Contreras v. Secretary of Health & Human Services , 844 F.3d 1363 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
JESSIE CONTRERAS,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2015-5097
______________________
Appeal from the United States Court of Federal
Claims in No. 1:05-vv-00626-LJB, Senior Judge Lynn J.
Bush.
______________________
Decided: January 3, 2017
______________________
JEFFREY S. POP, Jeffrey S. Pop & Associates, Beverly
Hills, CA, argued for petitioner-appellant.
VORIS EDWARD JOHNSON, JR., Vaccine/Torts Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by BENJAMIN C. MIZER, VINCENT J.
MATANOSKI, RUPA BHATTACHARYA, LINDA SARA RENZI.
______________________
Before DYK, MAYER, and HUGHES, Circuit Judges.
2 CONTRERAS v. HHS
HUGHES, Circuit Judge.
Jessie Contreras appeals from a U.S. Court of Federal
Claims judgment upholding a Special Master’s denial of
compensation for his Guillain-Barre Syndrome and
Transverse Myelitis allegedly caused by vaccinations.
Because the Special Master improperly diagnosed
Mr. Contreras and failed to consider relevant evidence
related to his Guillain-Barre Syndrome, we vacate and
remand for further proceedings consistent with this
opinion.
I
On June 16, 2003, Jessie Contreras (Mr. Contreras),
then thirteen years old, received the Tetanus-Diphtheria
vaccine and his third inoculation of the Hepatitis B vac-
cine. Before he received these vaccinations, Dr. Fred
Kyazze conducted a complete physical examination and
determined that Mr. Contreras was healthy.
Approximately twenty-four hours later, Mr. Contreras
complained to his mother that he was experiencing back
pain and numbness in his hands. She immediately took
Mr. Contreras to the emergency room, where Dr. Mark
Wagner, a board-certified emergency room physician,
diagnosed him with atypical Guillain-Barre Syndrome
(GBS), a peripheral nervous system disease that causes
descending paralysis from the upper to lower extremities.
J.A. 281; 586. Mr. Contreras’s symptoms rapidly escalat-
ed—within hours he had difficulty standing or walking,
weakness in his arms, and required catheterization.
Mr. Contreras was ultimately transferred to the pediatric
intensive care unit at Miller Children’s Hospital.
Upon admittance at Miller Children’s, Mr. Contreras
was described as presenting “progressive neuromuscular
deterioration and life-threatening respiratory failure.”
J.A. 288. Over the next three months, Mr. Contreras
suffered from a variety of symptoms caused by his illness,
CONTRERAS v. HHS 3
including quadriplegia and acute respiratory failure.
J.A. 289. Mr. Contreras was discharged from Miller
Children’s on September 11, 2003, with a discharge
diagnosis of Transverse Myelitis (TM), an inflammatory
disease of the spinal cord. 1 J.A 289; J.A. 608.
On June 15, 2005, Mr. Contreras’s father filed a peti-
tion for vaccine compensation under the Vaccine Act,
alleging that Mr. Contreras suffered TM and GBS as the
result of the vaccinations administered on June 16, 2003.
Mr. Contreras’s petition included affidavits from:
(1) Dr. Kyazze; (2) Dr. Wagner; and (3) Dr. Jeremy S.
Garrett, a general pediatrician and critical care physician,
who treated Mr. Contreras during his admission to Miller
Children’s and ultimately diagnosed him with TM.
Mr. Contreras also filed the expert report of pediatric
neurologist Dr. Charles M. Poser, M.D., who concluded
that he developed GBS and TM as a direct result of the
administration of the vaccines.
On October 7, 2005, the Secretary of Health and Hu-
man Services filed her Vaccine Rule 4 Report indicating
that Mr. Contreras was not entitled to compensation
because he had failed to establish, by a preponderance of
the evidence, that either vaccine caused his condition.
The Secretary also filed the expert report of pediatric
neurologist John T. Sladky, M.D., who opined that
Mr. Contreras only suffered from TM, not both TM and
GBS, and that the time interval—less than twenty-four
hours between the administration of Mr. Contreras’s
1 Although TM and GBS are both “diseases in
which portions of the nervous system are demyelinated,”
J.A. 41, TM affects the central nervous system, which is
protected by the blood-brain barrier, see J.A. 459, and
GBS affects the peripheral nervous system, which is not
protected by the blood-brain barrier, see id.
