U.S. Court of Appeals, Federal Circuit
January 28, 1999
ROBERT BARNES AND JOYCE BARNES, LEGAL GUARDIANS FOR FOR REBECCA BARNES, PETITIONERS-APPELLANTS,
SECRETARY OF HEALTH AND HUMAN SERVICES, RESPONDENT-APPELLEE.
Before Mayer, Chief Judge, Archer, Senior Circuit Judge, and Clevenger, Circuit Judge.
The opinion of the court was delivered by: Archer, Senior Circuit Judge.
Robert and Joyce Barnes (Barnes) appeal from the judgment of the United States Court of Federal Claims, No. 90-2264V (November 14, 1997), which affirmed the special master's June 30, 1996 decision denying the Barnes' request for compensation on the basis that they failed to demonstrate by a preponderance of the evidence that Rebecca Barnes suffered an encephalopathy covered by the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 through -34(Vaccine Act). We affirm.
On October 1, 1990, the Barnes, as legal guardians of their daughter Rebecca, filed a petition in the Court of Federal Claims seeking compensation under the Vaccine Act alleging that their daughter suffered a progressive encephalopathy within seventy-two hours of receiving each of the three Diphtheria-Pertussis-Tetanus (DPT) vaccinations administered by Dr. Villaluz.
The special master conducted evidentiary hearings on May 19, 1995 and June 25, 1996, at which time she considered the testimony of Mrs. Barnes and her mother, Mrs. Hewitt, as well as the expert testimony of Dr. Inglese and Dr. Gale who testified on behalf of the Barnes and the Secretary, respectively. The special master found that the Barnes had failed to demonstrate by a preponderance of the evidence that Rebecca suffered from an encephalopathy as defined by the Vaccine Injury Table with onset within seventy-two hours of the administration of any of her three DPT vaccinations. The special master determined, inter alia, that there were factual discrepancies between Mrs. Barnes' testimony and the medical records of Dr. Hodder (a physician who had been consulted by the Barnes) concerning the onset date of the episodes Rebecca had experienced, and that Dr. Gale's testimony was more persuasive than that of Dr. Inglese.
On appeal to the Court of Federal Claims, the Barnes contended that the special master's denial of compensation was arbitrary and capricious because the special master erred in finding discrepancies between Mrs. Barnes' testimony and the medical records, erred in crediting Dr. Gale's testimony over that of Dr. Inglese, and erred by implicitly finding an alternative causation of cryptogenic infantile spasms.
Upon review, the court determined that because Mrs. Barnes recollection of the events did not appear in Dr. Hodder's records, and because her testimony was inconsistent with other medical records, the special master's finding as to Mrs. Barnes' testimony was accurate and that the special master had properly weighed the medical records against Mrs. Barnes' testimony.
As to the persuasiveness of the experts' testimony, the court found the special master properly acted within her discretion in crediting Dr. Gale's testimony as more persuasive than Dr. Inglese's. Although the Barnes contended that the special master failed to articulate a rational basis for her decision to credit the testimony of Dr. Gale, the court noted that the special master expressly discussed the strengths and weaknesses of the testimony prior to concluding she would accord more weight to the testimony of Dr. Gale.
Finally, the court found the Barnes' assertion of an implicit finding of an alternative causation unconvincing. The court noted that while the special master did make reference to Dr. Gale's opinion concerning infantile spasms in her decision, the bulk of the decision focused on other testimony and evidence. The court noted that the Barnes' presumption of an implicit finding was conjecture and declined to engage in such activity.
The court determined that the Barnes had failed to prove by a preponderance of the evidence that Rebecca suffered an encephalopathy within seventy-two hours of receiving any DPT vaccination. Accordingly, the court affirmed the decision of the special master. This appeal followed.
The Vaccine Act provides that the Court of Federal Claims may reverse the decision of a special master if that decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . . " See 42 U.S.C. § 300aa-12(e)(2)(B). We review de novo the court's determination as to whether the special master's decision was any of these. See Saunders v. Secretary of Health and Human Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994); Hellebrand v. Secretary of Health and Human Servs., 999 F.2d 1565, 1569 (Fed. Cir. 1993).
Pursuant to the Vaccine Act, a petitioner seeking entitlement to compensation for injuries sustained may pursue such compensation by one of two alternative means, a "table injury" (showing that the injury is listed on the Vaccine Injury Table and that the injury occurred within the time period required in the table), or actual causation (the injury occurred outside the prescribed time period, but petitioner proves actual causation by a preponderance of the evidence). See §§ 300aa- 11(c)(1)(C)(ii); 300aa-13(a)(1)(B); Knudsen v. Secretary of Health and Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994). The Barnes elected to proceed under the theory that Rebecca suffered from the table injury of encephalopathy after each of her three DPT vaccinations.
