Hinton v. Secretary of Health and Human Services

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
)
TRAMELLA HINTON, as general )
guardian of SHAWN’QUAVIOUS )
A’DREZ HINTON, )
)
Petitioner, ) No. 16-1140
)
v. ) Filed: May 15, 2023
)
SECRETARY OF HEALTH AND ) Re-issued: June 5, 2023 *
HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
OPINION AND ORDER
Respondent seeks review of a decision awarding Petitioner, Tramella Hinton, entitlement
to compensation under the National Vaccine Injury Compensation Program (“Vaccine Act”).
Petitioner filed her petition for compensation alleging that her son, Shawn’Quavious A’drez
Hinton (“Shawn”), suffered from Guillain-Barré Syndrome (“GBS”) caused by an influenza
vaccination he received on December 21, 2015. On March 9, 2018, the Special Master issued an
Order and Ruling on Facts finding that Petitioner had established adequate proof of vaccination.
Subsequently, Respondent filed a Rule 4(c) report stating that he would not defend this case. As
a result, on May 29, 2018, the Special Master ruled that Petitioner is entitled to compensation.
Respondent now seeks to reverse the Special Master’s Order and Ruling on Facts and vacate the
Ruling on Entitlement.
*
The Court issued this opinion under seal on May 15, 2023, and directed the parties to
file any proposed redactions by May 30, 2023. As the parties do not propose any redactions, the
Court reissues the opinion publicly in full.
For the reasons discussed below, the Special Master’s finding that Petitioner established
adequate proof of vaccination was not arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law. Accordingly, the Court DENIES Respondent’s Motion for Review.
I. BACKGROUND
A. Factual Background
1. Shawn’s Condition Prior to the Alleged Vaccination
Petitioner is Shawn’s mother and natural guardian. Am. Pet. ¶ 2, ECF No. 35. Shawn was
born with Down Syndrome on September 24, 1998, and resides with his mother and three younger
sisters. Pet’r’s Ex. 2 ¶ 2, ECF No. 14-2. According to Petitioner, prior to December 21, 2015,
Shawn was a healthy and active young man who attended Tarboro High School in North Carolina.
Id. ¶ 5. Shawn never complained to her of any pain, weakness, tingling, decreased sensation, or
decreased stability. Id. ¶ 4. Petitioner further contended that Shawn never had any limitation with
balance, gait, mobility, or endurance in standing. Id.
From approximately the time of Shawn’s birth through 2015, Shawn was a patient of Dr.
Gilbert Alligood, an internal medicine and pediatric specialist. Pet’r’s Ex. 12 at 7, 11, ECF No.
33-1. On July 10, 2015, Shawn attended an appointment with Dr. Alligood at Vidant Multi-
Specialty Clinic (“Vidant”) in Tarboro, North Carolina, for behavioral and sleeping problems.
Pet’r’s Ex. 3 at 179–83, ECF No. 14-3. After a consultation and physical examination, Dr.
Alligood prescribed Clonidine and Trazadone. Id. at 179. During a follow-up visit on August 3,
2015, Dr. Alligood noted that Shawn was sleeping better but still experiencing behavioral issues,
and Dr. Alligood prescribed a refill for the Trazodone. Id. at 186–87. Shawn’s next appointment
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with Dr. Alligood was scheduled for December 21, 2015. Pet’r’s Ex. 9 at 2, ECF No. 15-5; ECF
No. 14-2 ¶ 3.
2. The Alleged Vaccination
Petitioner alleged that she and Shawn attended the follow-up appointment on December
21, 2015, at which Shawn received an influenza (“flu”) vaccination. ECF No. 14-2 ¶ 3. She
alleged that she was in the exam room with Shawn when Dr. Alligood’s nurse administered the flu
vaccine in his upper left arm. Id. Petitioner stated that based on that visit, a refill for Trazodone
was sent to her pharmacy. Id. However, Vidant’s records indicated that Shawn was a “no show”
for the appointment on December 21, 2015, and that Petitioner called the clinic two days later
(December 23, 2015) to obtain the prescription refill for Trazodone. ECF No. 15-5 at 2; ECF No.
14-3 at 191–92. Shawn’s Medicaid and BlueCross Blue Shield insurance records do not reflect
any charges billed for the December 21 appointment. ECF No. 14-3 at 30–31; Pet’r’s Ex. 16, ECF
No. 47-2; Pet’r’s Ex. 17, ECF No. 47-3.
