The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 02-226V
E-Filed: April 26, 2013
* * * * * * * * * * * * * *
*
ANTHONY REID, * Chief Special Master
* Campbell-Smith
*
* Fact Finding; Hepatitis B
* vaccines; Alleged Injuries
* include: Changes in Stool,
* Exercise-Induced Asthma,
v. * Fatigue, Muscle Twitches,
* Fainting Episodes, Sound and
SECRETARY OF HEALTH * Smell Sensitivity, and Dry
AND HUMAN SERVICES, * Eyes
*
*
Respondent. *
*
* * * * * * * * * * * * * *
RULING REGARDING FACTUAL FINDINGS 1
On March 22, 2002, petitioner Linda Reid (petitioner or Ms. Reid) filed a
petition on behalf of her minor son, Anthony, seeking compensation under the
1
Because this decision contains a reasoned explanation for the undersigned’s
action in this case, the undersigned intends to post this ruling on the United States
Court of Federal Claims’ website, in accordance with the E-Government Act of
2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at
44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party
has 14 days within which to request redaction “of any information furnished by
that party: (1) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b).
1
National Vaccine Injury Compensation Program (the Program). 2 Petitioner
alleges that Anthony experienced a number of adverse effects as a result of the
vaccines he received on December 19, 2000, and January 17, 2001. Petitioner
asserts that the administered hepatitis B vaccines caused changes in the
appearance of her son’s stools, exercise-induced asthma, and fatigue. Pet. at 2.
Alternatively, petitioner claims that Anthony suffered from muscle twitches,
fainting episodes, sound and smell sensitivity, shaking episodes, and dry eyes, as a
result of the mercury-containing preservative thimerosal added to the hepatitis B
vaccine he received on December 19, 2000. Pet’r’s Ex. 42. At the time Anthony
received his first hepatitis B vaccine, he also received the measles, mumps, and
rubella (MMR), inactivated polio (IPV), and tetanus-diphtheria acellular pertussis
(TDaP) vaccines. Pet’r’s Ex. 42.
In support of the allegation that Anthony suffered various vaccine-related
injuries, petitioner filed the following documents: (1) affidavits and a narrative she
prepared, Pet’r’s Ex. 2, 18, 32, 40, 66; (2) statements from Anthony’s father
(Anthony Reid, Sr.), Anthony’s grandmother (Rosa Reid), Anthony’s brother
(Adrian Artis), and the family’s neighbor (Sharon Phillips), Pet’r’s Ex. 20, 21, 22,
23, 61; (3) petitioner’s pregnancy records, Pet’r’s Ex. 11, 14, 16; (4) Anthony’s
earliest pediatric records, Pet’r’s Ex. 2, 4, 6, 7, 10, 17, 29, 31, 36, 52; (5)
Anthony’s later pediatric records, Pet’r’s Ex. 3, 19, 25, 26, 27, 30, 35, 37, 39, 43,
49, 50, 51, 55, 56, 57, 58; (6) Anthony’s immunization records, Pet’r’s Ex. 12, 13;
(7) a VAERS Report, Pet’r’s Ex. 67, (8) a medical referral for homebound
instruction and school documents pertaining to homebound instruction, Pet’r’s Ex.
8, 34, 38, 65; (9) Anthony’s school attendance records, Pet’r’s Ex. 62, 63, 64; (10)
expert reports from Dr. Joseph Bellanti, Pet’r’s Ex. 24, 44, 54, and Dr. Mary
Megson, Pet’r’s Ex. 42; and (11) medical literature alleged to support petitioner’s
claim, Pet’r’s Ex. 45, 54.
The undersigned conducted a fact hearing in Washington, D.C. on June 13,
2012, to resolve certain fact issues that emerged during the case’s development.
At the hearing, petitioner, her husband, and her son Anthony testified regarding
Anthony’s state of health before and after his receipt of the hepatitis B vaccine on
December 19, 2000, and January 17, 2001, respectively.
I. DISCUSSION
A. The Documentary Record
2
The Program comprises Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C.
§§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereinafter,
individual section references will be to 42 U.S.C. § 300aa of the Act.
2
Anthony Reid was born on March 25, 1992, at Wayne Memorial Hospital
in North Carolina. Pet’r’s Ex. 16. He was discharged two days after his birth, on
March 27, 1992, as a well infant. Id.
