CHRISTIAN J. MORAN, Special Master.
Marguerite Miceli filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §300aa—10 through 34 (2006), on March 1, 2010. In her petition, Marguerite alleged that the human papillomavirus ("HPV") vaccines she received on July 10, 2007, and September 14, 2007, caused her to suffer systemic lupus erythematosus ("SLE"), Raynaud's disease, and fibromyalgia. Petition at 1, 3, 5.
The documentary evidence relating to Marguerite's health in 2007 was not consistent. To find the facts about this critical topic, a hearing was held.
The petition was filed on March 1, 2010.
The Secretary reviewed this material and noted that some medical records appeared to be missing. The Secretary particularly requested records from Jonathan Dixon, a rheumatologist, whom Marguerite saw for her lupus. The Secretary also maintained that based upon the existing record, Ms. Miceli had not established that the HPV vaccine caused her lupus. Resp't's Rep., filed Mar. 14, 2011.
Marguerite collected additional records, including those from Dr. Dixon, over the next five months. Marguerite also filed a second affidavit. Exhibit 18. This affidavit, which contained four paragraphs, did not assert when she started having signs or symptoms associated with lupus.
In an August 12, 2011 status conference, the parties began to plan for a hearing during which Marguerite and other people familiar with her health in 2007 would testify. As part of this process, Marguerite submitted affidavits from two witnesses, Sylvia Miceli (her mother) and Francesca Miceli (her sister). Exhibits 23 and 24.
The three Micelis testified at a hearing held by videoconferencing on December 5, 2011. The testimony suggested that other sources, such as Marguerite's employer and her school, may have created documents that could inform a determination about Marguerite's health. Marguerite also stated that she periodically posted to Facebook during the relevant time. Hence, she was ordered to obtain these documents. Order, issued Dec. 5, 2011.
Marguerite complied with the order to obtain additional documents, although the process for obtaining her Facebook postings took longer than expected. Marguerite assembled this record herself. She did not request the information from Facebook. By July 2012, it appeared that the record was sufficiently complete that the parties could begin the process of proposing findings of fact.
However, on September 10, 2012, Marguerite died. Exhibit 38 at 2. The autopsy listed her cause of death as acute respiratory distress syndrome secondary to thrombotic thrombocytopenic purpura in the setting of systemic lupus erythematous. Exhibit 39 at 3. Her death, as described in footnote 2 above, prompted a substitution for the petitioner.
As the parties reviewed the filed records to propose findings of fact, they determined that more medical records remained outstanding. Although many of these records documented treatment occurring years after Marguerite was diagnosed with lupus, the petitioner wanted to obtain them. The process of collecting written materials concluded in January 2014, when the petitioner filed a set of explanation of benefits from her insurance company. Exhibit 40.
Following that submission, the parties jointly crafted a set of proposed findings of fact. This document highlights the disputes the parties have regarding Marguerite's health in the months shortly before and shortly after her vaccinations. With the submission of the proposed findings, the matter is ready for adjudication.
Petitioners are required to establish their cases by a preponderance of the evidence. 42 U.S.C. § 300aa-13(1)(a). The preponderance of the evidence standard requires a "trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the judge of the fact's existence."
The process for finding facts in the Vaccine Program begins with analyzing the medical records, which are required to be filed with the petition. 42 U.S.C. § 300aa-11(c)(2). Medical records created contemporaneously with the events they describe are presumed to be accurate.
Not only are medical records presumed to be accurate, they are also presumed to be complete, in the sense that the medical records present all the problems of the patient. Completeness is presumed due to a series of propositions. First, when people are ill, they see a medical professional. Second, when ill people see a doctor, they report all of their problems to the doctor. Third, having heard about the symptoms, the doctor records what he or she was told.
