FILED: October 15, 1998
|* * * * * * * * * * * * * * * * * * * * *
JOHN HOAG and PATRICIA HOAG
as Legal Representatives
of their daughter Cassandra Hoag,
SECRETARY OF HEALTH
AND HUMAN SERVICES,
* * * * * * * * * * * * * * * * * * * * *
|National Vaccine Injury Compensation Act, 42 U.S.C. §§ 300aa-1 to 300aa-34; Vaccine Table Injury, 42 U.S.C. §300aa-14; Significant Aggravation of an Injury.|
JOHN K. MCPHERSON, Gainesville, Florida, attorney of record for
ELIZABETH F. KROOP, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., with whom were GERARD W. FISHER,
Assistant Director, JOHN LODGE EULER, Deputy Director, HELENE
M. GOLDBERG, Director, and FRANK W. HUNGER, Assistant
Attorney General, attorneys of record for the defendant.
O R D E R
The petitioners John Hoag and Patricia Hoag, acting on behalf of their daughter
Cassandra Hoag, filed a petition under the National Vaccine Injury Compensation Act, 42
U.S.C. §§ 300aa-1 to 300aa-34 (1994) (Vaccine Act),(1)
seeking on-table(2) compensation for injuries allegedly
sustained by Cassandra Hoag. Petitioners allege alternatively that Cassandra suffered an
encephalopathy(3) after her diphtheria-pertussis-tetanus
(DPT) vaccination on February 7, 1991, or after her diphtheria-tetanus (DT) vaccination on
March 20, 1991. Petitioners also allege alternatively that the February 7 and March 20
vaccinations in combination in fact caused Cassandra's injuries. Furthermore, in the
alternative petitioners allege that the March 20, 1991, DT vaccination significantly
aggravated Cassandra's encephalopathy which manifested after the earlier DPT vaccination.
The Chief Special Master for the United States Court of Federal Claims denied each of the
claims. Hoag v. Sec'y DHHS, No. 94-67V, slip op. at 6, 20 (Fed. Cl. April 22,
1998). The Chief Special Master's decision was first issued as an unpublished opinion, but
it was reissued for publication and can be found at Hoag v. Sec'y DHHS, No. 94-67V,
1998 WL 408783 (Fed. Cl. April 22, 1998).
Petitioners then filed a motion for review with this court pursuant to Appendix J,
paragraph 26 of the Rules of the United States Court of Federal Claims (RCFC) limited
solely to one issue concerning the significant aggravation allegation. Specifically,
petitioners allege that the Chief Special Master failed to act in accordance with the law
on significant aggravation as set forth in the Vaccine Act and enunciated in Whitecotton
v. Sec'y DHHS, 81 F.3d 1099 (Fed. Cir. 1996). The parties both agree that the Chief
Special Master adopted the applicable four-part test in Whitecotton, but
petitioners allege that the Chief Special Master improperly applied step four of that test
(determining whether the first symptom or manifestation of the significant aggravation
occurred within the three-day time period prescribed in the Vaccine Table). Petitioners
allege that the Chief Special Master improperly framed the petitioners' burden as
"[t]he dispute thus settles on the question of when the diagnosis of the infantile
spasm syndrome can be made." Hoag v. Sec'y DHHS, No. 94-67V, slip op. at 15.
Petitioners seek review of their allegation that the March 7, 1991, DT vaccination
significantly aggravated Cassandra's preexisting encephalopathy. The petitioners allege
that the Chief Special Master incorrectly applied the law regarding the burden placed on
them by the Vaccine Act and required them "to show that what happened within three
days of the March 20 DT was diagnostic of infantile spasms." The petitioners
The burden placed on the petitioners by the Special Master, i.e. to show "when the
diagnosis of the infantile spasms can be made," is unfair, unreasonable and unlawful.
For a disease such as infantile spasms, the point at which the disease is diagnosed and
treatments begun will vary depending on the judgment of the treating physician.
Respondent's expert, Dr. John MacDonald, agreed that after the March 22 spasms and the
March 25 EEG there could have been a "heated debate" among qualified physicians
as to whether treatment of Cassandra for infantile spasms should commence.
The petitioners argue that the standard set out in the Vaccine Injury Table, 42 U.S.C.
§ 300aa-14(a), states that "the first symptom or manifestation of a significant
aggravation" of an encephalopathy must occur within three days, yet the Chief Special
Master predicated his decision to dismiss the case on the theory that Cassandra could not
be diagnosed with such injuries within three days. The petitioners argue that
"[n]owhere is there any suggestion that showing the first symptom or manifestation of
a significant aggravation means showing that point in time when the significant
aggravation 'can be diagnosed.'" Rather, petitioners suggest that they were required
to show that the first symptoms of significant aggravation were present within the time
period mandated by the statute regardless of whether the symptoms could be diagnosed.
