Phillip Sawyer v. HHS - DPT/DTP, encephalopathy (1993)

Phillip Sawyer, a child, was the subject of a claim filed under the National Childhood Vaccine Injury Act of 1986. Petitioners alleged that Phillip received a diphtheria-pertussis-tetanus (DPT) vaccination on November 18, 1946, at the Obion County Health Department in Tennessee, which subsequently caused him to suffer encephalopathy and die.

Respondent was the Secretary of Health and Human Services. Special Master Richard B.

Abell issued an order on February 16, 1993, dismissing the claim. The Special Master found that the preponderance of the evidence indicated Phillip did not receive a vaccine for which the Act authorizes compensation.

Petitioners subsequently filed a motion for review of this decision with the United States Court of Federal Claims. The court reviewed the Special Master's decision under a highly deferential standard, which allows setting aside findings only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

Petitioners' motion for review was accompanied by a memorandum that failed to meet the court's rules, specifically the requirement for numbered objections and specific citations to the record. The court noted that the petitioners' memorandum stated a wish to obtain review to comply with a request for records, but the Special Master had dismissed the case due to the petitioners' failure to meet their burden of proof regarding a Table vaccination, not because of a request for further records.

The court found that petitioners had not demonstrated that the Special Master's decision was arbitrary or capricious. The public decision does not describe the specific symptoms or clinical course of Phillip Sawyer's alleged encephalopathy or death, nor does it name the petitioner's counsel or respondent's counsel.

The court also noted that petitioners were unable to produce Phillip's vaccination records. While a personal history and consultation report from a December 2, 1946 hospitalization mentioned a diphtheria vaccine given two weeks prior to admission, the consultation report indicated symptoms occurred subsequent to a diphtheria toxoid vaccine, and any injury from such vaccines would not be compensable under the Act.

The Special Master had repeatedly requested an affidavit from the Obion County Health Department regarding vaccinations given around November 18, 1946. An affidavit from Dorothy Latimer, Records Clerk, stated that Diphtheria, Tetanus, and Pertussis immunizations were given in 1946, and that D, P, & T were usually given together, but not always.

The court concluded that this evidence was insufficient to establish by a preponderance of the evidence that Phillip had received a Table vaccination. The court denied the petitioners' motion for review and sustained the Special Master's dismissal order.

The decision was issued by Judge Moody R. Tidwell, III.