Bayless v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

NICOLE BAYLESS and LARRY *

BAYLESS, on behalf of SPENCER * No. 08-679V

BAYLESS, * Special Master Christian J. Moran

*

Petitioners, * Filed: January 15, 2015

*

v. * Findings of Fact; contemporaneous

* records; testimony contradicting

SECRETARY OF HEALTH * records; seizure disorder; onset.

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Michael G. McLaren, Black McLaren et al., Memphis, TN, for petitioners.

Julia W. McInerny, United States Dep’t of Justice, Washington, DC, for respondent.

RULING FINDING FACTS1

On September 25, 2008, Nicole and Larry Bayless on behalf of their son,

Spencer, filed a petition for compensation under the National Vaccine Injury

Compensation Program, 42 U.S.C. § 300aa-10 through 34 (2006). In their petition,

the Baylesses alleged that Spencer suffered a “table encephalopathy and an

aggravation of his neurologic condition” as a result of the diphtheria-tetanus-

acellular-pertussis (“DTaP”) vaccination he received on October 4, 2005.

Alternatively, petitioners alleged that Spencer suffered “a non-table

encephalopathy and an aggravation of his neurologic condition” as a result of the

DTaP vaccine. See Am. Pet. at 1.

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The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,

2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the

parties have 14 days to file a motion proposing redaction of medical information or other

information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special

master will appear in the document posted on the website.

To support their claim for compensation, petitioners periodically filed

evidence including medical records, affidavits, and expert reports. The Secretary

filed a responsive expert report, and the parties began planning for an expert

hearing to be held in November 2011. Order, issued June 13, 2011. However, at

petitioners’ request, the scheduled hearing was cancelled and the Baylesses

obtained a supplemental report from their expert. Later, the case was referred to

another special master for alternative dispute resolution. Order, issued May 22,

2012.

The parties did not reach a resolution. In light of this, in February 2013,

petitioners proceeded with filing additional evidence from their experts. On March

28, 2013, the case was reassigned to the undersigned. Following the filing of the

respondent’s second expert report, it became evident that the experts were

assuming different facts regarding Spencer’s condition following his October 4,

2005 DTaP vaccination through his November 28, 2005 hospitalization. See order,

issued June 18, 2013; see also order, issued Oct. 1, 2013. Petitioners’ expert, Dr.

Tena Rosser, appears to credit assertions found in Mrs. Bayless’s affidavit but not

found in any medical record created around November 2005. In contrast, the

Secretary’s expert, Dr. Mary Anne Guggenheim, does not accept the accuracy of

Mrs. Bayless’s assertions. Compare exhibit 56 at 1-2, with exhibit A at 5, and

exhibit D at 5.

When they are confronted with discrepancies among medical records and

affidavits, special masters are encouraged to hold hearings to evaluate the

testimony of the affiants. See Campbell v. Sec'y of Health & Human Servs., 69

Fed. Cl. 775, 779-80 (2006). A fact hearing was thus held on October 16, 2013,

during which Mrs. Bayless as well as Spencer’s maternal grandmother, Ms. Anke

Bahuchet, testified in person. Spencer’s maternal grandfather, Mr. Jacques Pierre,

also testified by telephone from Brazil. Mrs. Bayless’s and Ms. Bahuchet’s in-

person appearance allowed the undersigned to assess their demeanor. The

undersigned also considered Mr. Pierre’s tonal quality as he testified remotely at

the start of the hearing.

Following the hearing, the parties submitted Joint Proposed Findings of Fact

(“Proposed Findings”) on April 30, 2014. Although the Baylesses referred to

Spencer reaching milestones as described by What to Expect in the First Year, the

Baylesses did not submit the pertinent chapters from this book. Consequently, to

cure this omission, the undersigned filed relevant excerpts and allowed the parties

to comment. Order, issued Dec. 23, 2014. Respondent did not submit any

comment. The Baylesses submitted a comment which contained no objection, but

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stated that they reserve the right to provide future comments and/or additional

filings from the book as the matter continues. Pet’rs’ Comment on Exhibit 1001,

filed Jan. 7, 2015. Following this submission, findings of facts are ready to be

made.

