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

33 Fed. Cl. 420, 1995 U.S. Claims LEXIS 98, 1995 WL 297550
CourtUnited States Court of Federal Claims
DecidedMay 2, 1995
DocketNo. 91-1567V
StatusPublished
Cited by7 cases

This text of 33 Fed. Cl. 420 (Raspberry 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
Raspberry v. Secretary of the Department of Health & Human Services, 33 Fed. Cl. 420, 1995 U.S. Claims LEXIS 98, 1995 WL 297550 (uscfc 1995).

Opinion

OPINION

ANDEWELT, Judge.

I.

In this action, petitioner, Donnella Raspberry, seeks compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (the Vaccine Act), for the death of her daughter, Shanelle Eastling. Petitioner contends that Shanelle’s death was caused by a DPT (diphtheria, pertussis, and tetanus) vaccination administered on August 20, 1990. On the morning of August 22, 1990, less than two days after Shanelle received the vaccination, petitioner found Shanelle dead in bed. During this brief period following the vaccination and prior to her death, Shanelle ate less than usual, was lethargic and irritable, and cried excessively. The medical examiner, Dr. Ronald Graeser, who performed the autopsy, listed myocarditis (inflammation of the muscle tissue of the heart) as the cause of death and viremia (the presence of a virus in the blood) as the underlying cause of the myocarditis.

Petitioner presents three alternative theories to support her entitlement to compensation. First, petitioner contends that she is entitled to compensation because Shanelle suffered a hypotonic-hyporesponsive collapse (HHC), a condition listed in the Vaccine Injury Table, 42 U.S.C. § 300aa-14, and she experienced the first symptom or manifestation of the onset of that condition within the three-day time period set forth in the Vaccine Injury Table. Second, petitioner contends that she is entitled to compensation [422]*422pursuant to Sections 300aa-11(c)(1)(C)(ii) and -13(a)(1) because the administration of the vaccine was the cause in fact of Shanelle’s death. Third, petitioner contends that even if she did not demonstrate causation, she nevertheless is entitled to compensation as a sanction because respondent’s representatives lost the only remaining tissue samples and slides of Shanelle’s heart and thereby impaired petitioner’s ability to prove causation.

In a February 3, 1994, decision, the special master denied compensation on all three theories. Petitioner filed a motion in this court pursuant to 42 U.S.C. § 300aa-12(e)(1) seeking review of that decision. This court may set aside a special master’s findings of fact or conclusions of law only if the court determines that the findings or conclusions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). Under this standard, this court generally will affirm a special master’s decision if the court determines that the special master considered the relevant evidence of record, drew plausible inferences, and articulated a rational basis for his or her decision. Hines v. Secretary, HHS, 940 F.2d 1518, 1527-28 (Fed.Cir.1991). For the reasons set forth below, the court affirms the special master’s decision.

II.

A.

The Vaccine Injury Table identifies certain vaccines and for each identified vaccine, specifies certain illnesses, disabilities, injuries, or conditions (hereinafter Table Injuries) that have been associated with the administration of that vaccine. For each such specified Table Injury, Section 300aa-14(a) states a time period within which the first symptom or manifestation of the Table Injury must occur. If a petitioner demonstrates by a preponderance of the evidence that a vaccine recipient suffered a Table Injury and that the first symptom or manifestation of the onset of that injury occurred within the specified statutory time period after vaccine administration, then the vaccine is presumed to have caused the injury. 42 U.S.C. §§ 300aa-11(c)(1)(C)(i) and -13(a)(1)(A). If a petitioner makes such a showing and satisfies the other statutory requirements,1 then the petitioner is entitled to compensation unless there is a preponderance of the evidence that the injury “is due to factors unrelated to the administration of the vaccine.” 42 U.S.C. § 300aa-13(a)(1)(B).

At a hearing before the special master, petitioner’s medical experts, Drs. Werner Spitz and George Sprecace, testified that Shanelle manifested an HHC and respondent’s experts, Drs. Ronald Graeser, Marie Valdes-Dapena, and Richard Rapkin, disagreed. In his decision, the special master discussed the experts’ respective opinions and ultimately resolved the battle of the experts in favor of respondent. The special master concluded that respondent’s experts were “quite convincing” and that petitioner’s experts were “extremely unpersuasive,” “not logically persuasive,” and “not giving ... candid, honest opinions.”

B.

In her motion for review, petitioner contends that the special master acted arbitrarily and capriciously when he relied upon respondent’s experts and concluded that Shanelle did not suffer from an HHC. Petitioner argues that the symptoms Shanelle exhibited are many of the same symptoms that the court in Hellebrand v. Secretary, HHS, 24 Cl.Ct 756 (1991), rev’d, 999 F.2d 1565 (Fed.Cir.1993); characterized as symptoms of an HHC. But petitioner simply places too much weight on the individual symptoms that Shanelle exhibited, such as lethargy, during the post-vaccine period. Proof that Shanelle experienced certain symptoms that are commonly experienced by patients who suffer from an HHC does not necessarily mean that [423]*423Shanelle experienced an HHC. Particular medical symptoms frequently can indicate a variety of medical conditions. Determining the correct diagnosis from a symptom or set of symptoms is a medical issue that requires a diagnostician to consider all of the medical evidence and draw upon his or her experience and expertise. In reversing the Hellebrand decision, the Court of Appeals for the Federal Circuit stressed that even proof that a vaccine recipient exhibited the symptoms of an HHC specifically set forth in the Vaccine Act’s aids to interpretation, 42 U.S.C. § 300aa-14(b)(1), does not “automatically ... serve to establish the presence of [an HHC].” 999 F.2d at 1570. In the instant case, the special master based his conclusion that the symptoms Shanelle exhibited did not demonstrate an HHC upon testimony to that effect by respondent’s medical experts.

Petitioner argues that the evidence contradicts the special master’s finding that respondent’s medical experts were more credible. Petitioner focuses her attack primarily upon the testimony of Dr. Rapkin. Petitioner complains that Dr. Rapkin never personally witnessed an HHC, that he based aspects of his testimony concerning symptoms of an HHC upon articles that were not entered into evidence, and that his testimony was inconsistent with a certain article written by Dr. James Cherry, a physician upon whose articles Dr. Rapkin relied in his testimony. Dr. Rapkin, however, was a qualified medical expert and explained in detail the medical basis for his opinions.

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Bluebook (online)
33 Fed. Cl. 420, 1995 U.S. Claims LEXIS 98, 1995 WL 297550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raspberry-v-secretary-of-the-department-of-health-human-services-uscfc-1995.