Hanlon v. Secretary of Health & Human Services

40 Fed. Cl. 625, 1998 U.S. Claims LEXIS 64, 1998 WL 157062
CourtUnited States Court of Federal Claims
DecidedMarch 20, 1998
DocketNo. 90-1334 V
StatusPublished
Cited by356 cases

This text of 40 Fed. Cl. 625 (Hanlon 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
Hanlon v. Secretary of Health & Human Services, 40 Fed. Cl. 625, 1998 U.S. Claims LEXIS 64, 1998 WL 157062 (uscfc 1998).

Opinion

OPINION and ORDER

TURNER, Judge.

Petitioners seek relief under the National Vaccine Injury Compensation Program (established pursuant to 42 U.S.C. § 300aa-10) for injuries suffered by their son, Michael Hanlon. Applications for and determinations of eligibility for Program compensation are controlled by 42 U.S.C. § 300aa-ll to -16 and -33(2) & (4) (Vaccine Act). (For convenience, we sometimes hereafter shorten references to sections of the Vaccine Act to the portion following the hyphen.)

Petitioners allege that Michael suffered compensable injuries as a result of diphtheria-pertussis-tetanus (DPT) vaccinations. On September 15, 1997, Special Master Laura Millman issued a decision denying relief. The case stands on petitioners’ motion filed October 20,1997 to review that adverse decision. We conclude that the special master did not abuse her discretion, that she was not arbitrary or capricious, and that she acted in accordance with applicable law. Thus, we further conclude that the master’s decision should be affirmed.

I

Michael was born on March 30, 1978 and received his first DPT vaccination on June 1, 1978. Decision (5/31/94) at 2. The next day, Michael suffered his first seizure. Id. at 3, App. at 142. Michael received three more DPT vaccinations on July 28 and October 3, 1978 and on October 1, 1979. Id. at 3-4. After the initial seizure, Michael suffered other seizures continuing at least through 1990. Id. Michael’s seizures were afebrile “complex partial (focal) seizures.” Decision (9/15/97) at 45. Michael was eventually diagnosed with a seizure disorder. Decision (5/31/94) at 3-4. Michael was also diagnosed as having tuberous sclerosis (TS), a genetic disease of the brain known to cause seizures and mental retardation.

On September 25, 1990, petitioners filed a petition for compensation under the Vaccine Act. On May 31, 1994, Special Master Mill-man filed a decision in favor of compensation. The special master found that Michael’s injuries conformed in type and timing to the injuries described in the Vaccine Injury Table (Table), § 14. Decision (5/31/94), App. at 141-42. The special master next concluded that petitioners proved Table significant aggravation of Michael’s TS condition. Id., App. at 142. Finally, she concluded that two then-recent cases, Suel v. Secretary of the Dep’t of Health and Human Servs., 31 Fed. Cl. 1 (1993), and Costa v. Secretary of Dep’t of Health and Human Servs., 26 Cl.Ct. 866 (1992), mandated that she find in favor of petitioners on the issue of entitlement to compensation. Id., App. at 142. The special master then initiated the damages phase of the case. Prior to a ruling on damages, and thus before any final decision by the special master, respondent sought reconsideration of the liability determination.

Thereafter, the special master received more evidence on the issue of liability and ultimately held omnibus hearings in October 1996 and June 1997 “to facilitate the disposition of over twenty [TS] cases (even those in which entitlement had already been decided but which were awaiting disposition of damages).” Decision (9/15/97) at 5. The special master determined that petitioners had demonstrated a prima facie Table significant aggravation under the Vaccine Act. Id. at 64. The special master concluded that petitioners were entitled to a “presumption” that the vaccine significantly aggravated Michael’s [628]*628TS. Id. However, the special master also concluded that respondent had met its rebuttal burden by proving that a factor unrelated to the vaccine, TS, caused Michael’s seizures as well as his “current condition.” Id. For this reason, the special master denied compensation, id. at 67, and vacated her prior decision, Order (9/18/97).

On October 20,1997, petitioners filed their motion for review of the special master’s final decision.

II

The petition in a vaccine case must allege the occurrence of one or more of the following events: (1) the vaccine caused an injury listed in the Vaccine Injury Table, (2) the vaccine caused an injury not listed in the Table, (3) the vaccine aggravated an injury or “pre-existing condition” listed in the Table, or (4) the vaccine aggravated an injury or pre-existing condition not listed in the Table. § 11(c)(1)(C). Thus, a threshold question is whether the injury complained of or the pre-existing condition allegedly aggravated is listed in the Table.

In this case, petitioner alleges that DPT vaccine caused Michael to suffer residual seizure disorder (RSD).1 The injury complained of, RSD, is listed in the Table. § 14(a). For this reason petitioners may proceed with the theory that the vaccine caused Michael to suffer a Table injury, keeping in mind that they must show that the first seizure Michael suffered, “the first symptom or manifestation of the onset” of an illness listed in the Table, “occurred within the time period after vaccine administration set forth in the Vaccine Injury Table,” in this ease, within three days.2 §§ ll(c)(l)(C)(i), 14(a).

In the alternative, petitioners allege that, “within the time frame set forth in the Vaccine Injury Table,” the DPT vaccinations “significantly aggravated [Michael’s] existing Tuberous Sclerosis condition.” Pet. 1112. The pre-existing condition allegedly aggravated, TS, is not listed in the Table and cannot be considered a condition listed in the Table.3 Because TS is not listed in the Table and cannot be considered a condition listed in the Table, petitioners must prove causation in fact with respect to the significant aggravation portion of the case. Despite this, the special master evaluated the case as a significant aggravation case under the Vaccine Injury Table. Decision (9/15/97) at 64. Indeed, the special master found that petitioners made out a significant aggravation case under the Table. Id.

Based on our discussion of the law above, we conclude that the special master erred in so ruling. However, because petitioners were entitled to proceed under the Table by alleging that DPT caused Michael’s RSD, this error is harmless. By finding that petitioners had proved Table significant aggravation, in effect, the special master found that petitioners proved Table onset: (1) Michael suffers from a condition listed in the Table, RSD, (2) the first seizure Michael suffered occurred within three days and (3) Michael suffered “2 or more seizures ... within 1 year after the administration of the vaccine which were unaccompanied by fever or accompanied by fever of less than 102 degrees.” See Decision (9/15/97) at 64; Decision (5/31/94) at 5.

[629]*629Because petitioners meet the requirements for proof of a Table injury (RSD), they are entitled to a presumption that the vaccine injured Michael. The presumption shifts the burden to respondent to show by a “preponderance of the evidence” that the injury was actually caused by “factors unrelated” to the vaccine. § 13(a)(1)(B). In this case, the special master decided that respondent had proved that a factor unrelated to the vaccine, TS, caused the initial seizure, the residual seizure disorder and any seizure-related problems from which Michael currently suffers. Decision (9/15/97) at 64.

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40 Fed. Cl. 625, 1998 U.S. Claims LEXIS 64, 1998 WL 157062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanlon-v-secretary-of-health-human-services-uscfc-1998.