Standard for Finding Facts

Petitioners are required to establish their case by a preponderance of the

evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence

standard requires a “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 v. Sec’y of

Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations

omitted).

The process for finding facts in the Vaccine Program begins with analyzing

the medical records, which are required to be filed with the petition. 42 U.S.C.

§ 300aa–11(c)(2). Medical records created contemporaneously with the events

they describe are presumed to be accurate. Cucuras v. Sec’y of Health & Human

Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

Not only are medical records presumed to be accurate, they are also

presumed to be complete, in the sense that the medical records present all the

problems of the patient. Completeness is presumed due to a series of propositions.

First, when people are ill, they see a medical professional. Second, when ill people

see a doctor, they report all of their problems to the doctor. Third, having heard

about the symptoms, the doctor records what he or she was told.

Appellate authorities have accepted the reasoning supporting a presumption

that medical records created contemporaneously with the events being described

are accurate and complete. A notable example is Cucuras, in which the petitioners

asserted that their daughter, Nicole, began having seizures within one day of

receiving a vaccination, although medical records created around that time

suggested that the seizures began at least one week after the vaccination. Cucuras,

993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n

light of [the parents’] concern for Nicole’s treatment . . . it strains reason to

conclude that petitioners would fail to accurately report the onset of their

daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are

trained in taking medical histories concerning the onset of neurologically

significant symptoms, would consistently but erroneously report the onset of

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seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human

Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).

Decisions by judges of the Court of Federal Claims have followed Cucuras

in affirming findings by special masters that the lack of contemporaneously created

medical records can contradict a testimonial assertion that symptoms appeared on a

certain date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.

598, 608 (2010) (stating, “[g]iven the inconsistencies between petitioner’s

testimony and his contemporaneous medical records, the special master’s decision

to rely on petitioner’s medical records was rational and consistent with applicable

law”), aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx.

952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health &

Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human

Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs.,

36 Fed. Cl. 461, 465 (1996) (stating, “[t]he special master apparently reasoned that,

if Frank suffered such [developmental] losses immediately following the

vaccination, it was more likely than not that this traumatic event, or his parents’

mention of it, would have been noted by at least one of the medical record

professionals who evaluated Frank during his life to date. Finding Frank’s medical

history silent on his loss of developmental milestones, the special master

questioned petitioner’s memory of the events, not her sincerity.”), aff’d, 117 F.3d

545, 547-48 (Fed. Cir. 1997).

The presumption that contemporaneously-created medical records are

accurate and complete is rebuttable, however. For cases alleging a condition found

in the Vaccine Injury Table, special masters may find when a first symptom

appeared, despite the lack of a notation in a contemporaneous medical record. 42

U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar

fact-finding for cases alleging an off-Table injury. In such cases, special masters

are expected to consider whether medical records are accurate and complete. To

overcome the presumption that written records are accurate, testimony is required

to be “consistent, clear, cogent, and compelling.” Blutstein v. Sec’y of Health &

Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June

30, 1998).

Special masters will consider various explanations for inconsistencies

between contemporaneously created medical records and later given testimony.

The Court of Federal Claims listed four such explanations. Inconsistencies can be

explained by: (1) a person’s failure to recount to the medical professional

everything that happened during the relevant time period; (2) the medical

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professional’s failure to document everything reported to her or him; (3) a person’s

faulty recollection of the events when presenting testimony; or (4) a person’s

purposeful recounting of symptoms that did not exist. La Londe v. Sec’y Health &

Human Servs., 110 Fed. Cl. 184, 203 (Fed. Cl. 2013), aff’d, 746 F.3d 1334 (Fed.

Cir. 2014).

