Appealed from: U.S. Court of Federal Claims. Judge Turner
Before Newman, Mayer, and Clevenger, Circuit Judges.
Kay and Michael Whitecotton appeal the judgment of the United States Court of Federal Claims,*fn1 No. 90-692V (Jan. 14, 1992), upholding the special master's denial of their petition under the National Childhood Vaccine Injury Act of 1986. The Whitecottons also appeal the January 7, 1993, order of the Court of Federal Claims denying their motion for relief based on newly discovered evidence. We reverse and remand.
Margaret Whitecotton (Maggie) was born without complications on April 22, 1975. Maggie was a small child -- her head circumference at birth was 12.5 inches, or 32 centimeters, placing her in the second percentile on a standard growth chart. Although she might be considered microcephalic based on this measurement, Maggie was healthy, developmentally and physically, until she received her third diphtheria-pertussis-tetanus (DPT) vaccination on August 18, 1975. Maggie's mother took her to the emergency room that evening, after she allegedly saw the child suffer a series of seizures. The treating physician saw no evidence of seizures and discharged Maggie that same night. The next day, Maggie's mother took her to see the family doctor. That doctor saw Maggie experience a series of clonic seizures.
Although Maggie suffered occasional seizures over the next five years, she has suffered none in recent years. She is, however, mentally and physically disabled. She has cerebral palsy, has hip and joint problems, and cannot communicate verbally.
On August 2, 1990, Maggie's parents, as her legal representatives, applied for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 to 300aa-34 (1988 & Supp. III 1991). They asserted that Maggie suffered a compensable encephalopathy as a result of the August 18 vaccination. The Secretary of Health and Human Services responded that Maggie's condition arose instead from a chronic organic brain syndrome that preexisted the vaccination, and that, therefore, she deserved no compensation under the Act.
On August 16, 1991, the special master denied compensation, finding that Maggie was born with a brain disorder that was responsible for her present disabilities. The Whitecottons sought review of the decision in the Court of Federal Claims, which affirmed the decision of the special master.
On March 27, 1992, the Whitecottons filed an appeal in this court, which stayed the proceedings pending resolution in the Court of Federal Claims of the Whitecottons' motion or relief from judgment under Rule 60(b)(2). When that motion was denied, the Whitecottons sought review of that denial in this court as well. We now consider the Whitecottons' consolidated appeals.
The Whitecottons challenge the interpretation of the Vaccine Act adopted by the special master and affirmed by the Court of Federal Claims, which they argue robbed them of the statutory presumption of causation created by Congress to facilitate recovery for likely vaccine injuries. We review such legal questions de novo. Hodges v. Secretary, Dep't of Health and Human Services, 9 F.3d 958, 960 (Fed. Cir. 1993).
The asserted presumption, designed to excuse petitioners from the often onerous burden of proving causation in vaccine cases, attaches whenever the petitioners meet the requirements of the Vaccine Injury Table, 42 U.S.C. § 300aa-14(a). Specifically, petitioners must demonstrate that the injured child received a vaccine enumerated in the Table, that the child sustained one of the injuries set forth in the Table within the statutory time period after vaccination, and that the effects of the injury lasted for more than six months, resulting in more than $1,000 of expenses. Id. § 300aa-11(c). If the petitioners fail to meet the Table requirements, they can recover compensation only on the more difficult showing of actual causation. Id. § 300aa-11(c)(1)(C)(ii). Once petitioners satisfy their burden of proving presumptive or actual causation by a ...