Jay v. Secretary of Dept. of Health and Human Services, 92-5098

• Decision Date: 13 July 1993
• Docket Number: No. 92-5098,92-5098
• Citation: 998 F.2d 979
• Parties: Mary Ann JAY and Michael H. Jay, as legal representatives of Matthew Michael Jay, deceased, Petitioners-Appellants, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 979

998 F.2d 979

Mary Ann JAY and Michael H. Jay, as legal representatives of Matthew Michael Jay, deceased, Petitioners-Appellants, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES Respondent-Appellee.

No. 92-5098.

United States Court of Appeals, Federal Circuit July 13, 1993.

Rehearing Denied; Suggestion for Rehearing Declined Oct. 14, 1993.

Andrew W. Dodd, of Andrew W. Dodd, P.C., Torrance, CA, argued, for petitioners-appellants.

Alfonso J. Montano, Atty., Dept. of Justice, of Washington, DC, argued, for respondent-appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., Helene M. Goldberg and John Lodge Euler, Attys.

Before RICH, ARCHER, and LOURIE, Circuit Judges.

ARCHER, Circuit Judge.

Mary Ann Jay and Michael H. Jay (the Jays), on behalf of Matthew Michael Jay, deceased, appeal from the judgment of the United States Claims Court, ¹ No. 90-534V (filed Feb. 21, 1992), sustaining the decision of the special master denying compensation under the National Childhood Vaccine Injury Act (Vaccine Act), 42 U.S.C. §§ 300aa-10 to 300aa-34 (1988 & Supp. III 1991), for the death of Matthew allegedly caused by a diphtheria-pertussis-tetanus (DPT or DTP) vaccine. The special master granted summary judgment in favor of the Department of Health and Human Services (HHS) and denied summary judgment in favor of the Jays. We reverse and remand.

I.

Matthew was a healthy child, less than four months old and having a normal medical history. On January 29, 1974, Matthew received a DPT vaccination and died eighteen hours later. His parents, the Jays, testified that after Matthew was vaccinated, for over six hours he screamed inconsolably as though he was in pain, alternating with periods of crying and sleep in a limp condition. Matthew did not awake to nurse that night as he normally did, and Matthew's mother discovered him early the next morning in his crib not breathing with a blue area around his lips. When Matthew's mother took Matthew from the crib she noticed that he felt limp "like a rag doll." A registered nurse, she began cardiopulmonary resuscitation on Matthew, and the artificial resuscitation was continued in the ambulance as Matthew was taken to the hospital. But at the hospital The Jays petitioned for compensation, alleging that the DPT vaccine in fact caused the death of Matthew, see 42 U.S.C. § 300aa-11(c)(1)(C)(ii), and that a table injury occurred--shock collapse or hypotonic-hyporesponsive collapse (shock collapse), see id. §§ 300aa-11(c)(1)(C)(i), 300aa-14(a)(I)(C). They later amended their petition to assert an encephalopathy, see id. § 300aa-14(a)(I)(B). HHS filed a report upon the petition. See Vaccine Rule 4(b). In the report, Dr. Mortimer, a medical expert for HHS, disputed the shock collapse, arguing that it would be incompatible with intermittent crying as alleged by the Jays.

                Matthew died.   The autopsy later performed on Matthew could find no cause of death, and therefore attributed it to Sudden Infant Death Syndrome
                

After a first hearing at which the Jays testified to the aforementioned facts, the Jays moved, unopposed, for summary judgment. This motion was based on the unremarkable pre-vaccine medical records of Matthew, the parents' testimony and affidavits, the autopsy report, and a declaration of their medical expert Dr. Cox. Dr. Cox stated that, based upon the circumstances of Matthew's case and Matthew's medical records, "the death of Matthew Michael Jay on January 30, 1974 was medically caused by immunization with D.P.T. vaccine on January 29, 1974." The special master discounted the medical opinion as nonspecific, and denied the Jays' motion based on 42 U.S.C. § 300aa-13(a)(1) which precludes the special master from finding in favor of a petitioner "based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion."