In weighing divergent pieces of evidence, special masters usually find

contemporaneously-written medical records to be more significant than oral

testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in

question is less reliable than contemporaneous reports when the motivation for

accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health

& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral

testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at

779 (“[L]ike any norm based upon common sense and experience, this rule should

not be treated as an absolute and must yield where the factual predicates for its

application are weak or lacking.”); Camery v. Sec’y of Health & Human Servs., 42

Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because

medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &

Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a

condition or circumstance is much less significant than a reference which negates

the existence of the condition or circumstance.”), aff’d, 968 F.2d 1226 (Fed. Cir.

1992).

The relative strength or weakness of the testimony of a fact witness affects

whether this testimony is more probative than medical records. An assessment of a

fact witness’s credibility may involve consideration of the person’s demeanor

while testifying. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379

(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575

(Fed. Cir. 1993).

These criteria are considered in the analysis below.

Summary of Undisputed Facts

Spencer was born on June 2, 2005. Exhibit 2 at 96. To care for Spencer

during the day while the Baylesses worked, they arranged for Ms. Bahuchet, Mrs.

Bayless’s mother, to come to their house. Tr. 145, 166. Ms. Bahuchet moved

from Colorado to the Baylesses’ home in California to tend to Spencer. Tr. 54-55.

Ms. Bahuchet described herself a “teaching parent” who was very involved with

Spencer’s daily routine. Tr. 57.

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On October 1, 2005, Ms. Bahuchet left the Baylesses’ home ahead of the

visit of ex-husband, Mr. Jacques Pierre. Tr. 60. Ms. Bahuchet used the

opportunity to return to Colorado and complete packing up her house. Tr. 61.

When Mr. Pierre and his wife visited their new grandson, Spencer had his four-

month well-baby checkup with his pediatrician, Dr. Delmonteverde, on October 4,

2005. Tr. 20-22; exhibit 45 at 1-3; exhibit 2 at 90. During this check-up, Spencer

received his second round of IPV, DTaP, Hib-Hep B, and Prevnar immunizations.

Exhibit 2 at 90.

The parties do not dispute that on October 5-6, 2005, the two days following

his four-month vaccinations, Spencer had a fever, cried often and was fussy and

irritable. See Proposed Findings at 2; exhibit 25 at 14-15; exhibit 9 at 101; Tr. 150.

Mrs. Bayless testified that Spencer’s fever was gone by October 7, 2005. Tr. 157.

Mr. Pierre left on October 10, 2005. Tr. 22; exhibit 45 at 1. During the

hearing, he testified about his observances of Spencer for the five days after

vaccination. Tr. 30-38; see also exhibit 45 at 2.

Ms. Bahuchet resumed care-taking on October 12, 2005. Tr. 62. Ms.

Bahuchet testified that she deferred to her daughter’s judgment in matters

involving Spencer’s care, and that there were instances when their opinions

differed causing a strain on their relationship. Tr. 71-72, 95-96, 155-56, 228-29.

Between October 5, 2005 and November 23, 2005, relatively few records

were created. Mrs. Bayless made entries on various dates in Spencer’s baby book

and the Baylesses recorded video of Spencer’s first Halloween. Exhibit 25; exhibit

26; exhibit 53. The witnesses provided their recollections about Spencer’s health

during this time, which is discussed in the section of disputed facts.

Mrs. Bayless averred that on November 23, 2005, she “noticed Spencer

flexing his right arm in the morning… [and] thought he was flexing his muscle and

that it looked cute. Over the next several days he continued to do this while

bending his head forward.” Exhibit 43 (second affidavit of Nicole Bayless) at 5.

The Secretary does not dispute that a few days before Spencer was taken to

Torrance Memorial Hospital (TMH) on November 27, 2005, he began to have

jerks or movements described as “twitching.” Proposed Findings at 12-13 (citing

exhibit 34 at 1-3, 6-7; exhibit 9 at 101; exhibit 10 at 40-41, 44-45, 85).