On April 5, 2016, Petitioner filed a formal request with Vidant requesting that the clinic
amend its records to indicate that Shawn received a flu vaccination on December 21, 2015. ECF
No. 14-3 at 237. Vidant denied Petitioner’s request, noting that the record was accurate and
complete. Id. at 234–37. Consequently, Petitioner filed a complaint with the U.S. Department of
Health and Human Services, Office of Civil Rights (“OCR”) regarding Vidant’s failure to amend
the records. Id. at 11–12. On September 23, 2016, OCR notified Petitioner and Vidant that it was
closing Petitioner’s case without further action. Id. at 12. Subsequently, on October 26, 2016,
Vidant informed OCR that it had investigated Petitioner’s request, including reviewing medical
records of all patients seen by Dr. Alligood on the day of the alleged visit, and found no basis for
amendment of the medical records. Id. at 9–10.
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3. Shawn’s Condition After the Alleged Vaccination
On January 14, 2016, Petitioner took Shawn to the urgent care for left ankle pain. ECF
No. 14-3 at 195–96. The notes section of the urgent care record indicated that Shawn’s ankle pain
started seven days prior and was constant. Id. at 196. The notes further stated that Shawn fell on
his left ankle three days prior while trying to stand up. Id. Petitioner contended that in the days
and weeks following the urgent care visit, Shawn’s leg weakness progressed and became so severe
that he lost the ability to stand, maintain his balance, and walk. ECF No. 14-2 ¶ 8. On January
29, 2016, Petitioner took Shawn to the Emergency Department for leg pain and difficulty walking.
Pet’r’s Ex. 5 at 61, ECF No. 15-1. The Emergency Department provider noted concern about
possible GBS and instructed Shawn to follow-up with his primary care physician. Id. at 64.
On February 1, 2016, Shawn was taken to Vidant in a wheelchair due to his continued
inability to walk. ECF No. 14-3 at 204. A CT scan of his cervical and lumbar spine revealed some
disc bulging and narrowing of the neural exit foramina. Id. at 211. On February 15, 2016, Shawn
was admitted to Vidant Medical Center for weakness of his lower extremities and inability to walk.
Pet’r’s Ex. 4 at 58, ECF No. 14-4. The providers at the medical center examined Shawn and also
expressed concerns about GBS. Id. Notations in Shawn’s medical records for February 15, 2016,
indicated that he had not received the flu vaccine. Id. at 59 (noting “up to date, did not receive flu
vaccination” under “Immunizations”); id. at 167 (indicating “No” in the column marked “Influenza
Vaccine received since Sept[ember] 1 (Effective Sept[ember] 1 to March 31)” under “Influenza
Risk Assessment”). The medical center admitted Shawn for three days and discharged him to
pediatric rehabilitation. Id. at 54.
On March 18, 2016, after approximately 30 days of pediatric inpatient rehabilitation,
Shawn was discharged with a final diagnosis of GBS and instructed to follow-up with Dr. Kalind
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Parashar, his new primary care physician. Id. at 224–25, 345. On April 11, 2016, Shawn saw Dr.
Parashar for the follow-up visit. ECF No. 14-3 at 219. The medical records from that visit stated
that Shawn “has been making significant progress” and “is able to ambulate but with support.” Id.
Shawn began attending outpatient rehabilitation on April 12, 2016, at Vidant Edgecombe
Hospital. Pet’r’s Ex. 6 at 312, ECF No. 15-2. The evaluation record from an April 12, 2016,
assessment at the rehabilitation hospital noted that Shawn was “coming for skilled therapy after
being hospitalized [for] having [GBS].” Id. at 21. The record further stated that “[patient] received
flu shot on 12/21/2015.” Id. An April 15, 2016, assessment record also noted that in “December
2015 [patient] received a flu shot.” Id. at 43. Shawn was discharged from outpatient therapy on
July 19, 2016. Id. at 312. On October 3, 2016, Shawn saw Dr. Parashar for a follow-up
appointment. ECF No. 14-3 at 224. Dr. Parashar noted “no concerns today” and that Shawn
attended physical therapy and was recommended for psychotherapy to work on proprioception.
Id. at 225. Dr. Parashar instructed Shawn to follow-up in six months. Id. at 226.
B. Procedural Background
On September 14, 2016, Petitioner filed a petition for compensation under the Vaccine Act.
See Pet., ECF No. 1. Petitioner alleged that Shawn suffered GBS caused by the adverse effects of
a flu vaccination he received on December 21, 2015, at Dr. Alligood’s office. Id. ¶¶ 3, 4. On
January 11, 2017, Petitioner obtained subpoenas for Shawn’s medical records and filed a first set
of medical records. See Pet’r’s Exs. 1-10, ECF Nos. 14, 15. Petitioner also filed a transcript of a
July 27, 2016, recorded telephone conversation with Dr. Alligood in which Dr. Alligood
mentioned that he remembered seeing Shawn for a medical appointment but did not remember
when. Pet’r’s Ex. 12 at 3, ECF No. 15-4; Pet’r’s Ex. 12 at 47–48, ECF No. 33-1.
