Furniss v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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JAMES R. FURNISS, JR., * No. 14-481V

* Special Master Christian J. Moran

Petitioner, *

*

v. *

* Filed: July 15, 2015

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Finding of Fact; onset; numbness

* in hands.

Respondent. *

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Maximillian J. Muller, Muller Brazil, LLP, Philadelphia, PA, for petitioner;

Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent.

FINDING OF FACT1

On June 4, 2014, James R. Furniss, Jr., filed a petition alleging that an

influenza vaccine, given to him on January 14, 2013, caused him to develop

chronic inflammatory demyelinating polyneuropathy (CIDP). The medical records

contain abundant support for the diagnosis of CIDP and the Secretary does not

challenge that Mr. Furniss suffers from that disease. However, the record contains

conflicting information about when Mr. Furniss experienced the first symptoms of

CIDP. To resolve this factual conflict, a hearing was held in Memphis, Tennessee

on June 17, 2015.

After considering the record as a whole, I find that Mr. Furniss first

experienced numbness in his hands on January 17, 2013. The reasons for this

finding are explained below.

The finding that numbness began on January 17, 2013 fits within the

chronology of undisputed events. The parties agree that on December 20, 2012,

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The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,

2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the

parties have 14 days to file a motion proposing redaction of medical information or other

information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special

master will appear in the document posted on the website.

Mr. Furniss had a microdiscetomy. Exhibit 1 at 88. On January 4, 2013, he saw

the doctor in follow up for his operation. Id. at 19. On January 14, 2013, he

received an influenza vaccination. Exhibit 2. On January 25, 2013, he saw a

neurologist, exhibit 1 at 13, and on January 29, 2013, he was hospitalized, id. at 11.

The issue resolved herein is when the numbness for which he saw the neurologist

and he was hospitalized began.

Standards for Adjudication

The standards for resolving findings of fact are sufficiently established that

they need not be repeated here. For a detailed account, see Bayless v. Sec'y of

Health & Human Servs., No. 08-679V, 2015 WL 638197, at *2 (Fed. Cl. Spec.

Mstr. Jan. 15, 2015).

Summary and Evaluation of the Evidence

Although records created contemporaneously with the events being

described are presumed to be accurate, Cucuras v. Sec’y of Health & Human

Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993), this principle is not absolute.

Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006). Here,

the medical records created at the end of January 2013 are not entirely consistent.

For example, medical records created on January 29, 2013 — which is the

day Mr. Furniss was admitted to the hospital — provide three slightly different

dates of onset. First, at the emergency department, the nurse completing a triage

form stated that Mr. Furniss’s numbness began about two weeks ago. Exhibit 3-2

at 296 / pdf 87. If this history is correct and if “two weeks” means precisely 14

days, then the onset of Mr. Furniss’s hand numbness was January 15, 2014. See

Tr. 84. Second, while still in the emergency department, Mr. Furniss provided

another history. Dr. Leonard Jefferson Harris, Jr. recorded that Mr. Furniss has

“numbness in hands for 2 weeks that has moved into his feet.” Exhibit 3-2 at 327 /

pdf 118. Because there is no information about how long the numbness has been

in Mr. Furniss’s feet, it is not entirely clear whether the numbness started 14 days

earlier. Third, after Dr. Harris admitted Mr. Furniss to the hospital from the

emergency department, Mr. Furniss saw a neurology resident who obtained a third

history. According to Dr. Muneer Hassan’s record, Mr. Furniss was “well after the

procedure until January 4, 2013, when he began to develop tingling and numbness

in his hands and feet.” Exhibit 3-2 at 321 / pdf 112; see also Tr. 123-24.

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These three records were created within hours of each other. Each is as

“contemporaneous” to the events in question as the next. On their face, there does

not appear to be any reason for crediting one of these records over another record.

Thus, in determining the onset of Mr. Furniss’s numbness, it is not possible to

follow the presumptive rule of thumb that medical records created

contemporaneously are correct.

When the contemporaneously created medical records are in conflict, other

sources of information should be considered. Here, the record includes travel

documents and Mr. Furniss’s testimony.

Mr. Furniss produced travel documents showing that between January 4,

2013 and January 18, 2013, he went on two trips. First, Mr. Furniss’s wife and he

drove from their house near Memphis to their son’s home in Louisville, Kentucky,

where they stayed in a hotel. The reason for their trip was to help their son’s

family move. Exhibit 14 at 4-5; Tr. 29-30. The trip was approximately 300 miles

and about 6-7 hours to drive. Tr. 109. According to Mr. Furniss’s testimony, he

had recovered from his microdiscetomy enough to be tasked with disassembling

items, such as beds. When he occasionally attempted to carry items to the moving

truck, his wife reminded him to limit his activities. Tr. 30.