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Thanksgiving occurred on November 24, 2005. On the day after, the

Baylesses took Spencer shopping during which Spencer moved erratically and Ms.

Bahuchet thought he was having a seizure. Tr. 76, 80-81,111-15, 124-26; exhibit

44 at 4-5. The Baylesses created a video on November 27, 2005, then brought

Spencer to TMH and provided a history to Spencer’s treating physicians. Exhibit

43 at 6; exhibit 34; Tr. 172.

On November 28, 2005, the Baylesses brought Spencer to Dr.

Delmonteverde’s office, where Dr. Chittenden saw Spencer. Exhibit 9 at 101.

Later, Spencer was taken to Children’s Hospital of Los Angeles (CHLA) where

Spencer was seen by Dr. Rosser. Dr. Rosser remains Spencer’s treating

neurologist and offered an opinion that the DTaP vaccine harmed Spencer.

Exhibits 56, 144.

The admission records from TMH and CHLA provide sufficient

documentation to account for Spencer’s condition from November 23, 2005

forward.

Summary of the Parties’ Arguments

The parties’ dispute focuses on Spencer’s condition in the several weeks

following his October 4, 2005 vaccination for which there are no contemporaneous

medical records.

The Baylesses assert that Spencer was a “normal healthy baby who

achieved all of his developmental milestones” prior to his October 4, 2005 DTaP

vaccination. Exhibit 5 (first affidavit of Nicole Bayless) at 1. The Baylesses claim

that following the vaccination, Spencer stopped reaching milestones and began

having many problems including a decreased appetite, listlessness with long

periods of blank staring, irritability, sudden loss of use of his right hand, and

episodes of “bad dreams.” See Proposed Findings.

In support of their allegations, the Baylesses have submitted medical records

and affidavits in addition to their testimony and the testimony of Spencer’s

maternal grandparents. The Secretary challenges the Baylesses’ assertions and

contends that the medical records do not support their assertions about Spencer’s

health.

With the exception of Spencer’s gradual loss of the use of his right hand and

staring, the undersigned finds that the medical records, including the admission

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records from TMH and CHLA, provide sufficient documentation to account for his

condition prior to November 23, 2005.

Specific Findings of Fact

The topics covered by the parties’ proposed findings are each discussed

separately below.

“Bad Dream” Episodes

The Baylesses assert that, starting October 5, 2005, and continuing until his

November 28, 2005 treatment at CHLA, Spencer experienced “bad dream”

episodes. Proposed Findings at 2-3; exhibit 45 (affidavit of Jacques Pierre) at 2;

Tr. 21. The Secretary argues that there is no documentation, contemporaneous or

otherwise, to support the assertion that Spencer was exhibiting this behavior.

Proposed Findings at 2.

The Baylesses described that during these episodes Spencer would jerk

awake from sleeping with a shake of his head from left to right, followed by

screaming and crying. The Baylesses assert these episodes, which they liken to

awakening from a bad dream, happened several times a day. Exhibit 45 at 2; Tr.

23-24.

The witnesses testified about their recollections of Spencer’s bad dreams.

Mr. Pierre recalls Spencer having bad dream episodes during his October 2005

visit and described Spencer’s behavior during these episodes as abruptly awaking

from sleep with left to right head shaking followed by intense crying. Tr. 19-26.

According to Mr. Pierre’s recollection, these episodes did not cause the Baylesses

to be concerned and were considered “normal.” Tr. 38.

Furthermore, when Ms. Bahuchet arrived back to the Baylesses’ home from

Colorado on October 12, 2005, she was not informed of any new or unusual

behavior by Spencer during her absence. Tr. 89-90. Ms. Bahuchet resumed

Spencer’s daily care without any conversation about the bad dream episodes and

by her account “everyone was acting like nothing happened after the vaccines.”

Tr. 97. Ms. Bahuchet testified that she saw the jerking and bad dream episodes as

Spencer would wake up, with high pitched crying like a “night terror,” and that she

recalled this occurring around the time she returned from Colorado. Tr. 105-06.

