Jocksberger v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
SALLYANN JOCKSBERGER, *
* No. 10-485V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: February 10, 2015
*
SECRETARY OF HEALTH * Findings of Fact; human
AND HUMAN SERVICES, * papillomavirus (“HPV”) vaccine;
* syncope; seizures.
Respondent. *
******************** *
Ronald C. Homer, Conway, Homer et al., Boston, MA, for petitioner.
Althea W. Davis, United States Dep’t of Justice, Washington, DC, for respondent.
RULING FINDING FACTS1
Ms. Sallyann Jocksberger claims that the human papillomavirus (HPV)
vaccine she received on August 17, 2007, caused her to develop neurologic
problems. Petition at 1.2 She seeks compensation through the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa-10 through 34 (2006).
The details about the way the HPV vaccine caused Ms. Jocksberger’s
problems, and what those specific problems are, have changed during the
litigation. See exhibit 92 (Statement of Dr. Kozachuk); order, issued Jan. 28, 2013.
A common denominator in the petitioner’s theory is that within minutes of
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
2
The original petitioner was Ms. Jocksberger’s father, David Jocksberger. The caption
was later amended to designate Ms. Jocksberger as the petitioner as a result of her reaching the
age of majority. Order, issued Nov. 3, 2010.
receiving the vaccination, Ms. Jocksberger experienced some sort of seizure. The
Secretary, in contrast, maintains that what happened shortly after the vaccination
was an episode of syncope, more commonly known as fainting.
Because the parties differ in their assumptions about what happened in the
minutes immediately following the vaccination, a hearing was held to receive
testimony from percipient witnesses. Following this hearing, the parties proposed
findings of fact. This ruling finds facts based upon the preponderance of the
evidence standard.
Procedural History
The petition was filed on July 28, 2010. In support of this petition, Mr.
Jocksberger submitted medical records and affidavits (exhibits 1-23) followed by a
statement of completion on August 4, 2010.
On October 26, 2010, the Secretary filed her Rule 4 report arguing that
petitioner had not demonstrated an entitlement to compensation. In particular, the
Secretary’s report argued that Ms. Jocksberger’s contemporaneous medical records
did not corroborate her claim that she suffered a seizure following her August 17,
2007 HPV vaccination. Resp’t’s Rep, filed Oct. 26, 2010, at 17.
After several requests for extension, Ms. Jocksberger filed an expert report
from Dr. Walter E. Kozachuk (exhibit 32) on June 22, 2011. The Secretary filed
responsive expert reports from Dr. Michael Kohrman (exhibit A), Dr. Richard
Stiehm (exhibit C), and Dr. Edward Cetaruk (exhibit E) on October 25, 2011.
Responsive to the special master’s November 16, 2011 order, the Secretary filed a
supplemental report from Dr. Kohrman (exhibit G) on December 13, 2011. Ms.
Jocksberger responded with a report from Dr. Naresh Gupta (exhibit 35) on
February 29, 2012.
What happened immediately after the vaccination is a fundamental dispute
between the parties. See Resp’t’s Rep., filed Oct. 26, 2010, at 17. The parties’
experts have drawn different conclusions about Ms. Jocksberger’s condition
following the August 17, 2007 vaccination. Compare, on one hand, exhibit 32 (Dr.
Kozachuk’s Rep.) at 1, and exhibit 73 (Dr. Kozachuk’s Supp’l Rep.) at 2, with, on
the other hand, exhibit A (Dr. Kohrman’s Rep.) at 5, and exhibit C (Dr. Stiehm’s
Rep.) at 9.
2
The undersigned identified the syncope/seizure dispute in the first status
conference held after the case was reassigned to him. Order, issued Aug. 30, 2012
at 2, ¶7.b. Another issue discussed in that status conference was how the Secretary
would respond, if at all, to Ms. Jocksberger’s submission of a report from Gabriel
Newman, a neuropsychologist. Order, issued Aug. 30, 2012.
For a time, the issue involving the neuropsychological report took
prominence and the hearing set for March 2013 was cancelled. Order, issued Jan.
