Nussman v. Secretary of Health & Human Services

83 Fed. Cl. 111, 2008 U.S. Claims LEXIS 219, 2008 WL 3319791
CourtUnited States Court of Federal Claims
DecidedJuly 21, 2008
DocketNo. 99-500V
StatusPublished
Cited by44 cases

This text of 83 Fed. Cl. 111 (Nussman 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
Nussman v. Secretary of Health & Human Services, 83 Fed. Cl. 111, 2008 U.S. Claims LEXIS 219, 2008 WL 3319791 (uscfc 2008).

Opinion

OPINION

SWEENEY, Judge.

Petitioner seeks compensation under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-l to -34 (2000 & Supp. IV 2005), for injuries that he alleges resulted from two hepatitis B vaccinations. In a January 31, 2008 decision, the special master denied petitioner entitlement to Vaccine Act compensation. Presently before the court is petitioner’s motion for review of the special master’s decision. For the reasons set forth below, the court sustains the special master’s decision.

I. BACKGROUND

A. Factual History

Petitioner Jay Nussman was bom on August 17, 1978.2 Ex. 22 at ¶ 1. Aside from the normal childhood illnesses and injuries, petitioner suffered from hand tremors beginning no later than age ten, Ex. 3 at 1, and underwent psychotherapy between October 1991 and June 1992, Ex. 1 at 2. Petitioner’s mother had a history of poliomyelitis, depression, and thyroid cancer, while petitioner’s father had a history of “major motor or grand mal seizures.” Id. Further, both of petitioner’s grandmothers had a history of psychiatric disorders. Id.

Academically, in grades four through six, petitioner was a good student, receiving mostly As and Bs in his classes. Ex. 25 at 3-7. During this time, he participated in his school’s Academically Talented Program. Ex. 21 at ¶3. Standardized testing placed petitioner between the ninetieth to ninety-ninth percentile nationally in most subject areas in the fourth grade, while in the fifth and sixth grades petitioner scored between the seventy-second to ninety-ninth percentiles in most areas. Ex. 25 at 8-10. According to an educational evaluation performed in March 1993, petitioner began to have difficulty with his school work in the sixth grade, with organization highlighted as a problem. Ex. 23 at 2. However, in the seventh grade, which spanned from 1991 to 1992, petitioner again received mostly As and Bs in his classes. Ex. 25 at 13.

Petitioner received a hepatitis B vaccination on December 10, 1992.3 Ex. 1 at 2; Ex. [113]*11321 at ¶ 5. Forty-one days later, on January 20,1993, while returning to New Jersey from a trip to Washington, DC, petitioner experienced an episode of confusion. Ex. 9 at 12; Ex. 21 at ¶ 5. Petitioner’s memories from this trip remain “fuzzy.” Ex. 22 at ¶ 4. According to his mother, petitioner “entered the car confused.” Ex. 21 at ¶ 5. He then “shut his eyes for twenty minutes” and when he woke up, “he asked ... where he was” and “appeared to have lost his memory of the entire trip to Washington DC.” Id. Petitioner then became upset and his nose began to bleed. Id. ¶ 6.

Petitioner’s parents immediately took him to the emergency room at Laurel Regional Hospital in Laurel, Maryland. Id.; Ex. 9 at 11-14; Ex. 22 at ¶ 4. The emergency room physician diagnosed petitioner with “confusion of unknown etiology” and discharged him with instructions to follow up with his pediatrician the next day. Ex. 9 at 12, 14. Petitioner’s pediatrician recommended that petitioner see a pediatric neurologist, and specifically recommended Arnold P. Gold, M.D. Ex. 21 at ¶ 7. Dr. Gold’s first available appointment was not until the middle of February, so, in the meantime, petitioner’s parents took petitioner to see another pediatric neurologist—Joseph Schneider, M.D.4 Id. According to petitioner’s mother, Dr. Schneider’s impression was “seizure-manifestation.” Id.