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Mrs. Bayless testified that these episodes occurred during her father’s visit

but that she assumed they were reflexes and medical care was not required. Tr.

158. Although Mrs. Bayless testified that Spencer had been having bad dream

episodes and jerking himself awake starting October 5, 2005, she did not express

concern to Spencer’s primary physician, Dr. Delmonteverde. For example, when

Mrs. Bayless stopped into Dr. Delmonteverde’s office on October 14, 2005, to

retrieve a letter excusing her from jury duty, she did not mention any issues or

arrange for an appointment. Tr. 163-64; exhibit 2 at 89.

Standing by itself, this version seems coherent. The Baylesses did not seek

medical attention for Spencer’s “bad dream” behavior because they did not

understand the behavior was abnormal.

However, a problem with this version arises once additional evidentiary

materials are considered. The medical records created when the Baylesses began

to realize that Spencer might be ill are inconsistent with their testimony. One of

the first doctors to see Spencer was Dr. May at TMH on November 27, 2005. By

this date, the Baylesses had already videotaped Spencer’s aberrant movements and,

thus, were worried about their child’s health. The Baylesses told Dr. May that

Spencer’s “twitching” seemed to occur when he woke from naps and had started

the previous Wednesday, November 23, 2005. Exhibit 34 at 1, 6. Given that both

the reported “twitching,” and Spencer’s bad dream episodes appeared to occur

following naps, it seems that his parents would have been prompted to explain both

to Dr. May. Instead, the Baylesses reported only that Spencer’s “unusual motor

activity” was different from his “baseline.” Exhibit 9 at 102.

Dr. May ordered an electrolyte panel and bloodwork, then called Dr.

Delmonteverde to review the results. Id. Dr. Delmonteverde and Dr. May agreed

to send the Baylesses home with instructions to follow-up with Dr.

Demonteverde’s office the following day. Id. The following day Spencer was

examined by Dr. Chittenden at Dr. Delmonteverde’s office. The history recorded

by Dr. Chittenden indicated that Spencer’s spasms began on Wednesday,

November 23, 2005, and had progressed by Saturday November 26, 2005. Id. at

101. Dr. Chittenden referred Spencer to a pediatric neurologist. Id.

Later that same day, Ms. Bahuchet observed Spencer having another

“twitching” episode which led the Baylesses to take Spencer to CHLA. Again, no

report was provided describing weeks of bad dream behavior. The Baylesses

reported that Spencer was:

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[W]ell until 6 days ago (11/21/05) when he was first

noted to have the right side of his body "crunch up." His

right eye would start to twitch, his right arm would flex

and stiffen and his right leg would flex inward as well.

This occurred only right after he wakes up.

Exhibit 10 at 44 (emphasis added).

The CHLA history is a third instance in which the parents provided a history

about when Spencer’s unusual waking movements began. The CHLA history is

relatively consistent with the TMH history; the former places onset at November

21, 2005, and the latter gives an onset of November 23, 2005. Exhibit 10 at 44;

exhibit 34 at 3. This two-day discrepancy is not important. What does matter is

neither history even remotely suggests that the problem started in early October

2005.

Given the above, it is difficult to accept that Spencer routinely woke from

sleep with abnormal screaming and head shaking as if aroused from a bad dream or

“night terror.” It seems that if this were the actual severity of Spencer’s typical

behavior, the Baylesses and/or Ms. Bahuchet would have reported it to his treating

physicians when care was sought in November 2005. Moreover, given that the

history provided included a newly observed behavior when waking, it is difficult to

accept that his parents would not report other routine and abnormal behavior that

also occurred as he woke. Thus, it appears that the Baylesses and their witnesses

are not accurately recalling the onset, severity, or frequency of Spencer’s behavior.

The evidence, on the whole, does not support a finding that Spencer routinely

awoke with abnormal “night terror” screaming, head shaking and inconsolable

crying.

