Canuto v. Secretary of Health , 660 F. App'x 955 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DARIUS CANUTO AND TERESITA A. CANUTO,
PARENT(S) OF, D. A. C., A MINOR,
Petitioners-Appellants
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2016-2096
______________________
Appeal from the United States Court of Federal
Claims in No. 1:04-vv-01128-RJY, Senior Judge Robert J.
Yock.
______________________
Decided: October 4, 2016
______________________
DARIUS CANUTO, TERESITA A. CANUTO, D.A.C.,
Northridge, CA, pro se.
VORIS EDWARD JOHNSON, JR., Vaccine/Torts Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, RUPA BHATTACHARYYA,
CATHERINE E. REEVES.
2 CANUTO v. HHS
______________________
Before O’MALLEY, BRYSON, and STOLL, Circuit Judges.
PER CURIAM.
Petitioners Darius and Teresita Canuto (“the Canu-
tos”), on behalf of their son, D.A.C., seek an award under
the National Childhood Vaccine Injury Act, 42 U.S.C.
§§ 300aa-1 to -34 (2012), as compensation for his autism,
which they allege was caused by his receiving a series of
diphtheria, tetanus, and pertussis (“DTP”) vaccinations.
A Special Master of the United States Court of Federal
Claims found that the Canutos had not established under
any credible medical theory that D.A.C.’s autism had been
caused by the DTP vaccinations and denied the Canutos’
claim. See Canuto v. Sec’y of Health & Human Servs., No.
04-1128V, 2015 WL 9854939 (Fed. Cl. Sp. Mstr. Dec. 18,
2015). After a thorough consideration of the record, the
United States Court of Federal Claims affirmed the
Special Master’s decision and denied the Canutos’ motion
for review. See Canuto v. Sec’y of Health & Human
Servs., No. 04-1128V, 2016 WL 2586510 (Fed. Cl. Apr. 18,
2016). We affirm.
BACKGROUND
The relevant facts are primarily those found by the
Special Master in his detailed decision, issued December
18, 2015. See Canuto, 2015 WL 9854939, at *6–16.
D.A.C. was born on July 17, 2000, in Bocaue, Philippines.
His pediatrician noted on early visits that D.A.C. was a
“well baby.” D.A.C. received several vaccines in the
Philippines, in particular two doses of “Tritanrix” (com-
bined DTP and hepatitis B). In 2001, after relocating to
Los Angeles, California, D.A.C. received additional vac-
cines, including combined diphtheria, tetanus, and acellu-
lar pertussis (“DTaP”) and haemophilus influenza type B
(“Hib”).
CANUTO v. HHS 3
At his one-year check-up on August 3, 2001, D.A.C.’s
pediatrician noted that he had poor weight gain and was
“lagging behind” on speech and language milestones. The
pediatrician found D.A.C. negative for adverse vaccine
reactions. D.A.C.’s medical records give no indication of
any serious injury or medical conditions over the next
several years; however, it is clear that D.A.C. continued to
struggle developmentally. In late 2003, he was diagnosed
with severe to profound expressive and receptive lan-
guage disorder.
On March 15, 2004, the Canutos took D.A.C. to a de-
velopmental behavioral pediatrician who diagnosed
D.A.C. with autism. Despite a chronological age of 44
months, his linguistic skills tested at a developmental age
of 30.4. He displayed delayed language skills, difficulty
interacting with peers, limited play skills, and repetitive
behavior such as tightening his fists and echoing speech.
In March 2006, a psychoeducational assessment of D.A.C.
confirmed his prior diagnosis of autism.
The Canutos, on behalf of D.A.C., filed a Short-Form
Autism Petition for Vaccine Compensation (“Petition”) on
July 6, 2004, thus joining the Omnibus Autism Proceed-
ings (“OAP”) and adopting the Master Autism Petition for
Vaccine Compensation. After the OAP test cases became
final, the Canutos pursued their case individually. On
December 18, 2005, the Special Master issued his decision
denying the Canutos’ claim as lacking any credible theory
of causation between the covered vaccines administered
and D.A.C.’s condition. After their motion for review was
denied by the Court of Federal Claims, the Canutos
appeal to this court, alleging that the Special Master
failed to consider certain relevant evidence.
We have jurisdiction under 42 U.S.C. § 300aa-12(f).