Mr. Furniss’s second trip was to San Francisco, California for a conference

relating to his job. He departed, by plane, on Tuesday, January 15, 2013, and

returned, also via plane, on Thursday, January 17, 2013. Exhibit 14 at 10-11; Tr.

31-36. In the middle, Mr. Furniss presented a talk. Mr. Furniss placed the onset of

numbness in his hands on January 17, 2013. He recalled speaking to his wife on

the telephone from San Francisco and telling his wife that he was having a new

type of problem. Before the disc surgery, his problems were in his legs. Now, his

problems were in his hands. Tr. 34, 39, 142-43.

The two trips are significant because they tend to show that Mr. Furniss was

functioning pretty well. Although he had had a disc surgery at the end of

December 2012, exhibit 1 at 88; Tr. 21-22, he was recovering and his surgeon

expected additional improvements. Exhibit 1 at 19; Tr. 24-25. He felt comfortable

enough to sit in a car for many hours and, then a few days later, to travel for

several hours by plane. Tr. 30. He would have been less likely to take these trips

if he was having continual numbness in his hands. See Tr. 76-77. His actions

speak louder than words.

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Mr. Furniss’s words include telling Dr. Wright, on January 25, 2013, that

“about three weeks ago he awakened one morning with a numb feeling in his

hands.” Exhibit 1 at 13. If three weeks means exactly 21 days, then the onset of

numbness would be January 4, 2013. This onset corresponds to the history that Dr.

Hassan recorded in Methodist Hospital on January 29, 2013. Exhibit 3-2 at 321

pdf 112.2 In Mr. Furniss’s testimony, he explained that although he probably said

“about three weeks ago” to Dr. Wright, his recollection at that time was not

accurate. He was anxious about his health, particularly concerned that the surgery

actually created a new problem. See Tr. 39-40. He also provided the history to Dr.

Wright without the benefit of looking at his calendar. His explanation of why Dr.

Wright’s medical record contains an error was compelling. Tr. 56-58; see also Tr.

84.

It bears repeating that on January 29, 2013, only four days after the

appointment with Dr. Wright, Mr. Furniss told the triage nurse that the numbness

started two weeks ago. Exhibit 3-2 at 296 / pdf 87. The inconsistencies in the

medical records suggest that Mr. Furniss was not an absolutely precise historian in

January 2013.3

In short, the most persuasive evidence supports a finding that Mr. Furniss

woke on January 17, 2013 with numbness in his hands. He testified that he called

his wife before leaving San Francisco to tell her about his symptoms and his

departure time (1:17 PM) would allow an early morning call home. Tr. 89; exhibit

14 at 10 (flight schedule). January 17, 2013 is also relatively consistent with the

reports at the emergency room on January 29, 2013, which stated that he was

having numbness for about two weeks.

2

The Secretary relies upon the multiple references to January 4, 2013, for asserting that

the onset began on January 4, 2013. Although these records provides a basis for the Secretary’s

argument, the weight of the evidence taken as a whole suggests that the numbness began after

January 4, 2013.

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Part of the inconsistency may derive from the vagueness in Mr. Furniss’s choice of

words. Phrases like “about two weeks ago” (record of triage nurse) or “about three weeks ago”

(record of Dr. Wright) are estimates. They inform the medical staff that (a) the numbness did not

start acutely within the last day, and (b) the numbness was not a long-standing problem that had

been affecting Mr. Furniss for months or years. See Tr. 75. Thus, from a medical perspective

either “about two weeks ago” or “about three weeks ago” probably has the same meaning. But,

from a legal perspective for a claim in the Vaccine Program, the difference between “about two

weeks ago” and “about three weeks ago” is very important in relation to the date of vaccine.

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Conclusion

The parties are ordered to provide this ruling to any expert whom they

retain. Expert opinion inconsistent with these findings of fact is not likely to be

persuasive. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (1993)

(holding that the special master did not abuse his discretion in refraining from

conducting a hearing when the petitioner’s expert “based his opinion on facts not

substantiated by the record”); Brooke Group Ltd. v. Brown & Williamson

Tobacco Corp., 509 U.S. 209, 242 (1993) (“When an expert opinion is not

supported by sufficient facts to validate it in the eyes of the law, or when

indisputable record facts contradict or otherwise render the opinion unreasonable,

it cannot support a jury’s verdict.”); Perreira v. Sec’y of Health & Human Servs.,

33 F.3d 1375, 1376 n.6 (Fed. Cir. 1994) (“An expert opinion is no better than the

soundness of the reasons supporting it.”); see also Bradley v. Sec’y of Health &

Human Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993) (the assumption of an expert

about the accuracy of a fact witness’s testimony does not “substantiate” the fact

witness’s testimony).

A status conference is set, sua sponte, for Monday, August 10, 2015 at

10:00 A.M Eastern Time. The parties should be prepared to propose the next step

in this case.

Any questions may be directed to my law clerk, Mary Holmes, at

(202) 357-6360.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

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