“Milestones”

Mrs. Bayless claims that, according to her interpretation of What to Expect

the First Year, Spencer was a “normal healthy baby who achieved all of his

developmental milestones” before his four-month vaccinations. Tr. 145; exhibit 43

at 4; exhibit 5 at 1. Mrs. Bayless argues that Spencer stopped reaching

“developmental milestones” following his four-month vaccinations. Exhibit 34 at

4 (“When I read [What to Expect the First Year] near the end of October and

beginning of November, when Spencer turned 5 months old, I noticed that he had

not reached any new developmental milestones in the previous month.”).

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Ms. Bahuchet, in particular, expressed her strong personal belief that

Spencer’s development slowed following his October 4, 2005 vaccinations. Tr.

57-72. Ms. Bahuchet described herself as a “teaching parent” and oversaw

Spencer’s daily routine as his caregiver when Mr. and Mrs. Bayless were at work.

Tr. 66, 100-01, 166. Ms. Bahuchet stated that upon her return from Colorado on

October 12, 2005, Spencer was “a different child.” Tr. 66. She gave several

examples of what she believed to be causes for concern, stating that Spencer was

“generally listless and uninterested to reach, kick and play with his toys.” Tr. 99-

102; exhibit 44 at ¶ 10.

Ms. Bahuchet described Spencer’s development before the October 4, 2005

vaccination as “advanced,” and that there was a “huge contrast” in his development

after vaccination. Exhibit 44 at ¶ 7. Ms. Bahuchet and Mrs. Bayless testified that

their discussions about Spencer’s alleged condition occurred frequently and caused

stress between them. Tr. 71-72, 96, 109, 132, 155-56, 166, 228-29.

Again, the Secretary contends that there is an absence of documentation,

contemporaneous or otherwise, to support the Baylesses’ assertions that Spencer

stopped reaching “developmental milestones.” Proposed Findings at 9. Moreover,

the Secretary contends that Ms. Bahuchet and Mrs. Bayless lack the scientific

and/or medical expertise to characterize the progression or lack thereof of

Spencer’s “developmental milestones.” Id. at 9, 12.

The milestones described in the popular “What to Expect” books are simple

and easily observed. See exhibit 1001 at 3-4 (Arlene Eisenberg et al., What to

Expect the First Year 200-01 (1996)). Given that a caregiver would not need to be

a medical doctor to observe a child reaching these developmental milestones, the

undersigned finds that Ms. Bahuchet and Mrs. Bayless are qualified to express an

opinion as to whether Spencer could perform the actions described by in What to

Expect.

The five-month chapter of What to Expect the First Year lists many

milestones that an adult can understand. Exhibit 1001 at 5-6. However, neither

Mrs. Bayless nor Ms. Bahuchet identified which of the specific milestones listed in

What to Expect the First Year that Spencer failed to meet. This lack of specificity

greatly handicaps their testimony.

Even more importantly, it seems clear that Spencer could actually perform

many of the events described in the five-month chapter of What to Expect the First

Year. When admitted to CHLA on November 28, 2005, Spencer was able to

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perform many of the milestones listed, such as holding his head steady, rolling

over, and reaching for objects. Exhibit 10 at 44 (“he raises his head more than 90

degrees… he is able to sit in a tripod position… is observed to roll over

adequately… able to reach for a toy in the midline with no signs of shakiness”).

Spencer is also seen supporting his own head in the Halloween video. Exhibit 53.

The contradiction between Spencer’s abilities as recorded in a medical record

created in November 2005 and Spencer’s abilities as recalled in either written or

oral testimony created many years later greatly diminishes the value of that

testimony. The Baylesses appear not to be remembering Spencer’s abilities

accurately.

Loss of Appetite

Mrs. Bayless testified that Spencer “didn’t eat much at all” for the two days

following his October 4, 2005 vaccinations. Tr. 150-52, 218. Mrs. Bayless

recalled that although Dr. Delmonteverde had advised her to start Spencer on solid

foods during his October 4, 2005 four-month check-up, she was unable to do so

right away. Tr. 150-52.

