Donald Horner, Jr. v. HHS - DPT, residual seizure disorder and/or encephalopathy and/or shock collapse and/or hypnotic hypo-responsive collapse (1996)

Donald Horner, Jr., an infant, was the subject of a petition filed on September 26, 1990, seeking compensation under the National Childhood Vaccine Injury Act of 1986. The petitioners alleged that Donald received a DPT (diphtheria, pertussis, and tetanus) vaccination on June 18, 1964, and subsequently suffered injuries including a residual seizure disorder and/or encephalopathy and/or shock collapse and/or hypnotic hypo-responsive collapse, as defined in the Vaccine Injury Table, within the required three-day period.

The respondent recommended denial, citing a lack of contemporaneous medical records to confirm a DPT vaccination on the alleged date and suggesting that any injection on June 18, 1964, was likely penicillin for tonsillitis and high fever. A hearing was held on November 15, 1994, focusing on whether a DPT vaccine was administered on or within 72 hours of June 18, 1964.

Testimony and examination of a receipt from the pediatrician's office, dated June 18, 1964, and containing the initials "DPT" on a line for professional services, were central to the hearing. Neither the petitioner's mother, Mrs.

Horner, nor Nurse Brown, who signed the receipt, claimed to have written "DPT." The special master, Richard B. Abell, ruled against the petitioners, finding they failed to prove by a preponderance of the evidence that a DPT vaccination occurred within the required timeframe.

He specifically found that no one in the pediatrician's office wrote "DPT" on the June 18 receipt. The special master noted the absence of any immunization records.

One month after this ruling, on December 15, 1994, the petitioners discovered a vaccination record among Donald's school papers, appearing to show a DPT vaccination date of June 15, 1964. The special master declined to admit this new evidence in an order dated February 15, 1995, and reaffirmed this decision in a September 29, 1995 opinion, citing fundamental unfairness, the petitioners' lack of diligence in locating the record over four years since filing, and concerns about credibility regarding the petitioners' testimony and the June 18 receipt.

The petitioners appealed to the U.S. Court of Federal Claims, arguing the special master's refusal to consider the vaccination record was an abuse of discretion and arbitrary and capricious.

The Court of Federal Claims, in an opinion by Judge Yock, agreed with the petitioners. The court found that under Vaccine Rule 8(b), which mandates consideration of all relevant, reliable evidence governed by fundamental fairness, the special master abused his discretion by not admitting the newly discovered vaccination record.

The court emphasized the critical importance of this record as the best evidence of the vaccination date and stated that fundamental fairness required its consideration, especially given the difficulty of proving events that occurred decades ago. The court acknowledged the inconvenience but found it outweighed by the need for truth-seeking.

The court also directed the special master to re-examine his finding regarding the "DPT" notation on the June 18 receipt in light of the new evidence. The case was remanded to the special master to reopen proof, admit the vaccination record if authentic, and reconsider the findings.

The ultimate outcome of the case remained pending further proceedings before the special master.