On December 19, 2000, Anthony received his first administration of the
hepatitis B vaccine, as well as the MMR, IPV, and TDaP vaccines. Pet’r’s Ex. 12.
One month later, on January 17, 2001, Anthony received his second administration
of the hepatitis B vaccine. Pet’r’s Ex. 12. He was eight years of age. Pet’r’s Ex.
16.
On February 23, 2001, nearly one month after Anthony’s second hepatitis
B vaccine, petitioner took Anthony to see Dr. Gary Santora, a chiropractor.
Pet’r’s Ex. 26. At that time, Anthony presented with complaints of sharp, stabbing
headaches. Id. No diagnostic impression was offered. Id.
Nearly eight months after his second hepatitis B vaccination, on August 23,
2001, Anthony was taken to Patient First Medical Center (Patient First)
complaining about tightness in his chest and difficulty breathing. Pet’r’s Ex. 15.
Two months thereafter, on October 30, 2001, petitioner took Anthony to
see Dr. Mary Megson, a developmental pediatrician, for an evaluation of his
reaction to the hepatitis B vaccine he had received ten months earlier. Pet’r’s Ex.
2. During this visit Dr. Megson recommended laboratory testing and submitting a
report to the Vaccine Adverse Event Reporting System (VAERS). Id.
The recommended lab work was performed, and Dr. Megson determined
that Anthony’s hair showed elevated levels of aluminum, arsenic, antimony,
cadmium, lead, and thallium. Pet’r’s Ex. 29. More lab work was performed, and
on January 4, 2002, Dr. Megson advised that no further medical intervention was
necessary based on the results. Id.
Later that month, by letter dated January 10, 2002, Dr. Donald Sanders of
Midlothian Family Practice, informed the Reids that medical care would no longer
be provided for Anthony or his sister Alexis. Pet’r’s Ex. 28. Dr. Sanders voiced
particular concern about the excessive number of emergency room and Patient
First visits for Anthony and Alexis. Id.
Petitioner took Anthony back to Dr. Megson on January 24, 2002, more
than one year after his second hepatitis B vaccination, complaining of recent
nausea and fatigue. Pet’r’s Ex. 42. Dr. Megson speculated that Anthony could
have experienced thimerosal toxicity, noting that Anthony had developed a bout of
severe asthma after receiving his second hepatitis B vaccine. Id.
3
On March 14, 2002, nearly two months after the visit to Dr. Megson during
which the possibility of thimerosal toxicity was considered, Anthony was
diagnosed with heart palpitations. Pet’r’s Ex. 3. One week later, on March 22,
2002, petitioner filed this vaccine claim. Pet. at 2.
Two months after the filing of the vaccine claim and fourteen months after
Anthony’s second hepatitis B vaccination, Anthony was diagnosed with exercise-
induced asthma. Pet’r’s Ex. 17.
Nearly one year later, on April 13, 2003, a computerized tomography (CT)
scan was taken of Anthony’s upper body to investigate his ongoing complaints of
twitching, chest pain, and throat pain. 3 Id. Dr. Carlisle Morgan, the radiologist
who reviewed the CT scan, determined that Anthony’s heart and other mediastinal
structures appeared normal. Id.
On April 14, 2003, more than two years after Anthony’s second hepatitis B
vaccination, petitioner took Anthony for an evaluation by Dr. Donald Taylor, a
pediatric neurologist, for possible seizures and chest pain. Pet’r’s Ex. 19. A CT
scan was taken of Anthony’s brain, and during the consultation, Dr. Taylor
indicated that the episodes of numbness with twitching that Anthony was
experiencing might reflect an anxiety or hyperventilation response, but did not
support a finding that Anthony was seizing. Id. Dr. Taylor recommended a
further assessment of Anthony’s symptoms. Id. The next day, Dr. Taylor
performed an electroencephalogram (EEG). 4 Pet’r’s Ex. 49. He noted that
3
A CT scan of the brain consists of a computerized analysis of multiple
tomographic x-ray images taken of the brain tissue at successive layers, providing
a three-dimensional view of the cranial contents. The CT image provides a view
of the head as if one were looking down through its top. The variation in density
of each tissue allows for variable penetration of the x-ray beam. An attached
computer calculates the amount of x-ray penetration of each tissue and displays
the calculations as shades of gray. The image is placed on a television screen and
photographed. The final result is a series of anatomic pictures of coronal and
sagittal sections of the brain. Mosby’s Manual of Diagnostic and Laboratory Tests
1080 (4th ed. 2010).
