Rickett v. Secretary of Health & Human Services , 468 F. App'x 952 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT RICKETT,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
__________________________
2011-5038
__________________________
Appeal from the United States Court of Federal
Claims in case no.01-VV-128, Judge George W. Miller.
___________________________
Decided: November 18, 2011
___________________________
CLIFFORD J. SHOEMAKER, Shoemaker & Associates, of
Vienna, Virginia, argued for petitioner-appellant.
HEATHER L. PEARLMAN, Trial Attorney, Torts Branch,
Civil Division, United States Department of Justice, of
Washington, DC, argued for respondent-appellee. With
her on the brief were TONY WEST, Assistant Attorney
General, MARK W. ROGERS, Acting Director, VINCENT J.
RICKETT v. HHS 2
MATANOSKI, Acting Deputy Director, and GABRIELLE M.
FIELDING, Assistant Director.
__________________________
Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Robert Rickett appeals from a decision of the United
States Court of Federal Claims (“Court of Federal
Claims”), affirming the denial of his claim that the Hepa-
titis B vaccine caused his fibromyalgia (“FM”). We have
considered Mr. Rickett’s arguments and for the reasons
set forth below, we affirm the decision of the Court of
Federal Claims.
I
BACKGROUND
Mr. Rickett has a family history of FM and has suf-
fered various medical problems throughout his life. On
March 10, 1998, Mr. Rickett received the first of three
injections of the Hepatitis B vaccine. He alleges that
shortly thereafter, he developed persistent diarrhea. The
record is unclear as to when the diarrhea began and how
long it persisted. Mr. Rickett’s expert, Dr. Joseph Bel-
lanti, testified that the diarrhea may have been the result
of irritable bowel syndrome (“IBS”), which is associated
with FM. Mr. Rickett was never diagnosed with IBS. Nor
did he seek medical attention for the diarrhea. Indeed, he
does not appear to have reported it to a physician until
March 9, 1999, when he told a physician that he “devel-
oped diarrhea over the summer” of 1998. A339.
Mr. Rickett received his second injection of the Hepa-
titis B vaccine on April 8, 1998. He testified that within a
week of this vaccination, he could not lift his left arm 90
degrees and had arm and shoulder pain. However, a
3 RICKETT v. HHS
medical record dated April 24, 1998, indicates that Mr.
Rickett’s right arm and shoulder pain had begun two to
three weeks earlier, and his left side pain had begun on
April 23, 1998. The record further indicates that Mr.
Rickett had a “full range of motion” and no point tender-
ness in either shoulder. A206. On the basis of this medi-
cal record, the Special Master concluded that Mr.
Rickett’s right side pain began on or about April 3 to April
10, 1998, several days of which preceded his April 8
vaccination.
Mr. Rickett alleges that his pain continued until his
third and final injection of the Hepatitis B vaccine on
September 22, 1998, and that shortly thereafter he ex-
perienced, among other things, pain and headaches.
According to a medical record dated September 24, 1998,
Mr. Rickett sought medical attention for anxiety and
somatic complaints.
On October 28, 1998, Mr. Rickett saw Dr. Steven
Keifer, who performed a follow-up evaluation related to
back surgery that Mr. Rickett had undergone. During
that visit, Mr. Rickett reported developing cramping and
burning in his right thigh and calf “two months ago” and
burning neck pain with some extension into the in-
trascapular region and shoulders one month earlier.
A173. Dr. Kiefer suspected that Mr. Rickett had probable
degenerative cervical spine disease and degenerative
lumbar disc disease, status post lumbar discectomy. He
did not link Mr. Rickett’s Hepatitis B vaccination to his
condition.
On March 9, 1999, Mr. Rickett visited Dr. Paul Gold-
farb. A medical record from the visit indicates that Mr.
Rickett reported developing right arm pain in the spring
of 1998 and diarrhea that summer. Mr. Rickett com-
plained of widespread chronic pain, diarrhea, sleep prob-
RICKETT v. HHS 4
lems, and headaches. According to the medical record, he
explained that he had seen on television that the Hepati-
tis B vaccine had been linked to problems and that “[h]e
had just finished his course [with the vaccine] when he
developed aching all over.” A340. However, Mr. Rickett
later testified that he did not recall telling Dr. Goldfarb
about the television show. Although Dr. Goldfarb sus-
pected that Mr. Rickett had FM, he tried to reassure Mr.
