Contreras v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 05-626 V

(Filed June 16, 2014)1

* * * * * * * * * * * * * * *

JESSIE CONTRERAS, *

*

Petitioner, * National Childhood Vaccine

* Injury Act of 1986, 42 U.S.C.

v. * §§ 300aa-1 to -34 (2012); Lack

* of Clarity in Credibility and

SECRETARY OF HEALTH AND * Reliability Determinations;

HUMAN SERVICES, * Remand.

*

Respondent. *

* * * * * * * * * * * * * * *

Jeffrey S. Pop, Beverly Hills, CA, for petitioner.

Linda S. Renzi, United States Department of Justice, with whom were Stuart

F. Delery, Assistant Attorney General, Rupa Bhattacharyya, Director, Vincent J.

Matanoski, Deputy Director, Voris E. Johnson, Jr., Assistant Director,

Washington, DC, for respondent.

________________________________

OPINION AND ORDER

________________________________

BUSH, Senior Judge

1

/ Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of

Federal Claims, this Opinion and Order was initially filed under seal on May 19, 2014. Pursuant

to ¶ 4 of the ordering language, the parties were to propose redactions of the information

contained therein on or before June 6, 2014. No proposed redactions were submitted to the

court.

Now pending before the court is petitioner’s motion for review of the

special master’s decision on remand, see Contreras v. Sec’y of Health & Human

Servs., No. 05-626V, 2013 WL 6698382 (Fed. Cl. Spec. Mstr. Nov. 19, 2013)

(Contreras III),2 which denied Jessie Contreras’s petition for compensation under

the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34

(2012) (the Vaccine Act).3 Although petitioner attacks the special master’s

decision on many fronts, a threshold issue regarding the credibility of one of

respondent’s experts and the reliability of that expert’s opinions prevents this

court from reaching the remainder of petitioner’s arguments. Pet.’s Mot. at 2, 4-5;

Resp.’s Resp. at 27-29. Because the credibility and reliability determinations of

the special master regarding this particular expert are unclear, and because the

extent of the special master’s reliance on the opinions of this expert for the

entitlement decision is similarly unclear, the court must remand this case to the

special master.

BACKGROUND

I. Factual History

Prior decisions in this case provide ample factual background for Jessie’s

alleged vaccine injury of transverse myelitis (TM) and Guillain-Barré Syndrome

(GBS). See, e.g., Contreras v. Sec’y of Health & Human Servs., 107 Fed. Cl. 280

(2012) (Contreras II); Contreras v. Sec’y of Health & Human Servs., No.

05-626V, 2012 WL 1441315 (Fed. Cl. Spec. Mstr. Apr. 5, 2012) (Contreras I),

vacated, 107 Fed. Cl. 280. The alleged injury occurred in 2003, approximately

twenty-four hours after Jessie received inoculations containing the Hepatitis B

vaccine (HepB) and tetanus-diptheria vaccine (Td). Jessie is now twenty-four

years old.

II. Procedural History

2

/ The court cites not to the Westlaw version of the special master’s opinion on remand,

but follows the practice of the parties and cites to the opinion version (Opin.) available on this

court’s website.

3

/ Hereinafter the court will refer to Mr. Contreras as “petitioner” or “Jessie,” because he

was thirteen years old at the time of his alleged vaccine injury.

2

On June 15, 2005, Jessie’s father, acting for Jessie, filed a petition under the

Vaccine Act. Petitioner initially engaged Dr. Charles M. Poser, M.D. as an expert.

Respondent then engaged Dr. John T. Sladky, M.D. to opine on causation. Dr.

Sladky’s initial report in 2005 was filed in response to Dr. Poser’s report. See Ex.

I; see also Resp.’s Resp. at 27.

Petitioner then engaged another expert, Dr. Lawrence Steinman, M.D. Dr.

Steinman’s initial report was filed in 2006. A few years later, Dr. Sladky filed a

second report to respond to Dr. Steinman’s report. See Resp.’s Resp. at 27. Dr.

Sladky’s second report was filed on March 8, 2010 and re-filed on March 22,

2010. See Ex. P. Respondent had also engaged a second expert, Dr. J. Lindsay

Whitton, M.D., Ph.D., who also responded to Dr. Steinman’s contentions. Drs.

Steinman, Sladky and Whitton testified at the first evidentiary hearing in this case,

held April 19-20, 2010.4

In Contreras I, the special master denied petitioner entitlement to

compensation under the Vaccine Act. In Contreras II, this court vacated that

opinion and remanded the case to the special master for a revised causation

analysis. In Contreras III, the special master issued a revised causation analysis

which again denied petitioner entitlement to compensation. Before the special

master issued his decision, however, on May 1, 2013 the Secretary filed a status

report revealing previously undisclosed information regarding Dr. Sladky. It is the

special master’s ambiguous response to that disclosure of information that is the

primary focus of this opinion.

DISCUSSION

I. Standard of Review

This court has jurisdiction to review the decision of a special master in a

Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court

of Federal Claims reviews the decision of the special master to determine if it is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.

4

/ All citations to the transcript (Tr.) in this opinion are to the transcript of the 2010

hearing.

3

Cir. 2008) (quoting 42 U.S.C. § 300aa-12(e)(2)(B) and citing Althen v. Sec’y of

Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir. 2005)) (alteration in

original). This court uses three distinct standards of review in Vaccine Act cases,

depending upon which aspect of a special master’s judgment is under scrutiny:

These standards vary in application as well as degree of

deference. Each standard applies to a different aspect of

the judgment. Fact findings are reviewed . . . under the

arbitrary and capricious standard; legal questions under

the “not in accordance with law” standard; and

discretionary rulings under the abuse of discretion

standard.

Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed.

Cir. 1992).

The third standard of review, abuse of discretion, is applicable when the

special master excludes evidence or otherwise limits the record upon which he

relies. See id. As this court has stated, the third standard applies to evidentiary

rulings, including those regarding the qualifications of an expert:

Notably, such [discretionary] rulings include

determinations regarding the qualification of expert

witnesses and the reliability of expert testimony.

Piscopo v. Sec’y of Health & Human Servs., 66 Fed. Cl.

49, 53 (2005); see [Gen. Elec. Co. v. Joiner, 522 U.S.

136, 142-43 (1997)] (holding that “abuse of discretion is

the proper standard of review of a [trial] court’s

evidentiary rulings,” including determinations regarding

the reliability of expert testimony under [Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579 (1993))];

[Terran ex rel. Terran v. Sec’y of Health & Human

Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999)] (reviewing

for abuse of discretion the Special Master’s decision to

reject as unreliable the testimony of the petitioner’s

expert). Determinations subject to review for abuse of

discretion must be sustained unless “manifestly

4

erroneous.” Piscopo, 66 Fed. Cl. at 53; see Milmark

Servs., Inc. v. United States, 731 F.2d 855, 860 (Fed. Cir.

1984) (holding that decisions that lie within the trial

court’s discretion are to be sustained unless “manifestly

erroneous”).

Jarvis v. Sec’y of Dep’t of Health & Human Servs., 99 Fed. Cl. 47, 59 (2011).

Thus, a special master’s determination as to the reliability of expert witness

testimony is reviewed under the abuse of discretion, or manifestly erroneous,

standard. Terran, 195 F.3d at 1316 (citing Burns v. Sec’y of Dep’t of Health &

Human Servs., 3 F.3d 415, 416-17 (1993)); Milmark, 731 F.2d at 860 (citing

Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962)).

On the particular topic of a fact-finder’s determination as to the credibility

of a testifying witness, the United States Court of Appeals for the Federal Circuit

has often stated that such determinations are “‘virtually unreviewable.’” E.g.,

Bradley v. Sec’y of Dep’t of Health & Human Servs., 991 F.2d 1570, 1575 (Fed.

Cir. 1993) (citing Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.

1986)). The court has found no authority, however, which states that a credibility

determination is immune from review, particularly where, as here, extrinsic

evidence has subsequently been disclosed which shows a lack of candor on the

part of an expert witness. For this reason, the court reviews the special master’s

determinations regarding Dr. Sladky’s credibility and the reliability of Dr.

Sladky’s expert opinions for manifest error. Unfortunately, the special master’s

determinations in this regard are ambiguous and resist review absent further

clarification.

II. Analysis

A. Dr. Sladky’s Opinions and Testimony Have Been Undermined By

a Consistent Pattern of Misrepresentations to the Court and to

Respondent’s Counsel

1. An Undisclosed History of Substance Abuse

On May 1, 2013, the Secretary was obliged to disclose that Dr. Sladky, one

of the two experts employed by respondent in this case, had a substance abuse

5

problem which led to the suspension and probationary restoration of his license to

practice medicine at or around the time he was drafting an expert report and

testifying at the 2010 hearing in this case.5 Some excerpts of this disclosure reveal

that

the Secretary and respondent’s counsel have only

recently learned . . . that Dr. Sladky agreed not to

practice medicine in the state of Georgia from August

19, 2008 to March 18, 2009, and agreed to the indefinite

suspension of his license to practice medicine on June

17, 2009, and that on March 4, 2010, the suspension of

his license was lifted and his license to practice restored

on a probationary basis. The probation was terminated

on July 5, 2011. . . . Neither the Secretary nor

respondent’s counsel was aware of the suspension or

probationary status of Dr. Sladky’s license prior to or at

the time he provided the expert witness services in this

case.

Status Report of May 1, 2013, at 1.

Attached to the Secretary’s status report were a number of documents issued

by the State of Georgia’s Composite State Board of Medical Examiners (Board),

the earliest of which, dated June 17, 2009, provides an initial insight into Dr.

Sladky’s alcohol dependence:

On or about June 5, 2009, the Board received reliable

information from Talbott Recovery Campus (“TRC”)

that Respondent [Dr. Sladky] tested positive for alcohol

in a urine drug/alcohol screen and, as a result, TRC

recommends that Respondent enter inpatient treatment at

TRC immediately.

Id. at 14. This report of a failed urine test was just one manifestation of Dr.

5

/ Dr. Sladky signed his second expert report on March 4, 2010, provided the report to

respondent’s counsel by March 8, 2010, and testified in this case on April 20, 2010.

6

Sladky’s substance abuse problem and was the trigger for the Board’s disciplinary

action which included: (1) the indefinite suspension of Dr. Sladky’s license to

practice medicine on June 17, 2009, (2) the requirement that he receive inpatient

treatment for his condition, and, (3) that he attend continuing care after treatment

as required by the rehabilitation center’s staff. There were, however, earlier

incidents that led to this and other disciplinary action by the Board.

As recounted in a later Board decision dated March 4, 2010,

[o]n or about August 19, 2008, Respondent [Dr. Sladky]

was evaluated and treat[ed] for alcohol dependence at

Ridgeview Institute (“Ridgeview”). Respondent notified

the Board that he was in treatment and agreed not to

return to the practice of medicine without the written

express permission of the Board. Respondent completed

treatment and was discharged on or about November 19,

2008.

Status Report of May 1, 2013, at 4. Dr. Sladky was permitted to return to the

practice of medicine on March 18, 2009. That return to practice was short-lived,

however, because

[s]oon after his return to practice, Respondent [Dr.

