Lankford v. Secretary of Health & Human Services

37 Fed. Cl. 723, 1996 U.S. Claims LEXIS 222, 1997 WL 220349
CourtUnited States Court of Federal Claims
DecidedDecember 3, 1996
DocketNo. 90-2941 V
StatusPublished
Cited by5 cases

This text of 37 Fed. Cl. 723 (Lankford 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
Lankford v. Secretary of Health & Human Services, 37 Fed. Cl. 723, 1996 U.S. Claims LEXIS 222, 1997 WL 220349 (uscfc 1996).

Opinion

ORDER AFFIRMING DECISION OF SPECIAL MASTER

WIESE, Judge.

This case comes before the court on petitioners’ appeal of a decision by the special master, entered July 24, 1996, denying compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-[724]*7241 to 34 et seq. (1994) (“Vaccine Act”) for an alleged vaccine-caused encephalopathy that culminated in the death of Justin Travis Lankford, petitioners’ infant son, less than twenty-four hours after his receipt of a diphtheria, pertussis, tetanus (DPT) inoculation.

The special master’s decision denying compensation rested on essentially two grounds. First, that petitioners’ recollection of Justin’s reaction to the DPT vaccine, as recounted in their trial testimony, described a more acute clinical response than the contemporary evidence would suggest actually had been the case. Second, that even if one were to accept, at face value, petitioners’ testimony regarding Justin’s post-vaccinal symptoms, that evidence, properly assessed, would not support the finding of a reduced level of consciousness indicative of an encephalopathy.

Petitioners challenge both branches of the decision on grounds of arbitrariness. They ask that we vacate the decision and enter our own findings in their favor or, alternatively, remand the matter to the special master for further consideration. Respondent opposes petitioners’ motion and asks that the decision be affirmed. The parties have briefed the issues and oral argument was heard on November 21, 1996. At the conclusion of the argument, the court announced its decision in respondent’s favor. We restate here the basis for our ruling.

I

The Background Facts:

Justin Lankford received his first DPT vaccine in the mid-morning of February 24, 1987. According to petitioners’ testimony, Justin cried vigorously at the time of the injection. However, the crying lasted only a few minutes. Then, in the hours that followed, Justin developed a fever that reached 101.5° Fahrenheit and his behavior became quite subdued. Specifically, his appetite diminished, he slept more than usual — drifting back and forth between sleep and wakefulness — and he was difficult to arouse. The testimony also brought out that, in addition to lacking his usual vigor, Justin’s coloring paled, his eyes became dull, and he seemed tired.

Early in the afternoon of the same day, Justin’s mother telephoned the pediatrician’s office to ask whether, in light of Justin’s state of health, it would be prudent to permit Justin to accompany her while she completed several errands by automobile. Although this telephone conversation included mention of Justin’s physical condition, the concern that chiefly prompted the mother’s call was the localized swelling that had appeared at the injection site. As she put it: “my concern then was the knot that was on his leg from the injection shot.”

In response to her inquiry, Justin’s mother was told that the symptoms she had described were not unusual and, provided Justin’s temperature did not rise above 103° Fahrenheit, would not preclude his being taken along in the automobile while she performed her tasks. Based on this advice, Justin and his mother completed several errands together, including a visit to her place of employment (to obtain certain tax forms), a visit to Mr. Lankford’s place of employment (to provide him a ride home) and, in the early evening, — now accompanied by Mr. Lankford — -a stop-over at a local restaurant for an evening meal.

The evening hours saw little change in Justin’s condition. He continued to drift into periods of sleep and he remained generally unresponsive to his surroundings. He was placed in his crib around one o’clock in the morning and, when last cheeked — roughly one hour later — was asleep, lying in the same position in which his father had placed him. At six o’clock that same morning, Justin was found dead in his crib.

The emergency center treatment record (at the hospital to which Justin was taken) reflects Justin’s receipt of a DPT vaccine on February 24, 1987, describes his condition as being “O.K.” at 2:00 A.M., and ascribes his death to unknown causes, i.e., it is recorded as a SIDS (sudden infant death syndrome) death.

The Medical Experts’ Opinions:

The facts recounted above provided the basis for the opinion testimony of the two medical experts who appeared in this case to offer their assessments concerning the likeli[725]*725hood that Justin had suffered a vaccine-related encephalopathy that led to his death. The first expert, Dr. Marcel Kinsbourne, a pediatric neurologist testifying on behalf of petitioners, expressed the opinion that Justin’s clinical signs — notably, the increase in sleep, the inactivity and unresponsiveness while awake, the limpness in body tone and the loss of color — were suggestive of a lowered level of consciousness indicative of an enee-phalopathie process.

Important to this diagnosis was Dr. Kins-bourne’s belief that drowsiness of the sort manifested by Justin is typically associated with children whose reaction to a DPT vaccine includes extensive crying. Them drowsiness, in other words, is usually brought on by fatigue. Since Justin, however, had cried for only a short while, it was Dr. Kinsbourne’s opinion that Justin’s drowsiness was symptomatic of injury, i.e., was indicative of a reduced level of consciousness resulting from an encephalopathy. Thus, Justin’s clinical signs, when taken together with the death that followed shortly after their onset, led Dr. Kinsbourne to conclude that it was more likely than not that Justin’s death was a complication or a sequela of an encephalopathy resulting from the DPT vaccine.

A contrary diagnosis was offered by respondent’s expert, Dr. John Malmstrom, a specialist in child neurology. Dr. Malm-strom’s opinion was that Justin’s clinical manifestations, while clearly relatable to the administration of the DPT vaccine, were, at the same time, no more pronounced in severity than the adverse systemic reactions typically encountered in the administration of that vaccine. Significantly, Dr. Malmstrom disagreed with Dr. Kinsbourne’s premise that Justin’s drowsiness should be differentiated from the ordinary case because it was not associated with a period of prolonged crying. Dr. Malmstrom’s testimony brought out that uncharacteristic crying occurred in only 5 percent of the cases involving DPT reactions while drowsiness occurred in 58 percent of such cases. In other words, drow-

siness appeared more commonly without prolonged crying.

II

As noted at the outset, the special master saw this case as involving the resolution of two basic issues. First, determining the probative worth of petitioners’ testimony, given not only the special difficulties inherent in the accurate recall and description of clinical details that had taken place many years earlier, but also the possibility of a psychological impediment to objectivity flowing from their personal involvement in the tragedy being recounted. Second, determining which of two opposing expert opinions, each reflecting the judgment of a well-qualified medical specialist, offered the more probable explanation of the cause of Justin’s death. Petitioners seek our review of the special master’s disposition of both of these issues.1

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37 Fed. Cl. 723, 1996 U.S. Claims LEXIS 222, 1997 WL 220349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lankford-v-secretary-of-health-human-services-uscfc-1996.