Rickett that he did not believe the FM and vaccine were
related.
From March 1999 to the present, Mr. Rickett has seen
various physicians for numerous medical conditions.
Although no treating physician has stated that his Hepa-
titis B vaccine caused his FM and at least two have
doubted such a connection, since March 1999 Mr. Rickett
has consistently claimed that the vaccine caused his FM.
II
On March 8, 2001, Mr. Rickett filed a petition, alleg-
ing that his vaccination had caused his FM. 1 Special
Master John Edwards conducted a hearing on February
21, 2008, at which Mr. Rickett and the parties’ respective
experts testified. On August 1, 2008, the case was reas-
signed to Chief Special Master Gary Golkiewicz, who
conducted a hearing on December 12, 2008, at which only
Mr. Rickett testified.
On May 26, 2010, the Chief Special Master denied Mr.
Rickett’s claim because Mr. Rickett failed to demonstrate
the three prongs of causation-in-fact as articulated in
Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274,
1 Mr. Rickett filed amended petitions on July 2,
2004, and December 13, 2006.
5 RICKETT v. HHS
1278 (Fed. Cir. 2005). The Chief Special Master ex-
plained:
Neither petitioner’s vague and occasionally
ephemeral medical theories, nor his expert’s un-
substantiated conclusion of challenge-rechallenge
satisfy the Althen prongs. Specifically, peti-
tioner’s case is almost entirely lacking in evidence
regarding an appropriate temporal relationship
necessary to satisfy the third prong of Althen.
A91.
The Chief Special Master found that the factual re-
cord did not support Dr. Bellanti’s challenge-rechallenge
model in part because Dr. Bellanti’s expert opinion relied
upon Mr. Rickett’s testimony as to the timing of the onset
of his symptoms, testimony that was inconsistent with the
medical records. The Chief Special Master further ex-
plained, “Dr. Bellanti’s unsupported, often fluctuating
testimony undercuts the persuasiveness of his opinion.
His testimony was punctuated by broad, strong state-
ments, which he later qualifies or withdraws completely,
related to the vaccine causing petitioner’s FM.” A94.
First, Dr. Bellanti appears to have opined that the di-
arrhea following the first vaccination was the initial
challenge event, but later he stated that the diarrhea
being a challenge event was “more speculative than real.”
A1004. Dr. Bellanti then posited that the right side pain
following the second vaccination was the challenge event,
but when it was pointed out that a medical record indi-
cated that the right side pain could have begun prior to
the second vaccination, Dr. Bellanti offered no explana-
tion; instead, he asserted that the left side pain that had
begun on or about April 23, 1998 was the challenge event.
Dr. Bellanti’s supplemental expert report did not “further
address the possibility of the right-sided pain beginning
RICKETT v. HHS 6
before the vaccine was administered” or “discuss the
reliance on the left-sided pain that he pointed to in testi-
mony.” A99. The report simply states that if Mr. Rickett’s
right side pain preceded the second vaccination, then Dr.
Bellanti “cannot offer a causal opinion.” A905.
The Chief Special Master further observed:
During testimony, Dr. Bellanti also discussed a
truncated latent period . . . and “heightened re-
sponse to a vaccine on a second encounter” . . .
[the] truncated latent period was never discussed
regarding petitioner’s medical history and the
heightened response was only discussed as a con-
clusory statement by petitioner’s expert. The un-
dersigned does note that Dr. Bellanti never
defined limits to the time frame in which the reac-
tions would or should occur. . . .
***
Dr. Bellanti offered no justification or reasoning
for the time between petitioner’s second Hep B
vaccine and the left or right arm and shoulder
pains. He likewise failed to offer evidence justify-
ing the time between his proclaimed rechallenge
event and the third Hep B vaccine, which was the
history of pain reported on October 28, 1998 . . .