5
On January 17, 2017, the Special Master granted Petitioner’s motion to depose Dr.
Alligood regarding Shawn’s flu vaccination. See Order, ECF No. 23. In his deposition on March
17, 2017, Dr. Alligood stated that December 21, 2015, was the last day he saw patients before he
left his employment at Vidant. ECF No. 33-1 at 8, 153. According to Dr. Alligood, he remembered
seeing Shawn several times in 2015 but did not remember whether he saw Shawn on December
21, 2015, and did not remember whether Shawn received a flu vaccination. Id. at 14, 34.
Regarding the check-in process at his office, Dr. Alligood mentioned that it was typical for there
to be no formal check-in process for established patients, and that a patient would typically receive
an “After-Visit Summary” at the end of the visit. Id. at 147–50. Dr. Alligood stated that he is
required by law to maintain medical records and there is no situation where he would fail to keep
a record. Id. at 39–40.
On June 2, 2017, Petitioner filed an amended petition including citations to Dr. Alligood’s
deposition transcript, as well as medical records that were obtained after filing the original petition.
See ECF No. 35. In a status conference held on June 14, 2017, the parties stated that proof of
vaccination remained an issue. See Scheduling Order at 1, ECF No. 36. As a result, the Special
Master granted the parties’ request to conduct a fact hearing to determine whether Shawn received
a flu vaccination. Id. The Special Master held the fact hearing on September 8, 2017, in Raleigh,
North Carolina. See Order and Ruling on Facts at 2, ECF No. 54. During the fact hearing,
Petitioner testified that she did not sign an authorization for vaccination on December 21, 2015,
and she was not provided a summary of the visit. Tr. at 93, 100, ECF No. 44. Petitioner explained
that Shawn’s vaccine was administered by a nurse called Lisa, although Dr. Alligood testified at
deposition that he did not have a nurse by that name. ECF No. 44 at 12–13, 59–60; ECF No. 33-
1 at 92. Petitioner testified that she did not call Vidant on December 23, 2015, to request a refill
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of Shawn’s Trazadone prescription. ECF No. 44 at 102–04. She maintained that Shawn was at
the appointment on December 21, 2015, and the refill was renewed at that time. Id. According to
Petitioner, the medical center’s immunization history and the influenza risk assessment were
inaccurate because she informed the providers during Shawn’s hospitalization that he received a
flu vaccination in December. Id. at 107–09. At the hearing, Petitioner also produced her telephone
records from December 21, 2015, and testified that she was on the phone for most of the day but
not between 2:41 p.m. and 3:09 p.m. because at that time she was with Shawn at Dr. Alligood’s
office. Id. at 18–19.
After a review of the evidence submitted and the parties’ briefs, the Special Master found
that Petitioner had established adequate proof of vaccination. ECF No. 54 at 2. In her Order and
Ruling on Facts, the Special Master first acknowledged that although Shawn was scheduled for an
appointment on December 21, 2015, the Vidant records marked him as a “no show,” the billing
and insurance records did not show a charge for an encounter or vaccination on that date, and two
references in Shawn’s hospitalization records indicated he did not receive a flu vaccination. ECF
No. 54. at 12. The Special Master then highlighted that Petitioner’s testimony was “highly
credible,” and that “the actions that Ms. Hinton took and the lengths that she went through to obtain
evidence, any evidence that her son was seen on December 21, 2015, are simply not the actions
that an individual would take if she did not believe the events occurred as she recalled.” Id. at 13.
The Special Master also added that there are “two medical record references indicating that Shawn
did receive a flu vaccine prior to the onset of GBS,” as well as a statement from Dr. Alligood that
implies he saw Shawn in December 2015. Id. And while noting that Petitioner’s telephone records
were “certainly not definitive proof that she was at Dr. Alligood’s office with Shawn on December
21, 2015,” the Special Mater found that they provided “some support” for Petitioner’s claim. Id.
7
On balance, the Special Master concluded that Petitioner “established by preponderant evidence
that [Shawn] received an influenza vaccination on December 21, 2015.” Id. at 14. After
Respondent indicated that he would not defend this case, the Special Master issued a summary
Ruling on Entitlement in favor of Petitioner on May 29, 2018. Resp’t.’s Report at 7, ECF No. 56;
Ruling on Entitlement, ECF No. 57.
On December 28, 2022, Respondent filed the instant Motion for Review of the Special
Master’s decision. Resp’t.’s Mot. for Review, ECF No. 266; Resp’t.’s Mem. In Support of Mot.
for Review, ECF No. 267. Respondent argues that, in finding that Shawn received a vaccine set
forth in the Vaccine Injury Table, the Special Master improperly ignored contemporaneous
medical records and relied instead on Petitioner’s uncorroborated statements. ECF No. 267 at 5.
