Argueta v. Secretary of Health & Human Services

102 Fed. Cl. 272, 2011 U.S. Claims LEXIS 2439, 2011 WL 6965896
CourtUnited States Court of Federal Claims
DecidedDecember 22, 2011
DocketNo. 07-784 V
StatusPublished
Cited by1 cases

This text of 102 Fed. Cl. 272 (Argueta v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Argueta v. Secretary of Health & Human Services, 102 Fed. Cl. 272, 2011 U.S. Claims LEXIS 2439, 2011 WL 6965896 (uscfc 2011).

Opinion

OPINION ON MOTION FOR REVIEW 1

DAMICH, Judge:

On August 1, 2011, Petitioner Veronica Argueta, mother and legal representative of her minor son, Joshua Argueta, filed a petition for review of the Special Master’s Decision on Entitlement (“Special Master Dec.” or “Dec.”), 2011 WL 2945803, No. 07-784 V, June 30, 2011, denying compensation under the National Child Vaccine Injury Act of 1986, 42 U.S.C. § 300aa-l et seq. (2006) (“Vaccine Act”). Ms. Argueta had alleged that a diphtheria-tetanus-aeellular pertussis (“DTaP”) vaccination that Joshua had received on November 10, 2004, caused him to develop an encephalopathy and seizures and to suffer permanent brain injury. Petition (“Pet.”) at 1-4.

In particular, Petitioner alleged that Joshua’s injury was an encephalopathy under the Vaccine Injury Table, 42 C.F.R. § 100.3 (2010). The Special Master ruled, however, that Petitioner had not met her burden of proof of two factual elements required of a Table encephalopathy. First, she had not shown that Joshua exhibited the requisite conditions of an acute encephalopathy within a prescribed time period and, second, Joshua had in fact exhibited symptoms of his injury prior to his vaccination. A failure of proof in either respect precludes recovery for a Table injury under the Vaccine Act.

As grounds for her motion for review, Petitioner faults the Special Master’s findings of fact as inconsistent, contrary to evidence and logic, and lacking a rational basis.

For the reasons set forth below, the Court DENIES Petitioner’s motion for review.

I. Table Encephalopathy

Under the Vaccine Act, a petitioner alleging a Table injury need not demonstrate causation in fact. The Table “lists the vaccines covered under the Act, together with particular injuries or conditions associated with each one.” Shalala v. Whitecotton, 514 U.S. 268, 270, 115 S.Ct. 1477, 1479, 131 L.Ed.2d 374 (1995). If the claimant can show that she (or the injured person for whom she acts) suffered an injury listed on the Table associated with a vaccine and that the first symptom or manifestation of the onset or aggravation of the injury occurred within a time period prescribed under the Table, then causation is presumed. Id. “Thus, the rule of prima facie proof turns the [275]*275old maxim on its head by providing that if the post hoc event happens fast, ergo propter hoc." Id.

A vaccine recipient has suffered a Table encephalopathy if he manifests, within the applicable period, “an injury meeting the description ... of an acute encephalopathy, and then a chronic encephalopathy persists in such person for more than 6 months beyond the date of vaccination.” 42 C.F.R. § 100.3(b)(2). An acute encephalopathy is further characterized as “one that is sufficiently severe so as to require hospitalization (whether or not hospitalization occurred).” § 100.3(b)(2)®.

An acute encephalopathy in children less than 18 months of age who present without an associated seizure is indicated by “a significantly decreased level of consciousness lasting for at least 24 hours.” § 100.3(b)(2)(i)(A). A “significantly decreased level of consciousness” in turn is indicated by at least one of three clinical signs for at least 24 hours: “Decreased or absent response to environment (responds, if at all, only to loud voice or painful stimuli);” “Decreased or absent eye contact (does not fix gaze upon family members or other individuals);” or “Inconsistent or absent responses to external stimuli (does not recognize familiar people or things).” § 100.3(b)(2)(i)(D).

Conditions such as “[sjleepiness, irritability (fussiness), high-pitched and unusual screaming, persistent inconsolable crying, and bulging fontanelle,” however, do not suffice as demonstrating an acute encephalopathy or a significant change in level of consciousness. § 100.3(b)(2)(i)(E).

The applicable time period for manifestation of an acute encephalopathy due to the DTaP is 72 hours vaccine after administration. § 100.3(a)II.B.

A petitioner has an additional burden of proof, moreover, of a Table injury under the Vaccine Act. “[A] demonstration that the claimant experienced symptoms of an injury during the table period, while necessary, is insufficient to make out a prima facie case. The claimant must also show that no evidence of the injury appeared before the vaccination.” Whitecotton, 514 U.S. at 274, 115 S.Ct. 1477.

II. Standard of Review

Under the Vaccine Act, a court may set aside a Special Master’s findings of fact or conclusions of law only if they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). “We owe no deference to the Claims Court or the special master on questions of law. We uphold the special master’s findings of fact unless they are arbitrary or capricious.” Porter v. Sec’y of HHS, 663 F.3d 1242, 1249 (Fed.Cir.2011) (citing Andreu v. Sec’y of HHS, 569 F.3d 1367, 1373 (Fed.Cir.2009)).

In that regard, “the fact-finder has broad discretion in determining credibility because he saw the witnesses and heard the testimony.” Bradley v. Sec’y of HHS, 991 F.2d 1570, 1575 (Fed.Cir.1993). “Indeed, this court has unambiguously explained that special masters are expected to consider the credibility of expert witnesses in evaluating petitions for compensation under the Vaccine Act.” Porter, 663 F.3d at 1250. Moreover, “[sjueh credibility determinations are ‘virtually unreviewable’ ” on appeal. Id.

In Porter, the Federal Circuit twice recited the limited role of the reviewing court with respect to the Special Master’s findings of fact:

We do 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.

Id. at 1249,1254.

The charge of this court, accordingly, is not to put itself in the place of the fact finder, but rather to examine the foundation of the Special Master’s decision. In Porter, the Federal Circuit found that the Special Master’s decision “reveals a thorough and careful evaluation of all of the evidence including records, tests, reports, and medical literature, as well as the experts’ opinions and their credibility.” Id. at 1254.

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102 Fed. Cl. 272, 2011 U.S. Claims LEXIS 2439, 2011 WL 6965896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/argueta-v-secretary-of-health-human-services-uscfc-2011.