Barnette v. Secretary, Department of Health & Human Services

110 Fed. Cl. 34, 2013 U.S. Claims LEXIS 263, 2013 WL 1384429
CourtUnited States Court of Federal Claims
DecidedMarch 21, 2013
DocketNo. 06-868V
StatusPublished
Cited by13 cases

This text of 110 Fed. Cl. 34 (Barnette v. Secretary, Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnette v. Secretary, Department of Health & Human Services, 110 Fed. Cl. 34, 2013 U.S. Claims LEXIS 263, 2013 WL 1384429 (uscfc 2013).

Opinion

Vaccine Act: The special master’s conclusion that a vaccination was not a substantial factor in bringing about harm was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law where the special master employed the correct legal standard, carefully considered the relevant evidence, and ultimately relied on the testimony of experts judged by the special master to be qualified and credible.

OPINION

WIESE, Senior Judge.

This case arises under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l to -34 (2006) (“the Vaccine Act”). Petitioners, Karen and Timothy Barnette, seek review of the special master’s September 26, 2012, decision denying compensation for injuries to their daughter, Claire, following her receipt of a vaccination that allegedly hastened the onset of her Dravet Syndrome.1 In particular, petitioners maintain that the special master’s conclusion that the vaccination was not a substantial factor in bringing Claire harm was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Petitioners ask the court to reverse the special master’s decision and remand the ease for an award of compensation, reasonable attorney’s fees, and other costs.

The court heard oral argument on March 7, 2013. After careful consideration of the briefs and of the exceptional presentations made by counsel, the court finds in favor of respondent. For the reasons set forth below, petitioners’ motion for review is denied.

BACKGROUND

I.

Claire Barnette was born on March 18, 2005. For the first six months of her life, Claire developed normally and suffered from no serious illnesses. On September 19, 2005, at the age of six months, Claire received a series of vaccinations, including the Pediarix (DTaP/IPV/Hep B), Hib, and Prevnar vaccines.2 That night, Claire experienced her first seizure, becoming nonresponsive to her mother’s voice for approximately a two-minute period while her left arm jerked rhythmically and her head turned to the right. Paramedics responding to her parents’ 911 call examined Claire and pronounced her “okay.”

Claire’s pediatrician examined her the following day and found her to be alert, active, oriented, and in no distress. The pediatrician noted, however, that Claire had experienced an “apparent seizure post-vaccinations” and recommended that her parents consult a neurologist and schedule Claire for an electroencephalogram (“EEG”).

Approximately two weeks later, on October 4, 2005, Claire experienced a second seizure, again characterized by the rhythmic jerking of her left arm, with her head turned, nonre-sponsive, to the right. At the time, Claire [37]*37had a mild illness with a cough and a runny nose. Following the seizure, Claire was taken to North Oak Regional Medical Center, where her temperature was recorded at 97.9 degrees. Claire was diagnosed with a seizure disorder and transferred to the emergency department at Le Bonheur Children’s Hospital, where she was admitted the same day. Healthcare providers at Le Bonheur diagnosed a “focal seizure” and recommended that Claire’s parents schedule her for a magnetic resonance imaging (“MRI”), an EEG, and a follow-up appointment with a neurologist. They additionally prescribed the drug Trileptal to treat Claire’s condition.

On October 12, 2005, Claire was examined by Dr. Dave F. Clarke, a neurologist at Le Bonheur. Dr. Clarke indicated that Claire presented with a complaint of “[t]wo partial seizures, the last of which occurred approximately 1 week ago.” Dr. Clarke noted that Claire’s first seizure was “immediately after her 6-month vaccinations, however she had both her 2- and 4-month shots prior without any noted seizures.” Dr. Clarke further observed that although Claire had no family history of seizures and the results of a prior computed tomography (“CT”) scan were normal, an EEG “revealed scattered C4, F4 sharp and spike wave discharges.” Dr. Clarke ordered an MRI with a follow-up visit within a one- to two-month period.

On the morning of October 16, 2005, Claire experienced a third seizure. As with her second seizure, Claire was again suffering from a mild illness, characterized by a fever, cough, and runny nose. A brain MRI conducted on October 19, 2005, was normal, with the exception of inflammatory changes attributed to sinus disease. A subsequent MRI, conducted on March 13, 2006, was also found to be a “[njormal study with interval resolution of sinus disease seen on previous exam.”

Claire continued to experience seizures for the next few years and was followed by Dr. Clarke for what emerged as an intractable, multifocal epilepsy, which proved resistant to multiple medication therapies. On June 24, 2008, at the age of three years and three months, Claire required the placement of a vagus nerve stimulator for refractory epilepsy. Hospital records indicated that “[d]evel-opmentally [Claire] is in speech therapy. She does walk but is developmentally delayed.”

That same month, June 2008, Claire’s parents submitted a sample of her blood to the Athena Diagnostics laboratory for an SCN1A DNA Sequencing Test.3 The test results indicated that Claire possesses a gene mutation, referred to as a DNA sequence variant, the significance of which was not then known. Subsequent testing of Claire’s parents revealed that Claire’s mutation had arisen de novo (ie., was not inherited), as neither parent shared the mutation.

A little more than two years later, in July 2010, Athena Diagnostics produced a revised report, indicating that Claire’s genetic mutation, previously of unknown significance, was “re-classified as a known disease-associated mutation.” The report advised that since Claire’s mutation arose de novo, it “further increases the probability that this known disease-associated mutation could be causative of a severe phenotype.”4 Ultimately Athena Diagnostics reported that Claire’s “test result is consistent with a diagnosis of, or a predisposition to developing, the severe phenotypes associated with SCN1A mutations, SMEI [Severe Myoclonic Epilepsy of Infancy] or SMEB [borderline SMEI].”

[38]*38Notwithstanding her seizure disorder, Claire’s neurologic development was normal through the first year of her life, a result typical in the progression of Dravet Syndrome. Claire’s vocalization and fine motor skills were slightly behind at thirteen months of age, however, and by the age of three, she was exhibiting developmental delays and was in speech therapy. Claire’s more recent medical records reflect that she continues to suffer “[¡Intractable, symptomatic partial seizures with secondary generalization of independent hemisphere origin and atypical absence seizure[s] both under good control (secondary to SCN1A gene defect).”

II.

Petitioners filed suit under the Vaccine Act on Claire’s behalf on December 21, 2006. In making their ease, petitioners acknowledged that Claire was born with an SCN1A gene mutation that predisposed her to developing seizures and cognitive problems. They maintained, however, that Claire’s September 19, 2006, vaccination acted as an environmental trigger that caused her seizures to occur earlier and the outcome of her condition to be worse than it otherwise would have been.

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110 Fed. Cl. 34, 2013 U.S. Claims LEXIS 263, 2013 WL 1384429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnette-v-secretary-department-of-health-human-services-uscfc-2013.