Contreras v. Secretary of Health & Human Services

United States Court of Appeals

for the Federal Circuit

______________________

JESSIE CONTRERAS,

Petitioner-Appellant

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent-Appellee

______________________

2015-5097

______________________

Appeal from the United States Court of Federal

Claims in No. 1:05-vv-00626-LJB, Senior Judge Lynn J.

Bush.

______________________

Decided: January 3, 2017

______________________

JEFFREY S. POP, Jeffrey S. Pop & Associates, Beverly

Hills, CA, argued for petitioner-appellant.

VORIS EDWARD JOHNSON, JR., Vaccine/Torts Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent-appellee. Also

represented by BENJAMIN C. MIZER, VINCENT J.

MATANOSKI, RUPA BHATTACHARYA, LINDA SARA RENZI.

______________________

Before DYK, MAYER, and HUGHES, Circuit Judges.

2 CONTRERAS v. HHS

HUGHES, Circuit Judge.

Jessie Contreras appeals from a U.S. Court of Federal

Claims judgment upholding a Special Master’s denial of

compensation for his Guillain-Barre Syndrome and

Transverse Myelitis allegedly caused by vaccinations.

Because the Special Master improperly diagnosed

Mr. Contreras and failed to consider relevant evidence

related to his Guillain-Barre Syndrome, we vacate and

remand for further proceedings consistent with this

opinion.

I

On June 16, 2003, Jessie Contreras (Mr. Contreras),

then thirteen years old, received the Tetanus-Diphtheria

vaccine and his third inoculation of the Hepatitis B vac-

cine. Before he received these vaccinations, Dr. Fred

Kyazze conducted a complete physical examination and

determined that Mr. Contreras was healthy.

Approximately twenty-four hours later, Mr. Contreras

complained to his mother that he was experiencing back

pain and numbness in his hands. She immediately took

Mr. Contreras to the emergency room, where Dr. Mark

Wagner, a board-certified emergency room physician,

diagnosed him with atypical Guillain-Barre Syndrome

(GBS), a peripheral nervous system disease that causes

descending paralysis from the upper to lower extremities.

J.A. 281; 586. Mr. Contreras’s symptoms rapidly escalat-

ed—within hours he had difficulty standing or walking,

weakness in his arms, and required catheterization.

Mr. Contreras was ultimately transferred to the pediatric

intensive care unit at Miller Children’s Hospital.

Upon admittance at Miller Children’s, Mr. Contreras

was described as presenting “progressive neuromuscular

deterioration and life-threatening respiratory failure.”

J.A. 288. Over the next three months, Mr. Contreras

suffered from a variety of symptoms caused by his illness,

CONTRERAS v. HHS 3

including quadriplegia and acute respiratory failure.

J.A. 289. Mr. Contreras was discharged from Miller

Children’s on September 11, 2003, with a discharge

diagnosis of Transverse Myelitis (TM), an inflammatory

disease of the spinal cord. 1 J.A 289; J.A. 608.

On June 15, 2005, Mr. Contreras’s father filed a peti-

tion for vaccine compensation under the Vaccine Act,

alleging that Mr. Contreras suffered TM and GBS as the

result of the vaccinations administered on June 16, 2003.

Mr. Contreras’s petition included affidavits from:

(1) Dr. Kyazze; (2) Dr. Wagner; and (3) Dr. Jeremy S.

Garrett, a general pediatrician and critical care physician,

who treated Mr. Contreras during his admission to Miller

Children’s and ultimately diagnosed him with TM.

Mr. Contreras also filed the expert report of pediatric

neurologist Dr. Charles M. Poser, M.D., who concluded

that he developed GBS and TM as a direct result of the

administration of the vaccines.

On October 7, 2005, the Secretary of Health and Hu-

man Services filed her Vaccine Rule 4 Report indicating

that Mr. Contreras was not entitled to compensation

because he had failed to establish, by a preponderance of

the evidence, that either vaccine caused his condition.

