Ricci v. Secretary of Health & Human Services

101 Fed. Cl. 385, 2011 U.S. Claims LEXIS 2170, 2011 WL 5438954
CourtUnited States Court of Federal Claims
DecidedOctober 26, 2011
DocketNo. 99-524V
StatusPublished
Cited by11 cases

This text of 101 Fed. Cl. 385 (Ricci 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
Ricci v. Secretary of Health & Human Services, 101 Fed. Cl. 385, 2011 U.S. Claims LEXIS 2170, 2011 WL 5438954 (uscfc 2011).

Opinion

OPINION AND ORDER

WHEELER, Judge.

This case comes before the Court on review of Special Master Christian J. Moran’s May 16, 2011 decision denying compensation to Petitioner, Thomas Ricci, through his parents, Daniel and Eva Ricci, under the National Childhood Vaccine Injury Act (“Vaccine Act”), 42 U.S.C. §§ 300aa-2-33 (2006). Petitioners allege that the Hepatitis B vaccine Thomas received on October 8, 1992 resulted in an adverse reaction, which caused “an encephalopathy and/or encephalitis and/or meningoencephalitis ... and that this injury has left Thomas with a residual seizure disorder” impairing his cognitive and physical development. Pet’rs Br. 1-2, Nov. 12, 2010. Respondent contends Petitioners are not entitled to recover because they failed to prove a necessary link in the causal chain, namely that the administered vaccine caused inflammation in Thomas’s central nervous system. See Resp’t Resp. 8-11, Jul. 14, 2011.

The special master agreed with Respondent, finding neither the relevant medical tests nor Thomas’s clinical presentation proved, by preponderant evidence, that [387]*387Thomas suffered inflammation at the time his seizures commenced. See Ricci v. Sec’y of Health & Human Servs., 2011 WL 2260391, at *6-12 (Fed.Cl. May 16, 2011). For the reasons stated below, the Court AFFIRMS the special master’s decision and DENIES Petitioners’ motion for review.

Background

A. Statement of Facts

Thomas Ricci was born to Daniel and Eva Ricci on July 8, 1992, weighing eight pounds and fifteen ounces. Pet’rs Mot. Rev. 3, Jun. 14, 2011. He was born “without complications or problems ... following a normal pregnancy, labor, and delivery.” Id. In subsequent weeks, Thomas “was in good health, developing normally, was attentive, and gave no indications whatever of any kind of abnormality.” Id.

On October 8, 1992, Thomas received a vaccination for Hepatitis B at the office of Dr. Ofelia B. Ayuste, his pediatrician. Id. On October 13, 1992, Thomas’s mother, Eva Ricci, noticed his arm jerk. E. Ricci, Tr. 10. Mrs. Ricci reported the incident to a colleague of Dr. Ayuste, who instructed her to make an appointment when Dr. Ayuste returned from a vacation. Pet’rs Mot. Rev. 4, Jun. 14, 2011. During an appointment on October 15, 1992, Dr. Ayuste witnessed Thomas’s arm jerk again and immediately instructed Mrs. Ricci to take him to Adventist Hinsdale Hospital, Illinois. Id.; E. Ricci, Tr. 12 (“[Dr. Ayuste] was very upset, visibly upset, and I was very frightened because she said he was having a seizure and I needed to go directly to the hospital”).

Thomas was hospitalized from October 15 through October 21, 1992. Pet’rs Mot. Rev. 4, Jun. 14, 2011. He underwent multiple tests — cerebrospinal fluid, genetic, computed tomography (“CT”) scan with contrast, magnetic resonance imaging (“MRI”), and electroencephalogram (“EEG”) study — but doctors were unable to identify a cause of his symptoms, such as inflammation. See Pet’rs Ex. 3, at 96, 102-03, 113, 116-17, 129. Ultimately, doctors diagnosed Thomas with “[i]n-fantile seizure disorder of undetermined etiology” and discharged him with prescriptions for Amoxicillin, Pyridoxine, and Phenobarbital, the latter to control his seizures. Id. at 92-94.