Mrs. Bayless provided two reasons for not starting Spencer on a solid food

diet until two-and-one-half weeks after Dr. Delmonteverde’s recommendation.

First, Mrs. Bayless explained that she might have tried to introduce Spencer to

solid food that same day, but had not yet had the chance to buy infant cereal from

the grocery store. Tr. 152. Second, Mrs. Bayless testified that, due to Spencer’s

fever the following two days, he was uninterested in eating and she thought he was

not well enough for a new diet. Tr. 152. According to Mrs. Bayless, Spencer’s

appetite slowly returned and by October 22, 2005, she felt he was well enough to

have him try solid food for the first time. Tr. 150-52.

Ms. Bahuchet testified that in her opinion Spencer’s feedings became

difficult following his October 4, 2005 vaccinations. Tr. 69. Mrs. Bayless testified

that Spencer continued to have trouble eating and “did not want to take his bottles”

through October 2005, which she attributed to her assumption that he was teething.

Tr. 162, 218.

The Secretary does not dispute that Spencer started solids on October 22,

2005, but contends that there is a lack of evidence supporting the claim that

Spencer’s appetite was decreased following his vaccinations through October 22,

2005. Proposed Findings at 3.

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During this period of time, Mrs. Bayless did not make additional notes in

Spencer’s baby book akin to the notes describing his fever and fussiness on

October 5-6, 2005. Additionally, the Baylesses did not contact Dr. Delmonteverde

to report any change in Spencer’s eating. It is likely that if Spencer had not

resumed more regular eating habits following his October 5-6, 2005 fever, Mrs.

Bayless would have called Dr. Delmonteverde, as she claims to have done when

Spencer’s fever lasted more than a day. Tr. 209-12.

Thus, it is likely that Spencer’s eating habits improved during the time

following his fever until he started solid foods on October 22, 2005, and continued

to be relatively normal through November 2005. Exhibit 34 at 1-2 (patient history

given on Nov. 27, 2005 stating “patient has been taking good p.o.’s2”); exhibit 10

at 40-41, 48 (physical exam performed on Nov. 29, 2005: “Well nourished boy.

Large for age”).

Loss of Right Hand Function

The Baylesses claim that in the six to seven weeks following his four-month

vaccinations, Spencer “suddenly” began using his left exclusively and fisting his

right hand. Exhibit 5 at 3. Specifically, Spencer would rely on his left hand to sit

up and play with toys. Tr. at 127-29. Mrs. Bayless testified that she attributed this

behavior to Spencer being left handed and that it was not until his admission at

CHLA that she realized he could no longer grasp with his right hand. Exhibit 25 at

14; Tr. 127-29.

Although Spencer’s admitting physicians at CHLA noted that he “[m]oves

all extremities equally,” on November 29, 2005, Spencer is seen in the Halloween

trick-or-treating video resting in his mother’s arms with his right hand in a fist.

Exhibit 10 at 41; exhibit 53. The Secretary’s expert addresses this stating:

I suspect that the parental observations are true; indeed

some asymmetric fisting of his right hand is noticeable

on the video taken on Halloween. (Exhibit 53) Relative

disuse (often interpreted as a preference for the opposite

side) for one side of the body during this stage of brain

development (typically at 4-6 months of age) is often a

2

P.O. refers to “by mouth” feedings. Neil M. Davis, Medical Abbreviations 261 (15th

ed. 2011).

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more sensitive indicator of cortical dysfunction than a

formal medical examination.

Exhibit D at 7.

The evidence supports a finding that at some point prior to the end of

October 2005, Spencer began favoring his left hand and fisting his right hand.

