Deribeaux v. Sec'y of Health & Human Servs.

• Decision Date: 11 September 2013
• Docket Number: No. 2012–5127.,2012–5127.
• Citation: 717 F.3d 1363
• Parties: Madison DERIBEAUX, a minor, by her parents and natural guardian s, Gus DERIBEAUX, and Kimberly Burshiem, Petitioners–Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

717 F.3d 1363

Madison DERIBEAUX, a minor, by her parents and natural guardian s, Gus DERIBEAUX, and Kimberly Burshiem, Petitioners–Appellants,

v.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.

No. 2012–5127.

United States Court of Appeals,Federal Circuit.

June 7, 2013.

Rehearing and Rehearing En Banc Denied Sept. 11, 2013.

Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, of Vienna, VA, argued for petitioners-appellants.

Glenn A. MacLeod, 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 Stuart F. Delery, Principal Deputy Assistant Attorney General, Rupa Bhattacharyya, Director, Vincent J. Matanoski, Deputy Director, and Gabrielle M. Fielding, Assistant Director.

Before LOURIE, CLEVENGER, and REYNA, Circuit Judges.

LOURIE, Circuit Judge.

Petitioners Gus Deribeaux and Kimberly Burshiem, on behalf of their daughter, Madison Deribeaux (“Deribeaux”), appeal from the judgment of the United States Court of Federal Claims affirming a special master's decision denying their claim for compensation under the National Vaccine Injury Compensation Program for injuries allegedly caused by the Diphtheria–Tetanusacellular Pertussis (“DTaP”) vaccine. Deribeaux ex rel. Deribeaux v. Sec'y of Health & Human Servs., 105 Fed.Cl. 583 (2012). Because the special master did not apply an incorrect legal standard and because her evaluation of the case was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, we affirm.

Background

Deribeaux was born on August 19, 2001, and received the DTaP vaccination on March 28, 2002. The next day, she was taken to the emergency room having suffered from a prolonged seizure. She continued to seize, and her temperature was later recorded as 103.6 degrees Fahrenheit; but all other tests were reported normal and she did not suffer any additional seizures during several subsequent days that she remained at the hospital. Deribeaux, 105 Fed.Cl. at 585. Deribeaux continued to experience seizures throughout the following year, however, and she was again admitted to the hospital in April 2003 with recurrent convulsive episodes. Her discharge note from that instance stated that she had a seizure disorder that began two days after the DTaP vaccination, with subsequent admission and treatment for atypical Kawasaki disease (a rare, immune-mediated vasculitis); Deribeaux continued to experience seizures through 2005. Id. at 585–86.

In December 2005, genetic testing revealed that Deribeaux had a DNA sequence variation in her SCN1A gene, which was reportedly not inherited and arose spontaneously. Id. at 586. SCN1A mutations have been associated with several epilepsy syndromes, including Severe Myoclonic Epilepsy of Infancy (“SMEI”), also known as Dravet's Syndrome. Following genetic testing, Deribeaux's treating physicians consistently noted the diagnosis of SMEI and SCN1A mutation in association with her chronic seizures and developmental delays. Id.

This case was brought under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa–1 to –34 (“Vaccine Act”), as amended, which created the National Vaccine Injury Compensation Program through which claimants can petition the Court of Federal Claims to receive compensation for vaccine-related injuries or death. On March 11, 2005, before Deribeaux's genetic mutation was discovered, a petition was filed alleging that the administration of the DTaP vaccine was a substantial cause of her seizure disorder and developmental delay. Pursuant to 42 U.S.C. § 300aa–12(d), a hearing was held before a special master on September 20, 2007.

At that hearing, Deribeaux presented expert testimony that she had a reaction to the vaccine as a result of her poor immune system, which triggered her initial seizure and subsequent condition. Deribeaux, 105 Fed.Cl. at 587. In contrast, the Secretary presented expert testimony that Deribeaux's condition could be explained completely by Kawasaki disease or by enterovirus, that there was no evidence that her initial seizure resulted in brain damage, and that DTaP vaccination can cause febrile seizures but not chronic seizure disorders in children. Id. None of the medical records of treating physicians who diagnosed Deribeaux with SMEI were filed into the record prior to the initial entitlement hearing and no evidence concerning Deribeaux's genetic mutation or her diagnosis of SMEI was presented. The special master concluded that Deribeaux had established causation and was entitled to compensation, and therefore directed the parties to begin the damages phase of the proceeding. Id.

