Snyder by Snyder v. Secretary of Health and Human Services

• Decision Date: 20 June 1997
• Docket Number: No. 97-5018,97-5018
• Citation: 117 F.3d 545
• Parties: Frank V. SNYDER, Jr. by Teresa L. SNYDER, his Legal Guardian, Petitioner-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 545

117 F.3d 545

Frank V. SNYDER, Jr. by Teresa L. SNYDER, his Legal Guardian, Petitioner-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.

No. 97-5018.

United States Court of Appeals Federal Circuit.

June 20, 1997.

Boyd A. England, England & Young, P.C., Doylestown, PA, for petitioner-appellant.

Vincent Matanoski, Attorney, Torts Branch, Civil Division, Department of Justice, Washington, DC, for respondent-appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, and John Lodge Euler, Deputy Director.

Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.

CLEVENGER, Circuit Judge.

Frank V. Snyder, Jr., by his legal guardian, Theresa L. Snyder, appeals from the decision of the United States Court of Federal Claims sustaining the special master's dismissal of her petition for compensation brought under the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-1 to 300aa-34 (1994)) (Act). We affirm.

I

Under the Act, a prima facie case of entitlement to compensation is made when the petitioner establishes that a person has:

sustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table in association with [a] vaccine ... and the first symptom or manifestation of the onset or of the significant aggravation of any such illness, disability, injury, or condition ... occurred within the time period after vaccine administration set forth in the Vaccine Injury Table....

42 U.S.C. § 300aa-11(c)(1)(C)(i) (1994). The Act establishes encephalopathy as a Table Injury, and sets three days (72 hours) as the time period for the first symptom or manifestation. The issue in this case is whether the facts show that Frank suffered the first symptom of an encephalopathy within 72 hours from his third DPT vaccination shot.

II

Frank Snyder received his third DPT vaccination shot on December 30, 1957--almost 40 years ago--when he was six months old. According to testimony given by his mother and father before the special master, within 72 hours of the third shot, Frank suffered the first symptom or manifestation of the onset on an encephalopathy. Frank's parents described him as a healthy, happy baby having achieved normal developmental milestones in his first six months. They also described Frank's loss of certain of those milestones, his 103 o F temperature, his crying in a high pitched screech, and his blank stare, all within 72 hours from the third shot. The special master noted that the parents' recollection of the events following the shot was extremely particular and detailed. The parents stated that they reported Frank's post-shot conditions to the doctor who had administered the shot. The doctor, according to Frank's parents, prescribed a medicine to alleviate Frank's condition, but otherwise assured the parents that Frank's condition was "par for the course" and that the parents need not worry.

The special master also heard testimony from Frank's cousin, who when 16 years old was a regular baby-sitter in the Snyder household. She testified that she noticed a great change in Frank's facial expressions just after the third shot. In particular, she recalled Frank's vacant and blank stare, compared to his jolly disposition before the shot. She testified, however, that she did not mention the significant change in Frank's appearance to his parents at that time, because she did not think it appropriate for a 16 year old baby sitter to tell the parents about such a fact. She testified further that she had discussed the change in Frank's behavior with the Snyders in connection with preparation for the Vaccine Act petition, but that she did not recall the timing of that conversation.

The doctor who administered the third DPT shot is retired and has disposed of all his medical records. He recalls that at the time of Frank's birth, the family and its children were his patients. He assumes that he gave Frank his DPT shots, as such was his practice, but he has no recollection of any of the details concerning Frank. A doctor who assumed care for Frank in his second year is deceased and none of his medical records can be found.

Many months after the third shot, Frank regained the lost milestones and proceeded to develop in a normal physical manner, but his parents thought he was mentally impaired. During his youth, Frank was tested from time to time due to his slow learning, and those tests revealed that Frank had an IQ around 60 and was mentally retarded. The records of those tests make no reference to the events following the third DPT shot, nor do they indicate that the parents traced the cause of Frank's retardation to the third shot. Records of the doctor who treated Frank in the 1970's make no reference to Frank's previous medical history. At the age of 29, Frank suffered what appeared to be his first grand mal seizure and was treated by a neurologist, who described Frank as having had "a negative past medical history." Although that doctor noted Frank's retardation, there is no indication that the doctor was informed of any adverse reactions Frank suffered in the 72 hours following the third shot.

During the hearing before the special master, Frank's parents were asked why they never mentioned Frank's reaction to the third shot to any of Frank's subsequent health care providers. They answered that they understood the "par for the course, don't worry" statement from the doctor who gave the shot to mean that whatever Frank's later problems may have been, they did not stem from the third shot. Frank's mother testified that only much later did she learn that Frank's retarded condition could be traced to the third DPT shot.

III

The record made before the special master thus reveals the detailed current recollection of Frank's parents and cousin about the immediate effect of the third shot on Frank, an event which took place nearly 40 years ago. The record is also bereft of any indication in the records of Frank's subsequent testing and medical care which would confirm the family's current recollections of the events in the 72 hours following the third shot. On this record, the special master, referring especially to the testimony and demeanor of the fact witnesses, concluded that the failure of the parents ever to have reported the abrupt change in Frank's demeanor and development after the third shot to any subsequent health care provider prevented her from concluding that it is more probable than not that the abrupt changes occurred in the manner now recalled in such detail by the parents. The special master rejected the cousin's testimony out of hand as "simply not persuasive."

In a nutshell, the special master discounted the accuracy of the parents' current recollection of 40 year old events because of her belief that if those events had occurred, they would have been recounted somewhere in the subsequent health care history of Frank. Following dismissal of her petition, Mrs. Snyder petitioned the Court of Federal Claims for review.

IV

The Court of Federal...