Sladky] had several positive urine tests for ethyl

glucuronide, in violation of both his monitoring

agreement with Ridgeview and the terms of his Board

Order [of March 18, 2009].

Id. at 5.

Accepting the Board’s disciplinary actions in June 2009,

Respondent [Dr. Sladky] entered the Talbott Recovery

Campus (“TRC”) program on June 9, 2009 . . . . After

completing inpatient treatment on July 31, 2009,

Respondent then entered and completed intensive

outpatient treatment, followed by aftercare.

7

Id. As of March 4, 2010, Dr. Sladky’s petition to lift the suspension of his medical

license was granted.

Dr. Sladky, however, was only granted a probationary license to practice

medicine, under the supervision of a physician at his place of employment to

monitor Dr. Sladky’s work, and under the supervision of a different physician to

monitor Dr. Sladky’s treatment for alchoholism and his use of prescription

medications, if any. This probation also included a number of conditions, such as:

substance abuse treatment, including weekly group therapy sessions; participation

in a support group such as Alcoholics Anonymous, including the requirement that

he obtain a sponsor so that he could “work a daily recovery program”;

unscheduled drug and alcohol screening tests; and, initial and quarterly reports

from both his workplace supervising physician and his substance abuse treatment

physician. Id. at 6-8. According to the Board’s order of March 4, 2010, Dr.

Sladky would not “be eligible to petition for termination of probation until five (5)

years of continuous sobriety from the effective date of this Consent Order.” Id. at

11.

More than three and a half years before Dr. Sladky was due, at the earliest,

to become eligible to petition for the termination of his probation pursuant to the

Board’s order of March 4, 2010, the Board terminated the probation conditions on

Dr. Sladky’s license to practice medicine in the State of Georgia, with no

substantive commentary. Status Report of May 1, 2013, at 3. The record before

the court does not show how the Secretary learned of: (1) Dr. Sladky’s

undisclosed substance abuse problem; (2) the first agreement that he not practice

medicine; (3) the second and indefinite suspension of his license to practice

medicine; and, (4) the probation conditions imposed upon his license by the State

of Georgia’s Composite State Board of Medical Examiners. What is clear from

the record is that Dr. Sladky was not candid about the events chronicled here with

either respondent’s counsel or the court. What is also clear is that petitioner was

deprived of any opportunity to elicit testimony from Dr. Sladky as to the actual

conditions of his medical practice because Dr. Sladky’s curriculum vitae

misrepresented the state of his medical licensure at all times relevant to this

litigation.

2. A Pattern of Misrepresentation in the Curriculum Vitae Dr.

Sladky Submitted in This and Other Cases

8

a. Dr. Sladky’s Curriculum Vitae in This Case

Dr. Sladky’s curriculum vitae (CV) was submitted by respondent along with

his first expert report on October 27, 2005, and, pursuant to the special master’s

instructions, was refiled as Exhibit J on December 2, 2005 to clarify the docket.

The CV was dated “May 1, 1999,” even though it was submitted to the court six

years after that date, and contained information that referenced responsibilities of

Dr. Sladky extending to the year 2002. Ex. J at 5. Under the rubric “Licensure,”

Dr. Sladky’s CV identified a license to practice medicine in Pennsylvania (No.

MD-022838-E).6 Id. at 3. Respondent does not dispute that Dr. Sladky’s

Pennsylvania license expired in 1996, well before the “May 1, 1999” date on the

CV, and almost ten years before Dr. Sladky’s CV was filed in this case. In the

court’s view, Dr. Sladky’s CV, bearing no notation that his license in

Pennsylvania had expired, misrepresented Dr. Sladky’s credentials. Thus, the

expert report filed by Dr. Sladky in 2005 was supported by an inaccurate and

misleading CV.

As the special master and the parties prepared for the 2010 hearing in this

case, almost five years after respondent had first filed Dr. Sladky’s CV,

respondent’s counsel informed the special master and petitioner that

respondent intends to call John Sladky, M.D., to testify

at hearing. As of the filing of this status report, Dr.

Sladky has indicated that he is making efforts to appear

in person if possible, but will be available by phone, if

necessary. Dr. Sladky is preparing a supplemental expert

report to address the issues raised by petitioner’s expert,

Dr. Steinman. Respondent will file Dr. Sladky’s report,

an updated curriculum vitae, and referenced medical

articles, no later than March 8, 2010.

Status Report of January 27, 2010, at 1 (emphasis added). No updated CV was

filed by respondent.

6

/ Dr. Sladky’s license number in Pennsylvania, MD-022838-E, should not be read to

include a designation “E” for “expired.” Active and expired medical licenses in that state may

bear the “E” designation.

9

The court notes that as of January 27, 2010, Dr. Sladky’s license to practice

medicine in Georgia was suspended and his license in Pennsylvania had expired

many years before. The following evidence shows that Dr. Sladky was working

on his second expert report while his sole “active” license to practice medicine (in

Georgia) was suspended and before his suspended license (in Georgia) was

reinstated (with probationary conditions) on March 4, 2010: (1) respondent’s

counsel’s statement on January 27, 2010 that Dr. Sladky “is preparing” his second

expert report; (2) the detailed analysis of Dr. Steinman’s opinions in Dr. Sladky’s

second expert report; and, (3) the date marked on Dr. Sladky’s expert report,

March 4, 2010, which was filed by respondent on March 8, 2010 (lacking a

signature) and refiled (with a signature) on March 22, 2010. See Ex. P. Thus, Dr.

Sladky’s first expert report was supported by an inaccurate and misleading CV as

to licensure in Pennsylvania, and Dr. Sladky’s second expert report was again

supported by an inaccurate and misleading CV as to licensure in Pennsylvania.