4
An EEG of the brain is the recording of potential on the skull generated by
currents emanating spontaneously from the nerve cells in the brain. Fluctuations
in potential are seen in the form of waves, which correlate well with different
neurological conditions and so are used as diagnostic criteria. Dorland’s
Illustrated Medical Dictionary 607 (31st ed. 2007).
4
Anthony suffered some jerking movement during the recording, but his test results
were normal. Id.
One week later, petitioner took Anthony to Patient First for complaints of
loss of movement in his arms and legs. Pet’r’s Ex. 30. The examining physician,
Dr. Ivia Somerville, a family physician, recommended lab work and a consultation
with a neurologist. Id.
Nearly four months later, on August 30, 2003, Anthony was diagnosed as
having probable floppy eyelid syndrome after a consultation with Dr. Thomas
Carothers, an ophthalmologist. Pet’r’s Ex. 31. Dr. Carothers recommended the
administration of antihistaminic eye drops and a follow-up appointment in one
month. Id.
On September 3, 2003, four days after seeing Dr. Carothers, petitioner took
Anthony back to see Dr. Megson. During this visit, Dr. Megson noted that
Anthony was experiencing shaking episodes, chronic fatigue, dry eyes that
required artificial tears, and stomach aches. Pet’r’s Ex. 42. These symptoms
persisted during his follow-up visit on November 4, 2003. Id.
Three weeks later on September 24, 2003, Anthony was admitted to
Chippenham and Johnston Willis Medical Center experiencing periods of body
numbness, but was discharged a couple of hours later. Pet’r’s Ex. 42. About two
weeks later Anthony was admitted again to Chippenham and Johnston Willis
Medical Center complaining of twitching, paralysis, and unresponsiveness. Id.
On October 17, 2003, nearly five weeks after Anthony had returned to Dr.
Megson for a follow-up exam, petitioner’s husband took Anthony to Patient First
because he had collapsed and begun to experience numbness on one side of his
body after going outside into cold weather on his way to school. Pet’r’s Ex. 30.
Two weeks later, on October 28, 2003, Dr. Somerville, a family practitioner at
Patient First, wrote a letter that described the nature and duration of Anthony’s
symptoms in support of the family’s request for homebound instruction. Pet’r’s
Ex. 36. Dr. Somerville encouraged Anthony to receive a psychological
evaluation. Id. Two months later, on November 17, 2003, the Chesterfield Public
School System granted the request for Anthony’s homebound instruction, based
on a determination that Anthony was physically unable to attend school regularly. 5
Pet’r’s Ex. 34.
5
A letter dated November 20, 2003, from Chesterfield County Public
schools was addressed to the Reids indicating that Anthony had fourteen
unexcused absences for the school year. Pet’r’s Ex. 64.
5
Nearly one year later, on October 18, 2004, petitioner took Anthony to
Patient First to complete paperwork releasing him to return to school. Pet’r’s Ex.
50. A health services plan was implemented on October 18, 2004, containing a
health alert that informed Anthony’s teachers of his condition. Pet’r’s Ex. 65. On
November 24, 2004, two days after Anthony was seen in the emergency room for
questionable seizure activity at home, Dr. Somerville again saw Anthony at
Patient First. Id. She noted that he had suffered a fainting episode the day before,
and that Anthony was having difficulty swallowing. Id.
A month later, on December 22, 2004, Anthony returned to Patient First
because he had fainted while watching television. Id. Two weeks later, on
January 4, 2005, Anthony’s parents requested paperwork for homebound
instruction because Anthony’s health issues had become too disruptive for school
attendance. Id. On April 6, 2005, Anthony went back to Patient First to have the
new homebound forms completed. 6 Pet’r’s Ex. 38. At that time, Dr. Somerville
noted no change in Anthony’s condition; she further observed that Anthony
continued to have involuntary movements periodically that were triggered by
noises and smells. Id.
On April 27, 2005, Anthony underwent a neuropsychological evaluation at
Children’s Hospital in Richmond, Virginia. Pet’r’s Ex. 43. Dr. Gail Argenbright,
the licensed clinical psychologist who examined Anthony, found that he had mild
attentional problems and appeared to have significant difficulty with his fine
motor coordination when compared to other children of his age. Id. Anthony
exhibited mild anxiety, but had no significant mood disorders. He also appeared to
be socially and emotionally well-adjusted at home. Id.
