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

33 Fed. Cl. 97, 1995 U.S. Claims LEXIS 64, 1995 WL 151895
CourtUnited States Court of Federal Claims
DecidedMarch 23, 1995
DocketNo. 93-529V
StatusPublished
Cited by5 cases

This text of 33 Fed. Cl. 97 (Walker v. Secretary of the Department 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
Walker v. Secretary of the Department of Health & Human Services, 33 Fed. Cl. 97, 1995 U.S. Claims LEXIS 64, 1995 WL 151895 (uscfc 1995).

Opinion

ORDER

HARKINS, Senior Judge.

Petitioners seek review in the United States Court of Federal Claims under the National Childhood Vaccine Injury Compensation Program (the Program) of a special master’s decision on entitlement, filed July 6, 1994, that denied compensation.

The Program was established in 1986 as part of the National Childhood Vaccine Injury Act, Pub.L. No. 99-660, tit. III, § 311(a), 100 Stat. 3758. Amendments in 1987, 1988, 1989, 1990, 1991, and 1992, changed substantially procedures applicable to the functions of special masters, and review of decisions of special masters. Provisions governing the Program, as amended, are contained in 42 U.S.C. §§ 300aa-10 through 300aa-34 (1988 & Supp. V 1993).1 For convenience, further reference to the Program in this order will be to the relevant subsection of “42 U.S.C. § 300aa—.”

The procedural history prior to the special master’s July 6, 1994, decision is unusual. A petition was filed for compensation under the Program on August 23, 1993, that alleged Kenneth L. Walker, IV (Kenneth) died on September 14, 1991, as a result of a diphtheria-pertussis-tetanus (DPT) vaccination that he received on September 13,1991. Medical records showed that Kenneth was born a healthy child on July 15, 1991. He remained in good health through the date of his DPT shot on September 13,1991. The emergency room records show that Kenneth was brought to the Poeono Medical Center on September 14, 1991, “not breathing.” The death certificate and autopsy report show that Kenneth died on September 14, 1991; the designated cause of death was Sudden Infant Death Syndrome (SIDS). See Hellebrand v. Secretary of DHHS, 999 F.2d 1565 (Fed.Cir.1993).

On August 25, 1993, the special master found the petition was deficient; that the medical records did not support the claim; and ordered the Walkers to supplement the record with an affidavit of a medical expert [99]*99that stated an opinion that to a reasonable degree of medical certainty the DPT vaccination caused Kenneth’s death. Petitioners then filed additional affidavits of three family members and an affidavit of a medical expert that relied on the representations in the family members’ affidavits. The medical expert concluded Kenneth suffered an encephalopathy as a result of the receipt of the DPT vaccine and that the encephalopathy caused the death.

Respondent’s December 30, 1993, report recommended there was no entitlement to Program compensation. The bases of respondent’s report were that the medical records did not support petitioners’ claim, that petitioners’ medical expert opinion relied on the representations of the petitioners alone and that the opinion failed to articulate a medical theory causally connecting the vaccination and the injury by proof of a logical sequence of case and effect, supported by reputable medical or scientific explanation.

The special master, after examination of the petition and affidavits, concluded that many of petitioners’ allegations were not corroborated in the medical records, and that review of the medical records suggested Kenneth was well before he died. The special master conducted a hearing on April 12, 1994, that was limited to resolving issues of fact.

Petitioners and two other family members testified at the hearing. Respondent offered no evidence.

On June 1, 1994, the special master entered an order establishing the facts of Kenneth’s condition following his vaccination, based on the weight he assigned to each witness’s testimony at the hearing. The order includes the following determination:

The special master had an ample opportunity to observe the witnesses during thorough direct examination and cross-examination, to question the witnesses himself, and to assess their demeanor at the hearing. Mrs. Walker described very dramatic behavior — including prolonged inconsolable crying; projectile vomiting; and back-arching. See, e.g., Tr. at 16-18, 22-25, 72-75. The special master finds that many portions of Mrs. Walker’s testimony were embellished. He gives the testimony little weight. Mrs. Kennedy, Mr. Walker .and Mr. Kennedy depicted less sensational events. Their testimony was more even and more reasoned than Mrs. Walker’s testimony. The special master gives their testimony greater weight.

The June 1,1994, order contains nine findings of fact, based on the record as a whole. The order also directed petitioners to consult with their medical expert and obtain a supplemental opinion based upon the findings of fact as found by the special master.

On July 5, 1994, petitioners by motion requested the special master to reconsider the findings. Petitioners informed the special master that their medical expert “advises petitioner that he cannot issue a report supporting petitioners claim in the light of the special master’s findings of fact.”

In the July 6, 1994, decision on entitlement, petitioners’ arguments for reconsideration of the special master’s findings of fact were considered and reasons were given for their rejection. Petitioners were unable to supplement the record with a medical expert’s opinion, and, accordingly, the special master ruled petitioners were not entitled to Program compensation.

Discussion

Review of a special master’s decision in the Court of Federal Claims is of a very limited nature. This court may not set aside any findings of fact or any conclusion of law of the special master unless such findings of fact or conclusion of law are “found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Section 12(e)(2)(B). In the absence of such findings, this court either must uphold the findings of fact and conclusions of law and sustain the decision, or remand the petition to the special master for further action in accordance with the court’s directions. Section 12(e)(2)(A), (C).

The Program is unique in the Judicial Branch; it operates under special procedures. See Munn v. Secretary of DHHS, 970. F.2d 863, 868-69 (Fed.Cir.1992). The Program standard of review requires recog[100]*100nition be given to the special masters’ expertise in the development of procedures in this novel program.

To prove a Table Injury, petitioners must establish that the “first symptom or manifestation of the onset” of the vaccine injury or condition occur within the time period prescribed in the Vaccine Injury Table. Section 11(c)(1)(C); section 14(a)(1). Petitioners alleged that Kenneth suffered an encephalopathy immediately following his receipt of the DPT vaccination on September 13, 1991, and adduced testimony at an evidentiary hearing in support of that allegation. The special master, however, made findings of fact concerning that testimony from which petitioners’ medical expert was unable to conclude that Kenneth suffered an encephalopathy.

Petitioners’ motion for review objects that the findings of fact in the June 1, 1994, order, with respect to credibility of the witnesses, were arbitrary and capricious. Petitioners identified findings Nos. 3 and 7 in the June 1, 1994, order as episodes on which their expert had based his opinion, and stated the special master’s findings removed the basis for his opinion. These findings were:

3.

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33 Fed. Cl. 97, 1995 U.S. Claims LEXIS 64, 1995 WL 151895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-secretary-of-the-department-of-health-human-services-uscfc-1995.