Nordwall v. Secretary of Health & Human Services

83 Fed. Cl. 477, 2008 U.S. Claims LEXIS 382, 2008 WL 4111406
CourtUnited States Court of Federal Claims
DecidedAugust 14, 2008
DocketNo. 05-123V
StatusPublished
Cited by16 cases

This text of 83 Fed. Cl. 477 (Nordwall 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.

Bluebook
Nordwall v. Secretary of Health & Human Services, 83 Fed. Cl. 477, 2008 U.S. Claims LEXIS 382, 2008 WL 4111406 (uscfc 2008).

Opinion

MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Petitioner Jody L. Nordwall has moved for review of Special Master Christian J. Moran’s decision denying her, as next of kin to Mateo “Mat” Tori, compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (the “Vaccine Act”), and directing that judgment be entered for respondent, the Secretary of the Department of Health and Human Services. Petitioner alleges that a diptheriatetanus-pertussis (DTaP) vaccine received by her son, Mat, on the afternoon of January 17, 2003, caused his death the following morning. She raises several objections to the Special Master’s decision. These objections concern the finding by the Special Master that respondent’s expert was more credible than her expert. For the reasons below, the Court sustains the Special Master’s decision.

I. BACKGROUND

A. Facts

Mat Tori, the son of Dr. José Tori and Jody Nordwall, was born on November 7, [479]*4792002. See Pet.’s Ex. 1 (Mat’s birth certificate); see also Pet.’s Ex. 14 at 1 (identifying Jose Tori as a physician). Other than an acid reflux problem for which Mat was prescribed Zantac, he was a healthy baby. Pet.’s Ex. 4a at 9 and 15; Pet.’s Ex. 4b. On January 17, 2003, at 2 p.m., Mat had his two-month well child examination. Pet.’s Ex. 4a at 5. At this examination, he received his vaccinations, including his first dose of the DTaP vaccine. Id. at 7. He was pronounced dead the following morning, January 18, 2003. Pet’s Ex. 9 at 3; Pet.’s Ex. 10.

The facts in the previous paragraph are not in dispute. The parties disputed before the Special Master, however, what happened between the time Mat received his DTaP vaccination and his death. See Nordwall v. Sec’y of Health & Human Servs., No. 05-123, 2008 WL 857661, at *2 (Sp.Mstr. Feb. 19, 2008). It appears that on the evening Mat received his vaccination, his mother left for work at 6:30 p.m., leaving the baby in the care of Dr. Tori. See Transcript (“Tr.”) at 19, 41, 67-69. When Dr. Tori put Mat to sleep, the baby was swaddled in a blanket and propped between three pillows to help control his acid reflux problem. Tr. at 16, 22, 31, 56; Pet.’s Ex. 21-2 (demonstrating how Mat was wrapped and positioned on the pillows). Doctor Tori testified that he checked on Mat at approximately 4:00 a.m., after he was awakened by Mat’s two-year old sister— who told him that Mat was crying. Pet.’s Ex. 9 at 1; Tr. at 25.

Around 8:30 a.m. on January 18, 2003, Ms. Nordwall returned home from her job. Pet.’s Ex. 6 at 2; Pet.’s Ex. 13 at 2. She discovered that Mat was blue and not breathing. Pet.’s Ex. 6 at 2; Pet.’s Ex. 13 at 2. After discovering Mat, both Ms. Nordwall and Dr. Tori performed cardiopulmonary resuscitation (CPR) and called for emergency help. Pet.’s Ex. 6 at 2; Pet.’s Ex. 8. Paramedics brought Mat to a local hospital. Pet’s Ex. 8. Doctors attempted to resuscitate Mat, but were unable to do so. Pet.’s Ex. 9 at 3. In their examination of Mat, emergency room doctors noted that his temperature was 99 degrees Fahrenheit and that his anterior fontanelle was “very sunken.” Id. at 2. Mat was pronounced dead at 10:07 a.m. on January 18, 2003. Id. at 3. An autopsy was performed to determine how Mat died. Pet's Ex. 11. The Medical Examiner found that Mat died from positional asphyxia. Id. at 1.

