Paterek v. Secretary of Health & Human Services , 527 F. App'x 875 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES L. PATEREK, in his own right and as best
friend of, J.P.,
Petitioner-Appellee,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellant.
______________________
2012-5078
______________________
Appeal from the United States Court of Federal
Claims in No. 02-VV-411, Judge Susan G. Braden.
______________________
Decided: June 19, 2013
______________________
JOHN F. MCHUGH, of New York, New York, argued for
petitioner-appellee.
JOSHUA PAUL WALDMAN, Attorney, Appellate Staff,
Civil Division, United States Department of Justice, of
Washington, DC, argued for respondent-appellant. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, and THOMAS M. BONDY, Attorney.
2 JAMES PATEREK v. HHS
______________________
Before DYK, SCHALL, and PROST, Circuit Judges.
SCHALL, Circuit Judge
DECISION
The Secretary of Health and Human Services (the
“government”) appeals the judgment of the United States
Court of Federal Claims that reversed and remanded the
Special Master’s denial of a claim for compensation filed
by Mr. James L. Paterek (the “Petitioner”) under the
Vaccine Act. See Doe 21 v. Sec’y of Health and Human
Servs., 88 Fed. Cl. 178 (2009) (the “Final Decision”).
Because the Special Master properly denied the Petition-
er’s claim, we reverse and remand with instructions to
affirm the Special Master’s determination that the Peti-
tioner is not entitled to compensation and to enter judg-
ment for the government.
DISCUSSION
I. CASES UNDER THE VACCINE ACT
Under the Vaccine Act, see 42 U.S.C. §§ 300aa-1 to
300aa-34, a petitioner seeking compensation may prove
causation in one of two ways, depending on whether the
case involves “Table injuries” or “off-Table injuries.” See
Moberly v. Sec’y of Health and Human Servs., 592 F.3d
1315, 1321 (Fed. Cir. 2010). First, if the administered
vaccine and injury are listed in the Vaccine Injury Table,
and the injury manifests itself within the specified time
period, a petitioner receives a presumption of a causal
link between the vaccination and the injury. See de
Bazan v. Sec’y of Health and Human Servs., 539 F.3d
1347, 1351 (Fed. Cir. 2008); see also 42 U.S.C. § 300aa-
11(c)(1)(C)(i) (not requiring a showing of causation for a
Table injury); 42 U.S.C. § 300aa-14(a) (initial Vaccine
Injury Table); 42 C.F.R. § 100.3 (current Vaccine Injury
Table). Second, for injuries not listed in the Table, or
JAMES PATEREK v. HHS 3
which do not occur within the specified time period, a
petitioner seeking compensation must prove causation-in-
fact. See de Bazan, 539 F.3d at 1351; see also 42 U.S.C.
§ 300aa-11(c)(1)(C)(ii) (requiring a showing of causation
for an off-Table injury). This appeal involves only an
alleged off-Table injury. To prove that a vaccination
caused an off-Table injury, a petitioner must demonstrate,
by a preponderance of the evidence, the following three
prongs:
(1) a medical theory causally connecting the vac-
cination and the injury; (2) a logical sequence of
cause and effect showing that the vaccination was
the reason for the injury; and (3) a showing of a
proximate temporal relationship between vaccina-
tion and injury.
Althen v. Sec’y of Health and Human Servs., 418 F.3d
1274, 1278 (Fed. Cir. 2005). If a petitioner establishes a
prima facie case, the burden shifts to the government to
establish an alternative causation by a preponderance of
the evidence. See Walther v. Sec’y of Health and Human
Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007); see also 42
U.S.C. § 300aa-13(a)(1)(B) (noting that compensation will
not be awarded if the injury “is due to factors unrelated to
the administration of the vaccine”). If the government
fails to do so, the petitioner is entitled to compensation.
II. FACTS AND PRIOR DECISIONS
The Petitioner seeks compensation for a diphtheria-
tetanus-acellular pertussis (“DTaP”) vaccination that
allegedly caused developmental delays in his son, J.P. On
July 20, 1999, J.P. received the vaccination at his two-
month well-baby examination. See Doe 21 v. Sec’y of
Health and Human Serves., No. 02-0411V, 2009 WL
3288295, at *1 (Fed. Cl. Jan. 16, 2009) (“Special Master
4 JAMES PATEREK v. HHS
Decision”). 1 At that examination, the treating pediatri-
cian described J.P as “healthy” and noted, regarding gross
motor development, that J.P. could “roll[] to side.” Later
that evening, J.P. was admitted to the emergency room
after having what the government has conceded was an
adverse reaction—more specifically, a hypotonic-
hyporesponsive episode (“HHE”)—to the DTaP vaccine.
