Jonathan Reusser v. HHS - DPT/DTP, encephalopathy (1993)

On January 21, 1993, petitioners Kenneth and Brenda Reusser filed a motion for review of a special master's decision denying their claim for compensation under the National Vaccine Injury Compensation Program on behalf of their son, Jonathan. Jonathan, born June 11, 1985, received his first DPT vaccination on August 12, 1985, and a second on September 11, 1985.

Petitioners alleged that Jonathan suffered an encephalopathy within 72 hours of these vaccinations, which they claimed was a Table injury. The special master held an evidentiary hearing on January 30, 1992, and issued a decision on December 21, 1992, denying entitlement.

The Court of Federal Claims affirmed the special master's decision on January 21, 1993, and denied the motion for review. The public decision does not name the attorneys for the petitioners or the respondent, nor does it specify the Special Master's name.

Petitioners presented testimony from Jonathan's mother, Brenda Reusser, and an expert neurologist, Dr. Kinsbourne.

Mrs. Reusser testified that Jonathan exhibited symptoms such as crying, fever, limpness, loss of head control, and difficulty breathing within 72 hours of the first DPT vaccination.

She also described similar symptoms, including fever, crying, lethargy, and loss of head control, following the second DPT vaccination. Dr.

Kinsbourne opined that Jonathan suffered an encephalopathy within 72 hours of the first DPT vaccination, based on Mrs. Reusser's account of these symptoms.

Respondent presented expert testimony from Dr. Pollack, who believed Jonathan did not suffer an encephalopathy within the Table period.

Dr. Pollack relied on medical records indicating that Jonathan's hypotonia predated the first vaccination, citing Dr.

Climaco's notation questioning head control on August 12, 1985, and other medical histories suggesting hypotonia from the newborn period. The special master denied entitlement, concluding that petitioners failed to prove by a preponderance of the evidence that Jonathan sustained an encephalopathy within three days of either vaccination.

The special master noted significant discrepancies between witness testimony and contemporaneous medical records, finding it more probable that Jonathan had an underlying neurological disorder that predated the vaccination. The special master also addressed significant aggravation following the second vaccination, applying the Misasi test, but found petitioners failed to meet their burden.

The Court of Federal Claims affirmed the special master's decision, finding it was not arbitrary, capricious, or an abuse of discretion. The court agreed that the special master correctly applied the standard of proof and evaluated the evidence, particularly noting that the "Murphy" rule, which generally gives more weight to contemporaneous documents than to later oral testimony, was consistent with the Vaccine Act.

The court found that Dr. Pollack's testimony provided a sufficient basis for the special master's finding of a pre-existing condition.

The court also addressed petitioners' arguments regarding the standard of proof and the application of the Misasi test for significant aggravation, concluding that petitioners failed to meet their initial burden of proof for a Table injury, rendering the specific application of the Misasi test irrelevant. The court further found that the issue of significant aggravation after the first DPT vaccination was waived, as it was not raised in the petition or presented with factual evidence before the special master.

The court denied the motion for review and affirmed the special master's decision.