Lombardi v. Secretary of Health and Human Services

656 F.3d 1343, 2011 U.S. App. LEXIS 18488, 2011 WL 3890521
CourtCourt of Appeals for the Federal Circuit
DecidedSeptember 6, 2011
Docket2011-5004
StatusPublished
Cited by198 cases

This text of 656 F.3d 1343 (Lombardi v. Secretary 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
Lombardi v. Secretary of Health and Human Services, 656 F.3d 1343, 2011 U.S. App. LEXIS 18488, 2011 WL 3890521 (Fed. Cir. 2011).

Opinions

Opinion for the court filed by Circuit Judge LOURIE. Concurring opinion filed by Circuit Judge O’MALLEY.

LOURIE, Circuit Judge.

Cheryl Lombardi appeals from the decision of the United States Court of Federal Claims (“Claims Court”) affirming the decision of a special master denying compensation under the Vaccine Act for injuries that she alleged were a result of receiving hepatitis B vaccinations. Doe v. Sec’y of Dept. of Health & Human Servs., 94 Fed.Cl. 597 (2010) (“Claims Court Op.”). Because we agree with the Claims Court that the special master did not err in concluding that Lombardi failed to prove by a preponderance of the evidence that she suffered the alleged injuries, we affirm.

BACKGROUND

A. Facts of the Case

The facts in this case are mostly undisputed. Lombardi was born on October 17, 1946. She received the first dose of the hepatitis B vaccine on April 1, 1997, and the second dose on May 6, 1997. She suffered no immediate adverse reactions to those first two doses. On October 28, 1997, she received a third dose of the vaccine. Then, on November 9, 1997, Lombardi visited a hospital emergency room, complaining of right flank pain radi[1346]*1346ating into her right chest. Various tests were performed, but the evaluation failed to find a cause of her symptoms. She was discharged the same day with a diagnosis of atypical chest pain. Lombardi returned to the emergency room on November 14, 1997, once again complaining of right flank pain. The various tests that were performed on her during that visit also failed to detect any identifiable problems.

On January 15, 1998, Lombardi sought treatment from an internal medicine specialist, Dr. Michael Conaway. Records from that visit document Lombardi’s complaints of ongoing pain on her right side, as well as weakness and fatigue. Lombardi also informed Dr. Conaway that she had experienced a weight gain of 40 pounds in the past five years. Dr. Conaway reviewed the results of tests on blood drawn on January 13, 1998, which indicated that petitioner had a positive antinuclear antibody (“ANA”) rate. Dr. Conaway’s notes indicate that Lombardi had a chest X-ray that showed some pleural thickening and that he ordered additional tests to determine whether petitioner had systemic lupus erythematosus (“SLE”). Those notes also indicate that Lombardi had consulted Dr. Cordasco and was undergoing a workup for possible SLE.

In February 1998, Dr. Teresa George, a rheumatologist, evaluated Lombardi for possible SLE, but found nothing based on that examination. Instead, the doctor noted that Lombardi had a history of joint pain which was not associated with swelling. Dr. George wrote that Lombardi denied having any skin rashes, hair loss, photo-sensitivity, or changes in memory or concentration. Dr. George also noted a higher ANA rate, but found all other laboratory tests, including other serologies for diagnosing SLE, were normal. She suspected that Lombardi “probably had a positive ANA in the past,” and concluded that her right chest pain was of “unclear etiology” and that there was not “enough evidence for systemic lupus erythematosis [sic] or another autoimmune process at this time.”

In February and March 1998, Lombardi returned to Dr. Conaway three times with complaints of right-sided pain, nausea, and fatigue. After conducting a thorough workup, Dr. Conaway wrote that he was “really at a loss to explain both her pain and her fatigue at this point.” After Lombardi’s third visit, Dr. Conaway referred her to the Cleveland Clinic to obtain a more comprehensive diagnostic evaluation.

