Whitecotton by Whitecotton v. Secretary of Health and Human Services, s. 92-5083

• Decision Date: 16 April 1996
• Docket Number: Nos. 92-5083,93-5101,s. 92-5083
• Citation: 81 F.3d 1099
• Parties: Margaret WHITECOTTON, by her next friends, Kay WHITECOTTON and Michael Whitecotton, Petitioners-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1099

81 F.3d 1099

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

Nos. 92-5083, 93-5101.

United States Court of Appeals, Federal Circuit.

April 16, 1996.

Rehearing Denied;

Suggestion for Rehearing

In Banc Declined June 26, 1996.

Appealed from: U.S. Court of Federal Claims, Judge Turner.

Andrew J. Pincus, Mayer, Brown & Platt, Washington, D.C., argued for petitioners-appellants. With him on the brief was Curtis R. Webb, Twin Falls, Idaho Karen P. Hewitt, Attorney, Department of Justice, Washington, D.C., argued for respondent. With her on the brief were Frank W. Hunger, Assistant Attorney General, Helene M. Goldberg, John Lodge Euler and Charles R. Gross, Attorneys.

Before RICH, NEWMAN, and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

This case returns to us on remand from the Supreme Court which reversed our decision awarding Margaret Whitecotton compensation under the Vaccine Act. Shalala v. Whitecotton, --- U.S. ----, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995). The Supreme Court left open several issues for us to decide on remand. As a result of our decision on the remaining issues, we affirm-in-part and reverse-in-part the decision of the United States Court of Federal Claims ¹ which affirmed the special master's denial of Margaret Whitecotton's claim, and remand the case to the special master to make certain additional findings of fact.

I

Margaret Whitecotton (Maggie) was born on April 22, 1975. Maggie was borderline microcephalic ² at birth, and within a few months of birth she had become clearly so. Other than her microcephaly, Maggie displayed few abnormal symptoms during her early months. Maggie rolled over from her stomach to her back at two weeks of age. Although sometimes indicative of spasticity, ³ in Maggie's case the inference is doubtful because no other contemporaneous evidence supports such a conclusion. Maggie also has had difficulty swallowing from birth, a symptom often associated with children who later suffer from cerebral palsy and mental retardation.

On August 18, 1975, Maggie received her third Diphtheria-Pertussis-Tetanus (DPT) vaccination. Following the shot, Maggie suffered a series of clonic ⁴ seizures. The next day she suffered similar additional seizures for which she was hospitalized. She also experienced projectile vomiting within hours of her vaccination. In addition, an EEG taken seven days after Maggie's third DPT shot showed, for the first time, slow and poorly organized brain activity.

Other contemporaneous evidence, however, counterbalances the symptomology described above. Specifically, Maggie's discharge diagnosis at the conclusion of her hospitalization included the following physical examination results:

The HEENT ⁵ examination appeared to be normal. The remainder of the physical examination was unremarkable. Neurological examination revealed the patient to be alert, follow objects with her eyes past midline, trying to reach for the objects with both hands. Motor examination revealed good activity in all motor groups. The tone, though difficult to assess, appeared to be normal. Muscle stretch reflexes were normoactive and equal bilaterally.

In the several months following her vaccination, Maggie's development was slow but steady. During this period, for example, Maggie learned to sit, crawl and, to some extent, pull herself up. She was thought to be hypertonic ⁶ intermittently, but the onset of her hypertonicity was gradual. An EEG taken one month after her DPT shot found that Maggie's responses had returned to within normal limits.

Notwithstanding this development, Maggie was not an ordinary healthy baby. In February 1976, she was hospitalized for ten days with a possible seizure disorder after she became still, flaccid, and pale. Her EEG, however, was normal, and she did not suffer from any seizures while in the hospital. At around this time, Maggie was formally diagnosed with microcephaly and cerebral palsy. ⁷ In January 1977, Maggie developed a fever of about 104 degrees in connection with an upper respiratory infection and was diagnosed with a febrile convulsion. ⁸ On August 28, 1979, Maggie went limp and her eyes rolled. Although the exact cause of her symptoms on that occasion was never determined, her doctors thought that the symptoms were caused by choking secondary to mucus in her throat. Also, on March 21, 1980, the day after receiving a diphtheria-tetanus (DT) vaccination, Maggie suffered a grand mal ⁹ seizure.

