstantiated.
- On
19 March 2008 and 22 August 2008 respectively the Donetsk Regional
Court of Appeal and the Supreme Court upheld the above judgment.
16. On
13 September 2010 the applicant died of a heart attack. By letter of
26 September 2011 the applicant’s mother informed the Court of
her wish to pursue the application.
II. RELEVANT DOMESTIC LAW
A. Health care and control of diseases Act 1994 (“the
Act”)
- The
relevant section of the Act reads as follows:
Section 27
Preventive vaccination
“Preventive vaccinations against tuberculosis,
polio, diphtheria, whooping cough, tetanus and measles are compulsory
in Ukraine.
...
Groups of the population and categories of employees
subject to preventive vaccination, including those which are
compulsory, and the procedure for and scheduling of their
implementation shall be specified by the Ministry of Health of
Ukraine ...”
B. Guidelines on the organisation and conduct of
preventive vaccinations
- These
guidelines, approved by the Ministry of Public Health of Ukraine on
25 January 1996, provide for the organisation of vaccinations, set
out a list of contraindications and side-effects and the procedure
for informing the appropriate parties of any negative side-effects
after vaccination.
III. RELEVANT INTERNATIONAL MATERIALS
- On 19 March 1997 the Parliamentary Assembly of the
Council of Europe adopted Recommendation 1317 (1997) on vaccination
in Europe. The relevant part of this recommendation states:
“...
3. The recent diphtheria epidemic in some of
the newly independent states is an example of the risks confronting
us. Tens of thousands of cases have been reported since the outbreak
of the epidemic in 1990, and thousands have died of a disease
generally believed to have been wiped out. Other pockets of infection
may attain epidemic proportions at any time: poliomyelitis,
tuberculosis, tuberculous meningitis, pertussis, etc.
4. The diphtheria epidemic very clearly
demonstrated that health risks could not be contained locally. With
millions of people now free to travel from one country to another, it
has not been possible to halt such epidemics. The eruption of ethnic
conflicts producing mass movements of refugees has created new
problems in this respect, and the austerity imposed by economic
reforms has worsened the situation.
...
6. The Assembly therefore recommends that the
Committee of Ministers invite member states:
i. to devise or reactivate comprehensive
public vaccination programmes as the most effective and economical
means of preventing infectious diseases, and to arrange for efficient
epidemiological surveillance;
ii. to grant increased assistance as a matter
of urgency, internationally co-ordinated through the World Health
Organization (who) and Unicef in particular, to countries suffering
from the diphtheria epidemic, in order to supply adequate quantities
of vaccines and medicines and train a medical staff qualified to
handle and administer the vaccine with the following aims:
a. to achieve a high immunisation level among
the population;
...
7. The Assembly furthermore invites the
Committee of Ministers:
i. to define a concerted pan-European policy
on population immunisation, in association with all partners
concerned, for example who, Unicef and the European Union, aimed at
the formulation and observance of common quality standards for
vaccines, and to ensure an adequate supply of vaccines at a
reasonable cost ...”
THE LAW
I. AS TO THE LOCUS STANDI OF MRS SOLOMAKHINA
- The applicant died on 13 September 2010, while the
case was pending before the Court. It has not been disputed that Mrs
Slomakhina (his mother) is entitled to pursue the application on his
behalf and the Court sees no reason to hold otherwise (see, among
other authorities, Benyaminson v. Ukraine, no. 31585/02,
§ 84, 26 July 2007, and Horváthová v. Slovakia,
no. 74456/01, §§ 25-27, 17 May 2005). However, reference
will still be made to the applicant throughout the present text.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
sted that argument and considered, in particular, that this case had
beetime by [a] ... tribunal ...”
