Capizzano v. Secretary of the Department of Health & Human Services

63 Fed. Cl. 227, 2004 U.S. Claims LEXIS 344, 2004 WL 3049342
CourtUnited States Court of Federal Claims
DecidedDecember 7, 2004
DocketNo. 00-759 V
StatusPublished
Cited by15 cases

This text of 63 Fed. Cl. 227 (Capizzano v. Secretary of the 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
Capizzano v. Secretary of the Department of Health & Human Services, 63 Fed. Cl. 227, 2004 U.S. Claims LEXIS 344, 2004 WL 3049342 (uscfc 2004).

Opinion

OPINION

MEROW, Senior Judge.

Petitioner, Rose Capizzano, seeks review of the June 8, 2004 Decision by the Chief Special Master denying her Petition for Compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-l et seq. Petitioner’s claim for compensation stems from a hepatitis B vaccination she received on May 3, 1998 and the subsequent diagnoses that she suffers from rheumatoid arthritis (“RA”).

From among the petitions filed in this court, and pending before special masters, seeking compensation based on the assertion that the hepatitis B vaccine caused RA, five were selected as “test” cases to be joined for a consolidated hearing before the Chief Special Master on the general issue of whether the hepatitis B vaccine can in fact cause RA. The joint hearing also encompassed separate consideration of causation with respect to each petitioner. In addition to the instant case, the petitions so selected were: Ashby v. HHS, 01-221 V; Analla v. HHS, 99-609 V; Ryman v. HHS, 99-591 V; and Manville v. HHS, 99-628 V.

At the two-day joint hearing held on these matters in June of 2003, the Chief Special Master initially received testimony from four expert witnesses on the general question whether hepatitis B vaccine can cause RA. Petitioners’ expert testimony was presented by Dr. David Bell of St. Joseph’s Health Center, London, Ontario Canada. Dr. Bell holds a Royal College Fellowship in internal medicine, the Canadian equivalent to Board Certification in the United States. He is a rheumatologist and has conducted research and has published in the area of RA. Dr. Bell’s testimony set forth a medically/scientifically-based mechanism explaining how the hepatitis B vaccine can cause RA in potentially susceptible individuals.

Respondent’s experts who testified at the joint hearing were: Dr. Burton Zweiman, an immunologist who has been a Professor of Medicine at the University of Pennsylvania since 1963 and served for twenty-four years as Chief of the Allergy and Immunology Division; Dr. Paul A. Phillips, who holds Board Certification in internal medicine and rheumatology, and is associated with the University of New York, Upstate Medical University, Syracuse, New York where he was division head of rheumatology responsible for the research, teaching, and clinical practice program, and now does a clinical practice of rheumatology and teaches; and Dr. Lawrence Moulton who obtained his Doctorate from Johns Hopkins in biostatistics where he is employed as an Associate Professor in the University’s Bloomberg School of Public Health. Respondent’s experts presented testimony challenging Dr. Bell’s proposed mechanism by which RA is asserted to be caused by hepatitis B vaccination.

Following the joint hearing and post-hearing submissions by the parties the Chief Special Master issued decisions denying compensation in each of the test cases. The Chief Special Master found that hepatitis B vaccine can cause RA, based mainly on record evidence, such as respondent’s Exhibit L, “Rheumatic Disorders Developed After Hepatitis B Vaccination” showing cases in which patients with RA had worsening conditions after a further vaccine injection. This is referred to as “rechallenge,” and the Chief Special Master relied on the Institute of Medicine’s position that rechallenge is strongly probative of a causal relationship. This was also confirmed by the testimony of Dr. Zweiman and Dr. Moulton.

While the Chief Special Master found that hepatitis B vaccination can cause RA, compensation was denied to each petitioner in separate decisions on the basis that causation-in-fact was not established by the record evidence. With the exception of Ashby, where a judgment was entered dismissing the Petition on October 20, 2003, Motions for Review of the Chief Special Master’s Decisions were filed and randomly assigned by the clerk to judges of this court for further action.

[229]*229On November 24, 2004, the assigned judge in Manville filed a comprehensive opinion sustaining the Chief Special Master’s Decision in that case. To the extent the Manville Opinion addresses general issues applicable to the test cases, the undersigned agrees with the analysis and adopts those Manville conclusions to the extent relevant herein.

Accordingly, this Opinion will address those issues, presented by the Motion for Review, which are specific to Rose Capizzano’s case.

FACTS

The Chief Special Master’s June 8, 2004 Decision denying compensation states that “The facts of this case are not in dispute.” (Dec. at 2.) Both parties in their submissions agree that the facts are not in dispute. However, on the initial page of petitioner’s Motion for Review, petitioner states that Rose Capizzano was in good health until on May 3,1998, at 31 years of age, she received her second hepatitis B vaccination at her place of employment, Westerly Hospital in Westerly, RI.

The Chief Special Master’s Decision does not include any findings concerning petitioner’s health prior to May 3, 1998, but the record contains considerable evidence, consisting of medical records, showing a history of frequent medical interventions and some level of disability in the decade before May 3, 1998. This includes a record of carpal tunnel release surgery in June of 1997, which Dr. Phillips testified can be caused by inflammation in the wrist area which, in turn, can be caused by RA. (Tr. June 12, 2003, at 363-366.) Were petitioner’s health prior to May 3, 1998 relevant, the facts would be in dispute, but the issues in this case center around the petitioner’s condition post-vaccination, not pre-vaccination.

As to post-vaccination condition it is undisputed that petitioner developed a serum sickness illness immediately following her second hepatitis B vaccination on May 3, 1998. There is no evidence in the record as to petitioner’s first hepatitis B vaccination and any reaction or lack of reaction therefrom. The serum type sickness petitioner developed after the May 3, 1998 vaccination is cited at page 2 of the Chief Special Master s June 8, 2004 Decision which notes that petitioner developed a rash on her abdomen and stiff and painful joints. There is no finding tying this serum sickness to RA. Petitioner’s expert, Dr. Bell, testified that a serum type sickness such as that reported for petitioner can be transient, “ ... although sometimes, serum sickness reactions can be prolonged.” (Tr. of June 12, 2003, at 326.)

On October 1,1998, some five months after her vaccination, petitioner sought an evaluation by a rheumatologist, Dr. Scott Toder, who apparently raised a question as to the existence of RA. This was followed by an evaluation by another rheumatologist, Dr. Peter Himmel who prescribed gold treatments. In June of 1999, petitioner was seen by another rheumatologist, Dr. Virginia Parker, who transmitted a report (Pet’r’s Ex. No. 7, dated June 14, 1999.) to the Beacon Mutual Insurance Company, for worker’s compensation purposes. In her report, Dr. Parker stated, “Mrs. Capizanno (sic) has a mild inflammatory arthritis. Her symptoms and physical examination would be compatible with early rheumatoid arthritis.” Dr. Parker also noted in her report that, “Vaccination has been associated with the onset of an acute arthritis. However, this is generally associated with live vaccines given to either the patient or the patient’s young children. Mrs. Capizanno’s (sic)

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63 Fed. Cl. 227, 2004 U.S. Claims LEXIS 344, 2004 WL 3049342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capizzano-v-secretary-of-the-department-of-health-human-services-uscfc-2004.