Today, Maggie is severely disabled both mentally and physically. She has cerebral palsy and is non-ambulatory. Her vocabulary is very limited. She is, for all practical purposes, totally dependent on others for her needs.

II

The National Childhood Vaccine Injury Act of 1986 (Vaccine Act) provides an alternative to the traditional tort system for individuals who have suffered vaccine-related injuries. The Act permits petitioners to recover compensation for their vaccine-related injuries under two distinct legal theories. The first is actual causation. If petitioner can show to a preponderance that the vaccine was the cause of her injuries, then she is entitled to compensation under the Act. 42 U.S.C. §§ 300aa-11(c)(1)(C)(ii), 300aa-13(a)(1)(A).

The burden of showing causation, however, is heavy. Therefore, Congress provided a second method of obtaining compensation. The Act provides a "Vaccine Injury Table" which lists various injuries associated with each vaccine, and provides a time period with respect to each injury associated with each vaccine. 42 U.S.C. § 300aa-14. To prevail under this second theory, a petitioner must show that she experienced the first "symptom or manifestation" of a table injury, within the table time period following the vaccination. See 42 U.S.C. § 300aa-11(c)(1)(C)(i). If petitioner can make such a showing, causation is presumed and petitioner is deemed to have made out a prima facie case of entitlement to compensation under the Act. See 42 U.S.C. § 300aa-13(a)(1)(A). The burden of going forward then shifts to the government which must pay compensation unless it can show to a preponderance that a "factor unrelated" to the vaccine was the actual cause of petitioner's injuries. See 42 U.S.C. § 300aa-13(a)(1)(B).

In addition to providing compensation for those who suffer the initial onset of a table injury within the table time period following a vaccination, the statute also permits recovery if an individual suffers a significant aggravation of a table injury within the statutory time period. Congress provided for compensation in such cases:

in order not to exclude serious cases of illness because of possible minor events in the person's past medical history. This provision does not include compensation for conditions which might legitimately be described as pre-existing (e.g., a child with monthly seizures who, after vaccination, has seizures every three and a half weeks), but is meant to encompass serious deterioration (e.g., a child with monthly seizures who, after vaccination, has seizures on a daily basis).

H.R. Rep. 908, 99th Cong.2d Sess. 1, reprinted in 1986 USCCAN 6287, 6356. The statutory requirements to make out a prima facie significant aggravation claim are analogous to those required to make out a prima facie initial onset claim. Petitioner must show that she suffered the first symptom or manifestation of the significant aggravation of a table injury within the table time period following her vaccination. 42 U.S.C. § 300aa-11(c)(1)(C)(i).

III

On July 24, 1990, petitioners Kay and Michael Whitecotton, Maggie's parents, filed a claim under the Vaccine Act in the United States Court of Federal Claims seeking compensation for injuries allegedly suffered by Maggie as a result of her DPT vaccination. The court referred Maggie's case to a special master who conducted a hearing at which both petitioners and respondents presented evidence including the testimony of experts.

Before the special master, petitioners asserted that Maggie had suffered the initial onset of a table encephalopathy ¹⁰ within the three-day table time period of her third DPT shot. ¹¹ Petitioners did not formally allege that a preexisting encephalopathy was significantly aggravated within the table time period, but the special master nevertheless also examined whether Maggie was entitled to compensation under a significant aggravation theory.

The special master denied Maggie's claim under both the initial onset and significant aggravation theories. With respect to the initial onset theory, the special master denied Maggie's claim because her small head size indicated that she was already encephalopathic at the time of her vaccination. At the hearing, the experts disputed the point below which a person with a small head should be formally diagnosed as microcephalic. Most of the testimony indicated that a head size at or below two standard deviations from the mean warrants a diagnosis of microcephaly. Some of the testimony supported a looser standard which would define a patient as microcephalic only if the patient's head was more than three standard deviations below the mean. The special master adopted the more commonly accepted definition of two standard deviations below the mean, and under that definition found that Maggie was "at least borderline microcephalic at birth and ... clearly microcephalic by the time she received her third DPT shot on August 18, 1975." The special master further found, on the basis of expert testimony, that Maggie's microcephaly indicated that Maggie was already encephalopathic prior to August 18, 1975, the date of her third DPT shot. Since she was already brain damaged on the day of the shot, the post-vaccination symptoms could not constitute the "first symptom or manifestation" of her encephalopathy, as required by the statute.

With respect to the significant...