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

24 Cl. Ct. 400, 1991 U.S. Claims LEXIS 509, 1991 WL 228034
CourtUnited States Court of Claims
DecidedOctober 23, 1991
DocketNo. 90-888V
StatusPublished
Cited by54 cases

This text of 24 Cl. Ct. 400 (Thibaudeau 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
Thibaudeau v. Secretary of the Department of Health & Human Services, 24 Cl. Ct. 400, 1991 U.S. Claims LEXIS 509, 1991 WL 228034 (cc 1991).

Opinion

NETTESHEIM, Judge.

This case is before the court on petitioner’s motion for review of a special master’s dismissal of her petition for compensation brought under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. [401]*401§§ 300aa-l—300aa-34 (1988), as amended by several public laws codified in 42 U.S.C.A. §§ 300aa-l—300aa-34 (1991) (the “Vaccine Act” or the “Act”). The issue for decision is whether the special master permissibly rejected petitioner’s expert opinion. Argument is deemed unnecessary.

FACTS

The medical records for much of the period at issue are unavailable. The following facts are those asserted in the affidavit submitted by petitioner. Constance J. Thibaudeau was bom on February 10, 1958, at St. Patrick Hospital, Missoula, Montana, to Colleen Thibaudeau (“petitioner”) and John Thibaudeau. Petitioner experienced no unusual symptoms during her pregnancy or during Constance’s birth. On March 11, 1958, at the age of one month, Constance was taken to Dr. G.H. Barmeyer for her first physical examination. Dr. Barmeyer pronounced Constance a healthy baby. Constance experienced no untoward effects after her first and second vaccinations. Constance received her third vaccination, an inactivated polio vaccine, on March 13, 1959. On the morning of March 14, 1959, Constance appeared to be in shock and was taken to St. Patrick Hospital. Dr. Hal Schwartz examined Constance and recommended that petitioner keep her in the hospital overnight for observation. During what became a 17-day hospitalization, Constance experienced severe convulsions and lapsed into a coma for several days. These occurrences resulted in partial paralysis of her right side for a period of time. Constance was diagnosed as having encephalitis after various tests were conducted at the hospital. Constance had to re-learn various skills, such as walking alone and drinking from a cup, upon her release from the hospital.

Constance resumed having seizures at the age of two following a move to Deer Lodge, Montana. A doctor in Deer Lodge prescribed phenobarbital to control the seizures. Constance has taken this medication from that time forward. Constance began attending a speech clinic in 1961 and was enrolled in kindergarten in Helena, Montana, in 1963. The next year Constance moved up to the first grade, but was held back twice without passing. From testing within the school system, it was determined that Constance was mentally retarded. In 1966 Constance started special education classes. She eventually graduated from high school in Great Falls, Montana, where she is currently employed part-time at a yogurt store. However, Constance’s seizures and retardation necessitate continual custodial care by her parents.

Both parties’ medical experts testified during a telephone hearing held on August 8, 1991. Special Master Denis J. Hauptly issued his decision, remarkable both for its brevity and lack of discussion of the Vaccine Act, on August 19, 1991, as amended on August 22, 1991, finding that petitioner had failed to meet her burden of proof and dismissing the action. Thibaudeau v. Secretary of HHS, No. 90-888V, 1991 WL 172256 (Cl.Ct.Spec.Mstr. Aug. 19, 1991). Specifically, the special master found that petitioner’s expert’s conclusion that the polio “vaccine caused an immune system reaction, essentially an allergic reaction, which in turn led to an encephalopathic reaction,” Thibaudeau, slip op. at 2, was based on the temporal relationship of the administration of the vaccine and the onset of symptoms. The special master noted that the expert “admitted that the type of encephalitis seen in this case most commonly would be caused by herpes virus.” Id. The special master concluded that the expert’s theory was “speculative at best,” id., given the lack of contemporaneous medical evidence.

Petitioner filed her motion for review in the Claims Court on September 11, 1991, contending that the special master disregarded her expert testimony solely on the basis that the expert relied on the temporal relationship of the symptoms and the administration of the vaccine.

DISCUSSION

1. Standard of review

On review of a decision by a special master, the Claims Court is authorized to [402]*402“set aside any findings of fact or conclusion^] of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law.” 42 U.S.C.A. § 300aa-12(e)(2)(B). The Federal Circuit recently affirmed that “this standard of review applies to all cases filed after the effective date of the [1989] amendment ...,” Hines v. Secretary of HHS, 940 F.2d 1518, 1523 (Fed.Cir.1991), including the case at bar. The issue of whether the evidence of record warrants a conclusion that a vaccine caused an injury calls for review under the arbitrary and capricious standard. Id. at 1527. According to the Federal Circuit, “ ‘[Arbitrary and capricious’ is a highly deferential standard of review....” Id. at 1528.

The Supreme Court, in the context of reviewing a federal agency’s decision under the Administrative Procedure Act, 5 U.S.C. § 706 (1988), explained that under the arbitrary and capricious standard a reviewing court must consider “whether the [federal agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971) (citing cases) (quoted in Hines, 940 F.2d at 1527). “Although ... [the] inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one____” Citizens To Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. at 824; see also Hyundai Elecs. Indus. Co. v. ITC, 899 F.2d 1204, 1209 (Fed. Cir.1990) (the “touchstone” of arbitrary, capricious, and abuse of discretion standard of review is rationality—consideration of all relevant factors absent a clear error of judgment). In Hines the Federal Circuit charted the course for a special master’s decision under the arbitrary and capricious standard: It must 1) consider the relevant evidence in the record as a whole; 2) draw plausible inferences from the evidence; and 3) articulate a basis for decision that is rational. Hines, 940 F.2d at 1528.

2. Rejection of petitioner’s medical expert testimony

The special master’s decision does not rely on respondent’s expert testimony, nor does it imply any weight assigned to credibility. The special master ruled against petitioner on the ground that she failed to meet her burden of proof.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
24 Cl. Ct. 400, 1991 U.S. Claims LEXIS 509, 1991 WL 228034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibaudeau-v-secretary-of-the-department-of-health-human-services-cc-1991.