Mills v. Secretary of the Department of Health & Human Service

27 Fed. Cl. 573, 1993 U.S. Claims LEXIS 349, 1993 WL 30938
CourtUnited States Court of Federal Claims
DecidedJanuary 26, 1993
DocketNo. 90-460V
StatusPublished
Cited by11 cases

This text of 27 Fed. Cl. 573 (Mills v. Secretary of the Department of Health & Human Service) 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
Mills v. Secretary of the Department of Health & Human Service, 27 Fed. Cl. 573, 1993 U.S. Claims LEXIS 349, 1993 WL 30938 (uscfc 1993).

Opinion

OPINION

ROBINSON, Judge:

This matter was previously remanded to the special master to consider additional testimony from petitioner Larry Mills. In an addendum decision issued on February 20, 1992, Special Master Elizabeth Wright affirmed her earlier opinion that petitioners failed to demonstrate by a preponderance of the evidence that Kelly Ann Mills suffered an encephalopathy, hypotonic-hyporesponsive episode (“HHE” or “shock collapse”), and residual seizure disorder within three days of the administration of a diphtheria-tetanus-pertussis-polio (DTPP) vaccination on August 5, 1975. Petitioners move this court, pursuant to 42 U.S.C. § 300aa-12(e)(2), to find Special Master Wright’s decision arbitrary and capricious.

Procedural Background

On May 30, 1990, petitioners filed an application for compensation under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or the “Act”), 42 U.S.C. §§ 300aa-34 (1988), amended by several public laws (codified as amended at 42 U.S.C.A. §§ 300aa-1 to -300aa-34 (West Supp.1992)). On January 9, 1991, Special Master Wright presided over an evidentiary hearing on this matter. She allowed Mr. Mills, Kelly’s father, to testify, but limited his testimony, excluding that which was merely cumulative of the testimony of Kelly’s mother, Mary Ann Mills.1 Subsequently, the special master conducted a continuation of the hearing, during which Dr. Ruth Atlas testified on behalf of petitioners, and Dr. Carter Snead testified on behalf of respondent.

After considering the evidence and testimony, Special Master Wright held that petitioners were not entitled to compensation, reasoning that they had failed to establish by a preponderance of evidence that Kelly sustained an encephalopathy, shock collapse, or residual seizure disorder within three days of the administration of the DTPP on August 5, 1975.

On July 8, 1991, petitioners moved the special master to reconsider her findings and conclusions. Alternatively, petitioners moved this court to review the special master’s findings and conclusions. On December 9, 1991, this court granted petitioners’ motion for review, ordering that Mr. Mills be allowed an opportunity to further testify about the events surrounding Kelly’s injuries and tragic death.

On January 6, 1992, a second hearing was conducted by Special Master Wright, during which she heard additional testimony from Mr. Mills. On February 20, 1992, the special master filed her addendum decision on remand, affirming her prior denial of petitioners’ claim. On August 20, 1992, this court entered an order allowing petitioners to file a supplemental motion for review, limited to consideration of Mr. Mills testimony from the January 6, 1992, proceeding and the special master’s evaluation [575]*575of such testimony in relation to the evidence already in the record. In light of the supplemental record, this court holds that Special Master Wright’s findings and conclusions in her addendum decision are neither arbitrary nor capricious, and that Mr. Mills’s additional testimony fails to upset the special master’s original conclusion that respondent should not bear liability for petitioners’ dire loss.

Factual Background 2

During the limited evidentiary proceeding conducted on January 6,1992, Mr. Mills related the following:

Mr. Mills had a professional relationship with Dr. Johnson, the pediatrician who cared for Kelly. Dr. Johnson told him that Kelly was a normal child at birth. R.T. of January 6, 1991, at 386.3 In that regard, Mr. Mills denied knowing about the shivering episodes that occurred shortly after Kelly’s birth, or that Kelly’s physicians believed phenobarbital, an anti-convulsant, should have been considered for Kelly. R.T. at 388-89.

Mr. Mills further stated that, between June 1975 and August 5, 1975, Kelly was healthy and was never treated by a physician. R.T. at 392-95. On August 5, 1975, the date Kelly received her DTPP vaccination, Mr. Mills returned home from work between 5:30 and 6:00 p.m. to find Kelly thrashing violently and crying uncontrollably. He described her crying as high pitched, as if she were in pain. R.T. at 396-97. She was very active with her arms and legs, and would “somewhat tighten up” as if she were straining with a bowel movement; these movements culminated in Kelly arching her back. R.T. at 397. Mr. Mills had never seen her react this way. He estimated that this distressing behavior continued for a period of five hours. R.T. at 398.

At some point, Mr. and Mrs. Mills determined that Kelly also had a fever. As a result, Mrs. Mills called Dr. Johnson, who told her to take Kelly to the emergency room if the crying did not cease within an hour or so. R.T. at 402. A short time after having been given Tylenol, Kelly stopped crying and went to sleep. R.T. at 403-04. Mr. Mills stated that neither he nor his wife noticed any change in Kelly’s pallor, given the darkness of her bedroom; a noticeable change in pallor is one of the most striking signs of shock collapse. R.T. at 404.

Kelly was still sleeping when Mr. Mills left for work the next morning. Later, Mrs. Mills informed him by telephone that Kelly was inactive and uninterested in eating. R.T. at 405. That night Mr. Mills observed Kelly’s inactivity and unresponsiveness. R.T. at 406. He recalled that she made no eye contact that evening. Id.

A day or so later, Mrs. Mills went out in the evening for 45 minutes while Mr. Mills watched Kelly. During this period, Mr. Mills stated that he saw Kelly’s eyes twitch for the first time. R.T. at 410. Mr. Mills stressed that he has an excellent memory, which is why he could remember the date of onset of Kelly’s eye-twitching. Id.

Mrs. Mills took Kelly to see Dr. Johnson on August 9, 1975. Dr. Johnson treated Kelly for thrush. Mr. Mills was not present; therefore, he could not relate whether his wife told the doctor of the eye-twitching he observed previously. Mr. Mills stated further that sometime after the 9th of August, Kelly’s eye-twitching progressively worsened. R.T. at 410-11.

On August 15 or 16, 1975, Mr. Mills observed, for the first time, Kelly experience a full-blown seizure. Kelly suddenly raised her arms, stiffened her legs, and cried with her chin quivering. Mr. Mills stated that he was certain of the date, give or take one or two days. R.T. at 420. He later admitted, however, that “what I know now or have subsequently observed as a much more involved and recognized seizure with all of the things including the eye [576]*576rolling, was between August 20 and August 29.” R.T. at 440-41. This admission corresponds with Dr. Johnson’s records of August 20, 1975, mentioning only — and for the first time — that Kelly was experiencing twitching of her eyes.

Both petitioners’ experts and respondent’s experts agreed during the proceedings before the special master that the onset of Kelly’s seizures was the crucial event in determining when Kelly’s encephalopathy and seizure disorder began. Petitioners’ expert, Dr.

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Bluebook (online)
27 Fed. Cl. 573, 1993 U.S. Claims LEXIS 349, 1993 WL 30938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-secretary-of-the-department-of-health-human-service-uscfc-1993.