Marks (Next Friend of Brandon D. James) v. Secretary of Health and Human Services

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-5037
GEORGIA L. MARKS
(next friend of Brandon D. James),
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Georgia L. Marks, of Houston, Texas, pro se
Vincent J. Matanoski, Assistant Director, Torts Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With him
on the brief were Peter D. Keisler, Assistant Attorney General, Timothy P. Garren,
Director, and Mark W. Rogers, Deputy Director.
Appealed from: United States Court of Federal Claims
Judge Lynn J. Bush
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-5037
GEORGIA L. MARKS,
(next friend of Brandon D. James),
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
__________________________
DECIDED: August 7, 2007
__________________________
Before NEWMAN, LOURIE, and PROST, Circuit Judges.
PER CURIAM.
Georgia Marks, as next friend of her son, Brandon James, appeals the decision
of the United States Court of Federal Claims affirming the decision of the special master
and denying compensation for an injury James suffered after receiving a Hepatitis B
vaccine. Marks v. Sec’y of Health & Human Servs., No. 99-761V (Fed. Cl. Jan. 30,
2007). Because we find nothing arbitrary or capricious about the special master’s
factual findings, we affirm the judgment of the Court of Federal Claims.
DISCUSSION
We review the Court of Federal Claims’ review of a special master’s decision
without deference. Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146, 1148
(Fed. Cir. 2007). In that review, we affirm the special master’s factual determinations
unless “arbitrary and capricious,” and modify legal conclusions if we determine they are
“not in accordance with law.” Id.Marks pursued a claim for compensation for James’s swelling or lymphangioma,
an injury not appearing on the Vaccine Injury Table. 42 C.F.R. § 100.3. She therefore
presents an off-Table claim, and must prove, among other things, actual causation.
Walther, 485 F.3d at 1149. To prove actual causation, a petitioner must demonstrate
“(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect; and (3) a proximate temporal relationship between the
vaccination and the injury.” Id. at 1150.
The special master found that Marks’s evidence of causation could not be found
in the medical records. Marks v. Sec’y of Health & Human Servs., No. 99-761V, slip op.
at 5–6 (June 2, 2006). The special master criticized Marks’s evidence from Dr.
Campbell as not amounting to an expert opinion and failing to prove causation, at least
because it lacked a medical theory or any basis for his conclusions. Id., slip op. at 6–7.
Further, the special master considered the testimony of Terri Jarreau, who cared for
James and Marks following James’s birth, and concluded that Jarreau’s testimony cast
doubt upon Marks’s contention that James’s leg was extremely swollen after the first
shot. Id., slip op. at 7–8.
2007-5037 2
Highlighting medical records created at James’s birth, the special master
confirmed his earlier findings that the lymphangioma pre-dated the vaccinations and
that James received the first vaccination in his right leg—not the leg with the
lymphangioma. Id., slip op. at 8. We find nothing arbitrary or capricious about the
special master’s factual findings. Dr. Campbell’s letter does not amount to an opinion
sufficient to prove causation, and the medical records from James’s birth directly
contradict a showing of causation by the vaccine. Accordingly, we affirm the decision
by the Court of Federal Claims.
No costs.
2007-5037 3