- The
Government conten particularly complex, given the necessity to have
an expert examination of the applicant’s medical file and his
state of health
- The
period to be taken into consideration began on 26 April 1999 and
ended on 22 August 2008. It thus lasted nine years and almost four
months for three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case; and the conduct of the
applicant and the relevant authorities (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender v. France, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Although the case in question was admittedly a complex one and
required forensic medical examination of the applicant’s
medical conditions, such complexity could not justify the length of
the proceedings which exceeded nine years for three levels of
jurisdiction, including almost five years before the court of appeal.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- Referring
to Article 2 of the Convention, the applicant complained of damage to
his health as a result of alleged medical malpractice. In particular,
he submitted that the vaccination on 28 November 1998 had resulted in
him suffering from a number of chronic diseases. The Court, which is
master of the characterisation to be given in law to the facts of the
case, decided on its own motion to examine the complaint raised by
the applicant under Article 8 of the Convention, which is the
relevant provision and which provides insofar as relevant as follows:
“1. Everyone has the right to respect
for his private ... life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant insisted that he had been vaccinated during the acute stage
of an illness and that the doctors had not checked all relevant
contraindications to vaccination in his case. He claimed that he had
been administered an expired vaccine of poor quality and that it had
been done against his will. All of these failings had resulted in his
serious health problems, which the doctors at fault and judges had
conspired to conceal and who had therefore falsified medical records
and court documents. He considered that there had been no reason for
interfering with his private life, as there had been not been an
outbreak of diphtheria in his home town at the relevant time and the
vaccine had been strongly contraindicated for him.
- The
Government agreed that the compulsory vaccination had constituted an
interference with the applicant’s private life. They contended,
however, that such interference had been justified in the present
case. They noted that under section 27 of the Law on health care and
control of diseases 1994, preventive vaccination against diphtheria
had been compulsory and the Ministry of Public Health had been
entrusted to specify the procedure for and terms of such vaccination.
The Ministry had done so in its guidelines (Order No. 14 of 25
January 1996).
- The
Government further contended that the interference had pursued the
legitimate aim of the protection of public health against diphtheria,
which was a highly infectious and virulent disease. Given the
complicated epidemiological situation in the country and in the
region in which the applicant had resided, the interference had been
necessary to protect the health of the applicant and of the public at
large. The Government noted that the applicant’s fitness for
vaccination and possible contraindications had been checked by the
doctors prior to the vaccination. In addition, they noted that, while
being compulsory, the vaccination had not been forced or violently
imposed, and therefore that the applicant, being an adult of
thirty four years of age at the time of the events, could have
refused to have the vaccination, as he had done previously on many
occasions. They finally noted that the applicant’s allegations
about the quality of the vaccine and the negative side-effects of the
vaccination on his health had been thoroughly examined by the doctors
and the courts and had been found unsubstantiated. They considered
that the findings of the domestic authorities, who had had the
primary task of interpreting the law and assessing the proof adduced,
should not be called into question.
2. The Court’s assessment
- The
Court reiterates that according to its case-law, the physical
integrity of a person is covered by the concept of “private
life” protected by Article 8 of the Convention (see X and Y
v. the Netherlands, 26 March 1985, § 22, Series A no. 91).
The Court has emphasised that a person’s bodily integrity
concerns the most intimate aspects of one’s private life, and
that compulsory medical intervention, even if it is of a minor
importance, constitutes an interference with this right (see Y.F.
v. Turkey, no. 24209/94, § 33, ECHR 2003 IX,
with further references). Compulsory vaccination – as an
involuntary medical treatment – amounts to an interference with
the right to respect for one’s private life, which includes a
person’s physical and psychological integrity, as guaranteed by
Article 8 § 1 (see Salvetti v. Italy (dec.), no.
42197/98, 9 July 2002, and Matter v. Slovakia, no. 31534/96,
§ 64, 5 July 1999).
- The
Court notes that in the instant case, as was uncontested by the
parties, there has been an interference with the applicant’s
private life.
- The
Court further notes that such interference was clearly provided by
law and pursued the legitimate aim of the protection of health. It
remains to be examined whether this interference was necessary in a
democratic society.
