Jane Doe34 v. Secretary of Health & Human Services

87 Fed. Cl. 758, 2009 WL 2151297
CourtUnited States Court of Federal Claims
DecidedJuly 15, 2009
DocketNo. V
StatusPublished
Cited by246 cases

This text of 87 Fed. Cl. 758 (Jane Doe34 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
Jane Doe34 v. Secretary of Health & Human Services, 87 Fed. Cl. 758, 2009 WL 2151297 (uscfc 2009).

Opinion

OPINION2

FIRESTONE, Judge.

This case comes before the court on the motion for review of the chief special master’s decision on remand filed by the petitioner, Jane Doe 34,3 pursuant to RCFC, App. B, Vaccine Rule 23. This is the fifth decision in this case.4 In the last decision by this court, [citation redacted], the court determined that a hearing was needed to “consider, if reliable, the evidence that Petitioner seeks to present, and any evidence Respondent seeks to present in response, for the limited purpose of establishing the appropriate damages period and making a damages determination.” On remand, the chief special master determined that the appropriate damages period was approximately thirty days following the petitioner’s release from the hospital after being treated for Reye’s syndrome and that $5,841.50 was the appropriate amount of damages to award. For the reasons stated below, this court AFFIRMS the chief special master’s decision.

BACKGROUND

The facts underlying the petitioner’s claim are set forth in this court’s July 13, 2007 order and the earlier opinions of the court. In brief, on July 29, 1999, Ms. Doe*34 filed a suit for compensation under the National [760]*760Childhood Vaccine Act of 1986, as amended, 42 U.S.C. § 300aa-l-34 (1986) (“Vaccine Act”). Special Master E. LaVon French issued a decision dismissing the petition on March 11, 2004. The petitioner appealed the decision, and this court reversed and remanded the case for a calculation of damages on January 26, 2005. Lcitation redacted] Due to the retirement of Special Master French, the case was reassigned to Chief Special Master Gary J. Golkiewicz. On February 28, 2007, the chief special master issued his decision on remand, [citation redacted] The chief special master, based on the record from the original hearing, issued a damages decision. On this first remand, the chief special master denied the petitioner the opportunity to present an expert pediatric neurologist’s report and other medical evidence to show that she suffered long-term sequelae of the Reye’s syndrome that had been caused by her Hepatitis B vaccinations. The chief special master determined that the petitioner suffered sequelae for approximately thirty days following her release from the hospital and awarded the petitioner $5,000 for pain and suffering and $841.50 in past unreimbursable expenses. See id. at *2-3, *7 n. 5.

The petitioner timely filed a motion for review, which this court granted-in-part and denied-in-part on July 13, 2007. Lcitation redacted] As stated above, the court again remanded the case to the chief special master to allow the petitioner to present her expert evidence to show that she continued to suffer damages following her recovery from Reye’s syndrome beyond the thirty-day period determined by the chief special master.

On this second remand, the petitioner filed the expert report of neurologist Ronald I. Jacobson, M.D. See PetT’s Exhibit F (“Jacobson Rep.”). In his report, Dr. Jacobson stated, “Taken in its entiretyL, the petitioner] has a chronic post[-]illness encephalopathy marked by recurrent migraine headaches, hand numbness, and diminished academic performance and diminished motor skills.” Id. at 2. Dr. Jacobson reported:

It is my opinion, to a reasonable degree of medical certainty, that the illness which prompted [the petitioner’s] hospitalization on December 17, 1996 was Reye[’s][sjyn-drome postf-]hepatitis B vaccination_ Reye[’s] syndrome is known to result in neurologic sequelae including cognitive impairments, motor impairment, and sensory dysfunction. Although migraine headaches have not been specifically linked with ReyeL’s] syndrome, migraine triggers or exacerbations are known to occur because of a variety of specific insults to the central nervous system. For example, head trauma is a well-known cause of migraine headaches.... Once a pattern of migraine headaches becomes established, the migraine disorder may last for many years. Recurrent migraine headaches cause recurrent pain and further impairments in functioning including decreased attendance at school or work and greater difficulty with the extra demands leading to increased need for sleep. Finally, the most appropriate neurologic conclusion is that [the petitioner/ suffers from post-Reye[’s][s]yndrome encephalopathy, for which there are many similar examples after other insults to the central nervous system ....

Id. at 3 (emphasis added throughout).

In response, the respondent filed the expert report of John T. MacDonald, M.D., who opined that there was no reliable evidence in the petitioner’s medical records or the literature on Reye’s syndrome that would support the petitioner’s claimed damages from her Reye’s syndrome. Resp’t’s Exhibit K at 1-3 (“MacDonald Rep.”). Dr. MacDonald opined that mild cases of Reye’s syndrome, like the petitioner’s, are known to fully resolve and that lasting neurologic problems due to a chronic encephalopathy are not found in such patients. He stated, “In my experience, only the more severe cases of Reye’s [s]yndrome resulted in a chronic encephalopathy.” Id. at 2. The parties also filed medical literature in support of their respective experts’ opinions.

On August 7, 2008, the chief special master held an evidentiary hearing at which Dr. Jacobson, Dr. MacDonald, and James E. Heubi, M.D., testified. Dr. Heubi was the petitioner’s expert during the causation phase of the ease and had filed a supplemental affidavit during that phase addressing the [761]*761issue of how long the petitioner’s Reye’s syndrome lasted. Pet’r’s Ex. B (filed Mar. 27, 2006). In this affidavit, he stated, “It would take time for a child to recover completely [from Reye’s syndrome] and in this case that may not have occmred until mid-January [1997].” Id. at 2 (emphasis added). Dr. Heubi testified at the August 7, 2008 hearing at the chief special master’s request and over the objection of the petitioner.

At the same hearing, Dr. Jacobson testified on behalf of the petitioner that during her Reye’s syndrome, the petitioner suffered an acute encephalopathy that resulted in permanent and significant neurological sequelae, although he conceded that no chronic encephalopathy had been observed through any scanning or test result. Hr’g Tr. (“Tr.”) 56:8-15, Aug. 7, 2008.5,6 Additionally, he testified that the petitioner experienced “substantially elevated” ammonia levels during her Reye’s syndrome. Tr. 13:2-19. He stated that “ammonia can be looked at in and of itself as a neurotoxin impairing brain function” and that “it’s really also a marker of multiple abnormalities that are occurring in Reye’s syndrome that represent toxicity in cells,” including brain cells. Tr. 13:22-14:3.

At the hearing, Dr. Heubi, who, as noted above, testified at the request of the chief special master, ratified his earlier opinion that it was more likely than not that the petitioner’s Reye’s-syndrome-related encephalopathy resolved itself and did not result in any long-term neurologic psychiatric se-quelae. Tr. 78:8-14, 79:23-24. Dr. Heubi testified that it would be “possible although unlikely that at this level of neurologic dysfunction [the petitioner] sustained any long-term neuropsyehiatric consequences.” Tr. 86:10-15. Additionally, Dr.

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87 Fed. Cl. 758, 2009 WL 2151297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jane-doe34-v-secretary-of-health-human-services-uscfc-2009.