The Jays then submitted a supplemental declaration of Dr. Cox, and again moved for summary judgment. In his declaration, Dr. Cox stated that, based on the extended period of intermittent crying, the limpness, and the death following the vaccine, Matthew suffered an encephalopathy and that the vaccine caused his death. The special master found that the medical opinion relied primarily on the symptoms of "unusual, inconsolable screaming" and limpness, which although consistent with an encephalopathy and "not trivial," were "not dramatic either." The special master thus denied summary judgment on the ground that "crying plus limpness [does not] establish[ ] an encephalopathy as a matter of law."

A second hearing was then held, at which Dr. Cox testified similarly to his declaration. The parties then cross-moved for summary judgment. The special master held that Dr. Cox assumed that an encephalopathy had occurred based on extended crying following the vaccine, and that this evidence is statutorily insufficient to establish an encephalopathy. 42 U.S.C. § 300aa-14(b)(3)(A) ("Signs and symptoms such as high pitched and unusual screaming, [and] persistent unconsolable crying ... are compatible with an encephalopathy, but in and of themselves are not conclusive evidence of encephalopathy."). ² The special master then found that Matthew

showed extensive, unusual crying, and transient episodes of limpness, ... may have fed somewhat less than normal (Tr.43), and was responsive to his environment (Tr.44). With an encephalopathy we have typically seen at least one dramatic aspect. This aspect is what separates the events from the normal range of DTP reactions. Here, though, the only reaction that even approaches dramatic is the crying, which, as noted, is insufficient to establish an encephalopathy.

The special master concluded that the Jays did not establish that an encephalopathy occurred, and that this proof was a necessary "foundation" to Dr. Cox's testimony. Consequently, the special master denied the Jays' motion for summary judgment and granted HHS summary judgment, dismissing the petition for compensation. The Claims Court, upon review of the petition, held that 42 U.S.C. § 300aa-13(b)(1) required the special master to make findings of fact even upon

                motion for summary judgment. 3  The Claims Court then upheld the finding of the special master that the Jays had not demonstrated an encephalopathy by a preponderance of the evidence and sustained his decision dismissing the petition
                

II.

A. The Claims Court having upheld the determination of the special master, "we review de novo the Claims Court's determination as to whether or not the special master's decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Hines v. Secretary of the Dep't of Health and Human Servs., 940 F.2d 1518, 1524 (Fed.Cir.1991); see Bradley v. Secretary of the Dep't of Health and Human Servs., 991 F.2d 1570, 1574 (Fed.Cir.1993).

In this case the special master granted summary judgment on the issue of causation in favor of HHS and against the Jays. Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rules of the United States Claims Court (RUSCC), Rule 56(c); see Vaccine Rule 8(d) (authorizing summary judgment pursuant to RUSCC 56); Imperial Van Lines Int'l, Inc. v. United States, 821 F.2d 634, 637 (Fed.Cir.1987) (standards for RUSCC 56 are the same as those for Rule 56 of the Federal Rules of Civil Procedure).

The party moving for summary judgment "bears the burden of demonstrating absence of all genuine issues of material fact." SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed.Cir.1985) (in banc). There is no genuine issue of material fact where the evidence presented is insufficient to permit a reasonable factfinder to find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). When ruling on summary judgment, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are ... not those of a judge.... The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2513. The summary judgment inquiry in essence is whether the evidence presents a sufficient disagreement of fact to require submission to the factfinder or whether it is "so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2512. Because summary judgment raises only questions of law, our review of the grant and denial in this case of summary judgment is de novo.

B. The Claims Court held that 42 U.S.C. § 300aa-13(b)(1) required the special master to resolve factual disputes, weigh the evidence, and make credibility determinations even on motion for summary judgment. As a result, the Claims Court viewed the special master's disposition of the summary judgment motions as ultimate determinations of fact and therefore reviewed the special master's disposition merely for factual arbitrariness rather than legal correctness. The Claims Court's authorization of factfinding on summary judgment however is imprudent and illogical: either a case is decided by summary judgment or it is not. If the statute precludes the special master from making a determination without making factual findings, then the statute precludes summary judgment.

Contrary to the assertion of HHS, the Vaccine Rules do not authorize factfinding on summary judgment. Vaccine Rule 8(d) permits the special master to decide a case on summary judgment, "adopting procedures set forth in RUSCC 56 modified to the needs of the case." HHS argues that the Vaccine Rules permit the special master to "modify" summary judgment to dispense with waiting Thus, as our previous discussion makes clear, in vaccine cases, as in other cases, summary judgment is summary judgment. If to dispose of the case the special...