This is a text-tree of the decision in Birdsell v. Secretary of the Department of Health and Human Services, No. 04-1755V, 2006 U.S. Claims LEXIS 154 (Court of Federal Claims, Office of Special Masters; May 30, 2006), decided under the legal rules governing compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq.

NOTE: Rule propositions appear in bold font, while evidence assertions appear in normal font. The colored icons before propositions in the model indicate the plausibility-value assigned by the factfinder – in this case, the factfinder ultimately found against the petitioner, as indicated by the red icon before the top proposition.

LLT researchers generated the following reasoning model using the Legal Apprentice™ software, which can be downloaded by following this link.

Birdsell OSM 30 May 2006 FINAL

• Althen 418 F3d 1274 - Fed Cir 2005.pdf (Documents)
• Birdsell OSM 30 May 2006.pdf (Documents)
• Capizzano 440 F3d 1317 - Fed Cir 2006.pdf (Documents)
• Shyface 165 F3d 1344 - Fed Cir 1999.pdf (Documents)
• ●The petitioner is entitled to compensation under the National Vaccine Injury Compensation Program.
• ○AND [1 of 2] : All procedural conditions are satisfied.
• ○AND [1 of 3] : All jurisdictional conditions are satisfied (e.g., 42 USC 300aa-12).
• ○AND [2 of 3] : The limitations requirements are satisfied (42 USC 300aa-16).
• ○AND [3 of 3] : All other procedural requirements are satisfied.
• ●AND [2 of 2] : All substantive conditions are satisfied.
• ○AND [1 of 5] : Heather Birdsell received a qualifying vaccination (i.e., the vaccination on December 20, 2001 with the hepatitis B vaccine) or qualified as having "contracted polio, directly or indirectly, from another person who received an oral polio vaccine" (42 USC 300aa-11(c)(1)(A) & (B)).
• ○AND [2 of 5] : Heather Birdsell actually "sustained, or had significantly aggravated," idiopathic thrombocytopenic purpura or ITP (see 42 USC 300aa-11(c)(1)(C)).
• ●AND [3 of 5] : The causation requirement is satisfied.
• ●OR [1 of 2] : TABLE INJURY: The "statutorily-prescribed presumption of causation" is satisfied (Althen, 418 F.3d at 1278).
• ●AND [1 of 2] : Heather Birdsell sustained a Table injury.
• ●OR [1 of 2] : The injury of Heather Birdsell constitute(s) an "illness, disability, injury or condition set forth in the Vaccine Injury Table in association with" the hepatitis B vaccine (42 USC 300aa-11(c)(1)(C)(i)).
• ●False
• ●OR [2 of 2] : Heather Birdsell "died from the administration of" the hepatitis B vaccine (42 USC 300aa-11(c)(1)(C)(i)).
• ●False
• ○AND [2 of 2] : The "first symptom or manifestation of the onset or of the significant aggravation" of idiopathic thrombocytopenic purpura or ITP "occurred within the time period after [the vaccination on December 20, 2001] set forth in the Vaccine Injury Table" (42 USC 300aa-11(c)(1)(C)(i)).
• ●OR [2 of 2] : OFF-TABLE INJURY: The "causation-in-fact" condition is satisfied (Althen, 418 F.3d at 1278, 1281).
• ●AND [1 of 2] : The injury of Heather Birdsell "was [or were] caused by" the hepatitis B vaccine received in the vaccination on December 20, 2001 (42 USC 300aa-11(c)(1)(C)(ii)).
• ●In the particular case, the hepatitis B vaccine was "not only a but-for cause" of idiopathic thrombocytopenic purpura or ITP, "but also a substantial factor in bringing about" idiopathic thrombocytopenic purpura or ITP (Shyface, 165 F.3d at 1352-53; Althen, 418 F.3d at 1278).
• ○AND [1 of 3] : (1) A "medical theory causally connect[s]" the vaccination on December 20, 2001 and idiopathic thrombocytopenic purpura or ITP (Althen, 418 F.3d at 1278) -- that is, the hepatitis B vaccine "can cause" idiopathic thrombocytopenic purpura or ITP (Capizzano, 440 F.3d at 1326).
• ●AND [2 of 3] : (2) A "logical sequence of cause and effect" shows that the vaccination on December 20, 2001 "was the reason for" idiopathic thrombocytopenic purpura or ITP (Althen, 418 F.3d at 1278).
• ●The "hepatitis B vaccine is the most plausible cause of Heather's ITP." [C: p.7-8; S: Dr. Richard I. Schiff, a clinical immunologist who testified for petitioner; B: Heather's history and medical literature]
• ●REBUT [1 of 1] : "Heather's preceding cold, rather than the vaccination in December 2001, was the cause of her ITP." [C: p. 19; S: special master]
• ●EVIDENCE FACTORS
• ●FACTOR [1 of 1] : RULE FACTORS
• ●FACTOR [1 of 1] : "Medical records and medical opinion testimony are favored in vaccine cases, as treating physicians are likely to be in the best position to determine whether 'a logical sequence of cause and effect shows that'" the vaccination "was the reason for" idiopathic thrombocytopenic purpura or ITP (Capizzano, 440 F.3d at 1326).
