Before Mayer, Chief Judge, Lourie, Circuit Judge, and Black, District
The opinion of the court was delivered by: Black, J.
Appealed from: United States Court of Federal Claims
The Secretary of Health and Human Services ("the Secretary") appeals from the decision of the United States Court of Federal Claims which sustained a compensation decision by the Special Master issued pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 ("the Act"). Based on the Secretary's failure to appeal the earlier remand by the Court of Federal Claims or to reopen the case on the entitlement issue on the basis of newly discovered evidence, the law of the case doctrine counsels affirmance.
David Suel was born on June 8, 1986, and appeared normal until he was approaching five months old. On October 22, 1986, David received his first Diphtheria-Pertussis-Tetanus ("DPT") vaccination. The Special Master found that within two days of the vaccination David's eyes began a rapid movement and rolled back into his head. David's father interpreted this as a sign of drowsiness. The next day David's eyes again rolled back. Over the course of the next week he began to nod his head and sleep more, until he was sleeping twenty hours a day. Within three weeks of the DPT vaccination, the child was demonstrating measurable seizure activity, occurring approximately four times a day.
David Suel was admitted to the Minneapolis Children's Medical Center on November 29, 1986. A brain scan confirmed a diagnosis of tuberous sclerosis ("TS"). The physicians recommended David not receive further pertussis vaccine as it might aggravate his condition.
While research regarding the relationship between TS and DPT vaccine is ongoing, some things are not controverted. TS is an inherited genetic disorder. Tubers (lesions) exist in the brain at birth and do not multiply. David Suel has twenty tubers discernable by Magnetic Resonance Imaging.
David's parents filed an application for compensation under the Act in September 1990. In 1991, Special Master Millman began taking testimony. In June 1993, Special Master Millman issued her first entitlement decision. She concluded petitioners had satisfied their burden of showing David had experienced his first seizure activity within three days of his DPT vaccination. *fn2 However, Special Master Millman held the Vaccine Act's presumption of causation did not apply to significant aggravation and was thus of no benefit to the Suels in meeting their burden. The Suels appealed and the Court of Federal Claims, per Judge Merow, reversed. Relying on Costa v. Secretary of HHS, 26 Cl. Ct. 866 (1992), Judge Merow held that once the petitioners had proven the seizure disorder was within the presumptive three-day period under the Table, it was the Secretary who must prove that TS alone caused the seizure disorder. After reviewing the evidence, Judge Merow concluded:
"In the case at bar, the respondent did not show by the preponderance of the evidence that the seizure onset would have occurred at the age of five months solely because of the TS; indeed, the Special Master found that the DPT vaccine was "indeed a trigger to David's first seizure." Having failed to meet its burden of proof, the respondent can not prevail in this matter." Suel v. Secretary of HHS, 31 Fed. Cl. 1, 10 (Fed. Cl. 1993), superseded by Whitecotton v. Secretary of HHS, 81 F.3d 1099 (Fed. Cir. 1996).
During the time period that this case was on appeal and then remanded for a determination of compensation, the Special Master had identified a number of cases alleging a causal relationship between vaccinations and seizure onset in TS patients. Discovery was held in an Omnibus proceeding encompassing these cases in the summer of 1996. At the hearing on the Omnibus TS proceedings, Special Master Millman inquired if the Secretary intended to make a motion before Judge Merow to reopen the entitlement decision in the present case. The Secretary's counsel, however, indicated the Secretary did not intend to move Judge Merow to reopen the entitlement decision in the case at bar on the basis of the evidence developed in the Omnibus TS proceeding. Special Master Millman then advised counsel for the Secretary that in the absence of such a motion she would lack jurisdiction to revisit the issue of entitlement. See Suel v. Secretary of HHS, 1997 WL 617034 at *1 ( Fed. Cl. 1997).
The Special Master then proceeded to consider and decide only the compensation issue remanded by the Court of Federal Claims. See id. She awarded the Suels compensation in the form of an annuity and specified how it should be paid.
The Secretary appealed the compensation decision to Judge Merow. However, in the Court of Federal Claims, the Secretary sought to reopen that Court's 1993 entitlement decision based on the evidence newly developed in the TS Omnibus ...