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Paluck v. Secretary of Health and Human Services

United States Court of Appeals, Federal Circuit

May 20, 2015


Page 1374

Appeal from the United States Court of Federal Claims in No. 1:07-vv-00889-CFL, Judge Charles F. Lettow.


SHEILA A. BJORKLUND, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, argued for petitioners-appellees.

PATRICK NEMEROFF, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellant. Also represented by JOYCE R. BRANDA; ALEXIS B. BABCOCK, Vaccine/Torts Branch, Civil Division, United States Department of Justice, Washington, DC; MICHAEL S. RAAB, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC.

Before REYNA, MAYER, and CHEN, Circuit Judges.


Page 1375

Mayer, Circuit Judge.

The Secretary of Health and Human Services appeals a final judgment of the United States Court of Federal Claims setting aside the special master's findings of fact and conclusions of law and granting entitlement to compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. § § 300aa-1 to -34. (" Vaccine Act" ). See Paluck ex rel. Paluck v. Sec'y of Health & Human Servs., 113 Fed.Cl. 210 (2013) (" Court of Federal Claims Decision II" ). We affirm.


The Court of Federal Claims provided a comprehensive account of the relevant facts and they need only be briefly summarized here. K.P. was born on January 15, 2004. He exhibited no apparent signs of disability during the first six to eight months of his life, but in October 2004 K.P.'s daycare provider referred him to K.I.D.S., an infant development service, for evaluation. Id. at 213. After extensive testing, K.I.D.S. determined that K.P. suffered from significant delays in his gross motor skills and some delays in his fine motor skills. Id. at 214. Evaluation conducted using the Bayley Scales of Infant Development protocol, however, determined that K.P.'s " cognitive skills ( i.e., ability to remember, problem solve, use and understand language, and identify early number concepts)" were " within normal limits." The evaluators from K.I.D.S. noted that K.P. was " a social boy with a bright smile" who made " a nice variety of sounds while babbling using both consonants and vowels." The evaluators ultimately concluded that K.P. presented a " mixed picture," and that his " gross motor delays [were] impacting his ability to achieve age-level skills in other areas of development."

K.P. experienced recurrent rashes, which were later identified as a symptom of erythema multiforme. He also suffered from repeated ear infections. On December 27, 2004, K.P. saw Stephen L. McDonough, M.D., his pediatrician, for a check of his ears. McDonough evaluated K.P. as having normal muscle tone, noting that he had " good head control and fairly good truncal control." McDonough stated, however, that K.P. was " not pulling himself to stand or crawling yet." Although McDonough indicated that K.P. might have " possible mild gross motor delay," he also noted that K.P. was rolling over, trying to crawl, and had " several words."

McDonough saw K.P. on January 19, 2005 for his one-year well baby visit. At this appointment, K.P. received doses of the measles-mumps-rubella (" MMR" ), pneumococcal, and varicella vaccines. After examining K.P., McDonough described K.P.'s neuromuscular condition as " abnormal,"

Page 1376

noting increased tone[1] in his upper extremities and the presence of ankle clonus, an abnormal reflex movement. Although K.P. could " bang [two] cubes held [in his] hands," " play ball with [the] examiner," " pull to stand," " stand holding on," " say single syllables," and " say dada/mama," he could not " get to sitting" or " stand alone."

On January 21, 2005, two days after he was vaccinated, K.P. had a temperature of 101.5 degrees. Seven days later, on January 28, 2005, K.P. had a recorded temperature of 101.3 degrees. In the two weeks following the vaccinations, K.P. was generally fussy and did not nap or eat well.

In February 2005, Rhonda and Doug Paluck (the " Palucks" ), K.P.'s parents, took him to the Pokorny Chiropractic Clinic, hoping to address his gross motor problems. On February 11, 2005, the chiropractor reported that K.P. was " spastic." On March 24, 2005, McDonough referred K.P. to Siriwan Kriengkrairut, M.D., a pediatric neurologist. In making the referral, McDonough noted that K.P. suffered from " gross motor delay, global developmental delay, and hypertonicity."

After evaluating K.P., Kriengkrairut concluded that he suffered from " marked spasticity of the extremities" and " [g]lobal delayed development." Kriengkrairut suggested to the Palucks that K.P.'s muscular abnormalities and developmental delays were possibly the result of a " central nervous system pathology."

On April 27, 2005, K.P. had a magnetic resonance imaging (" MRI" ) exam of his brain. The results of this MRI exam were initially deemed to be normal. Subsequently, however, the MRI results were reexamined, and it was determined that they evidenced a thinning of the corporal callosum. In May 2005, K.P. was evaluated by a speech therapist who determined that he possessed fewer language skills than he did in October 2004, and that his total language score was in the first percentile.

In July 2005, K.P. suffered a series of seizures and was hospitalized for three weeks. While in the hospital, he underwent another MRI exam, which showed further thinning of the corporal callosum. Theodore J. Passe, M.D., a radiologist who reviewed K.P.'s April and July 2005 MRI results, concluded that they were " consistent with a progressing leukodystrophy" which could have a " hereditary, toxic or metabolic etiolog[y]."

On October 27, 2005, K.P. had another MRI exam. Michael Frost, M.D., a physician who began treating K.P. in the summer of 2005, determined that this exam showed no significant changes in K.P.'s brain since the July 2005 MRI exam. Frost concluded that " the progression of a signal change" in K.P.'s brain " between 4/27/05 and 07/22/05 may have represented evolution of [one] toxic/metabolic event, which is now stable."

K.P. was subsequently diagnosed with an unspecified mitochondrial disorder. All parties agree that this mitochondrial disorder was most likely present from the time of K.P.'s birth. K.P. now lives in a state of severe neurological disability. He has " no purposeful movements" and " no specific smiling or distinctive eye contact." K.P. has ...

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