28, 2013. The Secretary requested that a neuropsychologist whom she retained,
Deborah Andersen, perform a neuropsychological assessment, including an
interview with Ms. Jocksberger. Resp’t’s Mot., filed Mar. 11, 2013. Ms.
Jocksberger opposed this request based, in part, on the report of Dr. Newman.
Pet’r’s Resp., filed Mar. 29, 2013.
After considering the arguments and evidence, the undersigned recognized
that an order granting or denying the Secretary’s motion for additional testing
would require a delicate balancing of different factors, including Ms. Jocksberger’s
health. Consequently, the undersigned proposed to defer this ruling. Instead, the
better approach would be to focus on how Ms. Jocksberger responded to the
vaccination. This emphasis is because Dr. Kozachuk’s assumption that Ms.
Jocksberger suffered a seizure appears to be essential to his opinion that the HPV
vaccine harmed Ms. Jocksberger. This proposal was discussed in a digitally
recorded status conference on April 11, 2013.
Ms. Jocksberger opposed the special master’s determining what happened
after vaccination. Ms. Jocksberger stated that expert testimony would be needed
but that neither she nor her mother would testify as percipient witnesses. Pet’r’s
Status Rep., filed May 13, 2013.
The Secretary, by contrast, supported a procedure in which Ms.
Jocksberger’s reaction would be determined as a preliminary matter. She, too, saw
the seizure/syncope issue as potentially dispositive. Resp’t’s Status Rep., filed
May 22, 2013. Another digitally recorded status conference was held on May 24,
2013. The result of these discussions was an order for the Secretary to file a
motion for a ruling on the record.
The Respondent filed this motion on June 24, 2013. Ms. Jocksberger filed
her opposition on July 16, 2013.
3
The undersigned determined that more information from percipient
witnesses would be helpful. See 42 U.S.C. § 300aa—12(d)(3)(B)(iii) (the special
master “may require the testimony of any person . . . as may be reasonable and
necessary”); Hanlon v. Secʼy of Health & Human Servs., 191 F.3d 1344, 1350
(Fed. Cir. 1999) (finding that special master did not abuse her discretion in calling
witness to testify). Five people appeared to have knowledge about how Ms.
Jocksberger behaved immediately after the vaccination. Two people were Ms.
Jocksberger and Ms. Jocksberger’s mother, Josephine Jocksberger. Three people
were employees of Brevard Pediatrics, the office where Ms. Jocksberger received
the vaccination, Deborah Sapp, Andrea Risberg, and Patty Marchio. Order, issued
Aug. 13, 2013. A third digitally recorded status conference was held on August
26, 2013. The ensuing order instructed the Secretary to contact the three witnesses
from Brevard Pediatrics. Order, issued Aug. 28, 2013.
In response to the plan to obtain more information from fact witnesses, Ms.
Jocksberger stated that her mother would testify, but she would not. Ms.
Jocksberger also refused to provide releases to authorize communications between
the Secretary’s attorney and the employees of Brevard Pediatrics. Pet’r’s Opp’n,
filed Sep. 4, 2013. This objection was overruled. Order, issued Dec. 13, 2013.
The Secretary located Ms. Sapp and Ms. Risberg, but could not locate Ms.
Marchio.
A hearing was held in Melbourne, Florida on March 20, 2014. Ms. Sapp,
Ms. Risberg, and Ms. Josephine Jocksberger testified as anticipated. In addition,
although Ms. Jocksberger had reported that she could not testify, Pet’r’s Status
Rep., filed Mar. 10, 2014, ultimately she also did testify. Unlike the other four
witnesses, Ms. Jocksberger testified in a conference room because Dr. Newman
recommended a less formal setting. Exhibit 97.3
Following this hearing, Ms. Jocksberger submitted a record from her
orthodontist. Exhibit 98. The parties submitted a Joint Proposed Findings of Fact
(“Proposed Findings”) on August 1, 2014. With this submission, the issue is ready
for adjudication.
