Deribeaux v. Secretary of Health & Human Services

105 Fed. Cl. 583, 2012 U.S. Claims LEXIS 648, 2012 WL 2367037
CourtUnited States Court of Federal Claims
DecidedJune 4, 2012
DocketNo. 05-306 V
StatusPublished
Cited by29 cases

This text of 105 Fed. Cl. 583 (Deribeaux 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
Deribeaux v. Secretary of Health & Human Services, 105 Fed. Cl. 583, 2012 U.S. Claims LEXIS 648, 2012 WL 2367037 (uscfc 2012).

Opinion

[585]*585 OPINION AND ORDER 1

GEORGE W. MILLER, Judge.

Petitioners, Gus Deribeaux and Kimberly Burshiem, on behalf of their daughter, Madison Deribeaux, seek review of Special Master Lord’s December 9, 2011 decision denying compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34, established by the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660,100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-l to -34) (“Vaccine Act”). Petitioners filed for compensation on March 11, 2005, alleging that Madison was injured by the diphtheria, tetanus, and acellular pertussis (“DTaP”) vaccine she received on March 29, 2002. Special Master Millman first heard petitioners’ ease and granted entitlement to compensation. After new evidence emerged during the damages phase, the case was transferred to Special Master Lord, who held an additional hearing and subsequently denied relief on the ground that respondent, the Secretary of Health and Human Services, proved by a preponderance of the evidence that a factor unrelated to the vaccine, namely Madison’s genetic mutation, caused her injury.

Petitioners timely filed a motion for review under § 300aa-12(e) of the Vaccine Act, claiming that Special Master Lord’s decision was arbitrary, capricious, not in accordance with law, and an abuse of discretion. See Mot. for Review (docket entry 115, Jan. 9, 2012). Petitioners assert that the special master’s decision should be set aside and a new decision should be entered in petitioners’ favor or, in the alternative, that the Court should remand the case back to the special master for further consideration. Id. at 2.

I. Background2

A. Madison’s Medical History

Madison Deribeaux was born on August 19, 2001. Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., No. 05-306V, 2011 WL 6935504, at *3 (Fed.Cl. Dec. 9, 2011) (special master decision). On March 28, 2002, she received the DTaP vaccine along with other typical childhood vaccines. Id. The next day, she was taken to the emergency room having suffered a prolonged seizure. Id. No fever was observed upon her arrival at the hospital. Id. She continued to seize, and her temperature was later recorded as 103.6 degrees Fahrenheit. Id.

Madison was at the hospital for several days during which she suffered no additional seizures and her electroencephalogram (“EEG”) and computerized tomography (“CT”) tests were reported normal. Id. Additionally, an April 4, 2002 magnetic resonance imaging (“MRI”) of Madison’s brain was reported normal. Id. After this initial visit to the hospital, Madison experienced seizures throughout the year that were often, though not always, accompanied by a fever. Id. at *3-5. On April 16, 2002, an immunologist observed the temporal association between Madison’s seizures and her vaccinations. Id. at *4. Through April 18, 2002, Madison’s MRI and EEG test results were reported as normal. Id. A January 2003 EEG was also reported as normal. Id. at * 5.

In April 2003, Madison was admitted to the hospital with “recurrent convulsive episodes.” Id. Her discharge note stated that Madison had a seizure disorder that began two days after the DTaP vaccination, “with subsequent admission and treatment for atypical Kawasaki disease.”3 Id. An April 30, 2003 MRI “reported white matter abnormalities possibly related to hypomyeliniza[586]*586tion, or ‘a metabolic disease such as lysoso-mol or mitochondrial disease as well [as] metachromatic leukodystrophy.”’4 Id. (alteration in original) (quoting Pet’rs’ Ex. 6, at 8; Pet’rs’ Ex. 4, at 397). Madison’s seizures and related treatment persisted through July 2003. Id. In August 2003, a test for enterovi-rus 5 was positive. Id. A November 7, 2003 MRI revealed “increased T2-weighted signal in the periventricular white matter.... Differential diagnosis includes gliosis versus hy-pomyelination.”6 Id. (alteration in original) (quoting Pet’rs’ Ex. 6, at 9; Pet’rs’ Ex. 4, at 304) (internal quotation marks omitted). Thereafter, Madison continued to experience seizures and receive related treatment. Id.

In April 2004, Madison was observed to have “delayed fíne motor skills, poor attention, and hyperactive behavior.” Id. at *6 (citing Pet’rs’ Ex. 6, at 10; Pet’rs’ Ex. 4, at 163). In February 2005, while at the hospital for treatment, it was observed that Madison’s development stopped after her first year. Id. Madison continued to experience seizures through 2005. Id.

In December 2005, genetic testing revealed that Madison had a “DNA sequence variation in [her] SCN1A gene.” Id. at *7. The laboratory report stated that the mutation was not inherited and arose de novo. Id. An SCN1A mutation has been associated with Dravet’s Sydrome (“DS”), which is also known as Severe Myoclonic Epilepsy of Infancy (“SMEI”).7 Id. at *7-8. Following genetic testing, “her treating physicians consistently noted the diagnosis of DS and/or SCN1A mutation in association with her chronic seizures and developmental delays.” Id. at *7.

B. Procedural History

On March 11, 2005, before Madison’s genetic mutation was discovered, petitioners filed a petition for compensation on behalf of Madison pursuant to the Vaccine Act. Id. at *1. The petition alleged that Madison’s seizure disorder resulted from the DTaP vaccine she received. Id. On September 20, 2007, a hearing was held before Special Master Millman. Id.

At this hearing, petitioners and respondent each presented two experts. Petitioners presented the testimony of Dr. Tornatore, “an associate professor of neurology at Georgetown University School of Medicine ... [who] serves as director of its neurology residency program.” Id. at *9. Dr. Torna-tore is board certified in neurology. Id. Dr. [587]*587Tornatore testified that Madison had a reaction to the vaccine as a result of her poor immune system, which triggered the initial seizure and the subsequent condition. Id. at *10. The initial seizure, Dr. Tornatore testified, caused brain damage that resulted in the full extent of Madison’s condition. Id. He also testified that the vaccine caused Madison’s Kawasaki disease. Id.

Petitioners also presented the testimony of Dr. Joseph Bellanti, “a professor of pediatrics in microbiology and immunology at Georgetown University School of Medicine.” Id. Similar to Dr. Tornatore, Dr. Bellanti’s testimony was that “the vaccinations Madison received triggered an inflammatory response that cascaded into all the conditions from which she suffered.” Id.

The experts put forward by respondent testified that the vaccine did not cause Madison’s condition. Dr.

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105 Fed. Cl. 583, 2012 U.S. Claims LEXIS 648, 2012 WL 2367037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deribeaux-v-secretary-of-health-human-services-uscfc-2012.