Goetz v. North Carolina Dep't Of Health & Human Serv.

• Decision Date: 20 April 2010
• Docket Number: No. COA09-985.,COA09-985.
• Citation: 692 S.E.2d 395
• Court: North Carolina Court of Appeals
• Parties: Andrew GOETZ and Catherine Goetz, Personal representatives/Gal for Hayden L. Goetz, a minor, Plaintiffs,v.NORTH CAROLINA DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant.

692 S.E.2d 395

Andrew GOETZ and Catherine Goetz, Personal representatives/Gal for Hayden L. Goetz, a minor, Plaintiffs,v.NORTH CAROLINA DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant.

No. COA09-985.

Court of Appeals of North Carolina.

April 20, 2010.

Appeal by defendant and cross appeal by plaintiffs from decision and order entered 6 May 2009 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 January 2010.

Creech Law Firm, P.A., by Peter J. Sarda, Raleigh, for plaintiffs-appellees.

Attorney General Roy Cooper, by Assistant Attorney General Melody R. Hairston and Special Deputy Attorney General Amar Majmundar, for defendant-appellant.

HUNTER, ROBERT C., Judge.

The North Carolina Department of Health and Human Services (“defendant”) appeals, and Andrew and Catherine Goetz (“plaintiffs”) cross-appeal, from a 6 May 2009 Decision and Order of the Full Industrial Commission (“Full Commission”) which incorporates the Full Commission's 29 August 2005 Decision and Order relating to procedure and causation and affirms the 2 September 2008 decision of the Deputy Commissioner awarding damages to plaintiffs.

This case arises out of a dispute regarding the causation of a child's mental retardation and the timeliness of plaintiffs' claim for compensation under the federal and state childhood vaccine-related injury compensation programs. Plaintiffs filed a petition with the United States Court of Federal Claims more than two years outside the statute of limitations for such claims. Consequently, plaintiffs' petition was dismissed as untimely. After the United States Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims' decision, plaintiffs filed an election to reject federal relief and filed a state action with the North Carolina Industrial Commission. After a series of hearings and appeals, the Full Commission ultimately held that the state action was timely filed under the tolling provision of the state statute of limitations. The Full Commission heard the merits of the claim and held that plaintiffs were entitled to compensation under North Carolina's Childhood Vaccine-Related Injury Compensation Program.

Defendant now appeals from the Full Commission's order and argues that: (1) the action was not timely filed within the state statute of limitations and (2) plaintiffs did not meet their burden of establishing that Hayden Goetz's (“Hayden”) DPT shots caused his medical condition. Plaintiffs cross-appeal claiming that the Full Commission did not properly calculate the damages award. After careful review, we reverse the Full Commission's order.

Background

On 14 May 1993, Hayden was born to plaintiffs at Durham Regional Hospital in Durham, North Carolina. On 6 July 1993, at the age of two months, plaintiffs took Hayden to Durham Pediatrics in Durham, North Carolina for a check-up and the first of three DPT vaccinations. On 31 August 1993, plaintiffs returned to the pediatrician's office for Hayden's second DPT shot. Hayden received his third DPT shot at Durham Pediatrics on 19 November 1993. Although the nature of Hayden's reactions to each of these three shots is disputed, the parties agree that the medical records document that Hayden suffered a fever sometime after administration of the third DPT vaccine.

Subsequent to the administration of the DPT vaccinations, Hayden's parents, grandparents, and medical providers noticed a delay in his development, for which they sought further medical attention over the next several years. Such medical review included visits to pediatric neurologists and genetic counselors for the purpose of discovering the nature and cause of Hayden's condition. Dr. Michael Tennison (“Dr. Tennison”), who had evaluated Hayden's condition and development semi-annually over two years, ultimately indicated to plaintiffs that Hayden was mentally retarded. Testing was conducted to determine whether genetics was the cause of Hayden's condition, but the results were negative.

Plaintiffs then learned of Dr. Allan Lieberman (“Dr. Lieberman”), an occupational and environmental medicine specialist. Plaintiffs took Hayden to see Dr. Lieberman on 12 August 1997. Dr. Lieberman conducted “challenge testing” on Hayden, which involved exposing Hayden to a variety of inhalants, foods, and other stimuli and recording his reactions to them. Dr. Lieberman noted that Hayden had an elevated reaction when exposed to a sample of pertussis whole cell, which is a component of the DPT vaccine. Based on this test, Dr. Lieberman estimated that there was a 75-80% chance that Hayden suffered from post-immunization encephalopathy. Based on his review of Hayden's medical records, challenge testing results, and the temporal relationship between the DPT shots and Hayden's developmental changes, Dr. Lieberman concluded that the encephalopathy was related to the DPT vaccinations.

