David Suel v. HHS - DPT, aggravation of tuberous sclerosis in the form of an encephalopathy and a residual seizure disorder (1993)

On September 27, 1990, Thomas and Amelia Suel filed a petition under the National Childhood Vaccine Compensation Act on behalf of their son, David Suel. David was born on June 8, 1986, and received his first DPT vaccination on October 22, 1986, at five months of age.

Petitioners alleged that David suffered significant aggravation of his pre-existing tuberous sclerosis (TS), manifesting as an encephalopathy and a residual seizure disorder, within three days of the vaccination. The respondent contended that the onset of David's seizure disorder occurred outside the "Table" time limits and that his condition was due to TS, unrelated to the vaccine.

David appeared normal at birth and showed no clinical signs of TS before his vaccination. His mother, Amelia Suel, testified that on October 24, 1986, two days after the DPT shot, she observed David's eyes roll back into his head.

Over the following week, she noted additional eye-rolling episodes and progressively longer sleep durations. By November 10, 1986, David was sleeping approximately twenty hours a day.

By mid-November, the eye-rolling recurred with head nodding, and by November 26, David was experiencing about four seizures per day, characterized by hand jerking and head dropping. An EEG revealed abnormal brain activity, and a CT scan confirmed tuberous sclerosis and infantile myoclonic seizures secondary to TS.

David was treated with phenobarbital, Depakene, and ACTH. At the time of the hearing in November 1991, David was five and a half years old and exhibited delayed motor skills, was not toilet-trained, and had language and mental development significantly below his age level.

Special Master Laura D. Millman initially found Mrs.

Suel credible and determined that David had an "on-Table" seizure onset within three days of vaccination. However, she denied compensation, concluding that the petitioners had not demonstrated significant aggravation of TS or residual effects lasting more than six months.

She further found that the respondent had proven David's condition was due to TS, a factor unrelated to the vaccination. On review, Judge Merow reversed the Special Master's decision and remanded the case.

Petitioners presented expert testimony from Dr. Manuel Gomez, described as a leading expert on tuberous sclerosis, and pediatric neurologist Dr.

Marcel Kinsbourne. Dr.

Gomez testified that the DPT vaccine could precipitate or trigger seizures in a child with TS and that the age of seizure onset is closely related to later mental development. Dr.

Kinsbourne opined that the pertussis vaccine triggered David's seizures earlier than they would have otherwise occurred, thereby worsening his developmental prognosis. Respondent's expert, pediatric neurologist Dr.

Huntley Hardison, viewed the timing as coincidental and David's course as typical for TS. The court held that when a seizure-free child with latent TS suffers an "on-Table" seizure triggered by DPT, this triggering can constitute significant aggravation unless the respondent proves that the same seizure onset would have occurred at the same time from the underlying disorder alone.

Because the respondent had not made this showing, and the Special Master had found the DPT vaccine to be a trigger for David's first seizure, the denial of compensation could not stand. The case was remanded for proceedings to determine compensation.

The court noted that the Special Master's finding that DPT was a trigger but did not significantly aggravate TS was untenable in light of the established correlation between early seizure onset and mental retardation in TS cases. The court distinguished this case from Jordan v.

Secretary of HHS, where the petitioner's condition was demonstrably part of a known underlying genetic disorder with a predictable course. In David Suel's case, the timing of seizure onset absent the vaccination was unknown, and a delay in onset was critical for better mental development.

The court concluded that the DPT vaccination significantly aggravated David's latent TS by triggering the seizure that unleashed the condition, entitling him to compensation.