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Barnes v. Secretary of Health and Human Services

January 28, 1999

ROBERT BARNES AND JOYCE BARNES, LEGAL GUARDIANS FOR FOR REBECCA BARNES, PETITIONERS-APPELLANTS,
v.
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.

DECISION

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.

BACKGROUND

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.

DISCUSSION

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. ...


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