In October of 2005, Anthony was examined again at Patient First for
allergy symptoms, congestion, occasional headaches, and a painful knot on his left
chest wall. Pet’r’s Ex. 49.
On March 28, 2006, Anthony saw Dr. John Teasley, a pediatric neurologist.
Pet’r’s Ex. 43. Dr. Teasley was of the impression that Anthony had a migraine
variant, parasomnias, and suffered from restless leg syndrome. Id. The next
month, on April 3, 2006, Anthony had a MRI at Chippenham Medical Center,
6
Different dates appear on these forms. Dr. Somerville noted in her records
that she had completed the paperwork for early January to mid June, but that the
paperwork had to be redone. Pet’r’s Ex. 38.
6
which revealed mild left-sided plagiocephaly. 7 Id. The imaging showed no
difference from the previous CT scans in 2004. Id.
On November 30, 2006, Anthony sought treatment at Chippenham Medical
Center for a painful headache and nose bleeds. Pet’r’s Ex. 51. A CT scan showed
no acute abnormalities. Id.
On July 25, 2007, Anthony was treated at Patient First for knee pain from a
football injury. Pet’r’s Ex. 50. Anthony returned on November 1, 2007,
complaining of a progressively worsening sore throat. Id.
On November 16, 2009, Anthony had a routine, sports physical. Pet’r’s Ex.
58. During that physical, Dr. Somerville noted that Anthony had not had any
complaints or problems for a few years. Id.
On March 16, 2010, Anthony sought treatment at Chippenham Medical
Center for a headache. Pet’r’s Ex. 56. The examining doctors suspected that
Anthony was suffering from a tension headache or a migraine due to an
accompanying light sensitivity. Id.
On September 22, 2011, Anthony was admitted to Chippenham and
Johnston Willis Medical Center for facial pain and numbness. Pet’r’s Ex. 59.
Anthony was discharged that same day, diagnosed with a headache, and instructed
to follow up with his primary care physician. Id. Two days later, Anthony was
admitted again for the same symptoms, but his CT scan results were negative. Id.
B. The Witnesses’ Testimony
Petitioner, Mr. Reid (Anthony’s father), and Anthony testified during the
fact hearing. Petitioner testified first. Petitioner and Mr. Reid described
Anthony’s health prior to and after his receipt of the subject vaccines. Anthony
described the symptoms he experienced to the best of his limited recollection.
1. Mrs. Linda Reid
Mrs. Reid began her testimony describing Anthony’s health before he
received the hepatitis B vaccine. She testified that Anthony was healthy at his
birth. Tr. at 73. She stated that other than experiencing common childhood
illnesses, including allergies, upper respiratory tract infections, ear infections, and
a rash after receiving the chicken pox vaccine, Anthony had no notable medical
7
Plagiocephaly is an asymmetric condition of the head, resulting from
irregular closure of the cranial sutures. Dorland’s Illustrated Medical Dictionary
1473 (31st ed. 2007).
7
issues prior to receiving the hepatitis B vaccine series. Id. at 74. She did
acknowledge that prior to Anthony’s receipt of the hepatitis B vaccinations, he had
a history of bronchitis and sinus issues. Id. at 86. She also acknowledged that in
1997, three years before his hepatitis B vaccinations, he was diagnosed with
questionable asthma. Id. at 86.
Petitioner described other conditions that Anthony had developed prior to
receiving the vaccines at issue. In March of 2000, when Anthony was eight years
old, he developed sores inside his mouth, an irritated throat, a cough, and a fever.
Id. at 74. Petitioner took Anthony to the doctor a month later, in April of 2000, to
investigate the source of his headaches and the white patches covering his throat.
Id. at 74. Anthony was diagnosed with viral pharyngitis, which eventually
resolved on its own. Id. at 74. Petitioner testified that Anthony suffered with
raised areas in his mouth intermittently for two months as well as fatigue from that
viral illness. Id. at 75.
In June of that same year, petitioner sought treatment for dry patches that
had persisted on Anthony’s scalp for two months. Id. at 75. The patches
gradually disappeared. Id. at 75.
Later that year, on December 9, 2000, ten days before Anthony’s first
vaccination, he required treatment for nasal congestion, a headache, chills, a low-
grade fever, and swollen nasal membranes. Id. at 76.