After careful consideration of the record, the filings submitted by both parties, and
the relevant law, the court finds that the Chief Special Master acted in accordance with
the law. Thus, the court upholds the judgment of the Chief Special Master denying
compensation under the Vaccine Act for the petitioners.
Cassandra Hoag was born on November 2, 1990 and progressed normally for the first two
months. On February 7, 1991, Cassandra received her first DPT vaccination. On February 17,
1991, John and Patricia Hoag, Cassandra's parents, brought Cassandra to the University of
Florida's Shands Hospital where Cassandra was diagnosed with "[a]pnea, most likely
due to seizure activity." Although an electroencephalogram (EEG) indicated that
Cassandra had normal brain activity, the treating physicians administered an anti-seizure
medication, phenobarbital, because they suspected seizure activity. These seizures
continued over the next month and were characterized by apnea,(4)
cyanosis,(5) arching of the back, stiffness, and jerking.
On March 20, 1991, Cassandra received her DT vaccination. Thereafter, on March 22,
1991, Cassandra had three seizures characterized by "very shallow breathing, staring,
stiffening and arching of her trunk and flexion of one or both arms." A subsequent
EEG performed on March 25, 1991, was "highly suggestive of the development of
infantile spasms (West syndrome)." However, a further Video/EEG commencing on March
27, 1991, and ending on March 30, 1991, indicated that "[a]lthough the clinical
history was consistent with infantile spasms, this continuous Video/EEG monitor
demonstrates unequivocally that the infant's seizures are right temporal lobe in origin
and clinically probably are complex partial in nature." Dr. Gilmore, one treating
physician, saw Cassandra on March 25, 1991, and stated that the child was not
encephalopathic. Based on the test results, the treating physicians diagnosed Cassandra as
having partial complex seizure disorder, and placed her on Tegretol, an anti-seizure
medicine for treatment of that disorder.
On April 14, 1991, Cassandra was reported as suffering from seizures characterized by
"listless[ness], no smiling . . . . [F]lexion of arms [and] legs, flexion of head,
churning [of] mouth . . . ." The government's expert, Dr. John MacDonald, testified
that these symptoms were typical of partial complex seizures. However, on May 10, 1991,
the treating physicians noted that "[t]he patient's character of seizures has changed
recently. She is not only having an increased frequency of events but she is now having
bilateral movement of both upper extremities and legs resembling jackknife spasms."
At this point the doctors concluded that Cassandra suffered from infantile spasm syndrome.(6)
On January 12, 1995, the petitioners filed their petition with the United States Court
of Federal Claims under the Vaccine Act seeking on-table compensation for injuries
allegedly sustained by Cassandra Hoag after she received her DPT vaccination on February
7, 1991, and her DT vaccination on March 20, 1991. On April 22, 1998, the Chief Special
Master denied the petitioners' claim on all counts because he ascertained that petitioners
did not meet the statutory criteria for recovering an on-table injury pursuant to 42
U.S.C. § 300aa-14(a). The Chief Special Master ruled that, "petitioners have failed
to prove by a preponderance of the evidence that the vaccines either presumptively or in
fact caused or significantly aggravated a Table injury. Therefore, they are not entitled
to an award under the Program. The petition is therefore dismissed."
The Chief Special Master denied the petitioners' allegation that Cassandra suffered an
encephalopathy in temporal association with her February 7, 1991, immunization on the
basis that petitioners' factual allegations contradicted the established medical record.
Petitioners claimed that, although "Cassandra was a happy child with normal
developmental progress," she "began crying inconsolably within one hour of
receiving the DPT vaccine." Mrs. Hoag expanded on her description of Cassandra's
condition in a hearing on November 29, 1995. Mrs. Hoag stated that Cassandra did not sleep
from the time of the DPT vaccination on February 7, 1991, until February 12, 1991. Mrs.
Hoag said further that Cassandra remained unresponsive and pale for the next five days.
The petitioners alleged that Cassandra "looked worse [on February 17], because she
was more pale, and the color around her mouth turned to a blue-green, under her nose and
around her mouth, and it was like a ring." Later that same day, Cassandra stopped
breathing and was rushed to the hospital. The doctors there diagnosed her as having apnea
seizures and they placed her on phenobarbital, an anti-seizure medication.
