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Cucuras v. Secretary of Department of Health and Human Services

Decided: May 14, 1993.

JOHN CUCURAS AND MARIA CUCURAS, PARENTS AND NEXT FRIENDS OF NICOLE CUCURAS, PETITIONERS-APPELLANTS,
v.
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, RESPONDENT-APPELLEE.



Appealed from: U.S. Court of Federal Claims. Judge Harkins

Before Rich, Newman, and Rader, Circuit Judges.

Rader

RADER, Circuit Judge.

Petitioners, parents and next friends of Nicole Cucuras, appeal the United States Court of Federal Claims' denial of compensation to Nicole under the National Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-10 to 300aa-34 (1988 & Supp. III 1991). The Court of Federal Claims rejected petitioners' claim that the special master erred by according greater weight to contemporaneous medical records than to later, conflicting oral testimony. Cucuras v. Secretary of Dep't of Health & Human Servs., 26 Cl. Ct. 537, 542-43 (1992). The trial court also sustained the special master's determination that petitioners did not show a causal link between the vaccination and the onset of Nicole's seizure disorder. Cucuras, 26 Cl. Ct. at 543. Because the special master and the court properly assessed the testimonial and medical evidence, this court affirms.

BACKGROUND

Nicole Cucuras was born on February 9, 1989. On February 26, Nicole was hospitalized following a choking episode. On April 8, 1989, Nicole received a DPT (diphtheria-tetanus-pertussis) vaccination. The record presents conflicting accounts of the events following the vaccination.

Petitioners testified to the special master that the night of and the day after the inoculation, Nicole began exhibiting symptoms of an adverse reaction to the shot. These symptoms allegedly began as "screaming" and "continuous crying," and progressed to include startle reactions, jerking motions, and hand thumping. Petitioners further alleged that they contacted Nicole's pediatrician on April 14, 1989, only to be told "not to worry." Neither petitioners nor the pediatrician could locate a record of this call.

On May 5, 1989, Nicole's medical records show that she underwent a checkup. The pediatrician noted that Nicole's startling and choking was within normal limits. On May 7, Mansfield General Hospital admitted Nicole after she awoke gasping for breath. The hospital's physicians performed an electroencephalogram (EEG). This test showed a potential for focal and generalized seizure disorder and mild diffuse encephalopathy. A CT scan the following day was normal.

Three days later, Nicole was transferred to Columbus Children's Hospital. Columbus Children's Hospital made several entries in Nicole's records on the date of her admittance. According to those records, Nicole's parents said that she had experienced a "two week history of spells." Nicole's parents also reported that her seizures began "within a week" after her DPT vaccination. Petitioners repeated this assertion to Nicole's treating neurologist, Dr. A. David Rothner of the Cleveland Clinic Foundation, on June 23, 1989. Dr. Rothner's post-evaluative notes state: "Nicole was perfectly well until a week after the DPT shot."

Before the special master, petitioners introduced expert testimony to show that the vaccine in fact caused Nicole's seizures. The experts' opinions, however, were at variance with one another. While Dr. Mark R. Geier would find actual causation up to seven days after the shot, Dr. Marcel Kinsborne would not go beyond three days. Both relied on studies performed in the 1970's.

The Department of Health and Human Services responded with its own expert. Dr. Arnold Gale relied on a report compiled by the Institute of Medicine (IOM), pursuant to the Act. The IOM report concluded that no causal connection existed between DPT vaccines and infantile spasms.

Based on this evidence, the special master determined that Nicole had not suffered an injury within the temporal limits of the vaccine table. Cucuras, 26 Cl. Ct. at 545 (reprinting special master's Nov. 22, 1991 bench ruling). Moreover the special master determined that the vaccine did not actually cause Nicole's injury. Id. at 545-46.

Discussion

Standard of ...


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