On December 19, 2000, Anthony received his first hepatitis B vaccine,
together with the MMR, IPV, and TDaP vaccines. Id. at 76. Petitioner testified
that after receipt of these vaccines, Anthony’s stool turned to a previously unseen
clay color. Id. at 77. Petitioner, who routinely checked Anthony’s stool, noticed
the change in his stool color on a single occasion. Id. at 87.
On January 17, 2001, Anthony received a second hepatitis B vaccination.
Id. at 77. After receiving the vaccine, Anthony experienced nausea and a loss of
appetite. Id. at 77-78. Petitioner acknowledged that she did not take Anthony to
see a doctor for some time, even though his nausea occasionally required his early
departure from school. Id. at 90.
In September of 2001, Anthony developed shortness of breath after playing
football. Id. at 80. Although Mrs. Reid acknowledged that Anthony had been
diagnosed with possible asthma several years before he received his hepatitis B
vaccines, she testified that this breathless episode in 2001 was the first time
Anthony had trouble with his breathing; previously only his father and sister had
been affected by asthma. Id. at 91. Mrs. Reid further testified that prior to this
incident, the only symptoms of which Anthony had complained were fatigue and
nausea. Id. at 81.
8
In October of 2001, petitioner took Anthony to see Dr. Megson. Id. at 81.
She explained that Dr. Megson attributed the symptoms Anthony was
experiencing as well as the decline in his academic performance to the hepatitis B
vaccines he received. Id. at 81-82.
According to petitioner, Anthony developed new symptoms over time. Id.
at 83. In particular, he started to experience numbness and tingling in the arm in
which the vaccines had been administered. Id. at 83. Then, the numbness and
tingling began in his other arm. Id. at 83. Anthony also began to complain of
numbness in his legs. Id. at 83. Anthony occasionally had fainting spells. Id. at
83.
Certain chemicals and gas fumes would cause Anthony to shake and jerk.
Id. at 83. Petitioner recounted an instance in which her use of Pine-Sol, a strongly
scented cleaning agent, caused Anthony to tremble spasmodically. Id. at 83.
When the movements did not stop, petitioner sought emergent care for Anthony.
Id. Because his heart rate was significantly elevated on presentation to the
emergency room, he was admitted for a couple of days. Id. at 83.
Petitioner eventually began to teach Anthony at home due to his
heightened sensitivity to sounds, lights, and smells, as well as headaches. Id. at
84. The headaches would lead to Anthony’s shaking, passing out, and not
remembering what happened. Id. at 85. While these headaches have improved,
they can still be triggered by certain smells such as cigarette smoke or gasoline.
Id. at 85.
Mrs. Reid’s testimony reflected her strong conviction that Anthony’s many
health issues stemmed from the vaccines he received. Although her insistence that
Anthony developed difficulty breathing after the hepatitis B vaccinations was at
variance with her own concession that Anthony had been diagnosed with probable
asthma three years before his first vaccination, it is indicative of how persuaded
petitioner is that she has offered an accurate recitation of events that implicated
vaccine-related injury. The undersigned, however, questions the accuracy of
petitioner’s post-vaccinal account given her evident belief that Anthony’s health
was adversely affected by the vaccines he received. As a result, the undersigned
accords less weight to those aspects of Mrs. Reid’s testimony that are inconsistent
with or conflict starkly with the contemporaneous medical records.
2. Mr. Anthony Reid, Sr.
Mr. Reid is petitioner’s husband and Anthony’s father. Tr. at 32. He
testified that before Anthony received the subject vaccinations, he was an outgoing
and healthy child. Id. at 33. Mr. Reid indicated that Anthony played little league
football and was a cub scout. Id. at 33
9
Mr. Reid could not recall Anthony ever having asthma prior to his receipt
of the hepatitis B vaccine. Id. at 33. But he acknowledged that he had suffered
with asthma himself as a child, and outgrew it at around five or six years of age.
Id. at 34. Mr. Reid was not aware of anyone in either his or his wife’s family that
had problems with asthma. Id. at 34.
Mr. Reid was not able to recall what the effects of Anthony’s first hepatitis
B vaccination were, or when those effects started to manifest. Id. at 34-35. He
also was unable to recall when Anthony’s symptoms began after his second
hepatitis B vaccination. Id. at 35.
When asked to recall what were some of the symptoms Anthony
experienced, Mr. Reid remembered that Anthony gained weight, developed
twitches, became sensitive to light, and had problems with his bowel movements.
Id. at 35. He elaborated that Anthony began to suffer from constipation, and his
stool became clay-like and light brown in color. Id. at 35.
