Wittner ex rel. Wittner v. Secretary of the Department of Health & Human Services

43 Fed. Cl. 199, 1999 U.S. Claims LEXIS 28, 1999 WL 61892
CourtUnited States Court of Federal Claims
DecidedJanuary 26, 1999
DocketNo. 90-3425V
StatusPublished
Cited by4 cases

This text of 43 Fed. Cl. 199 (Wittner ex rel. Wittner 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.

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Wittner ex rel. Wittner v. Secretary of the Department of Health & Human Services, 43 Fed. Cl. 199, 1999 U.S. Claims LEXIS 28, 1999 WL 61892 (uscfc 1999).

Opinion

OPINION

MEROW, Judge.

This vaccine case is before the court on petitioner’s motion for review of the special master’s decision denying compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-1 to 300aa-34 (1994) (Vaccine Act), for injuries sustained by Brian Christopher Wittner. The special master determined that petitioner, Nicholas Wittner (Brian’s father), failed to prove under the Table or non-table method that diphtheria-pertussis-tetanus (DPT) vaccinations caused or significantly aggravated Brian’s encephalopathy and seizure disorder. Wittner v. Secretary of Dep’t of Health and Human Servs., No. 90-3425V (Fed.Cl.Spec.Mstr. Aug. 26, 1998). Petitioner contends that the special master’s decision should be set aside for two reasons. First, he argues that she improperly permitted the Secretary of DHHS to contact and call as a witness Dr. Michael Nigro, a pediatric neurologist who treated Brian but who also was hired by petitioner as a non-testifying expert consultant. Second, he asserts that the special master’s conclusion that he did not meet his burden of proof was arbitrary and capricious.

For the reasons stated below, it is concluded that the. special master acted well within her discretion in allowing the testimony of Dr. Nigro. In addition, her finding that petitioner did not meet his burden of proof was reasonable and amply supported by the record. Accordingly, the special master’s decision is affirmed.

I. BACKGROUND

a. Factual Background

Brian Christopher Wittner was born on July 24, 1985, in Detroit, Michigan. He received DPT vaccinations on October 5, 1985 (about two-and-a-half months of age); December 3, 1985 (about four months of age); and January 28, 1986 (about six months of age). The vaccinations were administered by Dr. Haas, a general practitioner.

In March of 1986, the Wittners took Brian to a pediatrician because of concerns about his development. Brian was then referred to Dr. Gary L. Trock, a neurologist, who evaluated Brian on March 11, 1986. According to Dr. Trock’s records, the. Wittners had recently become concerned about Brian because he was developing at a much slower rate than his sister had at the same age. Dr. Trock diagnosed Brian as having “static congenital [201]*201encephalopathy with resulting microcephaly, global developmental impairment, mild spastic tetrapareses, and upper motor neuron dysfunction.” Pet.’s Ex. E at 1-2.

On April 14 and May 9, 1986, Brian was brought to another neurologist, Dr. Michael A. Nigro, Director of the Child Neurology Division of the Children’s Hospital of Michigan. From May 13-16, 1986, Brian was hospitalized under Dr. Nigro’s care. His medical records contain a history of Brian’s condition provided by the Wittners. The records state that at four months old, Brian was sitting with slight support, smiling, and had good head control. At four to five months old, the Wittners noticed Brian had a very marked startle response during which he would throw his arms and head back. At six months, Brian’s development seemed slow. He began to turn from front to back but was sitting only with support. He became less attentive and had an infrequent social smile. After six months of age, Brian became more withdrawn and very rarely smiled or interacted. While Brian’s head circumference was at the 50th percentile at about one month of age, it fell to the 5th percentile by seven months. On May 3, 1986, Brian had a grand mal seizure lasting 2-3 minutes. The seizure was marked by muscular contractions and extensions every 5-10 seconds. Brian’s eyes rolled back and he was afebrile. The Wittners reported that there had not been an episode like this before. Pet.’s Ex. F at 226-27.

Dr. Nigro’s impression was that Brain had a progressive encephalopathy manifested by decreasing head growth, diminished responsiveness, and startle reactions with epilepsy. Brian was discharged on May 16, 1986, and follow-up visits with Dr. Nigro were arranged. In total, Dr. Nigro treated Brian for nearly five years, from April 1986 through February 1991.

Currently, Brian is severally mentally retarded. He cannot walk or talk and has limited self help skills. He has a combination of diffuse and focal neurologic abnormalities, hypertonia and hypotonia, a poorly controlled seizure disorder, and limited social awareness.

b. Proceedings Before the Special Master

On October 1, 1990, Mr. Wittner filed a petition on behalf of Brian seeking compensation under the Vaccine Act. In the petition (as amended on September 20, 1995), he alleged that Brian suffered the onset or significant aggravation of an encephalopathy and seizure disorder within 72 hours of his DPT vaccinations, as provided in the Vaccine Injury Table. See 42 U.S.C. 300aa-14(a). In the alternative, he alleged that the vaccinations actually caused or significantly aggravated Brian’s condition. See 42 U.S.C. 300aa-11(c)(1)(c)(ii)(II).

On March 4, 1991, Mr. Wittner filed supporting documentation, including affidavits from himself and Dr. Nigro. Mr. Wittner stated in his affidavit that Brian appeared normal for the first “three to four months” of his life and “began to startle in an exaggerated way in late October and November.” First Wittner Aff. ¶ 3. Dr. Nigro attested that the onset of Brian’s neurological regression “coincides with the DPT vaccinations” and that the vaccinations “may have contributed to or aggravated Brain’s encephalopathy.” First Nigro Aff. ¶¶ 3-4.

The special master held an evidentiary hearing on March 21 and September 25, 1997. Testifying for petitioner were Mr. and Mrs. Wittner; Kathyrn Flanagan, Brian’s babysitter; and Dr. Eric Saslow, a pediatric neurologist. Testifying for the Secretary were Dr. Arnold Gale, a pediatric neurologist, and Dr. Nigro.

(1) Testimony of Nicholas Wittner

Mr. Wittner testified that Brian’s birth was normal and he developed normally for the first three months of his life. After the first DPT vaccination, Brian was fussy, cried, and developed a fever. Mr. Wittner called Dr. Haas’s office and was told that fever was a normal reaction to the vaccine. Brian’s fever subsided the next day. Tr. I at 13-14, 42-49.1

[202]*202Mr. Wittner also testified that Brian became unresponsive, exhibited a fixed gaze, and began having startle seizures after the initial vaccination. In addition, Brian began to lose abilities he had previously acquired. Before the vaccination, Brian could hold up his head, smile, and prop himself up. However, by January 1986, he could no longer hold his head up, his mouth was drooping, and he was not interacting. Brian’s seizures also became more pronounced and his head stopped growing. Tr. I at 46, 52-54.

The special master questioned Mr. Wittner about his first affidavit which states that Brian developed normally for the first three to four months of his life (ie., until late October or November) and that his seizures began at the end of October rather than right after the first vaccination. Mr. Wittner explained that, at the time he prepared the affidavit, he did not have the family calendar to tie down the relevant dates.

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43 Fed. Cl. 199, 1999 U.S. Claims LEXIS 28, 1999 WL 61892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wittner-ex-rel-wittner-v-secretary-of-the-department-of-health-human-uscfc-1999.