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

18 Cl. Ct. 366, 1989 U.S. Claims LEXIS 205, 1989 WL 120648
CourtUnited States Court of Claims
DecidedSeptember 26, 1989
DocketNo. 88-47V
StatusPublished
Cited by3 cases

This text of 18 Cl. Ct. 366 (Reddish v. Secretary of the Department of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reddish v. Secretary of the Department of Health & Human Services, 18 Cl. Ct. 366, 1989 U.S. Claims LEXIS 205, 1989 WL 120648 (cc 1989).

Opinion

ORDER

MEROW, Judge.

Under the National Childhood Vaccine Compensation Program, 42 U.S.C. § 300aa-10, et seq. (Supp. V 1987), this matter comes before the court on the basis of the Report and Recommendation, filed August 15, 1989, of the assigned Special Master.

Under General Order No. 20, the petition in this matter was filed as of November 15, 1988. The petition seeks compensation for a profound sensorineural hearing loss alleged to have been caused by a Mumps, Measles and Rubella (MMR) vaccine administered on April 5, 1988 to Christopher Eugene Reddish, the then 16-months old son of petitioner Lisa Suzanne Reddish.

Pursuant to 42 U.S.C. § 300aa-12(c), Special Master E. LaVon French was designated to carry out the evidentiary functions authorized by the applicable legislation. A hearing was held and evidence received. Respondent chose not to appear in this matter, such that all the evidence presented was submitted by the petitioner. The material submitted did, however, include a Medical Review prepared by respondent’s expert, Cynthia G. McCormick, M.D.

In the comprehensive report filed August 15, 1989, Special Master French’s findings and conclusions of law are that Christopher Eugene Reddish sustained, or had significantly aggravated, a bilateral sensorineural hearing loss which was, caused by a MMR vaccination administered on April 5,1988 in Orlando, Florida, U.S.A., such that compensation is owed pursuant to 42 U.S.C. § 300aa-ll(e)(l)(C)(ii)(I).

No objection to the Special Master’s findings or conclusions of law has been filed and the time to so file has expired.

Accordingly, it is ORDERED:

(1) The report, including the findings and conclusions of law, filed August 15,1989, is adopted by the court pursuant to 42 U.S.C. § 300aa-12(d)(2), and shall be attached hereto;

[367]*367(2) Judgment shall be entered for the petitioner in the amount of $312,983, as provided in the following adopted report, with no additional costs to be awarded.

REPORT AND RECOMMENDATION OF JUDGMENT1

Filed Aug. 15, 1989

E. LAVON FRENCH, Special Master.

This is an action for compensation for the vaccine-related injury of Christopher Eugene Reddish, brought by his mother, Lisa Suzanne Reddish, under the National Childhood Vaccine Injury Program, 42 U.S.C. § 300aa-10 et seq. (Supp. V 1987) (hereinafter the Vaccine Act or Act). Pursuant to § 300aa-12(c), and Vaccine Rule 18(a), and for the reasons cited below, the undersigned recommends to the assigned Claims Court Judge, Judge Merow, that judgment be entered for petitioner in the amount of $312,983, to be allocated as follows: $282,983 for future medical and rehabilitation expenses under § 300aa-15(a); $1,184.30 for projected pain, suffering, and emotional distress under § 300aa-15(a)(4); $1,184.30 for loss of future earnings under § 300aa-15(a)(3)(B); $17,297.50 for reasonable attorneys’ fees under § 300aa-15(e); and $10,333.90, under § 300aa-15(e), for costs incurred in the prosecution of this petition.

BACKGROUND

Lisa Suzanne Reddish claims that her minor son, Christopher Eugene Reddish (hereinafter Christopher), developed a severe to profound sensorineural hearing loss as a result of a Mumps, Measles and Rubella (hereinafter MMR) vaccination which was administered April 5, 1988. Since the vaccination was administered prior to October 1, 1988, petitioner’s claim is a retroactive claim, i.e., filed prior to the effective date of the Vaccine Act and, therefore, is subject to any specific limitations in the Vaccine Act applicable to retroactive claims.

Hearing loss is not one of the conditions or reactions listed in the Vaccine Injury Table (hereinafter table), § 300aa-14. Petitioner does not disagree that hearing loss is an “off-table” condition or reaction. Petitioner asserts, however, that Christopher sustained such injury as the result of the MMR vaccine, and is entitled to compensation pursuant to §§ 300aa-ll(c)(l)(C)(ii)(I) and 300aa-13(a)(l)(A) and (B).

Respondent alleges that Christopher’s hearing loss was caused, not by the MMR vaccination, but by recurring ear infections suffered by Christopher, beginning at eight months of age. Respondent, therefore, challenges petitioner’s entitlement to compensation under the Vaccine Act.

A hearing was conducted in this case on May 23, 1989 at the United States Federal Building, Room 600, Sixth Floor, 80 North Hughey Avenue, Orlando, Orange County, Florida. Present and appearing on behalf of the petitioner were Berry James Walker, Jr., and Robert D. Gatton. Respondent voluntarily elected not to attend the hearing either in person or telephonically. Witnesses appearing for the petitioner were Lisa Suzanne Reddish, Christopher’s mother; Martha Janet Reddish, the maternal grandmother; Horace Dahl Reddish, the maternal grandfather; James F. Holly, MD; and Clifford Benjamin Dubbin, MD. The depositional testimony of W. David Carr, Christopher’s treating pediatrician, was read into evidence on behalf of petitioner.

Prior to the hearing, petitioner agreed to stipulate into evidence any documentary evidence which respondent wished to have considered by the court. Respondent, however, declined to offer any evidence. As an accommodation, petitioner offered into evidence the Vaccine Injury Compensation Program (VICP) Medical Review, Case No. [368]*36888-47V (hereinafter HHS Medical Review, or Medical Review) as part of petitioner’s case in chief. Petitioner’s Exhibit No. 19. The Medical Review was prepared for this case by respondent’s expert, Cynthia G. McCormick, M.D.

The following issues have been presented to this court for resolution:

1. Whether Christopher Eugene Reddish sustained a sensorineural hearing loss as the result of the MMR vaccination administered on April 5, 1988;

2. Whether there was an intervening non-compensable cause of Christopher’s hearing loss;

3. Whether Christopher Eugene Reddish is entitled to compensation under the Vaccine Act and, if so, the amount of compensation to be awarded; and

4. The amount to be awarded to petitioner’s attorneys as a reasonable fee for their services, including the costs incurred by said attorneys in the prosecution of this claim.

STATEMENT OF FACTS

The following facts are supported by the record. Christopher Eugene Reddish is a citizen of the State of Florida and of the United States of America. Transcript of May 23, 1989 hearing at 133, Reddish (No. 88-47V), (hereinafter Tr. at_) and Petitioner’s Exhibit No. 25 (hereinafter P.Ex. No. -). Christopher was born to Lisa Suzanne Reddish on December 12, 1986 in Orlando, Orange County, Florida. The hospital records show no problems during delivery, birth, or the newborn period. P.Ex. No. 6, 8, and 9.

Christopher has been seen for regular examinations by his pediatricians.

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Bluebook (online)
18 Cl. Ct. 366, 1989 U.S. Claims LEXIS 205, 1989 WL 120648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reddish-v-secretary-of-the-department-of-health-human-services-cc-1989.