Gruber v. Secretary of Health & Human Services

61 Fed. Cl. 674, 2004 U.S. Claims LEXIS 187, 2004 WL 2109241
CourtUnited States Court of Federal Claims
DecidedJuly 28, 2004
DocketNo. 95-34V
StatusPublished
Cited by4 cases

This text of 61 Fed. Cl. 674 (Gruber 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
Gruber v. Secretary of Health & Human Services, 61 Fed. Cl. 674, 2004 U.S. Claims LEXIS 187, 2004 WL 2109241 (uscfc 2004).

Opinion

OPINION

BRUGGINK, Judge.

Petitioners, Michael Gruber and Lana Baker, filed a petition for compensation under the National Vaccine Injury Compensation Program on January 13, 1995.1 Petitioners alleged that their daughter, Irene Baker Gruber, suffered a significant aggravation of an underlying neurological disorder as the result of a diphtheria-pertussis-tetanus (“DPT”) vaccination she received on January 16,1992. On April 12,1995, respondent filed a report recommending that the Chief Special Master dismiss the case based on lack of evidence to support a finding that Irene’s condition is vaccine-related. An evidentiary hearing was held on December 11,1997. On December 22,1998, the Chief Special Master ruled that the petitioners were entitled to compensation under the Vaccine Act. Gruber v. Sec. of Dep’t of Health & Human Serv., No. 95-34V, 1998 WL 928423 (Fed.Cl. Dec. 22, 1998) (Decision on Entitlement). The Chief Special Master issued a Decision on Damages on January 20, 2004. Pending is respondent’s February 19, 2004 motion for review of the Chief Special Master’s decision on entitlement. Oral argument was held on May 3, 2004.

The essential facts, as found by the Chief Special Master, are not in dispute. The following background facts are drawn from his decision on entitlement. Irene was born on July 23,1991, in Columbus, Ohio. At her first few appointments she was noted by her pediatrician, Dr. Roach, as a healthy baby. She received her first set of immunizations on September 18, 1991, and her second set on November 20, 1991. Irene’s father testified that in late November or early December 1991, he and his wife noticed that Irene was suffering from occasional episodes of eye fluttering, which did not occur on a daily basis but were more common after Irene had just woken from a nap. By January 1992, these episodes had become more common, but did not yet raise her parents’ concern for Irene’s health. On January 16, 1992, Irene was brought to Dr. Roach. He observed several of Irene’s eye-fluttering episodes at that time, but did not consider them unusual. Irene then received her third DPT shot that [676]*676afternoon. Although it was not then diagnosed, both parties’ experts agree that, with hindsight, Irene was showing symptoms of Severe Myoclonic Epilepsy (“SME”) before her third vaccination. SME is a rare disorder of unknown origin with a consistently catastrophic prognosis.

The Grubers did not notice anything unusual about Irene’s behavior the evening following her third vaccination. However, the next morning, Irene’s body began to jerk during a diaper change. The Grubers brought Irene to Dr. Roach’s office that morning. Irene was examined by Dr. Royhans, who suspected Irene’s behavior to be caused by a seizure, and scheduled an EEG for Irene for February 4. Dr. Royhans impression, as recorded in his records, was that Irene had experienced a “seizure — time related to DPT.” Gruber, slip op. at 3. A notation instructed that no more vaccinations were to be given to Irene. A Vaccine Adverse Events Reporting System form was completed on January 17, 1992, reporting these events.

Irene’s parents recorded that she had other seizures on January 29, February 2, February 13, and March 14, 1992. Mr. Gruber testified that the seizures occurring after the January 16 vaccination increased in frequency and intensity.

[Wjhere I referred to as the November through January 16th time period where I would say things were subtle and barely noticeable, after January 16th, it basically came right at you and hit you squarely between the eyes. There was no question as far as that she was, you know ... having a problem.

Id. at 4.

An EEG was performed on February 4, recording Irene’s brain activity while awake and sleeping. It was reported as abnormal. Two follow-up EEGs also reported abnormal brain activity. Not long after the third EEG, on March 6, 1992, Irene was admitted to Children’s Hospital in Columbus, Ohio, following a twenty-minute seizure that resolved spontaneously in the emergency room. During her hospitalization, another EEG was performed which recorded a large number of clinical episodes of generalized myoclonic seizures. She was discharged on March 8.

On March 22, 1992, Irene experienced her first episode of status epilepticus. Children’s Hospital records note that “generalized clonic seizures lasted 50 minutes before valium and dilantin stopped her seizures.” Id. at 5. She required intubation following valium-induced apnea. Another EEG, conducted on March 25, was again abnormal, showing “moderate to severe generalized slowing of the cerebral activity.” Id. at 5. By this time, Irene had also developed an acute sensitivity to light. According to Mr. Gruber, sometimes just going outside would be enough to trigger Irene to have a seizure. Her parents had to place cardboard in the windows of their home and car to prevent triggering a seizure.

Over the next few months, Irene’s seizure activity continued in the form of multiple myoclonic seizures and generalized tonicclonic seizures. On August 5, 1992, Dr. Roach’s notes indicate Irene’s parents noticed her experiencing a “different” type of seizure. She was described as having three to four minutes of continuous eye blinking followed by five minutes of eye deviation to the right, limpness, then 15 minutes of intermittent deviation. Afterward, Irene vomited and became pale.

Despite these seizures, on July 1, 1992 Irene was reported to be “growing normally, along the 75th percentile for height and weight and 50th percentile for head circumference.” Id. at 5. On August 27, 1992 she was noted to have cognitive, social, and behavioral skills at an age-appropriate level. Her neurodevelopmental functioning was also thought to be age-appropriate. Her general fine/gross motor skills, however, were equivalent to those of a ten-month-old. Pediatrician notes dated September 21, 1992 report that Irene could pull to a stand and could cruise along furniture. By this time she also could say words like “Ma Ma” and “Da Da.” An evaluation of October 22, 1992 reports that Irene sat alone at five to six months old and started to say words at 11 months.

Dr. Blaise Bourgeois, who conducted Irene’s October 22 evaluation, made specific observations concerning her seizures. He [677]*677noted that she was experiencing three different seizure types. (1) “generalized myoclonic seizures ... [that] occur almost every few minutes”; (2) “generalized, predominantly clonic seizures, occasionally with a tonic phase ... usually last[ing] less than one minute, but on occasions, have persisted for up to an hour”; and (3) “focal seizures.” Id. Irene’s seizures continued for the next few years, requiring medication and further hospitalization.

On March 11, 1996, Irene was admitted to Columbus Children’s Hospital for a generalized tonic clonic seizure which progressed to status epilepticus. Irene developed liver failure and was transferred to Children’s Hospital Medical Center in Cincinnati, Ohio, in preparation for Irene to receive a liver transplant. Irene’s liver enzymes normalized, however, and the transplant was deemed unnecessary. Irene remained hospitalized for three months, and according to Mr. Gruber, all developmental gains Irene made were now lost, and she became severely mentally retarded. Irene is currently in a wheelchair, unable to stand or walk. She has no upper body control and is unable to speak.

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