(Filed December 1, 1998)
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CHARLES L. HENKEL, JR., and KATHRYN HENKEL, Parents and Next Friends of KRISTY M. HENKEL,
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|Vaccine Act, 42 U.S.C.A. §§ 300aa-11(c), 14(a)(I), 15(e)(1) (West Supp.
1998); burden of proof on motion for review challenging factual findings as arbitrary and
Edward L. Allen, Fredericksburg, VA, for petitioners.
Karen P. Hewitt, Washington, DC, with whom was Frank
W. Hunger, for respondent.
Petitioners have moved for review of the special master's decision denying compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.A.
§§ 300aa-1-- 300aa-34 (West 1991 & Supp. 1998) (the "Vaccine Act"). The
issue on review is whether the special master can rely on medical records that conflicted
with testimony by petitioners' parents and a witness for petitioners in finding that the
infant's first seizures following her second vaccination occurred more than three days
after the immunization. Argument is deemed unnecessary.
The special master found the following facts, which are not challenged. Kristy M.
Henkel was born May 7, 1980, to Charles and Kathryn Henkel ("petitioners"). The
first Diphtheria-Pertussis-Tetanus ("DPT") vaccination was given to Kristy at
the age of two months on July 10, 1980. Subsequently, Kristy was fussy and cried
frequently. She received her second vaccination at four months of age on September 9,
1980. Kristy thereafter exhibited symptoms including inconsolable screaming for long
periods of time and feeding problems. Furthermore, following the second administration of
the DPT vaccination, Kristy experienced a number of episodes in which she would arch,
straighten, and roll her eyes. Dr. William Kappes, Kristy's pediatrician, expressed some
concern that Kristy may be experiencing seizure activity. On October 7, 1980, Kristy had
an abnormal EEG, which showed epileptogenic discharges. At this time Mrs. Henkel also
indicated a history of colic, feeding problems, and irritability. On November 6, 1980, a
neurologist diagnosed Kristy with tuberous sclerosis ("TS").
Mrs. Henkel informed another neurologist that Kristy's seizures had begun at the age of
four months and that her neurological development was slow. Kristy's EEG was normal on
November 17, 1980, and her hypsarrhythmia appeared resolved. She was seen by several other
doctors during the next two years for various childhood-related problems. She had allergic
reactions to various medications, including rashes, itching, and swelling, and continued
to have crying spells. A medical record dated January 7, 1982, indicates that Kristy's
seizures had ceased, and her medication was stopped. No contemporaneous medical evidence
reflects that the seizures occurred during the applicable period table for injuries under
the Vaccine Act. Contending that the second vaccination aggravated Kristy's pre-existing
TS condition, petitioners filed a claim in this court on October 1, 1990.
Special Master Laura D. Millman held omnibus hearings on whether TS constituted a
"factor unrelated" in the causation chain to the seizures. See
42 U.S.C.A. § 300aa-14; Barnes v. Secretary of DHHS, 1997 WL
620115 (Fed. Cl. Spec. Mstr. Sept. 15, 1997), aff'd sub nom. Hanlon
v. Secretary of DHHS, 40 Fed. Cl. 625, 629-30 (1998) (concluding that
Government "successfully rebutted petitioners' presumption of significant aggravation
of TS from DPT vaccine," and that each case must be examined individually).
Thereafter, Special Master Millman held a hearing in this case to determine whether the
infant's seizures began after the Table time period of three days, 42 U.S.C.A. §
300aa-14(a)(I), concluding that petitioners had failed to prove onset within the required
time. Henkel v. Secretary of DHHS, No. 90-3314V, slip op. at 25
(Spec. Mstr. Aug. 31, 1998).
Petitioners charge that the decision denying compensation was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. Judicial review accords a
highly deferential standard to the special master's decision. See
42 U.S.C.A. § 300aa-12(e)(2)(B); see also Saunders
v. Secretary of DHHS, 25 F.3d 1031, 1033 (Fed. Cir. 1994) (discussing
standards of review applicable to different aspects of judgment); Phillips v.
