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

61 Fed. Cl. 1, 2004 U.S. Claims LEXIS 141, 2004 WL 1366002
CourtUnited States Court of Federal Claims
DecidedMay 27, 2004
DocketNo. 01-605V
StatusPublished
Cited by20 cases

This text of 61 Fed. Cl. 1 (Dixon 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
Dixon v. Secretary of the Department of Health & Human Services, 61 Fed. Cl. 1, 2004 U.S. Claims LEXIS 141, 2004 WL 1366002 (uscfc 2004).

Opinion

OPINION AND ORDER

BLOCK, Judge.

I. Introduction

This is a case brought under the National Childhood Vaccine Injury Act (the “Act”)2 [2]*2for review of the Special Master’s denial of a claim for compensation. But at its heart, this case is about a tragedy brought about by a cruel providence and a failure of learning. The tragedy here is of the worst sort, the illness of a child — in this case a baby boy. The failure here is also of the worst sort, the inability of medicine and science to agree as to the cause of this little boy’s illness. While the root of the illness may not be the result of human agency, the amelioration of this boy’s condition is made all the more problematic by the failure to understand its origin. This failure of medicine and science here also means that the Special Master certainly was not arbitrary in ruling that the compensation mechanism our society established to recompense families for the ill effects of a product — a vaccine designed to prevent disease and thus normally of tremendous utility — is not available to a family that may need it most. Truly, as Alexander Pope opined, too little learning is a dangerous thing.3

Two-year old Noah Dixon was diagnosed as exhibiting autistic-like symptoms and only moderate cognitive and physical development for a child that age. His parents, Earl Dixon and Joy Dixon (“petitioners” or “the Dixons”) subsequently filed an action for compensation under the Act, alleging that Noah’s condition resulted from an encephalopathy caused by the Measles-Mumps-Rubella (“MMR”) vaccine administered to him on May 14, 1999. After receiving documentary and testimonial evidence from both parties, the Special Master determined the petitioners did not meet their statutory burden of proof and denied their petition for compensation under the Act.

On December 29, 2003, petitioners filed in this court a Motion for Review of the Special Master’s decision. Petitioners ask this court to reverse the Special Master’s November 25, 2003 decision of non-entitlement and grant them compensation under the Act for Noah’s alleged injuries. Pet’rs’ Mot. for Review at 18. For the reasons stated below, the court upon review holds the Special Master met the applicable legal standard in finding petitioners did not satisfy their statutory burden of proving Noah’s May 14, 1999 MMR vaccination was the cause in fact of Noah’s medical condition.

II. Background

The Special Master’s opinion, Dixon v. Sec’y of the Dept. of Health and Human Servs., 2003 WL 23218020 (Fed.Cl. Nov. 25, 2003), sets forth the full facts of this case. This court provides only those facts relevant to this review.

A. Noah’s Medical History.

The parties do not dispute the following facts about Noah’s medical history. Noah was born on January 22, 1998 by repeat cesarean section after a pregnancy of 39 weeks. At the time of his delivery, Noah “had bruising on his ear lobes and face, and had a floppy left ear, as well as periorbital edema.” Dixon, 2003 WL 23218020, at *2. Otherwise, he was quite healthy. His Apgar scores were 8 and 9 and he weighed just above 10 pounds. His head circumference measured 14.5 inches; his length was 21 inches, large for his gestational age. Id. Noah was discharged with his mother on January 25, 1998. On February 5, 1998, Noah’s pediatrician, Dr. Hugh Alexander, found him to “be a well infant” and administered a hepatitis B vaccination. Id. Dr. Alexander also saw Noah on February 22, 1998, and again on April 6, 1998. During this April appointment, Dr. Alexander noted that Noah had seborrhea4 and a “small prominence in the parietal region.” Id. Dr. Alexander then administered to Noah the Diphtheria-Tetanus-acellular Pertussis (DTaP), Hib, Hep B and inactivated Polio (IPV) vaccinations. Id. Noah’s medical records do not [3]*3indicate any adverse reactions to these vaccinations.

On July 14, 1998, Dr. Alexander examined Noah again and concluded his development was normal. During this visit, Dr. Alexander noted that “[Noah] was rolling and pulling to sit, using hand transfers and vocalizing.” Id. Noah’s medical records indicate that July 14, 1998 was the last time Dr. Alexander examined Noah. Id. (citing Pet’rs’ Supplemental Pet. at 99-112).

On October 4, 1998, the Dixons brought Noah to the emergency room because he was having difficulty breathing. The emergency room doctors considered Noah’s symptoms consistent with an “asthma exacerbation.” Id. The doctors also considered pneumonia or aspiration of a foreign body as possible causes of the difficulty, yet ruled out both of these after evaluating Noah’s chest x-ray. Noah’s symptoms subsided after treatment of an albuterol nebulizer and Prelone syrup. Id. The doctors finally concluded Noah suffered a bronchospasm and discharged him 90 minutes after arriving to the emergency room. Id.

Noah’s next medical check-up occurred on January 29, 1999, when Dr. William Pollard examined him at a pediatric clinic. Dr. Pollard noted Noah “was walking, playing pat-a-cake, grasping fingers, waving bye-bye, releasing objects, and was going from sitting to standing.” Id. Dr. Pollard again saw Noah on February 16, 1999, when he treated Noah for “reactive airway” disease. After this visit, there is no indication in Noah’s medical records of any further treatment or visits to any doctor until May 14,1999. On this date, Noah received the following vaccines: MMR, Hib, and Varicella. Id. Noah missed his next scheduled appointment, the so-called “18-month” appointment. His medical records contain no documents or accounts of his health for the five months following his May 14,1999 vaccinations. Id.

On October 27, 1999, however, Noah visited his pediatric clinic. There, the examining physician recorded in Noah’s medical record his “goopy eyes,” a runny nose, and a cough. The doctor, furthermore, registered his concerns for Noah’s behavior and noted “disturbing signs,” such as his excessive drooling, repetitive noise-making, and grunting and reaching for objects. Id. at *3. The doctor found Noah’s language and behavior were abnormal for his age, and diagnosed “possible URI, viral conjunctivitis, probable language delay, and ... suspected other possible developmental delay.” Id. The doctor recommended that the Dixons schedule a “well-baby” exam as soon as possible, and referred Noah to a specialist for neurodevelopmental testing and speech therapy.

Dixons took Noah to the “well-baby” exam on November 3, 1999, where he received DTaP and oral polio vaccinations. Id. At the time of this visit, the examining physician observed that Noah had regressed to the point where he could no longer walk or talk, that he ate wood and paper, ran stiffly, but could not walk up stairs or sit on chairs normally. Id. In addition, Noah, it was noted, could not verbalize two-word sentences, yet could feed himself finger foods. Id. Dr. Pollard’s dictated notes of this visit recorded that Noah had an older sibling diagnosed with Asperger’s syndrome (“high functioning autism”) and that Noah’s father was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). Id. The doctor also observed Noah to be “in his own little world,” that Noah ignored other people’s emotions, made limited eye contact, and had a very high pain tolerance. Id.

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61 Fed. Cl. 1, 2004 U.S. Claims LEXIS 141, 2004 WL 1366002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixon-v-secretary-of-the-department-of-health-human-services-uscfc-2004.