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

21 Cl. Ct. 365, 1990 U.S. Claims LEXIS 337, 1990 WL 125304
CourtUnited States Court of Claims
DecidedAugust 14, 1990
DocketNo. 88-32 V
StatusPublished
Cited by17 cases

This text of 21 Cl. Ct. 365 (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, 21 Cl. Ct. 365, 1990 U.S. Claims LEXIS 337, 1990 WL 125304 (cc 1990).

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. C. 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. C. Benton told her that her son had contracted measles from the vaccine.

Mrs. Strother testified that David remained sick into September 1984. As he recovered David became listless. Hyperactivity and irritability followed the period of listlessness. Dr. C. 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.), Exhibit (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.

On 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 [367]*367in 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.

Petitioners also 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 contended that the Report erred in finding that David’s medical insurance already covers dental work. Petitioners also protested the Report’s limitations on attorney fees and costs.

On November 3, 1989, this court held an oral argument. On November 17, 1989, this court remanded to the special master for a recommended judgment and a supplemental report. This court directed the special master to issue another Report and Recommended Judgment consistent with the court’s opinion. Strother v. Secretary, Dept. of Health & Human Servs., 18 Cl.Ct. 816, 818 (1989).

The special master held a Supplemental Hearing on December 15, 1989. The purpose of the hearing was to hear additional evidence regarding the cause in fact of David’s encephalopathy. At the Supplemental Hearing, the special master took additional evidence from Dr. Lowell White, Dr. Cynthia G. McCormick and Mary Ellen Strother.

On January 8, 1990, the special master filed a supplemental report to this court (Supplemental Report). The special master recommended an award to David of $1,334,-755.00 for future medical and rehabilitative expenses, $12,766.36 for loss of earnings and pain and suffering and emotional distress, $14,357.68 for attorney fees, and $2,875.96 in costs. This recommendation complied with the $30,000.00 cap in Title 42.

On January 11 and 12, 1990, this court held two status conferences. Respondent informed the court of its objections to the special master’s Supplemental Report. Respondent recommended that this court receive the expert medical opinion of another physician. Respondent agreed to be bound by the neutral determination of whether the MMR vaccine caused petitioners’ injuries. Petitioners agreed that this neutral determination could become part of the record.

The parties agreed to seek from Dr. Paul Dyken, an expert in measles encephalopathy, his recommendation of an expert who could review David’s condition. Dr. Dyken recommended three qualified candidates. Petitioners selected one of these doctors, Dr. John Benton, Professor of Pediatrics and Neurology at the University of Alabama at Birmingham, to review David’s case. On March 14, 1990, this court appointed Dr. J. Benton as an expert witness in accordance with Rule 706 of the Federal Rules of Evidence. Dr. J. Benton received David Strother’s medical records and instructions to prepare a report addressing whether the MMR vaccine caused David’s condition.

On April 10, 1990, Dr. J. Benton supplied his report to the parties and the court. The report stated that Dr. J. Benton saw no evidence to suggest a causal relationship between the MMR vaccine and David Strother’s encephalopathy.

On April 23, 1990, petitioners filed an objection to Dr. J. Benton’s medical review and a request for a supplemental report pursuant to further instructions. The objection specifically contended that Dr. J. Benton based his report solely upon review of David’s medical records without any direct consultation with petitioners’ prior physicians. Petitioners also alleged that Dr. J. Benton based his opinions upon some inaccurate assumptions.

On May 1, 1990, respondent filed an objection to petitioners’ motion. Respondent contended that the court’s language with respect to consultation with other physicians or examination of David was permissive not mandatory. Thus, Dr. J. Benton had done only what he perceived as necessary to satisfy himself about David’s condition.

[368]*368On June 1, 1990, this court held a second oral argument. Petitioners objected to Dr. J. Benton’s medical report alleging that it contained numerous inaccuracies and misconceptions regarding David’s development. Petitioners also contended that Dr. McCormick’s testimony was inconclusive as to an alternative etiology.

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21 Cl. Ct. 365, 1990 U.S. Claims LEXIS 337, 1990 WL 125304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strother-v-secretary-of-the-department-of-health-human-services-cc-1990.