Devonshire v. HHS - tetanus, brachial neuritis (2007)

The petitioner in this case, identified in the case caption as Devonshire, filed a petition alleging that a tetanus toxoid vaccination she had received caused her to develop brachial neuritis, which in turn caused or significantly aggravated a degenerative cervical disk condition resulting in cervical radiculopathy. The case was filed approximately in 1999, based on the case number, but the petition filing date is not stated in this opinion.

This was an off-Table injury claim requiring proof of causation in fact. Special Master Abell held a hearing on October 15, 2005.

The central question was not the complexity of whether the vaccine caused brachial neuritis — it was whether brachial neuritis had occurred at all. Without proving the underlying injury, causation analysis was moot.

An electromyography test (EMG) was conducted approximately four months after the vaccination. Petitioner's own expert acknowledged that an EMG could "unambiguously establish the diagnosis of brachial neuritis" — but the EMG showed no evidence of brachial neuritis.

Each of petitioner's treating physicians had at some point considered brachial neuritis as a possibility, but, as the special master found, "one by one they either downgraded it [as] a possibility, excluded it entirely, or believed her condition to have been more likely caused by something else." Petitioner's testifying expert, Dr. Tornatore, was himself reluctant to commit to the diagnosis: when the test results were not supportive of his assessment, he opined that it was "still possible" that "an atypical case of brachial neuritis had occurred" — reasoning the special master characterized as "post hoc ergo propter hoc." Special Master Abell declined to supply a diagnosis that the entire medical record had failed to substantiate.

He dismissed the petition on September 28, 2006, finding a "paucity of evidence" that petitioner had suffered brachial neuritis. Judge Block, writing for the Court of Federal Claims on March 29, 2007, affirmed the special master's decision.

The special master had meticulously reviewed all the medical evidence and articulated a rational basis for his conclusion, satisfying the deferential arbitrary and capricious standard. No reviewing court substitutes its own assessment of the evidence for the special master's findings of fact.

Because petitioner failed to prove the existence of the injury she claimed — brachial neuritis — there was no basis for analyzing whether the vaccine caused it.