Appellate authorities have accepted the reasoning supporting a presumption that medical records created contemporaneously with the events being described are accurate and complete. A notable example is
Decisions by judges of the Court of Federal Claims have followed
The presumption that contemporaneously-created medical records are accurate and complete is rebuttable, however. For cases alleging a condition found in the Vaccine Injury Table, special masters may find when a first symptom appeared, despite the lack of a notation in a contemporaneous medical record. 42 U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar fact-finding for cases alleging an off-Table injury. In such cases, special masters are expected to consider whether medical records are accurate and complete. To overcome the presumption that written records are accurate, testimony is required to be "consistent, clear, cogent, and compelling."
Special masters will consider various explanations for inconsistencies between contemporaneously created medical records and later given testimony. The Court of Federal Claims listed four such explanations. Inconsistencies can be explained by: (1) a person's failure to recount to the medical professional everything that happened during the relevant time period; (2) the medical professional's failure to document everything reported to her or him; (3) a person's faulty recollection of the events when presenting testimony; or (4) a person's purposeful recounting of symptoms that did not exist.
In weighing divergent pieces of evidence, special masters usually find contemporaneously-written medical records to be more significant than oral testimony.
The relative strength or weakness of the testimony of a fact witness affects whether this testimony is more probative than medical records. An assessment of a fact witness's credibility may involve consideration of the person's demeanor while testifying.
These criteria are considered in the analysis below.
The facts regarding Marguerite's medical history are discussed below in chronologic order beginning with her health in 2007 before receiving the first dose of HPV vaccine, her health after July 10, 2007 (the date of the first vaccination), and continuing through to her treatment by Dr. Dixon in September 2007.
Marguerite was born in January 1989. Her health for her first 17 years is not contested. The parties agree that medical records periodically created during this time show that she suffered from allergies and had sore throats. The petitioner summarized many of those records. Joint Motion for Findings of Fact ("Jt. Mot."), filed May 26, 2014, at 3-4. Since the parties do not dispute the accuracy of the records created before 2007, they are not reviewed in this ruling.
The controversy begins with Marguerite's health in March 2007, when she was a senior at Mercy High School. The Secretary argues that "Marguerite experienced a prolonged period of illness that began in March or April, 2007." Jt. Mot. at 2. Petitioner acknowledges that Marguerite experienced episodes of ill health but she had recovered by July 10, 2007.
Overall, the parties' dispute is more a difference in degree, not a difference in kind. Petitioner does not contend that Marguerite was in perfect health. Such an argument would conflict with multiple medical records created in spring 2007, showing various illnesses. Rather, petitioner is maintaining that Marguerite's health in spring 2007 did not interrupt her daily life.
The short answer is that the Secretary's view is more persuasive. The Secretary better accounts for all the evidence, including Marguerite's decision to live at home for her first year of college due to her ill health and Dr. Dixon's September 17, 2007 letter recounting a history of medical problems for six months. The Secretary's portion of the Joint Motion was organized around discrete symptoms that Marguerite experienced in spring 2007. In contrast, although the petitioner had an opportunity to address each of the Secretary's points, the petitioner's portion of the Joint Motion falls short of presenting a persuasive account of Marguerite's health. The petitioner ignores most of the oral testimony.
The Secretary asserted that the "most persuasive evidence" about Marguerite's health in the spring of 2007 was that she decided to attend college at the West Hartford branch of the University of Connecticut. With this decision, Marguerite was choosing to remain relatively close to her home in Cromwell, Connecticut, rather than travel to the main campus of the University of Connecticut, which is approximately 40 miles away in Storrs.
The Secretary's assertion that Marguerite's health was an important and perhaps controlling factor in where she was attending college is amply supported. Both Francesca Miceli and Sylvia Miceli linked Marguerite's health to her college-location decision. Tr. 115, 189. In addition, the Secretary established that Marguerite made this decision in mid-April 2007. For this point, the Secretary relied upon an exchange of Facebook posts. Marguerite told a friend that she picked the "UConn West Hartford branch for like a year or two and then goin[g] to Storrs." Exhibit 33 at 13;
It is telling that although the Secretary characterized the evidence relating to selection of college as the "most persuasive evidence," petitioner does not address this evidence at all.