See id. at *2. During this episode, J.P had crossed eyes
and a fever, but was described as alert and in no acute
distress. See id. He was discharged approximately 75
minutes later in satisfactory condition. See id.
At J.P.’s four-month well-baby examination on Sep-
tember 14, 1999, the treating pediatrician described him
as “well,” and noted that he could sit, hold up his head,
and babble. See id. The doctor discussed the risks and
benefits of vaccinations with J.P.’s mother and, based on
the previous HHE, gave J.P. only the diphtheria and
tetanus vaccines rather than the DTaP vaccine, which
also includes a component to prevent pertussis (commonly
known as whooping cough). See id. at *3.
At a visit on October 4, 1999, J.P.’s primary treating
pediatrician, Dr. Turow, noted the possibility of a “stra-
bismus” or “pseudostrabismus” 2 based on reports from
1 Under the Vaccine Act, a special master reviews
each petition and issues a decision assessing whether
compensation should be awarded. See 42 U.S.C. § 300aa-
12(c), (d).
2 Strabismus is commonly referred to as “lazy eye,”
in which a person’s eyes are not properly aligned, usually
because of a problem with the muscles around the eye.
See Special Master Decision, 2009 WL 3288295, at *14.
Pseudostrabismus is a similar lack of alignment brought
about by causes other than a problem with the ocular
muscles. See Final Decision, 88 Fed. Cl. at 184 n.17.
JAMES PATEREK v. HHS 5
J.P.’s parents. As a result, he recommended an ophthal-
mological consultation. See id. Dr. Rubin, a pediatric
ophthalmologist, examined J.P. on November 10, 1999,
finding J.P. to be a “healthy 6 month old baby” with no
evidence of strabismus. See id. Dr. Rubin believed that
any symptoms “would probably resolve spontaneously
over the next several months.” See id.
At his sixth-month examination on November 8, 1999,
J.P. was described as a “well infant,” who had good head
control and could grab objects well. See id. The doctor
did note, however, that J.P. could not roll over and could
not sit up without support. See id. J.P. was referred to
another doctor for a left eye “deviation medially.” 3 See id.
Like at the four-month examination, J.P. received the
diphtheria and tetanus vaccines but not the pertussis
component. See id.
On January 31, 2000, at his nine-month well-baby ex-
amination, J.P. was again described as “well,” with the
doctor noting that he could sit indefinitely without sup-
port, use a “pincer” grasp to pick up objects, speak basic
syllables, wave, and play “peek-a-boo.” See id. J.P. could
not, however, pull himself up to stand or walk with the
help of nearby support (known as “cruising”). See id.
On March 8, 2000, Dr. Turow noted a potential con-
cern about J.P.’s “developmental progression.” See id. at
*4. J.P. was diagnosed with “fine & gross motor develop-
mental delay” on March 27, 2000. See id. The examining
specialist recommended physical therapy and monitoring.
See id.
3 A “deviation medially” is a strabismus in which an
eye is pointed towards a person’s nose. See Special Mas-
ter Decision, 2009 WL 3288295, at *15.
6 JAMES PATEREK v. HHS
Two days later, an ophthalmologist observed and rec-
orded a “vertical nystagmus.” 4 See id. The next day, after
J.P.’s mother told Dr. Turow that the vertical nystagmus
appeared to be worsening, Dr. Turow referred J.P. to a
pediatric neurologist. See id. During his examination of
J.P., the neurologist attempted to elicit, but did not ob-
serve, any nystagmus. See id. On April 5, 2000, Dr.
Rubin examined J.P. but also did not observe any nys-
tagmus. See id.