The Vaccine act defines encephalopathy as:
"any significant acquired abnormality of, or injury to, or impairment of function of the brain. Among the frequent manifestations of encephalopathy are focal and diffuse neurologic signs, increased intracranial pressure, or changes lasting at least 6 hours in level of consciousness . . . Signs and symptoms such as high pitched and unusual screaming, persistent unconsolable crying, and bulging fontanel are compatible with an encephalopathy, but in and of themselves are not conclusive evidence of encephalopathy." 42 U.S.C. § 300aa-14(b)(3)(A) (emphasis added).
The Act requires that the Barnes show that the encephalopathy occurred within three days, or seventy-two hours, of the date of the vaccination. See 42 U.S.C. §§ 300aa-14(a)(1)(B) and 14(b)(3)(A). Under this theory, causation is presumed, but the Barnes must satisfy the requirements of presumed causation by a preponderance of the evidence. See § 300aa-13(a)(1)(A); Hines v. Secretary of Health and Human Servs., 940 F.2d 1518, 1525 (Fed. Cir. 1991). It is this burden that the special master found the Barnes had not met.
The Barnes' first contention *fn1 is that the special master erred in crediting Dr. Hodder's medical report and the testimony of Dr. Villaluz over that of Mrs. Barnes. Special masters are afforded wide discretion with respect to the evidence they consider and the weight to be assigned to that evidence. Whitecotton v. Secretary of Health and Human Servs., 81 F.3d 1099, 1108 (Fed. Cir. 1996).
With respect to Dr. Hodder's medical report, the Barnes assert that Dr. Hodder's evaluation supports a finding of a table injury. The special master found, however, that Mrs. Barnes recollection of the onset of neurological symptoms did not comport with the onset dates recorded by Dr. Hodder, and was not consistent with other medical records.
With respect to Dr. Villaluz' testimony, the special master considered the testimony of both Dr. Villaluz and Mrs. Barnes, and noted that Dr. Villaluz did not recall being apprised of any of Rebecca's DPT reactions. See Barnes v. Secretary of Health and Human Servs., No. 90- 2264V, slip op. at 15 (Fed. Cl. June 30, 1997). Moreover, there is no indication in the record that Rebecca was seen by Dr. Villaluz for DPT reactions following any of her vaccinations. Finally, the record contains medical records which indicate that except for screaming and crying, Rebecca did not exhibit any neurological signs or symptoms until after the allowable statutory time period of seventy-two hours.
The Court of Federal Claims also noted that even if the special master had credited Mrs. Barnes' testimony over that of Drs. Villaluz and Hodder, that testimony would be insufficient to support a finding of a table injury. While Mrs. Barnes testified as to persistent and high- pitched crying and increased sleeping, these reactions are not "in and of themselves . . . conclusive evidence of encephalopathy." See 42 U.S.C. § 300aa-14(b)(3)(A). Mrs. Barnes further testified that Rebecca's behavior and reactions returned to normal following each immunization, and stated at each well-baby visit that Rebecca's development appeared to be normal. See Barnes, No. 90-2264V, slip op. at 4-6.
Based on this record, we must conclude that the special master did not act arbitrarily or capriciously or abuse her discretion in evaluating the evidence of record or the testimony of these witnesses.
The Barnes also assert that the special master erred in finding Dr. Gale, the government's expert witness, more persuasive than their expert, Dr. Inglese. So long as the special master considered the facts and circumstances surrounding the witnesses' testimony and opinions, the special master's rejection of the opinions of petitioners' expert is virtually unreviewable. See Bradley v. Secretary of Health and Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). A special master may reject an expert's testimony when it is reasonable to do so. A reasonable basis includes those circumstances in which a special master finds one expert to be more persuasive than another. See Burns v. Secretary of Health and Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). The special master discussed both Dr. Inglese's and Gale's opinions in her decision, and indicated that she did not find Dr. Inglese's opinion to be convincing evidence that Rebecca suffered an encephalopathy within the required seventy two hour time period. See Barnes No. 90-2264V, slip op. at 15. The special master also indicated that she considered the fact that Rebecca appeared to be normal after each vaccination (other than the crying and burping episodes) to be significant, a Conclusion which is directly supported by Dr. Gale's opinion that exhibiting normal behavior after the screaming episodes would preclude the presence of an encephalopathy. See id at 14-15. The special master properly exercised her discretion in finding Dr. Gale to be more persuasive than Dr. Inglese. Thus, we find no error on the part of the special master in rejecting Dr. Inglese's opinion.
For the reasons set forth above, we affirm.