Kurt Shifflett v. HHS - IPV/Polio, OPV-related bulbar paralytic polio (1994)

Patricia Shifflett, as legal representative for her minor son Kurt Shifflett, filed a claim under the National Vaccine Injury Compensation Program. Kurt received a diphtheria-pertussis-tetanus (DPT) vaccine and an oral polio vaccine (OPV) on June 16, 1982, in Utah, at two months of age.

He was ill at the time of vaccination. Within five minutes of receiving the vaccines, Kurt began crying inconsolably, a condition that persisted for five days.

On June 21, 1982, Kurt experienced respiratory arrest and stopped breathing. He was hospitalized from June 21 to July 10, 1982, and treated for hypoxia.

His treating physicians did not contemporaneously diagnose paralytic polio. Kurt subsequently developed symmetrical, nonprogressive paralysis, incontinence, difficulty moving his mouth and tongue, spastic limbs, and flaccid neck muscles, with no impairment to his intellect.

Initially alleging injuries from both vaccines, the petitioner focused on an OPV-related injury. Petitioner's experts, Dr.

Peter Lichtenfeld and Dr. John Tilelli, opined that the OPV caused bulbar paralytic polio, affecting Kurt's brain stem and leading to respiratory failure.

They cited Kurt's spastic limbs, flaccid neck muscles, elevated white blood cell count in his spinal fluid, medical records suggesting meningoencephalitis or brain-stem involvement, facial diplegia, the absence of enteroviruses other than polio Type II in a stool sample taken six days post-vaccination, and the lack of contemporaneous Utah reports of other enteroviruses that could explain the illness. Dr.

Lichtenfeld also testified that Kurt's combination of impaired brain-stem function and normal intellect was more consistent with bulbar paralytic polio than hypoxia alone. Respondent's expert, Dr.

Ethan B. Russo, could not medically attribute Kurt's condition to the OPV with reasonable certainty.

He suggested that hypoxia alone could explain the spastic limbs, flaccid neck muscles, and elevated white blood cell count, and he downplayed the stool sample findings, noting that many OPV recipients shed the virus without developing paralytic polio and that other enteroviruses can go undetected. Dr.

Russo considered a near-miss Sudden Infant Death Syndrome (SIDS) event a more likely explanation. The Special Master denied compensation, ruling that the petitioner could not establish a Table Injury without a contemporaneous, definitive diagnosis of paralytic polio and had not proven actual causation.

On January 24, 1994, Judge Lawrence S. Margolis reversed the Special Master's decision.

The court held that the Vaccine Act requires proof by a preponderance of the evidence that the first symptom or manifestation of paralytic polio occurred within the Table period, not a contemporaneous diagnosis. Applying this standard, the court found that Kurt suffered bulbar paralytic polio within thirty days after receiving the OPV and was therefore entitled to the Table presumption.

The court also found the Special Master's actual causation analysis legally flawed for requiring the petitioner to rule out every other possible enterovirus. The case was remanded for consideration of damages.

The public decision does not state the final award amount.