According to Respondent, Petitioner’s evidence was as a matter of law insufficient to support a
proof of vaccination finding. Id. at 5. Respondent further argues that the Special Master’s finding
was arbitrary and capricious considering the overwhelming weight of evidence demonstrating that
no appointment or vaccination occurred on December 21, 2015. Id. at 6. On January 30, 2023,
Petitioner responded to Respondent’s motion. Pet’r’s Resp. to Resp’t.’s Mot. for Review, ECF
No. 270. Petitioner argues that she established by a preponderance of evidence that Shawn
received a flu vaccination on December 21, 2015. Id. at 6. According to Petitioner, the Special
Master’s consistent finding was neither arbitrary and capricious nor contrary to the law. Id. at 5.
II. LEGAL STANDARD
This Court has jurisdiction to review a special master’s decision upon the timely request
of either party. 42 U.S.C. § 300aa-12(e)(2). Under the Vaccine Act, a court deciding a motion for
review may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
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(B) set aside any findings of fact or conclusion of law of the special master found
to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law and issue its own findings of fact and conclusions of law,
or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
Id. §§ 300aa-12(e)(2)(A)–(C).
In conducting its review, the Court employs “a highly deferential standard.” Hines v. Sec’y
of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991). “If the special master has
considered the relevant evidence of record, drawn plausible inferences and articulated a rational
basis for the decision, reversible error will be extremely difficult to demonstrate.” Id.; see Hayman
v. United States, No. 02-725V, 2005 WL 6124101, at *2 (Fed. Cl. May 9, 2005) (decision should
stand so long as the special master “consider[ed] all the relevant factors, ma[de] no clear error in
judgment, and articulate[d] a rational connection between the facts found and the choice made”).
This “great deference” extends in particular to a special master’s findings of fact, which
are reviewed under the arbitrary and capricious standard. Munn v. Sec’y of Health & Hum. Servs.,
970 F.2d 863, 870 & n.10 (Fed. Cir. 1992). On a motion for review, it is not the Court’s role “to
reweigh the factual evidence;” rather, “the probative value of the evidence [and] the credibility of
the witnesses . . . are all matters within the purview” of the special master as the factfinder. Id. at
871; see Doe 93 v. Sec’y of Health & Hum. Servs., 98 Fed. Cl. 553, 565 (2011) (citing Lampe v.
Sec’y of Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000)). Accordingly, the Court
should not substitute its judgment for that of the special master even though it may have reached
a different conclusion. Johnson v. Sec’y of Health & Hum. Servs., 33 Fed. Cl. 712, 720 (1995).
This deference notwithstanding, when the matter for review is whether the special master’s
decision was in accordance with law—i.e., when a question of law is at issue—the court reviews
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the decision de novo. Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1277–78 (Fed. Cir.
2005).
III. DISCUSSION
Respondent’s motion raises two objections to the Special Master’s decision. Specifically,
Respondent alleges that: (1) the Special Master erred as a matter of law in finding preponderant
evidence that Shawn received a flu vaccination on December 21, 2015; and (2) the Special
Master’s finding was, in any event, arbitrary and capricious. Having considered the parties’
arguments, as well as the record in this case, the Court rejects Respondent’s objections and declines
to set aside the Special Master’s decision.
A. The Special Master Did Not Err as a Matter of Law in Finding Preponderant
Evidence that Shawn Received a Flu Vaccination on December 21, 2015.
Respondent argues that the Special Master erred in finding preponderant evidence that
Shawn received a flu vaccination on December 21, 2015, because Petitioner did not submit
corroborating documentary evidence of vaccination. ECF No. 267 at 12. Respondent contends
that the only documentary evidence offered to substantiate proof of vaccination—i.e., Petitioner’s
phone records and two non-contemporaneous medical records—do not demonstrate that Shawn
received the vaccine and, with respect to the latter records, simply documented Petitioner’s
uncorroborated statements to medical providers that were made after she retained legal counsel for
the purposes of the present litigation. Id. at 6. Respondent further argues that the fact that
contemporaneous medical records are unavailable does not eliminate the statutory requirement
that the claim be substantiated. Id. at 13.
