Viscontini v. Secretary of Health & Human Services

103 Fed. Cl. 600, 2012 U.S. Claims LEXIS 229, 2012 WL 860312
CourtUnited States Court of Federal Claims
DecidedFebruary 28, 2012
DocketNo. 98-619V
StatusPublished
Cited by16 cases

This text of 103 Fed. Cl. 600 (Viscontini v. Secretary 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
Viscontini v. Secretary of Health & Human Services, 103 Fed. Cl. 600, 2012 U.S. Claims LEXIS 229, 2012 WL 860312 (uscfc 2012).

Opinion

MEMORANDUM OPINION AND ORDER

CHRISTINE O.C. MILLER, Judge.

This ease is before the court on review of a decision by the special master denying compensation to petitioner under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-l to 300aa-34 (2006) (the “Vaccine Act”). The court has confirmed that the record on review supports the recitation of facts in Special Master Christian J. Moran’s opinion. See Viscontini v. Sec’y of Health & Human Servs., No. 98-619V, 2011 WL 5842577 (Fed.Cl.Spec.Mstr. Oct. 21, 2011). (Unless otherwise noted, the court does not supply its own findings because the special master’s findings have record support. See 42 U.S.C. § 300aa-12(e)(2)(B) (providing that reviewing court may make findings of fact if it first determines that those of special master are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law).) The issue before the court is whether the special master’s findings and conclusion that petitioner’s Crohn’s disease was not caused by a vaccine were arbitrary, capricious, an abuse of discretion, or other[602]*602wise not in accordance with law. Argument is deemed unnecessary.

FACTS

Paul A. Viscontini (“petitioner”) was born on September 17, 1982. Pet’r’s Br. filed Nov. 21, 2011, at 2. As a child, petitioner did not have any significant medical problems. Viscontini, 2011 WL 5842577, at *4. On December 7, 1995, at age thirteen, petitioner received the first of three doses of the Hepatitis B vaccination from his pediatrician, Marcelino DeSantos, M.D. Id. At that time petitioner was 62.5 inches tall and weighed 108.5 pounds. Shortly after he received the vaccination, petitioner suffered a “slight cold” with “flu-like symptoms,” but did not experience nausea or vomiting. Id. Petitioner did not seek medical attention, and no medical record was created to confirm his ailment. Id.

On January 11, 1996, petitioner received the second dose of the Hepatitis B vaccine. Id. According to petitioner and his mother (“Ms. Viscontini”), petitioner developed more severe symptoms shortly after receiving the vaccination. See id. at *4-5. Ms. Viscontini asserted that petitioner experienced “muscle and joint aching, frequent vomiting, and extreme loss of appetite.” Id. at *4. Petitioner confirmed these assertions, explaining that he “was back and forth to the doctor with symptoms of abdominal pain, vomiting and constant nausea.” Id. A January 27, 1996 medical record from Dr. DeSantos reveals that petitioner complained of abdominal pain, pain in both ears, and a headache; the medical record indicates that these problems began two days earlier. Id. at *5.

Petitioner visited Dr. DeSantos again on March 4,1996, because he had been suffering from a sore throat, intermittent cough, and chest pain for three days. Id. Dr. DeSantos performed an examination that suggested a mild throat infection and discovered pectoral and abdominal discomfort. Id. Dr. DeSantos noted that petitioner, a member of his school’s swim team, had been swimming two miles per day and had recently begun weight training, indicating potential overuse syndrome. Id. Ms. Viscontini confirmed that, until February 15, 1996, petitioner had been practicing four or five days each week and swimming two-and-one-half miles each day. Id. After that time, however, Ms. Viscontini explained that petitioner missed most practices on account of chest and abdominal pain. Id.

On March 26, 1996, petitioner returned to Dr. DeSantos. Id. Petitioner had a low-grade fever, was suffering from fatigue and abdominal pain, and had vomited once the previous weekend. Id. On April 2 and May 10, 1996, petitioner again complained to Dr. DeSantos about experiencing abdominal pain. Id. Petitioner contends that in June 1996 he resumed swim training and running and noticed marked improvement in his health, which continued in July 1996. Pet’r’s Br. filed Nov. 21, 2011, at 2-3. The Special Master did not recite this development in this regard, and the court duly notes that its absence is immaterial.

On July 31, 1996, petitioner received the third and final dose of the Hepatitis B vaccine. Viscontini, 2011 WL 5842577, at *6. On August 4, 1996, petitioner again began suffering from abdominal pain, cramps, and a stomachache. Id. Dr. DeSantos evaluated petitioner on August 9, 1996, and requested that additional testing be performed. Id. On September 10, 1996, petitioner saw Kevin Kelly, M.D., a pediatric gastroenterologist, and underwent an upper GI series. Id. The results of that test displayed no evidence of Crohn’s disease. Id. At the time he saw Dr. Kelly, petitioner was 62.5 inches tall and weighed 99 pounds — nearly 9 pounds less than he weighed in January 1996. Id.

Petitioner was hospitalized from November 9 to November 10, 1996, on account of severe epigastric pain and vomiting. Id. On November 12, 1996, petitioner consulted Kenneth Breslin, M.D., a pediatric gastroen-terologist. Id. Dr. Breslin ordered an endoscopy, which was performed on November 14, 1996, and showed results that were consistent with Crohn’s disease. Id. Following his diagnosis, petitioner received treatment from various doctors and underwent an operation that improved his condition. Id.

[603]*603I. Procedural history

On July 29, 1998, Ms. Viseontini — on behalf of petitioner, who was then a minor— filed a petition and affidavit alleging that the Hepatitis B vaccination caused petitioner to develop Crohn’s disease. Id. at *8. No medical records accompanied the petition. Id. The ease was stagnant until August 2001, when petitioner was ordered to file a single medical record. Id. Although medical records were filed, the case was stayed formally in February 2003. Id. The stay was lifted in 2006 when the matter was reassigned to another special master. Id. Thereafter, petitioner filed more medical records, and respondent filed his Rule 4 report on February 28, 2007. Id. Respondent’s report indicated that petitioner had not yet submitted an expert report in support of his claim, nor had his physicians determined the cause of his condition. Id.

On November 9, 2007, petitioner submitted an expert report from Joseph A. Bellanti, M.D. Id. Dr. Bellanti explained that individuals with Crohn’s disease have certain antibodies (“ASCA”) against a type of yeast that is used in the manufacture of the Hepatitis B vaccine. Id. He theorized that, when a person with ASCA is injected with a yeast antigen, an immunologic response is triggered, which can account for the onset and progression of Crohn’s disease. Id. Respondent submitted his own expert report from Andrew S. Warner, M.D., who, in challenging Dr. Bel-lanti’s opinion, noted a complete lack of medical and scientific evidence indicating that the Hepatitis B vaccine can cause or aggravate Crohn’s disease. Id.

In late 2008 the case was transferred to Special Master Moran, who convened a status conference on October 31, 2008. Id. at *9. Petitioner indicated that he intended to replace Dr. Bellanti with another expert. Id.

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103 Fed. Cl. 600, 2012 U.S. Claims LEXIS 229, 2012 WL 860312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viscontini-v-secretary-of-health-human-services-uscfc-2012.