Hennessey v. Secretary of the Department of Health & Human Services

91 Fed. Cl. 126, 2010 U.S. Claims LEXIS 83, 2010 WL 94560
CourtUnited States Court of Federal Claims
DecidedJanuary 7, 2010
DocketNo. 01-190VC
StatusPublished
Cited by70 cases

This text of 91 Fed. Cl. 126 (Hennessey v. Secretary of the Department 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
Hennessey v. Secretary of the Department of Health & Human Services, 91 Fed. Cl. 126, 2010 U.S. Claims LEXIS 83, 2010 WL 94560 (uscfc 2010).

Opinion

OPINION

BRUGGINK, Judge.

Petitioner, Thomas Hennessey, seeks review of a decision entered by the special master denying compensation under the National Vaccine Injury Compensation Program (“Vaccine Act”), 42 U.S.C. § 300aa-l to -34 (2006). Petitioner alleges that the Hepatitis B vaccine caused or significantly aggravated his Type 1 Diabetes (“T1D”). The special master, after considering the parties’ submissions and hearing testimony from five medical experts, concluded that Mr. Hennessey failed to establish that any vaccine he received either caused or significantly aggravated his T1D. Accordingly, she denied Mr. Hennessey’s petition for compensation.

Mr. Hennessey concedes there is no conclusive scientific proof supporting his allegations but contends he submitted sufficient evidence to establish causation and that the special master improperly concluded his theory of causation was unreliable. Specifically, he alleges the special master wrongly elevated his evidentiary burden, placed excessive reliance on certain evidence, and was otherwise arbitrary, capricious, and abused her discretion. The matter has been briefed and this court heard oral argument on November [129]*1299, 2009. For the reasons set forth below, petitioner’s motion for review is denied.

BACKGROUND2

Mr. Hennessey was born on May 25, 1987. His childhood medical history was relatively unremarkable and he was generally healthy and active. He received the usual childhood vaccinations and had the usual childhood illnesses. His medical history indicates a somewhat reduced rate of growth in the two years preceding the vaccinations at issue.3 Several months before the vaccinations at issue in this case, Mr. Hennessey visited an optometrist and was prescribed glasses. Two months prior to his vaccinations, he contracted an upper respiratory infection and an ear infection.

On September 15, 1998, at age eleven, Mr. Hennessey received his first Hepatitis B vaccination. Although there was no immediate observable reaction, his mother noted that his stamina decreased throughout the autumn months, becoming more noticeable after receiving his second vaccination about two months later on November 17, 1998. Within days of this second vaccination, Mr. Hennessey began to display classic symptoms of diabetes, including excessive thirst and urination.

Mr. Hennessey visited his family physician on November 30, 1998, where lab tests revealed extremely high blood and urinary glucose levels. His blood glucose level was 571 milligrams per decaliter, a level considered critical, and his urinary glucose was over 1000 milligrams per decaliter, a measure that was “off the chart.” His medical records also reveal weight loss.4

He was admitted that day to the children’s hospital, where his admission history noted the increased thirst and urination had begun about a week and a half earlier, thus placing the onset of symptoms shortly after the second vaccination. The hospital measured his hemoglobin Al0 at 12.1 percent.5 Four days later, after determining the insulin level needed to control his blood glucose, the hospital discharged Mr. Hennessey with a diagnosis of T1D under good control. About two weeks after his diagnosis, Mr. Hennessey was seen by his pediatric endocrinologist, who found his blood glucose levels were under good control. His hemoglobin Alc had declined to 11.7 percent.

Mr. Hennessey received his third Hepatitis B vaccination on January 19, 1999. Over the next year, his condition remained under good control. His hemoglobin A]c declined to six percent by March and remained relatively steady at seven to eight percent for the rest of the year. In December 1999, he was screened for celiac disease.6 Subsequent lab tests confirmed the diagnosis and he was placed on a gluten-free diet.

Over the following year, Mr. Hennessey’s condition remained under control. Beginning in 2001, however, he experienced some trouble controlling his blood glucose levels. These problems persisted into 2003, and in July 2004 he experienced an episode of severe hypoglycemia which required emergency medical assistance. He experienced similar episodes in August 2005 and July 2006. Despite his condition, Mr. Hennessey remained active, playing high school sports and college football, and sustained several sports-related injuries.

[130]*130PROCEDURAL HISTORY7

This case was filed on April 2, 2001, by Mrs. Hennessey, the mother of the then-minor petitioner. In addition to its import to the named parties, this ease also serves as a “test case” for an omnibus proceeding, a device whereby a special master seeks to answer a question that is common to multiple cases involving the same vaccine and injury and implicating the same medical expertise. The test case allows the special master to hear evidence, make findings, and issue an opinion in a specific case, often regarding a general theory of causation. By prior agreement of the parties, the evidence advanced in the test case is then applied to the other eases in the omnibus proceeding. The parties in the other cases are not bound by the result of the test case but may rely on the expert opinions and the evidence underlying that decision.

At the time this ease was filed, the petitioner was not prepared to offer evidence on his theory of vaccine causation, so the case was stayed in early 2003. It was subsequently transferred to the “mercury toxicity” group of Hepatitis B cases. In 2004, action in this case was stayed pending the outcome of the Omnibus Autism Proceeding, which relied upon a theory of causation similar to the mercury toxicity group. By late 2006, the petitioner indicated he was ready to proceed and could produce evidence of causation. The parties selected this case as a test case for approximately 15 others. The special master held a two-day hearing in January 2008, at which she heard evidence from one expert witness for the petitioner and four expert witnesses for the respondent.

Type 1 Diabetes

Diabetes is not technically a disease. Rather, it is a condition caused by some underlying disease and characterized by elevated blood glucose. In the ease of T1D, the condition is a result of a decrease in the body’s production of insulin, a growth hormone that transports glucose from the blood into the muscles to be used as fuel.

Insulin is normally produced naturally by specialized clusters of cells known as p islet cells, which are produced by the pancreas. These p islet cells secrete insulin into the bloodstream in response to a rise in blood glucose, for example, after eating. When for some reason the p islet cells are destroyed, the result is progressive insulin insufficiency and a corresponding rise in blood glucose. Although blood glucose levels continue to rise, without insulin the muscles are unable to use the glucose as fuel, and the body effectively starves.

Experts generally agree that T1D is an autoimmune condition — one in which the immune system malfunctions and begins attacking the body’s own tissue. Specifically, in the case of T1D, immune system cells designed to attack invading pathogens instead target and destroy the insulin-producing p islet cells.

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91 Fed. Cl. 126, 2010 U.S. Claims LEXIS 83, 2010 WL 94560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hennessey-v-secretary-of-the-department-of-health-human-services-uscfc-2010.