3
Ms. Jocksberger's oral testimony was the first occasion to hear from her. She had not
submitted an affidavit before her testimony. Cf. 42 U.S.C. § 300aa−11(c)(1) (noting that a
petition shall contain an affidavit).
4
Standard for Finding Facts
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.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).
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. Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
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 Cucuras, in which the petitioners
asserted that their daughter, Nicole, began having seizures within one day of
receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).
5
Decisions by judges of the Court of Federal Claims have followed Cucuras
in affirming findings by special masters that the lack of contemporaneously created
medical records can contradict a testimonial assertion that symptoms appeared on a
certain date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.
598, 608 (2010) (stating, “[g]iven the inconsistencies between petitioner’s
testimony and his contemporaneous medical records, the special master’s decision
to rely on petitioner’s medical records was rational and consistent with applicable
law”), aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx.
952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human
Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs.,
36 Fed. Cl. 461, 465 (1996) (stating, “[t]he special master apparently reasoned that,
if Frank suffered such [developmental] losses immediately following the
vaccination, it was more likely than not that this traumatic event, or his parents’
mention of it, would have been noted by at least one of the medical record
professionals who evaluated Frank during his life to date. Finding Frank’s medical
history silent on his loss of developmental milestones, the special master
questioned petitioner’s memory of the events, not her sincerity.”), aff’d, 117 F.3d
545, 547-48 (Fed. Cir. 1997).
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.” Blutstein v. Sec’y of Health &
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998).
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; (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. La Londe v. Sec’y Health & Human
6
Servs., 110 Fed. Cl. 184, 203 (Fed. Cl. 2013), aff’d, 746 F.3d 1334 (Fed. Cir.
2014).
In weighing divergent pieces of evidence, special masters usually find
contemporaneously-written medical records to be more significant than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at
779 (“[L]ike any norm based upon common sense and experience, this rule should
not be treated as an absolute and must yield where the factual predicates for its
application are weak or lacking.”); Camery v. Sec’y of Health & Human Servs., 42
Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because
medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a
condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.”), aff’d, 968 F.2d 1226 (Fed. Cir.
1992).
The relative strength or weakness of the testimony of a fact witness affects
whether such 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. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575
(Fed. Cir. 1993).
These criteria are considered in the analysis below.
General Assessment of Witnesses
Deborah Sapp
In 2007, Ms. Sapp was the administrator for Brevard Pediatrics, a job she
continued to perform in 2014 when she testified. Ms. Sapp has a certificate in risk
management. Tr. 13-14.
Before becoming an administrator, Ms. Sapp was a nurse. Tr. 13. In her
training and experience as a nurse, Ms. Sapp learned about syncope and seizures.
Tr. 18-21. Although Ms. Sapp has worked as a nurse, she explained that her
7
present job is not as a nurse. For example, Ms. Sapp would not administer a
vaccine. Tr. 13.
In February 2009, Ms. Sapp wrote a letter for the petitioner’s attorneys,
which an attorney reviewed before it was sent. Ms. Sapp informed the petitioner’s
attorney that on August 17, 2007, she witnessed Ms. Jocksberger’s response to the
vaccination, and she told Ms. Jocksberger’s mother, on August 17, 2007, that Ms.
Jocksberger “had passed out.” Exhibit 4 at 105.
Ms. Sapp’s testimony was generally consistent with what she recorded five
years earlier. Ms. Sapp appeared credible. Her answers appeared spontaneous and
unrehearsed. She was forthcoming and recognized that she should have
documented the August 17, 2007 incident on August 17, 2007. Tr. 24.
Andrea Risberg
Ms. Risberg was and is a nurse practitioner. She obtained a master’s degree
of science in nursing from the Florida International University in 1998. She is
capable of diagnosing children’s illnesses and treating them, such as by prescribing
medications. Tr. 37-38.
On August 17, 2007, Ms. Risberg conducted a well-child exam on Ms.
Jocksberger. Exhibit 4 at 25; exhibit 25 at 1; Tr. 44. She directed Ms. Marchio to
give Ms. Jocksberger two vaccinations, a meningococcal vaccine and a human
papillomavirus vaccine. Ms. Risberg did not witness any events after vaccination.