Furthermore, his inaccurate and misleading CV failed to disclose that the second

expert report had been composed, at least in part, while Dr. Sladky’s license to

practice medicine in Georgia was suspended, and failed to disclose that the report

was signed when his license to practice medicine was subject to probationary

conditions.

There is no information in the record which explains why respondent never

filed an updated CV for Dr. Sladky to accompany his second expert report, as

promised in the January 27, 2010 status report. The court believes that a party in a

vaccine injury case has a duty to update or supplement inaccurate information in

the record before the special master. See Erve by Erve v. Sec’y of Health &

Human Servs., 39 Fed. Cl. 607, 616 (1997) (discussing the obligations of litigants

in vaccine cases to disclose relevant evidence, in light of the informal and

cooperative discovery procedures used in these cases). Here, Dr. Sladky’s

inaccurate CV prevented the special master and petitioner from ascertaining the

true nature of Dr. Sladky’s medical practice and credentials at the times he opined

as an expert in this case.

b. Dr. Sladky’s Curriculum Vitae in Other Vaccine

Cases before This Court

Dr. Sladky, to the court’s knowledge, has never submitted an accurate CV in

the numerous vaccine cases for which he was engaged by the Secretary as an

10

expert. To cite perhaps the most egregious example of a misleading CV provided

by Dr. Sladky, the court turns to Crosby v. Sec’y of Health & Human Servs., No.

08-799V (Fed. Cl. filed Nov. 10, 2008). The petition in that case was filed on

November 10, 2008, during a time when Dr. Sladky was not permitted to practice

medicine due to his substance abuse problem. As of September 29, 2009,

respondent’s counsel in that case noted that Dr. Sladky “has indicated that he

requires additional time to complete his review and prepare a report in this case.”

Crosby Status Report of Sept. 29, 2009, at 1. Dr. Sladky’s license to practice

medicine, as of September 29, 2009 when he was producing the expert report in

Crosby, was suspended due to his substance abuse problem.

Dr. Sladky’s expert report in Crosby was signed on October 26, 2009, when

his license to practice medicine was still suspended due to his alcohol dependence.

The CV that supported that expert report, dated “May 1, 2005” but filed November

2, 2009, asserts under “Licensure” that Dr. Sladky is licensed in both Pennsylvania

and Georgia, although in truth he could not practice medicine in either state at the

time his report and CV were filed. Crosby Notice of Filing of November 2, 2009,

Ex. A Tab 1 at 3. Respondent won that case, at least in part, because “[b]oth

parties presented well credentialed experts” and respondent’s experts, including

Dr. Sladky, were found to be more persuasive by the special master. Crosby v.

Sec’y of Health & Human Servs., No. 08-799V, slip op. at 2 (Fed. Cl. Spec. Mstr.

June 20, 2012) (emphasis added). Respondent did not file a status report in that

case disclosing the Secretary’s discovery of Dr. Sladky’s undisclosed substance

abuse problem, licensure difficulties and lack of candor.7

To cite only a few more examples, Dr. Sladky’s pattern of submitting

inaccurate CVs in vaccine cases cannot be described as anything other than

consistent. In Case No. 09-293V, on April 22, 2011 respondent filed a “January 5,

2009” version of Dr. Sladky’s CV, asserting “Licensure” in Pennsylvania

(although that license had expired approximately twelve years before the date of

the CV) and “Licensure” in Georgia (although that license was suspended as of the

date of the CV). In Case No. 08-763V, on May 24, 2010 respondent filed a “May

1, 2005” version of Dr. Sladky’s CV, asserting “Licensure” in Pennsylvania

7

/ The court assumes this failure to disclose relevant information was inadvertent,

because the Secretary was diligent in filing status reports in other vaccine cases for which Dr.

Sladky was retained as an expert, whether or not those cases were open or closed.

11

(although that license had expired more than eight years before the date of the

CV). In Case No. 10-717V, on September 30, 2011 respondent filed a “May,

2011” version of Dr. Sladky’s CV, which continued to assert “Licensure” in

Pennsylvania (although that license had expired over fourteen years before the

date of the CV).

The court believes that it is wrong to assume that the submission of

consistently inaccurate CVs was inadvertent or the product of laziness on Dr.

Sladky’s part. He obviously was updating his CV throughout this period by

changing the date on the first page of the document (although that date never

appears to have matched the date of the expert report it supported). He also was,

in some instances, adding recent publications to his CV. Furthermore, it is clear

from the Crosby case, in particular, that Dr. Sladky had an updated, if inaccurate,

CV dated “May 1, 2005” that was available to be filed by respondent on

November 2, 2009 in that case, but which was not filed in early 2010 in this case,

as promised by respondent’s counsel. The court cannot minimize the

misrepresentations in the CVs Dr. Sladky has submitted in vaccine cases,8 and

notes that Dr. Sladky was removed as an expert from at least one vaccine case

(which later settled). See Resp.’s May 17, 2013 Status Report, Covin by Strand v.

Sec’y of Health & Human Servs., No. 08-763V (Fed. Cl. closed Mar. 31, 2014).

3. Three Examples of Misleading or Incomplete Testimony

Regarding Dr. Sladky’s Medical Practice

a. Dr. Sladky’s Testimony in This Case

There is no indication that Dr. Sladky perjured himself on April 20, 2010 in

the evidentiary hearing before the special master in this case. He did not state, and

was not asked to state, whether he was licensed to practice medicine in

Pennsylvania and Georgia. He was not asked whether his license to practice

medicine was on probation (which it was at the time he testified), and he was not

asked whether he had been subject to disciplinary proceedings which led to the

8

/ The special master commented that “it is difficult to say” whether the representations

as to licensure in Pennsylvania on Dr. Sladky’s CV were “due to forgetfulness or due to intent.”

