Hopkins v. Secretary of Department of Health & Human Services

84 Fed. Cl. 517, 2008 U.S. Claims LEXIS 516, 2008 WL 4791443
CourtUnited States Court of Federal Claims
DecidedOctober 1, 2008
DocketNo. 00-746V
StatusPublished
Cited by10 cases

This text of 84 Fed. Cl. 517 (Hopkins v. Secretary of 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
Hopkins v. Secretary of Department of Health & Human Services, 84 Fed. Cl. 517, 2008 U.S. Claims LEXIS 516, 2008 WL 4791443 (uscfc 2008).

Opinion

OPINION

HORN, Judge.

PROCEDURAL HISTORY AND FINDINGS OF FACT

On December 11, 2000, Greg and Helen Hopkins, acting on behalf of their son, Finn Hopkins, filed a petition seeking compensation under the National Vaccine Injury Compensation Act, 42 U.S.C. § 300aa-l-300aa-34 (2000) (Vaccine Act). Petitioners allege that their son suffered from bilateral sensorineural hearing loss (“SNHL”) as a result of receiving the haemophilus influenzae B (“HIB”), diphtheria-pertussis-tetanus (“DPT”) and oral polio (“OPV”) vaccines on December 10, 1998. Also on December 11, 2000, these same individuals, this time acting on behalf of their other child, Ruby Hopkins, filed a separate claim, also for bilateral sen-sorineural hearing loss as a result of the HIB, DTP and OPV vaccinations, likewise received on December 10, 1998. Chief Special Master Gary Golkiewicz chose to hold a single hearing for both children and to issue a single decision in the two separately filed cases. According to the Chief Special Master, he and the petitioners in both of the cases were in agreement on how to proceed.

[519]*519The Chief Special Master held a factual hearing on September 27, 2004, at which both parents testified as fact witnesses. The Chief Special Master issued a factual determination on February 9, 2005. Finn Hopkins v. Sec’y of HHS, No. 00-746 (Fed.Cl. Spec.Mstr. Feb. 9, 2005). In his Factual Determination regarding Finn, prior to taking the expert testimony, the Chief Special Master found that:

Petitioners’ testimony provides no persuasive evidence of the onset of Finn’s hearing loss occurring following the December 10, 1998 vaccinations. Accordingly, from the undersigned’s viewpoint, it will be virtually impossible to demonstrate an appropriate temporal relationship between the vaccinations and Finn’s injury. While petitioners reserve the right to an expert hearing in this case, the court cautions them that given the factual finding regarding onset of Finn’s injury, establishing entitlement will be a herculean effort.

Subsequently, the Chief Special Master heard expert testimony and received documentary evidence. In addition to the summary contained in this opinion, a more extensive presentation of the facts of Finn’s medical history is found in the Chief Special Master’s Decision on Remand. On August 10, 2007, after reviewing the record, including the testimony of fact and expert witnesses and the submitted documentary evidence, the Chief Special Master issued a single opinion denying entitlement to both Finn and his sister, Ruby, for whom a separate claim had been filed, also by the parents. Ruby Hopkins and Finn Hopkins ex rel. Greg and Helen Hopkins v. Sec’y of HHS, Nos. 00-745 and 00-746, 2007 WL 2454038 (Fed.Cl. Aug. 10, 2007). Petitioners filed a motion for review of the Chief Special Master’s decision on September 9, 2007. The final single opinion issued by the Chief Special Master stated that: “Throughout the presentation of these cases, the two cases had been treated essentially as one.” Based on the decision to treat the two cases together, the Chief Special Master also indicated, “the presentation of the two cases are so intertwined through the expert testimony, it makes eminent sense to resolve the cases through one opinion.”

This court recognizes that combining the two cases might produce ease, speed and cost reduction. Moreover, from petitioners’ point of view, combining the cases would enable the petitioners to use Ruby’s case to bolster Finn’s case. This court, however, disagreed with the decision to treat the two cases, which put at issue distinct, medical facts of two separate physical beings of different ages, as one entity. Although the Chief Special Master acknowledged some differences between Ruby and Finn in his single opinion, upon reading the opinion of the Chief Special Master, this court was concerned that too much information had been merged and too little consideration given to possible different conclusions. Therefore, on October 16, 2007, this court remanded the two separately filed cases to the Chief Special Master for separate consideration of each child’s case. In doing so, this court noted, regarding the two separate cases, that “while the facts [of the two eases] share some similarities, they are not identical,” and “that separate opinions should have been issued in each case.” This court also directed that, “[a]s part of the remand consideration, the [Chief] Special Master shall give consideration to whether sufficient facts exist in the current record to enable him to reach an independent conclusion as to each child.” The Chief Special Master also was instructed that if he did not hold further hearings, he “should indicate his reasons for doing or not doing so in his final opinion.”

The Chief Special Master did not hold additional hearings or take any additional evidence. On December 14, 2007, the Chief Special Master issued two Decisions on Remand, one for Ruby Hopkins and one for Finn Hopkins. Neither decision contained substantive changes to the original single opinion. The primary difference between the original and the Remand Decision was that the Chief Special Master’s discussion and conclusion were segregated into two separate opinions, one for Ruby and one for Finn. In fact, in the Chief Special Master’s Remand Decision, he specifically wrote, “[t]he undersigned notes for the convenience of the court and the parties that in issuing this separate decision for Finn Hopkins, no [520]*520substantive changes were made to the undersigned’s initial Decision [the Joint Decision issued earlier].” Finn Hopkins v. Sec’y of HHS, No. 00-746, 2007 WL 5403209, at *2 (Fed.Cl.Spec.Mstr. Dec. 14, 2007). In the case of Finn Hopkins, discussed in this opinion, the Chief Special Master concluded that based on the record, Finn was not entitled to compensation under the Vaccine Act. On January 7, 2008, petitioners filed a Motion for Review of the December 14, 2007 Remand Decision

Finn was born on May 15,1997. Finn had been seen in November 1997, at the Emergency Care facility at Elmendorf Air Force Base, Alaska, for a fever and bulging fontanel. At that time, he was diagnosed with mild otitis media. On June 1,1998, Finn was diagnosed with sinusitis. On December 10, 1998, Finn received the haemophilus influen-zae type B (“HIB”), diphtheria-tetanus-pertussis (“DTP”), and oral polio (“OPV”) vaccinations at Elmendorf Air Force Base.2 After returning from a family vacation to Thailand, Finn was evaluated by John Caeton, M.D., on March 8,1999, for a possible viral respiratory infection. In Finn’s medical record, Dr. Caeton noted that his “TMs [tympanic membranes] look gray,” his nose was “not draining,” and his pharynx and lungs were “negative.” In his diagnosis, the doctor concluded that Finn was suffering from an upper respiratory infection, for which Finn’s parents were advised to give him over-the-counter medication.

Approximately two weeks later, on March 23, 1999, Finn was evaluated by audiologist Joyce F. Sexton at Northern Hearing Services, Inc., in Anchorage, Alaska. Ms. Sexton evaluated Finn at the request of his parents because he was not talking clearly and he seemed to be slow in acquiring new words. Also, his sister, Ruby, recently had been diagnosed with a hearing loss of unknown etiology and his parents wanted to determine if hearing was any concern for Finn. Subsequently, on April 1, 1999, an audiologist performed Otoacoustic Emissions Testing (OAE).

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84 Fed. Cl. 517, 2008 U.S. Claims LEXIS 516, 2008 WL 4791443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-secretary-of-department-of-health-human-services-uscfc-2008.