Cox v. Secretary of Department of Health & Human Services

30 Fed. Cl. 136, 1993 U.S. Claims LEXIS 219, 1993 WL 479666
CourtUnited States Court of Federal Claims
DecidedNovember 8, 1993
DocketNo. 90-907V
StatusPublished
Cited by20 cases

This text of 30 Fed. Cl. 136 (Cox v. Secretary of 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
Cox v. Secretary of Department of Health & Human Services, 30 Fed. Cl. 136, 1993 U.S. Claims LEXIS 219, 1993 WL 479666 (uscfc 1993).

Opinion

OPINION

REGINALD W. GIBSON, Judge:

Petitioner filed a motion for review of the special master’s May 27, 1993 decision in the [139]*139United States Court of Federal Claims1 under the National Vaccine Injury Compensation Program (Vaccine Act or Act)2.

The special master denied the claim for compensation, without holding a hearing, on the basis that petitioner’s documentary evidence failed to establish a Table residual seizure disorder as defined by the Act’s Injury Table.3 Petitioner now seeks review of that decision pursuant to a timely filed motion (June 24, 1993) under 42 U.S.C. § 300aa-12(e)(l). That motion for review raises four assignments of error as follows:4

1. The special master abused his discretion by striking from the record the medical opinion of petitioner’s expert, concluding that the expert’s testimony was not credible;

2. The special master arbitrarily and capriciously misread and misinterpreted certain medical records and accorded them dis-positive weight;

3. The special master abused his discretion by denying petitioner a hearing in the matter; and

4. The special master considered irrelevant factors in his decision. The foregoing issues will be addressed, infra, seriatim.

After reviewing the record evidence and related briefs, and being fully advised in the premises, the court sustains the special master’s decision denying compensation.

I. FACTS

Christopher Mistretta (“Chris”) was born on August 3, 1969. He received three DPT immunizations within six months of birth without any apparent reaction.5 Chris suffered his first seizure nearly ten months later, on or about May 27, 1970. He was taken to the hospital emergency room and was diagnosed with a 30-minute febrile convulsion. After the seizure, Dr. Thomas White, Chris’s family doctor, administered an EEG test, which revealed no abnormalities.

Eight months after the foregoing seizure, on January 22, 1971, Chris received his first DPT booster from Dr. White with no immediate reaction. Three days later, on January 25, Chris began vomiting and visited Dr. White in his office. Following thereon, at 7:00 p.m. that same evening, Chris suffered a convulsion accompanied by a temperature of 103.2 degrees Fahrenheit and was taken to Palms of Pasadena Hospital emergency room. Fever and vomiting continued until he developed pneumonia on February 5, 1971.

Chris suffered another febrile convulsion on March 11, 1971, and was taken to the Bayfront Medical Center emergency room. The hospital’s record admission notes indicate that his mother advised that Chris had convulsions that day with a temperature of 104 degrees Fahrenheit. However, upon admission, the record indicates that he had a rectal temperature of 101.8 degrees Fahrenheit. Later, on August 31, 1971, Chris was [140]*140admitted to the All Children’s Hospital where he stayed until discharged on September 3,1971. Petitioner stated in her affidavit that Chris had five convulsions beginning “the previous night and continuing on until hospitalized.” The medical report diagnosed said condition as “febrile convulsion.”

II. BACKGROUND DATA

From the filing of the petition (September 1990) to the briefing of the motion for review (June 1993), this case spanned more than two and one-half years. During that span, it generated seven status conferences, 19 orders, and a motion to strike the opinion of a medical expert convicted of a felony. Five months after the petition was filed, on February 13, 1991, petitioner filed the medical opinion of her expert, Dr. Roger Morrell. Respondent followed by filing its Rule 4(b) report on May 31, 1991, in which it averred that petitioner failed for two reasons to establish a Table residual seizure disorder. First, it argue'd that Chris’s first seizure occurred more than 72 hours (i. e., three days) after vaccination, and, secondly, that a fever of at least 102 degrees Fahrenheit oc-companied all subsequent seizures.6

At the very first status conference, on June 27, 1991, the special master ordered petitioner to supplement Dr. Morrell’s February 13, 1991 medical report to include the complete factual basis for his conclusions. The order was prompted by what the special master perceived to be a significant discrepancy between the probative substantive content of the medical records and Dr. Morrell’s conclusions. The order also required respondent to file the medical report of its expert.

Petitioner filed her supplemental report on July 22, 1991. Respondent filed the opinion of its expert, Dr. Richard Giknartin, on August 29, 1991. After a second status conference, held on September 13,1991, the special master issued a second, more specific order, requiring petitioner to file another supplemental report identifying the operative facts relied on by Dr. Morrell to reach his conclusion that Chris suffered two afebrile seizures within a year after his January 22,1971 DPT booster.

On September 30, 1991, Petitioner filed her second supplemental report in the form of two letters from Dr. Morrell. Dissatisfied with the factual support offered in the two letters, the special master held another status conference on October 23, 1991.7 The order that followed, dated October 28, 1991, granted petitioner a final opportunity to clarify the basis of Dr. Morrell’s medical opinion.8

The response filed by petitioner on November 1, 1991, also failed to include, as requested, an account of the specific factual basis for Dr. Morrell’s opinion. Instead, petitioner’s counsel himself merely regurgitated the factual arguments.9

[141]*141In view of such, the special master averred in his dispositive decision that “[petitioner did not file a statement from its expert but instead counsel argued the facts.” However, in petitioner’s motion for review, counsel insisted that he fully complied with the October 28, 1991 order inasmuch as said order required only that the “petitioner [and not the expert] shall file ... a statement clarifying the evidence relied upon by the medical expert.”

Another status conference was held on December 12, 1991, at which time the special master granted petitioner until February 14, 1992, to submit a “report of a new medical expert.” At this posture in the proceedings, Dr. Morrell had been convicted (on August 8, 1991) on numerous counts of defrauding the government and, as a consequence, was later sentenced to six years imprisonment.10

When petitioner was unable to procure the medical report of another expert within the time allowed, the special master granted two further extensions. Finally, on July 31,1992, petitioner requested that the matter be set for a hearing, indicating that after exhaustive efforts she was unable to obtain additional medical reports, and would rely entirely on the medical records and testimony of Dr. Morrell.

Meanwhile, on July 15, 1992, respondent filed a motion to strike Dr. Morrell’s testimony, which remained unopposed by petitioner.

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Bluebook (online)
30 Fed. Cl. 136, 1993 U.S. Claims LEXIS 219, 1993 WL 479666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-secretary-of-department-of-health-human-services-uscfc-1993.