Christian Rhys Vant Erve v. HHS - DPT, residual seizure disorder/encephalopathy claim; possible progressive dysmyelinating-metabolic disease (1997)

On May 14, 1992, petitioners filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986 on behalf of their son, Christian Rhys Vant Erve. Christian was born on April 27, 1989, and received a diphtheria-pertussis-tetanus (DPT) vaccination on June 23, 1989, at two months of age.

Two days later, he experienced episodes of shaking in his left arm and leg, which continued through June 26, 1989. His parents took him to the hospital, where he was diagnosed with seizures, treated with anti-seizure medication, and discharged after the seizures stopped.

Christian had no further seizures after June 1989. By December 7, 1990, developmental delay became apparent, and he subsequently developed severe physical and mental problems, including spastic diplegia, diminished mental capacity, and diminished hearing and visual capacities.

Petitioners alleged that Christian suffered residual seizure disorder and/or encephalopathy within three days of the DPT vaccination and that his subsequent conditions were sequelae of these table injuries. Respondent initially opposed the petition, relying on the opinion of pediatric neurologist Dr.

Arnold D. Gale, who concluded that Christian had a chronic static neurologic disorder most likely caused by a prenatal cerebral insult and that there was no evidence of acute encephalopathy.

Petitioners presented the affidavit of Dr. Jan Mathisen, Christian's treating pediatric neurologist, who considered a perinatal injury speculative due to Christian's benign Apgar scores and neonatal/perinatal course, and noted that clinical signs of cerebral palsy did not appear until approximately nineteen months of age.

Dr. Mathisen stated that Christian's condition could reasonably be considered a continuation of the June 1989 injury.

The Special Master ruled in favor of petitioners on entitlement on June 21, 1994, finding that Christian suffered both residual seizure disorder and encephalopathy, and that respondent failed to prove these were caused by a "factor unrelated to the administration of the vaccine." Following this ruling, the parties litigated damages, exchanging life-care plans. During this phase, respondent obtained additional medical records and expert reviews.

Neuroradiologist Dr. Charles R.

Fitz reviewed post-petition MRI studies and concluded that Christian had a progressive dysmyelinating or metabolic disease, not a static vaccine injury, and that such diseases are nearly always inherited. Dr.

Gale reviewed later records and similarly concluded that Christian's clinical course and serial MRI abnormalities indicated a severe progressive degenerative disease, likely caused by a genetic inborn error of metabolism. Respondent moved to reopen the issue of entitlement based on this new evidence.

The Special Master denied the motion on June 26, 1997, finding that while the evidence was important, reopening would be unfairly prejudicial to petitioners given the time elapsed and that respondent was negligent in not obtaining the records earlier. On June 27, 1997, the Special Master directed an award of over $600,000 in cash plus an annuity for Christian's care.

Respondent sought review, arguing that the Special Master abused discretion by refusing to consider highly relevant and potentially outcome-determinative evidence. Judge Eric G.

Bruggink reversed the Special Master's decision on November 21, 1997, finding that the Special Master gave improper weight to emotional prejudice and the Vaccine Fund's surplus, and that respondent should not be penalized for the absence of records that were not apparent. The court held that the new evidence was highly probative and that the Special Master erred in not giving it adequate weight.

The court set aside the compensation award and remanded the case for reconsideration of liability and, if appropriate, damages. The final outcome after remand is not stated in the provided text.