Hammitt ex rel. Hammitt v. Secretary of Health & Human Services

98 Fed. Cl. 719, 2011 WL 2725984
CourtUnited States Court of Federal Claims
DecidedJuly 8, 2011
DocketNo. 07-170V
StatusPublished
Cited by40 cases

This text of 98 Fed. Cl. 719 (Hammitt ex rel. Hammitt 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
Hammitt ex rel. Hammitt v. Secretary of Health & Human Services, 98 Fed. Cl. 719, 2011 WL 2725984 (uscfc 2011).

Opinion

OPINION AND ORDER

WHEELER, Judge.

• This case is before the Court for review of the Special Master’s March 4, 2011 decision on remand denying compensation to Scott R. Hammitt, on behalf of his daughter, Rachel Hammitt, under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (“the Vaccine Act”). Mr. Hammitt claims that Rachel’s DTaP (diphtheria, tetanus, and acellular pertussis) vaccination caused her to develop an acute seizure disorder known as Severe Myoclonic Epilepsy of Infancy (“SMEI”). Respondent contends, and the Special Master found, that a genetic component, a mutation of the SCN1A gene, predetermined that Rachel eventually would develop SMEI, whether or not she received the DTaP vaccine. For the reasons addressed below, the Court affirms the Special Master’s decision.

Factual Background

Rachel Hammitt was born on November 9, 2003. Hammitt v. Sec’y of Health & Human Servs., No. 07-170V, 2010 WL 3735705, at *2 (Fed.Cl.Spec.Mastr. Aug. 31, 2010) {“Ham-mitt I”). On March 15, 2004, Rachel received her second DTaP, IPV, Hepatitis B, Hib, and Pneumococcal Conjugate vaccinations at Cleveland Clinic Willoughby Hills Family Health Center in Willoughby Hills, Ohio. (Pet. ¶ 2.) Between 7:30 and 8:30 that evening, Rachel exhibited twitching in her eye and right arm, and she was foaming at the mouth. Hammitt I, at *2. Rachel’s mother gave her ibuprofen and took her to the emergency room at Hillerest Hospital in Mayfield Heights, Ohio. Id. She reported that Rachel had suffered a seizure lasting 45 minutes. Id.

Rachel’s temperature upon admission to the Pediatric Emergency Department of Hillerest Hospital was 100.4 degrees Fahrenheit. Id. The doctors gave Rachel valium, and she stopped seizing but remained stiff for approximately twenty minutes. Id. At 8:45 PM, Rachel was given a CT scan, which was normal. Id. Afterward, Rachel was crying and “moving all four extremities.” Id. (quoting Pet’r’s Ex. 2(b) at 19). By 9:10 PM Rachel was breast feeding, and by 9:30 PM she had fallen asleep in her mother’s arms. Id. At 9:45 PM, Rachel was transferred to Cleveland Clinic Foundation Children’s Hospital (“CCF”). Id. There, doctors noted that Rachel had a “possible adverse event post vaccination” and an “atypical complex febrile seizure.” Id. (quoting Pet’r’s Ex.. 4(a) at 6). One day later, on March 16, 2004, a neurology student examined Rachel, recording that Rachel was alert and cheerful, and noting that a “DTaP reaction seems most likely.” Id. (quoting Pet’r’s Ex. 4(a) at 10). Rachel was then given an electroencephalogram (EEG) test, which was normal. Id. She was diagnosed as having had a complex febrile seizure and was discharged from CCF that day. Id.

On April 22, 2004, at 4:30 AM, Rachel suffered a second seizure. (Pet-¶ 6.) Her parents called 911, and at the hospital where she was taken, her laboratory work and CT scan were found to be within normal limits. Hammitt I, at *2. An EEG test performed at CCF the following day “showed focal epilepsy from the right posterior quadrant, but improved from the previous 24 hours.” Id. (quoting Pet’r’s Ex. 4(b) at 18). The EEG test also showed evidence of a “severe diffuse encephalopathy.” Id. (quoting Pet’r’s Ex. 4(b) at 48). Rachel, however, appeared awake and playful. Id. She was discharged on April 26, 2004 with a prescription for Dilantin and a scheduled follow-up appointment. Id. ■ Thereafter, Rachel continued to suffer intermittent seizures. Id.