***
During his testimony, Dr. Bellanti stated the rea-
son for this belief that petitioner’s case was chal-
lenge-rechallenge was due to the temporal
association between the vaccine and petitioner’s
symptoms. . . . the temporal relationship is the
only basis given for his view regarding challenge-
rechallenge, which is insufficient to prove causa-
tion in a Vaccine Act case.
7 RICKETT v. HHS
A97-98, 101.
The Chief Special Master also relied upon the testi-
mony of the Government’s expert, Dr. Alan Brenner, who
stated that most FM symptoms do not abate once they
have begun. According to Dr. Brenner, Mr. Rickett’s
testimony that his symptoms waxed and waned undercut
Dr. Bellanti’s opinion regarding the existence of chal-
lenge-rechallenge.
On June 24, 2010, Mr. Rickett filed a petition for re-
view before the Court of Federal Claims, arguing that the
Chief Special Master erred by: (i) ignoring his prior deci-
sion in Lee v. Sec’y of Health & Human Servs., 2005 U.S.
Claims LEXIS 132 (Fed. Cl. Apr. 8, 2005); (ii) discounting
Mr. Rickett’s account of events; and (iii) rejecting the
applicability of the challenge-rechallenge effect.
On November 5, 2010, Judge George Miller of the
Court of Federal Claims denied Mr. Rickett’s motion for
review. Specifically, Judge Miller noted that because of
inconsistencies between the medical records and Mr.
Rickett’s affidavit and testimony, it was not error for the
Special Master to rely upon the medical records rather
than Mr. Rickett’s account of events. Judge Miller further
held that the Special Master did not err by reaching a
different outcome than in Lee because special masters are
not bound by their earlier decisions or those of other
special masters. Judge Miller further found that the
“differing factual records in the two cases and the proof in
the Lee case of a distinct medical theory of causation”
warranted the opposite outcomes. A40. Finally, Judge
Miller determined that the Special Master’s decision that
Mr. Rickett’s case did not “fit the challenge-rechallenge
model” was rational and supported by the record. A33.
RICKETT v. HHS 8
III
STANDARD OF REVIEW
This court reviews questions of law de novo and fac-
tual findings for clear error under an arbitrary and capri-
cious standard. See Broekelschen v. Sec’y of Health &
Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010), reh’g
denied, 2010 U.S. App. LEXIS 26926 (Fed. Cir. Dec. 8,
2010); Althen, 418 F.3d at 1278 (“[W]e review the trial
court’s factual findings for clear error.”). The arbitrary
and capricious test is a highly deferential standard of
review. See Sharpnack v. Sec’y of Health & Human
Servs., 27 Fed. Cl. 457, 1993 U.S. Claims LEXIS 348, *6
(1993) (internal citations omitted), aff’d, 17 F.3d 1442
(Fed. Cir. 1994). “If the special master has considered the
relevant evidence of record, drawn plausible inferences
and articulated a rational basis for the decision, reversi-
ble error will be extremely difficult to demonstrate.” Id.
at *6-7.
CAUSATION-IN-FACT
Under the National Childhood Vaccine Injury Act of
1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”), a peti-
tioner may establish causation in two ways. See Althen,
418 F.3d at 1278. Causation is presumed if a petitioner
demonstrates that the injury is listed in and meets the
requirements of the Vaccine Injury Table. See 42 U.S.C.
§ 300aa-14; Althen, 418 F.3d at 1278. Where the alleged
injury is not listed in the Vaccine Injury Table, a peti-
tioner must establish causation-in-fact. See 42 U.S.C.
§ 300aa-13(a)(1), -11(c)(1)(C)(ii)(I); Althen, 418 F.3d at
1278.
In Althen, the Federal Circuit articulated a peti-
tioner’s burden of proof as to causation-in-fact:
9 RICKETT v. HHS
Concisely stated, [a petitioner’s] burden is to show
by preponderant evidence that the vaccination
brought about her injury by providing: (1) a medi-
cal theory causally connecting the vaccination and
the injury; (2) a logical sequence of cause and ef-
fect showing that the vaccination was the reason
for the injury; and (3) a showing of a proximate
temporal relationship between vaccination and in-
jury. If [a petitioner] satisfies this burden, she is
‘entitled to recover unless the [government]
shows, also by a preponderance of evidence, that
the injury was in fact caused by factors unrelated
to the vaccine.’