The Chief Special Master noted, however, that the "medical records tell a very
different story" than the one recounted by the petitioners. He found that the medical
records contained numerous references to Cassandra as being "well" during the
time at issue after the February 7, 1991, DPT vaccination. He pointed to medical records
indicating Cassandra was alert, playful, and cooing with normal neurology after the
February 7, 1991, vaccination. Furthermore, the medical records stated that the February
17, 1991, seizure had an "abrupt onset, no precipitous episode." It was
"illogical" and "unbelievable" that despite the numerous references to
discussions with the family regarding Cassandra's apnea spells, there was no mention of
the distressed condition that the petitioners described immediately following the DPT
immunization. The Chief Special Master ruled further that the doctors who testified on
behalf of the petitioners had "no factual foundation for their opinions" because
the opinions were predicated solely upon the petitioners' affidavits and testimony, which
the court found to be "unreliable and not credible."
The Chief Special Master also denied the petitioners' alternative allegation that the
February 7, 1991, DPT vaccination in fact caused Cassandra's injuries. He stated that:
However, the experts' opinions on this issue, as limited as they were, fail for the
same reason that the opinions on the Table case failed, that is the lack of a factual
predicate. The experts relied upon the family's testimony, which the court rejected as
unreliable. In addition, Dr. Sleasman testified that there is no direct causal link. Dr.
Gilmore stated that the child was developmentally normal as of March 25, and Dr. Duchowney
said there was no history of reaction. Lastly, Dr. Schulein testified that there was no
encephalopathy following either the DPT or the DT. Clearly, petitioners failed to mount
any persuasive case of causation in fact.
Hoag v. Sec'y DHHS, No. 94-67V, slip op. at 6 n.5 (citations omitted).
Finally, the Chief Special Master also denied Petitioners' claim that the March 20,
1991, DT vaccination significantly aggravated a preexisting encephalopathy because he
found the petitioners failed to show that the significant aggravation occurred within the
statutory time period.(7) The Chief Special Master stated
that "the infantile spasms, and thus the first symptom or manifestation of the
worsening of Cassandra's condition, could not be determined more probably than not until
the occurrence of the classical infantile spasm seizure that occurred in May 1991."
Both parties introduced experts to testify specifically on the significant aggravation
issue. The Chief Special Master determined that the petitioners' expert, Dr. Marcel
Kinsbourne, premised his testimony on symptoms which "did not carry the medical
significance Dr. Kinsbourne gave them" and although the individual symptoms were
consistent with infantile spasms seizures or the syndrome, they "were not
diagnostic." In contrast, the Chief Special Master found that the testimony of the
respondent's expert, Dr. MacDonald, "was backed by his far more impressive clinical
experience, medical literature, and the actual treatment of Cassandra." The Chief
Special Master also noted that Dr. MacDonald persuasively demonstrated Dr. Kinsbourne's
clinical evidence to be "insufficient or inconclusive to support the signaling, at
that time, [of] the manifestation of infantile spasm seizures or the infantile spasms
When deciding a motion to review a special master's decision, the judges of the United
States Court of Federal Claims shall:
(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master's decision,
(B) set aside any findings of fact or conclusions of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the
42 U.S.C. § 300aa-12(e)(2). The legislative history of the Vaccine Act states that
"[t]he conferees have provided for a limited standard for appeal from the [special]
master's decision and do not intend that this procedure be used frequently but rather in
those cases in which a truly arbitrary decision has been made. H.R. Conf. Rep. No. 386,
101st Cong., 1st Sess. 512-13, 517, reprinted in 1989 U.S.C.C.A.N. 1906, 3115,
Although this court's review of decisions issued by a special master should be
conducted within the bounds described above, 42 U.S.C. § 300aa-12(e)(2) dictates
that the judges of this court should utilize differing and distinguishable standards of
review, depending upon which aspect of the case is under scrutiny. As stated by the United
States Court of Appeals for the Federal Circuit:
These standards vary in application as well as degree of deference. Each standard
applies to a different aspect of the judgment. Fact findings are reviewed by us, as by the
Claims Court judge, under the arbitrary and capricious standard; legal questions under the
"not in accordance with law" standard; and discretionary rulings under the abuse
of discretion standard.
Saunders v. Sec'y DHHS, 25 F.3d 1031, 1033 (Fed. Cir. 1994) (quoting Munn v.
Sec'y DHHS, 970 F.2d 863, 870 n.10 (Fed. Cir. 1992)). See also Grice
v. Sec'y DHHS, 36 Fed. Cl. 114, 117 (1996); Rooks v. Sec'y DHHS, 35 Fed. Cl. 1,
4 (1996); Cox v. Sec'y DHHS, 30 Fed. Cl. 136, 142 (1993); Perreira v. Sec'y DHHS,
27 Fed. Cl. 29, 32 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994). The abuse of
discretion standard will rarely come into play except where the special master excludes
evidence. Munn, 970 F.2d at 870 n.10.
