Davis v. Secretary of Health and Human Services
16-276
| Fed. Cl. | Nov 2, 2016Background
- Petitioner Mark V. Davis filed a Vaccine Act claim alleging Parsonage–Turner Syndrome after a Td vaccine administered on September 20, 2013.
- To qualify as a Table Injury for tetanus-containing vaccines, onset of brachial neuritis must occur within 2–28 days (i.e., by October 18, 2013).
- Contemporaneous medical records first documenting relevant symptoms are from an ER visit on November 22, 2013, reporting chest pain and right arm/hand numbness and weakness.
- Petitioner submitted multiple affidavits (self, wife, two dental assistants, patients, colleagues) asserting symptom onset around October 2, 2013 (linked to his work anniversary and a specific October 2 patient encounter).
- Respondent requested a factual finding on onset so retained experts would rely on the same timeline; petitioner did not oppose resolution on the record.
- Special Master Gowen found the contemporaneous-record presumption rebutted and ruled onset was on or about October 2, 2013, ordering the parties’ experts to accept that onset date for their opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Date of onset of right upper extremity symptoms | Onset on or about October 2, 2013 (immediate, observable hand cramps while treating a patient) | Medical records place onset on or about November 20–22, 2013 (first contemporaneous documentation) | Onset found to be on or about October 2, 2013 (affidavits rebutted contemporaneous-record presumption) |
| Whether contemporaneous records are controlling over later affidavits | Later, consistent affidavits provide reliable, specific recollections tied to dates/events | Contemporaneous medical records presumptively accurate and complete | Contemporaneous presumption rebutted here due to focus on chest pain in ER, prior cervical history, and consistent, specific affidavits |
| Necessity of a hearing to resolve onset | Did not object to resolution on the record; affidavits suffice | Respondent asked for on-the-record finding and did not request a hearing | No hearing required; special master resolved onset on the papers |
| Effect of factual finding on expert opinions | Experts should base opinions on the found onset date | Respondent sought uniform factual baseline for experts | Special master ordered experts to accept the onset finding; opinions based on inconsistent facts will not be credited |
Key Cases Cited
- Munn v. Sec’y of Health & Human Servs., 970 F.2d 863 (Fed. Cir. 1992) (describes Vaccine Act two-path framework for proving causation)
- Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315 (Fed. Cir. 2010) (explains preponderance standard and definition)
- Snowbank Enter. v. United States, 6 Cl. Ct. 476 (Ct. Cl. 1984) (discusses insufficiency of mere conjecture under preponderance standard)
- Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525 (Fed. Cir. 1993) (presumption that contemporaneous medical records are accurate and complete)
- La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184 (Fed. Cl. 2013) (identifies reasons contemporaneous records may be incomplete or inconsistent with later testimony)
- Burns v. Sec’y of Health & Human Servs., 3 F.3d 415 (Fed. Cir. 1993) (expert opinions may be rejected if based on facts not substantiated by the record)