John Cucuras and Maria Cucuras, Parents and Next Friends of Nicole Cucuras v. Secretary of the Department of Health and Human Services

993 F.2d 1525, 28 Fed. Cl. 1525, 1993 U.S. App. LEXIS 11216, 1993 WL 155624
CourtCourt of Appeals for the Federal Circuit
DecidedMay 14, 1993
Docket92-5172
StatusPublished
Cited by1,247 cases

This text of 993 F.2d 1525 (John Cucuras and Maria Cucuras, Parents and Next Friends of Nicole Cucuras v. Secretary of the Department of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Cucuras and Maria Cucuras, Parents and Next Friends of Nicole Cucuras v. Secretary of the Department of Health and Human Services, 993 F.2d 1525, 28 Fed. Cl. 1525, 1993 U.S. App. LEXIS 11216, 1993 WL 155624 (Fed. Cir. 1993).

Opinion

RADER, Circuit Judge.

Petitioners, parents and next friends of Nicole Cucuras, appeal the United States Court of Federal Claims’ denial of compensation to Nicole under the National Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-10 to 300aa-34 (1988 & Supp. III 1991). The Court of Federal Claims rejected petitioners’ claim that the special master erred by according greater weight to contemporaneous medical records than to later, conflicting oral testimony. Cucuras v. Secretary of Dep’t of Health & Human Servs., 26 Cl.Ct. 537, 542-43 (1992). The trial court also sustained the special master’s determination that petitioners did not show a causal link between the vaccination and the onset of Nicole’s seizure disorder. Cucuras, 26 Cl.Ct. at 543. Because the special master and the *1527 court properly assessed the testimonial and medical evidence, this court affirms.

BACKGROUND

Nicole Cucuras was born on February 9, 1989. On February 26, Nicole was hospitalized following a choking episode. On April 8, 1989, Nicole received a DPT (diphtheria-tetanus-pertussis) vaccination. The record presents conflicting accounts of the events following the vaccination.

Petitioners testified to the special master that the night of and the day after the inoculation, Nicole began exhibiting symptoms of an adverse reaction to the shot. These symptoms allegedly began as “screaming” and “continuous crying,” and progressed to include startle reactions, jerking motions, and hand thumping. Petitioners further alleged that they contacted Nicole’s pediatrician on April 14, 1989, only to be told “not to worry.” Neither petitioners nor the pediatrician could locate a record of this call.

On May 5, 1989, Nicole’s medical records show that she underwent a checkup. The pediatrician noted that Nicole’s startling and choking was within normal limits. On May 7, Mansfield General Hospital admitted Nicole after she awoke gasping for breath. The hospital’s physicians performed an electroencephalogram (EEG). This test showed a potential for focal and generalized seizure disorder and mild diffuse encephalopathy. A CT scan the following day was normal.

Three days later, Nicole was transferred to Columbus Children’s Hospital. Columbus Children’s Hospital made several entries in Nicole’s records on the date of her admittance. According to those records, Nicole’s parents said that she had experienced a “two week history of spells.” Nicole’s parents also reported that her seizures began “within a week” after her DPT vaccination. Petitioners repeated this assertion to Nicole’s treating neurologist, Dr. A. David Rothner of the Cleveland Clinic Foundation, on June 23, 1989. Dr. Rothner’s post-evaluative notes state: “Nicole was perfectly well until a week after the DPT shot.”

Before the special master, petitioners introduced expert testimony to show that the vaccine in fact caused Nicole’s seizures. The experts’ opinions, however, were at variance with one another. While Dr. Mark R. Geier would find actual causation up to seven days after the shot, Dr. Marcel Kinsborne would not go beyond three days. Both relied on studies performed in the 1970s.

The Department of Health and Human Services responded with its own expert. Dr. Arnold Gale relied on a report compiled by the Institute of Medicine (IOM), pursuant to the Act. The TOM report concluded that no causal connection existed between DPT vaccines and infantile spasms.

Based on this evidence, the special master determined that Nicole had not suffered an injury within the temporal limits of the vaccine table. Cucuras, 26 Cl.Ct. at 545 (reprinting special master’s Nov. 22,1991 bench ruling). Moreover the special master determined that the vaccine did not actually cause Nicole’s injury. Id. at 545-46.

DISCUSSION

Standard of Review

The Court of Federal Claims may reverse a special master’s findings and conclusions only in the face of arbitrary, capricious, or unlawful decisions. 42 U.S.C. § 300aa-12(e)(2). This court reviews the Court of Federal Claims determination under this highly deferential standard de novo. Bradley v. Secretary of the Dep’t of Health & Human Servs., 991 F.2d 1570, 1574 (Fed.Cir. Apr. 22, 1993); Hines v. Secretary of the Dep’t of Health & Human Servs., 940 F.2d 1518, 1523-24 (Fed.Cir.1991). The Supreme Court discussed the arbitrary and capricious standard in terms of reliance on factors Congress placed beyond consideration, of failure to consider an important part of the program, of articulation of a decision running counter to the evidence, or of implausibility beyond a difference of expert opinion. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983).

Vaccine Injury Compensation

The Public Health Service Act sets forth a vaccine injury table. 42 U.S.C. § 300aa-14. The table, in effect, “deter *1528 mines by law that the temporal association of certain injuries with the vaccination suffices to show causation.” Grant v. Secretary of the Dep’t of Health & Human Servs., 956 F.2d 1144, 1147 (Fed.Cir.1992). When other requirements of § 300aa-13(a)(l) have been met, the table specifies a time frame after vaccination within which onset of the listed injuries creates a presumption that the vaccine caused the injury. When this presumption arises, the inquiry shifts to a search for alternative etiologies. Grant, 956 F.2d at 1149.

In determining whether the onset of Nicole’s injury occurred within the table time limits, the special master weighed a variety of evidence. At length, however, the special master, based on a preponderance of the evidence, concluded that Nicole’s seizures began a week or so after the vaccination. In reaching this conclusion, the special master weighed heavily the evidence contained in Nicole’s medical records.

One record entry, dated May 10, 1989, identified Nicole as a “12 week old white (female) infant with a 2 week history of ‘spells.’ ” A two-week history of spells places the onset of Nicole’s seizures around April 26 — more than two weeks past her April 8 vaccination. Another entry in this record notes that Nicole “had immunizations 1 week prior to onset of the spell.” These records identify Nicole’s parents as the sources of this information.

Another record — apparently authored by Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
993 F.2d 1525, 28 Fed. Cl. 1525, 1993 U.S. App. LEXIS 11216, 1993 WL 155624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-cucuras-and-maria-cucuras-parents-and-next-friends-of-nicole-cucuras-cafc-1993.