Secretary of DHHS, 988 F.2d 111, 112 (Fed. Cir. 1993) (noting highly
deferential standard of review regarding factual issues). A reviewing court may not
substitute its own judgment for that of the special master. See e.g.,
Snyder v. Secretary of DHHS, 117 F.3d 545, 548 (Fed. Cir. 1997).
The special master is uniquely situated to judge the credibility of witnesses and her
"credibility determinations are 'virtually unreviewable . . . .'" Bradley
v. Secretary of DHHS, 991 F.2d 1570, 1575 (Fed. Cir. 1993) (quoting Hambsch
v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)); see
Phillips v. Secretary of DHHS, 988 F.2d 111, 112 (Fed. Cir. 1993).
1. Sufficiency of petitioners' arguments
Challenging the factual sufficiency of the special master's 26-page double-spaced
decision is petitioners' Memorandum of Objections consisting of one and one-half
double-spaced pages. Not unremarkably, petitioners' effort leaves much for the reviewing
court to discern, such as the specifics. Petitioners, in an opaque display of advocacy,
The lay testimony of those persons who cared for Kristy during this Table Time period
establishes at least by a preponderance of the evidence that seizure onset began within
the Table Time frame. The Special Master erroneously utilized affidavits endorsed by the
pediatrician years after the event to refute the contemporaneous medical records and
testimony at the hearing. See Transcript pp. 39-52.
The court is mindful that cases arising under the Vaccine Act involve wrenching issues
affecting parents of deceased infants and the lives and well-being of severely compromised
infants and children. These cases are not to be considered lightly. See Hodges
v. Secretary of DHHS, 9 F.3d 958, 961 (Fed. Cir. 1993) (stating that Congress
assigned special masters for "the unenviable job of sorting through these painful
cases"). Yet, although the Vaccine Act includes an extraordinary provision that
awards attorneys' fees both for trial and appeal(s), absent any showing that respondent's
conduct of the litigation is wanting, see 42 U.S.C.A. §
300aa-15(e)(1), nothing in the Vaccine Act displaces the proposition that a party must
make its case on review. The judge is not responsible for scouring the record for factual
mistakes or ferreting out facts that support a position that either side or the special
master has overlooked. The judge is an arbiter, not an advocate or an apologist, and
petitioners' advocacy in this case is severely wanting. As the United States Court of
Claims explained in a similar case involving record review:
The entire administrative record is before us, however, and the plaintiff has the
burden of establishing the fact that the record does not support the Board's finding. This
it has failed to do. It is not the court's function to supply this deficiency by an
independent excursion along the administrative trail.
Sundstrand Turbo v. United States, 182 Ct. Cl. 31, 60, 389 F.2d
406, 422-23 (1968) (citing cases); see also Hines v. Secretary of
DHHS, 940 F.2d 1518, 1527-28 (Fed. Cir. 1991) (discussing petitioner's burden
before the special master).
The Vaccine Act establishes a unique two-tiered review system whereby the Court of
Federal Claims initially reviews a special master's decision when challenged on the basis
of its factual determination under the arbitrary or capricious standard, whereupon either
party can elect to have the Federal Circuit review the Court of Federal Claims' decision
to ascertain if the latter was arbitrary or capricious in reviewing the special master's
decision for arbitrariness or capriciousness. A legal challenge is reviewed de novo. See
Munn v. Secretary of DHHS, 970 F.2d 863, 868-73 (Fed. Cir. 1992)
(setting forth standards of review -- factual findings under arbitrary and capricious
standard; legal questions under de novo standard); see also
Whitecotton v. Secretary of DHHS, 81 F.3d 1099, 1104 (Fed. Cir.
1996) (stating that appeals court directly reviews special master's findings of fact under
arbitrary and capricious standard). But see Synder,
117 F.3d at 548 (indicating that review of factual determinations under arbitrary and
capricious standard is de novo); Saunders, 25 F.3d at 1033 (same).