4 CANUTO v. HHS
STANDARD OF REVIEW
In cases brought under the Vaccine Act, we review a
ruling by the Court of Federal Claims de novo, applying
the same standards it applies when reviewing decisions of
the Special Master. LaLonde, v. Sec’y of Health & Human
Servs., 746 F.3d 1334, 1338–39 (Fed. Cir. 2014) (citing
Moberly ex rel. Moberly v. Sec’y of Health & Human
Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010)). We review
legal determinations to ensure they are in accordance
with accepted law, and we do not disturb findings of fact
unless they are arbitrary or capricious. See id. at 1339.
As this court has said on more than one occasion in this
context:
[I]t is not . . . the role of this court to reweigh the
factual evidence, or to assess whether the special
master correctly evaluated the evidence. And of
course we do not examine the probative value of
the evidence or the credibility of the witnesses.
These are all matters within the purview of the
fact finder.
Munn v. Sec’y of Health & Human Servs., 970 F.2d 863,
871 (Fed. Cir. 1992). The reviewing court should look to
see whether “the [S]pecial [M]aster has considered the
relevant evidence of record, drawn plausible inferences
and articulated a rational basis for the decision.” Hines v.
Sec’y of Health & Human Servs., 940 F.2d 1518, 1528
(Fed. Cir. 1991). If so, the ruling must stand.
DISCUSSION
To receive compensation under the Vaccine Act, a pe-
titioner must demonstrate, by a preponderance of the
evidence, that the vaccinated person received a covered
vaccine and either: (1) suffered an injury, condition, or a
significant aggravation of a preexisting injury or condition
listed in the Vaccine Injury Table within the requisite
time frame; or (2) suffered an injury, condition, or signifi-
CANUTO v. HHS 5
cant aggravation of a preexisting injury or condition not
listed in the Table “but which was caused” by a covered
vaccine. 42 U.S.C. §§ 300aa-11(c)(1)(C) (emphasis added),
300aa-14; 42 C.F.R. § 100.3 (2011); LaLonde, 746 F.3d at
1338.
For a condition that is not listed in the table, the peti-
tioner must prove their claim by a “preponderance of the
evidence”—they “must do more than demonstrate a
‘plausible’ or ‘possible’ causal link between the vaccination
and the injury.” W.C. v. Sec’y of Health & Human Servs.,
704 F.3d 1352, 1356 (Fed. Cir. 2013) (citing Moberly, 592
F.3d at 1322). To prove actual causation, it is the peti-
tioner’s burden to demonstrate:
by preponderant evidence that the vaccination
brought about [the] injury by providing: (1) a med-
ical theory causally connecting the vaccination
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 vaccination and in-
jury.
Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274,
1278 (Fed. Cir. 2005). A petitioner must prove their
theory of causation by medical literature or by the medi-
cal opinion of an expert witness. Id. at 1279–80. If the
petitioner meets this burden, they are entitled to recover
under the Vaccine Act unless the government is able to
prove—by preponderant evidence—that the injury was
caused by factors unrelated to the vaccination. Id. at
1278.
The Canutos’ Informal Brief on appeal alleges that
the Special Master failed to consider certain evidence
which would have, if properly addressed, proved their
theory of causation between vaccines and autism. The
evidence submitted by the Canutos in this case consisted
chiefly of medical records, medical literature, parental
6 CANUTO v. HHS
testimony, and the expert report of Dr. Levin. The Spe-
cial Master, in his decision, addressed each category of
evidence in turn, weighed all available evidence, and
applied the Althen test to determine whether the Canutos
had met their burden under the law. The Special Master
found that the Canutos failed to satisfy any of the Althen
test’s three prongs.
Examining the Canutos’ testimonial evidence, the
Special Master found significant conflict with the history
contained in the medical records. The Canutos alleged by
way of affidavits that D.A.C. was allergic to the vaccina-
tions he received, causing him to develop seizures arising
from adverse reactions to the vaccinations as early as
eight months of age. The Special Master found no con-
temporaneous indication in the submitted medical rec-
ords, however, of an adverse reaction to any of the
administered vaccines. On the contrary, pediatricians
repeatedly noted that D.A.C. had no adverse reactions.
The Special Master also found no contemporaneous
references in the medical records to D.A.C.’s alleged
seizures, or any references to muscle spasms or other
seizure-like behavior. The Special Master noted that, for
D.A.C.’s pediatricians to “not recognize and not record a
description of a seizure in one instance would be unusual
enough,” but at least two of the alleged seizures occurred
around the same time D.A.C. visited the pediatrician for
sick visits. Canuto, 2015 WL 9854939, at *12. The Spe-
cial Master correctly attributed more weight to the evi-
dence contained in the medical records than to later filed
submissions and affidavits by the parents of the child.