The Court finds that the Special Master did not err. When proving eligibility for
compensation under the Vaccine Act, a petitioner must establish by a preponderance of evidence
that the injured person received a vaccine set forth in the Vaccine Injury Table. See 42 U.S.C. §
10300aa-13(a)(1)(A); id. § 300aa-11(c)(1)(A); see also Matthews v. Sec’y of Health & Hum. Servs.,
157 Fed. Cl. 777, 785 (2021). A preponderance of evidence standard requires “the trier of fact to
believe that the existence of a fact is more probable than its nonexistence before [he] may find in
favor of the party who has the burden to persuade the [judge] of the fact’s existence.” Moberly ex
rel. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (alteration
in original) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for
S. Cal., 508 U.S. 602, 622 (1993)). The Act directs the special master to base her eligibility finding
on “the record as a whole” and prohibits “such a finding based on the claims of a petitioner alone,
unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). 1
These requirements are reflected in the statutory provision governing the content of a
petition for compensation. Pursuant to the Act, a petition must contain “an affidavit, and
supporting documentation, demonstrating that the [injured] person,” among other things, “received
a vaccine set forth in the Vaccine Injury Table,” id. § 300aa-11(c)(1)(A), as well as “vaccination
records associated with the vaccine allegedly causing the injury,” among other records, id. § 300aa-
11(c)(2). However, if any required records “are unavailable to the petitioner,” the petition may
identify such records and state “the reasons for their unavailability.” Id. § 300aa-11(c)(3). All of
these statutory requirements are similarly reflected in the Court’s Vaccine Rules. See R.
2(c)(1)(A)(ii), (c)(2)(A)(i), (c)(2)(B)(i)–(ii), Rules of the U.S. Court of Federal Claims, app. B
(“Vaccine Rules”).
1
The Act defines “record” as “the record established by the special masters of the United
States Court of Federal Claims in a proceeding on a petition filed under section 300aa-11 of this
title.” 42 U.S.C. § 300aa-13(c).
11
Applying the evidentiary framework provided in the Act and the Vaccine Rules, courts
have long held that “contemporaneous, documentary proof of a vaccination”—although the best
of evidence—is not necessary to establish proof of vaccination under the preponderance standard.
Centmehaiey v. Sec’y of Health & Hum. Servs., 32 Fed. Cl. 612, 621, aff’d, 73 F.3d 381 (Table)
(Fed. Cir. 1995) (per curiam) (citing Brown v. Sec’y of Health & Hum. Servs., 18 Cl. Ct. 834, 839
(1989), rev’d on other grounds, 920 F.2d 918 (1990)). Other evidence may include lay witness
testimony supported by “corroborating evidence, either medical or otherwise.” Epstein v. Sec’y of
Health & Hum. Servs., 35 Fed. Cl. 467, 478 (1996). As such, petitioners have presented sufficient
evidence on which to base a finding of vaccination where, in addition to their own testimony, they
proffered an entry from a personal calendar and billing records, Brown, 18 Cl. Ct. at 840; an entry
in a baby book, Taylor v. Sec’y of Health & Hum. Servs., No. 90-857V, 1991 WL 115031, at *3
(Cl. Ct. Spec. Mstr. June 12, 1991); and references in more recent medical records referring back
to the vaccination, Wonish v. Sec’y of Health & Hum. Servs., No. 90-667V, 1991 WL 83959, at *4
(Cl. Ct. Spec. Mstr. May 6, 1991).
Here, the record included Petitioner’s affidavit and live testimony about personally
witnessing Shawn receive the flu vaccine on December 21, 2015, along with the following
corroborating evidence: Petitioner’s phone records from December 21, 2015, deposition testimony
from and recorded telephone conversations with Dr. Alligood, and medical records from April
2016 that post-date the alleged vaccination date. See ECF No. 44 at 12–13, 18–19; ECF No. 33-1
at 47–48; ECF No. 15-4 at 3; ECF No. 15-2 at 21, 43; ECF No. 54 at 14. The record also included
ample explanation about the absence of contemporaneous records documenting the fact of
Shawn’s vaccination and the extensive efforts Petitioner undertook to obtain such documentation.
See ECF No. 15-4 at 3; ECF No. 14-3 at 11–12; ECF No. 44 at 93, 100.
12
In her Order and Ruling on Facts, the Special Master found Petitioner’s testimony “highly
credible,” highlighting the actions she took and the lengths to which she went to obtain evidence,
as well as how Petitioner explained with clear and specific details the events of December 21,
2015. ECF No. 54 at 13. The Special Master found this testimony was corroborated, albeit
“barely,” by the circumstantial evidence. Id. This included the phone records, which the Special
Master found “provide some support for [Petitioner’s] claim,” even though they are “certainly not
definitive proof that [Petitioner] was at Dr. Alligood’s office with Shawn on December 21, 2015.”