• ●"Dr. Kwon, Heather's treating pediatric hematologist, evaluated whether her viral symptoms without fever in January (upper respiratory infection) was the cause of her ITP or the 'small possibility' of the vaccination in December 2001, and decided it was unusual for ITP to develop a month after vaccination." [C: p. 18]
• ●Very Plausible
• ●True
• ●Very Plausible
• ●MIN [1 of 2] : "Heather had a cold-type illness or viral symptoms in January [2002] before the onset of her ITP." [C: p.19; S: Special Master's finding]
• ●EVIDENCE FACTORS
• ●FACTOR [1 of 2] : "Mrs. Birdsell's histories to her daughter's doctors" supports this finding. [C: p. 19; S: special master]
• ●Very Plausible
• ●FACTOR [2 of 2] : "Heather had had viral symptoms without fever in January." [C: p. 3, S: medical records of Dr. Kwon]
• ●Very Plausible
• ●Very Plausible
• ●MIN [2 of 2] : If Heather had a cold or viral infection in January 2002 before her onset of ITP, then it was more likely that the cold or viral infection caused the ITP than that the vaccination in December 2001 did. [C: pp. 19-20]
• ●"All three doctors [experts] are unanimous" in this opinion. [C: p. 19; S: special master]
• ●MIN [1 of 3] : Dr. James B. Nachman, a pediatric hematologist, testified that it was his opinion that "hepatitis B vaccine was not the cause of Heather's ITP" and that it was really caused by "Heather's viral illness" [C: pp. 11, 19-20]
• ●EVIDENCE FACTORS
• ●FACTOR [1 of 3] : "In 20-30% of ITP cases, a viral illness precedes the ITP" and "The medical records have multiple references to an ill-defined upper respiratory infection in Heather's case." [C: p.11, S: Dr. Nachman]
• ●Very Plausible
• ●FACTOR [2 of 3] : "[I]t was perfectly reasonable to assume that a runny nose (mentioned in Dr. Kwon's notes) signifies a viral illness." [C: p.12, S: Dr. Nachman]
• ●Very Plausible
• ●FACTOR [3 of 3] : ITP generally "occurs after a viral infection episode" [C: p.6, S: Ex.15, a case report entitled "Thrombocytopenic purpura after hepatitis B vaccine," by R. Maezono and A.M. de UlhA's Escobar]
• ●Very Plausible
• ●Very Plausible
• ●MIN [2 of 3] : Dr. Brian Ward, an infectious disease expert and internist, testified that "Heather's upper respiratory infection is more likely to be the cause of her ITP than the vaccine." [C: pp. 12, 19-20; B: Dr. Ward's statement that "An upper respiratory tract infection is a known association with ITP, whereas a vaccination is hypothetical and theoretical."]
• ●Very Plausible
• ●MIN [3 of 3] : Dr. Schiff, a clinical immunologist who testified for the petitioner, testified that "if he accepted that Heather had a cold in January 2002, he would pick the cold as the more proximal cause of her ITP rather than the hepatitis B vaccination she received in December 2001." [C: pp. 10, 19]
• ●Very Plausible
• ○AND [3 of 3] : (3) A "proximate temporal relationship" exists between the vaccination on December 20, 2001 and idiopathic thrombocytopenic purpura or ITP (Althen, 418 F.3d at 1278).
• ○AND [2 of 2] : The injury of Heather Birdsell is (or are) "off-Table" (42 USC 300aa-11(c)(1)(C)(ii)).
• ○OR [1 of 2] : The injury of Heather Birdsell constitute(s) an "illness, disability, injury or condition not set forth in the Vaccine Injury Table" (42 USC 300aa-11(c)(1)(C)(ii)(I)).
• ○OR [2 of 2] : The time period set forth in the Vaccine Injury Table is not satisfied (42 USC 300aa-11(c)(1)(C)(ii)).
• ○AND [1 of 2] : The injury of Heather Birdsell constitute(s) an "illness, disability, injury or condition set forth in the Vaccine Injury Table" (42 USC 300aa-11(c)(1)(C)(ii)(II)).
• ○AND [2 of 2] : The "first symptom or manifestation of the onset or significant aggravation" of the injury of Heather Birdsell "did not occur within the time period [after the vaccination on December 20, 2001] set forth in the [Vaccine Injury] Table" (42 USC 300aa-11(c)(1)(C)(ii)(II)).
• ○AND [4 of 5] : The extent-of-injury requirement is satisfied (42 USC 300aa-11(c)(1)(D)).
• ○OR [1 of 3] : Heather Birdsell "suffered the residual effects or complications of" the alleged injury "for more than 6 months after" the vaccination on December 20, 2001 (42 USC 300aa-11(c)(1)(D)(i)).
• ○OR [2 of 3] : Heather Birdsell died from the vaccination on December 20, 2001 (42 USC 300aa-11(c)(1)(D)(ii)).
• ○OR [3 of 3] : Heather Birdsell suffered the alleged injury from the hepatitis B vaccine "which resulted in inpatient hospitalization and surgical intervention" (42 USC 300aa-11(c)(1)(D)(iii)).
• ○AND [5 of 5] : Heather Birdsell "has not previously collected an award or settlement of a civil action for damages" for idiopathic thrombocytopenic purpura or ITP (42 USC 300aa-11(c)(1)(E)).
• ○UNLESS [1 of 1] : idiopathic thrombocytopenic purpura or ITP is (or are) "due to factors unrelated to" the vaccination on December 20, 2001 (namely, due to the named factor or factors) (42 USC 300aa-13(a)(1)(B)).