Christopher Mistretta v. HHS - DPT/DTP, residual seizure disorder (1993)

Christopher Mistretta, born August 3, 1969, received DPT vaccinations in the months following his birth. He suffered his first seizure on May 27, 1970, diagnosed as a febrile convulsion.

He received a DPT booster on January 22, 1971. Three days later, on January 25, 1971, he experienced another seizure accompanied by fever, diagnosed as a febrile convulsion.

He had further febrile seizures on March 11, 1971, and a series of five on August 31, 1971, all accompanied by fever. The petitioner filed a claim for compensation under the National Vaccine Injury Compensation Program, alleging a residual seizure disorder.

The special master denied the claim, finding that the petitioner failed to establish that the seizures were afebrile and occurred within the required timeframes after vaccination as per the Vaccine Injury Table. The petitioner sought review of this decision, raising several assignments of error, including the special master's handling of expert testimony and interpretation of medical records.

The Court of Federal Claims reviewed the decision and found that while the special master erred in striking the expert's testimony, this was harmless error. The court upheld the special master's determination that the petitioner failed to prove the required elements for a Table residual seizure disorder, specifically that two afebrile seizures occurred within one year of the vaccination.

The court affirmed the special master's decision denying compensation and dismissed the petition. The court found that the special master abused his discretion by striking the medical report of petitioner's expert, Dr.

Roger Morrell, but that this was harmless error because the report, even if considered, deserved little weight due to lack of factual support and the expert's felony conviction. The court also found that the special master erred in interpreting certain medical records regarding a seizure within 72 hours of the January 22, 1971 DPT booster, but this error was also harmless because the petitioner ultimately failed to prove the requirement of two afebrile seizures within one year of the vaccination.

The court affirmed the special master's denial of a hearing, finding it was within his discretion and that the petitioner had ample opportunity to present her case. The court also rejected the claim that the special master based his decision on personal differences with counsel.

The petition was denied and dismissed.