The Secretary also filed the expert report of pediatric

neurologist John T. Sladky, M.D., who opined that

Mr. Contreras only suffered from TM, not both TM and

GBS, and that the time interval—less than twenty-four

hours between the administration of Mr. Contreras’s

1 Although TM and GBS are both “diseases in

which portions of the nervous system are demyelinated,”

J.A. 41, TM affects the central nervous system, which is

protected by the blood-brain barrier, see J.A. 459, and

GBS affects the peripheral nervous system, which is not

protected by the blood-brain barrier, see id.

4 CONTRERAS v. HHS

vaccines and the onset of his TM—was too soon for one or

both of the vaccinations to have caused his condition.

To address whether Mr. Contreras’s illness had oc-

curred within a medically-appropriate time-frame,

Mr. Contreras submitted the medical expert report of

pediatric neurologist Lawrence Steinman, M.D., who

concluded that Mr. Contreras developed both GBS and

TM caused by a rapid adverse immunological response to

both vaccinations. In response to Dr. Steinman’s report,

the Secretary filed an expert report from immunologist J.

Lindsay Whitton, M.D., Ph.D., who agreed that

Mr. Contreras suffered from both GBS and TM, but

disputed Dr. Steinman’s theory of causation and the

timing of Mr. Contreras’s condition in relation to his

vaccinations, reiterating that twenty-four hours was not

enough time for either TM or GBS to develop after vac-

cination.

On April 5, 2012, the Special Master issued his first

decision (Contreras I) denying Mr. Contreras compensa-

tion under the Vaccine Act. See J.A. 30–64. The Special

Master determined that Mr. Contreras only suffered from

TM, not both TM and GBS. The Special Master then

concluded that Mr. Contreras failed to establish that the

TM arose within a “medically appropriate” timeframe

following his vaccinations under the third prong of Althen

v. Secretary of Health & Human Services, 418 F.3d 1274

(Fed. Cir. 2005). J.A. 62–63.

Mr. Contreras sought review and on September 28,

2012, the Court of Federal Claims vacated and remanded

Contreras I after concluding that the Special Master’s

finding of a specific diagnosis was not in accordance with

law (Contreras II). The Special Master was instructed, on

remand, to refrain from making a determination regard-

ing Mr. Contreras’s specific diagnosis. The Special Mas-

ter was also instructed to analyze the evidence under all

three prongs of Althen, address the weight afforded to

CONTRERAS v. HHS 5

Mr. Contreras’s treating physicians, address whether

Mr. Contreras had ruled out all alternative causes for his

condition, consider case reports, and more thoroughly

discuss the evidence proffered in Dr. Poser’s report.

J.A. 110–13.

During the pendency of the decision on remand, the

Secretary filed a status report disclosing that Dr. Sladky’s

medical license was suspended during the time that he

had provided the Government with expert witness ser-

vices in this case. J.A. 118. Moreover, Dr. Sladky’s CV

indicated that he was licensed to practice medicine in

Pennsylvania, but that license expired in 1996, nine years

before his initial report was filed in this case. Id. The

Secretary maintained that these “undisclosed licensure

issues should not affect the evidentiary weight of his

opinions.” J.A. 119. Mr. Contreras disagreed and argued

that Dr. Sladky’s testimony should “carry little, if any

weight,” J.A. 118, because his “lack of transparency and

untruthfulness . . . bear on his bias and character critical-

ly undermining his credibility as an expert,” J.A. 119

(omission in original).

On November 19, 2013, the Special Master again de-

nied Mr. Contreras compensation (Contreras III).

J.A. 114–90. First, the decision found that Dr. Sladky’s

opinion “retain[ed] some value” after determining that

“the lack of disclosure and (implicit) misrepresentation

about qualification do[] not entirely negate [his] opinion.”

J.A. 120. Next, the Special Master determined that

Mr. Contreras did not suffer from GBS—a direct violation

of the court’s instruction to refrain from diagnosing

Mr. Contreras—and therefore based his analysis solely on

the TM diagnosis. J.A. 143–45. Finally, he determined

that “the one-day interval is not a time-frame for which it

is medically acceptable” to conclude that the vaccine

caused the injury. J.A. 189.