4 CONTRERAS v. HHS
vaccines and the onset of his TM—was too soon for one or
both of the vaccinations to have caused his condition.
To address whether Mr. Contreras’s illness had oc-
curred within a medically-appropriate time-frame,
Mr. Contreras submitted the medical expert report of
pediatric neurologist Lawrence Steinman, M.D., who
concluded that Mr. Contreras developed both GBS and
TM caused by a rapid adverse immunological response to
both vaccinations. In response to Dr. Steinman’s report,
the Secretary filed an expert report from immunologist J.
Lindsay Whitton, M.D., Ph.D., who agreed that
Mr. Contreras suffered from both GBS and TM, but
disputed Dr. Steinman’s theory of causation and the
timing of Mr. Contreras’s condition in relation to his
vaccinations, reiterating that twenty-four hours was not
enough time for either TM or GBS to develop after vac-
cination.
On April 5, 2012, the Special Master issued his first
decision (Contreras I) denying Mr. Contreras compensa-
tion under the Vaccine Act. See J.A. 30–64. The Special
Master determined that Mr. Contreras only suffered from
TM, not both TM and GBS. The Special Master then
concluded that Mr. Contreras failed to establish that the
TM arose within a “medically appropriate” timeframe
following his vaccinations under the third prong of Althen
v. Secretary of Health & Human Services, 418 F.3d 1274
(Fed. Cir. 2005). J.A. 62–63.
Mr. Contreras sought review and on September 28,
2012, the Court of Federal Claims vacated and remanded
Contreras I after concluding that the Special Master’s
finding of a specific diagnosis was not in accordance with
law (Contreras II). The Special Master was instructed, on
remand, to refrain from making a determination regard-
ing Mr. Contreras’s specific diagnosis. The Special Mas-
ter was also instructed to analyze the evidence under all
three prongs of Althen, address the weight afforded to
CONTRERAS v. HHS 5
Mr. Contreras’s treating physicians, address whether
Mr. Contreras had ruled out all alternative causes for his
condition, consider case reports, and more thoroughly
discuss the evidence proffered in Dr. Poser’s report.
J.A. 110–13.
During the pendency of the decision on remand, the
Secretary filed a status report disclosing that Dr. Sladky’s
medical license was suspended during the time that he
had provided the Government with expert witness ser-
vices in this case. J.A. 118. Moreover, Dr. Sladky’s CV
indicated that he was licensed to practice medicine in
Pennsylvania, but that license expired in 1996, nine years
before his initial report was filed in this case. Id. The
Secretary maintained that these “undisclosed licensure
issues should not affect the evidentiary weight of his
opinions.” J.A. 119. Mr. Contreras disagreed and argued
that Dr. Sladky’s testimony should “carry little, if any
weight,” J.A. 118, because his “lack of transparency and
untruthfulness . . . bear on his bias and character critical-
ly undermining his credibility as an expert,” J.A. 119
(omission in original).
On November 19, 2013, the Special Master again de-
nied Mr. Contreras compensation (Contreras III).
J.A. 114–90. First, the decision found that Dr. Sladky’s
opinion “retain[ed] some value” after determining that
“the lack of disclosure and (implicit) misrepresentation
about qualification do[] not entirely negate [his] opinion.”
J.A. 120. Next, the Special Master determined that
Mr. Contreras did not suffer from GBS—a direct violation
of the court’s instruction to refrain from diagnosing
Mr. Contreras—and therefore based his analysis solely on
the TM diagnosis. J.A. 143–45. Finally, he determined
that “the one-day interval is not a time-frame for which it
is medically acceptable” to conclude that the vaccine
caused the injury. J.A. 189.
