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

28 Fed. Cl. 1, 1993 U.S. Claims LEXIS 281, 1993 WL 84488
CourtUnited States Court of Federal Claims
DecidedJanuary 29, 1993
DocketNo. 90-579V
StatusPublished
Cited by2 cases

This text of 28 Fed. Cl. 1 (McClendon 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
McClendon v. Secretary of the Department of Health & Human Services, 28 Fed. Cl. 1, 1993 U.S. Claims LEXIS 281, 1993 WL 84488 (uscfc 1993).

Opinion

OPINION

REGINALD W. GIBSON, Judge:

Introduction and Procedural History1

The petitioners, James and Elizabeth M. McClendon, are seeking relief under the National Childhood Vaccine Injury Act of 1986, codified and amended at 42 U.S.C.A. §§ 300aa-l, et seq. (West Supp.1992) (the Act) for injuries suffered by their daughter, Kristen McClendon. In this regard, the petitioners alleged that Kristen received a diphtheria, pertussis, and tetanus (DPT) vaccination on October 21, 1982, and that she suffered compensable injuries under the Act.

Initially this case was before Special Master Paul T. Baird for decision, which issued on March 8, 1991. That decision denied compensation to the petitioners because they purportedly failed to establish, by a preponderance of the evidence, the existence of either presumed causation under the vaccine injury table contained in 42 U.S.C.A. § 300aa-14 or actual causation of such injury. The question presented to the special master at that time was whether the petitioners proved the requisite causal relationship between the October 21, 1982 DPT vaccination and Kristen’s subsequent injuries. The petitioners asserted that they were entitled to compensation under the Act because Kristen was vaccinated with DPT, because an encephalopathy developed and a seizure occurred within 72 hours, and those injuries in turn caused a residual seizure disorder, mental retardation, and impaired development. Thus, they claimed that compensation was due on the basis of either a “table injury” or causation in fact. The respondent, on the other hand, averred that Kristen suffered a mixed-seizure disorder of cryptogenic etiology unrelated to the

DPT vaccine. On that basis, therefore, it argued that there was no table injury as well as no causation in fact.

Petitioners filed a motion for review of the special master’s finding of no compen-sable injury on April 4, 1991. We reviewed the special master’s decision to determine whether petitioners had established, by the requisite quantum of proof, the necessary causal relationship between the DPT vaccination and the injuries suffered by Kristen. After a thorough review of the special master’s decision, on May 21,1991, we remanded the petition for further consideration under §§ 300aa-12(e)(2)(C) for two reasons. First, we found that the special master failed to make all of the findings of fact and conclusions of law required by the eligibility rule stated in § 300aa-13(a), and that these omissions prevented us from conducting the effective § 300aa-12(e)(2) review of his report. Additionally, the special master had summarily dismissed the credibility of petitioners’ medical expert without detailing operative reasons therefor. Secondly, the special master decided this matter prior to the time that the Court of Appeals for the Federal Circuit (CAFC) issued its opinion in Bunting v. Secretary of the Department of Health and Human Services, 931 F.2d 867 (Fed.Cir.1991). We held that the criticality of that decision on this case required that the special master reconsider his evaluation of the expert medical testimony, as well as the entire record evidence adduced, in the context of Bunting. Thus, the court remanded the case to the special master to reconsider his findings and to clarify his reasoning for dismissing the testimony of petitioners’ medical expert.

On July 3, 1991, the special master issued his responsive remand decision, which again denied compensation on the merits. The petitioners, thereafter, on July 26, 1991, renewed their previously-filed objections. The special master’s second decision was largely a reiteration of the first. On September 25, 1991, we issued a decision, [3]*3in response to petitioners’ objections, finding that the special master’s July 3, 1991 decision was arbitrary, capricious, and contrary to the law. Consequently, we reversed the special master’s decision and remanded the case for further proceedings solely on the question of entitlement to damages. 24 Cl.Ct. 329.

On September 8,1992, the special master issued his decision with regard to entitlement to damages. In that decision, inter alia, “[t]he special master found that there was justification for private schooling and speech therapy because of Kristen’s peculiar needs with respect to sleep.” McClen-don v. Secretary of the Department of Health and Human Services, No. 90-579V (September 8, 1992) (emphasis added).

Respondent, in opposition, filed a Motion for Review and Memorandum of Objections on October 8, 1992, of the special master’s award of compensation for educational needs, alleging that the Individuals With Disabilities Education Act (IDEA) provides for educational services for all disabled children and that, because the Vaccine Act is intended to be a secondary source of compensation for education, such compensation should not be awarded under the Vaccine Act in light of this “state compensation program.”

Petitioners, in turn, filed their Response To Motion For Review and Memorandum of Objections on November 9, 1992. Therein, they presented authority to support their position that the general services contemplated by the IDEA are not a reasonable and responsive substitute for the more specific needs of Kristen as contemplated by the special master’s award of education and speech therapy compensation. We find that both the Vaccine Act and the relevant case law indicate that our standard of review of factual findings, legal conclusions, and statutory interpretation of the Act is highly deferential. That is to say, such conclusions may be overturned only where they are found to be unreasonable and unmistakenly clearly erroneous. The special master has interpreted the Vaccine Act, specifically 42 U.S.C.A. § 300aa-15(g), to place the burden on the respondent to prove, as an affirmative defense, that petitioners’ needs would be met by a state compensation program. Against this background, he has found that respondent has failed to meet that burden. We do not find the special master’s conclusions to be unreasonable or clearly erroneous. The court is inclined, on this record, to agree with the special master’s findings, and we, therefore, AFFIRM his award of monetary compensation to petitioners for purposes of private schooling and speech therapy.

Contentions of the Parties

Respondent

Respondent makes three contentions. First, it alleges that the court should not afford the same weight to conclusions of law made by the special master as the weight it affords conclusions of fact. Further, respondent alleges that questions of law are subject to de novo review. Next, it takes the position that the special master erred, as a matter of law, in providing compensation for special education where the State of Mississippi has assumed that responsibility under the IDEA. Respondent highlights § 300aa-15(g) of the Vaccine Act for the proposition that the government is not “primarily liable” for injury compensation under the Act. In other words, it argues that said Act provides that where a “state compensation program” exists which would provide the same relief to the petitioners as that to which they are entitled in view of vaccine injury, the Act does not permit compensation thereunder to the extent that it overlaps entitlement to compensation from such other source. Alleging that our prior decision in Stotts v.

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28 Fed. Cl. 1, 1993 U.S. Claims LEXIS 281, 1993 WL 84488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclendon-v-secretary-of-the-department-of-health-human-services-uscfc-1993.