However, she learned about them from Ms. Marchio. Tr. 44-45.
Ms. Risberg was credible. She was logical. She seemed to have a strong
grasp on important details.
Josephine Jocksberger
After graduating from high school, Ms. Josephine Jocksberger became a
cardiovascular technician based on education and training at the Midland Career
Institute. Tr. 98. While working at the Syosset Community Hospital, she was
trained as an electroencephalogram (“EEG”) technician. Tr. 99. As an EEG
technician, she placed electrodes on the head of patients. Tr. 71, 99. A neurologist
instructed the patient during the EEG. Tr. 102-03. On occasion, the neurologist
directed Ms. Jocksberger to attempt to stimulate a seizure using light. Tr. 60, 73-
74, 103. She witnessed numerous people having seizures. Tr. 73-74. She did not
8
recall how the neurologist responded to the seizures. Tr. 75. Ms. Jocksberger
stopped working as an EEG technician in 1989. Tr. 71.
Ms. Jocksberger brought her daughter to the appointment on August 17,
2007, and stayed with her. Tr. 76. Ms. Jocksberger was present for the
vaccination and its aftermath. Tr. 81-87. Her opinion is that her daughter had a
seizure. Exhibit 95; Tr. 82. After Ms. Jocksberger and her daughter left the
doctor’s office, they went home. Tr. 87. She did not bring her daughter to the
hospital, although a hospital is near the doctor’s office. Tr. 42 (location of
hospital).
Ms. Jocksberger was not credible. Her responses appeared coached and she
was hostile to answering questions from the Secretary’s attorney. Much of her
testimony was not believable. For example, her testimony that she did not use
terms like “grand mal seizure,” when describing her daughter’s history, seems
particularly implausible, in view of the medical records in which that phrase
appears attributed to her.
Sally Jocksberger
She is the petitioner. In accord with suggestions from Dr. Newman, she was
not questioned extensively. See exhibit 96. She testified that after receiving the
vaccination, she shut down. Her testimony was credible, just limited in scope. Tr.
120-31.
Findings of Fact
Ms. Jocksberger did not have seizures before August 17, 2007. On the other
hand, Ms. Jocksberger had experienced fainting and syncope before August 17,
2007. Proposed Findings, at 2-3.4
On August 17, 2007, Ms. Risberg saw Ms. Jocksberger. Tr. 44. During this
appointment, Ms. Jocksberger’s mother said “she’s a fainter.” Ms. Risberg
directed Ms. Marchio to stay with petitioner. Tr. 44-46.5
4
Although these facts are not disputed, Ms. Jocksberger interposed a needless objection.
5
Given the records showing that Ms. Jocksberger fainted before August 17, 2007, Ms.
Josephine Jocksberger’s testimony that she would not have described her daughter was a fainter
is not credible. Tr. 76.
9
Ms. Marchio injected the meningococcal vaccine. Tr. 61-62, 121. Nothing
unusual happened. Before Ms. Marchio injected the second vaccine, the one for
human papillomavirus, Ms. Josephine Jocksberger called her husband, who is a
pharmacist. Ms. Josephine Jocksberger was concerned about the safety of this
vaccine. Her husband told her that he did not have any information about this
vaccine and Ms. Marchio said that the vaccine was required for school.
Consequently, Ms. Josephine Jocksberger consented to the injection of the HPV
vaccine. Tr. 80.
Ms. Marchio injected the vaccine. Ms. Jocksberger was seated at the time of
vaccination. Tr. 81, 122.
Ms. Jocksberger started to feel weird and very strange. She started to feel
herself shutting down. Everything went black, and she lost her hearing. Tr. 121-
22, 124-25 (Ms. Jocksberger’s testimony); see also Tr. 81 (Ms. Josephine
Jocksberger’s testimony about what her daughter told her). She slumped forward
in her chair, but did not fall from it. Ms. Marchio left the room briefly to get a
glass of water. Tr. 62-64.