6 CONTRERAS v. HHS
Mr. Contreras again sought review and on May 19,
2014, the Court of Federal Claims vacated and remanded
Contreras III (Contreras IV). J.A. 191–214. The Court of
Federal Claims was highly critical of the Special Master’s
finding that Dr. Sladky’s opinion retained “some value” in
light of his failure to disclose his suspended medical
license and his lack of candor during his testimony re-
garding his credentials and job description. J.A. 212. On
remand, the Special Master was instructed to: (1) address
Dr. Sladky’s credibility and reliability in light of his
misrepresentations; (2) compare Dr. Sladky’s credibility to
the credibility of the experts and witnesses testifying for
Mr. Contreras; and (3) issue an alternative ruling that
completely disregards all of Dr. Sladky’s opinions and
testimony. J.A. 212–13.
On October 24, 2014, the Special Master issued a sec-
ond Decision on Remand denying Mr. Contreras compen-
sation (Contreras V). J.A. 215–74. The Special Master
again determined that although Dr. Sladky had misrepre-
sented his credentials, J.A. 242, his opinions were based
upon “reliable methodologies” and, therefore, retained
some value, J.A. 244–45. The Special Master also issued
an alternative opinion that disregarded the opinions and
testimony of Dr. Sladky, and concluded that
Mr. Contreras’s expert, Dr. Steinman, had failed to estab-
lish by a preponderance of the evidence a proximate
temporal relationship between the vaccination and the
injury as required under prong three of Althen. J.A. 265–
66; 273–74.
Mr. Contreras sought review for a third time, which
the Court of Federal Claims denied on April 17, 2015
(Contreras VI). The court determined that the Special
Master abused his discretion by crediting Dr. Sladky’s
opinion and therefore vacated the entitlement ruling in
Contreras III, which was incorporated into Contreras V.
J.A. 7–18. The court also found that the Special Master
erred by conducting a “threshold inquiry into the specific
CONTRERAS v. HHS 7
diagnosis of [Mr. Contreras’s] alleged vaccine injury,” and
by imposing “a higher burden on petitioner [on Althen
prong one] than is appropriate under Federal Circuit
precedent,” but that both errors were harmless. See
J.A. 22–23; 26. Finally, the court determined that the
Special Master’s alternate ruling on Althen prong three—
that twenty-four hours was too short of time to develop
TM or GBS after a vaccine—contained no error of law or
abuse of discretion. J.A. 27. Therefore, the court denied
the petition for review.
Mr. Contreras appeals. We have jurisdiction under 42
U.S.C. § 300aa-12(f).
II
The Federal Circuit reviews an appeal from the Court
of Federal Claims in a Vaccine Act case de novo, “applying
the same standard of review as the Court of Federal
Claims applied to its review of the special master’s deci-
sion.” Griglock v. Sec’y of Health & Human Servs., 687
F.3d 1371, 1374 (Fed. Cir. 2012) (citation omitted); see
also Paluck v. Sec’y of Health & Human Servs., 786 F.3d
1373, 1378 (Fed. Cir. 2015). “We give no deference to the
Claims Court’s or Special Master’s determinations of law,
but uphold the Special Master’s findings of fact unless
they are arbitrary or capricious.” Griglock, 687 F.3d at
1374 (citation omitted). We review discretionary rul-
ings—i.e., exclusion of evidence or limitation of the record
upon which the special master relies—under the abuse of
discretion standard. Munn v. Sec’y of Health & Human
Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). Ultimate-
ly, “if the special master ‘has considered the relevant
evidence of record, drawn plausible inferences and articu-
lated a rational basis for the decision, reversible error will
be extremely difficult to demonstrate.’” Hibbard v. Sec’y
of Health & Human Servs., 698 F.3d 1355, 1363 (Fed. Cir.
2012) (quoting Hines ex. rel. Sevier v. Sec’y of the Dep’t of
8 CONTRERAS v. HHS
Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir.
1991)).
To establish that the vaccine caused the injury, a peti-
tioner must prove, by a preponderance of the evidence:
(1) a medical theory causally connecting the vaccination
to the injury; (2) a logical sequence of cause and effect
demonstrating that the vaccination caused the injury; and
(3) a proximate temporal relationship between the vaccine
and the injury. Althen, 418 F.3d at 1278.
Here, the Court of Federal Claims determined that
the Special Master erred by conducting a “threshold
inquiry into the specific diagnosis of Jessie’s alleged
vaccine injury,” but that the error was harmless. We
disagree.
