Suel v. Secretary of Department of Health & Human Servies

31 Fed. Cl. 1, 1993 U.S. Claims LEXIS 343, 1993 WL 544234
CourtUnited States Court of Federal Claims
DecidedDecember 21, 1993
DocketNo. 90-935V
StatusPublished
Cited by8 cases

This text of 31 Fed. Cl. 1 (Suel v. Secretary of Department of Health & Human Servies) 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.

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Suel v. Secretary of Department of Health & Human Servies, 31 Fed. Cl. 1, 1993 U.S. Claims LEXIS 343, 1993 WL 544234 (uscfc 1993).

Opinion

OPINION

MEROW, Judge.

This vaccine ease comes before the court on a motion for review filed by the petitioners on July 19, 1993, challenging the Special Master’s June 18, 1993 decision in this matter.1

Petitioners, Thomas and Amelia Suel, on behalf of their son David Suel, commenced an action in this court on September 27,1990, under the National Childhood Vaccine Compensation Act of 1986, codified as amended at 42 U.S.C. §§ 300aa-l et seq. (West Supp. 1991) (Vaccine Act). Petitioners allege that David suffered significant aggravation of his tuberous sclerosis (TS) in the form of an encephalopathy and a residual seizure disorder within three days after receiving his first DPT vaccination on October 22, 1986. The respondent challenged petitioners’ contention on the ground that the onset of David’s seizure disorder occurred outside the Table time limits and, in the alternative, David’s current condition is due to his tuberous sclerosis and is unrelated to the administration of the vaccine.

Hearings were held on October 21, 1991 (at the Mayo Clinic) and on November 13, 1991. Testifying for the petitioners was Dr. Manuel Gomez2, Dr. Marcel Kinsboume, Mrs. Amelia K. Suel, and Mr. Thomas J. Suel. Testifying for respondent was Dr. Huntley Hardison. Special Master Millman issued her decision on June 18, 1993 denying compensation. She determined that the petitioners satisfied their burden of proving on-Table onset of David’s first seizure, but failed to satisfy their burden of showing that the DPT vaccine significantly aggravated his tuberous sclerosis, 42 U.S.C. § 300aa-13(a)(1)(A), or that the residual effects of the vaccination lasted more than six months, 42 U.S.C. § 300qa-ll(c)(l)(D)(i). The Special Master held that the respondent had satisfied its burden of proving that David’s condition is due to his tuberous sclerosis, a factor unrelated to the DPT vaccination. 42 U.S.C. § 300aa-13a(a)(l)(B). Pursuant to 42 U.S.C. § 300aa-12(e)(l), petitioners filed a timely motion on July 19, 1993, seeking review in this court of the Special Master’s decision.

FACTS

David Suel was born on June 8, 1986 in Shakopee, Minnesota. Although he was subsequently diagnosed with TS, he appeared normal at birth and had not exhibited any clinical manifestations of his disease. At the age of five months, David received his first DPT vaccination on October 22, 1986. Amelia Suel testified that on October 24, 1986, she noticed that David’s eyes rolled back into his head. Although Mrs. Suel thought it was unusual, at the time she and her husband interpreted David’s eye-rolling as a sign of sleepiness or as a temporary reaction to his DPT vaccine.3 During the following week, [3]*3from October 25 to November 1, Mrs. Suel noticed a few more eye-rolling episodes. On October 27, 1986, five days after his DPT vaccination, Mrs. Suel noticed that David began to sleep longer and was progressively sleeping longer each day over the course of a week.4 The first medical record following the vaccination is dated November 10, 1986, 19 days after the DPT shot and indicates that David was “sleeping a lot more lately, 20 out of 24 hours.”5 On November 13, Mrs. Suel started noticing the eye-rolling again and telephonically reported the episodes to the doctor.6 Between November 13 and November 16, 1986, the eye-rolling episodes continued and were now accompanied by head nodding which got progressively worse. Mrs. Suel called David’s pediatrician, Dr. Pistulka, on November 26, 1986 and described David’s symptoms. By that time David was having four seizures a day aeeom-panied by hand jerking and head dropping. Dr. Pistulka told her that David appears to have a seizure disorder7 and scheduled an EEG for that evening.8 The EEG showed abnormal brain activity.9 On November 29, 1986, David was admitted to Minneapolis Children’s Medical Center. A CT brain scan confirmed a diagnosis of tuberous sclerosis and infantile myoclonic seizures secondary to TS.10 David was put on Phenobarbital, De-pakene and ACTH to control his seizures. Dr. John McDonald, a pediatric neurologist at Minneapolis Children’s Medical Center who attended to David, told Mr. & Mrs. Suel that David should not receive pertussis vaccine in his future inoculations because it would aggravate his tuberous sclerosis.11 Dr. McDonald referred David to Dr. Manual Gomez at the Mayo Clinic for further examination and evaluation. David’s last ACTH [4]*4injection was on January 11, 1987. On January 16, 1987, his seizures recurred.12

At the time of the hearing in November 1991, David was 5 and one-half years old. He had the mental capacity of a two-year old and the verbal capacity of a twenty-month old. He had a 50 word vocabulary, but usually communicated one word at a time. He was not toilet-trained and had delayed motor skills, unable to do fine motor activities like hold a pencil.13

The medical records in this case indicate that David’s seizure activity began sometime in early November 1986, between November 3 to November 15, 1986. Contemporaneous medical records do not report David’s first eye-rolling experience occurring on October 26, 1986 or describe his seizure activity in relation to his October 24,1986 DPT vaccination. (Presumably, this was due to the fact that at the time of David’s early medical problems, Mr. & Mrs. Suel were not aware that the eye-rolling could constituted a seizure.) Nevertheless, Special Master Millman found Mrs. Suel to be credible (“eminently believable”) and held that the petitioners satisfied their burden of proving on-Table onset of David’s first seizure.14

MEDICAL TESTIMONY

Dr. Manuel Gomez. Dr. Gomez is the world’s leading expert on tuberous sclerosis. An excellent description and summary of Dr. Gomez’s writings on tuberous sclerosis and his October 21, 1991 testimony is found in Special Master Millman’s discussion in Costa v. Secretary of HHS (“Costa I”), No. 90-1476V, 1992 WL 47334 (Ct.Fed.Cl.Spec.Mstr. February 26, 1992) slip op. at pp. 6-24, which was condensed in Costa v. Secretary of HHS, 26 Cl.Ct. 866 (1992):

According to Dr. M. Gomez ... TS is defined as “a complex, genetically determined, variably expressed multisystem disorder of germ-cell organization and proliferation resulting in hamartomatous growth, and occasionally neoplasms, in one or more organs.” [M. Gomez, Tuberous Sclerosis 63 (2d ed. 1988) ] [other citations omitted] TS causes fleshy growths, or lesions, to appear on some organs, including the brain.

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31 Fed. Cl. 1, 1993 U.S. Claims LEXIS 343, 1993 WL 544234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suel-v-secretary-of-department-of-health-human-servies-uscfc-1993.