Nilson v. Secretary of Health & Human Services

69 Fed. Cl. 678, 2006 U.S. Claims LEXIS 54, 2006 WL 465850
CourtUnited States Court of Federal Claims
DecidedFebruary 7, 2006
DocketNo. 98-797V
StatusPublished
Cited by5 cases

This text of 69 Fed. Cl. 678 (Nilson 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.

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Nilson v. Secretary of Health & Human Services, 69 Fed. Cl. 678, 2006 U.S. Claims LEXIS 54, 2006 WL 465850 (uscfc 2006).

Opinion

OPINION

HODGES, Judge.

Joey Nilson died on October 19, 1996 following the administration of three childhood vaccines on October 11. His father filed a claim under the National Childhood Vaccine Injury Act of 1986. See 42 U.S.C. §§ 300aa-10 to-34. He argued that his son’s medical problems were Table injuries under the Act; or that the vaccines were the eause-in-faet of Joey’s death. The special master ruled against petitioner on both counts.1 See Nil-[679]*679son v. HHS, No. 98-797V, slip op. (Fed.Cl.Spec.Mstr. Aug. 31, 2005). She stated,

[ajfter reviewing the medical records, petitioner’s affidavits, and medical literature, and weighing the testimony of the two expert witnesses, the special master finds that petitioner failed to carry his burden of proving by a preponderance of the evidence that Joey suffered a Table injury or that Joey’s collapse and death were caused in fact by any one or a combination of the vaccines he received on October 11, 1996. The testimony of respondent’s expert convinced the special master by a preponderance of evidence that Joey’s encephalopathy was caused by a factor unrelated to the vaccine.

Nilson, No. 98-797V at 2. She concluded, “Joey did not suffer a Table injury. Dr. Wiznitzer’s testimony clearly showed that Joey’s encephalopathy was caused by a metabolic disturbance and therefore, pursuant to the clear terms of the Vaccine Act, the encephalopathy cannot be considered to be a Table injury.” Nilson, No. 98-797V at 32.

The special master’s Opinion describes in careful detail why she ruled as she did on medical and scientific matters that were the subjects of expert testimony. Her findings of fact and conclusions of law support the ruling in this case, and they are well supported by the record. The special master did not abuse her discretion; we affirm the ruling on review.

BACKGROUND

Petitioner’s son Joey Nilson was born on September 7,1991. He began suffering from asthmatic bronchitis at the age of three. This condition required medical treatment and frequent visits to the emergency room with severe asthma attacks. On one occasion, Joey experienced a seizure and slipped into a coma. Doctors did not determine the cause of the seizure and the coma, but he recovered fully.

Joey received a Diphtheria vaccine (DPT) on October 11, 1996, along with Measles (MMR) and Polio vaccines the same day. On the way home from the playground the next. day, his hands and face turned blue and he collapsed. He did not have a pulse and was not breathing when the paramedics arrived minutes later. The attending physician at the hospital made an initial assessment of Joey’s condition and transferred him to the Pediatric Intensive Care Unit at McKennan Hospital. He never regained consciousness. When doctors at McKennan determined that Joey was brain dead, they took him off life support with the family’s consent. Joey died on October 19,1996.

Dr. Nancy L. Carroll was the attending physician in the Pediatric Intensive Care Unit where Joey was treated. She noted in his medical records that the “probable cause of death was ‘severe acute bronchospasm leading to respiratory and cardiac arrest.’ ” Nilson, No. 98-797 at 10. The family agreed to a limited autopsy, which was performed by Dr. Alfred E. Hartman. Dr. Hartman ruled that asthmatic bronchitis caused the cardiopulmonary arrest that led to Joey’s death.

The special master found that Joey’s attack of asthmatic bronchitis caused the cardiopulmonary arrest that brought about the encephalopathy. An encephalopathy occurring within three days of a DPT vaccination indicates a Table injury. Encephalopathy must last twenty-four hours and be characterized by at least two of the following symptoms: a significant change in mental state, a decreased level of consciousness, or seizures associated with loss of consciousness. 42 C.F.R. § 100.3(b)(2). Joey lost consciousness the day after he was vaccinated and remained unconscious until his death. The Government stipulates that Joey’s cardiores-piratory arrest and subsequent coma constituted an encephalopathy. Nilson, No. 98-797V at 23-24. It argues, however, that an asthma attack — not the vaccines — caused the cardiac arrest that preceded the encephalopathy.

The special master ruled that Joey’s encephalopathy was caused by factors unrelated to the vaccines. Petitioner’s appeal concerns the weight accorded respondent’s expert medical witness by the special master, and respondent’s burden of proof in a Table inju[680]*680ry case where the Government attempts to show a cause independent of vaccines.

STANDARD OF REVIEW

The special master has broad discretion to weigh evidence and to assess witnesses’ credibility. Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed.Cir.1993). This court will set aside the special master’s decision only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ____” 42 U.S.C. § 300aa-12(e)(2)(B). We do not substitute the court’s own judgment for that of the special master absent extraordinary circumstances. See, e.g. Hines on Behalf of Sevier v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed.Cir.1991) (“[Rjeversible error [is] extremely difficult to demonstrate.”); see also Finley ex rel. v. Sec’y of Health & Human Servs., 55 Fed.Cl. 355, 360 (2003) (“[T]his court will not reverse the decision of a special master unless the special master failed to consider relevant evidence, drew implausible inferences, or failed to state a rational basis for the decision.”). The special master’s decision will be upheld so long as it rests upon a rational basis. See Hines, 940 F.2d at 1528.

Petitioner claims that his son’s encephalopathy was caused by the vaccinations he received on October 11, 1996. He contends that the special master’s rulings to the contrary were “arbitrary, capricious, an abuse of discretion, and not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B).

One issue of concern in this case upon review has been whether the Government attempted to shift its burden of proving that “factors unrelated” to the vaccine caused the encephalopathy. A government expert testified that the cause of Joey’s cardiac arrest leading to encephalopathy was “immaterial.” That is, respondent must establish only that cardiac arrest led to encephalopathy.

Petitioner urges that (1) the Government must prove the cause of the cardiac arrest in a Table injury case, not merely the cause of the encephalopathy; and (2) the Government must prove the exact cause of the cardiac arrest, not alternative possibilities.

BURDEN OF PROOF

A petitioner is entitled to a presumption of causation under the Vaccine Act if he can demonstrate that a Table injury occurred. 42 U.S.C.

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69 Fed. Cl. 678, 2006 U.S. Claims LEXIS 54, 2006 WL 465850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nilson-v-secretary-of-health-human-services-uscfc-2006.