The arbitrary and capricious standard of review is a narrow one. Carraggio v. Sec'y
DHHS, 38 Fed. Cl. 211, 217 (1997); Johnston v. Sec'y DHHS, 22 Cl. Ct. 75, 76
(1990); see Cucuras v. Sec'y DHHS, 993 F.2d 1525, 1527 (Fed. Cir. 1993); Bradley
v. Sec'y DHHS, 991 F.2d 1570, 1574 (Fed. Cir. 1993); Estate of Arrowood v. Sec'y
DHHS, 28 Fed. Cl. 453, 457 (1993); Perreira v. Sec'y DHHS, 27 Fed. Cl. at
31-32; see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971). The United States Court of Appeals for the Federal Circuit has defined
this as a "highly deferential" standard of review. Burns v. Sec'y DHHS, 3
F.3d 415, 416 (Fed. Cir. 1993) (citing Hines v. Sec'y DHHS, 940 F.2d 1518, 1528
(Fed. Cir. 1991)). When applying the arbitrary and capricious standard, a reviewing court
is not empowered to substitute its own judgment for that of a previous trier of fact. Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 416. Instead, when determining
whether a decision was arbitrary and capricious, a court "must consider whether the
decision was based on a consideration of the relevant factors and whether there has been a
clear error of judgment." Id.; see Hines v. Sec'y DHHS, 940 F.2d
Furthermore, "[i]f the special master has considered the relevant evidence in the
record, drawn plausible inferences and articulated a rational basis for the decision,
reversible error will be extremely difficult to demonstrate." Burns v. Sec'y DHHS,
3 F.3d at 416; Hines v. Sec'y DHHS, 940 F.2d at 1528; see Lewis v. Sec'y
DHHS, 26 Cl. Ct. 233, 236 (1992); Murphy v. Sec'y DHHS, 23 Cl. Ct. 726, 729-30
(1991), aff'd, 968 F.2d 1226 (Fed. Cir. 1992), cert. denied, 506 U.S. 974
(1992). Thus, the decision of a special master may be found to be arbitrary and capricious
only if the special master:
relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence . . . or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.
Hines v. Sec'y DHHS, 940 F.2d at 1527 (quoting Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). This court should accord
deference to a special master's decision and the reviewing court "may not substitute
its own judgment for that of the special master if the special master has considered all
relevant factors, and has made no clear error of judgment." Lonergan v. Sec'y DHHS,
27 Fed. Cl. 579, 580 (1993) (citing Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. at 416; Hyundai Elecs. Indus. Co. v. United States Int'l Trade Comm'n, 899
F.2d 1204, 1209 (Fed. Cir. 1990); Gamalski v. Sec'y DHHS, 21 Cl. Ct. 450, 451-52
The "'not in accordance with law' standard" which applies to legal questions
warrants de novo review. Hossack v. Sec'y DHHS, 32 Fed. Cl. 769, 773 (1995)
(citing Neher v. Sec'y DHHS, 984 F.2d 1195, 1198 (Fed. Cir. 1993)); see also
Bradley v. Sec'y DHHS, 991 F.2d at 1574 n.3.
The Vaccine Act provides an alternative to the traditional tort system for individuals
who have suffered vaccine-related injuries. Whitecotton v. Secretary of Health and
Human Services, 81 F.3d 1099, 1102 (Fed. Cir. 1996). The Act permits recovery of
compensation for vaccine-related injuries under two distinct legal theories: (1) actual
causation and (2) presumed causation under the "Vaccine Injury Table" of 42
U.S.C. § 300aa-14(a). See id.
Under the first theory, a petitioner makes a prima facie case of entitlement to
compensation upon a showing by a preponderance of the evidence that a vaccine was the
cause of the injuries. See 42 U.S.C. §§ 300aa-13(a)(1)(A), 300aa-11(c)(1). For
the second theory, Congress published the Vaccine Injury Table listing the various
injuries associated with different vaccine types and providing associated time periods. Whitecotton
v. Sec'y DHHS, 81 F.3d at 1102; 42 U.S.C. § 300aa-14. Under the second theory, a
petitioner must show that the first "symptom or manifestation" of a table injury
occurred within the table's delineated time period following the vaccination. Whitecotton
v. Sec'y DHHS, 81 F.3d at 1102. Upon such a showing, causation is presumed and the
petitioner is considered to have made out a prima facie case of entitlement to
compensation. Id. Under both the first and second theories, the petitioner's
establishment of a prima facie case means that the government must compensate unless it
can show by a preponderance of the evidence that a "factor unrelated" to the
vaccine was the actual cause of the petitioner's injuries. Id.; 42 U.S.C. §
Under the second theory, the Vaccine Act also permits recovery if an individual suffers
a significant aggravation of a pre-existing table injury. 42 U.S.C. §§
300aa-11(c)(1)(C)(i), 300aa-14(a); Whitecotton v. Sec'y DHHS, 81 F.3d at 1102.