- In
the Court’s opinion the interference with the applicant’s
physical integrity could be said to be justified by the public health
considerations and necessity to control the spreading of infectious
diseases in the region. Furthermore, according to the domestic
court’s findings, the medical staff had checked his suitability
for vaccination prior to carrying out the vaccination, which suggest
that necessary precautions had been taken to ensure that the medical
intervention would not be to the applicant’s detriment to the
extent that would upset the balance of interests between the
applicant’s personal integrity and the public interest of
protection health of the population.
- Furthermore,
the applicant himself failed to explain what had prevented him from
objecting to the vaccination, when previously he had objected on
several occasions. There is no evidence before the Court to prove
that the vaccination in question had actually harmed the applicant’s
health.
- The
Court also notes that the applicant’s allegations were
thoroughly examined by the domestic courts and found unsubstantiated.
The domestic courts found only one insignificant irregularity in the
vaccination procedure, namely, making the vaccination outside the
special vaccination room. This, they found, did not in any way affect
the applicant’s health. They also established that none of the
known side-effects of the vaccination were manifested by the
applicant. They did so on the basis of several medical expert
reports. The findings of the domestic courts were based on a large
amount of medical data collected upon the motion of the applicant and
of the courts. These findings appear to be grounded on a sufficient
evidential basis and their conclusions are not arbitrary or
manifestly unreasonable. The applicant did not submit any evidence to
challenge the findings of the domestic authorities.
- In view of the above considerations, the Court finds
no violation of Article 8 of the Convention in the present case.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 54,892.53 hryvnias (UAH) (approximately 4,600 euros
(EUR)) in respect of pecuniary damage and UAH 700,000 (approximately
EUR 58,700) in respect of non-pecuniary damage.
- The
Government considered that there was no causal link between the
applicant’s claim of pecuniary damage and his complaints. They
also contended that the claimed non-pecuniary damage was
unsubstantiated, that the amount was excessive and that it did not
correlate to the awards given by the Court in comparable cases
against Ukraine.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant’s mother EUR 2,400 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 3349.02 (EUR 302.59) and UAH 489.95
(EUR 44.27) for costs and expenses.
- The
Government maintained that not all the claims were relevant and
invited the Court to award only the expenses that were confirmed and
related to the proceedings in question.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 100 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds that there has been no violation of
Article 8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant’s mother, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 2,400 (two
thousand four hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 100 (one hundred euros), plus
any tax that may be chargeable to the applicant’s mother in
respect of costs and expenses, to be converted into Ukrainian
hryvnias at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Boštjan
M. Zupančič is annexed to this judgment.
D.S.
C.W.
CONCURRING OPINION OF
JUDGE BOŠTJAN M.
ZUPANČIČ
- I
hesitated to go along with this judgment because of the question of
causal link which allegedly had not been established between the
procedure of administering the vaccination on the one hand and the
death of the applicant on the other hand. The applicant claimed that
the vaccination had been done against his will, which implies that
there was no prior and informed consent. The “informed”
consent implies that the patient in such circumstances must be
instructed as to all the potential risks of administering any kind of
medical treatment, which he must thereafter consent to in a genuinely
informed way. Failing that, we cannot speak of a full consent,
whereas here – in contrast to the usual medical situation –
we seem to speak of a forceful administration of diphtheria vaccine
without any consent on the part of the applicant and, indeed, against
his so expressed will. As per his submissions, these failings had
resulted in serious health problems (§ 30 of the judgment).
- Admittedly,
the Ukrainian courts have summoned three experts to testify
concerning the possible causal connection between the diphtheria
vaccine injection, on the one hand, and the serious medical problems
resulting in death of the applicant on the other hand.
- Perhaps
it would be useful to sketch the basic problem concerning discrepancy
between scientific perception of causation on the one hand and the
legal/judicial insistence concerning the finding of a “true
cause” in each criminal or tort situation, in which the
consequence – in this case, death – is part of the
definition of the tort or the crime in question. It is notorious that
in medical cases the causal link is practically impossible to
“prove”. This impossibility, however, is occurring on the
legal/judicial side – rather than on the medical/scientific
side.