Procedural History

In March 1999, after their consultation with Dr. Lieberman, plaintiffs filed a claim for compensation for a vaccine-related injury with the United States Secretary of Health and Human Services pursuant to the Public Health Services Act. On 25 January 2001, the United States Court of Appeals for the Federal Circuit ordered the case dismissed as having been filed outside the three-year statute of limitations period set forth in 42 U.S.C. § 300aa-16 (2000). On 2 March 2001, plaintiffs filed a Form V-1 with the Industrial Commission to initiate a de novo state proceeding against defendant under the North Carolina Childhood Vaccine-Related Injury Compensation Program.

Pursuant to N.C. Gen.Stat. § 130A-422 et seq. (2009), the matter was heard before the presiding Deputy Commissioner. The Deputy Commissioner filed a Decision and Order on 17 March 2003 which determined that plaintiffs' claim was untimely due to plaintiffs' failure to file an election to reject the judgment of the United States Court of Federal Claims pursuant to 42 U.S.C. § 300aa-21(a)(2), which is a jurisdictional prerequisite to a state action under N.C. Gen.Stat. § 130A-423(b1). Both parties timely appealed to the Full Commission. After filing briefs in the matter, the parties stipulated to the admission of plaintiffs' purported “Election to File Civil Action.”

On 21 August 2003, the Full Commission heard oral arguments. Prior to the filing of the Decision and Order, Commissioner Christopher Scott recused himself from the matter. On 15 December 2003, the remaining two Commissioners issued a unanimous Decision and Order in favor of defendant. Plaintiffs timely appealed to this Court, which vacated and remanded the 15 December 2003 Industrial Commission Decision and Order on the grounds that Commissioner Scott's recusal denied plaintiffs their statutorily guaranteed hearing before the Full Commission. See Goetz v. Wyeth-Lederle Vaccines, 168 N.C.App. 712, 716-17, 608 S.E.2d 810, 813 (2005).

On 27 June 2005, the matter was heard by a panel of three new Commissioners. In its 29 August 2005 Decision and Order, the Full Commission reversed the Deputy Commissioner's 17 March 2003 Decision and Order and held that: (1) plaintiffs' state claim was timely filed due to the tolling provision of the state statute of limitations and (2) Hayden suffered a compensable vaccine-related injury under N.C. Gen.Stat. § 130A-422 et seq. The Full Commission remanded the case to the Deputy Commissioner on the issue of damages. Defendant subsequently filed an appeal, which was dismissed by this Court as interlocutory on 20 March 2007. Goetz v. Wyeth-Lederle Vaccines, 2007 WL 817417, at *3 (N.C.Ct.App. March 20, 2007). On 11 April 2007, the Full Commission again remanded the matter to the Deputy Commissioner for a hearing on the issue of damages.

On 24 April 2008, plaintiffs filed a motion for summary judgment, and defendant filed its response on 5 May 2008. After hearing oral arguments, the Deputy Commissioner filed a Decision and Order which applied the $300,000 statutory cap to plaintiffs' damages, making no adjustment for present value. Both parties appealed to the Full Commission.

The Full Commission heard oral arguments on 10 March 2009 on the issue of damages and affirmed the Decision and Order of the Deputy Commissioner on 6 May 2009. Subsequently, both parties gave notice of appeal to this Court.

Discussion

Defendant's first argument is that the Full Commission erred in holding that plaintiffs' claims were not barred by the state statute of limitations. In the alternative, defendant argues that the Full Commission erred by admitting and relying upon incompetent evidence to establish causation. Plaintiffs argue that the Full Commission's holdings on both of these issues were proper, but that the Full Commission erred in failing to adjust the damages award to its present value. Because we agree with defendant on the first issue, we need not address the parties' remaining contentions.

I. Standard of Review-Statute of Limitations

Where there is no dispute over the relevant facts, a lower court's interpretation of a statute of limitations is a conclusion of law that is reviewed de novo on appeal. North Carolina Dept. of Revenue v. Von Nicolai, --- N.C.App. ----, ----, 681 S.E.2d 431, 433 (2009) (“Since this is a question of statutory interpretation, we will conduct a de novo review of the [superior] court's conclusions of law.”) (internal citations omitted). “Alleged errors of law and questions of statutory interpretation are reviewed de novo.” Downs v. State, 159 N.C.App. 220, 221-22, 582 S.E.2d 638, 639 (2003).

Although the present action is an appeal from the Decision and Order of the Full Commission instead of an appeal from the decision of a lower court, N.C. Gen.Stat. § 130A-428(c) (2009) expressly provides that the same standard of review for errors of law used in appeals from the trial courts applies to appeals from the Full Commission for actions brought under the North Carolina Childhood Vaccine Related Injury Program. This statute states...