On November 12, 2004, Rachel visited her pediatrician for her twelve-month check-up. (Pet’r’s Ex. 3(a) at 25.) Records from that appointment show a diagnosis of epilepsy but report normal growth and development. [722]*722Hammitt I, at *2. At her fourteen-month check-up, however, Rachel’s pediatrician recorded delayed verbal and gross motor development. (Pet’r’s Ex. 3(a) at 29.) Although Rachel’s overall assessment listed normal growth and development, Rachel’s pediatrician recommended that she be evaluated for global developmental delays at CCF. Id.

CCF’s Department of Neurology performed another EEG test on Rachel on March 4-5, 2005. Hammitt I, at *3. She was assessed as having multiregional epilepsy. Id. Records also note that Rachel suffered mild developmental delay in language. Id.

Genetic testing ordered on May 3, 2005 showed that Rachel has a de novo mutation (appearing for the first time in one family member) in her SCN1A gene. Id. According to the report accompanying the test results, this DNA variant is “associated with a severe phenotype (SMEI or SMEB) rather than a mild or normal phenotype.” Id. (quoting Pet’r’s Ex. 12 at 2). At a follow-up appointment, Dr. Ajay Gupta indicated that Rachel’s “clinical course, EEG, and SCN1A test ... are suggestive of severe myoclonic epilepsy of infancy.” Id. (quoting Pet’r’s Ex. 5 at 48^9).

History of Proceedings

On March 13, 2007, Petitioner Scott Ham-mitt filed a claim in this Court for compensation under the Vaccine Act. Id. at *1. He asserted in his petition that the DTaP vaccination administered to Rachel on March 15, 2004 “caused her to develop a severe seizure disorder and to suffer profound developmental delays.” Id. (quoting Pet. ¶ 3). Between March 2007 and April 2009, Mr.. Hammitt filed 26 exhibits in support of his claim, including expert reports from neurologist Mar-eel Kinsbourne, M.D., and medical literature. Id. Respondent submitted its Rule 4(c) report on April 14, 2008, contending that Mr. Hammitt is not entitled to compensation under the Vaccine Act and that his petition should be dismissed. Id. Citing expert opinions of neurologist Max Wiznitzer, M.D., and neurologist and geneticist Gerald Raymond, M.D., Respondent asserted that Rachel’s SCN1A gene mutation, not her DTaP vaccination, caused her SMEI. Id. Although the Special Master afforded Mr. Hammitt additional time to file an expert response and Mr. Hammitt’s counsel indicated in a status report that he would provide a geneticist’s opinion, Mr. Hammitt ultimately opted not to retain an additional expert witness. Id. Instead, Mr. Hammitt filed a response by Dr. Kinsbourne on April 3, 2009. Id.

On May 14 and 15, 2009, the Special Master held a hearing to elicit expert testimony. Id. Mr. Hammitt presented his case-in-ehief through the testimony of Dr. Kinsbourne, while Respondent presented the testimony of Dr. Wiznitzer in rebuttal. Id. To address Respondent’s contention regarding Rachel’s SCN1A gene mutation, Respondent presented the testimony of Dr. Raymond, and Mr. Hammitt presented the testimony of Dr. Kinsbourne. Id. For expediency, the Special Master heard testimony at the same time in Stone v. Sec’y of Health & Human Servs., No. 04-1041V, 2010 WL 1848220 (Fed.Cl.Spec.Mstr. April 15, 2010), a similar case that also concerned the potential relationship between SCN1A gene mutations and SMEI. Hammitt I, at *1. Both parties submitted post-hearing briefs to the Special Master on August 19, 2009, and reply briefs on September 25, 2009. Id.

On August 31, 2010, Special Master Gol-kiewicz issued his decision denying compensation to Mr. Hammitt. Id. at *47.

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