Thornton v. Secretary of Dept. of Health & Human Services

35 Fed. Cl. 432, 1996 U.S. Claims LEXIS 33, 1996 WL 116354
CourtUnited States Court of Federal Claims
DecidedMarch 1, 1996
DocketNo. 90-2971 V
StatusPublished
Cited by3 cases

This text of 35 Fed. Cl. 432 (Thornton v. Secretary of Dept. of Health & Human Services) 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
Thornton v. Secretary of Dept. of Health & Human Services, 35 Fed. Cl. 432, 1996 U.S. Claims LEXIS 33, 1996 WL 116354 (uscfc 1996).

Opinion

OPINION

HORN, Judge.

The above captioned case is before this court on petitioner’s motion for review of the special master’s decision denying compensation to the petitioner. Edith Thornton initially filed her petition for compensation under the Vaccine Program, 42 U.S.C. §§ 300aa-ll, et seq. (Supp.1995), on October 1,1990.1 The complaint was signed and filed for petitioner by Samuel F. MaGuire of Augusta, Georgia, who represented petitioner at the time.2 Ms. Thornton’s claim was dismissed by the special master in an order dated June 2, 1995. Judgment was entered on July 5, 1995, but vacated on August 7, 1995, in order to permit review of the special master’s decision. In her original petition, Ms. Thornton claimed that she had sustained serious injury as a result of the administration of a polio vaccine, Monovalent Sabin # 1, on May 19,1963, in Beaufort, South Carolina. Petitioner also alleged that the vaccine caused paralysis, followed by crippling and debilitating pain, which has adversely affected her health and employability. Respondent requested dismissal of the case and noted the absence of documentation demonstrating that the vaccine had been administered. Moreover, defendant claimed that there was no evidence in the record, aside from her own testimony, that Ms. Thornton suffered from polio.

A first evidentiary hearing was held on July 21, 1993, in Arlington, Virginia, before Chief Special Master Gary J. GolMewicz, at which Ms. Thornton represented herself. At the July 21, 1993 hearing, petitioner’s medical expert, Dr. Rita Udom, testified by telephone. Approximately fourteen months later, on March 28, 1995, after submission of documents and briefs, a second evidentiary hearing was held in College Park, Georgia. At the second hearing on March 28, 1995, Ms. Thornton personally appeared and was represented by A. Leroy Toliver of Atlanta, Georgia. At the hearing on March 28, 1995, testimony was elicited from Ms. Thornton, her son Joseph Thornton, Michael Cohen, M.D., and Robert H. Parrott, M.D., the government’s medical expert witness.

Although the petitioner offered affidavits and oral testimony in support of her claim, the information provided is contradictory. In her initial affidavit, dated September 24, 1990, Ms. Thornton stated that in 1963 she took Monovalent Sabin # 1, administered by a Dr. Parker Jones. Dr. Jones, however, is no longer practicing medicine and has destroyed all of his medical records. Ms. Thornton stated in her first affidavit that “[ajlmost immediately, I started feeling bad.” She enumerated her symptoms as follows;

[434]*434Started with general bodily discomfort; Paralyzed from the neck down; Right arm locked to one side; Legs bending backwards; All-over body, muscle and leg pain; Inability to move; Inability to walk; Wrists locked up and wouldn’t move; Ankles swelled; Legs crippled; Hands would lock up and freeze and I couldn’t move them to ring the registers.

In her oral testimony, she stated:

within a week later, I started feeling bad. I was typing and my arm locked to my side and so the doctor gave me some medication. I went home and within a few days or a week, it passed and then I sort of paralyzed from the neck down. It lasted probably a week, give or take a day ...

Subsequently, on March 14, 1991, Ms. Thornton submitted a second affidavit in which she stated that after receiving the vaccination on May 19,1963, “she did not feel well and ran a fever,” that day and for a couple of days thereafter. According to petitioner, within three to seven days, she “experienced paralysis of her arms and severe pain throughout her body.” Petitioner also stated that “the complete paralysis abated, but her life has been plagued by crippling and debilitating pain.”

In her third affidavit, dated March 23, 1992, Ms. Thornton stated that she received a series of polio vaccinations in 1963, with the first being type 1 OPV, received on May 19, 1963. Although Ms. Thornton distinctly remembers her first vaccination on May 19, 1963, at the Beauford Elementary School, she cannot recall the dates of her second and third polio vaccines, which she claims were administered at Dr. Jones’s office. In the third affidavit, Ms. Thornton used a different time frame and stated that “[a]pproximately three weeks following the series of polio vaccines, I became paralyzed from the neck down, starting with the paralysis of my left arm and progressing to total paralysis of my body.” (Emphasis added.)

To try to establish the dates of the oral polio vaccine given in Ms. Thornton’s local community, petitioner also offered an affidavit from Rosemarie L. Shelley, a nurse with the local health department, who remembers the vaccination being given on May 19, 1963. The affidavit of Ms. Shelley further stated that type 3 vaccine was given on October 20, 1963 and the third, type 2, on December 8, 1963. These dates are verified by Ms. Shelley’s vaccination record. Additionally, petitioner offered the affidavit testimony of Ms. Mary Bowers Starr, who stated that she was waiting on line with Ms. Thornton in 1963 when the OPV type 1 vaccine was given to petitioner, and that it was Dr. Jones who administered the Monovalent Sabin # 1 on a sugar cube.

The medical records in this case also contain two medical histories, one from Dr. Cohen, a rheumatologist, who treated Ms. Thornton between 1980 and 1982, and one from Dr. Wolf, a neurologist, who examined her in 1991. In a letter dated October 22, 1982, Dr. Cohen notes that he was following Ms. Thornton for rheumatoid arthritis, which was first diagnosed in the late 1960’s. Dr. Cohen’s treatment of Ms. Thornton involved two hospitalizations as a result of “recurrent flares” of her arthritis. The recorded medical histories on the occasion of the two hospitalizations, one in 1980 and one in 1982, describe Ms. Thornton’s arthritic problems and recite petitioner’s assertions of the paralysis petitioner reported she had suffered after she received a vaccine in 1963. The medical history for the first hospitalization, in November 1980, indicates that the paralysis “resolved after some eighteen months.”

Dr. Wolf saw Ms. Thornton in 1991, after she filed her petition for compensation under the Vaccine Program. Dr. Wolf performed a neurological evaluation, which included reviewing the medical records, the polio serology and the Electromyography (EMG) performed in 1991. Dr. Wolf concluded his report with a section titled “impression.” The impression section includes the following observations by Dr. Wolf: (1) “Polyneuropathy. The process is mild.” He also stated, however, that he was “uncertain as to whether the patient has any symptoms related to the polyneuropathy;” (2) “past history of ‘paralysis’”, which he concluded was not suggestive of Guillian-Barre syndrome or myelopathy, and that “[t]he patient appears to have a prominent rheumato-logical process”, and; (3) “Arthritis,” under [435]*435wMch he concluded that most of Ms. Thornton’s symptoms are related to her inflammatory deforming arthritis.

Ms. Thornton presented the live telephone testimony of Dr. Rita Udom as her medical expert. Dr. Udom specializes in family medicine and is board eligible in emergency medicine. She, however, has very limited experience with polio. Moreover, the record reflects confusing and conflicting letters, affidavits and testimony submitted by Dr. Udom. Dr.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
35 Fed. Cl. 432, 1996 U.S. Claims LEXIS 33, 1996 WL 116354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornton-v-secretary-of-dept-of-health-human-services-uscfc-1996.