Opin. at 7. That may be true when this case is viewed in isolation. It is harder to attribute the

inaccuracies in Dr. Sladky’s CV to forgetfulness when one considers that Dr. Sladky exhibited a

lack of candor regarding his licensure problems in multiple vaccine cases.

12

suspension of his license. There is also no indication that his employment status

as “senior faculty” in the Department of Pediatric Neurology at Emory University

School of Medicine was misrepresented. Tr. at 275.

The court notes, however, that the testimony of Dr. Sladky was founded on

the CV respondent submitted on December 2, 2005. See Tr. at 278; Ex. J. As

noted supra, that CV, for which an updated version was never proffered, asserted

licensure in Pennyslvania. That “May 1, 1999” CV also stated that Dr. Sladky was

Chief of the Division of Pediatric Neurology at Emory, under the rubric “Hospital

Appointments.” Ex. J at 3. Whether that hospital appointment was still in place

when Dr. Sladky testified is unclear. In the court’s view, Dr. Sladky’s testimony,

like his CV, failed to fully represent the existing state of his credentials and the

existing conditions of his medical practice, as is further evidenced below.

In general terms, Dr. Sladky testified that “I see patients,” that “I see

patients every week,” and that “[I] attend on the inpatient neurology service

roughly three months a year, a little less.” Tr. at 275. He described his work as a

“[p]retty standard, busy clinical and academic lifestyle.” Id. More specifically,

Dr. Sladky testified that “probably half” of his working hours are devoted to

clinical time, and that “I see patients every week, usually five half days a week,

probably average 40-50 patients a week.” Id.

This testimony by Dr. Sladky was provided on April 20, 2010, forty-seven

days after he was permitted to return to the practice of medicine in Georgia. If the

court were to consider the two-year period of time leading up to this testimony,

Dr. Sladky was only licensed to practice medicine for eight and a half of those

twenty-four months, and more than one month of the time that he was licensed to

practice medicine during that period was under supervised probation. When this

factual context is considered, Dr. Sladky’s testimony that he sees patients every

week; that probably half of his working hours are clinical time; that he attends on

inpatient service a little less than three months a year; and that he probably

averages 40-50 patients a week, is misleading.

Whether Dr. Sladky was attempting to describe his recently restored

medical practice that resumed on March 4, 2010, aptly using the present tense, or

whether Dr. Sladky was attempting to paint an impressionistic picture of his long-

term tenure at Emory, imprecisely using the present tense, the description of his

13

medical practice that he provided the special master and opposing counsel in his

testimony cannot be reconciled with the interruptions in his medical practice

caused by his substance abuse and licensure problems. Like his inaccurate CV,

Dr. Sladky’s testimony was misleading as to his experience and qualifications to

testify as an expert. Unfortunately, the hearing in this vaccine case is not the only

time that Dr. Sladky’s testimony glossed over and hid the fact that he was

prevented from practicing medicine for fifteen and a half months between 2008

and 2010, and that his license to practice medicine was on probation for over a

year in 2010 and 2011.

b. Dr. Sladky’s Testimony in Other Vaccine Cases

before This Court

Only two special masters, besides the special master presiding over this

case, have commented on the hearing testimony of Dr. Sladky once his lack of

candor was disclosed by the Secretary. In Roberts v. Sec’y of Health & Human

Servs., No. 09-427V, 2013 WL 5314698, at *9 (Fed. Cl. Spec. Mstr. Aug. 29,

2013), the special master noted that Dr. Sladky had been on a probationary license

to practice medicine when he submitted his expert reports in that case. Although

Dr. Sladky’s hearing testimony in Roberts was provided after that probationary

period had terminated, the special master was troubled by Dr. Sladky’s lack of

candor, noting that “in discussing his qualifications at the hearing, no mention was

made of [licensure suspension problems] and such information was glossed over.”

Id.

In Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2014 WL

1092274, at *14 (Fed. Cl. Spec. Mstr. Feb. 24, 2014), the special master noted,

first, that Dr. Sladky “was properly licensed throughout his involvement with

th[at] case.” Nonetheless, the special master observed that the CV provided by Dr.

Sladky in Raymo, dated “January 5, 2009,” was inaccurate:

I looked carefully at the testimony of Dr. Sladky and his

CV, filed as Res. Ex. B. Although filed with his expert

report in February 2012, his CV is dated January 5,

2009. His CV therefore was written or updated near the

end of the period during which Dr. Sladky had agreed

not to practice medicine. However, Dr. Sladky’s CV

14

does not reflect that he had taken leave from his hospital

appointments.

Id. at *15 (citation omitted). The special master then turned to the testimony

provided by Dr. Sladky as to his qualifications as an expert:

Doctor Sladky was . . . careful . . . to avoid perjuring

himself. He testified that he began working at Emory

University in 1995 and had recently retired and moved to

a private practice in Atlanta. He did not mention that

between 1995 and 2012 there were periods when he had

a suspended medical license or practiced only on a

probationary basis. When asked to describe his

day-to-day activities while at Emory and in his current

position, he carefully prefaced his answer with “when I

was on service.” This preface could reflect the

difference in his roles when performing medical duties

versus his administrative or teaching duties.

Alternatively, it could be considered a carefully crafted

answer to avoid giving perjured testimony. By

specifying that his answer pertained to the time periods

when he was practicing medicine, he avoided the

necessity of indicating that there were periods when he

was not able to practice medicine due to the suspension

of his medical license.

Id. (citations omitted).

This special master, too, was troubled by Dr. Sladky’s avoidance of the

topic of his licensure problems. The following passage reflects the special

master’s conclusions as to the misleading nature of the testimony provided by Dr.