Congress provided for such cases
in order not to exclude serious cases of illness because of possible minor events in
the person's past medical history. This provision does not include compensation for
conditions which might legitimately be described as pre-existing (e.g., a child with
monthly seizures who, after vaccination, has seizures every three and a half weeks), but
is meant to encompass serious deterioration (e.g., a child with monthly seizures who,
after vaccination, has seizures on a daily basis).
Id. (quoting H.R. Rep. No. 99-908, at 1, reprinted in 1986 U.S.C.C.A.N.
6287, 6356). A petitioner must show that the first symptom or manifestation of the
significant aggravation of a table injury occurred within the table time period following
the vaccination. 42 U.S.C. § 300aa-11(c)(1)(C)(i); Whitecotton v. Sec'y DHHS, 81
F.3d at 1103. The Vaccine Act states that "[t]he term 'significant aggravation' means
any change for the worse in a preexisting condition which results in markedly greater
disability, pain, or illness accompanied by substantial deterioration of health." 42
U.S.C. § 300aa-33(4). The government can rebut a prima facie case by using the
"factor unrelated" test of 42 U.S.C. § 300aa-13(a)(1)(B).
In the above captioned case, the parties are in agreement that Cassandra Hoag presents
as a patient suffering from an encephalopathy. Moreover, based on the petitioners' motion
for review and the respondent's memorandum in response, the only issue which the court is
asked to address is whether or not "the first symptom or manifestation . . . of the
significant aggravation" was evident within 72 hours of the March 20, 1991, DT
immunization. Petitioners' motion for review contends that the Chief Special Master failed
to act in accordance with the law when he made his findings regarding the proof
requirements for "significant aggravation" in the Vaccine Act. In particular,
petitioners argue that the Chief Special Master improperly framed the burden of proof as
requiring a showing within 72 hours of "when the diagnosis of the infantile spasms
can be made," rather than "whether the first symptom or manifestation of the
significant aggravation occurred within three days of the March 20 DT vaccination."
In Whitecotton v. Secretary of Health and Human Services, 81 F.3d at 1105, the
United States Court of Appeals for the Federal Circuit acknowledged that "significant
aggravation" is one of the most difficult concepts in the Vaccine Act. The court in Whitecotton
the primary difficulty in adjudicating the significant aggravation claims of children
with a pre-existing condition, is that it is very difficult to know at the age when a
child is vaccinated what symptoms would have naturally manifested themselves as the child
matured and what symptoms might have remained latent absent the vaccination.
Id. Attempting to address this problem, the court in Whitecotton provided
a four-step framework for analyzing significant aggravation claims. See id.
at 1107.(8) A special master or court must (1) assess the
person's condition prior to administration of the vaccine, (2) assess the person's current
condition, (3) determine if the person's current condition constitutes a significant
aggravation of the prior condition within the meaning of the Vaccine Act, and (4)
determine if the first symptom or manifestation of the significant aggravation occurred
within the time period prescribed by the Vaccine Table. Id.
In the present case, the Chief Special Master properly utilized the Whitecotton
framework to analyze the petitioners' claim. With an injury of the type at issue, namely
an encephalopathy, the Vaccine Table requires petitioners to show, by a preponderance of
the evidence, that the first symptom or manifestation of the significant aggravation
occurred within 72 hours of the time of vaccine administration. See 42 U.S.C. §
A petitioner can qualify for compensation by meeting the requirements of 42 U.S.C.
300aa-13, which reads in relevant part as follows:
§ 300aa-13. Determination of eligibility and compensation
(a) General rule
(1) Compensation shall be awarded under the Program to a petitioner if the special master or court finds on the record as a whole
(A) that the petitioner has demonstrated by a preponderance of the evidence the matters required in the petition by section 300aa-11(c)(1) of this title, and
(B) that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition.
The special master or court may not make such a finding based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.
* * *
(b) Matters to be considered
(1) In determining whether to award compensation to a petitioner under the Program, the special master or court shall consider, in addition to all other relevant medical and scientific evidence contained in the record
(A) any diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained in the record regarding the nature, causation, and aggravation of the petitioner's illness, disability, injury, condition, or death, and
(B) the results of any diagnostic or evaluative test which are contained in the record and the summaries and conclusions.