Ms. Sapp entered the room.6 Ms. Sapp and Ms. Marchio lowered Ms.
Jocksberger to the floor from the chair. Tr. 31. She was pale. Exhibit 4 at 105, Tr.
46 (Ms. Risberg’s testimony that Ms. Marchio said Ms. Jocksberger turned white).
Ms. Jocksberger did not have urinary incontinence or lose control of her
bowels. Exhibit 4 at 105 (Ms. Sapp’s letter); see also Tr. 26 (Ms. Sapp’s
testimony), 86 (Ms. Josephine Jocksberger’s testimony).7 Ms. Jocksberger did not
jerk or thrash her arms around.8
6
Ms. Sapp testified some event brought her into the room. Tr. 22-23. It is unlikely that
Ms. Sapp was present for the actual vaccination because giving vaccinations was not part of her
duties in 2007. Tr. 13, 32. It is likely that Ms. Jocksberger's movement forward either directly
prompted Ms. Sapp to enter the room to lend a hand because Ms. Sapp saw Ms. Jocksberger
move or indirectly prompted Ms. Sapp to assist because either Ms. Marchio or Ms. Jocksberger's
mother yelled "help" after Ms. Jocksberger slumped forward.
7
Both Ms. Sapp and Ms. Risberg stated that seizures often produce a loss of bladder
control. Tr. 20, 50-51.
8
Whether Ms. Jocksberger thrashed is probably the most disputed issue. Her mother
insisted that Ms. Jocksberger thrashed. Exhibit 95; Tr. 62; but see Tr. 85 (Ms. Josephine
(…continued)
10
Ms. Jocksberger lost consciousness for about one minute. Exhibit 4 at 105;
Tr. 32-34 (Ms. Sapp’s testimony), 47 (Ms. Risberg’s testimony about Ms.
Marchio’s account to her), 64 (Ms. Josephine Jocksberger’s testimony that
everything happened quickly). When she woke up, Ms. Sapp and Ms. Marchio
helped her back to her chair. Tr. 23-24, 64, 123. Ms. Jocksberger felt achy and
sore all over. Tr. 27, 123. She was confused. Tr. 123. She also had a headache.
Tr. 65, 87.
Despite the foregoing, Ms. Jocksberger walked out of her pediatrician’s
office on her own. Tr. 65. Neither Ms. Jocksberger nor her mother asked to see
Ms. Risberg as they were leaving. See Tr. 49. Ms. Jocksberger and her mother
went home. They did not go to an emergency room because, according to Ms.
Josephine Jocksberger, the medical professionals said that Ms. Jocksberger would
be ok. Tr. 87.
Ms. Jocksberger’s next appointment with a doctor was slightly more than
two months later on October 29, 2007. Ms. Jocksberger returned to her
Jocksberger could not recall details about movements). Ms. Josephine Jocksberger’s testimony
is not credible because of the surrounding circumstantial evidence.
Ms. Marchio did not recognize Ms. Jocksberger’s movements as consistent with a
seizure. Ms. Marchio was familiar with seizures from her training as a medical assistant and
from having a mother with epilepsy. Tr. 56; cf. 17 (medical assistants are not nurses).
Similarly, Ms. Sapp, the other Brevard Pediatrics employee with experience in
recognizing seizures and who witnessed at least some of Ms. Jocksberger’s behavior, did not see
evidence of a seizure. Ms. Sapp would have acted differently for a seizure, such as calling a
doctor or 911. Ms. Sapp told Ms. Josephine Jocksberger that Ms. Jocksberger was not having a
seizure. Tr. 26. Likewise, if Ms. Risberg had learned one of her patients had a seizure, Ms.
Risberg would have checked the patient’s blood pressure at a minimum. Tr. 48, 51.
Petitioner’s expert, Dr. Kozachuk, emphasizes Ms. Josephine Jocksberger's training as an
EEG technician to establish her ability to recognize a seizure. Exhibit 73 at 2, 6. However, there
are two problems. First, Ms. Josephine Jocksberger downplayed her knowledge of seizures. Tr.
