Sword v. United States

44 Fed. Cl. 183, 1999 U.S. Claims LEXIS 147, 1999 WL 428036
CourtUnited States Court of Federal Claims
DecidedJune 10, 1999
DocketNo. 90-1491V
StatusPublished
Cited by25 cases

This text of 44 Fed. Cl. 183 (Sword v. United States) 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
Sword v. United States, 44 Fed. Cl. 183, 1999 U.S. Claims LEXIS 147, 1999 WL 428036 (uscfc 1999).

Opinion

OPINION

BASKIR, Judge.

This case arises under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. § 300aa-l et seq. (West Supp.1997), as amended (the Vaccine Act). The case is before the Court pursuant to Appendix J of the rules of this Court on Defendant’s Motion for Review of the Special Master’s decision of December 29, 1998, awarding compensation to Petitioners for the vaccine-related death of their daughter.

The Government has raised four objections: First, that the Special Master’s decision is not supported by the factual record, insofar as it is based on a medical explanation not offered by any of the expert witnesses; second, that the Government was wrongfully denied the opportunity to present evidence rebutting the Special Master’s medical explanation; third, that the Special Master failed to apply the proper legal standards for causation; and finally, that the Special Master’s alternative findings of encephalopathy and significant aggravation are arbitrary and capricious. After examining briefs and hearing oral argument, we reject the Government’s petition and affirm the Special Master’s decision.

BACKGROUND

Petitioners’ daughter, Natalie Sword, was born on February 13, 1975. She received her first Diphtheria-Pertussis-Tetanus (DPT) vaccination at two months of age. That vaccination resulted in no apparent adverse reactions. The claim stems from the second DPT vaccination approximately five weeks later. Before the vaccination, she was examined by a physician who noted that the infant laughed and babbled. His examination revealed she had a small cough and was developing a chest problem but found her lungs were clear.

Natalie was vaccinated at approximately 10:30 a.m. She immediately started crying, drank some of her formula, and fell asleep. She never again awoke despite a number of attempts by her parents to feed her. Natalie did not respond to her bottle or to ice cream which her father had put to her mouth. Within four hours of the vaccination she was dead.

The evidence presented at the hearing included Natalie’s medical records, the report of autopsy, and testimony from the Petitioners, and from Dr. Marcel Kinsbourne and Dr. John J. Shane on their behalf. The Government offered the expert opinions of Dr. Russell D. Snyder, Dr. Lester S. Adelman, and Dr. Virginia M. Anderson.

In a lengthy decision, the Special Master summarized and evaluated all of the evidence presented, which we now paraphrase:

Dr. Kinsbourne, a pediatric neurologist, concluded that Natalie suffered an on-Table encephalopathy resulting in her death. He also countered Respondent’s expert, Dr. Anderson, who felt that Natalie suffered from congenital cystic adenomatoid malformation (CCAM), a condition that causes lesions on the lungs which in turn entrap carbon dioxide. While Dr. Kinsbourne agreed that Natalie had CCAM, he maintained that the DPT caused her death. He based his [185]*185opinion upon the depth of Natalie’s non-responsitivity so soon after the vaccination.

Dr. Shane, a forensic neuropathologist, also testified that Natalie’s death resulted from DPT-eneephalopathy. He was persuaded by classic indications of encephalopathy and lack of CCAM symptomology noted by Dr. William Cox, a pathologist who had formerly been retained by Petitioners. Like Dr. Kinsboume, Dr. Shane conceded that the CCAM condition existed, but maintained it did not cause Natalie’s death.

Dr. Adelman, on the other hand, testified for Respondent that Natalie suffered from a form of a bacterial lung infection. At the hearing, Dr. Adelman stopped short of concluding that the infection caused the child’s death, choosing to defer to Dr. Anderson’s opinion.

The Special Master found that Dr. Anderson attributed Natalie’s death solely to her CCAM condition, although as we shall see, Dr. Anderson’s testimony was not that unequivocal. Dr. Anderson admitted that .the DPT vaccination may have initiated Natalie’s somnolence, but believed the DPT vaccine was unrelated to Natalie’s death. We shall return to Dr. Anderson’s testimony.

Dr. Snyder also testified for Respondent. He did not believe Natalie had an acute encephalopathy after the vaccination, due to the lack of symptoms other than drowsiness. Principally relying upon Dr. Anderson’s report, Dr. Snyder attributed Natalie’s death to some sort of pulmonary difficulty, but was unaware of the condition known as CCAM.

Despite the divergence in the opinions of Petitioners’ and Respondent’s experts, all generally agreed that it was not Sudden Infant Death Syndrome that caused Natalie’s death, as the 1975 autopsy reported.

The documentary evidence also conflicted. The two-decades-old autopsy noted a lesion on the lungs but concluded that it was due to over-aggressive pulmonary resuscitation. Dr. Anderson noted the lesion is consistent with her theory of a CCAM. On the other hand, this lesion affected only part of one lung. Natalie’s medical record, including the notes of her pediatrician who had examined her and found that her chest was clear, support Kinsbourne’s opinion that CCAM did not cause the infant’s death. However, as the Special Master noted, the record indicates that Natalie was suffering from a cough the day she was administered the vaccination, a factor which could point toward some pulmonary difficulties, perhaps attributable to the CCAM.

FINDINGS OF THE SPECIAL MASTER

The Special Master found that the Swords’ expert witnesses and their description of Natalie’s extreme somnolence following the DPT inoculation support a finding of on-Table encephalopathy caused by the vaccination.

Although not argued by Petitioners at the hearing, the Special Master also concluded that the Swords’ were entitled to judgment on the alternative theories of causation in fact and significant aggravation of a subelinical disease leading to death. In fact, the Special Master found that Petitioners’ burden of demonstrating causation in fact was actually established by Respondent’s witnesses, primarily Dr. Anderson.

The Special Master found that “[t]he scenario that seems most likely ... is that Natalie experienced drowsiness, a typical response to DPT, and because of her underlying CCAM, she could not recover from her DPT-induced drowsiness because of insufficient reserve of air and died.” Sword v. Secretary of Health and Human Services, 1998 WL 957201, *10 at n. 5 (Fed.Cl. Spec. Master December 29, 1998).

Noting her authority to adopt practices that are “flexible and informal,” the Special Master effectively merged the theories of opposing parties, and provided an alternative conclusion not offered by either party. Anticipating Respondent’s objection, the Special Master cited the legislative purpose of the Vaccine Act to make awards to “vaccine-injured persons quickly, easily, and with certainty and generosity.” Id In the following pages, we will refer to this finding as the “Special Master’s explanation” or the “merged causation theory” or appropriate synonyms.

[186]*186The Government objected to the findings, filing a petition for reconsideration with proffers of expert testimony rebutting the theory espoused by the Special Master. The petition and proffers were rejected by the Special Master. On review, the Government again proffers the excluded evidence, now in the form of affidavits.

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Bluebook (online)
44 Fed. Cl. 183, 1999 U.S. Claims LEXIS 147, 1999 WL 428036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sword-v-united-states-uscfc-1999.