Id. at 1278 (internal citation omitted).
“Although probative, neither a mere showing of a
proximate temporal relationship between vaccination and
injury, nor a simplistic elimination of other potential
causes of the injury suffices, without more, to meet the
burden of showing actual causation.” Id. Rather, the
Althen prongs “must cumulatively show that the vaccina-
tion was a ‘but-for cause’ of the harm, rather than just an
insubstantial contributor in, or one among several possi-
ble causes of, the harm.” Pafford v. Sec’y of Health &
Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006), reh’g
denied, 2006 U.S. App. LEXIS 28907 (Fed. Cir. Oct. 24,
2006), cert. denied, 551 U.S. 1102 (2007). In other words,
to prevail, a petitioner must show that it was more prob-
able than not that the vaccine caused the injury. Althen,
418 F.3d at 1279.
As such, a petitioner is not required to show that the
vaccine was the sole or predominant cause of the injury;
nor must a petitioner produce particular types of evidence
or prove causation as a matter of scientific or medical
certainty. See, e.g., Capizzano v. Sec’y of Health & Human
RICKETT v. HHS 10
Servs., 440 F.3d 1317, 1325 (Fed. Cir. 2006) (“requiring
either epidemiologic studies, rechallenge, the presence of
pathological markers or genetic disposition, or general
acceptance in the scientific or medical communities to
establish a logical sequence of cause and effect is contrary
to what we said in Althen III.”); Althen, 418 F.3d at 1279-
80 (explaining that a petitioner may demonstrate causa-
tion-in-fact with circumstantial evidence); Knudsen v.
Sec’y of Health & Human Servs., 35 F.3d 543, 548-49
(Fed. Cir. 1994) (“The determination of causation in fact
under the Vaccine Act involves ascertaining whether a
sequence of cause and effect is ‘logical’ and legally prob-
able, not medically or scientifically certain.”). Medical
literature is not required. Althen, 418 F.3d at 1280.
However, recorded statements of treating physicians are
particularly probative. Capizzano, 440 F.3d at 1326.
Close calls regarding causation are resolved in favor of
injured claimants. Althen, 418 F.3d at 1280.
ANALYSIS
On appeal, Mr. Rickett lodges four primary objections.
First, Mr. Rickett claims that it was error to rely upon
Mr. Rickett’s medical records, rather than his testimony.
Second, Mr. Rickett argues that it was error to discount
Dr. Bellanti’s expert testimony and reports regarding
challenge-rechallenge to the extent they were based on
Mr. Rickett’s testimony. Third, Mr. Rickett contends that
the Special Master arbitrarily and capriciously rejected a
medical theory that he had accepted in another vaccine
case arising from a similar factual predicate. Finally, Mr.
Rickett asserts that he demonstrated causation-in-fact.
As to the first issue, it was not error for the Special
Master to rely upon Mr. Rickett’s medical records rather
than his testimony where the two were inconsistent.
Although Althen does not require a petitioner to proffer
11 RICKETT v. HHS
both expert testimony and medical records to demonstrate
causation, where, as here, a petitioner offers both forms of
evidence and they are inconsistent, a special master may
give greater weight to the medical records. As this court
explained in Cucuras v. Sec’y of Health & Human Servs.:
Neither the trial court nor the special master
erred in their reliance on medical records to de-
termine the onset of injury. The Vaccine Act ex-
pressly bars the court or a special master from
finding a table injury “based on the claims of the
petitioner alone, unsubstantiated by medical re-
cords or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1). Moreover the Supreme Court counsels
that oral testimony in conflict with contempora-
neous documentary evidence deserves little
weight. United States v. United States Gypsum
Co., 333 U.S. 364, 396, 92 L. Ed. 746, 68 S. Ct. 525
(1947). . . . Medical records, in general, warrant
consideration as trustworthy evidence. The re-
cords contain information supplied to or by health
professionals to facilitate diagnosis and treatment
of medical conditions. With proper treatment
hanging in the balance, accuracy has an extra pre-
mium. These records are also generally contempo-
raneous to the medical events.