In Hibbard, this court determined that if there is a
dispute as to the nature of a petitioner’s injury, the spe-
cial master may opine on the nature of the petitioner’s
injury. 698 F.3d at 1365. Here, however, there was no
dispute as to the nature of Mr. Contreras’s injury—both
parties’ experts agreed that he suffered from TM and
GBS. See J.A. 379; 426. Therefore, the Special Master
erred by concluding that Mr. Contreras only suffered from
TM and not both TM and GBS.
That error was harmful. Based on this improper di-
agnosis, the Special Master did not consider relevant
evidence related to GBS in his Althen analysis. See
J.A. 256 (“Mr. Contreras did not suffer from Guillain-
Barre syndrome.”); J.A. 145 (“[T]he following Althen
analysis is limited to the issue of whether the hepatitis B
vaccine can cause transverse myelitis.”); J.A. 63 (“The
testimony of . . . Dr. Whitton was consistent with medical
literature that shows that, at a minimum, the blood brain
barrier [which is only implicated in TM] would prevent an
immune-mediated reaction in the spinal cord in one
day.”); id. (“[Dr. Whitton’s] opinion is that ‘there is no
credible hypothesis that would explain a 24-hour
CONTRERAS v. HHS 9
timeframe, which would tie a vaccine causally to the
induction of such a profound central nervous system
disease [TM].’” (citation omitted)). Although the Special
Master noted that Dr. Whitton’s conclusion “would not
change depending upon the demyelinating disease,” J.A.
257, this does not mean that the Special Master consid-
ered evidence related to demyelinating disease GBS. In
fact, to the contrary, the record supports the conclusion
that the Special Master failed to consider the medical
theories advanced by Dr. Steinman and Dr. Whitton
relating to Mr. Contreras’s GBS diagnosis. See id.
Because TM and GBS are separate diagnoses that af-
fect different parts of the nervous system, we find that the
Special Master committed reversible error by failing to
consider relevant evidence related to GBS. Therefore,
this case must be remanded once again for a proper
consideration of the evidence.
III
Ordinarily, this case would be remanded to the origi-
nally assigned Special Master. See Richardson ex. rel.
Richardson v. Sec’y of Health & Human Servs., 89 Fed.
Cl. 657, 660 (2009). In this instance, however, we believe
that fundamental fairness is best served by assigning the
case to a different special master on remand. See id.;
Vaccine Rule 3(d).
This case has a lengthy history, including two sepa-
rate remands before the present appeal. The Special
Master has consistently maintained that Mr. Contreras
only suffers from TM—despite specific instructions that
he must consider both the TM and GBS diagnoses. See
J.A. 111 (“The special master may not diagnose Jessie’s
illness, but shall examine whether petitioner has estab-
lished a prima facie case that he suffered a vaccine-
related combination of TM and GBS.”). Given that the
Special Master has maintained an erroneous viewpoint
throughout this case, despite instructions to the contrary,
10 CONTRERAS v. HHS
we advise that this case be assigned to a different special
master on remand. See United States v. Robin, 553 F.2d
8, 10 (2d Cir. 1977) (“[Reassignment is advisable] [w]here
a judge has made detailed findings based on evidence
erroneously admitted or factors erroneously considered,
[because] the circumstances sometimes are such that
upon remand he or she . . . cannot reasonably be expected
to erase the earlier impressions from his or her
mind . . . .”); id. at 11 (“[W]here a judge has repeatedly
adhered to an erroneous view after the error is called to
his attention, reassignment to another judge may be
advisable in order to avoid an exercise in futility (in
which) the Court is merely marching up the hill only to
march right down again.” (internal quotation marks and
citations omitted)).
IV
Because the Special Master committed reversible er-
ror by failing to consider relevant evidence related to
Mr. Contreras’s Guillain-Barre Syndrome, we vacate and
remand for further proceedings consistent with this
opinion. On remand, the newly assigned special master
shall issue comprehensive findings and conclusions as to
all issues. In light of our disposition, we need not address
the appellant’s other asserted errors, which may well be
obviated by the findings and conclusions of the new
special master on remand.
VACATED AND REMANDED
Costs to Contreras.