Hale ex rel. Hale v. Secretary of the Department of Health & Human Services

22 Cl. Ct. 403, 1991 U.S. Claims LEXIS 28, 1991 WL 7986
CourtUnited States Court of Claims
DecidedJanuary 15, 1991
DocketNo. 90-13V
StatusPublished
Cited by30 cases

This text of 22 Cl. Ct. 403 (Hale ex rel. Hale 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.

Bluebook
Hale ex rel. Hale v. Secretary of the Department of Health & Human Services, 22 Cl. Ct. 403, 1991 U.S. Claims LEXIS 28, 1991 WL 7986 (cc 1991).

Opinion

ORDER

HARKINS, Senior Judge:

The Secretary of the Department of Health and Human Services, respondent, seeks review in the United States Claims Court under the National Vaccine Injury Compensation Program (the Program) of a decision by a special master. 42 U.S.C.A. § 300aa-12(e) (West Supp.1990). The Program was established in 1986 as part of the National Childhood Vaccine Injury Act, Pub.L. No. 99-660, Title III, § 311(a), 100 Stat. 3756. Procedures applicable to the functions of special masters, and review of decisions of special masters, however, were amended substantially in the Omnibus Budget Reconciliation Act of 1989 (1989 Amendments). Pub.L. No. 101-239, Title VI, § 6601(b), 103 Stat. 2285-94 (Dec. 19, 1989). Provisions of the Program are contained in 42 U.S.C.A. §§ 300aa-10 through 300aa-34 (West Supp.1990). Further citations to the Program in this order omit “42 U.S.C.A. § 300aa-.”

Christopher Ryan Hale (Christopher) was bom on March 26, 1977. The birth was uneventful, and Christopher was a healthy infant who enjoyed normal development. He received his first DTP (diphtheria-tetanus-pertussis) vaccination on May 4, 1977, without incident. On July 1, 1977, DTP was administered the second time by his pediatrician during a well-baby visit.

On July 3, 1977, the first of a series of episodes of twitching and jerking were observed. On July 12, 1977, Christopher was taken to the pediatrician who recorded that Christopher was having seizure-type activity. Thereafter the pediatrician diagnosed the condition as a seizure disorder. When the seizures did not come under good control, Christopher was referred to a pediatric neurologist at Denver Children’s Hospital, who on August 24, 1977, advised the pediatrician that testing indicated: “Infantile spasms, hypotonia, and retardation of unknown cause.”

Extensive testing has not established an etiology for the infantile spasms or for Christopher’s condition subsequent to the second DTP vaccination. The special master found that Christopher is afflicted with hypotonic cerebral palsy, mental retardation, and seizure disorder, and so severely disabled that he always will need assistance and supervision on a full time basis.

Special Master E. LaVon French has managed this proceeding with commendable expedition and flexibility. Deborah Hale, Christopher’s mother, filed the petition on January 3, 1990. Respondent’s report filed May 4,1990, recommended denial of the claim. Oral argument on petitioner’s June 28, 1990, motion for partial summary judgment was heard on July 9, 1990, via telephone, with the special master in Texas, petitioner’s counsel in Boston, and respondent’s counsel in the special master’s office in Arlington, Virginia. An evidentiary hearing was conducted in Denver, Colorado, on July 11 and 12, 1990. The special [405]*405master’s decision, filed October 16, 1990, analyzed the evidence in the record, included specific findings of fact and conclusions of law, and concluded that petitioner was entitled to a lump sum award of compensation of $68,500, and an annuity contract to be purchased for approximately $1,554,398 to provide a stream of payments under an irrevocable reversionary inter vivos medical trust for the benefit of Christopher.

Respondent’s motion for review is designed to focus on the special master’s disposition of a claim that includes a diagnosis of infantile spasms. Respondent concedes that on the record as a whole a preponderance of the evidence permits a finding of compliance with the requirements of Section 2113(a)(1)(A). Respondent contends that the evidence in the record contains questions of fact and questions of mixed fact and law that preclude disposition on summary judgment. Respondent further asserts that the special master erred, as a matter of law, in the conclusion that Section 2113(a)(1)(B) permits a ruling that a diagnosis of infantile spasms does not constitute an alternative cause, or a ruling that it is not a defense against a finding of compensation for an on-the-table injury.

Respondent’s motion for review does not challenge any of the other findings or conclusions made by the special master. Accordingly, no review is sought of the elements of the life care plan for Christopher, calculation of the elements of compensation, or the form the award is to take in this case.

The findings which respondent accepts include:

—Christopher has a residual seizure disorder.

—The infantile spasms that Christopher has been diagnosed as having can be seizures under the Vaccine Injury Table.

—Christopher’s residual seizure disorder was made manifest first within the requisite 72 hours.

—Petitioner is entitled to a statutory presumption that the injury was caused by the DTP vaccine.

The responsibilities and functions of special masters in the Program’s amended procedures are unique. The 1989 Amendments established a separate office of special masters within the Claims Court, administered by a chief special master, and gave that office special authority and considerable administrative independence in decisions on claims for compensation under the Program. Section 2112(c). The 1989 Amendments directed promulgation of separate rules for special masters, and established specific criteria the rules were to contain (Section 2112(d)(2)). Standards were established for conduct of proceedings on a petition (Section 2112(d)(3)(B)). Review of a special master’s decision by the Claims Court is expected to be an exceptional occurrence rather than a routine procedure.

Prior to enactment of the 1989 Amendments, the Claims Court was authorized to review proposed findings of fact or conclusions of law prepared by the special master and to make a “de novo determination of any matter.” 42 U.S.C. § 300aa-12(d)(l) (1988). See Davis v. Secretary of HHS, 19 Cl.Ct. 134 (1989); Bunting v. Secretary of HHS, 19 Cl.Ct. 738 (1990).

The 1989 Amendments preclude de novo review in the Claims Court of a decision of a special master.

A special master’s decision may not be disturbed by the Claims Court unless the court finds it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. The 1989 Amendments defined the Claims Court function in a review of a special master’s decision in Section 2112(e)(2), as follows:

(2) Upon the filing of a motion under paragraph (1) with respect to a petition, the United States Claims Court shall have jurisdiction to undertake a review of the record of the proceedings and may thereafter—
(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master [406]*406found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the court’s direction.

The report of the Conference Committee on the 1989 Amendments emphasized that an appeal to the Claims Court was to be “under very limited circumstances.” The report states:

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Bluebook (online)
22 Cl. Ct. 403, 1991 U.S. Claims LEXIS 28, 1991 WL 7986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hale-ex-rel-hale-v-secretary-of-the-department-of-health-human-services-cc-1991.