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

18 Cl. Ct. 816, 1989 U.S. Claims LEXIS 260, 1989 WL 145801
CourtUnited States Court of Claims
DecidedNovember 17, 1989
DocketNo. 88-32 V
StatusPublished
Cited by17 cases

This text of 18 Cl. Ct. 816 (Strother 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
Strother v. Secretary of the Department of Health & Human Services, 18 Cl. Ct. 816, 1989 U.S. Claims LEXIS 260, 1989 WL 145801 (cc 1989).

Opinion

OPINION AND ORDER1

RADER, Judge.

In this action under the National Childhood Vaccine Injury Act of 1986, codified as amended at 42 U.S.C. §§ 300aa-l (Supp. V 1987) (the Act), petitioners seek compensation for injuries to Harold David Strother (David). On August 9, 1984, Dr. Charles Benton, administered a measles vaccine to David. On August 11,13,15, and again on August 17, Mrs. Strother brought David back to Dr. Benton with a fever, an ear infection, a rash, and other maladies. When Mrs. Strother brought David back for still more treatment on August 20, Dr. Benton purportedly told her that her son had contracted measles from the vaccine.

Mrs. Strother testified that David remained sick into September 1984. As he recovered, according to Mrs. Strother, David became listless. Hyperactivity and irritability followed the period of listlessness. Dr. Benton saw David again on January 2, 1985 and on four more occasions in January. He observed none of these symptoms of hyperactivity and irritability until David’s next visit on July 11, 1985.

David also received treatment from Dr. John Axley, a neurologist. On March 4, 1986, Dr. Axley examined David. On March 26, 1986, David underwent a CT scan on his head and an electroencephalogram (EEG). Neither test revealed significant abnormality.

In March 1987, David suffered a generalized seizure. On February 10, 1988, David had a second EEG. This EEG disclosed abnormalities consistent “with a generalized encephalopathic process____” Transcript of Proceedings, No. 88-32V, filed August 23, 1989 (Tr.), Ex. 3-A, at 18. In other neuropsychological evaluations performed at that time, David displayed communicative, social, and academic abilities well behind his chronological age. Tr., Ex. 3-A, at 15-17.

[818]*818On October 17, 1988, petitioners filed a claim with the United States Claims Court for compensation under the Act. Respondent, after filing an answer contesting petitioners’ entitlement under the Act, withdrew from the case on May 26, 1989. On August 10, 1989, the Special Master held a hearing to take evidence from seven witnesses for the petitioners. Respondent, consistent with its notice of withdrawal, did not appear at the hearing.

On September 18, 1989, the Special Master filed a Report and Recommended Decision (Report). The Report recommended an award to David of $1,331,041.00 for future medical and rehabilitative expenses, $334,328.00 for lost earnings, $150,000.00 for pain and suffering, and $12,890.95 for attorney fees and costs.

Respondent filed an Objection to Report and Recommendation for Judgment (Objection) on October 10, 1989. Respondent contended that petitioners had not shown that the vaccine in fact caused David’s injury. Respondent also challenged the Report’s recommended award for pain and suffering, lost earnings, attorney fees, and costs in excess of the $30,000.00 cap in 42 U.S.C. § 300aa-15(b). Finally, respondent faulted the Report for failure to reduce the compensation to account for any payments David might receive from state or federal health benefit programs.

On November 3, 1989, this court held an oral argument. Petitioners objected to the recommended award in the Report. Petitioners argued for enhancement of the recommended award for future medical and rehabilitative expenses to account for around-the-clock home health care and to account for a normal life span for David. Petitioners further contend that the Report erred in finding that David’s medical insurance covers dental work. Petitioners also protested the Report’s limitations on attorney fees and costs.

Based on the entire record of this case to date, this court remands to the Special Master. The Special Master shall take into account this court’s opinion in issuing another Report and Recommended Judgment.

Discussion

Respondent objects to the Report on three grounds: insufficient proof of causation in fact, improper application of the $30,000.00 cap, and incorrect accounting for David’s eligibility for State or Federal compensation programs. Petitioners likewise set forth objections to the Report. In order to facilitate reconsideration by the Special Master under compressed time limits, this court provides rulings and instructions on several of these outstanding issues.

Table Injury

The Act authorizes compensation “to a petitioner if the court finds on the record as a whole—

(A) that the petitioner has demonstrated by a preponderance of the evidence the matters required in the petition by section 300aa-ll(c)(l) of this title, and
(B) that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death ... is due to factors unrelated to the administration of the vaccine____”

42 U.S.C. § 300aa-13(a)(l). Petitioners bear the burden of proving the factors stated in § 300aa-ll(c)(l). Section 300aa-11(c)(1) requires, in principal part, that petitioners show either that they “sustained ... [an] injury or condition set forth in the Vaccine Injury Table” or that they “sustained ... [an] injury, or condition not set forth in the Vaccine Injury Table but which was caused by a vaccine____” 42 U.S.C. § 300aa-ll(c)(l)(C)(ii)(I). Thus, petitioners must show by a preponderance of the evidence either that they sustained a Table injury or that the vaccine in fact caused their injury.

To show a Table injury, petitioners must prove two elements. First, petitioners must show that they sustained an injury— e.g., encephalitis, anaphylaxis, residual seizure disorder—listed on the Table in § 300aa-14. Second, petitioners must show that they suffered the first symptoms of this injury within the time limits listed on the Table. Thus, the Vaccine Injury Table sets forth a list of vaccines, potential [819]*819injuries, and time frames for initial manifestation of the injury. If an individual received a listed vaccine and sustained a listed injury within a listed time period, the injury is presumed compensable.2

The Vaccine Table, in effect, determines by law that the temporal association of certain injuries with the vaccination will constitute sufficient proof that the vaccine caused the harm. The Table replaces traditional tort standards of causation in fact with a causation in law based on temporal association. The House Committee on Energy and Commerce explained the merits of this approach:

The Committee recognizes that there is public debate over the incidence of illnesses that coincidentally occur within a short time of vaccination. The Committee further recognizes that the deeming of vaccine-relatedness adopted here may provide compensation to some children whose illness is not, in fact, vaccine-related.

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Bluebook (online)
18 Cl. Ct. 816, 1989 U.S. Claims LEXIS 260, 1989 WL 145801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strother-v-secretary-of-the-department-of-health-human-services-cc-1989.