Boley v. Secretary of Health & Human Services

86 Fed. Cl. 294, 2009 WL 565078
CourtUnited States Court of Federal Claims
DecidedMarch 3, 2009
DocketNo. 05-420V
StatusPublished
Cited by6 cases

This text of 86 Fed. Cl. 294 (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, 86 Fed. Cl. 294, 2009 WL 565078 (uscfc 2009).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This case is before the Court a second time for review of the Special Master’s decision dismissing Kelly Boley’s petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq. Ms. Boley claims that a hepatitis B vaccine caused her to suffer neurological injuries and emotional distress. In her initial decision, the Special Master found that Ms. Boley’s injuries did not persist for six months, as required by 42 U.S.C. § 300aa-11 (c)(1)(D)(i). Boley v. Sec’y of HHS, No. 05-420V, 2007 WL 4589766 at *24 (Fed.Cl.Spec.Mstr. Dec. 17, 2007) vacated 82 Fed.Cl. 407 (2008). Petitioner filed a timely motion for review of this decision, asserting that the Special Master’s findings were arbitrary, capricious, and an abuse of discretion.

On review, the Court vacated the Special Master’s decision, finding a lack of fundamental fairness in the procedures that were followed. Boley, 82 Fed.Cl. at 407. Specifically, the Court found violations of Vaccine Rules 3(b) and 8(c). Id. at 408. Rule 3(b) requires the Special Master, in establishing appropriate proceedings, to afford each party “a full and fair opportunity to present its ease_” Rule 8(c) requires the Special Master, in considering all relevant and reliable evidence, to be “governed by principles of fundamental fairness to both parties.” The Court determined that the Special Master’s open hostility toward Petitioner and her counsel, her monopoly of the questioning of witnesses during the hearing, and her failure to allow the filing of any post-hearing briefs after stating that they would be allowed, all were in violation of the cited Vaccine Rules. Boley, 82 Fed.Cl. at 407-08, 413-14.

The Court remanded the case to the Special Master with instructions to conduct further proceedings which, at a minimum, would include: (1) allowing Petitioner to present evidence in a hearing without undue interruption; and (2) affording the parties the chance to submit post-hearing briefs, as initially agreed. Id. at 408. The Court observed that the reopened hearing could include testimony from anyone with relevant knowledge or information, not just the two experts who testified at the first hearing. Id. at 414. Following the opportunity for these additional proceedings, the Court directed the Special Master to “prepare a decision that reasonably analyzes all of the relevant evidence of record, not just a single excerpt of testimony.” Id. at 408. As required by the National Vaccine Injury Compensation Program, the remand proceedings were to be completed within 90 days from the date of the Court’s decision. 42 U.S.C. § 300aa-12(e)(2); Vaccine Rule 28.

In the remand proceedings, Petitioner’s counsel elected not to present additional testimony. Spec. Mstr. Conf. Tr. 3, 6 (June 25, 2008). The parties did file post-hearing briefs, and on September 9, 2008, the Special Master issued a 60-page slip opinion dismissing the petition again. Boley v. Sec’y of [297]*297HHS, No. 05-420V, 2008 WL 4615034 (Fed.Cl.Spec.Mstr. Sept. 9, 2008). The only question, as in the original Special Master’s decision, is whether Ms. Boley’s injuries from the hepatitis B vaccine lasted for more than six months. Petitioner again filed a timely motion for review of the Special Master’s new decision, arguing that the Special Master’s findings are arbitrary, capricious, and an abuse of discretion. Respondent filed a response to Petitioner’s motion, asking that the Special Master’s dismissal of the petition be affirmed. The Court heard oral argument on January 15, 2009.

The Comb has jurisdiction of this matter pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-12(e). For the reasons explained below, the Court finds that Petitioner did not satisfy her burden of showing that her injuries from the hepatitis B vaccine lasted for more than six months. The Court’s ruling is based upon a careful review of the extensive medical records, the hearing testimony of the expert witnesses, and the briefs and oral argument of counsel. Accordingly, the Special Master’s decision on remand is affirmed.

Factual Background

The history of Ms. Boley’s hepatitis B vaccination and injuries is recited in the Court’s earlier decision in this matter. Boley, 82 Fed.Cl. at 408-10. She began the hepatitis B series of vaccinations so she could attend dental hygiene school. Pet. Ex. 12 at 20; Pet. Ex. 15 at ¶ 1. Ms. Boley received her second hepatitis B vaccine on June 12, 2002 when she was 29 years old. Pet. Ex. 5 at 88. The record is replete with medical records documenting Ms. Boley’s many doctor and hospital visits. In reviewing the Special Master’s remand decision, it is useful to analyze Ms. Boley’s medical records in three segments: (A) the period prior to the June 12, 2002 hepatitis B vaccination; (B) the period beginning June 12, 2002 and for six months thereafter; and (C) the period beginning December 12, 2002 and thereafter. All of the records below are identified and discussed in the Special Master’s remand decision.

A. The Period Prior to June 12, 2002

Prior to 2002, Ms. Boley had not experienced any serious health problems or limitations. She rarely visited doctors’ offices except for annual obstetric and gynecological check-ups. Pet. Ex. 14 at 18. However, beginning in May 2000, Ms. Boley’s medical records reveal a few episodes of dizziness, fatigue, and nausea. She reported dizziness on May 9, 2000 while she was pregnant. Pet. Ex. 2 at 7. She had symptoms of dizziness and lethargy on December 12, 2000, and dizzy spells and nausea on December 13, 2000. Pet. Ex. 3 at 190-91, 194-95. The University of Colorado Hospital diagnosed Ms. Boley with panic attacks and prescribed Tylenol for headaches on December 20, 2000 while she again was pregnant. Id. at 96-97. Closer in time to the hepatitis B vaccination, Ms. Boley reported “dizziness and lethargy for 7 weeks” on March 13, 2002, and a 5-6 pound weight loss “over the past few months.” Pet. Ex. 5 at 91. Ms. Boley was not pregnant in 2002 when she experienced dizziness and lethargy. Ms. Boley received her first hepatitis B vaccination without adverse effect on May 13, 2002. Id. at 87.

B. The Six-Month Period Beginning June 12, 2002

Ms. Boley received her second hepatitis B vaccination on June 12, 2002. Pet. Ex. 5 at 88. One week later, on June 19, 2002, Ms. Boley visited her primary care physician, Dr. Philip Rosenblum, complaining of “extreme fatigue/malaise” for the past two or three days, and reporting that the symptoms were “worsening a little bit each day.” Id. at 86. Ms. Boley reported that the symptoms began “shortly [after the] injection [was] given.” Id. When these symptoms persisted, Dr. Rosenblum advised Ms. Boley to visit the local hospital. Id. at 65.

Ms. Boley went to the North Suburban Medical Center in Thornton, Colorado on June 21, 2002. Pet. Ex. 9 at 1. The report from this visit indicates that Ms. Boley was experiencing lethargy, headaches, dizziness, and neck stiffness since the “hep.

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86 Fed. Cl. 294, 2009 WL 565078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boley-v-secretary-of-health-human-services-uscfc-2009.