Bunting v. Secretary of Dept. of Health and Human Services

• Decision Date: 24 April 1991
• Docket Number: No. 90-5107,90-5107
• Citation: 931 F.2d 867
• Parties: Gary G. BUNTING, as father and next friend of Bradley Bunting, a minor, Petitioner-Appellant, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 867

931 F.2d 867

Gary G. BUNTING, as father and next friend of Bradley Bunting, a minor, Petitioner-Appellant, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES Respondent-Appellee.

No. 90-5107.

United States Court of Appeals Federal Circuit.

April 24, 1991.

Rehearing Denied June 20, 1991.

Albert S.C. Millar, Jr., Jacksonville, Fla., argued for petitioner-appellant.

Jennifer H. Zacks, Atty., Dept. of Justice, of Washington, D.C., argued for respondent-appellee. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen. and Barbara C. Biddle.

Before RICH, NEWMAN and PLAGER, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.

This case concerns proof of causation of a Table Injury ¹, in accordance with the National Childhood Vaccine Injury Act, 42 U.S.C. Secs. 300aa-1 et seq. The issue is whether the testimonial, documentary, and medical evidence established the requisite causal relationship between the vaccine and Bradley Bunting's injury, in terms of the standard of proof pertaining to the Act.

Gary G. Bunting, as representative of his son Bradley Bunting, appeals the decision of the United States Claims Court denying compensation under the Act. Bunting v. Secretary of the Dep't of Health and Human Services, 19 Cl.Ct. 738 (1990). We reverse on the issue of entitlement, and remand for determination of quantum.

The Bunting Injury

That Bradley Bunting was injured is not disputed. Nor is it disputed that the injuries (encephalopathy and seizure disorder) are listed on the Vaccine Injury Table of the National Childhood Vaccine Injury Act. 42 U.S.C. Sec. 300aa-14(a). The history of Bradley's injury is summarized as follows, as presented by his parents and physicians, by deposition and by live testimony at the hearing before the special master. This history is described in greater detail by the Claims Court, 19 Cl.Ct. at 742-50.

When Bradley Bunting was born, on December 29, 1983, the attending physician recorded no abnormality. The first of two diphtheria-pertussis-tetanus (DPT) vaccinations was administered on March 2, 1984. At that time Bradley's parents were told by the pediatrician that side effects of the vaccine included drowsiness, irritability, and fever. Bradley's parents testified that Bradley fell into a deep sleep that lasted the rest of March 2 and part of March 3, and had a slight fever. His parents were not alarmed because they had been told to expect such effects. The day after the vaccination Bradley was listless and drowsy, and exhibited a staring episode, which lasted between 15 and 20 minutes. A week later Bradley began favoring the use of his left arm, whereas he had previously favored his right arm. On March 27, 1984 Bradley was seen by his pediatrician, at which time Bradley's mother mentioned that Bradley was favoring his left arm.

On May 7, 1984 Bradley received the second DPT vaccination. The pediatrician's record for that date states that Bradley had otitis media (ear pain). His parents immediately noticed swelling and tenderness at the site of the inoculation. On the following day Bradley cried inconsolably for two to three hours, and his right leg twitched rhythmically about every five seconds. The twitching subsided, but resumed on May 24, 1984. In early June, while on vacation in Jacksonville, Bradley's mother noticed a bending type behavior. This was observed by his father on June 15, 1984, who testified that while he fed Bradley the child's head came down and he was "face down into the tray of the high chair." Gary Bunting reported this to the pediatrician by telephone the same day, and the earliest available appointment was made for June 29. The records of the Humana Hospital in Jacksonville show that Bradley was seen there by a doctor on June 27, 1984, and that Bradley's mother reported a seizure the following day. Bradley was seen by his pediatrician on June 29, 1984. The pediatrician's notes dated June 29 state that Bradley was suffering from "[s]tomach problems--tender to touch" and that Bradley "seems to have pain when eating". The pediatrician's notes dated July 3 describe Bradley's seizures as a "moan-like groan, extreme pain, eyes get big, hands fold and fist and arms bend".

Bradley's parents stated that "jackknife" seizures occurred about 10 times before June 29, 1984. The seizures became more frequent, and on July 3, 1984 Bradley was admitted to the Humana Hospital, where tests were conducted including an electroencephalogram (EEG). On the hospital's form requesting the EEG it was recorded that Bradley "1 wk ago began having seizure like episodes". The report on the EEG, dated July 10, 1984, was: "Impression: Abnormal EEG with bilateral spike and wave activities occurring independently consistent with seizure disorder." The hospital records state that the pediatrician concluded at the June 29th examination that the behavior was due to ear pain.