Id. It also included the two later medical records from Shawn’s outpatient rehabilitation reporting
that Shawn received a flu vaccination: an April 12, 2016, rehabilitation evaluation and an April
15, 2016, physical therapy note. Id. at 5, 13. The Special Master also credited Dr. Alligood’s
recorded statement implying that he saw Shawn right before the doctor stopped seeing patients at
Vivant on December 21, 2015, which was undisputedly the date of Shawn’s scheduled follow-up
appointment. Id. at 13. Although the Special Master based her finding primarily on Petitioner’s
“highly credible” testimony, ECF No. 54 at 12, the Special Master did not rely on it alone but
rather on the record as a whole and specifically discussed supporting documentation and other
evidence that indicated Shawn attended his December 21 appointment and received a flu
vaccination. Id. at 12; see id. at 13–14.
Respondent contends that none of this evidence corroborates Petitioner’s testimony.
Respondent argues that the two medical records the Special Master referenced in support of her
finding are non-contemporaneous medical records that simply document Petitioner’s
uncorroborated statements to medical providers. ECF No. 267 at 6. But neither the statute nor the
case law provides that only medical records containing independent proof of vaccination are
legally sufficient to support an eligibility finding. To the contrary, the Federal Circuit has
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explained the importance of medical record evidence to eligibility determinations in the Vaccine
Program, specifically acknowledging that they contain information both “supplied to or by health
professionals to facilitate diagnosis and treatment.” Cucuras v. Sec’y of Health & Hum. Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993) (emphasis added); see James-Cornelius on Behalf of E. J. v.
Sec’y of Health & Hum. Servs., 984 F.3d 1374, 1380 (Fed. Cir. 2021) (recognizing that “medical
records may indeed serve as important corroborating evidence for evaluating testimony’s
credibility” in a vaccine case, even though they would likely be based on the statements of the
petitioner or his parents). As such, special masters have found notations in medical records to
corroborate proof of vaccination even where the information was reported by the petitioner or
other individual with knowledge. See, e.g., Riddick v. Sec’y of Health & Hum. Servs., No. 99-
643V, 2006 WL 2990220, at *10 (Fed. Cl. Spec. Mstr. Oct. 4, 2006); Groht v. Sec’y of Health &
Hum. Servs., No. 00-287V, 2006 WL 3342222, at *2 (Fed. Cl. Spec. Mstr. Oct. 30, 2006); Berry
v. Sec’y of Health & Hum. Servs., No. 90-339V, 1990 WL 293448, at *3 (Cl. Ct. Spec. Mstr. Nov.
15, 1990). Indeed, relying on Groht, Respondent suggests that a single reference to the vaccination
in a contemporaneous medical record based on a petitioner’s statement would be legally sufficient
under § 300aa-11(c)(1). 2 ECF No. 267 at 14 (quoting Groht, 2006 WL 3342222, at *2). The
difference here is the timing of the statements documented in the records.
As such, Respondent’s attack on the medical records more aptly constitutes a disagreement
with the weight the Special Master gave to such evidence. See ECF No. 267 at 16 (arguing that
2
The courts in Brown and Taylor, cases Respondent also relies on, similarly found that
statements made by the petitioners’ mothers in a personal calendar and a baby book, respectively,
corroborated their own testimony. Brown, 18 Cl. Ct. at 840 (finding the entry “Conway to Dr.
Lee—time 10:45” in mother’s calendar corroborated her testimony that the petitioner had a
medical appointment on that date); Taylor, 1991 WL 115031, at *3 (finding that baby book
substantiated mother’s claim that a Table vaccine was administered on a specific date).
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the medical records lack “reliability” because, among other things, they were created months after
the alleged vaccination, after Petitioner retained counsel). The same can be said for Respondent’s
challenge to the phone records. Id. (arguing that “there are many reasons petitioner might not have
been using her phone for a period of time on any given day”). According to Respondent, the
circumstantial evidence found to corroborate Petitioner’s testimony was “far from persuasive.” Id.
at 15. Whether Petitioner produced evidence that, as a whole, was sufficiently corroborative
implicates the Special Master’s discretion as the factfinder; it does not raise the legal question of
whether the testimony was uncorroborated at all. See Abruzzo v. Sec’y of Health & Hum. Servs.,
No. 02-0857V, 2007 WL 5161746, at *2 (Fed. Cl. Feb. 13, 2007) (describing a petitioner’s burden
of production under § 300aa-11(c) and burden of persuasion under § 300aa-13(a)(1)(A)); see also
Matthews, 157 Fed. Cl. at 788–89 (citing Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417
(Fed. Cir. 1993)) (“In weighing the evidence pertaining to proof of vaccination, the Special Master
has discretion to determine the relative weight of the evidence presented, including
contemporaneous medical records and oral testimony.”). Reweighing the sufficiency of the factual
evidence falls outside this Court’s role. See Munn, 970 F.2d at 871.
