Boley v. Secretary of Health & Human Services

82 Fed. Cl. 407, 2008 WL 2597035
CourtUnited States Court of Federal Claims
DecidedJune 26, 2008
DocketNo. 05-420V
StatusPublished
Cited by8 cases

This text of 82 Fed. Cl. 407 (Boley v. Secretary 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
Boley v. Secretary of Health & Human Services, 82 Fed. Cl. 407, 2008 WL 2597035 (uscfc 2008).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This ease is before the Court for review of the Special Master’s decision dismissing Kelly Body’s petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l et seq. (the “Vaccine Act”). Boley v. Sec’y of HHS, 2007 WL 4589766 (Fed.Cl.Spec.Mstr. Dec. 17, 2007). Ms. Boley claims that a hepatitis B vaccine caused her to suffer neurological injuries and emotional distress. The Special Master found that Ms. Beley’s injuries did not persist for six months, as required by 42 U.S.C. § 300aa-ll(e)(l)(D)(i). Petitioner filed a timely motion for review on January 16, 2008, alleging that the Special Master’s findings were arbitrary, capricious, and an abuse of discretion. Respondent opposed Petitioner’s motion on February 15, 2008. The Court deemed oral argument unnecessary.

For the reasons explained below, the Court vacates the Special Master’s decision, finding a lack of fundamental fairness in the procedures that were followed. Regrettably, the record reveals that the Special Master was openly hostile toward Petitioner and her counsel. The Special Master monopolized at least 90 percent of the examination of witnesses during the hearing. She first agreed that Petitioner could file a post-hearing brief within 30 days from receipt of the transcript (Nov. 14, 2007 Hearing, Tr. at 69), but then issued her decision one business day after the transcript became available, preempting any chance for Petitioner or Respondent to file a post-hearing brief. The availability of post-hearing briefs would have been helpful [408]*408to the Special Master. While the Court expresses no view on whether Ms. Boley may be entitled to compensation, it is apparent that the Special Master did not consider all of the evidence in an ample documentary record. Rather, the Special Master seized upon an expert’s testimony that Ms. Beley’s injuries may have lasted only for three or four months, and on that basis, dismissed her claim. Id. at 39-40. The expert in question first diagnosed Ms. Boley in May 2006, nearly four years after the vaccination, and could not have known other than through record review how long Ms. Beley’s injuries existed. Other evidence closer in time to the vaccination suggests that Ms. Bole/s injuries persisted well beyond six months.

The procedures followed by the Special Master were in violation of Vaccine Rules 3(b) and 8(c). Rule 3(b) requires the Special Master, in establishing appropriate proceedings, to afford each party “a full and fair opportunity to present its case.” Rule 8(e) requires the Special Master, in considering all relevant and rehable evidence, to be “governed by principles of fundamental fairness to both parties.” The Court remands this case to the Special Master with instructions to conduct further proceedings in accordance with this decision. At a minimum, the Special Master should permit Petitioner an opportunity to present evidence in a hearing without undue interruption, and should afford the parties the chance to submit post-hearing briefs, as initially agreed. The Special Master should prepare a decision that reasonably analyzes ah of the relevant evidence of record, not just a single excerpt of testimony. Pursuant to the Vaccine Act, the remand proceedings shall be completed within 90 days from the date of this decision. 42 U.S.C. § 300aa-12(e)(2); Vaccine Rule 28.

Factual Background2

The Court’s decision on Petitioner’s motion for review is based principally on the procedures followed by the Special Master. The facts below do not constitute a complete analysis of the medical evidence, but are provided as a summary of the events giving rise to Petitioner’s claim.

Kelly Boley was born on June 11, 1973. Petitioner’s Exhibit (“Pet. Exh.”) 14 at 5. In April 2002, Ms. Boley resided near Denver, Colorado with her husband and three children. Id. at 26. She had been accepted into a dental hygiene school. Pet. Exh. 15 at 1. The school required Ms. Boley to receive the hepatitis B vaccine series. Id. Ms. Boley previously had received two hepatitis B vaccinations in 1993 with no adverse effects. Id. at 2.

Prior to 2002, Ms. Boley had not experienced any serious health problems or limitations. Pet. Exh. 1; Pet. Exh. 15 at 7. She rarely visited doctors’ offices except for annual obstetric and gynecological check-ups. Pet. Exh. 14 at 18. Her medical records reveal a few episodes of dizzy spells, light-headedness, and panic attacks during pregnancy in May and December 2000. Pet. Exh. 1 at 3; Pet. Exh. 3 at 97, 191, 194-95. In March 2002, Ms. Boley again experienced dizziness and lethargy. She began taking medication for dizziness. Pet. Exh. 14 at 218.

On May 13, 2002, Ms. Boley received her first hepatitis B vaccine without incident. Pet. Exh. 5 at 70, 87. On June 12, 2002, she received her second hepatitis B vaccine at the office of her primary care physician, Dr. Philip Rosenblum. Pet. Exh. 5 at 88; Pet. Exh. 15 at 3. Within one day after the second vaccination, Ms. Boley began experiencing extreme fatigue and malaise. Her condition worsened over the next few days. Pet. Exh. 15 at 3-4. Ms. Boley visited Dr. Rosenblum on June 19, 2002, and again on June 24, 2002, complaining of these symptoms. Pet. Exh. 5 at 13, 86. On June 21, 2002, she visited the Emergency Department of the HealthOne North Suburban Medical Center in Thornton, Colorado, complaining of headache, dizziness, lethargy, and nausea. Pet. Exh. 9 at 9-10. The medical records for these visits indicate a possible adverse reaction to the hepatitis B vaccine. Pet. Exh. 5 at 86; Pet. Exh. 9 at 4. Ms. Boley did not receive the [409]*409third hepatitis B vaccination of the series, Pet. Exh. 12 at 20.

For four days of the two weeks following her vaccination, Ms. Boley experienced such intense fatigue and dizziness that she could barely get out of bed. Pet. Exh. 15 at 5. Although Ms. Boley gradually began to improve, she continued to feel fatigued and dizzy, and experienced pain behind her eyes, causing headaches and blurred vision. Id. at 6. Ms. Boley next saw Dr. Rosenblum on July 29, 2002, when he noted that her dizzy spells and extreme fatigue had all “come on since the second Hep[atitis] B shot.” Pet. Exh. 5 at 85. On August 12, 2002, Dr. Rosenblum prescribed medication for dizziness and vertigo, but questioned whether Ms. Beley’s symptoms could be associated instead with her anxiety about starting dental hygiene school. Id. at 84.

Dr. Rosenblum recommended that Ms. Bo-ley visit Dr. Dennis V. Barcz, an ear, nose, and throat doctor, which she did on August 16, 2002. Pet. Exh. 5 at 61. She also visited a neurologist, Dr. Hua Judy Chen, on October 30, 2002, and again on November 26, 2002, complaining of dizziness, episodic shaking, and numbness. Id. at 58-60. Dr. Chen noted that Ms. Boley had “[u]nexplained neurological symptoms likely related to after viral or viral immunization.” Id. at 58. Ms. Boley saw Dr. Chen again on December 16, 2002, complaining of dizziness. Id. at 57.

Ms. Boley visited another neurologist, Dr.

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82 Fed. Cl. 407, 2008 WL 2597035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boley-v-secretary-of-health-human-services-uscfc-2008.