Kelly Boley v. HHS - Hepatitis B, neurological injuries and emotional distress (2008)

Kelly Boley was born on June 11, 1973 and was enrolled in dental hygiene school, which required her to complete the hepatitis B vaccination series. She received her first dose on May 13, 2002 without adverse reaction.

Within approximately one day of receiving her second dose on June 12, 2002, she developed extreme fatigue and malaise. She refused the third dose.

Over the following years, multiple treating physicians documented ongoing neurological symptoms and noted the temporal relationship to the second vaccination. Dr.

Rosenblum recorded that her symptoms had "come on since her second hep B shot." Dr. Chen reported "unexplained neurological symptoms likely related to viral or viral immunization." Dr.

Volz observed the connection could be coincidental "but would make one suspicious." Dr. Campbell treated Ms.

Boley for approximately 34 months. Dr.

Hughes, Chief of Neurology at Denver Health, first evaluated her in May 2006 — four years after the vaccination — and noted a "significant reaction...because of temporal relationship," estimating its duration as approximately one to two years, though under questioning he also described a 3-to-4-month duration. Ms.

Boley filed her petition on March 30, 2005, and later amended it to claim a diagnosis of demyelinating polyneuropathy. The case proceeded to a hearing before Special Master Millman.

The special master's conduct during the proceedings was the central issue on review. At a pre-hearing conference, the special master called Ms.

Boley "crazy." He characterized Dr. Campbell's work as "totally devoid of medical professionalism" and "worthless," and made comments threatening counsel regarding fees.

During the hearing itself, the special master conducted more than 90 percent of the examination of witnesses, leaving the parties with limited opportunity to present their own examination. After the hearing concluded, he told the parties they would have a 30-day period to submit post-hearing briefs — then issued his decision one business day after the hearing transcript arrived.

Special Master Millman dismissed the petition on December 17, 2007, finding that Ms. Boley's injuries had lasted only three to four months, falling short of the six-month duration requirement of 42 U.S.C. § 300aa-11(c)(1)(D)(i).

His decision rested primarily on Dr. Hughes's ambiguous testimony about duration while ignoring the records from Drs.

Rosenblum, Chen, Breen, Volz, and Campbell documenting ongoing symptoms from 2002 through 2006. Judge Wheeler, writing for the Court of Federal Claims on June 26, 2008, vacated the decision and remanded.

The court found that the special master had violated Vaccine Rules 3(b) and 8(c), which require that proceedings be conducted with fundamental fairness. The monopolization of witness examination deprived the parties of the opportunity to present their evidence; the immediate issuance of the decision after promising a 30-day briefing period deprived the parties of the opportunity to submit post-hearing argument; and the decision's failure to engage with the 2002-through-2006 treating physician records in favor of a single ambiguous statement by a physician who first saw Ms.

Boley four years after the vaccination was insufficiently supported. The court made no ruling on the merits of causation or duration.

On remand, the court directed the special master to reconvene the hearing, permit the parties to examine witnesses without undue interruption, allow post-hearing briefing, and analyze all relevant medical records.