Skinner v. Secretary of The Department of Health & Human Services

32 Fed. Cl. 196, 1994 U.S. Claims LEXIS 204, 1994 WL 559614
CourtUnited States Court of Federal Claims
DecidedSeptember 28, 1994
DocketNo. 90-1051V
StatusPublished
Cited by2 cases

This text of 32 Fed. Cl. 196 (Skinner 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
Skinner v. Secretary of The Department of Health & Human Services, 32 Fed. Cl. 196, 1994 U.S. Claims LEXIS 204, 1994 WL 559614 (uscfc 1994).

Opinion

OPINION

WIESE, Judge.

On May 31, 1994, the special master issued a decision in this case granting petitioner’s claim to compensation under the National Childhood Vaccine Injury Act, 42 U.S.C.A. §§ 300aa-l-300aa-34 (West 1991 & Supp. 1994) (“Vaccine Act”) for the vaccine-related death of her infant son, William (“Billy’) Skinner, following his receipt of a diptheria-pertussis-tetanus (DPT) vaccine on February 23, 1984. Petitioner had premised her claim to compensation on a theory of “significant aggravation” of an underlying seizure disorder. However, in resolving the case in petitioner’s favor, the special master decided on a different ground, to wit: that Billy’s death was the result of a vaccine-caused encephalopathy as manifested by a reoccurrence of seizures within the three-day period following administration of the vaccine. Although the record offered no expert medical testimony specifically supporting such a finding, nevertheless, the special master was persuaded to rule as she did based on her reading of the Federal Circuit’s decision in Whitecotton v. Secretary of Dep’t of Health and Human Servs., 17 F.3d 374 (Fed.Cir.1994).

Respondent now appeals on the ground that the special master’s application of Whi-tecotton reflects a misunderstanding of that decision and is therefore incorrect as a matter of law. We agree. Accordingly, we vacate the decision and remand the matter to the special master for further proceedings.

I

Billy was born on December 20,1983. On January 17, 18 and 19, 1984, Billy experienced five episodes during which his arms and legs became rigid, his head and neck arched, and his eyes rolled back. Each of these episodes lasted from thirty seconds to one minute. Both parties’ experts identified these episodes as seizures.

Billy received his DPT vaccination on February 23, 1984. The next two days were uneventful. Then, on February 25th, while seated in a crib swing, he began screaming, his arms and legs became stiff, and his body shook violently. In her testimony, Billy’s mother recalled observing three of these episodes on February 25th, each lasting for a few seconds. As a result of these occurrences, Billy was hospitalized. However, neurological examinations performed during this hospitalization revealed no abnormal results, and he was therefore discharged two days later.

[198]*198Following a brief period of tranquility, seizures began again on March 2, 1984, and thereafter steadily increased in frequency. During April, 1984 for example, he experienced over one hundred seizures in a single day. The etiology of Billy’s recurrent seizures was unknown. Billy was hospitalized on numerous occasions; his health deteriorated rapidly and on April 15, 1985, he died.

II

As noted, petitioner presented her case as a significant aggravation claim. Hence, all the evidence was directed to the question whether Billy’s death was a sequela to a seizure disorder that had been significantly aggravated by the DPT vaccination. To that end, petitioner presented an expert who testified that the seizures Billy suffered on February 25, 1984, two days after vaccination, were significantly worse than the seizures he had experienced from January 17 through January 19, 1984. Respondent countered that petitioner’s expert’s clinical assessment was based on a factually incorrect understanding of the frequency as well as the duration of Billy’s pre-vaccinal seizures. Additionally, respondent offered the testimony of an expert who testified that the February 25th seizures took the heightened form they did due to the natural progression of Billy’s pre-existing neurological condition rather than to any vaccine-related aggravation.

The special master bypassed all of this testimony for, in her view, the nature and extent of Billy’s pre-existing seizure disorder was essentially irrelevant to the outcome. In the special master’s consideration of the case, it was enough to note that Billy experienced seizures within the three-day period following administration of the vaccine; hence, pursuant to the Whitecotton decision (as interpreted by the special master), such seizures were enough to confirm the existence of a separate Table injury, ie., an encephalopathy.

The special master has misread the Whi-tecotton decision. The claimant in that case, Margaret (“Maggie”) Whitecotton, was afflicted from birth with microcephaly — a chronic organic brain syndrome of unknown origin. However, until she received her third diphtheria-pertussis-tetanus vaccination in August of 1975, Maggie was seen as a healthy child, developmentally and physically. The question in the case was whether Maggie’s later-expressed disabilities — mental and physical disorders, cerebral palsy and hip and joint problems — were attributable to an encephalopathy that occurred within three days of the administration of the DPT vaccine (as petitioners contended) or were, instead, manifestations of an on-going neurological deterioration traceable to her preexisting disorder (as respondent contended).

In deciding the case in respondents favor, the special master in Whitecotton had before him undisputed evidence showing that Maggie had experienced a series of clonic seizures within the three-day period following administration of the DPT vaccine. The record also revealed — and this too stood unchallenged — that it was the opinion of the physicians who treated Maggie during her August hospitalization that she had suffered a post-immunization encephalopathy. Notwithstanding this evidence, however, the special master decided against the petitioners based on a finding that Maggie was encephalopathic even prior to August, 1975 (as evidenced by her microcephaly), and that her subsequent disabilities were essentially indistinguishable “from what would reasonably have been expected considering her microcephaly.” Whitecotton v. Secretary of the Dep’t of Health and Human Servs., No. 90-692V, 1991 WL 172187, slip op. at 12 (Fed.Cl.Sp. Mstr., Aug. 16, 1991). In other words, the post-vaccinal condition was not seen by the special master as a case of significant aggravation of a pre-existing neurological disorder. Hence petitioners did not prevail.

The court of appeals held the case was wrongly decided for two basic reasons. First, the court considered the special master’s decision incorrect because the decision improperly ignored clear evidence of a Table injury and focused, instead, on Maggie’s prevaccinal condition. That disregard of a prima facie case was an analytical misstep. As the court of appeals explained, “[njowhere does the statute expressly state that proof of a Table encephalopathy includes a showing that the child sustained no injury prior to [199]*199administration of the vaccine____ [T]he Table language is that the first symptom after vaccine administration must occur within Table time, not, as the Secretary argues, that the first of all manifestations [of injury] must • so occur.” 17 F.8d at 376. Thus, properly viewed, petitioner’s evidence was enough to demonstrate the existence of a Table injury.

Second, the court of appeals saw legal error in the special master’s conclusion that Maggie’s post-vaccinal state was the product of her pre-existing disorder rather than the consequence of a presumed vaccine-caused injury.

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Related

Childs v. Secretary of Health & Human Services
33 Fed. Cl. 556 (Federal Claims, 1995)

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32 Fed. Cl. 196, 1994 U.S. Claims LEXIS 204, 1994 WL 559614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skinner-v-secretary-of-the-department-of-health-human-services-uscfc-1994.