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

23 Cl. Ct. 796, 1991 U.S. Claims LEXIS 419, 1991 WL 172925
CourtUnited States Court of Claims
DecidedAugust 23, 1991
DocketNo. 90-363V
StatusPublished

This text of 23 Cl. Ct. 796 (Dileo v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of 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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Dileo v. Secretary of the Department of Health & Human Services, 23 Cl. Ct. 796, 1991 U.S. Claims LEXIS 419, 1991 WL 172925 (cc 1991).

Opinion

OPINION

MARGOLIS, Judge.

This vaccine case comes before the court on a motion to review filed by the petitioner, Jeffrey DiLeo, on April 25, 1991, pursuant to Appendix J, RUSCC. DiLeo brought an action seeking compensation under the National Vaccine Injury Compensation Program, codified as amended at 42 U.S.C.A. §§ 300aa-10 et seq. (West Supp.1991) (“the Program”), for a condition he alleges resulted from a diphtheria-pertussis-tetanus (“DPT”) vaccination received as a child. Special Master Denis Hauptly held eviden-tiary hearings in Newark, New Jersey on January 7, 1991 and in Arlington, Virginia on January 31, 1991. On March 28, 1991, the Special Master rendered a decision denying compensation to DiLeo on the ground that he failed to establish an on-table injury by a preponderance of the evidence. DiLeo v. Secretary of the Department of Health and Human Services, No. 90-363V, slip op. at 8-9, 1991 WL 57050 (Cl.Ct. March 28, 1991) (decision of Special Master).

After a careful review of the Special Master’s decision and the entire record, and after hearing oral argument, this court holds that the decision is not in accordance with law and fails to consider the relevant factors. The case is remanded back to the Special Master for further action in accordance with this opinion. See 42 U.S.C.A. § 300aa-12(e)(2)(C); Appendix J, RUSCC.

FACTS

The parties do not dispute the essential facts of the case as found by the Special Master. See DiLeo, slip op. at 5-6. DiLeo received his first DPT vaccination on June 2, 1981, to which there was no memorable reaction. On August 13, 1981, petitioner’s mother complained to his pediatrician, Dr. John B. Lewy, that petitioner slept too much and choked while nursing. The doctor noted a slight head lag, but otherwise found the petitioner to be developmentally normal. At the mother’s urging, the doctor recommended an infant stimulation program. The second DPT shot was administered in the late afternoon of August 13, 1981. Id. at 5.

The petitioner whimpered, acted irritable, refused to nurse and cried differently in the hours following the shot. He ran a fever and appeared flushed. During the evening he was left in the care of his maternal grandmother, who is a registered nurse with experience working with neurologically impaired, emotionally disturbed, and physically handicapped children. Petitioner’s temperature rose to over 105 degrees Fahrenheit, and his parents returned home upon learning that he had become worse. Id.

On August 16, 1981, the family travelled to Washington, D.C. During the trip, the petitioner ran a lower fever and mostly slept, and consequently did not nurse as much as usual. In a restaurant during dinner, the petitioner at one point sat motionless and stared, with a tightened or rigid appearance. This episode is subsequently referred to as the “first staring spell.” The petitioner had another staring spell at a photography session during the next week. Dr. Lewy’s office was not contacted about the staring spells, but his office was called because petitioner was screaming and unconsolable. Medical records reveal a prescription for colic on September 3, 1981. Id. at 5-6.

Later in September, petitioner was examined by a team of therapists evaluating his condition for the infant stimulation program. He was floppy, could not support himself, and did not react to sounds. The petitioner was sent back to his pediatrician. Alarmed at the regression, Dr. Lewy referred the petitioner to a pediatric neurologist, Dr. Sandy P. Waran, who hospitalized [798]*798the petitioner. An abnormal electroencephalogram showed the petitioner was suffering myoclonic seizures, which were not breaking through at the time, but did so later. DiLeo claims that he suffered severe adverse reactions to the second DPT vaccination within 72 hours of its administration on August 13, 1981. As a result, DiLeo asserts that he showed profound signs of developmental regression, which have developed into mental retardation, encephalopathy, myoclonic seizures, developmental delay and infantile spasms. The record reveals that petitioner suffers from reoccurring seizures almost daily and that, at age 10, is not able, and has never been able, to care for himself.

DISCUSSION

Statutory Scheme

The Program provides that compensation may be awarded where the petitioner establishes by a preponderance of the evidence the occurrence of a statutorily-described injury listed on the Vaccine Injury Table within a statutorily-defined time period. 42 U.S.C.A. § 300aa-14.1 In “Table” cases, temporal association as defined by statute demonstrates causation, because listing on the Vaccine Injury Table signifies that a listed injury occurring within a listed period of time after the administration of a listed vaccine will be deemed to have been caused by that listed vaccine. See Carter v. Secretary of the Department of Health and Human Services, 21 Cl.Ct. 651, 654 (1990). If the petitioner satisfies the threshold burden, as well as jurisdictional requirements, compensation shall be awarded if no preponderance of the evidence shows “factors unrelated to the administration of the vaccine” caused the injury or death. 42 U.S.C.A. § 300aa-13(a). In our case, petitioner seeks compensation based upon a “Table” theory. The DPT vaccine is listed on the Vaccine Injury Table. On appeal to this court, petitioner advances two theories of on-table injury: residual seizure disorder and encephalopathy.2

Residual seizure disorder is included on the Table among the injuries listed under the DPT vaccine. Id. § 300aa-14(a)(l)(D). The provision setting forth “qualifications and aids to interpretation” states that:

... [a] petitioner may be considered to have suffered a residual seizure disorder if the petitioner did not suffer a seizure or convulsion unaccompanied by fever or accompanied by a fever of less than 102 degrees Fahrenheit before the first seizure or convulsion after the administration of the vaccine and if—
******
(B) in the case of [the DPT] vaccine, the first seizure or convulsion occurred within 3 days after administration of the vaccine and 2 or more seizures or convulsions occurred within 1 year after the administration of the vaccine which were unaccompanied by fever or accompanied by a fever of less than 102 degrees Fahrenheit.

Id. § 300aa-14(b)(2).

Encephalopathy is defined as “any significant acquired abnormality of, or injury to, or impairment of function of the brain.” Id. § 300aa-14(b)(3)(A). The qualifications and aids to interpretation further states:

... [a]mong the frequent manifestations of encephalopathy are focal and diffuse neurologic signs, increased intracranial pressure, or changes lasting at least 6 hours in level of consciousness, with or without convulsions. The neurological signs and symptoms of encephalopathy may be temporary with complete recovery, or may result in various degrees of permanent impairment. Signs and symptoms such as high-pitched and unusual [799]*799screaming, persistent unconsolable crying, and bulging fontanel are compatible with an encephalopathy, but in and of themselves are not conclusive evidence of encephalopathy. Encephalopathy usually can be documented by slow wave activity on an electroencephalogram.

Id.

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23 Cl. Ct. 796, 1991 U.S. Claims LEXIS 419, 1991 WL 172925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dileo-v-secretary-of-the-department-of-health-human-services-cc-1991.