Campbell v. Secretary of Health & Human Services

97 Fed. Cl. 650, 2011 U.S. Claims LEXIS 515, 2011 WL 1289064
CourtUnited States Court of Federal Claims
DecidedMarch 22, 2011
DocketNo. 07-465V
StatusPublished
Cited by93 cases

This text of 97 Fed. Cl. 650 (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.

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Campbell v. Secretary of Health & Human Services, 97 Fed. Cl. 650, 2011 U.S. Claims LEXIS 515, 2011 WL 1289064 (uscfc 2011).

Opinion

OPINION AND ORDER1

LETTOW, Judge.

Petitioner, Frances Campbell, seeks review of a decision by a special master dated [652]*652October 27, 2010, denying her compensation under the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, § 311, 100 Stat. 3743, 3755 (1986) (codified, as amended, at 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”)). Ms. Campbell alleges that her receipt of trivalent influenza vaccine in 2003 caused the onset of her rheumatoid arthritis. See Campbell v. Secretary of Health & Human Servs., No. 07-465 (Fed.Cl.Spec.Mstr. Oct. 27, 2010), EOF No. 87 (“Second Entitlement Decision”). Previously, this court had considered, vacated, and remanded an earlier decision by the special master, which decision had also denied Ms. Campbell compensation. See Campbell v. Secretary of Health & Human Servs., 90 Fed.Cl. 369, 388 (2009) (vacating and remanding Campbell v. Secretary of Health & Human Servs., 2009 WL 2252550 (Fed.Cl. July 7, 2009) (“First Entitlement Decision”)). Upon remand, the special master concluded that “the record as a whole does not support a finding that Ms. Campbell has established, by a preponderance of the evidence, a theory causally connecting [the] flu vaccine to rheumatoid arthritis.” Second Entitlement Decision at 9.

FACTS2

A. Rheumatoid, Arthritis

Rheumatoid arthritis is “a chronic systemic disease primarily of the joints, usually po-lyarticular [ (‘affecting many joints’) ], marked by inflammatory changes in the sy-novial membranes and articular structures and by muscle atrophy and rarefaction [ (‘diminution in density and weight’) ] of the bones. In late stages, deformity and ankylo-sis [ (‘immobility and consolidation of a joint’) ] develop. The cause is unknown, but autoimmune mechanisms and virus infection have been postulated.” Dorland’s Illustrated Medical Dictionary 152-59 (31st ed. 2007) (definition interrupted by photographic exemplars); see also Dorland’s at 94, 1509, and 1617 (definitions of terms).3 The following seven criteria for the classification of rheumatoid arthritis as developed by the American College of Rheumatology (formerly the American Rheumatology Association) appeared to be accepted by both parties: (1) “[m]orning stiffness in and around the joints, lasting at least [one] hour before maximal improvement;” (2) “[a]t least [three] joint areas simultaneously havfing] had soft tissue swelling or fluid;” (3) at least one of the swollen joint areas is in a wrist, or hand, or certain other areas; (4) symmetry of the arthritis on both sides of the body; (5) “[r]heumatoid nodules;”4 (6) demonstration of abnormal amounts of “serum rheumatoid factor;”5 and (7) erosions in or adjacent to the joints6 visible by X-ray. American College of Rheumatology, 1987 Criteria for the Classification of Acute Arthritis of Rheumatoid Arthritis, http://www.rheumatology.org/ practice/elinical/elassification/ra/ra.asp (last visited Mar. 18, 2011) (“1987 Criteria”); see Tr. 61:25 to 62:22 (Test, of Dr. Arthur E. [653]*653Brawer, petitioner’s expert), 270:5 to 272:10 (Lightfoot).7

“For classification purposes, a patient shall be said to have rheumatoid arthritis if he [or] she has satisfied at least [four] [of] these [seven] criteria. Criteria 1 through 4 must have been present for at least [six] weeks.” 1987 Criteria; see Tr: 115:21-24 (Brawer) (agreeing that “to have a diagnosis of rheumatoid arthritis under those [criteria] you have to [meet] at least four out of seven [criteria]”); see also Tr. 62:17-22 (Brawer) (“[W]hen you have pain and swelling in small and large joints symmetrically ... [and] morning stiffness and fatigue and you have it for six to eight weeks or longer, you have rheumatoid arthritis until proven otherwise”). It is not always the case that a diagnosis of rheumatoid arthritis can be made within six to eight weeks of the initial onset of the condition, however. The experts agreed that “it may take time to prove someone has rheumatoid arthritis. Very often, [with] mild rheumatoid disease, you don’t really know that’s what it is until several months or maybe a year have gone by and all the other possibilities have fallen by the wayside[;] in retrospect you make the diagnosis.” Tr. 230:19-24 (Lightfoot).

Other arthritic symptoms are also of relevance to this case. Acute arthritis is “marked by pain, heat, redness, and swelling, due to inflammation, infection or trauma,” and reactive arthritis is “arthritis after an infection.” Dorland’s at 152. According to Dr. Lightfoot, reactive arthritis cannot “turn into rheumatoid arthritis,” but “sometimes rheumatoid arthritis can start subtly” and “early on you couldn’t tell reactive arthritis from rheumatoid arthritis, if the [rheumatoid arthritis] was starting in just a few joints.” Tr. 319:4-7, 19-21 (Lightfoot). In those circumstances, Dr. Lightfoot testified, one would conduct a “rheumatoid factor” test. Tr. 319:10 (Lightfoot). If that test came back positive, a diagnosis of rheumatoid arthritis can be made, even in a patient experiencing “oligoasymmetrical” (“oligo” meaning “few, little, or scanty, ... less than normal,” Dorland’s at 1337) arthritis, Tr. 319:8-10, 22, 320:1 (Lightfoot); however, a negative result would not rule out a diagnosis of rheumatoid arthritis, as “seronegative rheumatoid arthritis ... constitutes 20 percent of rheuma-toids.” Tr. 319:13-16 (Lightfoot).

B. Ms. Campbell’s Receipt of Influenza Vaccine and her Subsequent Medical History

On December 4, 2003, Ms. Campbell received trivalent influenza8 and pneumonococcal vaccines9 from her primary care physician, Dr. Thad Jackson. Campbell, 90 Fed. Cl. at 373. Four days later, on December 8, 2003, Ms. Campbell returned to Dr. Jackson’s office, reporting that she was in her usual state of health until Sunday, December 7, 2003, at which time she was bumped by three teenagers leaving church. Id. Ms. Campbell reported that within a few hours of this incident she began to suffer from pain in her left arm that radiated up her left shoulder, and later experienced similar pain in her right arm accompanied by difficulty swallowing and chest heaviness. Id. at 373-74. Upon examining Ms. Campbell’s upper extremities, Dr. Jackson observed systemic swelling and warmth in both of Ms. Campbell’s upper extremities and diminished grip [654]*654strength. Id. at 374. Dr. Jackson admitted Ms. Campbell to Grayling Mercy Hospital (“Mercy Hospital”) on that same day for further evaluation and medical testing. Id.

At Mercy Hospital, Ms. Campbell underwent an array of tests and evaluations, including an examination by an orthopedist, Dr. Darius Davina, on December 9, 2003. Campbell, 90 Fed.Cl. at 374. Dr. Divina noted that both of Ms. Campbell’s shoulders appeared “somewhat swollen and slightly warn to [the] touch.” R. Ex. 2 at 200110. While unable to ascertain the cause of Ms. Campbell’s pain, Dr. Divina noted that two conditions to “rule out” were (1) “acute inflammatory response to vaccine” and (2) “septic bursitis.” R. Ex. 2 at 200109.10 Dr.

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