The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 02-227V
E-Filed: April, 26, 2013
* * * * * * * * * * * * * *
*
ALEXIS REID, * Chief Special Master
* Campbell-Smith
*
* Fact Finding; Hepatitis B
* vaccines; Alleged Injuries include:
* Blurred Vision, Fatigue, Sound,
Petitioner, * Smell, and Light Sensitivity,
* Barking, Muscle Twitches, Changes
v. * in Stool, Alopecia, Intermittent
* Paralysis, Headaches, Decreased
SECRETARY OF HEALTH * Appetite, Fibromyalgia, and Fainting
AND HUMAN SERVICES, * Episodes
*
*
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 daughter, Alexis, seeking compensation under the National
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
Vaccine Injury Compensation Program (the Program). 2 Petitioner alleges that Alexis
experienced a number of adverse effects from the vaccines she received on December 19,
2000 and January 17, 2001. Petitioner asserts that the hepatitis B vaccines administered
to Alexis caused stool changes, blurred vision, fatigue, sensitivity to sound, smell, and
light, barking, muscle twitches, alopecia, intermittent paralysis, headaches, decreased
appetite, fibromyalgia, and fainting episodes. Pet. at 2. Alternatively, petitioner claims
that the mercury-containing preservative thimerosal in the hepatitis B vaccine Alexis
received on December 19, 2000, caused her to experience depression, body swelling,
leaky gut syndrome, intermittent abdominal pain, indigestion, and sensitivity to the cold
temperatures. 3 Pet’r’s Ex. 92.
In support of her claim that Alexis suffered various vaccine-related injuries,
petitioner filed the following documents: (1) petitioner’s affidavits and diary notes,
Pet’r’s Ex. 23, 34, 36, 82, 83; (2) statements from Alexis’s father (Anthony Reid, Sr.),
Alexis’s grandmother (Rosa Reid), Alexis’s brother (Adrian Artis), and the family’s
neighbor (Mimi Blevins), Pet’r’s Ex. 81, 28, 79, 80; (3) petitioner’s prenatal records,
Pet’r’s Ex. 8, 18, 19; (4) Alexis’s earliest pediatric records, Pet’r’s Ex. 2, 7, 15; (5)
Alexis’s later pediatric records, Pet’r’s Ex. 1, 3, 4, 5, 6, 11, 12, 13, 14, 16, 20, 21, 22, 23,
24, 25, 26, 27, 29, 30, 35, 38, 47, 49, 52, 53, 54, 55, 59, 60, 61, 62, 78, 89, 90; (6)
Alexis’s immunization records, Pet’r’s Ex. 9, 10, 17, 50, 51, 92; (7) Alexis’s school
attendance records, Pet’r’s Ex. 86, 87; (8) Alexis’s homebound instruction documents,
Pet’r’s Ex. 31, 42, 43, 58, 84, 85, 88, 91; (9) two expert reports from Dr. Joseph Bellanti,
an immunologist, Pet’r’s Ex. 39, 68; (10) an expert report from Dr. Mary Megson, a
pediatrician, Pet’r’s Ex. 37; and (11) medical literature, Pet’r’s Ex. 40, 69, 70, 71, 72, 73,
74, 75, 76, 77.
The undersigned held a fact hearing in Washington, D.C. in June of 2012, to
resolve certain fact issues that emerged during the case’s development. During the
hearing, petitioner, her husband, and Alexis testified regarding Alexis’s state of health
before and after receipt of the hepatitis B vaccines on December 19, 2000 and January
17, 2001, respectively.
I. DISCUSSION
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.
3
On December 19, 2000 Alexis also received the Measles, Mumps, and Rubella (MMR),
Polio (IPV), and Tetanus-Diphtheria-Pertussis (TDaP) vaccines. Pet’r’s Ex. 51.
2
A. The Documentary Record
Alexis Reid was born on May 13, 1990, at Wayne Memorial Hospital in
Goldsboro, North Carolina. Pet’r’s Ex. 18. She was discharged three days after her birth,
as a well infant. Id.
On December 19, 2000, Alexis received her first administration of the hepatitis B
vaccine, in addition to her measles, mumps, and rubella (MMR), polio (IPV), and
tetanus-diphtheria a cellular pertussis (TDaP) vaccines. Pet’r’s Ex. 9. She was ten years
of age. Pet’r’s Ex. 18. According to petitioner, Alexis developed severe diarrhea and
other gastrointestinal symptoms the next day. Pet’r’s Ex. 5.