Any such diagnosis, conclusion, judgment, test result, report, or summary shall not be
binding on the special master or court. In evaluating the weight to be afforded to any
such diagnosis, conclusion, judgment, test result, report, or summary, the special master
or court shall consider the entire record and the course of the injury, disability,
illness, or condition until the date of the judgment of the special master or court.
The scope of a special master's inquiry in applying the Whitecotton framework is
"virtually unlimited." Whitecotton v. Sec'y DHHS, 81 F.3d at 1108.
Congress intended for the special masters to have "very wide discretion with respect
to the evidence they would consider and the weight to be assigned that evidence." Id.
In the instant case, the Chief Special Master held two hearings to resolve the factual and
medical infantile spasm syndrome issues presented. After listening to the testimony and
gauging the credibility of the evidence presented at the first hearing, the Chief Special
Master concluded that he "did not find the factual witnesses credible, but instead
found the medical records to be complete and reliable." The Chief Special Master
indicated in his opinion that he found petitioners' allegations incredulous, doubted the
credibility of Ms. Hoag (the mother), and found that both Mr. Hoag (the father) and Jean
Hoag (the grandmother) could not remember relevant facts. In addition, the Chief Special
Master found that the testimony of the petitioners' experts, Drs. Legarda and Sleasman,
was premised on the affidavits and testimony of the family. Therefore, since the Chief
Special Master found the family-supplied information unreliable, he also found the expert
opinions were without a factually reliable foundation.
The Chief Special Master, however, did not end his inquiry. As described in the
opinion, "the court raised the possibility of whether Cassandra's seizure disorder,
which manifested ten days following the DPT immunization, or on February 17, 1991, was
significantly aggravated by the DT administered on March 20, 1991." Therefore, the
parties submitted a second round of expert opinions and another evidentiary hearing was
held. At the subsequent hearing, the Chief Special Master heard further, albeit
conflicting, testimony from the parties' expert witnesses.
Based on the medical history, the records, the tests performed and the opinions offered
by the experts, it is evident from the Chief Special Master's opinion that he concluded
that the March 22 seizure was not a significant aggravation of a condition Cassandra
suffered prior to the DT vaccination. Prior to the March 20, 1991, DT vaccination,
Cassandra Hoag exhibited signs of a seizure disorder which could not be definitively
characterized or diagnosed at that time. She was placed on medication. On March 22, 1991,
two days after her DT vaccination, Cassandra had seizures. These were characterized by
"arching, some breathing problems and a 'a little flexion.'" The treating
doctors became suspicious of possible infantile spasm syndrome.
The Chief Special Master found the testimony of Dr. MacDonald particularly important
when he noted that (1) the flexion movements, relied on by petitioners to show a change in
seizure types, could be seen in several kinds of seizures, and (2) the hypsarrhythmic EEG
pattern did not necessarily indicate infantile spasm syndrome. Additionally, the
plaintiff's expert conceded on cross-examination that medical records described arching
when Cassandra had seizures in February. The Chief Special Master noted in his decision
that Dr. MacDonald, respondent's expert, had concluded that "the course of
Cassandra's seizures fit[s] the typical evolutionary course of the infantile spasm
syndrome." Thus, the record before the Chief Special Master and the court here does
not support a finding that the March 22, 1991, seizure was the "first symptom or
manifestation" of a significant aggravation of Cassandra's preexisting condition.
Based on the record, and the credibility determinations of the Chief Special Master, the
March 22, 1991, event appears to have been a seizure consistent with the ailment and
seizures Cassandra had suffered prior to the DT vaccination, and which she continued to
The petitioners focus on the Chief Special Master's statement that "[t]he dispute
thus settles on the question of when the diagnosis of the infantile spasm syndrome can be
made." The petitioners interpreted this statement to suggest that the Chief Special
Master was requiring them to prove a diagnosis of the more serious ailment within the 72
hour period in order to show significant aggravation. Cassandra was not diagnosed with
infantile spasm syndrome until May of 1991 when she suffered the particular infantile
spasm seizures which both petitioners' and respondent's experts agree are the hallmark of
infantile spasm syndrome. The Chief Special Master, however, concluded that the overall
course of Cassandra's seizures fit the typical evolutionary course of the later-diagnosed
infantile spasm syndrome. The Chief Special Master relied heavily on Dr. MacDonald's
testimony and included excerpts from that testimony in the decision. In response to a
question of whether Cassandra's condition was aggravated at any time, Dr. MacDonald
I think she has a syndrome that is defined by these seizure patterns and retardation that, looking at where she is now, and where she started, this is where I would expect she would be. I can't logically say she's worse in any meaningful sense of the word, and that's what you would have to tell these parents early on, that even if the seizures get better, she's going to probably be mentally retarded and very delayed.
