Hines on Behalf of Sevier v. Secretary of Dept. of Health and Human Services

• Decision Date: 31 July 1991
• Docket Number: No. 91-5027,91-5027
• Citation: 940 F.2d 1518
• Parties: 33 Fed. R. Evid. Serv. 632 Melissa HINES, on Behalf of her minor daughter, Amber SEVIER, Petitioner-Appellant, v. SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1518

940 F.2d 1518

33 Fed. R. Evid. Serv. 632

Melissa HINES, on Behalf of her minor daughter, Amber SEVIER, Petitioner-Appellant, v. SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES Respondent-Appellee.

No. 91-5027.

United States Court of Appeals Federal Circuit.

July 31, 1991.

M. Susan Sacco, of Broad and Cassel, Maitland, Fla., argued for petitioner-appellant. Of counsel was Berry J. Walker, Jr.

Constance A. Wynn, of the Civ. Div., Dept. of Justice, Washington, D.C., argued for respondent-appellee. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., and Barbara C. Biddle.

Before MICHEL and LOURIE, Circuit Judges, and SKELTON, Senior Circuit Judge.

MICHEL, Circuit Judge.

Melissa Hines (now known as Melissa Hines Sevier, herein "Sevier"), on behalf of her minor daughter, Amber Sevier, appeals the judgment of the United States Claims Court denying her compensation under the National Vaccine Injury Compensation Program (Vaccine Program), established pursuant to the National Childhood Vaccine Injury Act (Vaccine Act), 42 U.S.C. Secs. 300aa-1 through 300aa-34 (1988 & Supp. I 1989), for injuries allegedly caused by the measles, mumps, and rubella (MMR) vaccine. Hines v. Secretary of the Dep't of Health and Human Servs., 21 Cl.Ct. 634 (1990). Because the Claims Court correctly concluded that the special master's decision, finding that Sevier did not prove by a preponderance of the evidence that her daughter's loss of hearing was caused by the MMR vaccine, was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm.

BACKGROUND

Amber Sevier was born to petitioner on October 5, 1987. She was delivered without complications, and weighed six pounds six ounces at birth. Her APGAR scores were 8 and 9 out of a perfect 10. ¹ She was discharged from the hospital in good condition on October 7, 1987.

When she received her first DPT (diphtheria-pertussis-tetanus) and OPV (polio) vaccinations on March 3, 1988, Amber experienced no apparent side effects. Nor did she have any adverse reactions to her second DPT and OPV vaccinations on May 12, 1988. Thereafter, Amber was diagnosed as having bilateral otitis media (middle ear infections in both ears) on three separate occasions: August 15, 1988; November 1, 1988; and November 11, 1988. On each occasion, amoxicillin was prescribed. Then on January 26, 1989, Amber received her third DPT and her MMR vaccinations.

Prior to this MMR vaccination, Amber showed no signs of hearing impairment, but rather responded normally to the sounds of music, automobiles, and human voices. She was also able to speak six words. But on February 1, 1989, six days after her first MMR vaccination, Amber was taken to the emergency department at Sand Lake Hospital because of a fever of 104.4 degrees. According to the hospital records, Amber had been ill for the prior two days, i.e., four days after the vaccine was administered, with a cough and yellow nasal discharge. She had had three loose stools, had vomited twice, and had pulled on her ears throughout the day prior to the emergency department visit. Upon examination on the sixth day, Amber showed signs of bilateral otitis media and respiratory problems, and was diagnosed as having pneumonia. The doctor again prescribed amoxicillin.

The following day, February 2, 1989, petitioner took Amber to the Orange County Health Department Pediatric Clinic, where she was diagnosed with bilateral otitis media and possible bilateral pneumonia. An antibiotic was prescribed. On her first follow-up visit of February 6, both her otitis media and her pneumonia showed improvement. A new prescription was given. By her next follow-up examination of February 16, her infections were gone.

At about that time or shortly thereafter, Amber's mother and grandmother started to notice that Amber did not respond to their voices, and seemed to ignore them. She also appeared to lose her equilibrium and her speech ability. This process apparently continued over a period of weeks. Sometime later, Amber's mother became very concerned when she dropped some pans on the floor next to Amber and Amber did not react. She then beat the pans near Amber's head and Amber did not react until she visually noticed what her mother was doing. As a result, Amber's mother took Amber back to the pediatric clinic on March 27, 1989, to have her hearing examined. She was diagnosed as suffering from a moderate to severe bilateral sensorineural hearing loss. Subsequent examinations have shown that Amber has lost 95% of her hearing in the left ear and 99% in the right ear.