One month later, on January 17, 2001, Alexis received her second administration
of the hepatitis B vaccine. Pet’r’s Ex. 23. Nearly six months later, on July 24, 2001,
Alexis obtained a note from Midlothian Family Practice stating that she was unable to
complete the hepatitis B vaccination series due to an allergic reaction. Pet’r’s Ex. 50.
On October 1, 2001, nine months after Alexis received the second hepatitis B
vaccine, petitioner took Alexis to see Dr. Ann Kessel, a pediatric gastroenterologist, to
evaluate Alexis’s complaints of chronic abdominal issues. Pet’r’s Ex. 26. Dr. Kessel
was of the opinion that most of Alexis’s symptoms were consistent with gastrointestinal
reflux and thus sent Alexis for a barium swallow to examine her upper gastrointestinal
tract. Id. Dr. Kessel suggested that in the interim, Alexis take a double dose of Mylanta
(an over-the-counter antacid) and adopt a low-fat diet. Id. Three weeks later on October
22, 2001, Dr. Gerry Reece, a radiologist, performed Alexis’s upper GI exam. Id. The
results were normal. Id.
Six days after the upper GI exam, petitioner took Alexis to Patient First for
complaints of severe epigastric pains and a vomiting episode. Id. Two days thereafter, in
a record dated October 30, 2001, Dr. Mary Megson, a developmental pediatrician at the
Pediatric and Adolescent Ability Center, noted that after receiving the second hepatitis B
administration, Alexis experienced severe anorexia, nausea and vomiting, which on
several occasions led to dehydration, constipation, blurred vision, temperature sensitivity,
intermittent tingling and numbness in her left arm, soreness in her scalp, and alopecia.
Pet’r’s Ex. 5.
Five days later on November 2, 2001, Alexis returned to Patient First complaining
of tingling in her feet. Id. One month later, Alexis had laboratory testing performed.
Pet’r’s Ex. 5. Dr. Megson reviewed the test results on December 11, 2001, and
3
determined that Alexis had elevated levels of cadmium and aluminum in her hair. Id.
Dr. Megson recommended chelation treatment with Chemet 4 for five days. Id.
On December 27, 2001, Alexis saw Dr. David Leszczyszyn, a pediatric
neurologist. Pet’r’s Ex. 12. He expressed concerns about Alexis’s psychological
condition and the possibility of a conversion disorder, but noted that he could not rule out
the prospect that Alexis was suffering from fibromyalgia. Id.
Two weeks later, by letter dated January 10, 2002, Dr. Donald Saunders of the
Midlothian Medical Center advised Alexis’s mother that neither Alexis nor her brother,
Anthony Jr., would be received for future treatment at Midlothian. Pet’r’s Ex. 15 at 81.
Dr. Saunders cited the Reids’ abuse of emergency room visits and repeated requests for
referrals as the principal reasons for the medical center’s decision to refuse further
treatment of the children. Id.
One month later, petitioner took Alexis to Patient First for symptoms of
gastroenteritis. Pet’r’s Ex. 4. Three weeks later, Dr. Megson saw Alexis again, this time
for complaints of intermittent numbness and tingling in her extremities as well as jerking
episodes. Pet’r’s Ex. 5. Dr. Megson speculated that Alexis had experienced a severe
thimerosal reaction and possible mercury poisoning from her first and second
administrations of the TDaP vaccine (rather than the hepatitis B vaccinations implicated
in the vaccine petition). Id.
On March 22, 2002, petitioner filed this vaccine claim. Pet.
Three months later, on July 3, 2002, petitioner took Alexis back to Patient First
with complaints of periodic seizure activity and twitching. Pet’r’s Ex. 4. Two weeks
later, Alexis returned presenting with leg tingling and weakness affecting her ability to
walk. Id.
4
Succimer (Brand name Chemet) is used in the treatment of acute lead poisoning to
remove excess lead from the body, especially in small children. Succimer combines with
lead in the blood stream. The combination of lead and succimer is then removed from the
body by the kidneys. By removing the excess lead, the medicine lessens damage to
various organs and tissues of the body.
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012224/?report=details (last revised
November 1, 2012)
4
Three months later in October of 2002, Alexis sought treatment at Patient First for
a sprained ankle and foot swelling. Id. Three more weeks later, Alexis returned to
Patient First for a scalp infection. Id.