74, 90, 99. Second, if Ms. Josephine Jocksberger had recognized her daughter’s behavior as a
seizure, her background would inform her to seek additional medical attention. The obvious
starting place was with the doctors in the office. If Ms. Josephine Jocksberger were not satisfied,
she could have brought her daughter to the nearby emergency room. Another option was to call
for emergency assistance via 911. Alternatively, Ms. Josephine Jocksberger could have sought
care over the weekend or during the following week. Tr. 107.
But, Ms. Jocksberger's mother did none of those things. Her actions and inactions on
August 17, 2007, are not consistent with the behavior of a person who witnessed her child
thrashing around on the floor. These actions and inactions are more consistent with the behavior
of a person who saw a relatively transient event.
11
pediatrician’s office complaining about headaches, among other problems. The
record from this visit does not indicate when the headaches started. Exhibit 4 at
12-13. The record also does not mention any behavior resembling seizures (or
syncope) on August 17, 2007. Id.
In subsequent appointments with Ms. Jocksberger, doctors recorded a
history of “grand mal seizure” or “generalized tonic clonic seizure.” Exhibit 6 at 4;
exhibit 12 at 1. From reading the record, however, it appeared that Ms. Josephine
Jocksberger was the source of these histories. See exhibit 4 at 51, 100; see also Tr.
70 (Ms. Josephine Jocksberger: “I speak for Sally”). Dr. Kennedy submitted a
report to Merck stating that “mother reported generalized seizure movement”
following petitioner’s August 17, 2007 vaccinations.9 Exhibit 4 at 100; Tr. 52-54.
Yet, when presented with these specific records, Ms. Josephine Jocksberger denied
knowing from where the terms came. Tr. 93, 105, 107-10. In the circumstance in
which a doctor did not diagnose Ms. Jocksberger as suffering a seizure near
August 17, 2007, an unidentified person’s assertion that she had a seizure does not
establish, in fact, that Ms. Jocksberger had a seizure.
Next Steps / Conclusion
Whether Ms. Jocksberger’s behavior on August 17, 2007, constituted a
seizure, syncope, or syncopal seizure depends ultimately upon expert opinion. See
Knudsen v. Sec'y of Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)
(“special masters are not ‘diagnosing’ vaccine-related injuries”); Schneider v.
Sec'y of Health & Human Servs., No. 99-160V, 2005 WL 318697, at *2 (Fed. Cl.
Spec. Mstr. Feb. 1, 2005) (citing cases about on-Table injuries), mot. for rev.
denied, 64 Fed. Cl. 742, 746 (2005).
The parties ARE ORDERED to provide this ruling to the experts they have
retained, so that these experts may prepare supplemental reports, opining whether
Ms. Jocksberger suffered a seizure.10 A status conference will be held on March 4,
9
Mr. Jocksberger, who is a pharmacist (Tr. 80), submitted information to the Vaccine
Adverse Event Reporting System (“VAERS”) in November 2007. Mr. Jocksberger stated that
his daughter had a “grand mal seizure” following vaccination. Exhibit 26.
10
The experts must render an opinion based upon the behavior found in this ruling. An
expert’s assumption about the accuracy of a witness’s account does not corroborate a witness’s
account. Bradley v. Sec'y of Health & Human Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993).
Similarly, a special master may reject the conclusion reached by a treating physician when that
(…continued)
12
2015 at 3:00 PM. The petitioner should be prepared to estimate the date by which
Dr. Kozachuk will provide a supplemental report. Similarly, the Secretary will
also be asked to provide a date by which Dr. Kohrman and Dr. Stiehm will provide
supplemental reports.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
conclusion is based upon an inaccurate history. Dobrydnev v. Sec'y of Health & Human Servs.,
566 Fed. Appx. 976, 982 (Fed. Cir. 2014), reh’g denied, (Aug, 20, 2014), petition for cert. filed,
2015 WL 254864 (U.S. Jan. 16, 2015)(No. 14-868).
13