Lena Tebeherani v. HHS - DaPT, childhood disintegration disorder and autistic behaviors, with accompanied mental retardation (2002)

On October 6, 1999, Elias Tebeherani, on behalf of his daughter Lena Tebeherani, filed a petition for compensation under the National Childhood Vaccine Injury Act. Lena, who was approximately four and a half years old, received a DaPT vaccination on March 31, 1995.

The petition alleged that the vaccine caused her to develop childhood disintegration disorder and autistic behaviors, with accompanied mental retardation. The initial proceedings before the Special Master focused on whether Lena's symptoms appeared within 72 hours of vaccination, which would qualify her condition as a "Table injury." The Special Master expressed concerns about inconsistencies and imprecision in the parental testimony regarding the timing of symptom onset and Lena's school attendance.

Specifically, the Special Master noted conflicting accounts from Lena's parents about whether she attended preschool on Mondays and Fridays or Tuesdays and Thursdays, which impacted the calculation of the 72-hour window. The Special Master also noted that while parents reported fussiness and crying within 72 hours, more significant neurological problems appeared later, and the medical records suggested a potential onset of symptoms several weeks after vaccination.

The Special Master found that the medical records and parental testimony did not establish by a preponderance of the evidence that symptoms occurred within 72 hours of vaccination. He also noted that Lena had neurological problems prior to vaccination, both at birth and possibly in October 1994.

The Special Master initially concluded that Lena's condition was not a Table injury and that causation-in-fact was not proven. Following a remand from the Court of Federal Claims, which found that the Special Master had abused his discretion by failing to adequately consider school attendance records relevant to symptom onset, the case returned to the Special Master.

The Court of Federal Claims noted that school records indicated Lena did not have a recorded absence on Monday, April 3, 1995, which would have been within the 72-hour window. Despite this, the Special Master's subsequent decision on March 27, 2001, affirmed his earlier finding that Lena's injuries did not qualify as a Table injury.

Petitioner presented expert testimony from Dr. Thomas A.

Schweller, who opined that there was no alternate explanation for Lena's condition other than the immunization. Dr.

Schweller stated that Lena was developing normally prior to the DaPT vaccination and that after the vaccine, there was a marked change in her condition, exhibiting a "change in personality, change in ability to communicate, and a change in the way that the child interacts." He concluded that Lena had a non-progressive chronic encephalopathy triggered by the vaccination. However, the Special Master found Dr.

Schweller's opinions to be unpersuasive, criticizing his reliance on parental testimony over medical records and his failure to adequately address Lena's perinatal history of hydrops fetalis. The Special Master also found Dr.

Schweller's reasoning to be based on logic rather than causation, concluding that there was no clear sequence of cause and effect. Respondent presented expert testimony from Dr.

John T. MacDonald, who opined that Lena's autism stemmed from hydrops fetalis with perinatal asphyxia suffered at birth, not the DaPT vaccination.

Dr. MacDonald cited studies suggesting a higher frequency of neonatal complications in autistic children and noted that Lena exhibited signs of autism, such as poor eye contact and uncooperative behavior, prior to vaccination.

He also stated that Lena did not seek medical treatment until approximately two weeks after the vaccine, and her EEG results were normal. The Special Master found Dr.

MacDonald's report more persuasive, giving it greater weight. He concluded that Lena's condition was caused by complications at birth, which were related to her autistic condition, and that the petitioner failed to establish causation-in-fact.

On April 5, 2002, the Special Master issued an Entitlement Decision denying compensation. The Special Master concluded that Lena's injuries were not a Table injury and that the petitioner failed to prove by a preponderance of the evidence that the DaPT vaccine caused her injuries.

The Special Master found Dr. MacDonald's expert opinion more persuasive than Dr.

Schweller's. Petitioner sought review, arguing that the Special Master gave inadequate consideration to Dr.

Schweller's report and inappropriately weighed the expert testimony. Petitioner also contended that the Special Master's factual findings were inaccurate and that he improperly shifted the burden of proof regarding a potential viral infection.

The Court of Federal Claims reviewed the Special Master's decision. While the court found that the Special Master abused his discretion by failing to consider the school attendance records, it deemed this error harmless because the ultimate decision rested on the expert testimony regarding causation.

The court also noted that the Special Master's repeated references to a potential viral infection, despite insufficient evidence, were arbitrary and capricious but harmless. The court ultimately affirmed the Special Master's findings regarding the weight of expert testimony, concluding that the Special Master's reliance on Dr.

MacDonald's opinion was not arbitrary, capricious, or an abuse of discretion. The court noted that the case presented questions regarding significant aggravation of a pre-existing autistic condition and remanded the case for further proceedings consistent with the order, including consideration of ongoing research into vaccine effects on autism spectrum disorder.

However, the Special Master's final decision after remand denied compensation, finding that causation-in-fact was not established and Dr. MacDonald's opinion remained more persuasive.