The next month, Alexis went back to Patient First--two days in a row--for pain
associated with a sprained wrist which she sustained during a fall. Id. Alexis reported an
instance of paralysis while doing her homework. Id.
Two weeks later, in December of 2002, Alexis sought treatment at Patient First for
“seizure-like” symptoms. Id. Later in December of 2002, Alexis sought further
treatment at Patient First for involuntary arm movements, coughing with discolored
mucus, and a sore throat. Id.
In January of 2003, two years after her second and last hepatitis B vaccination,
Alexis saw Dr. Paul McDermott, Jr., an orthopedic surgeon, for a several week history of
pain and tenderness. Id. Dr. McDermott recommended that Alexis see a hand therapist
for help with her writing and her daily living tasks. Pet’r’s Ex. 29. Finding no physical
explanation for Alexis’s problem, Dr. McDermott strongly encouraged her to continue
her psychologic and neurologic office visits. Id. Also in January of 2003, Alexis sought
medical care for leg numbness, dizziness, and headaches. Pet’r’s Ex. 4. Thereafter,
Alexis continued to receive frequent medical attention for a myriad of complaints and
discomforts. Id.
In February of 2003, Alexis received attention for involuntary movements,
headaches, low magnesium levels, difficulty breathing, and periodic episodes of loud
burping. Id. Puzzled by Alexis’ questionable behavior, the examining physicians
recommended psychologic therapy. Pet’r’s Ex. 29.
On March 4, 2003, Alexis consulted with Dr. Bennet Lavenstein, a pediatric
neurologist. Pet’r’s Ex. 22. Dr. Lavenstein recommended an elective hospital admission
for a comprehensive neurologic, rheumatologic, and psychiatric evaluation over a two-
day period spanning from March 5, 2003, to March 6, 2003. Id. On March 7, 2003, a
forty-eight hour EEG study returned largely unremarkable results other than several
twitches. Id. The results of a chest x-ray were also normal. Pet’r’s Ex. 22. Alexis was
discharged from Children’s Hospital on March 9, 2003, diagnosed with seizure-like
activity. Id.
The same day that Alexis was discharged from Children’s Hospital, petitioner
took Alexis to Patient First for left jaw pain, difficulty opening her mouth, and restless
legs. Pet’r’s Ex. 4. Alexis returned the next day, making a barking noise that caused her
to have difficulty breathing. Id. She returned again the following day, having developed
facial tics and vision marked primarily by the colors blue and green. Id.
5
During the next month, Alexis saw Dr. Edmund Cornman, a neurologist. Pet’r’s
Ex. 27. Dr. Cornman detected a conversion disorder, marked by spells of feigned
unresponsiveness and collapsing weakness. Id. He suggested that Alexis receive
assistance in dealing with the psychologic stressors contributing to her need to present
with physical symptoms of illness. Id.
That same month, April of 2003, Alexis received a psychiatric assessment from
Dr. Martin Buxton. Pet’r’s Ex. 25. He diagnosed her with depression, ruling out Post
Traumatic Stress Disorder (PTSD) and conversion disorder. Id. A subsequent
cardiologic exam that month was deemed normal. Pet’r’s Ex. 22.
In May of 2003, Alexis consulted with an orthopedic therapist who noted that
because Alexis’ problems were more musculo-skeletal than neurologic, she might benefit
from local pain-relieving modalities including flexibility exercises. Pet’r’s Ex. 29.
Later in the month, Alexis returned to Dr. Kessel, the gastroenterologist she had
previously seen, for an evaluation of her chronic constipation and reflux. Pet’r’s Ex. 26.
Noting symptoms of frequent nausea, increased burping, and occasional reflux episodes,
Dr. Kessel related that some of Alexis’s symptoms might respond to psychologic therapy.
Id. Dr. Kessel informed Mrs. Reid that Alexis had developed an obsessive behavior of
air swallowing that contributed to her excessive burping. Id.
In July of 2003, petitioner took Alexis to see Dr. Megson again. Pet’r’s Ex. 5.
She determined that Alexis was suffering from a fungal infection, low blood sugar,
difficulty sleeping, and hypersensitivity to smells and sounds. Id.
In August of 2003, Alexis was examined at Patient First. Pet’r’s Ex. 4. There, the
doctors questioned whether Alexis might have fibromyalgia in addition to an exaggerated
response to pain. Id.