Mr. Reid remembered that Anthony had chronic headaches which were
triggered by certain odors. Id. at 35. But, he was unable to recall when the
headaches started in relation to Anthony’s receipt of the hepatitis B vaccine. Id. at
36. Mr. Reid was able to remember, however, that Anthony would complain to
him on occasion about his head hurting. He related to his wife those symptoms
that Anthony reported to him because Mrs. Reid closely tended their children’s
health issues. Id. at 36.
Mr. Reid did recall Anthony’s fainting episodes. Id. at 36. He testified that
Anthony would lose consciousness and when he awakened, would not remember
where he was. Id. at 36. Mr. Reid also recalled situations in which Anthony
would have shaking spells and then pass out. On waking, Anthony would be
aware only of how badly his head was hurting. Id. at 36-37.
Mr. Reid concluded his testimony acknowledging that while Anthony’s
symptoms have improved over the years, certain smells still trigger an adverse
response from Anthony. Id. at 37.
Mr. Reid limited his testimony to those details about Anthony’s health that
he could remember. Based on his forthright and circumspect testimony, the
undersigned found Mr. Reid to be a credible witness.
Anthony Reid, Jr.
Anthony Reid, Jr. is petitioner’s son and the vaccinee for whom petitioner
seeks Program compensation. Anthony testified that prior to receiving his
10
hepatitis B vaccines at the end of 2000, he was active and enjoyed in participating
in sports such as flag football. Tr. at 22.
Anthony did not recall any immediate adverse effects after he received his
second hepatitis B vaccination in January of 2001. Id. at 23. He recalled suffering
from severe headaches after receiving the vaccine, but he could not remember
when the headaches started. Id. at 23. The headaches varied in their severity and
duration; sometimes they lasted for an hour, and at other times, they lasted for a
period of weeks. Id. at 23. Severe headaches caused Anthony to black out. Id. at
23. He testified that upon regaining consciousness after his fainting episodes, he
was uncertain about how he ended up in the particular location in which he found
himself. Id. at 24.
Anthony also recalled having problems with constipation. Id. at 27. He
testified that his stools were clay-colored and compacted. Id. at 28. He recalled
alerting his mother to his symptoms but could not remember whether he saw the
doctor for the problem. Id. at 28.
Anthony related that he suffered from seizure-like symptoms that
occasionally caused paralysis and prevented him from getting out of bed or
moving his limbs. Id. at 24. He could not remember how often these symptoms
occurred, but over a period of time, these symptoms abated. Id. at 24-25.
Periodically, Anthony would experience numbness and tingling in his arms and
legs; these symptoms also subsided over time. Id. at 25.
Anthony described an episode during football practice when he developed
difficulty breathing after running a lap. Id. at 29. He was later diagnosed with
exercise-induced asthma which prevented him from playing sports for the rest of
the school year. Id. at 29.
Anthony continued to experience severe headaches while in high school.
Id. at 25. However, they were not as severe as they had been earlier, and they no
longer triggered fainting episodes. Id. at 25. Anthony is now attending college
with few of his earlier health problems. Id. at 26. He continues to have headaches
periodically that are generally less severe than he had suffered previously; but he
has had a few instances in which a severe headache has left him bedridden. Id. at
26.
Anthony’s testimony was direct, succinct, and limited to what he could
recall. He was a credible witness.
C. Legal Standard and Analysis
11
In determining whether a petitioner is entitled to compensation under the
Vaccine Act, a special master must consider “all . . . relevant medical or scientific
evidence contained in the record,” including “any diagnosis, conclusion, medical
judgment, or autopsy or coroner’s report . . . regarding the nature, causation, and
aggravation of the petitioner’s illness, disability, injury, condition, or death . . . .”
§ 300aa-13(b)(1)(A). The special master must consider “the record as a whole,” §
300aa-13(a)(1), and cannot make a finding of entitlement based on the claims of
the petitioner that are not substantiated by medical records or medical opinion. Id.
The special master’s decision regarding entitlement must include findings of fact
and conclusions of law. § 300aa-12(d)(3)(A)(i).
Before an entitlement determination can be made in this case, the
undersigned must first resolve the pending factual dispute regarding the
circumstances surrounding Anthony’s health before and after he received the
vaccines at issue. This ruling is limited to resolving the parties’ disagreement on
the factual issues.