The Petitioner filed a claim under the Vaccine Act on
April 30, 2002, asserting that the DTaP vaccination
administered on July 20, 1999, caused J.P.’s developmen-
tal delays diagnosed in March of 2000. See id. at *5.
a. THE SPECIAL MASTER DECISION
After a prior decision and remand not before us in this
appeal, 5 the Special Master concluded that the Petitioner
had failed to establish the second and third prongs re-
quired under Althen, and was thus not entitled to com-
pensation. See id. at *22–30. The Special Master found
that J.P was developing normally from July of 1999 to
March of 2000, at which point, the government concedes,
he was suffering from a brain disorder known as an
encephalopathy, and was developmentally delayed. See
id. at *5, *8. The Special Master rejected the opinion,
held by experts for the Petitioner, that J.P. was signifi-
4 A “vertical nystagmus” is a repetitive up-and-
down fluttering of the eyes, usually associated with an
underlying neurological problem. See Special Master
Decision, 2009 WL 3288295, at *15.
5 These two decisions relate to, but are not directly
at issue in, this appeal. They are: Doe 21 v. Sec’y of
Health and Human Servs., 02-0411V, 2008 WL 4679501
(Fed. Cl. Oct. 14, 2008), and Doe 21 v. Sec’y of Health and
Human Servs., 84 Fed. Cl. 19 (2008).
JAMES PATEREK v. HHS 7
cantly developmentally advanced at two months. See id.
at *9. While those experts assumed J.P. was rolling over
(i.e., from front to back or vice versa), the Special Master
pointed out that the pertinent notation actually reads
that J.P. “rolls to side,” an activity perhaps only slightly
advanced at two months. See id. at *9–10. The Special
Master also rejected the related view that J.P. was poten-
tially experiencing developmental delays at four months
because he was not “still” advanced at that time. See id.
at *10–12.
As to J.P.’s condition at his six-month well-baby ex-
amination, the Special Master found that a preponder-
ance of the evidence established that J.P. was developing
normally, and that the failure to roll over or sit up with-
out support merely demonstrated uneven development
rather than delay. See id. at *12–13. The Special Master
noted that Dr. Turow “could not express an opinion as to
whether [J.P.] was developmentally delayed at six
months” while Dr. Wiznitzer, the expert for the govern-
ment, testified that he would have merely “monitored” a
child in J.P.’s situation. See id. at *13. Moreover, the
Special Master was not persuaded by the Petitioner’s
experts, Drs. Shane and Megson, who opined that J.P.
was delayed at six months. See id. According to the
Special Master, their opinions were based on the assump-
tion that a six-month-old should sit without support even
though “a preponderance of the evidence indicates that
most babies achieve this milestone at seven-months.” See
id. Regarding the condition of J.P.’s eyes, the Special
Master clarified the difference between strabismus and
nystagmus, and stated that while “no credible evidence
supports a finding that [J.P.] was suffering from a nys-
tagmus in October and November 1999,” “a preponder-
ance of the evidence supports a finding that [J.P.] suffered
from intermittent strabismus.” See id. at *16, *18. Thus,
the Special Master found that any eye conditions were
8 JAMES PATEREK v. HHS
muscular, rather than neurological, in origin. See id. at
*18.
The Special Master also found that while “a prepon-
derance of the evidence indicates that [J.P.] was still
developing normally” at the time of his nine-month well-
baby examination, “some evidence indicates that [J.P.]
had not reached one milestone,” namely, J.P. could not
cruise or pull himself to standing. See id. at *18. Accord-
ing to the Special Master, the experts supported the
conclusion that J.P. was developing normally at this
stage: Dr. Wiznitzer agreed that J.P. was developing
normally but he would monitor him; Dr. Megson did not
opine on delay, but instead noted the need for additional
information about muscle tone prior to making an as-
sessment; for his part, Dr. Shane did not give an opinion
about J.P.’s development, believing the prior examination
of J.P. was “limited.” See id. For various reasons, the
Special Master found Drs. Shane and Megson unpersua-
sive and not credible as to certain critical points. See id.
at *19–21.
Based on these findings, the Special Master concluded
that the Petitioner had not satisfied the second prong
under Althen because there “is little persuasive evidence
to show that the July 20, 1999 DTaP vaccine caused
[J.P.’s] failure to develop normally.” See id. at *23.
Specifically, the Special Master reasoned that, despite
slightly missing two developmental milestones, J.P.’s
otherwise normal development through the six-month
well-baby examination “is not consistent with a child who
had developed an encephalopathy on July 20, 1999.” See
id. To demonstrate the lack of causation, the Special
Master highlighted the testimony of Dr. Turow, who
stated that “it was not impossible” that the DTaP vaccine
caused the developmental delays, but would go no further.