Marguerite testified that she was "very sick in the second half of my senior year." Tr. 26;
Some medical records support Marguerite's testimony about a lingering illness starting in March 2007. Most prominently, Marguerite told her rheumatologist, Dr. Dixon, in September 2007 that her "fatigue, headaches, hair loss and diffuse musculoskeletal discomfort" started six months earlier. Exhibit 1 at 44. Although it would be a stretch to describe Dr. Dixon's record as an account created contemporaneously with events in the spring 2007,
When questioned about Dr. Dixon's notation that she has been experiencing symptoms "going back about six months," Marguerite referred to her illness in the spring 2007. Tr. 26, 67. In this context, she denied having hair loss and joint pains before July 2007. Tr. 26-27. On cross-examination, Marguerite asserted that after July 2007, her fatigue started to be so draining that she needed rest to function. She denied feeling tired in the spring 2007, when she thought she had a viral infection. Tr. 65.
In the joint motion, petitioner, again, did not address directly the Secretary's reliance on Dr. Dixon. Instead, petitioner's argument is that Marguerite's illness in spring 2007 did not affect her activities. The basis for this contention is that Marguerite saw relatively few doctors in the spring 2007, and if she were experiencing more consistent problems, she would have visited doctors frequently.
Several reasons support a finding that Marguerite was ill in spring 2007. First, Marguerite testified about her illnesses in spring 2007. She stated that her recovery from a virus "was just a long process, slow recovery, . . . bed rest." Tr. 32. Thus, petitioner's argument is really contrary to Marguerite's testimony. Second, the problems Marguerite recounted to Dr. Dixon are not terribly severe. It seems relatively less likely that an 18-year-old woman, who had a history of some chronic health impairments like allergies, would quickly seek medical attention for apparently small medical issues. For example, Marguerite saw her primary care doctor on May 31, 2007. Then, she recounted that she was having hives off and on for two days as well as fevers and chills for three weeks. Exhibit 1 at 66;
Moreover, the surrounding evidence tends to confirm that although she was ill, she was not incapacitated in spring 2007. As noted earlier, she missed only two days of school. Exhibit 24 at 2. She maintained a job at her family's pizza restaurant. Tr. 90-91. She stated that there were "not too many activities after school I couldn't go to." Tr. 32. One of her primary activities was completing a community service project to earn her Gold Award from the Girl Scouts. While the Girl Scouts conferred this award on her in 2008, Marguerite performed the tasks for the award during her senior year of high school. Tr. 90.
Marguerite graduated from high school on May 31, 2007. Tr. 31, 112. There was extensive testimony that Marguerite was too sick to participate in the graduation ceremony. Her doctor advised her not to walk across the stage. Marguerite felt really tired. She also had a fever, and possibly had pink eye and a sore throat. Tr. 31-32, 57-58, 100-01, 123-26, 152, 164.
The testimony about Marguerite's pink eye was vague, perhaps because of the passage of time. It seems likely that Marguerite began suffering from pink eye shortly before May 31, 2007. Francesca indicated that her sister had pink eye on graduation. Tr. 123-26. Marguerite testified that the pink eye persisted and switched eyes. Tr. 35. She testified that it went away two weeks after she was given medication and, later, indicated that she was taking medication for pink eye on June 13, 2007. Tr. 58, 60;
On June 13, 2007, Marguerite called the office of her allergist, Dr. Mendelson reporting that she was sick for two weeks. The note from the phone call also states "[h]ives every where [sic]" and "lump in throat, had a fever a [week] ago." Exhibit 3 at 32,
At an appointment with Dr. Mendelson on July 9, 2007, Marguerite told him that "two weeks" before this visit, she "started having some swelling of her eyes and some itchiness and hives all over her body." Marguerite also reported that she "was given some Benadryl, some antihistamines, and a short course of prednisone." Exhibit 3 at 4. The records do not indicate the doctor who prescribed these medications and Marguerite did not remember.