During the damages phase, Deribeaux produced new medical records, including documentation of her genetic mutation and diagnosis of SMEI, which her treating physicians had noted was the cause of her neurological disorder. Id. In light of that new evidence, the Secretary moved to set aside the special master's decision and to reopen the issue of entitlement. The case was then transferred to a second special master, who determined that the evidence presented at the hearing conducted by the earlier special master was sufficient to set forth Deribeaux's prima facie case and therefore to shift the burden of proof to the Secretary to establish alternative causation. Id.

A limited supplemental hearing was held on June 28, 2011, focused on whether the Secretary could rebut Deribeaux's prima facie case by showing that her disorder was caused by her SCN1A gene mutation, a factor unrelated to vaccination, pursuant to 42 U.S.C. § 300aa–13(a)(1)(A)–(B). The Secretary acknowledged that a vaccine-induced fever likely triggered Deribeaux's first febrile seizure because individuals with SMEI are prone to suffer seizures in the context of any temperature elevation, and presented additional expert testimony showing that the sole cause of Deribeaux's neurological disorders was her genetic mutation and that the vaccination neither caused nor aggravated her condition. Deribeaux, 105 Fed.Cl. at 587. The Secretary's position was thus that the course of Deribeaux's disorder was not altered by her initial seizure and that the disabilities caused by her genetic mutation would have been the same with or without the vaccine-induced seizure. Deribeaux contended that, notwithstanding her genetic mutation and diagnosis of SMEI, it was the DTaP vaccination that caused her condition by triggering an immune deficiency that led to additional disorders, including the atypical Kawasaki disease, and further neurological damage.

After considering the record as a whole, the special master determined that the Secretary had carried the burden of demonstrating alternative causation by establishing that an unrelated factor, namely, genetic mutation, caused Deribeaux's seizures and other neurological disorders, and concluded that SMEI provided a complete, alternative explanation for Deribeaux's condition. Id. at 588. Accordingly, the special master set aside the previous entitlement decision and dismissed Deribeaux's claim. Deribeaux timely moved for review of that decision by the Court of Federal Claims.

The Court of Federal Claims denied the motion for review and affirmed the decision, holding that the special master did not abuse her discretion or act arbitrarily, capriciously, or contrary to law in determining that the Secretary had met the burden of proving by a preponderance of the evidence that a substantial factor unrelated to the DTaP vaccine caused Deribeaux's injury. Id. at 596. In particular, the court held that the special master: (i) applied the correct legal standard as set forth in Althen v. Secretary of Health & Human Services, 418 F.3d 1274 (Fed.Cir.2005), id. at 590; (ii) acted properly within her discretion to rely on the testimonial evidence of experts and to determine the persuasiveness of experts, id. at 593; and (iii) did not err or act arbitrarily or capriciously in determining that Deribeaux's genetic mutation was the sole substantial cause of her condition despite the fact that the vaccine triggered her initial seizure, id. at 594–95.

This appeal followed. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

Discussion

We review without deference a ruling by the Court of Federal Claims on a special master's decision to grant or to deny entitlement to compensation under the Vaccine Act. Lampe v. HHS, 219 F.3d 1357, 1360 (Fed.Cir.2000) ; Hines v. HHS, 940 F.2d 1518, 1523–24 (Fed.Cir.1991). Accordingly, we “perform[ ] the same task as the Court of Federal Claims and determine[ ] anew whether the special master's findings were arbitrary or capricious.” Lampe, 219 F.3d at 1360;see also Hines, 940 F.2d at 1524 (holding that we review without deference the Court of Federal Claims's “determination as to whether or not the special master's decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

Whether the special master applied the appropriate standard of causation is a legal determination that we review without deference under the “not in accordance with law” standard. Munn v. HHS, 970 F.2d 863, 870–73 (Fed.Cir.1992). We apply the arbitrary and capricious standard when reviewing findings of fact, and review the special master's discretionary rulings for abuse of discretion. Id. at 870 n. 10. As we have noted:

Congress assigned to a group of specialists, the Special Masters within the Court of Federal Claims, the unenviable job of sorting through these painful cases and, based upon their accumulated expertise in the field, judging the merits of the individual claims. The statute makes clear that, on review, the Court of Federal Claims is not to second guess the Special Masters [sic] fact-intensive conclusions; the standard of review is uniquely deferential for what is essentially a judicial process. Our cases make clear that, on our review ... we...