That's in the cards. That's part of the syndrome that's set. You're not going to change
that. So, I think, she's not worse; she's developing the pattern that would develop.
In his decision, the Chief Special Master also cited Dr. MacDonald's further response
when asked if the pattern of evolution seen in this case fits with infantile spasms. Dr.
MacDonald replied that this case is "classical for the syndrome." He stated
"[t]his case would fit with the vast majority of the children I've seen over the
years. It's very identical."
In the instant case, the opinions offered by the petitioners' and respondent's medical
experts were important to the formation of the Chief Special Master's final opinion which
rejected the petitioners' claim. The special master in a vaccine case is not simply the
arbiter of the experts' opinions; rather he or she is both the trier of fact and the
decider of law. See 42 U.S.C. § 300aa-12(d)(3)(A)(1). "Determining the weight
and credibility of the evidence is the special province of the trier of fact." Inwood
Lab., Inc. v. Ives Lab., Inc., 456 U.S. 844, 856 (1982); see Raspberry v.
Sec'y DHHS, 33 Fed. Cl. 420, 423 (1995). Thus, the Chief Special Master was free to
accept or reject portions of the expert medical opinions presented to him in light of the
entire record. See Munn v. Sec'y DHHS, 21 Cl. Ct. 345, 350 (1990), aff'd,
970 F.2d 863 (Fed. Cir. 1992); see also Mills v. Sec'y DHHS, 27 Fed. Cl.
573, 578 (1993). Moreover, the Chief Special Master was not obligated to accept the
entirety of an expert's interpretation of an individual's medical history. See, e.g.,
Munn v. Sec'y DHHS, 21 Cl.Ct. at 350.
It is important to remember that "[t]he fact-finder has broad discretion in
determining credibility because he saw the witnesses and heard the testimony." Bradley
v. Sec'y DHHS, 991 F.2d at 1575. It is well-established that witness credibility is
primarily within the purview of the trier of fact, and that a special master's
determinations of credibility should be given appropriate deference because he or she had
the opportunity to listen to the testimony, ask questions of the witnesses, and observe
their demeanor. Griessenauer v. Dep't of Energy, 754 F.2d 361, 364 (Fed. Cir.
1985); Richardson v. Sec'y DHHS, 23 Cl. Ct. 674, 678 (1991); see also Burns
v. Sec'y DHHS, 3 F.3d at 417; Snyder v. Sec'y DHHS, 36 Fed. Cl. at 465; Horner
v. Sec'y DHHS, 35 Fed. Cl. 23, 28 (1996). This court should not second-guess the
credibility determinations of the Chief Special Master unless they are proven to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. A
special master's determinations regarding credibility are "virtually
unreviewable." Bradley v. Sec'y DHHS, 991 F.2d at 1575 (citing Hambsch v.
Dep't of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)); Snyder v. Sec'y DHHS,
36 Fed. Cl. at 465; Walker v. Sec'y DHHS, 33 Fed. Cl. 97, 100 (1995). The court
should not substitute its judgment for the factual findings made by the special master
when he has considered all relevant factors, and has made no clear error of judgment. See
Citizens to Preserve Overton Park, 401 U.S. at 416.
Although the Chief Special Master devotes considerable space in his opinion to the
illness events, the diagnosis and the treatment options surrounding Cassandra's illness,
his decision that petitioners were not entitled to compensation does not depend on
"when" the diagnosis of infantile spasm syndrome could be made or whether it
could be made within 72 hours of the March 20, 1991, immunization. Although the voluminous
record (including the multiple hearings) and the decision, at times, are difficult to
penetrate, ultimately, based on the record, including the expert opinions offered, this
court believes the Chief Special Master reached a correct decision. The record supports a
finding that the March 22, 1991 seizure, after the March 20, 1991, DT immunization, would
not meet the statutory definition for a first symptom or manifestation of a significant
aggravation of Cassandra's illness.
Upon an extensive review of the record in the above-captioned case, including the
transcript, the documentary evidence, and the pleadings filed by the parties, combined
with the deference granted to a special master who undertakes a thorough and careful
adjudication of a case filed pursuant to the Vaccine Act, this court holds that the Chief
Special Master acted in accordance with the law, properly considered the relevant evidence
and did not make a clear error of judgment in the instant action. The record also is
absent any evidence that the Chief Special Master made any findings of fact or conclusions
of law that were "arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 42 U.S.C. § 300aa-12(e)(2)(B). Accordingly, the court affirms
the decision of the Chief Special Master denying compensation for the petitioners.
