Aea v. United States

26 Cl. Ct. 878, 1992 U.S. Claims LEXIS 414, 1992 WL 220155
CourtUnited States Court of Claims
DecidedAugust 28, 1992
DocketNo. 90-568V
StatusPublished
Cited by6 cases

This text of 26 Cl. Ct. 878 (Aea v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aea v. United States, 26 Cl. Ct. 878, 1992 U.S. Claims LEXIS 414, 1992 WL 220155 (cc 1992).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

Under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Act”), codified as amended at 42 U.S.C. §§ 300aa-l to 300aa-33 (1988 & Supp. I 1989), this matter comes before the court on motion for review of Chief Special Master Gary J. Golkiewicz’s decision to dismiss petitioners’ claim with prejudice. For the reasons stated below, the court affirms the decision of the Special Master.

FACTS

Stephen Aea was born on June 13, 1981. During the early months of his life he had no significant health problems and began developing as a normal, healthy child. However, Stephen began experiencing health problems after receiving his first diphtheria, pertussis, and tetanus (DPT) shot on September 3, 1981. The day after the vaccination, he contracted a temperature of 100.4 degrees, refused to nurse, and slept for long periods. A physician diagnosed Stephen as having an upper respiratory infection and, attributing Stephen’s symptoms to that disorder, administered Rondec DM. Approximately, one month later, on October 12, 1981, Stephen was admitted to a hospital emergency room with a complaint that he did not respond to visual stimuli. Emergency room records noted that Stephen’s eyes and head deviated to the right, and that he had been taking Phenergan for cold-related congestion and fever. The deviations were attributed by [880]*880the attending doctor to “possible phenothiazine reactions” from the Phenergan, but later medical records described the event as a “probable seizure disorder.”

Stephen was taken to the hospital twice prior to his second DPT vaccination: once with a cold, and once for an examination in which he was found to be in satisfactory condition. At the examination, the attending physician noted that Stephen had no feeding or sleeping problems, and was active and alert, followed light, reacted to noise, and rolled over. The second DPT vaccine was administered on October 24, 1981, and afterwards Stephen again exhibited unusually long sleeping patterns. He was again diagnosed as having upper respiratory infections. Although medical records confirmed that Stephen’s appetite and activity soon returned to normal, Mrs. Aea testified that Stephen lost weight during that time. A December 16,1981 examination showed Stephen to be small for his age. For approximately two weeks before the December 16, 1981 checkup, Stephen had experienced congestion and a runny nose.

Stephen still had a runny nose, and was taking Amoxicillin and Dimetapp, when he received his third DPT shot on December 29, 1981. The next day, Mrs. Aea found Stephen lying in a pool of vomit, limp and unresponsive. He was immediately taken to the hospital, but by the time a doctor examined him, approximately one hour later, he had completely recovered. The attending physician attributed the condition to a Dimetapp reaction. Almost three weeks later, on January 18, 1982, Stephen suffered a seizure. Mrs. Aea described her son as having his head turned to the left, eye lids twitching, all extremities shaking, and as being unresponsive and limp. Although medical records noted this to be Stephen’s first seizure, they also indicated a renewed speculation over the nature of the October 12, 1981 incident when he appeared temporarily blind and unresponsive.

Stephen began experiencing an increasing number of seizures prior to his fourth and final DPT vaccination on February 10, 1983. At the time of the last shot, he was taking Phenobarbital, Dilantin, Diamoxin, and other anti-convulsant medications. Mrs. Aea testified that after the fourth inoculation Stephen began to walk differently, could not pronounce words as well, and began to have clusters of seizures, beginning with ten and increasing to as many as one hundred seizures in a twenty-four hour period. Medical records, however, do not document the onset of cluster seizures until April 1984, over a year after the last shot. Today, Stephen remains developmentally disabled and is enrolled in a special education class at his elementary school. He has a seizure disorder, the cause of which remains unknown.

On June 25, 1990, Richard and Theresa Aea filed a petition in this court before Chief Special Master Gary Golkiewicz for compensation on behalf of their son under the Vaccine Act. The petition was denied, and petitioners moved for review of that decision in this court on June 8, 1992. Petitioners requested review on the grounds that the Chief Special Master (1) “acted in an arbitrary and capricious manner in rejecting the unrebutted medical opinion of petitioners’ expert,” (2) “arbitrarily and capriciously decided that petitioners’ expert was not credible,” and (3) “arbitrarily and capriciously decided the case before trial, and wrote his opinion only to justify the bias and error of his decision.”

DISCUSSION

In reviewing the decision of a special master, this court has authority to “set aside any findings of fact or conclusion^] of law ... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). By the plain language of the statute de novo review of legal conclusions or factual findings is not appropriate. Stotts v. Secretary of Dep’t of Health & Human Servs., 23 Cl.Ct. 352, 358-61 (1991); see Hines v. Secretary of Dep’t of Health & Human Servs., 940 F.2d 1518, 1523-24 (Fed.Cir.1991); Murphy v. Secretary of Dep’t of Health & Human Servs., 23 Cl.Ct. 726, 729-30 (1991). “ ‘[Arbitrary and capricious’ is a highly [881]*881deferential standard of review.” Hines, 940 F.2d at 1528. A reviewing court may not substitute its own judgment for that of a special master if the special master has considered all relevant factors, and has made no clear error of judgment. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); Hyundai Elecs. Indus. v. United States Int’l Trade Comm’n, 899 F.2d 1204, 1209 (Fed.Cir.1990); Gamalski v. Secretary of Dep’t of Health & Human Servs., 21 Cl.Ct. 450, 451-52 (1990). Accordingly, this court must grant the Chief Special Master wide latitude in determining the propriety of his denying petitioners’ claim.

For petitioners to recover under the Vaccine Act, a showing of causation must be established in one of two ways. Causation is presumed if petitioners support, with medical records or expert testimony, a claim of an injury listed on the Vaccine Injury Table (Table), 42 U.S.C. § 300aa-14(a), and show by a preponderance of the evidence that the injury occurred within the time period described by the Table. 42 U.S.C. § 300aa-13(a)(l)(A). If these requirements are met, petitioners will recover unless respondent alternatively shows by a preponderance of the evidence that the injury resulted from factors “unrelated to the administration of the vaccine described in the petition.” 42 U.S.C.

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26 Cl. Ct. 878, 1992 U.S. Claims LEXIS 414, 1992 WL 220155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aea-v-united-states-cc-1992.