In January of 2004, nearly three years after Alexis’s second hepatitis B
vaccination, she was granted indefinite homebound instruction. Pet’r’s Ex. 31. Over the
next four months, Alexis sought treatment for spasms, tremors, fainting episodes, restless
legs, and scalp discomfort. Pet’r’s Ex. 53. The cause for Alexis’s symptoms was
unknown. Id.
The following year in May of 2005, Alexis received a psychologic evaluation at
Children’s Hospital. Pet’r’s Ex. 38. The evaluation revealed intellectual function within
the upper limits of the average range as well as average verbal memory, visual
organization, and planning skills. Pet’r’s Ex. 38. Mild attention problems were also
detected, in addition to cognitive weaknesses in vocabulary and nonverbal analogic
reasoning. Id. No significant emotional disturbance was uncovered, and Alexis was
deemed to be socially and emotionally well-adjusted in her home environment. Id.
6
Nearly two weeks after that psychologic evaluation, Mr. Reid requested permission to
continue Alexis’s homebound schooling for the rest of the academic year. Pet’r’s Ex. 53.
In a report dated May 25, 2005, offered in support of petitioner’s vaccine claim,
Dr. Megson opined that Alexis had a severe neurologic reaction to the hepatitis B
vaccine, which was either autoimmune or the result of thimerosal toxicity. Pet’r’s Ex. 37.
In a report dated May 31, 2005, also offered in support of petitioner’s vaccination claims,
Dr. Bellanti opined that Alexis has been severely harmed by her reaction to the received
vaccines as evidenced by the various symptoms she displayed. Pet’r’s Ex. 39.
Three months later on September 4, 2005, Alexis returned to Patient First with
paperwork requesting additional homebound schooling. Pet’r’s Ex. 53. At that time, she
complained of body pain and fainting spells. Id. Dr. Somerville signed the homebound
instruction forms allowing Alexis to be schooled at home for a period of six to twelve
weeks, due to her ongoing muscle pain and sensitivity to smells and sounds. Pet’r’s Ex.
42. Dr. Megson subsequently referred Alexis to the geneticist, Dr. Mark Geier, in
Rockville, Maryland. Id. Alexis returned to school in November of 2005. Id.
In February of 2006, Dr. Somerville wrote a letter indicating she had seen Alexis
on three occasions within the last 30 days for recurrent episodes of fainting following her
exposure to either noxious stimuli or stressful situations. Pet’r’s Ex. 49. Dr. Somerville
noted Alexis’s numerous visits to different doctors, but no correlative improvement in her
condition. Id. In Dr. Somerville’s view, Alexis’s return to a safe school environment
was preferable to continued homebound education. Id. Three months later, Dr. Gail
Argenbright, the clinical psychologist who had examined Alexis earlier, urged petitioner
to allow Alexis to attend a different high school in the fall semester based on her
collapsing episodes at her previous school. Pet’r’s Ex. 53.
Seventeen months later, petitioner took Alexis to see Dr. Elaine Turner, an
allergist, who observed that Alexis’s symptoms were “protean” and “unusual.” Pet’r’s
Ex. 53. She wondered whether the chest pains Alexis experienced were related to asthma
and exacerbated by exposure to either gas fumes or cigarette smoke. Id.
Two months later, Alexis visited with another allergist. Pet’r’s Ex. 51. She was
seventeen years old. Pet’r’s Ex. 18. The therapist remarked that Alexis suffered from
multiple medical problems that interfered with her daily functioning, affected her sleep,
and led to frequent fainting spells. Pet’r’s Ex. 52. The therapist diagnosed Alexis with
an adjustment disorder, exacerbated by a depressive mood. Id. Of the five recommended
therapy sessions, Alexis completed only three. Id. Alexis’s prognosis at the time of
discharge was poor. Id.
Although Alexis subsequently resumed therapy, she appeared cynical about the
process because although she had received significant medical attention for nearly a
decade, her symptoms persisted. Id.
7
Five months later, in May of 2008, Alexis saw Dr. Stephen Clement, an
endoscopist, who found no abnormalities. Pet’r’s Ex. 53.