IT IS SO ORDERED.
MARIAN BLANK HORN
1. Tit. XXI, § 2112, as added Nov. 14, 1986, Pub. L. No. 99-660, tit. III, § 311(a), 100 Stat. 3761; Dec. 22, 1987, Pub. L. No. 100-203, tit. IV, §§ 4303(d)(2)(A), 4307(3), 101 Stat. 1330-222, 1330-224 and amended Dec. 22, 1987, Pub. L. No. 100-203, tit. IV, §§ 4303(d)(2)(A), 4307(3), 101 Stat. 1330-222, 1330-224, Pub. L. No. 100-203, tit. IV, §§ 4307(3)(c), 4308, as amended and added July 1, 1988, Pub. L. No. 100-360, tit. IV, § 411(o)(2), (3)(A), 102 Stat. 808; Dec. 19, 1989, Pub. L. No. 101-239, tit. VI, § 6601(d)-(i), 103 Stat. 2286-2290; Nov. 3, 1990, Pub. L. No. 101-502, § 5(b), 104 Stat. 1286; Nov. 26, 1991, Pub. L. 102-168, tit. II, § 201, 105 Stat. 1102; Oct. 27, 1992, Pub. L. 102-531, tit. III, § 314, 106 Stat. 3508; Oct. 29, 1992, Pub. L. 102-572, tit. IX, §§ 902(b)(1), 911, 106 Stat. 4516; June 10, 1993, Pub. L. 103-43, tit. XX, § 2012, 107 Stat. 312; Aug. 10, 1993, Pub. L. 103-66, tit. IV, § 13632, 107 Stat. 312; Dec. 14, 1993, Pub. L. 103-183, tit. VII, § 708.
2. The term "on-table" refers to an injury specifically listed on the Vaccine Injury Table in 42 U.S.C. § 300aa-14(a).
3. Encephalopathy is defined in 42 U.S.C. § 300aa-14(3)(A) as "any significant acquired abnormality of, or injury to, or impairment of function of the brain."
4. Apnea is a transient suspension of respiration. The American Heritage Dictionary 118 (2d ed. 1982).
5. Cyanosis is a bluish discoloration of the skin, resulting from inadequate oxygenation of the blood. The American Heritage Dictionary 359 (2d ed. 1982).
6. The distinction between infantile spasm syndrome and infantile
spasm seizures is set out in the decision by the Chief Special Master as follows:
The infantile spasms syndrome defines a condition which is made up of a particular type
of seizure - the infantile spasm seizure, coupled with psychomotor retardation or
deterioration, and the hypsarrhythmic EEG. J. Aicardi, Epilepsy in Children, p. 17
(1986). The infantile spasm seizure, one component of the syndrome, refers to a repetitive
flexion of the muscles in the neck[,] trunk and extremities that is generally bilateral
and symmetrical. Id; see also T2 at 20 (Dr. Kinsbourne describes the
classical infantile seizure as the "head jerks forward or back; the eyes roll up; the
arms flex; and the legs go up.") It is commonly referred to as a jackknife convulsion
or salaam seizures. Id. Other types of seizures commonly precede or accompany the
infantile spasm seizures; however, the hallmark of the infantile spasm syndrome is the
classical infantile spasm seizure. Id.
Hoag v. Sec'y DHHS, No. 94-67V, slip op. at 7 n.6.
7. The provisions of 42 U.S.C. § 300aa-14(a) state that the first symptom or manifestation of the significant aggravation of an encephalopathy must occur within three days after a DPT or DT vaccination in order for the petitioner to obtain a presumption of causation.
8. The court in Whitecotton specifically rejected an
analytical framework developed in Misasi v. Sec'y DHHS, 23 Cl. Ct. 322 (Fed. Cl.
1991). According to the Whitecotton court, Misasi required a court to
(1) assess the individual's condition prior to administration of the vaccine, i.e.,
evaluate the nature and extent of the individual's preexisting condition, (2) assess the
individual's current condition after administration of the vaccine, (3) predict the
individual's condition had the vaccine not been administered, and (4) compare the
individual's current condition with the predicted condition had the vaccine not been
administered. Only if the person's current condition is significantly worse than the
person's predicted condition had the vaccine not been administered, is the person entitled
to compensation . . . .
81 F.3d at 1104 (citing Misasi, 23 Cl. Ct. at 324). According to the court in Whitecotton, the Misasi framework improperly required petitioners to prove that the post-vaccination symptoms would not have occurred without the vaccination, rather than merely proving that the first symptom or manifestation of the aggravation took place within the table's delineated time period. Id. at 1106.