On January 18, 2005,2 Ms. Nordwall and Dr. Tori3 filed a petition for compensation claiming that the DTaP vaccination Mat received on January 17, 2008 caused his death the following day. Pet. at 1. To support her case, petitioner filed an expert report by Dr. John Shane, who concluded that the DTaP vaccine caused Mat’s death. Pet.’s Ex. 16 (opinion letter of Dr. John J. Shane). In response, pursuant to Rule 4 of the Vaccine Rules of the United States Court of Federal Claims (“VR”), the government filed a report maintaining that Ms. Nordwall did not establish that the DTaP vaccination caused Mat’s death. Resp.’s Rule 4(c) Rep. at 4-7. To support this contention, the government filed a report by its expert witness, Dr. Lucy Rorke-Adams, who concluded that the evidence did not establish that Mat suffered an encephalopathy as defined by regulation, but instead showed that Mat died from positional asphyxia. Id. at Att. A; see also 42 C.F.R. § 100.3(b)(2) (2007) (defining “encephalopathy” under the Table).

B. The Hearings Before the Special Master

On May 9, 2007, the Special Master held a hearing in the case. Doctor Shane and Dr. Rorke-Adams testified as expert witnesses. See Tr. at 93, 154 (identifying the expert witnesses). Also testifying were Ms. Nordwall and Dr. Tori. See id. 12, 64 (testimony of Mat’s parents). On October 23, 2007, the Special Master held a supplemental hearing, [480]*480during which Drs. Shane and Rorke-Adams testified. See id. at 264 (describing the proceedings of the supplemental hearing). The Special Master issued his decision denying petitioner compensation under the Vaccine Act and entering judgment for the respondent on February 19, 2008. See Nordwall, 2008 WL 857661, at *1.

At the initial hearing Dr. Tori, Mat’s father, first testified to Mat’s abilities. Tr. at 15. He testified that while Mat was able to lift himself up for a short period of time and to move his head from side to side, the child was unable to roll from side to side. Id. Doctor Tori also explained that because Mat suffered from acid reflux, when sleeping he was placed between two pillows or in a “little seat” at a 45 degree angle so that the acid would stay in his stomach. Id. at 15-16. Doctor Tori then explained the events, as he remembered them, between the time Mat received his vaccinations and the time he was pronounced dead. Id. at 16-34. After Dr. Tori testified, Ms. Nordwall took the stand. Id. at 64. During her testimony, Ms. Nordwall testified that the morning after Mat’s vaccination, she had found Mat lying on his left side and covered by a blanket, though the blanket did not cover his entire face. See Tr. at 76 (describing the position of the blanket over the baby’s face using Pet.’s Ex. 26-3), 85. When she found Mat, Ms. Nordwall testified that he was cyanotic, or blue, and not breathing, but still warm. Id. at 75-76, 79. She testified that when she began CPR, she “got a mouthful of spit back” when first ventilating him. Id. at 77.

After Mat’s parents testified, the Special Master then turned to the testimony of the expert witnesses. See id. at 92, 154 (identifying the two expert witnesses). Doctor Shane, the petitioner’s expert, testified to his credentials in neuropathology, including examining as a pathologist a “massive number” of child brain biopsies taken by a Dr. Spitz, who worked with children suffering from a certain brain disease.4 Id. at 95. Doctor Shane has served as the Chairman of the Department of Pathology and Medical Director of Laboratories at Lehigh Valley Hospital in Allentown, Pennsylvania. Id. at 94-95. At this hospital, he established the largest hospital-based forensic science section in the United States. Id. at 94.

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83 Fed. Cl. 477, 2008 U.S. Claims LEXIS 382, 2008 WL 4111406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nordwall-v-secretary-of-health-human-services-uscfc-2008.