On March 16, 1998, Lombardi saw Dr. John Campbell, a preventative medicine specialist at the Cleveland Clinic. Dr. Campbell ordered blood tests, which revealed that Lombardi had a vitamin B12 deficiency and an elevated level of methyl-malonic acid. He directed her to have additional tests performed and to see a neurologist. A radiology report from that time indicates that Lombardi had decreased bone density, consistent with os-teopenia of her lumbar spine, and osteoporosis in her left hip. On one of the physical evaluation forms entitled “impressions,” Dr. Campbell’s notes state “post hepatitis B — fatigue,” followed by an illegible word. On April 9, 1998, Lombardi was examined by Dr. Patrick Sweeney, a neurologist at the Cleveland Clinic, and Dr. Ian Lavery in the colorectal surgery department. Dr. Lavery did not diagnose any problems and Dr. Sweeney was doubtful that Lombardi suffered from any neurologic problem, stating in his notes that he “doubt[ed] neuro disease.” Following her return from the other Cleveland Clinic physicians, Dr. Campbell summarized his findings, based on their evaluations, as “post vaccine syndrome.” Dr. Campbell’s recommendation to Lombardi was that she take B12 and follow up with her local physician.

[1347]*1347On April 23,1998, Dr. Conaway assessed Lombardi with chronic fatigue, expressing uncertainty as to whether the mild vitamin B12 deficiency could explain her symptoms. Lombardi reported that she could walk only for about ten minutes before becoming exhausted. Dr. Conaway also noted that Lombardi had “chronic right lateral rib cage pain,” but was unable to determine a cause of the pain. At the visit, Dr. Conaway referred Lombardi to Dr. Elizabeth Hurst for a psychological evaluation to investigate whether underlying depression or trauma could account for her symptoms. There is no record of Lombardi’s visit to Dr. Hurst.

On May 1, 1998, Lombardi returned to Dr. Conaway explaining that a friend had told her about a news report suggesting that hepatitis B vaccine could lead to chronic fatigue by causing rheumatologic problems. In his notes from that visit, Dr. Conaway was doubtful of that diagnosis, noting that the “fact that I have seen no objective signs of a rheumatologic condition and her [erythrocyte sedimentation] rate has always been normal combined with the fact that she has not responded in the past to [non-steroidal anti-inflammatory drugs] and/or steroids tend to push me away from that diagnosis.” Dr. Conaway did however indicate that he was “unsure what to make of her positive ANA.”

In July 1998, Lombardi saw Dr. Andrew Campbell, a specialist with experience evaluating chronic fatigue syndrome due to the hepatitis B vaccine. Dr. Campbell assessed her as having fatigue, chest pain, and polyneuropathy. On another visit a few weeks later, Dr. Campbell again diagnosed Lombardi as having fatigue and po-lyneuropathy. He added the diagnosis of an adverse reaction to a vaccine, and recommended a reassessment in 90 days. Dr. Campbell’s notes from another visit three weeks later stated that the decline in Lombardi’s health was a direct result of her hepatitis B vaccination. Later, in October 1998, Dr. Campbell indicated that she also suffered from high cholesterol and prescribed vitamins, including a vitamin B complex.

On October 6, 1998, Lombardi visited Dr. Albert Beraducci of Neurologic Associates, Inc., but there is no diagnosis from that visit in the record. On October 30, 1998, she saw Dr. Joseph Plouffe, an infectious disease specialist, who also found that specific antibodies to test for SLE were negative. Dr. Plouffe concluded that petitioner had a “[possible immunologic process of questionable etiology Hep B vaccine certainly possible.” Throughout 1999, Lombardi continued to see Dr. Andrew Campbell with little change in her condition. On September 24, 1999, petitioner again had a positive ANA test. In late 1999, following another positive ANA test, 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)
656 F.3d 1343, 2011 U.S. App. LEXIS 18488, 2011 WL 3890521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lombardi-v-secretary-of-health-and-human-services-cafc-2011.