Because of their impartial nature, medical records strong-
ly “warrant consideration as trustworthy evidence.”
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d
1525, 1528 (Fed. Cir. 1993).
Turning to the expert reports, the Special Master
found the report submitted by Dr. Wiznitzer for the
Secretary to be highly credible and Dr. Levin’s report
CANUTO v. HHS 7
submitted for the Canutos to be not credible, for several
reasons. First, Dr. Wiznitzer’s training and specialization
make him more qualified to offer an expert opinion in this
matter. Dr. Wiznitzer is a specialist in pediatric neurolo-
gy, with an extensive understanding of autism and other
pediatric neurodevelopmental disorders. Dr. Levin, on
the other hand, is a specialist in oncology and hematology,
and has comparatively little experience with such disor-
ders.
Second, Dr. Levin’s expert report presents a medical
theory that the Special Master found to be “largely, if not
entirely, unsupported speculation.” Canuto, 2015 WL
9854939, at *21. Dr. Levin’s theory of causation was
based on the general rise of autism rates in the United
States, his unsubstantiated claim that the DTP vaccine
“has been related to later development of autism,” and his
claim that the DTP vaccine “caused fever, seizures and
encephalitis in this case”—a claim that, once again,
contradicts the available medical records. Canuto, 2015
WL 9854939, at *15. Dr. Levin failed to produce any
scientific support for the notion that the DTP vaccine can
cause autism generally, let alone evidence that it actually
caused autism in D.A.C.’s specific case.
Finally, the Special Master noted that the Levin re-
port “was mistaken on the critical point of identifying the
type of vaccinations that DAC actually received,” misiden-
tifying one of the vaccines received in 2001 as a DTP
vaccine when it was in fact a DTaP vaccine—a vaccine
which his own report describes as much safer than the
DTP vaccine. Canuto, 2015 WL 9854939, at *21–22.
Moreover, the Special Master observed that Dr. Levin’s
summary of D.A.C.’s medical history seemed to “link the
onset of” fever, which Dr. Levin purports as the root cause
of D.A.C.’s autism, “to D.A.C.’s Hib vaccination of March
30, 2001, and not to any of his DTP or DTaP vaccina-
tions.” Canuto, 2015 WL 9854939, at *23 (emphasis
added).
8 CANUTO v. HHS
The Special Master also noted that, even if Dr. Levin’s
underlying medical theories were taken at face value, he
did not “offer any explanation for how such a reaction”—
like the one D.A.C. allegedly experienced following the
Hib vaccination—“could ultimately lead to autism.”
Canuto, 2015 WL 9854939, at *22. The Special Master
thus ultimately concluded that Dr. Levin’s opinion was
“wholly unpersuasive regarding every element necessary
to proving causation-in-fact.” Canuto, 2015 WL 9854939,
at *21.
The Canutos’ Informal Brief alleges that the Special
Master and Court of Federal Claims failed to consider
evidence regarding the “regulation of brain ions.” But Dr.
Levin’s report contained no reference to brain ions. In
addition, though the Special Master did not specifically
mention brain ions in his decision, he did expressly refer
to the multiple and voluminous submissions proffered by
the Canutos, describe his search through those submis-
sions, and note his subsequent finding that their theories
of causation—including necessarily those relating to
“brain ions”—“do not constitute a medical or expert opin-
ion” and “therefore have very little evidentiary value.”
Canuto, 2015 WL 9854939, at *17.
To succeed under the Althen test, the Canutos must
provide by preponderant evidence a medical theory that
causally connects the vaccination and the injury, a logical
sequence of cause and effect that shows that the vaccina-
tion was the reason for the injury, and a proximate tem-
poral relationship between the vaccination and the injury.
Althen, 418 F.3d at 1278. The evidence that the Canutos
presented is contradicted by the medical record, internally
inconsistent, and fails to fully address causation. The
Special Master, considering that evidence, drew plausible
inferences and articulated a rational basis under Althen
to deny the Canutos’ claim.
CANUTO v. HHS 9
CONCLUSION
Because the Special Master applied the appropriate
legal framework and evidentiary standards to his analy-
sis, and because his factual findings and weighing of
evidence demonstrated plausible inferences and rationali-
ty, we discern no error in the United States Court of
Federal Claims’ judgment that the Special Master did not
rule arbitrarily or capriciously in denying the Canutos’
claim. See 42 U.S.C. § 300aa-13(a)(1)(A); Hines, 940 F.2d
at 1528.
AFFIRMED