Sladky:

I administer an oath to witnesses that requires that they

tell the whole truth. Neither . . . nor Dr. Sladky told the

whole truth. Both demonstrated a lack of candor that,

although not related directly to the substance of their

15

causation opinions, reflect[s] their willingness to, at the

very least, shade the truth. . . . In the case of Dr. Sladky,

it appears that he so feared the loss of his position and

income as a case reviewer for respondent that he

withheld facts concerning his medical license

suspension.

Id. at *16. Thus, in both Roberts and Raymo, Dr. Sladky’s testimony was viewed

in a negative light because of his misleading statements regarding his medical

practice and qualifications to opine as an expert.

4. Credibility and Reliability Determinations in Other

Vaccine Cases Based on Dr. Sladky’s Lack of Candor

The credibility and reliability determinations regarding the overall value of

Dr. Sladky’s opinions in Roberts and Raymo are not exactly the same. In Roberts,

the special master merely noted that Dr. Sladky’s representations regarding his

qualifications were “questionable,” and that the recently revealed information

about his licensure problems gave her “pause.” 2013 WL 5314698, at *9. Her

conclusion regarding his opinions, based on the candor issue as well as the

substantive content of his opinions, was that she “d[id] not find Dr. Sladky’s

testimony as reliable and persuasive as the testimony of [two of the petitioners’

experts].” Id.

In Raymo, on the other hand, Dr. Sladky’s credibility was destroyed by his

lack of candor regarding his licensure problems. The special master considered

not only Dr. Sladky’s lack of candor in the case before her, but also his lack of

candor in other vaccine cases:

Standing alone, the basis for Dr. Sladky’s disciplinary

action might not affect the reliability of his expert

opinions. However, his failure to disclose the

disciplinary action to respondent, his authoring of expert

opinions while he did not have an active medical license,

and the failure to reflect his voluntary leave from

medical practice due to a substance abuse problem on the

CV filed in this case all cast doubt about his credibility

16

as a witness.

Raymo, 2014 WL 1092274, at *15. She therefore did not rely at all on the opinion

of Dr. Sladky for her entitlement decision in that case.

It is perhaps noteworthy that petitioners in both Roberts and Raymo

prevailed on entitlement, at least in part because the expert opinion of Dr. Sladky

was of lessened or no value to respondent’s arguments in those cases. Raymo,

2014 WL 1092274, at *17 (“Because I attach no weight to the opinions of Drs.

Sladky and . . . , [petitioners’ expert’s] opinion is largely unrebutted.”); Roberts,

2013 WL 5314698, at *11 (basing her decision regarding entitlement on the

special master’s “review of the evidence and an assessment of the reliability of the

opinions of the various expert witnesses”).

B. The Special Master’s Assessment of Dr. Sladky’s Credibility and

Reliability in This Case

The special master’s ruling on the credibility and reliability of Dr. Sladky,

rendered after the parties hotly contested the importance of the Secretary’s

disclosures, is ambiguous. In the section of the opinion devoted to Dr. Sladky’s

credibility and reliability as an expert, the special master states:

The Secretary does not dispute that Dr. Sladky

should have disclosed the information concerning his

health issues and the effect they had on his ability to

practice medicine. The failure to disclose this important

information bears on his credibility and reliability as an

expert witness.

However, the lack of disclosure and (implicit)

misrepresentation about qualifications does not entirely

negate Dr. Sladky’s opinion. Dr. Sladky established his

opinion almost three years before his license was

suspended and it has not changed throughout the course

of these proceedings. As the Secretary asserted, it does

not appear that Dr. Sladky’s personal health issues or his

licensure problems affected his opinions in any way. In

addition, Dr. Sladky’s opinions are consistent with the

17

opinions of other witnesses. This corroboration shows

that Dr. Sladky’s opinions retain some value.

Opin. at 7 (citations and footnote omitted). A later comment on the credibility and

reliability of Dr. Sladky is presented in a footnote:

The [causation] analysis in the text does not rely upon

Dr. Sladky’s opinion extensively. Thus, under the

circumstances in which the Secretary presented the

opinion of a different doctor, the problems in Dr.

Sladky’s licensing and the non-disclosure of these

problems ha[ve] minimal effect on this case.

Id. at 71 n.51.

1. Minimizing the Importance of Dr. Sladky’s

Misrepresentations and Misleading Testimony for

Credibility and Reliability Determinations

The court observes, first, that the special master appears to dismiss Dr.

Sladky’s substance abuse problem and lack of candor as relatively unimportant.

See Opin. at 71 n.51; see also supra note 8. The special master notes, for example,

that Dr. Sladky never saw Jessie as a patient, and comments that petitioner did not

establish “that a suspension of a license to practice medicine means that the person

may not provide opinions based upon the person’s training and experience.”

Opin. at 6. The more salient issue, in the court’s view, is whether a physician

engaged as an expert by the Secretary should have revealed to respondent’s

counsel that his expert report was created, at least in part, during a time period

when the physician’s license to practice medicine was suspended.

At this late date, it may not be helpful to inquire whether the special

master’s assumptions regarding the severity and duration of Dr. Sladky’s

substance abuse problem are correct. See Opin. at 7 (“Dr. Sladky established his

opinion almost three years before his license was suspended and it has not

changed throughout the course of these proceedings. As the Secretary asserted, it

does not appear that Dr. Sladky’s personal health issues or his licensure problems

affected his opinions in any way.”). The court cannot ignore, however, the fact

18

that the special master improperly conflated Dr. Sladky’s 2005 expert report with

his 2010 expert report and hearing testimony, in a manner that minimizes Dr.