Petitioner was seen by Dr. Gold on February 17, 1993. Ex. 2 at 1-4. Upon completing his physical examination, Dr. Gold concluded that petitioner “showed no evidence of a neurologic deficit____” Id. at 3. Dr. Gold indicated that petitioner’s January 20, 1993 episode “could describe a partial seizure or might be of psychogenic etiology.” Id. Dr. Gold then noted that two days prior to the appointment, petitioner underwent an electroencephalogram (“EEG”), the results of which were mildly abnormal and could have been consistent with a partial seizure disorder. Id. at 4, 16, 19. Thus, given petitioner’s January 20, 1993 episode and the EEG results, Dr. Gold recommended that petitioner have a magnetic resonance imaging (“MRI”) scan of his brain. Id. at 4. In addition, Dr. Gold recommended that petitioner “be followed without any maintenance anticonvulsant,” which should “only be considered in the event of subsequent spells.” Id. Petitioner underwent the MRI scan on February 19, 1993, the results of which were “completely normal.” Id. at 19. Dr. Gold apparently related the MRI results to petitioner’s mother, who indicated to Dr. Gold that she “planned to obtain a formal psychoeducational evaluation [of] her son.” Id.

Based on his parents’ concerns about his “general memory lapses in and out of school, as well as in academic tasks involving memory” and “declining grades,” petitioner underwent an educational evaluation in March 1993. Ex. 23 at 2-7; see also Ex. 21 at ¶ 8 (describing petitioner’s increasing difficulty with his Algebra and Spanish classes). The evaluator concluded: “Current educational testing shows [petitioner] to be performing within the average range of academic functioning with definite weaknesses in the areas of written language and his ability to work quickly while processing all the information needed.” Ex. 23 at 7. Also in March 1993, petitioner took the New Jersey Grade 8 Early Warning Test. Ex. 25 at 57. He scored within the highest proficiency level in reading and mathematics, and one point outside the highest proficiency level in writing. Id. Petitioner ultimately received three As, four Bs, and five Cs in his eighth grade classes, with two of the Cs being in “Math 8” and “Spanish 8.” Id. at 13.

Petitioner received another hepatitis B vaccination on April 1, 1993.5 Ex. 1 at 2; see [114]*114also Ex. 29 at ¶ 1 (indicating, in a supplemental affidavit prepared by petitioner’s mother on May 9, 2007, that the vaccination must have occurred on Thursday, April 1, 1993, because the appointment was at the end of the week and petitioner’s pediatrician did not see patients on Fridays). But see Ex. 14 at 3 (indicating, in a report prepared by Peter M. Crain, M.D. on November 13, 2004, that petitioner received his second hepatitis B vaccination on Sunday, April 4, 1993). Subsequently, not more than three days after the vaccination, petitioner had a second episode that petitioner’s mother labeled a “seizure.”6 Ex. 21 at ¶ 9. Petitioner’s mother learned from a friend of petitioner, Andy, that while petitioner was at Andy’s house, he blacked out and vomited.7 Id. Petitioner has no independent recollection of either event. Id.; Ex. 22 at ¶ 7; July Tr. 189-91, 202. Petitioner’s mother telephoned Dr. Gold on April 4, 1993, to report the episode.8 July Tr. 239.

As a result of petitioner’s second episode, Dr. Gold prescribed the anticonvulsant Tegretol on April 5,1993. Ex. 28 at 5; Ex. 30 at 1. On April 22, 1993, petitioner underwent another MRI scan of his brain, which revealed normal findings for an adolescent male. Ex. 2 at 7,14. Then, either on May 5 or May 7, 1993, petitioner returned to see Dr. Gold. See id. at 7 (May 7, 1993); Ex. 28 at 15 (May 5,1993). Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
83 Fed. Cl. 111, 2008 U.S. Claims LEXIS 219, 2008 WL 3319791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nussman-v-secretary-of-health-human-services-uscfc-2008.