Campbell v. Secretary of Health & Human Services

69 Fed. Cl. 775, 2006 U.S. Claims LEXIS 45, 2006 WL 445928
CourtUnited States Court of Federal Claims
DecidedJanuary 27, 2006
DocketNo. 02-554 V
StatusPublished
Cited by433 cases

This text of 69 Fed. Cl. 775 (Campbell 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
Campbell v. Secretary of Health & Human Services, 69 Fed. Cl. 775, 2006 U.S. Claims LEXIS 45, 2006 WL 445928 (uscfc 2006).

Opinion

OPINION

ALLEGRA, Judge.

Taylor Marie Campbell and her parents seek review of a decision rejecting their vaccine injury claims under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 et seq. (the Vaccine Act). Because the court concludes that the procedures employed by the Special Master were fundamentally unfair, and that her rulings are either inadequately explained or arbitrary and capricious, it remands this matter for further proceedings.

I. Background

The facts necessary to this ruling relate primarily to the procedures employed below and briefly are stated as follows:

On May 28, 2002, petitioners filed a petition pursuant to the Vaccine Act, alleging that Taylor Campbell suffered a seizure disorder beginning on Monday, May 31, 1999, caused by the acellular DPT vaccine. On August 29, 2003, petitioners submitted an expert report by neurologist Carlo Tornatore of the Georgetown University Hospital. On June 4, 2004, petitioners submitted a supplemental expert report from Dr. Tornatore, as well as a copy of his curriculum vitae. On July 7, 2004, the Special Master ordered petitioners to continue efforts to procure an expanded expert report from Dr. Tornatore and to submit an updated affidavit from the parents. On July 26, 2004, the Special Master ordered petitioners to submit an expanded expert report by August 17, 2004. No further expert reports were submitted. However, on August 27, 2004, petitioners filed supplemental medical literature in support of Dr. Tornatore’s report. On November 1, 2004, respondent filed the report of its expert, neurologist Bennett L. Lavenstein, M.D., along with a copy of his curriculum vitae. On December 22, 2004, the case was assigned to a new special master.

On June 9, 2005, the Special Master issued an order scheduling a status conference on June 15, 2005, and, sua sponte, filed a preliminary ruling listing certain key facts to which she attached, as exhibits, nine articles relating to seizure disorders and fevers. [777]*777Those exhibits neither had been submitted nor validated by either of the parties or their experts, but apparently had been found by the Special Master while exploring the Internet. On June 15, 2005, an unrecorded status conference was held at which the Special Master reputedly indicated her intention to dismiss the case if petitioners were unable to produce any records indicating that Taylor had a fever with her seizures.2 Petitioners had already filed a complete medical record and at least two affidavits by Taylor’s mother in which she stated that Taylor had experienced febrile seizures, but they did not have any further records to support their claim. Accordingly, they did not file any further exhibits.

On June 30, 2005, the Special Master issued a decision denying petitioners’ claim. Although the Special Master had not conducted an evidentiary hearing, she found the affidavits by Taylor’s mother “not credible.” The Special Master noted that the affidavits were not supported by the medical records, which recited that Taylor had a fever after receiving the vaccine, but did not note that she had a fever on the day the seizures began. Although recognizing that Taylor’s mother had been traumatized by the seizures — the record includes a videotape of Taylor’s mother weeping over her seizing child on June 1, 1999 — the Special Master, nonetheless, took the view that had the mother observed a fever when the seizures occurred on May 31, she would have indicated this to the medical personnel and the records would have so reflected. And the Special Master reached this conclusion — again without a hearing — even though the contemporaneous medical records from the clinic and hospital to which Taylor was brought do not agree as to the date that the fever occurred (two reports indicate a fever on May 29, 1999, one places the fever “about” May 30, 1999, and yet another indicates a fever on June 1,1999).

The Special Master also rejected the expert reports filed by Dr. Tornatore. She did so primarily, if not exclusively, because Dr. Tornatore had indicated that Taylor developed a febrile syndrome “concurrent with” the onset of her convulsions. Citing an online dictionary, the Special Master concluded that the medical records demonstrated that Dr. Tomatore’s statement about the “‘concurrence’ of fever and seizures was erroneous.” The Special Master did not mention, let alone discuss, Dr. Tornatore’s second theory for a causation mechanism — direct toxicity to the nervous system from components of the vaccine, a theory that did not depend upon the presence of a fever. In her decision, the Special Master next strung together citations to a series of six eases in which she had rejected the claims that either whole cell or acellular DPT causes afebrile seizures— however, she did not comment on the extent to which the facts in those eases paralleled those herein and, in particular, did not discuss whether, in' any of those cases, a fever occurred near the onset of seizures. Based upon these various findings, the Special Master concluded that “[petitioners have not presented a credible prima facie case that DPaT caused Taylor’s seizures.” On August I, 2005, petitioners filed their Motion for Review.

II. DISCUSSION

Under the Vaccine Act, special masters are charged to make vaccine proceedings expeditious, flexible, and less adversarial, but not at the expense of providing each party a “full and fair opportunity to present its ease and creating a record sufficient to allow review of the special master’s decision.” 42 U.S.C. § 300aa-12(d)(3)(B)(iii), (v), Vaccine Rule 3(b); Hovey v. Sec’y of Health and Human Servs., 38 Fed.Cl. 397, 400-01 (1997). Vaccine Rule 8(c) emphasizes that “[i]n receiving evidence, the special master will not be bound by common law or statutory rules of [778]*778evidence,” but rather “will consider all relevant and reliable evidence, governed by principles of fundamental fairness to both parties.” Although it has been held that this “fundamental fairness” concept does not incorporate the rigors of the Federal Rules of Evidence, see Hines v. Sec’y of Health and Human Servs., 940 F.2d 1518, 1525-26 (Fed.Cir.1991), it plainly “requires a search for the truth,” Horner v. Sec’y of Health and Human Servs., 35 Fed.Cl. 23, 27 (1996). Moreover, consistent with due process, this fairness surely entails notice and an effective opportunity to be heard at a meaningful time and in a meaningful manner.3

When deciding a motion for review of a special master’s decision, the court may:

(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or

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69 Fed. Cl. 775, 2006 U.S. Claims LEXIS 45, 2006 WL 445928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-secretary-of-health-human-services-uscfc-2006.