Martha McGowan v. HHS - MMR, encephalopathy (1994)

Martha McGowan, born October 5, 1964, received a measles vaccination on August 20, 1965, while in Canada. Approximately one week later, she was hospitalized with fever, vomiting, a semicomatose state, twitching hands, and urinary incontinence, diagnosed as convulsions.

Her EEG was normal, and she recovered quickly. She later experienced more convulsions in January 1966, seven days after a smallpox vaccination, and was diagnosed with a temporal lobe seizure disorder and minimal cerebral dysfunction.

The family lived in Toronto until April 1967, making intermittent trips to the United States to visit family. Martha McGowan filed a petition for compensation under the National Childhood Vaccine Injury Act on October 1, 1990, alleging encephalopathy from the measles vaccine.

The respondent moved to dismiss, arguing that McGowan failed to meet the statutory requirement of returning to the United States within six months of vaccination. Special Master Richard B.

Abell initially denied the motion to dismiss, stating there was an insufficient basis to grant it. The case was transferred to Special Master Laura D.

Millman, who handles tuberous sclerosis cases. On May 10, 1994, Special Master Millman granted the respondent's renewed motion to dismiss, finding that McGowan failed to prove by a preponderance of the evidence that she returned to the United States within six months of her measles vaccination.

The court reviewed the decision de novo, as it involved a legal question regarding the interpretation of the word "return" in the statute. The court sustained the Special Master's decision, holding that "return" under 42 U.S.C. § 300aa-11(c)(1)(B)(i)(III) requires a permanent return to the United States with the intent to remain, not merely a physical presence.

The court found that McGowan did not meet this jurisdictional requirement, as she did not permanently return to the United States until April 1967, which was more than six months after her August 1965 vaccination. The public decision does not describe the specific mechanism of injury or name petitioner's counsel or respondent's counsel.