485 F.3d 1146 (Fed. Cir. 2007), 2006-5056, Walther v. Secretary of Health and Human Services

Docket Nº:2006-5056.
Citation:485 F.3d 1146
Party Name:Patricia Ann WALTHER, Petitioner-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.
Case Date:May 01, 2007
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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485 F.3d 1146 (Fed. Cir. 2007)

Patricia Ann WALTHER, Petitioner-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee.

No. 2006-5056.

United States Court of Appeals, Federal Circuit.

May 1, 2007

Richard Gage, Richard Gage, P.C., of Cheyenne, WY, argued for petitioner-appellant.

Mark Curtis Raby, Senior Trial Counsel, Torts Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Timothy P. Garren, Director, Vincent J. Matanoski, Acting Deputy Director, and Gabrielle M. Fielding, Assistant Director.

Before DYK and PROST, Circuit Judges, and McKINNEY, Chief Judge. [*]

DYK, Circuit Judge.

Appellant Patricia Ann Walther ("Walther") appeals a decision of the Court of Federal Claims sustaining the decision of a special master denying compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. § 300aa-1 et seq. (2000) ("Vaccine Act"). Because we conclude that the special master appears to have applied an incorrect legal standard--requiring Walther to eliminate other possible causes of her injury--we vacate the decision and remand for a determination under the correct standard.

BACKGROUND

Walther was a captain in the United States Army at the time of the events in question. On July 31, 1997, she received tetanus-diptheria ("Td"), 1 yellow

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fever, typhoid, and meningitis vaccinations. On August 6 she also received a rabies vaccination. On August 7 and 8 she experienced trembling in her left hand, weakness, and fatigue. When Walther continued to experience problems with her hands and her left leg, she sought medical treatment, which revealed progressive weakness in both hands and a mild partial paralysis of the left side of her body. On December 12, 1997, Dr. Seth Stankus, a military neurologist, diagnosed her with post-vaccinal acute disseminated encephalomyelitis ("ADEM"). ADEM is a neurological disorder caused by damage to the myelin sheath (fatty covering) insulating the nerve cells in the brain.

Two other neurologists and the Army's Physical Evaluation Board agreed with this diagnosis. Walther was placed on the Army's temporary disability retired list on May 22, 1998. She claims to continue to experience muscular weakness on her left side, fatigue, head tremors, and migraines resulting from ADEM. On July 20, 2000, Walther filed a petition under the Vaccine Act claiming that the Td vaccine caused her ADEM.

The special master held a hearing on May 20, 2005. The government's primary contention was that Walther did not suffer from ADEM. Walther presented the testimony of two experts to establish that she suffered from ADEM. The government introduced contrary testimony from two other experts. The government also contended that, even if Walther suffered from ADEM, it was not caused by the Td vaccine. On the causation question, Walther's expert, Dr. Vera Byers, opined that "it is more likely than not that [Walther's] diagnosed ADEM was produced by the tetanus toxoid-diptheria vaccination she received" because: (1) the medical literature confirmed that it was biologically plausible for Td vaccine to cause ADEM; (2) Walther developed her symptoms during the medically accepted timeframe--within six days of receiving the vaccine; (3) the other vaccines Walther received were unlikely to have caused her illness for reasons specific to each vaccine. J.A. at 73.

On the question of causation Walther also relied on her medical records, which reflected the opinions of her treating physicians that her condition was caused by a vaccination, and the report of another expert (Dr. Kinsbourne) in which he opined that "to a reasonable degree of medical certainty ... Dr. Walter's ADEM ... w[as] caused by the tetanus toxoid vaccination that she received." J.A. at 63. Petitioner also relied on two other special master decisions that held that the tetanus vaccine caused ADEM. See Kuperus v. Sec'y of Health & Human Servs., 2003 WL 22912885 at *1 (Fed.Cl.2003) (special master) (DTaP); Johnson v. Sec'y of Health & Human Servs., 2000 WL 1141582 at *10 (Fed.Cl.2000) (special master) (Td).

In an opinion issued on July 29, 2005, the special master dismissed Walther's petition. He did not reach the question that had been the focus of the hearing--whether Walther suffered from ADEM. Instead, he concluded that Walther had failed to carry her burden to prove that her illness was caused by the Td vaccine. He used a three-part test that required "proof of biologic plausibility between a vaccine and an injury; proof that an injury occurred within a medically-acceptable time period following vaccination; and proof eliminating other potential causes for the injury." Walther v. Sec'y of Health & Human Servs., No. 00-0426V, slip op. at 3-4 (Fed.Cl. July 29, 2005)

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(special master) (emphasis added) [" Special Master's Decision "].

The government conceded that the Td vaccine was a biologically plausible cause of Walther's ADEM and that her symptoms appeared within a medically-acceptable time period. Special Master Hearing Tr. 26; 35 (May 20, 2005). The government concluded that the petitioner had not adequately established causation for a number of reasons including that "Walther has not adequately eliminated the other vaccines that she received in Summer 1997 as causative agents for her condition." Special Master's Decision at 2 (internal quotation marks omitted). Viewing Dr. Byers's opinion as the only evidence on causation, the special master addressed her testimony directly and found that she was not credible on the causation issue. He "reject[ed] Dr. Byers's opinion" because he "harbor[ed] significant concerns regarding the quality and the substance of Dr. Byers's testimony." Id. at 4. In particular, the special master concluded that Dr. Byers had not stated "a viable proposition that Dr. Walther's [Td] vaccination, rather than one of Dr. Walther's other vaccinations, caused more likely than not [her] condition." Id. at 5 (emphasis added). Additionally, the special master distinguished the two other special master decisions that found that forms of the tetanus vaccine caused ADEM, both of which involved only one vaccine, based...

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