Kelli-Ann v. HHS - DPT, encephalopathy and residual seizure disorder (1998)

Kelli-Ann's parents filed a claim under the National Childhood Vaccine Injury Act of 1986 on behalf of their daughter, alleging she suffered neurological injuries, specifically encephalopathy and a residual seizure disorder, as a result of a diphtheria-pertussis-tetanus (DPT) vaccine administered on February 9, 1991. The case was litigated as an off-Table causation claim, meaning petitioners had to prove by a preponderance of the evidence that the vaccine caused Kelli-Ann's impairments.

The Special Master denied the claim, and Judge Wiese affirmed this decision on May 13, 1998. The court's ruling explained that the Special Master did not improperly apply the Vaccine Injury Table's definition of encephalopathy.

Instead, the Special Master found that petitioners had failed to prove an acute encephalopathy under any medically accepted definition. Petitioners' theory of causation relied on the testimony of pediatric neurologist Dr.

Marcel Kinsbourne, who opined that Kelli-Ann's seizure disorder resulted from an acute encephalopathic event within twenty-four hours of vaccination. Dr.

Kinsbourne described this event as either a seizure-related period of unconsciousness lasting approximately thirty minutes or, alternatively, a cluster of repeated seizures over a short period. The Special Master rejected the first part of Dr.

Kinsbourne's opinion because the contemporaneous medical records did not substantiate the alleged thirty-minute period of seizure-associated reduced consciousness. The second part of the opinion was rejected based on the testimony of respondent's expert, Dr.

Fenichel, who testified that a series of seizures separated by returns to normal alertness does not constitute status epilepticus and does not amount to the prolonged altered consciousness required to support an acute encephalopathic injury. Petitioners also raised a constitutional challenge, arguing that the 1995 revision to the Vaccine Injury Table was unconstitutional due to an impermissible delegation of law-making power from Congress to the Secretary of Health and Human Services.

The court held that it lacked jurisdiction to decide this broader constitutional challenge within the context of a Vaccine Act review proceeding, stating that such an issue was more appropriately considered by a United States court of appeals. Because petitioners had not carried their burden of proving that the DPT vaccination caused Kelli-Ann's claimed neurological injuries, the decision denying compensation was affirmed.

The public decision does not state the names of the petitioner or respondent counsel.