- The
scientists are well aware of the epistemological axiom to the effect
that no consequence in the real world is “caused” by a
single preliminarily necessary condition. Every consequence in the
real world, in which it occurs as an event, is a product of
innumerable necessary conditions which, by definition, are all
indispensable if the consequence in question is to occur. For
example, the authors of the Model Penal Code of the United States of
America have, many decades ago, in fact done away with the theory of
causation. They have adopted the sine qua non causation
theory, which in reality is the denial of causation itself. It admits
as a legally relevant “cause” any necessary (sine qua
non) condition without which the result in the crime in question,
for example death, would not have occurred.
- It
is patently clear, especially so in the scientific community, that
there is no such thing as causation or causal link. In the legal
community, however, the juries are insufficiently conscious of the
fact that the decision making by judges and other protagonists
proceeds by scanning the necessary conditions for the consequence in
question and then – more or less intuitively, i.e. with
insufficient consciousness – choosing the critical necessary
condition as the legally satisfying “cause” for the
consequence in question. The scan that is so performed, however, is
not a scan of objective reality.
- On
the contrary, what judges and others look for is the blameable
necessary condition, albeit objectively existing, to which the blame
of the law can be attached, so that at the end of the process, be it
criminal or concerning tort, a culprit is identified, condemned and
punished.
- In
most standard tort cases as well as in criminal ones the
establishment of the causal link – i.e., the finding of the
blameworthy necessary condition – does not represent a problem.
In medical cases (See for example Calvelli and Ciglio v. Italy
[GC], no. 32967/96, 17 January 2002) the necessary condition
somehow does not seem to be sufficient. The problem recurs in
insanity cases, where most of the jurisdictions require the
psychiatrist to testify as to the real existence of a mental illness,
as the cause, and the insanity of the defendant as a consequence. If
that “causal link” is not accepted by the court, then the
insanity defence will fail, although the defendant in question may be
genuinely mentally ill in the first place.
- In
standard medical cases where medical negligence or faulty drugs, as
allegedly in this case, are to blame, it is practically impossible to
have a waterproof testimony from a medical or any other kind of
expert. In the best of scenarios, the experts will testify to the
effect that the consequence in question is “not incompatible”
with the necessary condition (medical negligence, faulty drugs,
etc.).
- This
is perhaps a paradigmatic situation that vividly illustrates the
communication gap between the scientific community, on the one hand,
and the legal/judicial community. Epistemologically, scientists as
well as medical doctors are not either trained or conditioned to look
for a blameworthy “cause”. While every doctor or
scientist will, when establishing diagnosis, try to establish the
cause of the symptoms, he is not looking for the legal consequences
such as necessarily arise in the adversarial context of any trial.
This is why the epistemological debate in the scientific community is
objective and reasonable. The moment that very same debate is put on
the stage of the adversarial theatre the objectivity and
reasonableness become charged with potential consequences of the
outcome of the trial. What was reasonable in the sense of “relative”
before, suddenly becomes a discrete “yes” or “no”
proposition, for which the expert appointed by the court must take
full responsibility. What before was a full spectrum of experiment,
suddenly becomes a “yes” or “no” proposition
which commonly, moreover, may have dire consequences for the
protagonists in the trial.
- I
have dealt with this kind of problem in Tătar v. Romania
(no. 67021/01, 27 January 2009) and Băcilă
v. Romania (no. 19234/04, 30 March 2010) and the issue is
always the same. The modern doctrine of the principle of precaution
offers an elegant solution to this legal enigma by transferring a
priori the burden of proof onto the appropriate party. In Tătar
and Băcilă cases, clearly this ought to
have been the Romanian State. In our case, the burden of proof, if we
were to be guided by the principle of precaution, ought to have been
on the company which had produced the vaccine and on the doctors who
have injected it in an allegedly irreproachable way. If that burden
were to be placed on them they would make an extra effort to show
that the vaccine had in fact been produced and administered lege
artis and the case would be, without undue burdening of the
experts, resolved. This would have occurred, of course, if those who
carried the burden were able to show that the allegations on the part
of the applicant were in fact without any scientific basis.
