Whitecotton by Whitecotton v. Secretary of Dept. of Health and Human Services

• Decision Date: 15 February 1994
• Docket Number: Nos. 92-5083,93-5101,s. 92-5083
• Parties: Margaret WHITECOTTON, by her next friends, Kay WHITECOTTON and Michael Whitecotton, Petitioners-Appellants, v. SECRETARY OF DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 374

17 F.3d 374

Margaret WHITECOTTON, by her next friends, Kay WHITECOTTON and Michael Whitecotton, Petitioners-Appellants, v. SECRETARY OF DEPARTMENT OF HEALTH AND HUMAN SERVICES Respondent-Appellee.

Nos. 92-5083, 93-5101.

United States Court of Appeals, Federal Circuit.

Feb. 15, 1994.

Rehearing Denied; Suggestion for Rehearing In Banc Declined in No. 92-5083

April 29, 1994. ^*

Robert T. Moxley, Gage and Moxley, of Cheyenne, Wyoming, argued for petitioners-appellants. With him on the brief was John S. Capper, IV, Berry, Capper & Tulley, of Crawfordsville, Indiana.

Karen P. Hewitt, Department of Justice, of Washington, D.C., argued for respondent-appellee. With her on the brief were Frank M. Hunger, Assistant Attorney General, Helene M. Goldberg and John Lodge Euler.

Before NEWMAN, MAYER, and CLEVENGER, Circuit Judges.

MAYER, Circuit Judge.

Kay and Michael Whitecotton appeal the judgment of the United States Court of Federal Claims, ¹ No. 90-692V (Jan. 14, 1992), upholding the special master's denial of their petition under the National Childhood Vaccine Injury Act of 1986. The Whitecottons also appeal the January 7, 1993, order of the Court of Federal Claims denying their motion for relief based on newly discovered evidence. We reverse and remand.

Background

Margaret Whitecotton (Maggie) was born without complications on April 22, 1975. Maggie was a small child--her head circumference at birth was 12.5 inches, or 32 centimeters, placing her in the second percentile on a standard growth chart. Although she might be considered microcephalic based on this measurement, Maggie was healthy, developmentally and physically, until she received her third diphtheria-pertussis-tetanus (DPT) vaccination on August 18, 1975. Maggie's mother took her to the emergency room that evening, after she allegedly saw the child suffer a series of seizures. The treating physician saw no evidence of seizures and discharged Maggie that same night. The next day, Maggie's mother took her to see the family doctor. That doctor saw Maggie experience a series of clonic seizures.

Although Maggie suffered occasional seizures over the next five years, she has suffered none in recent years. She is, however, mentally and physically disabled. She has cerebral palsy, has hip and joint problems, and cannot communicate verbally.

On August 2, 1990, Maggie's parents, as her legal representatives, applied for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. Secs. 300aa-10 to 300aa-34 (1988 & Supp. III 1991). They asserted that Maggie suffered a compensable encephalopathy as a result of the August 18 vaccination. The Secretary of Health and Human Services responded that Maggie's condition arose instead from a chronic organic brain syndrome that preexisted the vaccination, and that, therefore, she deserved no compensation under the Act.

On August 16, 1991, the special master denied compensation, finding that Maggie was born with a brain disorder that was responsible for her present disabilities. The Whitecottons sought review of the decision in the Court of Federal Claims, which affirmed the decision of the special master.

On March 27, 1992, the Whitecottons filed an appeal in this court, which stayed the proceedings pending resolution in the Court of Federal Claims of the Whitecottons' motion for relief from judgment under Rule 60(b)(2). When that motion was denied, the Whitecottons sought review of that denial in this court as well. We now consider the Whitecottons' consolidated appeals.

Discussion

I.

The Whitecottons challenge the interpretation of the Vaccine Act adopted by the special master and affirmed by the Court of Federal Claims, which they argue robbed them of the statutory presumption of causation created by Congress to facilitate recovery for likely vaccine injuries. We review such legal questions de novo. Hodges v. Secretary, Dep't of Health and Human Services, 9 F.3d 958, 960 (Fed.Cir.1993).

