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

63 Fed. Cl. 482, 2004 U.S. Claims LEXIS 333, 2004 WL 3154926
CourtUnited States Court of Federal Claims
DecidedNovember 24, 2004
DocketNo. 99-628V
StatusPublished
Cited by19 cases

This text of 63 Fed. Cl. 482 (Manville v. Secretary of the Department 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
Manville v. Secretary of the Department of Health & Human Services, 63 Fed. Cl. 482, 2004 U.S. Claims LEXIS 333, 2004 WL 3154926 (uscfc 2004).

Opinion

OPINION

CHRISTINE ODELL COOK MILLER, Judge.

This matter is before the court after argu[483]*483ment on petitioner’s1 challenge to the denial of compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.A. §§ 300aa-10 to 34 (West 2003 & Supp.2004) (the “Vaccine Program”). Petitioner argues that the chief special master’s finding that the hepatitis B vaccine did not cause her rheumatoid arthritis (“RA”) was arbitrary, constituted an abuse of discretion, and was not in accordance with the law. See 42 U.S.C. § 300aa-12(e)(2)(B). Her three objections are that the use of an analytical construct was an abuse of discretion and not in accordance with the law, that the failure to consider the opinions of petitioner’s treating physicians was arbitrary and an abuse of discretion, and that the rejection of relevant Vaccine Adverse Event Reporting System (“VAERS”)2 reports was arbitrary and an abuse of discretion.

FACTS

Congress enacted the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, 100 Stat. 3756, now codified at 42 U.S.C. §§ 300aa-l to 34 (the “Vaccine Act”), “in response to worries about the safety of currently licensed childhood vaccines and in response to the economic pressures that were threatening the integrity of childhood immunization programs.” Inst, of Medicine, Adverse Events Associated with Childhood Vaccines 2 (Kathleen R. Stratton et al. eds., 1994) (hereinafter “Adverse Events”). The Vaccine Program comprises Part 2 of the Vaccine Act and was established as a no-fault compensation program so that litigation costs associated with vaccine claims did not continue to harm the research, development, and production of vaccines by companies defending against litigation brought by or on behalf of those harmed by vaccines, id. Hence, the Act and Program were created to lessen manufacturer liability so that research and development of vaccines would not be impeded. The Vaccine Program is administered by the Federal Government and is funded through an excise tax on vaccines under the Program. Id.

1. Background

The facts found by Chief Special Master Gary J. GolMewicz, as confirmed by this court’s independent examination of the record, follow.3 See 42 U.S.C. § 300aa-[484]*48412(e)(2)(B) (granting Court of Federal Claims jurisdiction to review decisions of special masters and then set aside any findings of fact or conclusions of law found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law).

Nancy Manville (“petitioner”)4 received hepatitis B vaccinations on June 23, 1992, August 11, 1992, and March 9, 1993. After the second vaccination, petitioner experienced pain, swelling, and redness in her hands and feet, which she temporally linked to the August vaccination. To alleviate this pain, including pain in her ankles, petitioner eventually consulted a sports massage therapist on October 30,1992. Although the massage treatment temporarily relieved the pain, petitioner’s symptoms reoccurred several days after her visit to the therapist. In addition to these symptoms, petitioner experienced fatigue, malaise, and difficulties in working at her job due to pain in her hands and wrists and with walking. Petitioner eventually pursued further medical evaluation on March 22, 1993, when she visited Dr. Edward Cutshaw and complained of severe swelling and pain in her left wrist and chronic pain and swelling in various joints. Dr. Cutshaw prescribed Hiprex for petitioner’s burning arthralgia. However, petitioner still continued to have pain and swelling in her hands and wrists, along with difficulty walking. Petitioner returned to Dr. Cutshaw on June 15, 1994, complaining of severe pain in her shoulders, arms, wrists, and hands. Dr. Cutshaw ordered various tests and an RA profile, and during an October 20, 1994 visit, he diagnosed petitioner with RA. Dr. Cutshaw advised petitioner to limit her intake of ibuprofen and placed her on steroids Methotrexate and Prednisone. At an October 27, 1994 examination, Dr. Cutshaw attributed Prednisone to an improvement in petitioner’s condition.

Petitioner continued to see Dr. Cutshaw until March 22, 1995. Overall, Dr. Cutshaw indicated petitioner’s improvement in these visits. On November 28, 1994, he noted a “marked improvement” in her arthritic pain; on December 5, 1994, he recorded that her arthritic pain was subsiding, although she was still taking five milligrams daily of Prednisone, and increased her dosage of Methotrexate; on December 12, 1994, he reported significant improvement in petitioner’s arthritis since the increase of the Methotrexate and her condition as “active and ambulating,” with her major problems occurring at night and in the morning, when she was stiff and experienced more pain; on January 4, 1995, Dr. Cutshaw noted that petitioner was experiencing more pain with her RA, possibly due to the weather or a decrease in her Prednisone dosage and that her joints were still swollen and painful; on February 1, 1995, Dr. Cutshaw wrote that petitioner was “definitely in remission” and that the Methotrexate “seems to be doing an excellent job in controlling” the RA symptoms; and on March 22, 1995, he noted that petitioner had been doing well over the past few months, but that her RA had worsened recently after she discontinued use of the Prednisone, which she subsequently resumed. After the March 22, 1995 visit, petitioner did not return to Dr. Cutshaw until January 22, 1998.

In the meantime, petitioner was examined by Dr. John Lisse, a rheumatologist, on April 19, 1995. Although Dr. Lisse noted petitioner’s RA; that the pain included her knees, ankles, wrists, elbows, and shoulders; and that petitioner had told him the symptoms developed after her second hepatitis B shot, Dr. Lisse’s report is unremarkable in that it does not reflect any correlation between the vaccination and petitioner’s RA.

When petitioner returned to Dr. Cutshaw on January 22,1998, he reported her relative success in the use of Ibuprofen and Tylenol in place of Prednisone, Plaquenil, and Methotrexate. He also noted pain and swelling in petitioner’s hands, shoulders, and knees, and the initial signs of deformity in her hands. Finally, Dr. Cutshaw expressed concern for petitioner’s risk of osteoporosis. The thrust of Dr. Cutshaw’s report, however, only continues the recitation of petitioner’s pain and injuries; it does not connect them with her receipt of the hepatitis B vaccination.

Petitioner saw another rheumatologist, Dr. Roger Porter, on November 12, 1998. Dr. [485]*485Porter’s report described petitioner’s medical history with regard to RA and treatment options. Although it is true, as petitioner’s brief indicates, that petitioner and Dr. Porter “discussed the possible role of the hepatitis B vaccine in her RA[,]” Pet.’s Br. filed Aug. 9, 2004, at 5, petitioner’s limited description of this discussion fails to note Dr.

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Bluebook (online)
63 Fed. Cl. 482, 2004 U.S. Claims LEXIS 333, 2004 WL 3154926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manville-v-secretary-of-the-department-of-health-human-services-uscfc-2004.