6 CONTRERAS v. HHS

Mr. Contreras again sought review and on May 19,

2014, the Court of Federal Claims vacated and remanded

Contreras III (Contreras IV). J.A. 191–214. The Court of

Federal Claims was highly critical of the Special Master’s

finding that Dr. Sladky’s opinion retained “some value” in

light of his failure to disclose his suspended medical

license and his lack of candor during his testimony re-

garding his credentials and job description. J.A. 212. On

remand, the Special Master was instructed to: (1) address

Dr. Sladky’s credibility and reliability in light of his

misrepresentations; (2) compare Dr. Sladky’s credibility to

the credibility of the experts and witnesses testifying for

Mr. Contreras; and (3) issue an alternative ruling that

completely disregards all of Dr. Sladky’s opinions and

testimony. J.A. 212–13.

On October 24, 2014, the Special Master issued a sec-

ond Decision on Remand denying Mr. Contreras compen-

sation (Contreras V). J.A. 215–74. The Special Master

again determined that although Dr. Sladky had misrepre-

sented his credentials, J.A. 242, his opinions were based

upon “reliable methodologies” and, therefore, retained

some value, J.A. 244–45. The Special Master also issued

an alternative opinion that disregarded the opinions and

testimony of Dr. Sladky, and concluded that

Mr. Contreras’s expert, Dr. Steinman, had failed to estab-

lish by a preponderance of the evidence a proximate

temporal relationship between the vaccination and the

injury as required under prong three of Althen. J.A. 265–

66; 273–74.

Mr. Contreras sought review for a third time, which

the Court of Federal Claims denied on April 17, 2015

(Contreras VI). The court determined that the Special

Master abused his discretion by crediting Dr. Sladky’s

opinion and therefore vacated the entitlement ruling in

Contreras III, which was incorporated into Contreras V.

J.A. 7–18. The court also found that the Special Master

erred by conducting a “threshold inquiry into the specific

CONTRERAS v. HHS 7

diagnosis of [Mr. Contreras’s] alleged vaccine injury,” and

by imposing “a higher burden on petitioner [on Althen

prong one] than is appropriate under Federal Circuit

precedent,” but that both errors were harmless. See

J.A. 22–23; 26. Finally, the court determined that the

Special Master’s alternate ruling on Althen prong three—

that twenty-four hours was too short of time to develop

TM or GBS after a vaccine—contained no error of law or

abuse of discretion. J.A. 27. Therefore, the court denied

the petition for review.

Mr. Contreras appeals. We have jurisdiction under 42

U.S.C. § 300aa-12(f).

II

The Federal Circuit reviews an appeal from the Court

of Federal Claims in a Vaccine Act case de novo, “applying

the same standard of review as the Court of Federal

Claims applied to its review of the special master’s deci-

sion.” Griglock v. Sec’y of Health & Human Servs., 687

F.3d 1371, 1374 (Fed. Cir. 2012) (citation omitted); see

also Paluck v. Sec’y of Health & Human Servs., 786 F.3d

1373, 1378 (Fed. Cir. 2015). “We give no deference to the

Claims Court’s or Special Master’s determinations of law,

but uphold the Special Master’s findings of fact unless

they are arbitrary or capricious.” Griglock, 687 F.3d at

1374 (citation omitted). We review discretionary rul-

ings—i.e., exclusion of evidence or limitation of the record

upon which the special master relies—under the abuse of

discretion standard. Munn v. Sec’y of Health & Human

Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). Ultimate-

ly, “if the special master ‘has considered the relevant

evidence of record, drawn plausible inferences and articu-

lated a rational basis for the decision, reversible error will

be extremely difficult to demonstrate.’” Hibbard v. Sec’y

of Health & Human Servs., 698 F.3d 1355, 1363 (Fed. Cir.

2012) (quoting Hines ex. rel. Sevier v. Sec’y of the Dep’t of

8 CONTRERAS v. HHS

Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir.

1991)).

To establish that the vaccine caused the injury, a peti-

tioner must prove, by a preponderance of the evidence:

(1) a medical theory causally connecting the vaccination

to the injury; (2) a logical sequence of cause and effect

demonstrating that the vaccination caused the injury; and

(3) a proximate temporal relationship between the vaccine

and the injury. Althen, 418 F.3d at 1278.

Here, the Court of Federal Claims determined that

the Special Master erred by conducting a “threshold

inquiry into the specific diagnosis of Jessie’s alleged

vaccine injury,” but that the error was harmless. We

disagree.