On July 16 the pediatrician recorded that three afebrile seizures ² had occurred on July 15. The pediatrician referred Bradley to a neurologist at the Medical Center Clinic in Pensacola. By letter dated July 23, 1984 the neurologist advised the pediatrician that he was uncertain whether these episodes were "infantile spasms". On September 4, 1984 Bradley was admitted to Nemours Childrens Hospital, where he was treated and supervised by a neurologist, who has continued to treat Bradley to date. His diagnosis is that Bradley suffers from an encephalopathy ³ manifested by intractable myoclonic (muscle jerking) seizures, with a history of infantile spasms (jackknife seizures). The diagnosis is not disputed. Another neurologist, testifying as an expert before the special master, as will be discussed post, concluded with "reasonable medical certainty" that the vaccine was the cause.

Bradley is now seven years old. His encephalopathy is manifested by psychomotor retardation, seizures, and weakness in all four limbs. It is deemed permanent, with no expectation of recovery. He requires constant custodial care, and physical and speech therapy.

The Compensation Proceedings

A

In November 1988 Gary Bunting filed a petition in the United States Claims Court on behalf of Bradley, for compensation under the National Childhood Vaccine Injury Act. The Act authorizes compensation for specified injuries, 42 U.S.C. Sec. 300aa-10(a), including encephalopathy and residual seizure disorder, 42 U.S.C. Sec. 300aa-14(a), when caused by a covered vaccine, 42 U.S.C. Sec. 300aa-11(c)(1).

Compensation proceedings are conducted by a special master. 42 U.S.C. Secs. 300aa-12(d)(1) and (3). The proceedings are designed to be informal and non-adversarial. See H.R.Rep. No. 908, 99th Cong., 2d Sess. 3, reprinted in 1986 U.S.Code Cong. & Admin.News 6287, 6344 (establishing a procedure to administer awards "quickly, easily, and with certainty and generosity"). Shortly after Bradley's petition was filed, counsel for the Department of Health and Human Services (HHS) moved to suspend all proceedings for ninety days, and informed the Claims Court that HHS would not participate before the special master. HHS's attorney of record moved to withdraw. The Claims Court denied this motion, observing that the statute requires decision within one year of filing of the petition, 42 U.S.C. Sec. 300aa-12(d)(3), a schedule that would be difficult of compliance if the requested ninety-day suspension were granted. Bunting v. Secretary of the Dep't of Health and Human Services, No. 88-48-V, slip op. at 6 (Cl.Ct. May 16, 1989) (order). The Claims Court later acknowledged the withdrawal of government counsel.

Two days before the hearing in Miami, HHS delivered to the Claims Court in Washington a document entitled Vaccine Injury Compensation Program Medical Review (the Medical Review). The record is silent as to when or how this document was provided to the Buntings, but it is undisputed that it was not provided before or at the hearing. The special master later rejected this document as untimely.

The hearing before the special master took place without representation of HHS. ⁴ The Buntings state that they were prejudiced and their costs were greatly increased by this absence of representation; that stipulations were unavailable of uncontested facts, undisputed evidence, and the admissibility of written reports; and that they were unable to narrow the issues by agreement, as the master's pre-trial order required.

During the hearing the parents and the medical expert Dr. Morrell testified in person, and deposition and documentary evidence were presented. The special master questioned the witnesses extensively. For example, the record contains sixteen pages of transcript wherein the master interrogated the medical expert. The master's report contains twenty-three pages of findings of fact and conclusions of law. The master summarized his conclusion that causation had been shown by the preponderance of the evidence, as follows:

The preponderance of the evidence in this case supports the finding that the petitioner has proven the elements required by the Vaccine Act, especially Section 11(c)(1)(C)(ii)(II). He accomplished this with persuasive and unrebutted expert testimony. The petitioner's expert witness testified that the DPT vaccines Bradley received did cause Bradley's injury and seizure disorder. There is no persuasive evidence to support a contrary finding. Dr. Morrell stated that his conclusion was not dependent upon the testimony of Bradley's parents.

The master referred to the absence of any other known cause of the injury:

The medical records alone showed the vaccine was the only known cause of the injury Bradley has suffered. All other possible causes were ruled out.

The master found that the pattern of symptoms the parents observed supported a finding of causation:

The parents' testimony also supports a finding that Bradley's encephalopathy is vaccine-related. Under Section 14 the petitioner needed to show certain manifestations of the...