Van Epps v. Secretary of Department of Health & Human Services

26 Cl. Ct. 650, 1992 U.S. Claims LEXIS 372, 1992 WL 197848
CourtUnited States Court of Claims
DecidedAugust 4, 1992
DocketNo. 90-1111V
StatusPublished
Cited by6 cases

This text of 26 Cl. Ct. 650 (Van Epps v. Secretary of 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.

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Van Epps v. Secretary of Department of Health & Human Services, 26 Cl. Ct. 650, 1992 U.S. Claims LEXIS 372, 1992 WL 197848 (cc 1992).

Opinion

ORDER

NETTESHEIM, Judge.

This matter is before the court on petitioner’s motion for review of an order denying compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l-300aa-34 (1988), as amended by several public laws, codified in 42 U.S.C.A. §§ 300aa-l-300aa-34 (West Supp. 1992) (the “Vaccine Act”). Petitioner contends that the special master held her to a burden of proof greater than a preponderance of the evidence and failed to give appropriate weight to the testimony and written reports of her expert. Argument is deemed unnecessary.

FACTS

The following facts are those contained in the medical records, affidavit of petitioner, and the transcript of hearing. Janet Van Epps (“petitioner”) was born on March 21, 1964, in Rockford, Illinois, at Rockford Memorial Hospital to Herbert and Grace Epps. Petitioner’s birth was considered normal with no complications prior to or [652]*652subsequent to delivery. In December 1967, while running a high temperature, petitioner experienced febrile convulsions and was taken to the family doctor. These convulsions were deemed normal and harmless in a child of petitioner’s age with her temperature. On August 3, 1971, petitioner received a mandatory mumps virus vaccination from Dr. Harry Darland. Petitioner claims that within 15 days of receiving the mumps vaccine, she began to experience itching on the right-side of her body and, as time progressed, garbled speech and convulsions. She began to see a number of neurologists who determined that she was brain-damaged, but could not specify the source of her condition. Petitioner continued to have seizures throughout her childhood.

Between September 1, 1971, and August 14, 1972, petitioner was examined by both Drs. John L. Bender and Darland and was placed on the following medications: Belladonna, Phenobarbital, Dilantin, and Mysoline. Since August 1972 petitioner has been seen by physicians at the University Hospital Center for Health Signs and the University of Wisconsin Department of Neurology and Pediatrics. Petitioner has undergone considerable treatment and examinations. Over the years these examinations have revealed the increasing severity of her injury, the more frequent occurrence of her seizures, and the increasingly stronger medications necessary to control them. In 1982 petitioner entered the Mayo Clinic in Rochester, Minnesota, for further neurological examinations at which time an abnormality was discovered in the left hemisphere of her brain. She was later operated on and had tissue, believed to be a source of her epileptic-like seizures, removed. However, her seizures did not stop.

Today, petitioner is a 28-year old woman with severe medical problems. She suffers from a residual seizure disorder and sizable health bills. Her parents play a significant role in her care. On September 20, 1990, petitioner filed for compensation under the Vaccine Injury Compensation Program established by the Vaccine Act, alleging that her residual seizure disorder was directly caused by the mumps vaccination administered to her on August 3, 1971.

Both parties’ medical experts testified at a hearing held on January 21, 1992. Dr. Frank R. Sharbrough, a certified pediatric neurologist, specializing in electroencephalography appeared for petitioner; Dr. Michael H. Kohrman, a certified neurologist also with the same specialty testified for respondent. The special master also heard from petitioner’s parents. Special Master E. LaVon French entered a decision denying compensation. Van Epps v. Secretary of HHS, No. 90-1111V, 1992 WL 88014 (Cl.Gt.Spec.Mstr. Apr. 13, 1992). The special master found that petitioner failed to prove that her seizures fell within the bounds of a Table Injury, since proof by medical records or witnesses was lacking that petitioner suffered the onset of a residual seizure disorder within the required 15 days of receiving the mumps vaccination. Therefore, the special master concluded that she did not qualify to receive compensation for a Table Injury with respect to which causation need not be proved. The special master deemed the testimony of petitioner’s expert, Dr. Sharbrough, insufficient to establish causation in fact by a preponderance of evidence. Although Dr. Sharbrough deemed the likelihood of petitioner’s allegation that the mumps vaccine initiated the onset of seizures as “highly possible,” this testimony, in conjunction with his other evidence, did not establish causation by a preponderance of evidence, according to the special master.

DISCUSSION

On review of a decision by a special master, the Claims Court is authorized to “set aside any findings of fact or conclusion[s] 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 issue of whether the evidence of record warrants a conclusion that a vaccine caused an injury calls for review under the arbitrary and capri[653]*653cious standard. Hines v. Secretary of HHS, 940 F.2d 1518, 1527 (Fed.Cir.1991). See generally Munn v. Secretary of HHS, 970 F.2d 863, 869 (Fed.Cir.1992). This standard of review is “highly deferential to the factual findings of the special master.” Munn, id. Indeed, the Munn opinion characterizes the standard as “the most deferential possible.” Id. at 870.

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____” Id.; 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 applying the arbitrary and capricious standard, a special master 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 the decision that is rational. Thibaudeau v. Secretary of HHS, 24 Cl.Ct. 400, 402 (1991) (citing Hines, 940 F.2d at 1528).

Petitioner seeks review of the special master’s finding that causation was not established. In attempting to set aside this finding, petitioner must demonstrate that it was arbitrary or capricious and/or was not in accordance with the law.

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26 Cl. Ct. 650, 1992 U.S. Claims LEXIS 372, 1992 WL 197848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-epps-v-secretary-of-department-of-health-human-services-cc-1992.