993 F.2d 1525, 1528 (Fed. Cir. 1993).
For similar reasons, it was not error for the Special
Master to assign less weight to Dr. Bellanti’s conclusion
regarding challenge-rechallenge to the extent it hinged
upon Mr. Rickett’s testimony that was inconsistent with
the medical records. Dr. Bellanti initially relied upon Mr.
Rickett’s assertion that his diarrhea began almost imme-
diately after his first vaccination to opine that the diar-
rhea may have been the challenge event but later stated
RICKETT v. HHS 12
that the diarrhea being a challenge event was “more
speculative than real.” A1004. Furthermore, a medical
record indicates that Mr. Rickett reported developing
diarrhea during the summer, not the spring, of 1998. Dr.
Bellanti also relied upon Mr. Rickett’s assertion that he
developed right arm and shoulder pain shortly after his
April 8, 1998 vaccination to suggest that Mr. Rickett’s
right side pain could have been a challenge event. Ac-
cording to a medical record dated April 24, 1998, however,
Mr. Rickett reported developing right side pain two to
three weeks earlier—several days of which predate his
second vaccination. When asked whether the right side
pain could be a challenge event if it began before the
second vaccination, Dr. Bellanti offered no explanation;
instead, he claimed that the left side pain that Mr.
Rickett reported developing on April 23, 1998, was the
challenge event. In his supplemental expert report, Dr.
Bellanti stated that if the right side pain began prior to
the second injection, he could not offer a causal opinion.
As to the third issue, the Special Master was not
bound by his decision in Lee. It is well-settled that
“[s]pecial masters are neither bound by their own deci-
sions nor by cases from the Court of Federal Claims,
except, of course, in the same case on remand.” Hanlon v.
Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630
(1998), aff'd, 191 F.3d 1344 (Fed. Cir. 1999).
Moreover, the Special Master did not err because Lee
is distinguishable. In Lee, the central issue was whether
the Hepatitis B vaccine could cause headaches that might
have triggered Lee’s FM. Lee proffered medical literature
and treating physician testimony in support of her claim.
Here, Mr. Rickett claimed that the Hepatitis B vaccine
caused his FM, and he offered no treating physician
testimony to demonstrate causation. The medical records
13 RICKETT v. HHS
indicate that at least two physicians doubted a causal
connection.
A special master evaluates the utility of evidence dif-
ferently in “light of all facts relevant in a specific claim.”
Sharpnack, 27 Fed. Cl. 457, 1993 U.S. Claims LEXIS at
*13-14. A special master’s acceptance of a theory in one
case does not require him or her to accept the theory in
subsequent cases involving similar facts or the same
vaccine. Rather, a different evidentiary record can lead to
different outcomes. Compare Andreu v. Sec’y of Health &
Human Servs., 569 F.3d 1367, 1370 (Fed. Cir. 2009) with
Moberly v. Sec’y of Health & Human Servs., 592 F.3d
1315, 1325-26 (Fed. Cir. 2010). To decide otherwise would
effectively require special masters to ignore the impact of
ever-changing technological advances and medical break-
throughs that might discredit the plausibility of a for-
merly accepted theory.
As to the final issue, Mr. Rickett challenges the con-
clusion that he failed to meet his burden of proof as to
Althen Prong Three, which requires a showing that the
onset of the symptoms of the injury occurred within a
medically appropriate period of time after receipt of the
vaccine. To the extent this challenge implicates factual
findings, our review is limited. See Lampe v. Sec’y of
Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.
2000). We see no reason to disturb the Special Master’s
findings of fact that Dr. Bellanti’s expert reports and
testimony did not clearly elucidate the appropriate tem-
poral relationship that one would expect to see as part of
the challenge-rechallenge model.
For the foregoing reasons, we affirm.
AFFIRMED
RICKETT v. HHS 14
COSTS
No costs.