Doe v. Secretary of Health & Human Services

76 Fed. Cl. 328, 2007 U.S. Claims LEXIS 118
CourtUnited States Court of Federal Claims
DecidedMarch 27, 2007
StatusPublished
Cited by59 cases

This text of 76 Fed. Cl. 328 (Doe 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
Doe v. Secretary of Health & Human Services, 76 Fed. Cl. 328, 2007 U.S. Claims LEXIS 118 (uscfc 2007).

Opinion

[330]*330 MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Petitioner Jane Doe has moved for review of Special Master John F. Edwards’s decision denying her compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (“Vaccine Act” or “Act”), and directing that judgment be entered for respondent, the Secretary of the Department of Health and Human Services. Petitioner claims that a Hepatitis B vaccination (“HBV”) caused neutropenia2 and arthritis, and raises several objections to the Special Master’s decision. These objections concern the degree of attention given to the record by the Special Master; the Special Master’s determinations regarding the credibility of petitioner and her expert witness; - and the amount and nature of the questions posed by the Special Master during the hearing on petitioner’s claims. For the reasons below, the Court sustains the Special Master’s decision.

I. BACKGROUND

Petitioner, born on November 28, 1959, received her HBV on April 28, 1998. Pet.’s Ex. 1 at 1-2. She filed her petition for compensation on April 2, 2001, see Pet. at 1, claiming that the HBV was followed by her “first and marked problem” with pneumonia in August 1998, “significant knee pain” a few weeks later, then “flu-like symptoms at least once or twice a month” (later diagnosed as “acute pharyngitis with viral syndrome”), and finally “persistent canker sores” that last “for weeks at a time” and are accompanied by constant sore throats, swollen glands, low-grade fever, and chronic fatigue. Id. Ex. 13 ITU 3-4, 6-8. During a January 8, 2002 status conference, petitioner identified her theory of injury as “Hepatitis B vaccine-related autoimmune neutropenia.” See Sp. -Mstr. Order (Jan. 8,2002).

At her request, petitioner was granted extensions of time in which to compile a record for the Special Master’s review and to secure the opinion of a medical expert. See, e.g., Final Enl. Bef; Invol. Dism. (Nov. 27, 2002); Mot. for Ext. (Jan. 5, 2004). While proceeding pro se,3 petitioner initially produced the medical opinion of Professor Boyd E. Haley, Ph.D., which the Special Master rejected on January 23, 2003 as failing to prove actual causation. See Sp. Mstr.’s Order to Show Cause (Jan. 23, 2003).4 After petitioner produced the expert opinion of Harold E. But-tram, M.D., and the government responded, the Special Master rejected Dr. Buttram’s report, ruling that it, too, was inadequate. See Sp. Mstr.’s Order to Show Cause (July 2, 2003) .5 In January and May 2004, petitioner filed the medical reports of Ariel Distenfeld, M.D. See Distenfeld Aff. (Jan. 29, 2004); Pet.’s Ex. D (May 6, 2004). The government responded with the medical report of Gregory H. Reaman, M.D. Resp.’s Ex. A (July 8, 2004) .

On October 19, 2005, the Special Master convened a hearing at which petitioner, petitioner’s expert, and respondent’s expert tes[331]*331tified. During her testimony, petitioner was asked by the Special Master to explain three medical records which indicated that the symptoms of injuries and illnesses allegedly caused by the HBV actually predated her immunization. Tr. (Oct. 19, 2005) (“Tr”) at 28-32. On September 1,1998, she apparently told an orthopedist, Dr. Jonathan Glashow, that her problem with her right knee “ha[d] been going on for about six months.” Pet.’s Ex. 7. The notes from a September 3, 1998 appointment with Dr. Avaz of Columbia-Presbyterian Medical Center state that petitioner informed the doctor that she was “in general good health except for last 6 months had episodes of ? sore throat, tactile temp x 2-3 days, fatigue, had episode of pneumonia,” right knee pain, and “recurrent cold sores.” Pet’s Ex. 6 at 1. And the notes dated September 9, 1998, from the evaluation of a physical therapist recommended by Dr. Gla-show, state that “[approximately] 6 mo[nths] ago [petitioner] noticed minor discomfort in [right] knee.” Pet.’s Ex. 12 at 2.

Petitioner contended that her statement to Dr. Glashow was “an estimation,” and that she “wasn’t really thinking that precisely about the time frame.” Tr. at 28. She speculated .that the doctor might have posed possible time frames of a week, six months, a year, and two years, and that six months would thus have been “the closest to what I could say.” Id.; see also id. at 106-09. Concerning the statement to Dr. Avaz, petitioner claimed not to remember giving a six-month figure, and explained that because she was in such pain and taking “Advil, for the knee,” she was “kind of in a daze.” Id. at 30. She hypothesized that if she said “six months,” she “wasn’t thinking of a specific month,” but instead used “six months” as an expression of any period of time less than six months. Id. And she testified that she did not recall telling the physical therapist that her knee problem had existed for six months, id. at 31, guessing that she “really didn’t think it was important when exactly the symptoms began.” Id. at 32.

Petitioner’s expert, Dr. Distenfeld, opined that the antibodies created in petitioner’s body in response to the HBV could have attacked the neutrophils in her blood, resulting in low counts of white blood cells in general (leukopenia), and of neutrophils in particular (neutropenia). See Tr. at 52-56. Since neutrophils destroy bacteria and viruses, a low neutrophil count leaves the body susceptible to infections. Id. at 60-61. Rather than the range of 1800-6000 neutro-phils per microliter of blood, which is considered normal, see Distenfeld Aff. at 2,- petitioner’s blood tests taken after she received the HBV show abnormally low levels — approximately 960 in late August 1998, 580 in September 1999, and then varying from a low of about 500 in August 2000 to a normal count of 1900 in June 2005. See Tr. at 86-90; see also Pet.’s Ex. 9 at 28; Pet.’s Ex. 8 at 6; Pet.’s Ex. 11 at 20; Pet.’s Ex. L at 2. Doctor Distenfeld testified that petitioner suffered from “multiple infections,” including pneumonia, “recurrent pharyngitis, some swelling of lymph nodes, [and] fatigue,” beginning three months after receipt of the HBV. Tr. at 51. He posited that neutropenia resulting from an autoimmune reaction to a vaccination would normally take two to four months after the vaccination to develop, and that petitioner’s testimony of symptoms occurring three months after receiving the HBV is consistent with this time frame. Id. at 56; see also id. at 99 (explaining neutropenia could occur “as early as two weeks” after the triggering event).

In response to questioning from the Special Master, petitioner’s expert conceded that he had not seen records of any complete blood counts performed for petitioner after June 1992, when her neutrophil count of 1980 was “in the lower end of the normal range,” id. at 86, and prior to August 1998, and thus could not know whether she had neutropenia during that time period. Id. at 90, 93. He also conceded that the existence of symptoms of infection prior to the date of the HBV “would put some doubt on [his opinion], no question about it.” Id. at 94.

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76 Fed. Cl. 328, 2007 U.S. Claims LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-secretary-of-health-human-services-uscfc-2007.