Accordingly, considering the statutory requirements and case law demonstrating the
myriad ways a petitioner may corroborate her testimony to prove the fact of vaccination, the Court
finds that the Special Master did not err as a matter of law in evaluating the evidence as a whole
and applying the preponderance standard to conclude Petitioner had established that Shawn
received a flu vaccination on December 21, 2015.
B. The Special Master’s Finding that Shawn Received a Flu Vaccination on
December 21, 2015, Was Not Arbitrary or Capricious.
Respondent argues that regardless of whether the Special Master erred as a matter of law,
her factual finding was arbitrary and capricious in light of the overwhelming weight of evidence
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demonstrating that no appointment or vaccination occurred on December 21, 2015. ECF No. 267
at 6, 18. Specifically, Respondent emphasizes that the records at Dr. Alligood’s office recorded
Shawn as a “no show” for his appointment, billing records and insurance records from BlueCross
BlueShield and Medicaid did not indicate an encounter or vaccination on December 21, 2015,
records from Shawn’s subsequent hospitalization in February 2016 twice noted that he did not
recently receive a flu vaccination, and the investigation by Vidant did not find any evidence that
an appointment or vaccination occurred on December 21, 2015. Id. at 6. Respondent further
argues that the Special Master provided no explanation of how she resolved conflicts in the
evidence. Id. at 18. According to Respondent, by crediting Petitioner’s testimony, the Special
Master necessarily discredited numerous instances of contradictory evidence indicating that a
vaccination was not administered as claimed. Id. at 18–19. Respondent argues that the Special
Master’s failure to explain why hospital records showing that Shawn did not receive any flu
vaccination were entitled to less weight than Petitioner’s uncorroborated testimony was arbitrary
and capricious. Id. at 20.
The Court finds that the Special Master’s finding was not arbitrary or capricious. Applying
the requisite “highly deferential” standard of review, the Special Master’s decision shows that she
“considered the relevant evidence of record, [drew] plausible inferences, and articulated a rational
basis for the decision.” Hines, 940 F.2d at 1528. Here, there is no dispute that the Special Master
considered all the relevant evidence. She evaluated the credibility and persuasiveness of
Petitioner’s testimony in addition to the “affidavits, witness statements, [ ]deposition testimony,”
medical records, and other documents in the record. ECF No. 54 at 14; see id. at 2–11. She also
specifically considered and weighed conflicting evidence and the absence of evidence. See id. at
3 (discussing Dr. Alligood’s records and the absence of other records), 3–5 (February 2016
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hospital records and Vidant investigation letter), 11 (cross-examination topics). In doing so, the
Special Master acknowledged both weaknesses in the evidence supporting Petitioner’s claim and
concerns raised by evidence that tended to undermine it. See id. at 13 & n.5.
Based on a thorough evaluation of the evidence, the Special Master also rationally
explained the reasons underlying her decision. Specifically, the Special Master noted that:
[T]he actions that Ms. Hinton took and the lengths that she went through to obtain
evidence, any evidence that her son was seen on December 21, 2015, are simply
not the actions that an individual would take if she did not believe the events
occurred as she recalled. In her affidavit, Ms. Hinton details each of the people she
contacted and the actions she took to establish that Shawn was seen by Dr. Alligood
on December 21, 2015 and that he received a flu vaccination on that day, including:
contacting and appearing in person at Vidant to obtain a copy of Shawn’s vaccine
record and any records of his visit on December 21, 2015; filing a formal request
for an amendment of Shawn’s records with Vidant and understanding that a formal
investigation would take place into her request; calling and attempting to see Dr.
Alligood on many, many instances (Dr. Alligood testified that Ms. Hinton called
his office 10-15 times a day; see Pet. Ex. 12 at 42); filing a complaint with HIPAA
to report a violation of Vidant’s record-keeping practices; filing a formal complaint
with the Office of Civil Rights; contacting her private insurance company and
Medicaid to obtain any documentation regarding the December 21, 2015 visit, and
even resorting to recording her telephone conversations with Dr. Alligood. See Pet.
Ex. 10. These are actions of a dedicated mother demanding for what she believed
was an accurate record for her child. While Ms. Hinton’s telephone records from
December 21, 2015, are certainly not definitive proof that she was at Dr. Alligood’s
office with Shawn on December 21, 2015, the records do provide some support for
her claim. In addition, there are two medical record references indicating that
Shawn did receive a flu vaccine prior to his onset of GBS. Pet. Ex. 6 at 21, 42.
. . . Dr. Alligood does seem to imply that he saw Shawn in late 2015 before he left
Vidant in December 2015; Pet. Ex. 8. There is no dispute that Shawn had an
appointment scheduled for December 21, 2015 at 2:30 p.m. Ms. Hinton testified
that she was not working on that date and that Shawn was out of school . . . for his
Christmas break. Ms. Hinton described, in detail, the events of the morning of
December 21, 2015 leading up to Shawn’s appointment, clear details of the
appointment . . . , including specifics of her conversations with Dr. Alligood and
specific information about the administration of the flu vaccine by Dr. Alligood’s
nurse to Shawn.
