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Robert Rickett v. Secretary of Health and Human

November 18, 2011

ROBERT RICKETT, PETITIONER-APPELLANT,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, RESPONDENT-APPELLEE.



Appeal from the United States Court of Federal Claims in case no.01-VV-128, Judge George W. Miller.

The opinion of the court was delivered by: Reyna, Circuit Judge.

NOTE: This disposition is nonprecedential.

Before NEWMAN, O'MALLEY, and REYNA, Circuit Judges.

Robert Rickett appeals from a decision of the United States Court of Federal Claims ("Court of Federal Claims"), affirming the denial of his claim that the Hepatitis B vaccine caused his fibromyalgia ("FM"). We have considered Mr. Rickett's arguments and for the reasons set forth below, we affirm the decision of the Court of Federal Claims.

I BACKGROUND

Mr. Rickett has a family history of FM and has suffered various medical problems throughout his life. On March 10, 1998, Mr. Rickett received the first of three injections of the Hepatitis B vaccine. He alleges that shortly thereafter, he developed persistent diarrhea. The record is unclear as to when the diarrhea began and how long it persisted. Mr. Rickett's expert, Dr. Joseph Bellanti, testified that the diarrhea may have been the result of irritable bowel syndrome ("IBS"), which is associated with FM. Mr. Rickett was never diagnosed with IBS. Nor did he seek medical attention for the diarrhea. Indeed, he does not appear to have reported it to a physician until March 9, 1999, when he told a physician that he "developed diarrhea over the summer" of 1998. A339.

Mr. Rickett received his second injection of the Hepatitis B vaccine on April 8, 1998. He testified that within a week of this vaccination, he could not lift his left arm 90 degrees and had arm and shoulder pain. However, a medical record dated April 24, 1998, indicates that Mr. Rickett's right arm and shoulder pain had begun two to three weeks earlier, and his left side pain had begun on April 23, 1998. The record further indicates that Mr. Rickett had a "full range of motion" and no point tenderness in either shoulder. A206. On the basis of this medical record, the Special Master concluded that Mr. Rickett's right side pain began on or about April 3 to April 10, 1998, several days of which preceded his April 8 vaccination.

Mr. Rickett alleges that his pain continued until his third and final injection of the Hepatitis B vaccine on September 22, 1998, and that shortly thereafter he experienced, among other things, pain and headaches. According to a medical record dated September 24, 1998, Mr. Rickett sought medical attention for anxiety and somatic complaints.

On October 28, 1998, Mr. Rickett saw Dr. Steven Keifer, who performed a follow-up evaluation related to back surgery that Mr. Rickett had undergone. During that visit, Mr. Rickett reported developing cramping and burning in his right thigh and calf "two months ago" and burning neck pain with some extension into the intrascapular region and shoulders one month earlier. A173. Dr. Kiefer suspected that Mr. Rickett had probable degenerative cervical spine disease and degenerative lumbar disc disease, status post lumbar discectomy. He did not link Mr. Rickett's Hepatitis B vaccination to his condition.

On March 9, 1999, Mr. Rickett visited Dr. Paul Gold-farb. A medical record from the visit indicates that Mr. Rickett reported developing right arm pain in the spring of 1998 and diarrhea that summer. Mr. Rickett complained of widespread chronic pain, diarrhea, sleep prob- lems, and headaches. According to the medical record, he explained that he had seen on television that the Hepatitis B vaccine had been linked to problems and that "[h]e had just finished his course [with the vaccine] when he developed aching all over." A340. However, Mr. Rickett later testified that he did not recall telling Dr. Goldfarb about the television show. Although Dr. Goldfarb suspected that Mr. Rickett had FM, he tried to reassure Mr. Rickett that he did not believe the FM and vaccine were related.

From March 1999 to the present, Mr. Rickett has seen various physicians for numerous medical conditions. Although no treating physician has stated that his Hepatitis B vaccine caused his FM and at least two have doubted such a connection, since March 1999 Mr. Rickett has consistently claimed that the vaccine caused his FM.

II

On March 8, 2001, Mr. Rickett filed a petition, alleging that his vaccination had caused his FM.*fn1 Special Master John Edwards conducted a hearing on February 21, 2008, at which Mr. Rickett and the parties' respective experts testified. On August 1, 2008, the case was reassigned to Chief Special Master Gary Golkiewicz, who conducted a hearing on December 12, 2008, at which only Mr. Rickett testified.

On May 26, 2010, the Chief Special Master denied Mr. Rickett's claim because Mr. Rickett failed to demonstrate the three prongs of causation-in-fact as articulated in Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, ...


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