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

28 Fed. Cl. 740, 1993 U.S. Claims LEXIS 109, 1993 WL 300044
CourtUnited States Court of Federal Claims
DecidedJuly 26, 1993
DocketNo. 90-1995 V
StatusPublished
Cited by3 cases

This text of 28 Fed. Cl. 740 (Roedl 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
Roedl v. Secretary of the Department of Health & Human Services, 28 Fed. Cl. 740, 1993 U.S. Claims LEXIS 109, 1993 WL 300044 (uscfc 1993).

Opinion

OPINION

WIESE, Judge.

On March 12, 1993, the special master issued a decision in this case dismissing, for failure of proof, petitioners’ claim to compensation under the National Childhood Vaccine Injury Act, 42 U.S.C.A. §§ 300aa-l to 300aa-34 (West 1991 & Supp.1993), for the neurological and physical impairments of their now-adult son, Brian J. Roedl. Petitioners alleged that these impairments (lack of muscular coordination, epilepsy, and mental retardation) are traceable to the administration of a measles-mumps-rubella (MMR) vaccine that Brian received on July 9,1974, at the age of I2V2 months. Specifically, the special master rejected the argument that Brian’s afflictions are the result of a vaccine-caused aggravation of a preexisting seizure disorder or the sequela of a vaccine-caused encephalopathy. Brian’s condition, ruled the special master, “is the natural and predictable progression of his underlying disorder.” Roedl v. Secretary of the Dep’t of Health and Human Servs., No. 90-1995 V, slip op. at 16, 1993 WL 89221 (Fed.Cl.Sp.Mstr. Mar. 12, 1993).

The case is now before this court on petitioners’ motion for review. We are asked to set aside the special master’s decision on the ground that the evidence, properly considered, fully supports petitioners’ alternative assertions of a vaccine-caused injury: that Brian experienced a significant aggravation of an existing seizure disorder within 15 days of receipt of the MMR vaccine or, alternatively, suffered an encephalopathy from the vaccine within that same time frame. Respondent opposes the motion and asks that we affirm. Oral argument was heard on July 8, 1993.

The court’s conclusion, announced from the Bench at the closing of the argument and more fully explained in this opinion, is that the special master’s decision is entitled to finality.

I

As is often the case in suits for compensation arising under the Vaccine Act, the dispute between the parties does not involve a disagreement about the existence of facts but, rather, a disagreement about the medical significance of facts. Such is the nature of the problem we encounter here.

Both sides agree that Brian Roedl showed signs of a seizure disorder months before receiving the MMR vaccine on July 9, 1974. This disorder was exhibited, first of all, through an ever-increasing frequency of head-dropping episodes accompanied by a backward rolling of the eyes — there were as many as fifteen such episodes of “minor motor” seizure per day by the time of the vaccine’s administration — and, secondly, by the results of an electroencephalogram (EEG) which revealed a grossly abnormal brain-wave pattern. It is also acknowledged that, by the age of 27 months, Brian exhibited a mixed seizure disorder (meaning he regularly experienced both minor motor seizures and grand mal seizures), suffered from lack of muscular coordination, and was recognized to be mentally retarded. (In medical science this combination of symptoms is referred to as Lennox-Gastaut Syndrome).1 The question presented by the case is whether Brian’s present condition reflects the natural progression of his underlying neurological disorder (respondent’s position) or is, instead, the sequela of a vaccine-caused injury (petitioners’ position).

The facts from which the parties draw their competing assessments are few. In the evening of the same day on which he had received his MMR vaccination, Brian suffered his first major tonic/clonic (grand mal) seizure lasting approximately 15 minutes. Doctors attributed the event to a [742]*742fever although, as noted by the special master, “the fever was not high — less than 102 degrees Fahrenheit.” He remained in the hospital for two days, was treated with phenobarbital and, upon release, was “pretty much back to normal” (his mother’s words).

Four days later, during the night of July 13-14, Brian experienced his second and third grand mal seizures. But, unlike the first grand mal attack, these seizures were accompanied by high fever and cold-like symptoms. Brian was diagnosed as suffering from a virus, probably pharyngitis or possibly otitis media. He was hospitalized for four days. His condition during this hospital stay, as reported by his parents, is described by the special master in these words:

His mother testified that “during this hospitalization, he didn’t look like the same child” and he was not as alert or perceptive, ... especially during the first few days. ... He slept a lot, cried more than usual, was not as active as usual, and, in short, acted sick. His father testified that Brian had a vacant look, that he was not responsive and did not show any emotion upon seeing his father. He showed no interest in playing with the things he had showed interest in prior to the MMR shot____ He would not concentrate on an object with inquisitive interest as he did before. [Slip op. at 3 (citations omitted)].

Following the second hospitalization, Brian was often sick. As the special master’s decision goes on to note, “he had a lot of ear infections and had [grand mal] seizures whenever he had a fever but also at times when there was no fever.” Slip op. at 3. He experienced such a seizure on July 22, 1974, another on July 23, 1974 and yet a third on July 24, 1974. On July 24, 1974, the 15th day after the MMR vaccination, he developed a rash which his mother thought looked like measles. However, because of the unavailability of the family doctor, no diagnosis was made of this rash, that is, it was never determined whether this was a post-vaccinal measles rash (a not uncommon occurrence, according to the testimony) or a rash caused by Brian’s anti-eonvul-sant medication. (According to the testimony, the two rashes are indistinguishable).

In the months that followed these July events, medical records reflect that Brian’s neuro-muscular development continued, though at a slower rate than before. He began to walk independently at 13V2 months but, by January of 1975, he had developed a wide gait and strabismus (lack of paired eye focus). In August of 1975, slightly more than one year after the MMR vaccination, the University of Michigan Seizure Clinic determined that Brian was mentally retarded.

II

There are, as we have indicated, competing views of the causes of the events that befell Brian Roedl following the administration of the MMR vaccine and of their significance in explaining his present-day condition.

Petitioners offer a two-fold theory of vaccine-caused injury. First, regarding the grand mal seizure that Brian suffered on the evening of his vaccination day, petitioners contend that this event marked the onset of a permanent change for the worse in his pre-existing neurological disorder. Specifically, they contend that the grand mal seizure signified a transition of his impairment to a mixed seizure disorder and thus also a transition to an altered neurological status — one that carried with it a recognized increase in the likelihood of mental retardation.

Given this claimed increase in risk of mental retardation and, in addition, the timing of the seizure (it occurred within 15 days of receipt of the MMR vaccine), petitioners maintain that they have satisfied the statutory requisites for a presumed vaccine-caused “significant aggravation” of a pre-existing disorder.2

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28 Fed. Cl. 740, 1993 U.S. Claims LEXIS 109, 1993 WL 300044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roedl-v-secretary-of-the-department-of-health-human-services-uscfc-1993.