See id. at *25. According to the Special Master, neither
this testimony nor the other evidence set forth by the
Petitioner satisfied the second prong. See id. at *25–26.
JAMES PATEREK v. HHS 9
The Special Master also concluded that the Petitioner
had failed to establish prong three of Althen—a proximate
temporal relationship between the vaccination and the
injury. See id. at *26. First, the Special Master found
that the Petitioner had failed to present any evidence
about the time frame that medical science would expect
an injury caused by a vaccine to be manifest. See id. at
*26–27; see also de Bazan, 539 F.3d at 1352 (“Thus, the
proximate temporal relationship prong requires prepon-
derant proof that the onset of symptoms occurred within a
timeframe for which, given the medical understanding of
the disorder’s etiology, it is medically acceptable to infer
causation-in-fact.”). Second, the Special Master found
that the Petitioner had failed to establish that J.P.’s
symptoms fell within the unidentified medically appropri-
ate time period because, for the reasons noted above, J.P.
was developing normally through March of 2000. See
Special Master Decision, 2009 WL 3288295, at *27–30.
The Special Master made no finding as to Althen prong
one. See id. at *22.
b. THE FINAL DECISION
On review of the Special Master Decision, the Court of
Federal Claims determined that the Petitioner had estab-
lished all three prongs under Althen, and thus remanded
for an award of compensation. See Final Decision, 88 Fed.
Cl. at 198–202. As to the first prong, the court held that
the Petitioner had established a “medical theory causally
connecting the vaccination and theory” because the Vac-
cine Injury Table indicates that DTaP vaccines can cause
encephalopathy—a causal connection “well recognized by
the Office of Special Masters.” See id. at 199.
Regarding the second prong, the Court of Federal
Claims found sufficient evidence of a logical sequence of
cause and effect for three reasons. First, the court found
support in Dr. Turow’s testimony because causation can
be found “even where the treating physician cannot
10 JAMES PATEREK v. HHS
unequivocally state that the vaccination caused the
injury.” See id. at 200 (citing Andreu v. Sec’y of Health
and Human Servs., 569 F.3d 1367, 1375–76 (Fed. Cir.
2009)). The court found that “[a]lthough Dr. Turow did
not testify that the July 20, 1999 vaccine definitely caused
Petitioner’s condition, he ‘believed’ that was the case
here.” See Final Decision, 88 Fed. Cl. at 200. Second, the
court noted that “there was no other evidence that ex-
plained [J.P.’s] injury.” See id. Third, the court was
persuaded by the fact that, after administering the per-
tussis component in the first vaccination, J.P.’s treating
physicians did not administer that component in later
vaccinations, instead only administering the diphtheria
and tetanus components. See id. at 201.
The court found the proximate temporal relationship
required under the third prong of Althen satisfied because
the government conceded that J.P. had suffered an HHE
after receiving the DTaP vaccine. See id. at 199. The
court also found that J.P.’s medical records showed signs
of developmental delay as early as November 1999. See
id. at 202. First, the court determined that, based upon
its review of the medical records, “by October 4, 1999,
nystagmus may have been present, but escaped Dr.
Rubin’s attention or simply was misdiagnosed.” See id.
Second, the court found that J.P.’s failure to roll over or
sit up without support was not a sign of uneven develop-
ment, as the Special Master had found, but rather a
“digression” that represented “a missed developmental
milestone.” See id. Having found causation, the court
reversed and remanded to the Special Master for an
award of compensation. See id. at 202. The Special
Master awarded $2,431,153.51 for life care expenses for
the first two years after judgment, $75,000 in compensa-
tion for past unreimbursable expenses, and an amount
sufficient to purchase an annuity contract.
JAMES PATEREK v. HHS 11
The government timely appealed the judgment of the
Court of Federal Claims awarding compensation. This
court has jurisdiction pursuant to 42 U.S.C. § 300aa-12(f).