The asserted presumption, designed to excuse petitioners from the often onerous burden of proving causation in vaccine cases, attaches whenever the petitioners meet the requirements of the Vaccine Injury Table, 42 U.S.C. Sec. 300aa-14(a). Specifically, petitioners must demonstrate that the injured child received a vaccine enumerated in the Table, that the child sustained one of the injuries set forth in the Table within the statutory time period after vaccination, and that the effects of the injury lasted for more than six months, resulting in more than $1,000 of expenses. Id. Sec. 300aa-11(c). If the petitioners fail to meet the Table requirements, they can recover compensation only on the more difficult showing of actual causation. Id. Sec. 300aa-11(c)(1)(C)(ii). Once petitioners satisfy their burden of proving presumptive or actual causation by a preponderance of evidence, they are entitled to recover unless the Secretary shows, also by a preponderance of evidence, that the injury was in fact caused by factors unrelated to the vaccine. Id. Sec. 300aa-13(a)(1)(B).

Here, the parties do not dispute that Maggie suffered an encephalopathy that led to her present retardation and cerebral palsy. The only questions are when the encephalopathy occurred and the effect of the date of onset on recovery under the Act.

II.

The Whitecottons say both the special master and the Court of Federal Claims misinterpreted the law, allowing the Secretary to defeat their proven Table injury with a showing of a preexisting brain disorder evidenced by microcephaly, an idiopathic factor unrelated to the vaccine. The Secretary responds that the special master never reached the "factor unrelated" question because the Whitecottons failed to establish their prima facie case when they could not prove that Maggie's August 19, 1975, seizures were the first manifestation of the encephalopathy.

While the special master did conclude that Maggie suffered no Table encephalopathy, we do not agree. Nowhere does the statute expressly state that proof of a Table encephalopathy includes a showing that the child sustained no injury prior to administration of the vaccine. The Act requires that a petition for compensation include affidavits demonstrating that the first manifestation of the injury occurred within Table time after vaccination, 42 U.S.C. Sec. 300aa-11(c)(1)(C)(i), but the Table itself provides that the statutory period is a "[t]ime period for first symptom or manifestation of onset ... after vaccine administration." Id. Sec. 300aa-14(a). The distinction is significant: the Table language is that the first symptom after vaccine administration must occur within Table time, not, as the Secretary argues, that the first of all manifestations must so occur.

Congress could have expressly made the absence of preexisting injury an element of the prima facie case had it so intended. In fact, the qualifications and aids to interpretation of the Table do that for one type of injury, providing that "[a] petitioner may be considered to have suffered a residual seizure disorder if the petitioner did not suffer a seizure or convulsion ... before the first seizure or convulsion after the administration of the vaccine...." Id. Sec. 300aa-14(b)(2). Subsequent subsections dealing with encephalopathy place no such limitation on finding Table injury. See id. Sec. 300aa-14(b)(3)(A)-(B). ² Since Congress expressly restricted residual seizure disorders to instances where no seizure occurred before vaccine administration, we assume its failure similarly to limit encephalopathy was intentional. See Russello v. United States, 464 U.S. 16, 24, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) ("Had Congress intended to restrict Sec. 1963(a)(1) to an interest in an enterprise, it presumably would have done so expressly as it did in the immediately following subsection (a)(2)"); The Ad Hoc Committee v. United States, 13 F.3d 398, 401 (Fed.Cir.1994).

Moreover, the Act provides that the "factors unrelated" that can defeat a prima facie case may include "infection, toxins, trauma (including birth trauma and related anoxia), or metabolic disturbances...." 42 U.S.C. Sec. 300aa-13(a)(2)(B). This section manifestly contemplates that birth trauma, an injury that necessarily must precede administration of any vaccine, can qualify as a factor unrelated to the vaccine and bar recovery. It would make no sense to allow proof by the Secretary of birth trauma as a factor unrelated if the petitioner were required to prove that no such preexisting injury occurred as an element of the Table case.

Because the statute makes sense only if the Secretary bears the burden of proving a preexisting encephalopathy, we decline the Secretary's argument that the Whitecottons failed to prove their prima facie case. It is undisputed that Maggie suffered an encephalopathy. It is also undisputed that Maggie's encephalopathy manifested itself in the form of seizures occurring within Table time after vaccination. This suffices to show a Table injury. The Whitecottons deserve the benefit of the Act's presumed...