In Hibbard, this court determined that if there is a

dispute as to the nature of a petitioner’s injury, the spe-

cial master may opine on the nature of the petitioner’s

injury. 698 F.3d at 1365. Here, however, there was no

dispute as to the nature of Mr. Contreras’s injury—both

parties’ experts agreed that he suffered from TM and

GBS. See J.A. 379; 426. Therefore, the Special Master

erred by concluding that Mr. Contreras only suffered from

TM and not both TM and GBS.

That error was harmful. Based on this improper di-

agnosis, the Special Master did not consider relevant

evidence related to GBS in his Althen analysis. See

J.A. 256 (“Mr. Contreras did not suffer from Guillain-

Barre syndrome.”); J.A. 145 (“[T]he following Althen

analysis is limited to the issue of whether the hepatitis B

vaccine can cause transverse myelitis.”); J.A. 63 (“The

testimony of . . . Dr. Whitton was consistent with medical

literature that shows that, at a minimum, the blood brain

barrier [which is only implicated in TM] would prevent an

immune-mediated reaction in the spinal cord in one

day.”); id. (“[Dr. Whitton’s] opinion is that ‘there is no

credible hypothesis that would explain a 24-hour

CONTRERAS v. HHS 9

timeframe, which would tie a vaccine causally to the

induction of such a profound central nervous system

disease [TM].’” (citation omitted)). Although the Special

Master noted that Dr. Whitton’s conclusion “would not

change depending upon the demyelinating disease,” J.A.

257, this does not mean that the Special Master consid-

ered evidence related to demyelinating disease GBS. In

fact, to the contrary, the record supports the conclusion

that the Special Master failed to consider the medical

theories advanced by Dr. Steinman and Dr. Whitton

relating to Mr. Contreras’s GBS diagnosis. See id.

Because TM and GBS are separate diagnoses that af-

fect different parts of the nervous system, we find that the

Special Master committed reversible error by failing to

consider relevant evidence related to GBS. Therefore,

this case must be remanded once again for a proper

consideration of the evidence.

III

Ordinarily, this case would be remanded to the origi-

nally assigned Special Master. See Richardson ex. rel.

Richardson v. Sec’y of Health & Human Servs., 89 Fed.

Cl. 657, 660 (2009). In this instance, however, we believe

that fundamental fairness is best served by assigning the

case to a different special master on remand. See id.;

Vaccine Rule 3(d).

This case has a lengthy history, including two sepa-

rate remands before the present appeal. The Special

Master has consistently maintained that Mr. Contreras

only suffers from TM—despite specific instructions that

he must consider both the TM and GBS diagnoses. See

J.A. 111 (“The special master may not diagnose Jessie’s

illness, but shall examine whether petitioner has estab-

lished a prima facie case that he suffered a vaccine-

related combination of TM and GBS.”). Given that the

Special Master has maintained an erroneous viewpoint

throughout this case, despite instructions to the contrary,

10 CONTRERAS v. HHS

we advise that this case be assigned to a different special

master on remand. See United States v. Robin, 553 F.2d

8, 10 (2d Cir. 1977) (“[Reassignment is advisable] [w]here

a judge has made detailed findings based on evidence

erroneously admitted or factors erroneously considered,

[because] the circumstances sometimes are such that

upon remand he or she . . . cannot reasonably be expected

to erase the earlier impressions from his or her

mind . . . .”); id. at 11 (“[W]here a judge has repeatedly

adhered to an erroneous view after the error is called to

his attention, reassignment to another judge may be

advisable in order to avoid an exercise in futility (in

which) the Court is merely marching up the hill only to

march right down again.” (internal quotation marks and

citations omitted)).

IV

Because the Special Master committed reversible er-

ror by failing to consider relevant evidence related to

Mr. Contreras’s Guillain-Barre Syndrome, we vacate and

remand for further proceedings consistent with this

opinion. On remand, the newly assigned special master

shall issue comprehensive findings and conclusions as to

all issues. In light of our disposition, we need not address

the appellant’s other asserted errors, which may well be

obviated by the findings and conclusions of the new

special master on remand.

VACATED AND REMANDED

Costs to Contreras.