III. STANDARD OF REVIEW
In Vaccine Act cases, we review de novo a decision by
the Court of Federal Claims, applying the same standard
of review as that court applies in reviewing a decision of a
special master. See Porter v. Sec’y of Health and Human
Servs., 663 F.3d 1242, 1248–49 (Fed. Cir. 2011); Ha-
zelhurst v. Sec’y of Health and Human Servs., 604 F.3d
1343, 1348–49 (Fed. Cir. 2010). Under that standard, we
uphold factual findings that are not arbitrary and capri-
cious and review legal conclusions to assess whether they
accord with the law. 6 See Moberly, 592 F.3d at 1321; see
also Munn v. Sec’y of Health and Human Servs., 970 F.2d
863, 870 n.10 (Fed. Cir. 1992) (clarifying the standard set
forth in 42 U.S.C. § 300aa-12(e)(2)(B)).
The arbitrary and capricious standard provides a fact
finder the most deference possible. See Munn, 970 F.2d at
870. Under that standard, “[i]f the special master has
considered the relevant evidence of record, drawn plausi-
ble inferences, and articulated a rational basis for the
decision, ‘reversible error will be extremely difficult to
demonstrate.’” See Hazelhurst, 604 F.3d 1343 at 1349
(quoting Hines v. Sec’y of Health and Human Servs., 940
F.2d 1518, 1528 (Fed. Cir. 1991)). In other words, as long
as a special master’s factual finding is based on record
6 The Petitioner relies on Hines v. Secretary of
Health and Human Services, 940 F.2d 1518, 1523 (Fed.
Cir. 1991), for the proposition that this court reviews
factual findings for “clear error.” See Appellee Br. 30.
The cited discussion from Hines makes clear, however,
that, after statutory amendments made in 1989, that less
deferential standard no longer applies to factual findings
by a special master.
12 JAMES PATEREK v. HHS
evidence that is “not wholly implausible, we are compelled
to uphold that finding as not being arbitrary or capri-
cious.” See Lampe v. Sec’y of Health and Human Servs.,
219 F.3d 1357, 1363 (Fed. Cir. 2000). A court reviewing a
special master’s decision should not “reweigh the factual
evidence, assess whether the special master correctly
evaluated the evidence, or examine the probative value of
the evidence or the credibility of the witnesses—these are
all matters within the purview of the fact finder.” See
Porter, 663 F.3d at 1249.
IV. ANALYSIS
On appeal, the government argues that the Court of
Federal Claims legally erred by substituting its own
factual findings for those already made by the Special
Master. According to the government, the court should
have deferred to the Special Master’s findings, which were
never explicitly found to be arbitrary or capricious. The
Petitioner responds that the first symptoms of delay
should be deemed the onset of a vaccine-related injury,
even if the first symptoms predate the diagnosis of the
injury. Here, according to the Petitioner, the eye move-
ments reported by J.P.’s parents in October of 1999, as
well as the potential indications of motor skill delays in
November of 1999, represent early evidence supporting a
finding that J.P. was, in fact, suffering from an encepha-
lopathy soon after the first vaccination.
Based on the record, we agree with the government
and conclude that the Court of Federal Claims erred in
rejecting the Special Master’s determination that the
Petitioner failed to demonstrate entitlement to compensa-
tion. To resolve this appeal, we only need address the
second prong under Althen—a logical sequence of cause
and effect showing that the vaccination was the reason for
J.P.’s developmental delays. We will first explain why the
findings in the Special Master Decision regarding prong
two were not arbitrary or capricious and why his legal
JAMES PATEREK v. HHS 13
conclusions accorded with the law. Then we will turn to
the analysis of the Court of Federal Claims in the Final
Decision.
a. THE SPECIAL MASTER DECISION
As noted, the Special Master’s determined that the
Petitioner failed to establish the second prong under
Althen—a logical sequence of cause and effect. See Spe-
cial Master Decision, 2009 WL 3288295, at *22–26. The
government has conceded two of the three necessary links
in the causal chain: (1) that the DTaP vaccine caused the
HHE on July 20, 1999, see id. at *2; and (2) that whatever
caused the encephalopathy (which the government admits
was present by March of 2000) also caused the develop-
mental delays, i.e., the relevant injury to J.P., see id. at
*5. The issue here is whether the vaccination (or HHE)
caused the encephalopathy and developmental delays.
For the following reasons, we conclude that the Special
Master’s determination that the Petitioner failed to show
this linkage by a preponderance of the evidence was not
arbitrary or capricious, or tainted by legal error.