Id. at 13. These findings bear on the Special Master’s assessment of the Petitioner’s credibility
and the reliability of her testimony, as well as the weight of other evidence supporting her
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testimony. As the factfinder, the Special Master was “entitled—indeed, expected—to make
determinations as to the reliability of the evidence presented to [her] and . . . as to the credibility
of the persons presenting that evidence.” See Porter v. Sec’y of Health & Hum. Servs., 663 F.3d
1242, 1250–51 (Fed. Cir. 2011) (citing Moberly, 592 F.3d at 1326). On review, this Court does
not assess the credibility of witnesses or the probative value of evidence, nor does it assess whether
the Special Master properly evaluated the evidence. See Munn, 970 F.2d at 870. Since the Special
Master’s decision was based on evidence in the record that supports her findings and that was not
wholly implausible, the Court finds that the decision was not arbitrary or capricious. See Lampe,
219 F.3d at 1363.
Respondent, however, argues that it was arbitrary and capricious for the Special Master to
not explain (1) how she resolved conflicts between Petitioner’s testimony and contradictory
evidence indicating that a vaccination was not administered to Shawn and (2) why hospital records
that indicated Shawn did not receive any flu vaccination were entitled to less weight than
Petitioner’s testimony. ECF No. 267 at 18–20. Respondent fails to cite authority supporting either
proposition. As Respondent correctly notes, Vaccine Rule 3(b)(2) charges the Special Master with
the responsibility of “affording each party a full and fair opportunity to present its case and creating
a record sufficient to allow review of the special master’s decision.” Both obligations were met in
this case. The Special Master’s decision details the extent of the record created below including a
fact hearing, sets forth specific factual findings based on her review of the evidence with citations
to the record, and articulates a rational connection between the facts found and the decision made.
Respondent’s disagreement with the way the Special Master weighed and resolved
conflicting evidence is not a basis for the Court to find the decision arbitrary or capricious. The
Court agrees with Respondent that crediting Petitioner’s testimony and corroborating evidence to
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support a finding that Shawn more likely than not received the flu vaccine implies the Special
Master necessarily found the documentation (and lack of documentation) related to the December
21, 2015, office visit and the vaccine-related notations in the February 2016 hospital records less
likely to be accurate and/or complete. But, contrary to Respondent’s suggestion, there is no
presumption in vaccine cases that “medical records are ‘accurate and complete.’” Kirby v. Sec’y
of Health & Hum. Servs., 997 F.3d 1378, 1382 (Fed. Cir. 2021). And although the Federal Circuit
has recognized the “unremarkable proposition that it [is] not erroneous to give greater weight to
contemporaneous medical records than to later, contradictory testimony,” it has not held that
crediting credible and corroborated testimony over conflicting or absent contemporaneous records
is per se arbitrary and capricious. Id. (discussing Cucuras, 993 F.2d at 1527–28). Nor does
Respondent cite any case holding that, to meet her burden of persuasion, the petitioner must
demonstrate what caused the conflicting contemporaneous medical records to be inaccurate or
incomplete. The Court doubts those reasons would be ascertainable, let alone provable, in the vast
majority of cases. See id. at 1383 (noting various reasons records may be inaccurate or complete).
Here, the Special Master acknowledged that there were “questionable occurrences in this
case” involving the contemporaneous medical records. ECF No. 54 at 13. Nonetheless, “in
reviewing the facts of this case, the testimony and actions of Ms. Hinton, and the circumstantial
evidence,” she found as a whole “that the evidence presented by Ms. Hinton satisfied the
preponderance of the evidence standard” to support a finding that Shawn attended his December
21, 2015, medical appointment and received the flu vaccine. Id. Under its “uniquely deferential”
review, the Court is not free to “second guess the Special Master[’]s fact-intensive conclusions.”
Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993). Consequently, the
Court sees no reason to disturb the Special Master’s determination.
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IV. CONCLUSION
For these reasons, the Court DENIES Respondent’s Motion for Review. Pursuant to
Vaccine Rule 30(a), the Clerk is directed to enter judgment accordingly.
This opinion and order will be unsealed in its entirety after May 30, 2023, unless pursuant
to Vaccine Rule 18(b) the parties specifically identify protected and/or privileged information
subject to redaction prior to that date. Any objecting party must submit a proposed redacted
version of the decision and provide the reason(s) supporting the party’s request for redaction.
SO ORDERED.
Dated: May 15, 2023 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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