On July 10, 2007, Marguerite returned to her pediatrician. The doctor's handwriting is difficult to understand, but appears to reflect a relatively normal examination. In the course of this visit, Marguerite received a dose of the meningococcal vaccine and a first dose of the HPV vaccine in her left arm. Exhibit 1 at 29; Tr. 16.
The parties agree that after these vaccinations, Marguerite experienced pain in her arm around the site of the vaccination.
Once again, the Secretary discussed all the evidence comprehensively, while the petitioner did not advocate for a specific finding. Under these circumstances, the Secretary's argument that "[t]here is not a preponderance of evidence that Marguerite's arm symptoms were as severe as asserted by Marguerite in her testimony," is more persuasive. Jt. Mot. at 12-13.
Marguerite started having pain in her left arm within two days of her vaccinations. Tr. 16, 69-71, 104-05, 166. Marguerite spent the weekend of July 12, 2007, with Francesca in Boston. Exhibit 24 (Francesca's affidavit) ¶ 7; Tr. 141 (testimony that the weekend is recorded on Francesca's electronic calendar). During their time together, the sisters walked around Boston extensively. Tr. 143-44.
Within a few days of returning from Boston, Marguerite developed small masses on her elbow. Particular bumps came and went, but, on a whole, they persisted through September 13, 2007, when Marguerite had another appointment with Dr. Mendelson. Tr. 63-64; exhibit 3 at 3.
Around this same time, Marguerite started to lose some of her hair. Tr. 73. Francesca testified that Marguerite told her that she (Marguerite) was losing some hair when Francesca attended the family's graduation party for Marguerite in August 2007. Tr. 114, 144. Marguerite also told Dr. Mendelson, in September 2007, that she had been losing her hair. Exhibit 19 at 1.
Another symptom discussed by Marguerite and the other witnesses is swelling, particularly in Marguerite's hands. Here, the information supporting the testimony is sparse. Marguerite's history to Dr. Dixon on September 19, 2007, included a report that "[o]n one occasion[,] she had some swelling and pain in her left earlobe." Exhibit 19 at 1. Dr. Dixon did not find any peripheral edema as part of his physical examination.
An inference of rare swelling is not consistent with the witnesses' testimony. Marguerite, Francesca, and their mother averred that Marguerite was having swollen hands by the August 2007 graduation party.
Four days after the visit with Dr. Mendelson, Marguerite returned to her pediatrician's office. The notes for the September 14, 2007 appointment indicate only that Marguerite received the second dose of the HPV vaccine in her left arm. Exhibit 1 at 67.
On September 17, 2007, on referral from Dr. Mendelson, Marguerite saw Dr. Dixon for the first time. Dr. Dixon recorded a relatively lengthy history, going back to the spring 2007. Based upon the history, results from laboratory tests, and physical examination, Dr. Dixon was "a bit concerned that some autoimmune process may be brewing." Exhibit 19 at 2. Dr. Dixon did not see her case as clearly fitting the criteria for lupus.
The history does not reflect an abrupt onset for Marguerite's symptoms. Marguerite testified that after the second dose of the HPV vaccine, her problems intensified. Tr. 19, 82-83;
As reflected in other medical records, Marguerite's health did decline after the visit with Dr. Dixon. For example, on October 3, 2007, she visited an emergency room. Exhibit 17 at 10. The parties are in agreement that the records created after Dr. Dixon accurately reflect Marguerite's health problems at the time the records were created.
The parties are ordered to provide these findings of fact to any expert whom they have retained to testify. Expert opinion inconsistent with these findings of fact is not likely to be persuasive.
A status conference is set, sua sponte, for
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-6360.
Consistent with the parties' practice, this ruling refers to Marguerite Miceli as "Marguerite." This differentiates her from her sister.
