Dante Ultimo v. HHS - diphtheria-pertussis-tetanus (DPT), alleged DPT-related seizure disorder; Table residual seizure disorder and actual-causation theories denied (1993)
Case summary [AI summaries can sometimes make mistakes]
On January 11, 1993, petitioner filed a motion for review of the Chief Special Master's December 11, 1992, decision denying compensation under the National Childhood Vaccine Injury Act of 1986 on behalf of Dante Ultimo. The petition alleged a seizure disorder caused by a diphtheria-pertussis-tetanus (DPT) vaccination.
The court reviewed the decision under an "arbitrary and capricious" standard. Petitioner raised four objections: that the Chief Special Master erred in not finding the Table injury occurred within three days, that there was no evidence of further afebrile seizures within one year, that causation in fact was demonstrated, and that the Chief Special Master exhibited bias.
The court sustained the Chief Special Master's factual finding that Dante's first seizure occurred approximately 78-80 hours after vaccination, with the earliest possible onset at 75 hours. The court affirmed the interpretation of "three days" as 72 hours, thus denying the Table claim based on timing.
Regarding the second objection, the court deferred to the Chief Special Master's credibility determination, finding the testimony of petitioner and her expert, Dr. Peter Lichtenfeld, regarding subsequent afebrile seizures to be insufficient and unsupported by medical records.
The court noted that special masters are not bound by expert opinions and that Dr. Lichtenfeld's testimony was contradictory.
On the third objection, concerning actual causation, the court agreed with the Chief Special Master that temporal association and the absence of alternative causes, as argued by Dr. Lichtenfeld, were insufficient to prove causation in fact, citing Grant v.
Secretary of HHS. The court also upheld the exclusion of testimony from Dr.
Mark Geier, as the Chief Special Master had previously found him unqualified. The court found no error in the Chief Special Master mentioning the Institute of Medicine (IOM) report as consistent with respondent's expert, Dr.
Horwitz, whose testimony was found more persuasive and better supported by medical records. The court rejected the fourth objection regarding bias, finding it unsubstantiated and inappropriate, and warned against repetition.
On April 6, 1993, the Court of Federal Claims denied the motion for review, sustained the Chief Special Master's decision, and directed entry of judgment. No compensation was awarded.
Theory of causation
Petitioner alleged that a DPT vaccination caused a seizure disorder in minor Dante Ultimo. The staged review opinion does not state Dante's date of birth or the exact vaccination date. Petitioner pursued both a Vaccine Table residual seizure disorder theory and an actual-causation theory. Chief Special Master Gary J. Golkiewicz denied compensation on December 11, 1992, and the Court of Federal Claims, per Judge Moody R. Tidwell III, affirmed on April 6, 1993. The Table claim failed because the first seizure occurred approximately 78-80 hours post-vaccination, outside the 72-hour window required by the Table for residual seizure disorder. The court sustained the interpretation of "three days" as 72 hours. Petitioner also failed to prove at least two subsequent afebrile seizures within one year, as the testimony from petitioner and her expert, Dr. Peter Lichtenfeld, was found insufficient and unsupported by medical records. The actual-causation theory failed because Dr. Lichtenfeld relied on temporal association and the absence of alternative causes, which is insufficient to prove causation in fact per Grant v. Secretary of HHS. Proposed testimony from Dr. Mark Geier was excluded as he was deemed unqualified. Respondent's expert, Dr. Horwitz, was found more persuasive and better supported by medical records, with his findings consistent with the Institute of Medicine report. No award was made.
Source PDFs
USCOURTS-cofc-1_90-vv-02045