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Haggerty v. Secretary of Health and Human Services

December 29, 1998

MARY ELIZABETH HAGGERTY, BY HER MOTHER AND NATURAL GUARDIAN, GERALDINE HAGGERTY, PETITIONER-APPELLANT,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, RESPONDENT-APPELLEE.



Before Clevenger, Circuit Judge, Smith, Senior Circuit Judge, and Schall, Circuit Judge.

The opinion of the court was delivered by: Per Curiam.

Mary Haggerty (Mary) and her mother (collectively, the Haggertys) appeal the November 14, 1997, decision of the Court of Federal Claims (CFC), denying the Haggertys' petition for recovery under the National Childhood Vaccine Injury Act. The CFC affirmed the decision of a special master, who found that Mary had been administered a measles-mumps-rubella (MMR) vaccination on May 7, 1993 and had not been administered a diphtheria-pertussis-tetanus (DPT) vaccination on that day. The special master held that the Haggertys were not entitled to a presumption that Mary's encephalopathy had been caused by the MMR vaccination because it occurred too quickly after the vaccination to be entitled to such a presumption. We affirm.

Background

Mary Haggerty, a normal, healthy eighteen month old child, was administered a routine vaccine injection on May 7, 1993. *fn1 Later that evening, she suffered a seizure and was hospitalized. Neurological tests showed that she suffered an encephalopathy about eight hours after the vaccination. Mary today remains severely impaired and suffers from residual seizure disorder.

The evidence is conflicting as to what vaccine was injected on May 7, 1993. The physician, Dr. Reilly, noted in the Haggertys' health record notebook that the vaccine was DPT. In addition, Mary's parents indicated that the vaccine had come from a DPT vial when later shown DPT and MMR vials. *fn2

On the other hand, Dr. Reilly noted in his own records that the vaccine was MMR and he included the lot number of the specific MMR vial used. In addition, a later test showed that Mary had measles antibodies in her blood, indicating that she had either been exposed to wild measles virus or had been vaccinated against measles. Mary has had no known exposure to wild measles virus.

The Haggertys petitioned the Court of Federal Claims to recover damages under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 - 300aa-34 (1994) (the Vaccine Act). The Vaccine Act provides that some patients who are administered a vaccine and who later suffer symptoms of an adverse reaction are entitled to a presumption that their symptoms were caused by the vaccine. This presumption applies, however, only if the symptoms develop during a specific window of time following the vaccination. The timing of the window varies, depending on the vaccine administered; for DPT vaccinations, the window is from 0-72 hours after vaccination, while for MMR, the window is 5-15 days after vaccination. See 42 CFR § 100.3 (1998). Since Mary's symptoms developed about eight hours after vaccination, she would be entitled to a presumption of causation if the vaccine was DPT but not if it was MMR.

The Haggertys' petition was referred to a special master. In addition to reviewing the documentary evidence submitted by the parties and holding an evidentiary hearing, the special master ordered a measles titer test of Mary's blood. The test indicated that measles antibodies were present, indicating that Mary had been vaccinated against measles. On March 4, 1997, the special master denied the Haggertys' petition on the ground that the evidence showed that Mary was administered MMR vaccine, not DPT vaccine, and therefore the timing of her injury did not qualify her for the statutory presumption of causation.

On November 14, 1997, the Court of Federal Claims (CFC) affirmed the decision of the special master. The CFC reviewed the special master's factual finding of the identity of the vaccine under the deferential arbitrary and capricious standard. See 42 U.S.C. § 300aa- 12(e)(2)(B) (1994); Saunders v. Secretary of Dept. of Health and Human Services, 25 F.3d 1031, 1033 (Fed. Cir. 1994). The CFC held that the decision was not arbitrary or capricious because the special master had properly considered the evidence, drew plausible inferences, and articulated a rational basis for her decision. The Haggertys timely appealed.

Standard of Review

This court exercises complete and independent review over the CFC's Conclusion of law that the special master's decision was not arbitrary and capricious. Thus, we essentially review the underlying decision of the special master under the arbitrary and capricious standard. See Patton v. Secretary of the Dep't of Health and Human Servs., 25 F.3d 1021, 1025 (Fed. Cir. 1994).

Our review of the special master's fact-finding is highly deferential. "If the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate." Hines v. Secretary of the Dep't of Health and Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991).

Special Master's Findings of Fact

In making her findings of fact, the special master considered both documentary and testimonial evidence. The most probative evidence tending to show that Mary was administered a DPT vaccine was Dr. Reilly's notation of "DPT" in the Haggertys' health record notebook, and the Haggertys' recollection that the ...


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