Sladky’s credibility problems:

[T]he lack of disclosure and (implicit) misrepresentation

about qualifications does not entirely negate Dr. Sladky’s

opinion. Dr. Sladky established his opinion almost three

years before his license was suspended and it has not

changed throughout the course of these proceedings.

Opin. at 7 (emphasis added). Dr. Sladky provided more than one opinion in this

case, as the record clearly shows.

At the time of the filing of Dr. Sladky’s first report, petitioner’s expert Dr.

Steinman had not yet opined on causation and the subsidiary issues relevant to

causation. Dr. Sladky’s second expert report is not a carbon copy of his first

report – it was filed “to address the issues raised by petitioner’s expert, Dr.

Steinman.” Resp.’s Status Report of January 27, 2010, at 1; see Tr. at 279 (direct

examination confirming that Dr. Sladky’s second report, Ex. P, “was in response

to Dr. Steinman’s report”); Ex. P at 1 (“I have been asked to comment on

supplementary opinions which have been provided to this court regarding the

above referenced matter. I have not previously reviewed these documents as they

were submitted after I prepared my initial report in 2005.”).

Dr. Sladky’s opinions on many issues considered by the special master were

presented in his second expert report or later at the hearing; it cannot be said that

Dr. Sladky’s sole opinion was presented first in 2005 and never changed

thereafter. To the extent that a specific Dr. Sladky opinion disagrees with a

specific proposition advanced by Dr. Steinman in this case, Dr. Sladky’s opinion

is necessarily of a 2010 vintage, not a 2005 vintage. See Tr. at 321-22 (noting that

he had only worked on this case, after 2005, not long “before we came here [for

the 2010 hearing]”). To obtain some of these 2010 vintage opinions, Dr. Sladky

was cross-examined about his second report, which was signed and filed in 2010.

Id. at 353. He was also examined as to his (2010 vintage) view of certain opinions

19

of Dr. Steinman. Id. at 371-72, 381-82, 389-90, 396, 402-03.9 Therefore, it

cannot be said that Dr. Sladky’s opinion did not change or was consistent after

2005.

In the court’s view, the proposition that Dr. Sladky’s supposedly “reliable”

2005 opinions somehow validate later opinions tainted by a documented substance

abuse problem, disciplinary actions preventing him from practicing medicine, and

a lack of candor, is flawed. Dr. Sladky’s hearing testimony, it should be noted,

contains some consistent opinions but also contains some newly-proffered

opinions, and these 2010 vintage opinions were considered by the special master

in his decision.10 The body of Dr. Sladky’s oral testimony, which was highly-

detailed and went far beyond the analysis presented in his five-page 2005 expert

report, must largely stand or fall based on Dr. Sladky’s credibility when he was

testifying in 2010.

The only other flaw in the special master’s analysis of the “credibility and

reliability” of Dr. Sladky worth noting is that of an illogical reliance on

“corroboration.” Opin. at 7. Dr. Sladky’s opinions retain some value, according

to the special master, because

Dr. Sladky’s opinions are consistent with the opinions of

other witnesses. This corroboration shows that Dr.

Sladky’s opinions retain some value.

Id. (footnote omitted). One could interpret this statement as suggesting that the

fact-finder may abdicate his role as the assessor of credibility of expert witnesses

whenever the witness in question offers statements that are in harmony with

9

/ These transcript citations are limited to instances where Dr. Steinman was mentioned

by name. There are other examples in Dr. Sladky’s testimony where propositions advanced by

Dr. Steinman were referenced but his name was not.

10

/ To cite one example, Dr. Sladky’s opinion regarding the significance of a certain

reflex test was cited by the special master. Opin. at 11 n.6, 28. That particular Dr. Sladky

opinion was not presented in 2005. See Ex. I. Although certain opinions, such as Dr. Sladky’s

opinion regarding the timing of the onset of Jessie’s disease, did not evolve in any substantive

way, many other Dr. Sladky opinions were disclosed or refined in 2010.

20

statements from other expert witnesses.11

Such a practice would avoid making credibility determinations in the first

instance and would proceed directly to the weighing of available evidence without

first determining whether that evidence is reliable. This approach violates binding

precedent which requires special masters to assess the credibility, in appropriate

instances, of expert witnesses:

Finders of fact are entitled – indeed, expected – to make

determinations as to the reliability of the evidence

presented to them and, if appropriate, as to the credibility

of the persons presenting that evidence. . . .

In this case, the special master applied the correct

legal standard and found, based in part on the

unconvincing nature of the expert evidence and the lack

of credibility of the petitioners’ expert, that the

petitioners failed to prove causation by a preponderance

of the evidence.

Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1326

(Fed. Cir. 2010) (emphasis added). If there has ever been an appropriate instance

in a Vaccine Act case where a special master must first assess the credibility of an

expert witness, Dr. Sladky’s testimony and opinions provide that circumstance. In

the court’s view, before the special master can assess whether Dr. Sladky’s

opinions are convincing or persuasive, he must first determine whether or not Dr.

Sladky is a credible witness providing reliable opinions.

11

/ An additional weakness in the special master’s reliance on the “corroboration” of Dr.

Sladky’s opinions is the special master’s imprecise characterization of this corroboration as

corroboration provided by “other witnesses.” Opin. at 7 & n.4. The corroboration for Dr.

Sladky’s diagnosis of Jessie’s illness, for example, is provided not by any testifying witness,

affidavit or declaration, but by the special master’s interpretation of excerpts from Jessie’s

medical records. See Pet.’s Mot. at 16 (“None of these four physicians [upon whose commentary

in Jessie’s medical records the special master relied] provided any written opinions to be

considered or testimony at the hearing.”); Opin. at 7 n.4 (“Dr. Sladky’s opinion matches the

diagnosis of Mr. Contreras’s treating neurologist [who did not testify at the hearing or provide a

declaration].”), 25-26 (citing medical records found in Exs. 7, 82), 29-30 & nn.23-24 (citing

medical records found in Ex. 7).

