Stone v. Secretary of Health and Human Services

676 F.3d 1373, 2012 WL 1432525
CourtCourt of Appeals for the Federal Circuit
DecidedApril 26, 2012
Docket18-2083
StatusPublished
Cited by230 cases

This text of 676 F.3d 1373 (Stone v. Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stone v. Secretary of Health and Human Services, 676 F.3d 1373, 2012 WL 1432525 (Fed. Cir. 2012).

Opinion

BRYSON, Circuit Judge.

In separate proceedings, petitioners Jennifer and Gary Stone and petitioner Scott Hammitt sought compensation under the National Vaccine Injury Compensation Program for injuries to their children allegedly caused by the Diptheria-Tetanus- *1375 acellular Pertussis (“DTaP”) vaccine. The Stones alleged that the administration of the DTaP vaccine to their daughter Amelia was a substantial cause of a seizure disorder from which she suffers, known as Severe Myoclonic Epilepsy of Infancy (“SMEI”). 1 Mr. Hammitt made the same allegation with respect to his daughter Rachel, who also suffers from SMEI. The same special master presided over both cases and determined that the petitioners failed to show entitlement to compensation because in both cases the evidence showed that a gene mutation present in both children was the sole cause of their injuries. The Court of Federal Claims affirmed both decisions.

I

A

Amelia Stone was born on April 17, 2001, and received a DTaP vaccination on August 27, 2001. The day after her DTaP vaccination, Amelia experienced a febrile seizure. She was treated at a hospital and released several days later. The special master and the trial court found that Amelia suffered no brain damage as a result of the seizure. On September 26, 2001, Amelia experienced a second febrile seizure. She was again treated at the hospital, and no evidence of brain damage was discovered.

Amelia continued to experience seizures, both febrile and afebrile. At a check-up on December 19, 2001, her doctor noted that “[i]t appears now that [Amelia] has a primary seizure disorder,” but that her “neurologic development has been appropriate.” In October 2003, Amelia’s seizure disorder was diagnosed as SMEI. In January 2005, genetic testing revealed that Amelia has a de novo mutation in her SCN1A gene. The records accompanying the results noted that “[t]his finding is most consistent with this DNA variant being associated with a severe phenotype (SMEI or SMEB) rather than a mild or normal phenotype.”

B

Rachel Hammitt was born on November 9, 2003. She received her second DTaP, IPV, Hepatitis B, Hib, and Pneumococcal Conjugate vaccinations on March 15, 2004. That evening, Rachel experienced a febrile seizure. She was treated at a hospital and released several days later. The special master and the trial court found that Rachel suffered no brain damage as a result of that seizure. On April 22, 2004, Rachel experienced a second seizure. She was again treated at the hospital and released several days later.

Thereafter, Rachel continued to experience intermittent seizures. Records from her 12-month check-up on November 12, 2004, showed a diagnosis of epilepsy but reported normal growth and development. However, at her 14-month checkup, Rachel’s pediatrician recorded delayed verbal and gross motor development and recommended that she be evaluated for global developmental delays. Genetic testing ordered on May 3, 2005, revealed that Rachel has a mutation in her SCN1A gene. The records accompanying the results stated that the mutation is “associated with a severe phenotype (SMEI or SMEB) rather than a mild or normal phenotype.” *1376 At a follow-up appointment, a physician noted that Rachel’s “clinical course, EEG, and SCN1A test ... are suggestive of [SMEI].”

C

The petitioners in both cases sought compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-l to 300aa-34 (“Vaccine Act”), alleging that the DTaP vaccination was a substantial cause of each child’s SMEI. The evidence submitted to the special master in both cases was largely the same, and much of it — including key testimony for the respondent concerning the SCN1A gene mutation — was presented in a single consolidated hearing. Dr. Marcel Kinsb-ourne testified for the petitioners. He testified that in both cases the DTaP vaccinations were a substantial contributing cause of the SMEI. He explained his theory of causation as follows: “The DTaP vaccine[s] [received by Amelia and Rachel] caused [each of them] to have a fever; that fever caused a prolonged seizure classified as a complex febrile seizure; and that seizure damaged [the] brain, lowering [the] level of seizure propensity, thus facilitating further seizures.” However, Dr. Kinsb-ourne agreed that “a trigger doesn’t necessarily have to have a further deeper impact,” and he admitted that he had simply “inferred” that the children had suffered brain damage from the fact of their initial seizures. He agreed that there was no clinical manifestation of the inferred brain damage in either case.

In support of his theory, Dr. Kinsbourne relied on a series of medical articles, which the special master did not find persuasive. Some of the articles on which Dr. Kinsb-ourne relied concerned the DTP vaccine, rather than the DTaP vaccine. The special master found those articles unhelpful because neurological reactions to the two different vaccines “do not occur with the same frequency, nor [do they present] the same relative risks.” Dr. Kinsbourne also relied on an article by Berkovic et al. to support his theory. The special master, however, found that the Berkovic article supported the respondent’s position, not Dr. Kinsbourne’s theory, because the authors of that article did not find that vaccines are a “trigger for encephalopathy” as Dr. Kinsbourne argued. Instead, that article concluded that individuals with certain mutations in the SCN1A gene “seem to develop.SMEI or SMEB [a related seizure condition] whether or not they are immunized in the first year of life. We do not think that avoiding vaccination, as a potential trigger, would prevent onset of this devastating disorder in patients who already harbour the SCN1A mutation.”

In evaluating Dr. Kinsbourne’s testimony and qualifications, the special master expressed concern “regarding Dr. Kinsb-ourne’s reliability as an expert witness” due to the fact that Dr. Kinsbourne “has not maintained a hospital based clinical pediatric neurology practice since 1981.” The special master noted that Dr. Kinsb-ourne’s testimony “reflected his lack of recent clinical practice,” and that “[h]is testimony was highly generalized and lacked any grounding in practice.” He also noted that “Dr. Kinsbourne does not publish, research, teach, counsel, attend meetings or conferences, or have any special training in the field of genetics.” The special master concluded that “[t]he fact that for the past twenty-five years Dr. Kinsbourne has not focused his practice, research, or teaching in the field of seizure disorders, and that Dr. Kinsbourne has no expertise in the field of genetics significantly limited his ability to offer reliable, persuasive, and cogent testimony in this case.” Although the special master encouraged the petitioners to submit expert *1377 testimony from a geneticist, they declined to do so and relied solely on Dr. Kinsb-ourne.

Three experts testified for the respondent. In Amelia Stone’s case, Dr. Michael Kohrman and Dr. Gerald Raymond testified for the respondent. In Rachel Ham-mitt’s case, Dr. Max Wiznitzer and Dr. Raymond testified for the respondent.

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Bluebook (online)
676 F.3d 1373, 2012 WL 1432525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-secretary-of-health-and-human-services-cafc-2012.