In his decision, the Special Master conducted a
thorough review of the relevant evidence, including the
testimony of the expert witnesses, and concluded that the
medical records did not support a finding that J.P. devel-
oped an encephalopathy at the time of the HHE. See id.
at *23. In reaching that conclusion, the Special Master
provided a reasoned explanation for crediting the gov-
ernment’s expert, Dr. Wiznitzer, who testified that the
failure to roll over and sit up without support at the six-
month examination were not signs of an encephalopathy
beginning in July of 1999. See id. at *12–13. The Special
Master found additional support for his conclusion in a
note from a pediatric neurologist, Dr. Eviatar, who wrote
that “[i]t is my medical opinion that [J.P.’s] developmental
delay and immature eye movements are the result of
congenital hydrocephalus and Arnold Chiara malfor-
14 JAMES PATEREK v. HHS
mation . . . and are not related to [diphtheria-pertussis-
tetanus] encephalopathy.” See id. at *24. Further, the
Special Master highlighted the testimony of Dr. Turow,
who “was quite clear that he could not say that the DTaP
[vaccine] caused the developmental delay.” See id. at *25
(citing testimony at J.A. 388–90). Under the highly
deferential standard applicable here, the Special Master’s
reasoned conclusions regarding prong two of Althen were
not arbitrary or capricious, and should be upheld. See
Hazelhurst, 604 F.3d at 1349; Lampe, 219 F.3d at 1363.
b. THE FINAL DECISION
We turn now to the analysis in the Final Decision
regarding the second prong of Althen. See Final Decision,
88 Fed. Cl. at 199–201. In that regard, we conclude that
the Court of Federal Claims generally failed to apply the
highly deferential standard applicable to its review of the
Special Master Decision; rather than assessing whether
the Special Master’s findings were arbitrary and capri-
cious, the court instead reevaluated the evidence and
came to its own findings. This constitutes legal error. See
Munn, 970 F.2d at 870 (“The Claims Court owes these
findings and conclusions by the special master great
deference—no change may be made absent first a deter-
mination that the special master was arbitrary and
capricious.”); see also Porter, 663 F.3d at 1249 (cautioning
a reviewing courts not to “reweigh the factual evidence,
assess whether the special master correctly evaluated the
evidence, or examine the probative value of the evidence
or the credibility of the witnesses”); Hazelhurst, 604 F.3d
at 1349 (noting that a reviewing court may not “second-
guess the special master’s fact-intensive conclusions,
particularly where the medical evidence of causation is in
dispute”).
One example of the court’s reweighing of the evidence
here is its reliance on the testimony of Dr. Turow as one
of the three bases supporting a finding of a logical se-
JAMES PATEREK v. HHS 15
quence of cause and effect between the vaccination and
the injury. When discussing the potential causation
between the vaccination and the developmental delays in
J.P., Dr. Turow stated that it was “not impossible,” but
that he did not “have concrete evidence to connect the
two.” See Final Decision, 88 Fed. Cl. at 200 (excerpting
the relevant testimony). The Special Master relied on
this same testimony to support a finding that the Peti-
tioner did not establish causation. See Special Master
Decision, 2009 WL 3288295, at *25 (“Like Dr. Turow’s
written statements, his testimony falls short of the stand-
ard of evidence that supports a finding of ‘a logical se-
quence of cause and effect.’”). The Court of Federal
Claims, however, reinterpreted Dr. Turow’s testimony to
support causation, finding that he, in fact, “believed” that
the vaccination caused J.P.’s condition. 7 See Final Deci-
sion, 88 Fed. Cl. at 200. In so doing, the court erred first
by failing to explain why the Special Master’s contrary
finding was arbitrary or capricious, see Munn, 970 F.2d at
870, and second by improperly reweighing the Turow
testimony, see Porter, 663 F.3d at 1249.
In its analysis, the court also erred, we think, in its
application of this court’s decisions in Andreu v. Secretary
of Health and Human Services, 569 F.3d 1367 (Fed. Cir.
2009), and Capizzano v. Secretary of Health and Human
Services, 440 F.3d 1317 (Fed. Cir. 2006), to support its
finding regarding the second prong. See Final Decision,
88 Fed. Cl. at 199–201. The court relied on Andreu for
the proposition that “the testimony of a treating physician
7 At oral argument, counsel for the Petitioner con-
ceded that this finding by the Court of Federal Claims
was “a clear mistake.” See Oral Argument at 13:10–
13:50, Paterek v. Sec’y of Health and Human Servs., No.