In a vaccine case, petitioner must prove, by preponderant evidence, the
factual circumstances surrounding her claim. § 300aa-13(a)(1)(A). This
evidentiary standard requires that the special master “believe that the existence of
a fact is more probable than its nonexistence before [she] may find in favor of the
party who has the burden to persuade the [special master] of the fact’s existence.
In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring) (quoting F.
James, Civil Procedure 250-51 (1965)).
To resolve factual disputes, the undersigned must determine what weight to
assign the documentary record—which in this case includes contemporaneous
medical records and laboratory test results—and what weight to assign the later-
given oral testimony that includes certain factual details that are largely reflected
in the documentary record created several or more years after the subject
vaccinations were received. The case law instructs that oral testimony that
conflicts with contemporaneous documentary evidence generally receives less
evidentiary weight. See United States v. U.S. Gypsum Co., 333 U.S. 364, 396
(1948) (“Where [witness] testimony is in conflict with contemporaneous
documents we can give it little weight[.]”); Montgomery Coca-Cola Bottling Co.
v. United States, 615 F.2d 1525, 1528 (Fed. Cir. 1993) (stating conflicting oral
testimony is afforded less evidentiary weight than written medical records). While
a decision concerning whether to accord greater evidentiary weight to
contemporaneous records or to later-given oral testimony falls “within the purview
of the Special Master,” Burns v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d
415, 417 (Fed. Cir. 1993), such decision must be rationally supported. Id.
Hence, the undersigned accords greater weight to the documentary records
than the oral testimony to establish a timeline of events. Petitioner routinely
12
sought medical attention for Anthony for ailments that he was exhibiting at the
time petitioner sought the treatment. Accordingly, the undersigned is persuaded
that the documentary records more likely than not provide the more accurate
timeline of events than the offered testimony.
II. FINDINGS OF FACT
Having carefully considered the evidence presented, the undersigned makes
the following findings. The findings pertain to five distinct timeframes: (1)
Anthony’s birth to date of first hepatitis B vaccination, (2) the date of the first
hepatitis B vaccination, (3) the period between receipt of first hepatitis B
vaccination and receipt of the second hepatitis B vaccination, (4) the date of the
second hepatitis B vaccination, and (5) the period spanning from second hepatitis
B vaccination to latest filed medical records in 2011.
Birth to First Set of Vaccinations – March 25, 1992 to December 19,
2000
1. Anthony Reid, Jr. was born on March 25, 1992, to Linda and Anthony
Reid, Sr. Pet’r’s Ex. 16.
2. At birth, Anthony appeared a normal, well-infant. Pet’r’s Ex. 16.
3. Before receiving the vaccines, Anthony was an active child who enjoyed
playing sports. Tr. at 22.
4. Anthony experienced common childhood illnesses, including allergies,
upper respiratory tract infections, ear infections, and a rash after receiving
the chicken pox vaccine. Tr. at 74.
5. Anthony also had a history of bronchitis, sinus issues, and was diagnosed
with questionable asthma. Tr. at 86.
6. In March of 2000, Anthony developed sores inside of his mouth, an
irritated throat, a cough, and a fever; he was also diagnosed with viral
pharyngitis, which eventually resolved on its own. Tr. 74.
7. In May of 2000, Antony was suffering from fatigue as a result of a viral
illness, and from raised areas in his mouth that occurred intermittently for
two months. Tr. at 75.
8. In June of 2000, Anthony was treated for dry patches that had persisted on
his scalp for two months; the dry patches gradually disappeared. Tr. at 75.
13
9. On December 9, 2000, ten days before Anthony’s first hepatitis B
vaccination, he was treated for nasal congestion, a headache, chills, a low-
grade fever, and swollen nasal membranes. Tr. at 76.
First hepatitis B Vaccination together with MMR, IPV, and
TDaP – December 19, 2000
10. On December 19, 2000, at eight years of age, Anthony received his first
hepatitis B vaccine, together with the MMR, IPV, and TDaP vaccines. Tr.
at 76.
Health from December 19, 2000 to January 17, 2001
11. After receiving the vaccine, Anthony did not recall anything happening.
Tr. at 23. Mr. Reid was also unable to recall whether Anthony experienced
any adverse effects after his receipt of the vaccine. Tr. at 35.
Second hepatitis B Vaccination – January 17, 2001
12. One month later on January 17, 2001 Anthony received his second hepatitis
B vaccine. Tr. at 23.