Alexis was seen by a licensed social worker at Healthy Changes Counseling
Associates in Richmond, Virginia on eight occasions between March 30, 2010, and June
29, 2010. Pet’r’s Ex. 62. Petitioner and her husband attended the first few sessions with
Alexis. During these sessions, Alexis complained that she lacked family support and
described petitioner as overbearing. Id. The therapist noted the ostensible family strain,
and after three sessions, petitioner and her husband refused to return. Id. During the
remaining therapy sessions, Alexis discussed the tension between her mother and herself,
the toll her illness had taken on her parents’ relationship, and the fault she perceived her
parents had assigned to her for her many health problems. Id. Alexis’s therapist
diagnosed her with major depressive disorder. Id.
On October 10, 2011, Alexis was hospitalized for possible seizure activity. Pet’r’s
Ex. 78. The attending physician, Dr. Shankar Perumal, observed that Alexis’s condition
seemed not to be an epileptic, but psychogenic. Id.
B. The Witnesses’ Testimony
Petitioner, her husband (Alexis’s father), and Alexis testified during the fact
hearing. Petitioner testified first. Petitioner and then her husband described Alexis’s
health before and after her receipt of the vaccines at issue. Alexis described her condition
to the best of her limited recollection.
1. Mrs. Linda Reid
Mrs. Reid first described Alexis’s health before she received the hepatitis B
vaccines. Healthy at her birth on May 13, 1990, Tr. at 49, Alexis had no notable medical
issues prior to her receipt of the hepatitis B vaccine series--other than the common
childhood illnesses of upper respiratory tract infections and ear infections. Id. at 49.
Alexis also developed, and subsequently outgrew, asthma. But before she outgrew the
condition, id. at 49, Alexis was hospitalized in 1995 for pneumonia and aggravated
asthma. Id. at 49. Among Alexis’s various pre-vaccinal ailments were: foot and mouth
disease, an Epstein-Barr viral infection, and chicken pox (which she is alleged to have
contracted after receiving the varicella vaccine). Id. at 49-50.
After Alexis received her first hepatitis B vaccination in December of 2000, she
experienced diarrhea and stomach symptoms the following day. Id. at 54. Alexis
received her second hepatitis B vaccine in January of 2001. Id. at 55. A few weeks
thereafter, Alexis complained that her throat, chest, and stomach hurt, her vision was
blurred, and she felt cold. Id. at 55. Alexis also suffered from fatigue, nausea, loss of
appetite, and a craving for sweets. Id. at 68. Petitioner gave Alexis enemas for her
gastrointestinal problems. Id. at 60, 68-69.
8
Alexis developed infected bumps on her scalp and began losing her hair. Id. at 56,
59, 62. Petitioner sought medical attention for Alexis’s symptoms in May of 2001,
nearly five weeks after Alexis received her second hepatitis B vaccination. Id. at 62.
Petitioner, a nurse by training, consulted the Physician’s Desk Reference and determined
that the hepatitis B vaccines had caused Alexis’s’ symptoms. Id. at 49.
Petitioner described Alexis’s occasional jerking and fainting spells following
exposure to certain chemicals and gas fumes. Id. at 66. But petitioner acknowledged that
Alexis never soiled herself as one might when having a true seizure. Id. at 66.
Petitioner recalled instances during which Alexis became paralyzed and began to
bark as if she had Tourette’s Syndrome. Id. at 65. The examining physician could not
determine the source of Alexis’s problems although several doctors expressed their view
that Alexis had multiple chemical sensitivities and suffered from a conversion disorder.
Id. at 66-67. Alexis also appeared to gain weight, although her eating habits did not
appear to change Id. at 72.
Petitioner eventually took a three month leave of absence to teach Alexis at home.
Id. at 73. Petitioner’s husband ultimately quit his job to stay home with Alexis and her
brother Anthony on a full-time basis. Id. at 73. Petitioner acknowledged Alexis’s
conditions have improved over the years. Id. at 69-70, 73. Alexis does not collapse as
often as she previously did. Id. at 71.
2. Mr. Anthony Reid, Sr.
Mr. Reid is petitioner’s husband and Alexis’s father. He testified that before
Alexis received her hepatitis B vaccines, she had problems with asthma. Id. at 38. She
eventually outgrew her asthma but still used a nebulizer. Id. at 39. Mr. Reid
acknowledged his own asthma as a child and noted that he too outgrew that condition at
five or six years of age. Id. at 34. Mr. Reid denied any family history of asthma.