2012-5078 (Fed. Cir. Apr. 5, 2013), available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
12-5078.mp3.
16 JAMES PATEREK v. HHS
can establish a logical sequence of cause and effect, even
where the treating physician cannot unequivocally state
that the vaccination caused the injury.” See id. at 200
(citing Andreu, 569 F.3d at 1376). This overstates the
weight of equivocal testimony, such as Dr. Turow’s. In
Andreu, one physician had already testified unequivocally
as to causation, leaving the equivocal testimony from
another physician to merely provide some additional
support. See Andreu, 569 F.3d at 1375–76. Thus, Andreu
does not stand for the proposition that equivocal testimo-
ny alone can establish causation. More importantly, as
reasonably concluded by the Special Master, see Special
Master Decision, 2009 WL 3288295, at *25, Dr. Turow’s
testimony that causation was “not impossible” fails to
provide support for causation at all. As this court has
previously held, the statutory standard requires more
than just “proof of a ‘plausible’ or ‘possible’ causal link
between the vaccine and the injury.” See Moberly, 592
F.3d at 1322.
We also find error in the court’s application of Andreu
and Capizzano to the two other bases relied on by the
court to support the finding that the Petitioner estab-
lished the second prong: that “there was no other evidence
that explained [J.P.’s] injury” and that J.P.’s treating
physicians withheld future administration of the pertus-
sis vaccine. See Final Decision, 88 Fed. Cl. at 200–01
(citing Andreu, 569 F.3d at 1375–77 and Capizzano, 440
F.3d at 1326). In both Andreu and Capizzano, unlike
here, the treating physician affirmatively concluded that
the vaccine did, in fact, cause the injury. See Andreu, 569
F.3d at 1376 (noting that the relevant expert “stated
unequivocally” that he believed that the vaccine caused
seizures); Capizzano, 440 F.3d at 1326 (holding that “the
chief special master erred in not considering the opinions
of the treating physicians who concluded that the vaccine
was the cause of Ms. Capizzano’s injury”). In the absence
of an affirmative conclusion as to causation, the lack of an
JAMES PATEREK v. HHS 17
alternative cause does not, alone, satisfy a petitioner’s
burden. See Althen, 418 F.3d at 1278 (stating that “nei-
ther a mere showing of a proximate temporal relationship
between vaccine and injury, nor a simplistic elimination
of other potential causes of the injury suffices, without
more, to meet the burden of showing actual causation”);
Hodges, 9 F.3d at 960. 8 Similarly, given Dr. Turow’s
testimony, the decision to withhold future administration
of the pertussis vaccine provides little probative evidence
of causation. See Andreu, 569 F.3d at 1376–77. For these
reasons, we conclude that the Court of Federal Claims
erred in finding the second prong under Althen satisfied.
Lastly, we briefly address the conclusion that the
Special Master committed legal error by allegedly engag-
ing in a “[s]elective review” of J.P.’s medical records. See
Final Decision, 88 Fed. Cl. at 201. We can discern no
basis for this conclusion. Although the Special Master did
state that “[t]he details of most events in [J.P.’s] medical
history after April 2000 are generally not relevant to
determining whether the July 20, 1999 DTaP vaccination
caused [J.P.’s] developmental delay,” he also made clear
that “[a]lthough details of [J.P.’s] medical history after
April 2000 are not set forth in this decision, these details
appear in the two previous opinions and have been consid-
ered.” See Special Master Decision, 2009 WL 3288295, at
*5 (emphasis added). Finding certain information not
relevant does not lead to—and likely undermines—the
conclusion that it was not considered. This alleged error
of law was not a proper basis to reverse the Special Mas-
ter.
8 We note that while causation cannot generally be
based on the mere lack of an alternative cause alone, a
petitioner may affirmatively rule out other possible alter-
native causes to prove causation-in-fact. See de Bazan,
539 F.3d at 1352 n.3.
18 JAMES PATEREK v. HHS
For these reasons, we reverse the judgment of the
Court of Federal Claims and remand with the instruction
that the court affirm the Special Master’s determination
that the Petitioner is not entitled to compensation.
REVERSED AND REMANDED
COSTS
No costs.