Irrespective of the standard under which the Federal Circuit reviews decisions of the
Court of Federal Claims, the Court of Federal Claims' review differs from that of the
Federal Circuit in one respect: The Vaccine Act provides that the Court of Federal Claims
can set aside findings of fact that are found to be arbitrary or capricious and issue its
own findings. 42 U.S.C.A. § 300aa-12(e)(2)(B). That the Court of Federal Claims can find
facts on its own nonetheless does not displace the antecedent requirement that the court
find those of the special master to be arbitrary or capricious. The Federal Circuit stated
[T]he judge may set aside some or all of the findings of fact and conclusions of law of
the special master, and issue different findings of fact and conclusions of law. To do
this, however, requires that the judge first find that the disapproved findings and
conclusions were arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law . . . .
970 F.2d at 869. Because petitioners fail to identify the specific findings challenged
as arbitrary or capricious, as well as the basis of their challenge, the authority of the
Court of Federal Claims to make its own findings does not come into play.
2. Contemporaneous medical records
Petitioners do not inform the judge of what "contemporaneous medical records"
the special master purported to refute in relying on the ones she cited and discussed in
detail in the body of her decision. This is important because the Vaccine Act and the case
law impress medical records with being the most reliable evidence. See
42 U.S.C.A. §§ 300aa-11(c)(1)(C)(i), 300aa-13(a)(1); Bradley,
991 F.2d at 1574 (discussing significance of medical evidence as a means of substantiating
testimony). Indeed, the Federal Circuit has ruled that the special master can credit
contemporaneous medical records over conflicting witness testimony, which is exactly what
the special master did in this case. See Cucuras v.
Secretary of DHHS, 993 F.2d 1525, 1528 (Fed. Cir. 1993) (noting "that
oral testimony in conflict with contemporaneous documentary evidence deserves little
weight"); see also Whitecotton,
81 F.3d at 1107-08 (discussing scope of inquiry and special master's discretion with
regard to evidence).
The special master cites the contemporaneous medical records upon which she relied:
The court particularly refers to the records of Dr. Kappes on September 12, 1980, Dr.
Leggett on October 3, 1980, Drs. Hunter and Leggett on October 10, 1980 at Waynesboro
Community Hospital, and Dr. Wilson on November 7, 1980 at the University of Virginia
Henkel, slip op. at 21 n.13.
None of these records supports petitioners' contention that Kristy suffered seizures
within the required time frame. See 42 U.S.C.A. § 300aa-14(a)(I).
In fact, the medical records cited by the special master support her finding in full. It
is true that the special master made credibility determinations in favor of respondent's
evidence over the testimony offered by both petitioners and their witness. The Federal
Circuit countenances such a result, especially when, as here, the special master set forth
her analysis and reasoning in support of her determination. See Henkel,
slip op. at 21-26. Although the special master erred to the extent that she made
credibility determinations in favor of an affiant, Dr. John Leggett, who obviously did not
testify in person, this error does not render arbitrary or capricious the special master's
finding that the contemporaneous medical records are more reliable than the witnesses who
testified at the hearing.
3. Finding that TS caused seizures
The special master wrote:
It is clear that, even if Kristy's onset of seizures were within Table time of either
of her DPT vaccinations, the opinion of her own pediatric neurologist, Dr. Dreifuss, would
not enable petitioners to prevail. Yet, we need not reach that point because the court
holds that the predominance of credible evidence indicates that Kristy's seizures began
after Table time from her second DPT.
Henkel, slip op. at 25.
From this paragraph petitioners launch an objection that the special master found that "tuberculosis," Pets' Mem. at 1, caused Kristy's seizures. As respondent rejoins, the special master made no such finding. Because petitioners failed to prove the temporal requirement to warrant the Vaccine Act's presumption of causation, no finding on alternate causation was required. See Bradley, 991 F.2d at 1574.
Petitioners can be assured that the court has reviewed the record. However, the court
would be remiss in addressing arguments that petitioners do not make and evidence to which
they do not cite.
Accordingly, based on the foregoing, petitioners' Motion for Review is denied. The
Clerk of the Court shall enter judgment dismissing the petition consistent with the
Special Master's decision.
No costs on review.
Christine Odell Cook Miller