Mr. Reid testified that he took Alexis and Anthony for their first and second sets
of the hepatitis B vaccinations. Id. at 44. He related to his wife the symptoms Alexis
reported after vaccination because Mrs. Reid closely tended the children’s health issues.
Id. at 40. Mr. Reid recalled Alexis’s earliest symptom after her first hepatitis B
vaccination was diarrhea. Id. at 39-40. Mr. Reid also recalled that Alexis lost her hair
and developed tics. Id. at 39-40. Among the symptoms Alexis developed were seizures,
violent shaking, insomnia, sensitivity to lights, sounds, and smells, hair loss, food
allergies, and lumps on her scalp. Id. at 40. Mr. Reid could not remember when these
symptoms first appeared.
Describing Alexis’s transition to college, Mr. Reid testified that he had remained
at school with her for nearly one week after she started because she had developed
mobility issues, and her gait was affected. Id. at 42. These conditions caused Alexis to
9
miss a semester of school because she also had trouble writing and reaching class without
assistance. Id. at 42.
Mr. Reid acknowledged that Alexis’s symptoms have improved over the years.
But she still suffers from occasional fainting episodes. Id. at 41
Alexis Reid
Alexis Reid is petitioner’s daughter and the vaccinee for whom petitioner seeks
Program compensation. Alexis testified that prior to receiving the two hepatitis B
vaccines at issue here, her only health problem was asthma, a condition she outgrew at
the age of eight or nine years. Tr. at 7-8. She was active and enjoyed participating in
sports with her brother and playing with the neighborhood kids. Id. at 9. She was an
honor roll student all throughout elementary school. Id. at 9.
Alexis received her first hepatitis B vaccination on December 19, 2000. Id. at 8.
She does not recall anything unusual happening after that vaccine although she does
recall developing constipation. Id. at 20.
Alexis remembered receiving the second hepatitis B vaccination on January 17,
2001. Id. at 9. She also remembered having chest pains and headaches after receipt of
the vaccine, but could not recall how soon after her vaccination the symptoms began. Id.
at 9. She experienced blurred vision, eating problems accompanied by a sugar craving,
scalp eruptions, and hair loss. Id. at 9-10. The points of pain on her body were
diagnosed as fibromyalgia. Id. at 12-13. She suffered with sore throats and sensitivity to
temperature and sound. Id. at 10-11.
Alexis testified that over the course of time, she developed multiple chemical
sensitivity triggered by exposure to cigarette smoke, perfume, and strongly scented
cleaning products like bleach. 5 Id. at 10. Exposure would provoke pseudo-seizures 6 and
5
Multiple chemical sensitivity (MCS) is also known as "environmental illness" or
"sick building syndrome."
It refers to a variety of non-specific symptoms reported by some after exposure to
chemical, biologic, or physical agents. The levels of exposure considered safe for most
can have an effect on a few. The reported symptoms are wide-ranging and not specific,
including headache, fatigue, dizziness, nausea, congestion, itching, sneezing, sore throat,
chest pain, changes in heart rhythm, breathing problems, muscle pain or stiffness, skin
rash, diarrhea, bloating, gas, confusion, difficulty concentrating, memory problems, and
mood changes. Reported triggers include tobacco smoke, auto exhaust, perfume,
insecticide, chlorine, among other. http://www.webmd.com/allergies/multiple-chemical-
sensitivity (last revised June 03, 2011).
10
a lack of memory after collapsing. Id. at 10-11. She would also become paralyzed. Id.
at 10-11.
Alexis’s health issues persisted throughout high school and affected her academic
performance. Id. at 12. She required home schooling in the eighth grade and returned to
school for half of her tenth grade year before transferring schools. Id. at 12. With
periodic problems, she managed to graduate from high school in 2008. Id. at 12.
After graduation, she went to college. During her freshman year, she experienced
only an occasional seizure. Id. at 13. During her sophomore year, she had to withdraw
because her symptoms appeared again, and she became depressed. Id. at 12. During her
junior year of college, she experienced periodic fainting episodes, but her boyfriend
assisted her. Id. at 14. The last fainting episode she could recall occurred six months
prior to the hearing. Id. at 12.
C. Legal Standard and Analysis
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
Alexis’s health before and after she 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)).
6
A pseudo-seizure resembles an epileptic seizure but is provoked by psychological
causes, lacks the electroencephalographic changes that are characteristic of epilepsy, and
may sometimes be controlled by an act of will. Dorland’s Illustrated Medical Dictionary
1537 (30th ed. 2003).