21

2. Lack of Clarity as to the Assessment of Dr. Sladky’s

Credibility and Reliability

The court has attempted to reconcile the special master’s statements

regarding Dr. Sladky’s credibility and reliability. These statements include:

(1) “Dr. Sladky’s opinions retain some value”; (2) “The analysis in the text does

not rely upon Dr. Sladky’s opinion extensively”; and, (3) “[U]nder the

circumstances in which the Secretary presented the opinion of a different doctor,

the problems in Dr. Sladky’s licensing and the non-disclosure of these problems

ha[ve] minimal effect on this case.” Opin. at 7, 71 n.51. These statements, in the

court’s view, lack precision and frustrate review. Furthermore, not only are these

statements vague, but the text of the decision contradicts the assertion that Dr.

Sladky’s opinions have not been relied upon extensively.

The special master’s decision includes extensive citations to Dr. Sladky’s

specific opinions on a number of issues relevant to the special master’s decision

on entitlement. Reference is made to Dr. Sladky’s opinions on almost every

decisive issue in this case – these references are found on pages 11 n.6, 17, 27-29,

36-37, 46 & n.35, 48-52, 54, 59-60, 65-68, 70-71, and 74 of the special master’s

decision. Dr. Sladky’s substance abuse, licensure problems and lack of candor

may indeed have had “minimal effect” on the special master’s ruling on

entitlement, but the effect of the disclosure of these issues remains ambiguous.

The special master’s decision reviewed here does not clearly state the special

master’s determinations regarding the credibility of Dr. Sladky and the reliability

of Dr. Sladky’s opinions. The court therefore remands this case to the special

master.

III. Instructions for Remand

Three clarifications are needed before the court can determine whether the

special master has abused his discretion in relying on the expert opinions of Dr.

Sladky. First, the special master must address Dr. Sladky’s credibility and

reliability in light of the consistent pattern of misrepresentations by Dr. Sladky in

his work as an expert for respondent, and provide an unambiguous estimation of

22

Dr. Sladky’s credibility and reliability as an expert.12 Second, the special master

must compare Dr. Sladky’s credibility to the credibility of the experts for

petitioner and the witnesses testifying for petitioner. These clarified credibility

determinations should then be integrated into the special master’s decision in a

manner that presents a clear ruling on entitlement for this court’s review.13

Third, for the sake of judicial economy, the special master must present an

alternative ruling on causation which completely disregards all of Dr. Sladky’s

opinions and testimony. This alternative ruling should be adequately detailed to

provide this court with holdings that may either be sustained or vacated should

this court (or a higher court) determine that Dr. Sladky’s testimony should not

have been considered at all in this case once the disclosures regarding Dr. Sladky

had been provided by the Secretary to the special master. In the unique

circumstances of this case, it would be inefficient to further delay proceedings

with another remand to the special master should this court find manifest error in

the special master’s level of reliance on the opinions of Dr. Sladky.14

CONCLUSION

For all of the above-stated reasons, the court remands this case to the special

master so that his credibility and reliability determinations, as well as his holdings

regarding causation, are clearly presented for review. Specifically, for this court

12

/ A distinction should be drawn between the content of Dr. Sladky’s opinions, which

may match the special master’s view of the case, and the credibility of Dr. Sladky as an expert

who provided two expert reports and testimony in this case. In essence, the question of

credibility focuses on whether Dr. Sladky was a reliable source of expert opinion in this case, not

whether his opinions, as buttressed by other expert opinion and evidence, were persuasive on

particular issues. See Opin. at 7 (“The failure to disclose this important information bears on

[Dr. Sladky’s] credibility and reliability as an expert witness.”) (citations omitted).

13

/ The special master may choose to revise his substantive rulings in this case based on

his clarified credibility rulings, or may re-issue the substantive rulings of the opinion with only

minor modifications which clarify the sections discussing the credibility of witnesses and the

reliability of expert opinion in this case.

14

/ The court issues no holding here as to the appropriateness of any particular level of

reliance on Dr. Sladky’s opinions. It is the potential for a ruling requiring the exclusion of Dr.

Sladky’s opinions and testimony that militates for an alternative finding on causation.

23

to determine whether or not the special master’s evidentiary rulings regarding Dr.

Sladky’s opinions were manifestly erroneous, the special master must follow the

instructions for remand provided in this opinion. See, e.g., Piscopo, 66 Fed. Cl. at

53 (“Determinations as to the qualification of experts and the admissibility of their

testimony, including an evaluation of whether the opinion is reliable and relevant,

are generally within the discretion of a trial judge, and are reviewed for an abuse

of discretion, [and] only overturned if manifestly erroneous.”) (citations omitted).

The court cannot undertake a review of the special master’s ultimate ruling on

entitlement without the clarifications specified in this opinion.

Accordingly, it is hereby ORDERED that

(1) Petitioner’s Motion for Review, filed December 19, 2013, is

GRANTED;

(2) The decision of the special master, filed November 19, 2013, is SET

ASIDE and VACATED;

(3) This case is REMANDED to the special master, pursuant to Vaccine

Rule 27(c), for proceedings in accordance with the principles of law

and the instructions set forth in this opinion; and

(4) The parties shall separately FILE any proposed redactions to this

opinion, with the text to be redacted clearly marked out or otherwise

indicated in brackets, on or before June 6, 2014.

/s/Lynn J. Bush

LYNN J. BUSH

Senior Judge

24