Staring and Listlessness

The Baylesses also assert that following his four-month vaccinations,

Spencer began staring at objects for extended periods of time. Examples of objects

that fascinated him include a jack-o-lantern Halloween decoration, his hands, and

his arms. Tr. 126-27, 153-54, 168-69; exhibit 25 at 14 (baby book October 2005

notation: “I like our jack-o-lantern and like to stare at its flickering lights”). In her

August 2011 affidavit, Mrs. Bayless alleged that Spencer began staring at his

hands beginning around October 7, 2005. Exhibit 43 at 3. Mrs. Bayless described

this behavior as lasting for seven weeks. Exhibit 5 at 2-3. During her testimony,

Mrs. Bayless pointed to two examples of Spencer staring at his hand from the

video taken of him during Halloween 2005. Tr. 168-69 (discussing exhibit 53).

The Baylesses’ witnesses also testified that Spencer’s overall demeanor and

personality changed following his October 4, 2005 vaccinations. Exhibit 45 at 2;

exhibit 44; Tr. 63-64. Mr. Pierre testified that Spencer was not “a happy person”

in the days following his vaccination and no longer played or smiled. Tr. 26. Mr.

Pierre recalled that Spencer was not as “alert” as he was before his October 5, 2005

vaccination and would stare for long periods of time. Tr. 39; exhibit 45 at 2.

Ms. Bahuchet testified that Spencer would stare “blankly” and no longer

reached for his toys. Tr. 70. Ms. Bahuchet also testified that Spencer lost interest

in playing and remained fussy in the weeks following his October 4, 2005

vaccination. Tr. 68.

Mrs. Bayless testified that during the weeks following Spencer’s

vaccination, her mother made comments to her that Spencer’s behaviors, including

his staring and listlessness, were not normal. Exhibit 44; Tr. 155, 166. In

response, she researched Spencer’s behaviors, including the hand staring, on the

internet until she was satisfied that Spencer was normal. Tr. 212. Mrs. Bayless

explained that she preferred looking for answers on the internet because she was

reluctant to see a physician and be considered a hypochondriac. Tr. 229-30.

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The Secretary does not dispute that Spencer stared at the family’s jack-o-

lantern decoration as indicated in Spencer’s baby book. Exhibit 25 at 14.

However, the Secretary contends that there is a lack of documentation in support of

a finding that Spencer spent long periods of time staring at any object including his

hand. Proposed Findings at 3.

It is clear from their testimony that Mrs. Bayless and Ms. Bahuchet worked

closely in coordinating Spencer’s care at this time. Tr. 70, 108,155, 166. They

share a similar perspective and both clearly recall specific conversations and

disagreements regarding Spencer’s staring and listless behavior. In light of this,

the evidence preponderates in favor of the Baylesses’ allegation that from around

October 7, 2005, and during the following seven weeks, Spencer stared at objects

for long periods of time and appeared listless.

Conclusion

The parties are ordered to provide these findings of fact to any expert whom

they have retained to testify. Expert opinion inconsistent with these findings of

fact is not likely to be persuasive. See Burns v. Sec’y of Health & Human Servs.,

3 F.3d 415, 417 (1993) (holding that the special master did not abuse his discretion

in refraining from conducting a hearing when the petitioner’s expert “based his

opinion on facts not substantiated by the record”); Brooke Group Ltd. v. Brown &

Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“When an expert opinion is

not supported by sufficient facts to validate it in the eyes of the law, or when

indisputable record facts contradict or otherwise render the opinion unreasonable,

it cannot support a jury’s verdict.”); Perreira v. Sec’y of Health & Human Servs.,

33 F.3d 1375, 1376 n.6 (Fed. Cir. 1994) (“An expert opinion is no better than the

soundness of the reasons supporting it.”); see also Bradley v. Sec’y of Health &

Human Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993) (the assumption of an expert

about the accuracy of a fact witness’s testimony does not “substantiate” the fact

witness’s testimony).

A status conference is set, sua sponte, for Wednesday, January 28, 2015 at

11:00 A.M. The parties should be prepared to propose the next step in this case.

Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-

6353.

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IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

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