11
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 sought medical
attention for Alexis for ailments that she 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) Alexis’s birth to
date of the first hepatitis B vaccination, (2) the date of the first hepatitis B vaccination,
(3) the period between receipt of the 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 the second hepatitis B vaccination to the latest filed medical
records in 2011.
Birth to First Set of Vaccinations – May 13, 1990 to December 19, 2000
1. Alexis Reid was born on May 13, 1990, to Linda and Anthony Reid, Sr.
Pet’r’s Ex. 18.
2. At birth, Alexis appeared a normal, well-infant. Pet’r’s Ex. 18.
3. Alexis experienced common childhood illnesses, including upper respiratory
tract infections and ear infections. Tr. 49.
4. Alexis also developed asthma, which she outgrew. Tr. 49. She was
hospitalized in 1995 for pneumonia and aggravated asthma. Id.
12
5. Alexis also had a history of foot and mouth disease, an Epstein-Barr viral
infection, and chicken pox. Id. 49-50.
First hepatitis B Vaccination together with MMR, IPV, and TDaP –
December 19, 2000
6. On December 19, 200, at ten years of age, Alexis received her first hepatitis B
vaccine, together with the MMR, IPV, and TDaP vaccines. Pet’r’s Ex. 9.
Health from December 19, 2000 to January 17, 2001
7. Alexis developed diarrhea and other gastrointestinal symptoms (including
reflux) on December 20, 2000. Pet’r’s Ex. 5.
Second hepatitis B Vaccination – January 17, 2001
8. One month later, on January 17, 2001, Alexis received her second hepatitis B
vaccine. Pet’r’s Ex. 23.
Health from January 17, 2001 – October 10, 2011
9. In the months after her January 17, 2001 hepatitis B vaccination, Alexis
complained that her throat, chest, and stomach hurt, her vision was blurred and
she felt cold. Tr. at 55. She also suffered from fatigue, nausea, loss of
appetite, and a craving for sweets. Tr. at 68.
10. Also during this time, Alexis developed a chemical sensitivity to cigarette
smoke, perfume, and strongly scented cleaning products. Following exposure
to various chemical and gas fumes, Alexis would suffer pseudo-seizures,
(marked by jerking), paralysis, and a lack of memory after collapsing. Alexis
also developed tics, insomnia, food allergies and sensitivity to lights, sounds
and smells. Tr. 39-40. Her sensory sensitivity persisted throughout high
school and college. Tr. 12.
11. On July 24, 2001, Alexis’s physician stated she was unable to complete the
hepatitis B vaccination series due to an allergic reaction to the earlier hepatitis
B vaccinations. Pet’r’s Ex. 50.
12. In October of 2001, nearly nine months after her second hepatitis B
vaccination, Alexis saw Dr. Ann Kessel, a pediatric gastroenterologist, for
complaints of chronic abdominal issues. Pet’r’s Ex. 26.
13
13. On October 22, 2001, Dr. Gerry Reece, a radiologist, performed an upper
gastrointestinal exam on Alexis, the results of which were normal. Pet’r’s Ex.
26.
14. Alexis also sought treatment at Patient First in October and November of 2001
for complaints of severe epigastric pains, vomiting and foot tingling. Pet’r’s
Ex. 5, 26.
15. In December of 2001, Dr. Megson indicated that Alexis’s hair showed elevated
levels of cadmium and aluminum. Pet’r’s Ex. 5.
16. In January of 2002, Alexis saw Dr. Megson again--on this occasion for
complaints of intermittent numbness and tingling in her extremities, and
jerking episodes. Pet’r’s Ex. 5. During a return visit in February, Dr. Megson
offered that Alexis’s post-vaccinal medical complications could have been
indicative of thimerosol toxicity and/or mercury poisoning from her first and
second administrations of the TDaP vaccine (rather than the hepatitis B
vaccinations implicated in the vaccine petitio). Id.
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
Alexis in light of the excessive number of office and emergency care visits.
Pet’r’s’ Ex. 15 at 81.
18. In July of 2002, Alexis complained of periodic seizure activity and twitching.
Pet’r’s Ex. 4. Two weeks later she complained of leg tingling and weakness,
which affected her ability to walk. Id.
