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

22 Cl. Ct. 75, 1990 WL 191524
CourtUnited States Court of Claims
DecidedNovember 19, 1990
DocketNo. 88-30V
StatusPublished
Cited by25 cases

This text of 22 Cl. Ct. 75 (Johnston v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. Secretary of the Department of Health & Human Services, 22 Cl. Ct. 75, 1990 WL 191524 (cc 1990).

Opinion

OPINION1

HODGES, Judge.

This case is before the court on respondent’s motion for review. Special Master George L. Hastings, Jr., has determined that the petitioner Antonia Johnston, as parent and natural guardian for Jason Johnston, is entitled to recover compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l-300aa-34 (Supp. V 1987), as amended by several public laws codified in 42 U.S.C.A. §§ 300aa-l-300aa-34 (West Supp.1990) (the Act).

Respondent contends that the special master’s findings of fact and conclusions of law were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Oral argument was held on September 6, 1990. For the reasons discussed herein, the decision of the special master is SUSTAINED.

FACTS

Jason Johnston was born to petitioner Antonia L. Johnston on August 15, 1982. He apparently was bom healthy. On Octo[76]*76ber 22, 1982, Jason was given his first “DTP” (diptheria, tetanus, pertussis) immunization by Dr. Richard Bayles. On December 17, Dr. Bayles gave Jason his second DTP vaccination.

On December 31, 1982, Jason was admitted to Children’s Hospital of Michigan. At various times between his first vaccination and his admission into the hospital, Jason exhibited quick jerking movements, spasms, excessive crying, repeated diarrhea, and vomiting. The jerking motions from which he had been suffering were labeled “infantile spasms” and “myoclonic seizures.” He stayed at the hospital for eight days.

On October 7, 1988, petitioner filed an action for compensation pursuant to the Act. The special master held several evidentiary hearings. Testimony showed that Jason suffered from a seizure disorder and encephalopathy. Respondent withdrew pri- or to these hearings and participated after-wards only to the extent of filing a document entitled “VICB Medical Review” (Review). This was the only evidence or argument submitted by the respondent to the special master.

Special Master Hastings issued a decision on May 21, 1990. He found that Jason’s injury was seizure disorder and encephalopathy, and that his symptoms occurred within three days of his first immunization. He found that an aggravation of Jason’s seizure disorder and encephalopathy occurred within three days of his second vaccination.

The special master also ruled that Jason’s condition was a Vaccine Table Injury (Table Injury) pursuant to section 300aa-14(a). He found the Table Injury occurred within three days of the vaccine and it was not “due to factors unrelated to the administration of the vaccine” as defined in section 300aa-13(a)(l)(B).

DISCUSSION

1. Standard of Review

The Act provides that upon review of a special master’s decision, the court may:

(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision,
(B) set aside any findings of fact or conclusions of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the court’s direction.

42 U.S.C.A. § 300aa-12(e)(2).

The arbitrary and capricious standard is a narrow one. “To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (citations omitted); see also Hyundai Elecs. Indus. Co. v. ITC, 899 F.2d 1204, 1209 (Fed.Cir.1990) (touchstone of the arbitrary, capricious, and abuse of discretion standard is rationality; upon consideration of relevant factors and no clear errors of judgment, the decision should be affirmed).

2. The Act

To come within the Act, petitioner must show by a preponderance of the evidence that he sustained a Table Injury and suffered symptoms of that injury within three days, in the case of DTP vaccine. At that point, the special master must determine that the injury was not caused by factors unrelated to the vaccine. 42 U.S.C.A. § 300aa-13(a)(l)(B). The unrelated cause must be a real, known, accepted condition. 42 U.S.C.A. § 300aa-13(a)(2)(A). That is, to deny compensation to petitioner for a Table Injury, the special master must determine with some degree of certainty an alternative cause of petitioner’s injury.

The Act and its legislative history indicate a tilt in favor of the petitioner. The petitioner’s duty is to establish the seven factors of section 300aa-ll(c)(l), including the timing of the first symptom, and to substantiate his case with medical records [77]*77or medical opinions. 42 U.S.C.A. § 300aa-13(a). At that point, the special master determines whether the injury was caused by some other problem. 42 U.S. C.A. § 300aa-13(a)(l)(B).

Doubt is resolved in favor of the petitioner. “[Ajwards can be made to vaccine-injured persons quickly, easily, and with certainty and generosity.” H.R.REP. NO. 908, 99th Cong., 2nd Sess., pt. 1, at 3 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 6287, 6344. “The system is intended to be expeditious and fair. It is also intended to compensate persons with recognized vaccine injuries without requiring the difficult individual determinations of causation____” H.R.REP. NO. 908, 99th Cong., 2nd Sess., pt. 1, at 12 (1986), reprinted in 1986 U.S.Code Cong. & Admin. News 6344, 6353.

An important issue in this case is whether a “factor unrelated to the administration of the vaccine” caused the injury. If the special master finds that petitioner’s injuries were due to a provable cause which is unrelated to the vaccine, the injury is not compensable. A factor unrelated may not be an unknown or unexplained factor. If an alternative cause for the injury cannot be proved, petitioner recovers. This is the “tilt” to the petitioner which features this statute.

3. Factual Record

The factual record is weak in some respects. The VICB Medical Review offered by the respondent makes several significant assertions, yet there are no references or explanations. For example, the Review states that petitioner’s infantile spasms preceded the immunization. This would be very important to the case. However, other statements indicate that the writers perhaps were aware only of the second vaccination.

There was an implication in the Review that important medical information was withheld. This was said by the doctors who wrote the Review to be important, and it would be. Yet, this was not mentioned at oral argument or otherwise by respondent.

Respondent’s VICB Medical Review states that encephalopathy “did not occur.” As used in the Act, encephalopathy means “any significant acquired abnormality ... or impairment of function of the brain.” 42 U.S.C.A. § 300aa-14(b)(3)(A).

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Cite This Page — Counsel Stack

Bluebook (online)
22 Cl. Ct. 75, 1990 WL 191524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-secretary-of-the-department-of-health-human-services-cc-1990.