Despite the medication, Thomas shortly developed break-through seizures. Pet’rs Mot. Rev. 4, Jun. 14, 2011. On November 6, 1992, he was admitted to Loyola University Medical Center to undergo additional testing. See Pet’rs Ex. 4, at 3-7, 12, 15, 20-21. All tests to identify the cause of Thomas’s seizures were inconclusive. Pet’rs Mot. Rev. 4, Jun. 14, 2011.

Thomas continues to have seizures to this day. Id. at 5. His “cognitive and physical development was effectively terminated at the age of three months,” his age when the seizures commenced. E. Ricci, Tr. 7. In June 2011, at the age of eighteen, Thomas “is five feet, seven inches tall, weighs less than 100 pounds, has the cognitive abilities of a three to six month old baby, has visual tracking and language levels of a three month old, and is physically unable to bear his own weight.” Pet’rs Mot. Rev. 5, Jun. 14, 2011.

The Hepatitis B vaccine is listed on the “Vaccine Injury Table,” but Thomas’s alleged injury is not covered. See 42 U.S.C. § 300aa-14 (2006); 42 C.F.R. § 100.3 (2011).

B. History of Proceedings

Petitioners filed their Vaccine Act petition in this Court on July 28, 1999, alleging that the Hepatitis B vaccine, which Thomas had received on October 8, 1992, caused his seizure disorder. Ricci, 2011 WL 2260391, at *2. The Office of Special Masters (“OSM”) “informally stayed” the matter, as the parties in many other similar cases attempted to structure a mass settlement, which was “not entirely successful.” Id. In 2006, the OSM assigned the matter to Special Master Moran for independent review. Id.

1. Expert Witness Reports

At first, Petitioners did not file any expert witness reports with their 1999 petition. See id. However, upon the matter’s assignment to the special master in 2006, Respondent filed a report, pursuant to Rule 4 of the Court’s Vaccine Rules (found in Appendix B), maintaining that Petitioners were not entitled to compensation for failure to offer an expert in support of their claim. Id.; see [388]*388also Resp’t Report 4, Feb. 1, 2007. In response, on August 3, 2007, Petitioners filed the curriculum vitae and report of Dr. Lawrence Steinman. Ricci, 2011 WL 2260391, at *2; see also Pet’rs Exs. 9-24.

a. Petitioners’ Expert, Dr. Lawrence Steinman

Dr. Steinman is a full professor of genetics, neurology, and pediatrics at Stanford University. Pet’rs Mot. Rev. 6, Jun. 14, 2011. He is Chair of the institution’s “Program in Immunology.” Id. Dr. Steinman is board-certified in neurology, has authored more than 400 articles, holds editorial positions on immunology and neurology journals, holds many patents relating to autoimmune conditions, and “has won many prestigious awards.” Id. at 6-7.

Upon reviewing Thomas’s medical records, Dr. Steinman concluded that Thomas experienced “neurological damage from his immunization with recombinant Hepatitis B on October 13, 1992” and “a post-immunization encephalopathy, with evidence of a mild men-ingoencephalitis ... on [October] 15.” Pet’rs Ex. 9, at 2. He proposes that Thomas developed seizures because of an autoimmune process known as “molecular mimicry,” whereby the body confuses an antigen (foreign substance) with its own tissue and “[i]n the process of responding to [the] antigen, the body’s immune system becomes confused and attacks its own tissue.” Ricci, 2011 WL 2260391, at *5. In essence, because of similarities between the Hepatitis B virus and the myelin (white matter) that sheaths Thomas’s neural cells, the vaccine “elicited an immune response that [led] to neurological damage.” Pet’rs Ex. 9, at 3. 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)
101 Fed. Cl. 385, 2011 U.S. Claims LEXIS 2170, 2011 WL 5438954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ricci-v-secretary-of-health-human-services-uscfc-2011.