Porter v. Secretary of Health and Human Services

663 F.3d 1242, 2011 WL 5840315
CourtCourt of Appeals for the Federal Circuit
DecidedNovember 22, 2011
Docket19-2011
StatusPublished
Cited by419 cases

This text of 663 F.3d 1242 (Porter v. Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Porter v. Secretary of Health and Human Services, 663 F.3d 1242, 2011 WL 5840315 (Fed. Cir. 2011).

Opinions

PROST, Circuit Judge.

The government appeals the combined decision of the United States Court of Federal Claims (“Claims Court”) reversing a special master’s decision denying Mona Porter’s and Claudia Rotoli’s petitions for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act”), 42 U.S.C. §§ 300aa-l to -34. The special master concluded that Ms. Porter and Ms. Rotoli did not prove by a preponderance of the evidence that the hepatitis B vaccine — which they both received in three doses in the 1990s — caused them to suffer autoimmune hepatitis (“AIH”). The Claims Court, incorrectly applying Andreu v. Secretary of Health & Human Services, 569 F.3d 1367 (Fed.Cir.2009), set aside the special master’s findings in their entirety on the ground that the special master allegedly erred by considering the credibility of the petitioners’ expert witness. Having rejected the special master’s findings, the Claims Court entered its own findings and determined that both Ms. Porter and Ms. Rotoli were entitled to recover for their AIH under the Vaccine Act. We conclude that the Claims Court’s interpretation of Andreu was legally erroneous and inconsistent with this court’s precedent. We further conclude that the special master’s determination that the petitioners were not entitled to compensation under the Vaccine Act was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. As such, we reverse and remand with instructions to affirm the special master’s determination that neither petitioner is entitled to recover under the Vaccine Act.

Background

I

The two appeals before us present overlapping legal and factual issues. The first, case number 2010-5162, concerns petitioner Mona Porter. Ms. Porter was born on September 28, 1962. The first date in her medical history that has relevance to this case is May 15, 1991. On that day, Ms. Porter’s dermatologist prescribed minocycline for Ms. Porter’s acne. Minocycline is well-known in the literature to cause AIH. On May 11, 1992, her dermatologist indicated that she should “finish off’ her minocycline dosage and then discontinue treatment with the drug.

On July 8, 1992, Ms. Porter received the first of three doses of the hepatitis B vaccine. She also had a liver function blood test that day. Her liver function tests were within the normal range. Ms. Porter’s second dose was administered on August 7, 1992. The record does not indicate whether she had any blood work performed on that day. Ms. Porter received her final vaccine dose on February 5, 1993. A liver function test performed on March 1 revealed that her liver enzymes were elevated well beyond the normal range. The liver function test was repeated four days later and yiélded comparable results. Blood tests from this date indicated that Ms. Porter was immune to hepatitis B and was not infected with hepatitis A, B, or C.

On March 11, 1993, Ms. Porter started feeling nauseated, itching, and turning yellow. She visited a doctor who was her employer’s colleague, but the office did not create a record of this visit. Ms. Porter next saw a gastroenterologist, Dr. Richard Gilmore. At the initial visit, Dr. Gilmore’s impression was that Ms. Porter suffered [1246]*1246from “acute hepatitis of undetermined etiology. The possibility that this is related to her vaccine cannot be excluded.” He prescribed a steroid to minimize the body’s immune response, and requested additional blood work. The blood work, which was performed on April 1, 1993, was consistent with a diagnosis of AIH. A liver function test showed that Ms. Porter’s liver enzymes had decreased but were still above normal. In light of these test results, a liver biopsy was performed on May 14, 1993. The pathologist and Dr. Gilmore interpreted the results as being consistent with AIH.

AIH continued to affect Ms. Porter for several additional years. On August 4, 1999, she filed a petition seeking compensation under the Vaccine Act. See 42 U.S.C. §§ 300aa-l et seq.

The second appeal, case number 2010-5163, concerns petitioner Claudia Rotoli.1 Ms. Rotoli was born on January 25, 1969. As pertinent to this case, Ms. Rotoli’s medical history began in 1984, a decade before she received the hepatitis B vaccine. From March 1984 to February 1990, Ms. Rotoli was treated for skin rashes, shoulder pain, and severe anxiety. In addition, Ms. Rotoli received treatment for anxiety and depression in 1994. Her symptoms included slow and difficult speech, episodes of blurred vision, chest pains and difficulty thinking. Ultimately, she was treated at a Florida hospital emergency room for confusion, stuttering, and speech difficulty. Her examination at that time included a CT head scan, thyroid profile, and blood count, which were all normal.

On October 10, 1994, Ms. Rotoli received the first dose of the hepatitis B vaccine as well as a flu vaccine. Two days later, she began to experience coughing, congestion, and fever. On October 21, 1994, her doctor recommended that she take cough medicine for these symptoms. She was given the next dose of the hepatitis B vaccine on November 9, 1994. She visited her doctor approximately two months later to be treated for a prolonged upper respiratory infection, bronchitis, and conjunctivitis. She further reported that she began to have pain in her “right upper quadrant” in May 1995. On May 5, 1995, Ms. Rotoli received her final dose of the hepatitis B vaccine. Four days later, she donated blood. On May 19, 1995, the blood service informed her that her donated blood contained an elevated amount of a certain enzyme diagnostic for some forms of liver disease.

Ms. Rotoli sought information about her abnormal liver test results. Blood tests from May 25, 1995 confirmed that she had elevated liver enzyme levels. Ms. Rotoli was diagnosed as having hepatitis of unknown origin. She saw a general practitioner on May 31, 1995 for a follow up. That doctor noted that Ms. Rotoli had a slight tremor in her hand, and ordered additional blood tests, which again confirmed that Ms. Rotoli’s liver function was not normal. She subsequently saw Dr. Katz, a gastroenterologist, on June 20, 1995. Dr. Katz thought that Ms. Rotoli might have either a viral illness or AIH and ordered additional blood tests. The test results were consistent with a diagnosis of AIH. On June 29, 1995, Ms. Rotoli had a liver biopsy. This biopsy showed that Ms. Rotoli had chronic, active hepatitis with fibrosis and moderate necrosis. Based on her blood test results and liver biopsy, Dr. Katz diagnosed Ms. Rotoli as having AIH and prescribed a steroid to [1247]*1247moderate the reaction of her immune system.

AIH and other health problems continued to plague Ms. Rotoli. In October of 1996, she was further diagnosed with Sjogren’s disease. The following year, she was diagnosed with systemic lupus erythematosus, another autoimmune disorder. In 1998, she was diagnosed with central nervous system lupus. She filed a Vaccine Program petition on August 4, 1999, seeking compensation for her AIH and associated injuries.

II

Ms. Porter’s and Ms.

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