Health from January 17, 2001 – September 24, 2011
13. At some indeterminate time after Anthony received the second hepatitis B
vaccine, he experienced nausea and a loss of appetite. Tr. at 77. Also, at
some indeterminate time after Anthony received the second hepatitis B
vaccine, his stool became clay-colored and compacted. Tr. at 27-28.
14. In February of 2001, nearly one month after Anthony’s second hepatitis B
vaccine, Mrs. Reid took him to see Dr. Gary Santora, a chiropractor, to
whom Anthony presented with complaints of sharp, stabbing headaches.
Pet’r’s Ex. 26. No diagnostic impression was offered. Id.
15. In August of 2001, nearly eight months after his second hepatitis B
vaccination, Anthony sought treatment at Patient First for complaints of
tightness in his chest and difficulty breathing. Pet’r’s Ex. 15.
16. In January of 2002, Dr. Megson conveyed to petitioner that Anthony’s hair
showed elevated levels of aluminum, arsenic, antimony, cadmium, lead,
and thallium. Pet’r’s Ex. 42. Later that January, during a return visit to Dr.
Megson, petitioner was advised that Anthony’s post-vaccinal bout of
asthma could have been indicative of thimerosal toxicity. Pet’r’s Ex. 42.
14
17. That same month in 2002, the Reids were advised by Dr. Donald Sanders
of Midlothian Family Practice that no further medical care would be
provided to Anthony in light of the excessive number of office and
emergency care visits. Pet’r’s Ex. 28.
18. In March of 2002, Anthony was diagnosed with heart palpitations. Pet’r’s
Ex. 3.
19. In May of 2002, Anthony was diagnosed with exercise-induced asthma.
Pet’r’s Ex. 17.
20. In April of 2003, more than two years after his receipt of the second
hepatitis B vaccine, Anthony was evaluated by Dr. Taylor for possible
seizures and chest pain. Pet’r’s Ex. 19. The CT scans and EEG performed
were found normal. Id. Anthony’s symptoms were attributed to either
anxiety or hyperventilation, but not to seizures. Pet’r’s Ex. 49.
21. In August of 2003, Anthony was diagnosed as having probable floppy
eyelid syndrome and was prescribed antihistaminic eye drops. Pet’r’s Ex.
31.
22. In September of 2003, Anthony was evaluated for his reported shaking
episodes, chronic fatigue, dry eyes, stomach aches, and periods of body
numbness. Pet’r’s Ex. 42.
23. In October of 2003, Anthony was seen again for complaints of collapsing,
numbness, twitching, paralysis, and unresponsiveness. Pet’r’s Ex. 30.
24. In November of 2004, Anthony sought medical treatment for questionable
seizure activity. Pet’r’s Ex. 50. One month later, Anthony sought medical
attention for a fainting episode. Id.
25. In April of 2005, Anthony underwent a neuro-psychological evaluation that
revealed mild attentional issues and impaired fine motor coordination.
Pet’r’s Ex. 43.
26. In March of 2006, Anthony was examined by a pediatric neurologist for a
migraine variant, parasomnia, and restless leg syndrome. Pet’r’s Ex. 43.
27. In November of 2006, Anthony received medical attention for a painful
headache and nosebleeds. Pet’r’s Ex. 51.
15
28. In November of 2009, more than eight years after Anthony’s receipt of his
last hepatitis B vaccine, Anthony had a routine sports physical, at which
time the examining doctor noted that he had not sought treatment for
complaints or problems for several years. Pet’r’s Ex. 58.
29. In March of 2010, Anthony sought treatment for pain resulting from what
the examining doctors suspected was either a tension headache or a
migraine. Pet’r’s Ex. 56.
30. In September of 2011, Anthony again sought treatment for facial pain,
numbness, and headache. Pet’r’s Ex. 59.
31. Anthony has attended college with very few of his earlier health problems,
except an occasional headache. Tr. at 25-26. The numerous CT scans
Anthony has received have failed to reveal any abnormalities. Id.
32. Because extensive testing has failed to reveal any irregularities,
various of Anthony’s treaters have questioned whether his ailments have an
emotional or anxiety-related underpinning.
The medical significance of these fact findings must be addressed by the
parties’ experts. Upon this case’s transfer to another special master, the parties
shall contact chambers, on or before June 10, 2013, to schedule a status
conference to discuss this ruling and further proceedings as appropriate.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
Patricia E. Campbell-Smith
Chief Special Master
16