On August 25, 1989, Sevier filed a petition for compensation under the Vaccine Program, pursuant to 42 U.S.C. Sec. 300aa-11 (Supp. I 1989), alleging that her hearing loss was caused by the MMR vaccine. Sevier's petition was referred to a special master for decision, see 42 U.S.C. Sec. 300aa-12(d)(1), and a hearing was held in Orlando, Florida, on April 25, 1990.

At this hearing, Sevier presented evidence, including medical records and expert testimony, to the special master. The government did not participate in the hearing, but did submit evidence to the special master including a medical review, signed by three doctors employed by the Department of Health and Human Services, which recommended denial of compensation based on a lack of evidence in the medical records showing that the MMR vaccine caused Amber's hearing loss. By a decision dated June 22, 1990, the special master determined Pursuant to 42 U.S.C. Sec. 300aa-12(f), Sevier filed a Motion for Review of the special master's decision on July 20, 1990. In its October 15, 1990 decision, the Claims Court determined that neither the special master's fact findings nor his legal conclusion that petitioner had not proven she was entitled to compensation were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 42 U.S.C. Sec. 300aa-12(e)(2)(B), and therefore sustained the special master's decision. Sevier appeals as provided in Sec. 300aa-12(f).

that petitioner was not entitled to compensation for Amber's hearing loss under the Vaccine Program because she was not able to prove by a preponderance of the evidence that Amber's hearing loss was caused by the MMR vaccine.

We have jurisdiction over Sevier's appeal pursuant to 28 U.S.C. Sec. 1295(a)(3) (1988).

DISCUSSION

I

We consider at the outset an issue which, though not raised by the parties, goes to our jurisdiction to decide this appeal and thus must be considered sua sponte: whether the 1989 amendments to the Vaccine Act render our review merely advisory and thus impermissible under article III of the Constitution.

As originally enacted, the Vaccine Act required an unsuccessful petitioner, within 90 days of the Claims Court's final decision, to file "an election in writing to accept the judgment or to file a civil action for damages for such injury or death." 42 U.S.C. Sec. 300aa-21(a)(2) (1988). In Brown v. Secretary, Dep't of Health and Human Servs., 920 F.2d 918 (Fed.Cir.1990), we noted that because the petitioner in that case had, prior to appeal, already elected to accept the judgment of the Claims Court, our review was "appropriate under Article III of the Constitution because there is no risk our opinion would be impermissibly advisory." Id. at 921-22 n.* *. We further stated that "we intimate no view on the reviewability in this court of cases in which elections are not made before appeal." Id.

In 1989 the Vaccine Act was amended to provide that an election as to whether to accept the judgment is not required until "[a]fter judgment has been entered by the United States Claims Court or, if an appeal is taken ... after the appellate court's mandate is issued...." Pub.L. No. 101-239, Sec. 6601(n)(1)(A), 103 Stat. 2292 (1989) (codified at 42 U.S.C. Sec. 300aa-21(a) (Supp. I 1989)) (emphasis added). Since in the instant case, the evidentiary record had not closed prior to the December 19, 1989 effective date of the 1989 amendments, this new election rule governs this case. See Pub.L. No. 101-239, Sec. 6601(s)(1)(C), 103 Stat. at 2293 (specifying effective dates of the 1989 amendments). Therefore, petitioner is not required to elect whether or not to accept the judgment of the Claims Court denying compensation until we decide her appeal, and thus in contrast to Brown, the issue of the constitutionality of our review is squarely before us.

Article III of the U.S. Constitution extends the judicial power to various types of "cases" and "controversies." This "case or controversy" requirement of article III has been interpreted as barring federal courts from rendering advisory opinions:

A "controversy" in this sense must be one that is appropriate for judicial determination.... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937) (citations omitted).

It could be argued, as we implied in Brown, that the amendment of Sec. 300aa-21(a) to permit a petitioner to postpone deciding whether to accept the judgment of the Claims Court until after appeal renders our decision in that appeal impermissibly advisory. According to such an argument, since the judgment does not have to be accepted, our decision would not Though superficially plausible, on closer examination this argument fails. The statute as amended permits an unsuccessful petitioner to either "accept the judgment or to file a civil action for damages" for the vaccine-related injury. 42 U.S.C. Sec. 300aa-21(a)(2). But it does not permit a petitioner to file a new petition under the Vaccine...