19. In October, November and December of 2002, Alexis sought treatment for a
sprained ankle, foot swelling, scalp infection, pain associated with a sprained
wrist, an instance of paralysis, seizure-like symptoms, involuntary arm
movements, coughing with discolored mucus, and a sore throat. Pet’r’s Ex. 4.
20. In January of 2003, more than two years after her receipt of the second
hepatitis B vaccine, Alexis was evaluated by Dr. Paul McDermott for a several
week history of pain and tenderness. Pet’r’s Ex. 29. Dr. McDermott found no
physical explanation for Alexis’s problems and encouraged her to continue
with her psychologic and neurologic office visits. Pet’r’s Ex. 29.
21. In January of 2003, Alexis sought medical care for leg numbness, dizziness,
and headaches. Pet’r’s Ex. 4.
14
22. In February of 2003, Alexis sought medical attention for complaints of
involuntary movements, headaches, low magnesium levels, difficulty
breathing, and periodic episodes of loud burping. Pet’r’s Ex. 29. Alexis’s
physicians recommended psychologic therapy. Id.
23. On March 7, 2003, a forty-eight hour EEG returned largely normal results
other than several twitches. Pet’r’s Ex. 22. The results of a chest x-ray were
also normal. Id.
24. Between March 9, 2003 and March 11, 2003, Alexis presented for treatment of
her left jaw pain, difficulty opening her mouth, restless legs, a barking noise
that caused her to have difficulty breathing, facial tics and vision marked
primarily by the colors blue and green. She was also diagnosed with seizure-
like activity. Pet’r’s Ex. 4.
25. In April of 2003, Alexis presented to Dr. Edmund Cornman, a neurologist, who
diagnosed her with a conversion disorder marked by spells of feigned
unresponsiveness and collapsing weakness. Pet’r’s Ex. 27. Later that month,
Alexis received a psychiatric assessment from Dr. Martin Buxton, whose
diagnostic impression was depression, rather than a conversion disorder.
26. In April of 2003, a cardiologic exam performed on Alexis was normal. Pet’r’s
Ex. 22.
27. In May of 2003, Alexis returned to Dr. Kessel, a gastroenterologist, for
complaints of chronic constipation, reflux, frequent nausea, and increased
burping. Pet’r’s Ex. 26.
28. In July of 2003, Alexis saw Dr. Megson, the developmental pediatrician who
diagnosed Alexis as suffering from a fungal infection, low blood sugar,
difficulty sleeping, and hypersensitivity to smells and sounds. Pet’r’s Ex. 5.
29. In January of 2004, Alexis was granted indefinite homebound instruction.
Pet’r’s Ex. 31.
30. Between January 2004 and May 2004, Alexis sought medical care for spasms,
tremors, fainting episodes, restless legs, and scalp discomfort, all symptoms of
unknown cause on origin. Pet’r’s Ex. 53.
31. In May of 2005, Alexis underwent a psychologic evaluation that revealed mild
attention problems in addition to cognitive weaknesses in vocabulary and
nonverbal analogic reasoning. Pet’r’s Ex. 38. Alexis was deemed to be
socially and emotionally well-adjusted. Id.
15
32. Alexis returned to school in November of 2005. Pet’r’s Ex. 42.
33. Alexis saw Dr. Somerville three times between January and February 2006 for
recurrent episodes of fainting following her exposure to noxious or stressful
stimuli. Pet’r’s Ex. 49.
34. In October of 2007, Alexis saw Dr. Elaine Turner, an allergist, who described
Alexis’s symptoms as “protean” and “unusual.” Pet’r’s Ex. 53.
35. In December of 2007, Alexis saw a therapist who diagnosed her as suffering
from an adjustment disorder, which was exacerbated by a depressive mood.
Pet’r’s Ex. 52.
36. In May of 2008, Alexis saw Dr. Stephen Clement, an endoscopist, who found
no abnormalities. Pet’r’s Ex. 53.
37. Alexis saw a therapist on eight occasions between March 30, 2010, and June
29, 2010. Pet’r’s Ex. 62. Her therapist diagnosed her with major depressive
disorder. Id.
38. On October 10, 2011, Alexis was hospitalized for possible seizure activity.
Pet’r’s Ex. 78. Alexis’s physician, Dr. Shankar Perumal, considered her
condition to be psychogenic.
39. Alexis’s last fainting episode occurred at some time between December 2011
and January 2012. Tr. 12.
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