Rickett v. Secretary of Health & Human Services

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

__________________________

ROBERT RICKETT,

Petitioner-Appellant,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent-Appellee.

__________________________

2011-5038

__________________________

Appeal from the United States Court of Federal

Claims in case no.01-VV-128, Judge George W. Miller.

___________________________

Decided: November 18, 2011

___________________________

CLIFFORD J. SHOEMAKER, Shoemaker & Associates, of

Vienna, Virginia, argued for petitioner-appellant.

HEATHER L. PEARLMAN, Trial Attorney, Torts Branch,

Civil Division, United States Department of Justice, of

Washington, DC, argued for respondent-appellee. With

her on the brief were TONY WEST, Assistant Attorney

General, MARK W. ROGERS, Acting Director, VINCENT J.

RICKETT v. HHS 2

MATANOSKI, Acting Deputy Director, and GABRIELLE M.

FIELDING, Assistant Director.

__________________________

Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges.

REYNA, Circuit Judge.

Robert Rickett appeals from a decision of the United

States Court of Federal Claims (“Court of Federal

Claims”), affirming the denial of his claim that the Hepa-

titis B vaccine caused his fibromyalgia (“FM”). We have

considered Mr. Rickett’s arguments and for the reasons

set forth below, we affirm the decision of the Court of

Federal Claims.

I

BACKGROUND

Mr. Rickett has a family history of FM and has suf-

fered various medical problems throughout his life. On

March 10, 1998, Mr. Rickett received the first of three

injections of the Hepatitis B vaccine. He alleges that

shortly thereafter, he developed persistent diarrhea. The

record is unclear as to when the diarrhea began and how

long it persisted. Mr. Rickett’s expert, Dr. Joseph Bel-

lanti, testified that the diarrhea may have been the result

of irritable bowel syndrome (“IBS”), which is associated

with FM. Mr. Rickett was never diagnosed with IBS. Nor

did he seek medical attention for the diarrhea. Indeed, he

does not appear to have reported it to a physician until

March 9, 1999, when he told a physician that he “devel-

oped diarrhea over the summer” of 1998. A339.

Mr. Rickett received his second injection of the Hepa-

titis B vaccine on April 8, 1998. He testified that within a

week of this vaccination, he could not lift his left arm 90

degrees and had arm and shoulder pain. However, a

3 RICKETT v. HHS

medical record dated April 24, 1998, indicates that Mr.

Rickett’s right arm and shoulder pain had begun two to

three weeks earlier, and his left side pain had begun on

April 23, 1998. The record further indicates that Mr.

Rickett had a “full range of motion” and no point tender-

ness in either shoulder. A206. On the basis of this medi-

cal record, the Special Master concluded that Mr.

Rickett’s right side pain began on or about April 3 to April

10, 1998, several days of which preceded his April 8

vaccination.

Mr. Rickett alleges that his pain continued until his

third and final injection of the Hepatitis B vaccine on

September 22, 1998, and that shortly thereafter he ex-

perienced, among other things, pain and headaches.

According to a medical record dated September 24, 1998,

Mr. Rickett sought medical attention for anxiety and

somatic complaints.

On October 28, 1998, Mr. Rickett saw Dr. Steven

Keifer, who performed a follow-up evaluation related to

back surgery that Mr. Rickett had undergone. During

that visit, Mr. Rickett reported developing cramping and

burning in his right thigh and calf “two months ago” and

burning neck pain with some extension into the in-

trascapular region and shoulders one month earlier.

A173. Dr. Kiefer suspected that Mr. Rickett had probable

degenerative cervical spine disease and degenerative

lumbar disc disease, status post lumbar discectomy. He

did not link Mr. Rickett’s Hepatitis B vaccination to his

condition.

On March 9, 1999, Mr. Rickett visited Dr. Paul Gold-

farb. A medical record from the visit indicates that Mr.

Rickett reported developing right arm pain in the spring

of 1998 and diarrhea that summer. Mr. Rickett com-

plained of widespread chronic pain, diarrhea, sleep prob-

RICKETT v. HHS 4

lems, and headaches. According to the medical record, he

explained that he had seen on television that the Hepati-

tis B vaccine had been linked to problems and that “[h]e

had just finished his course [with the vaccine] when he

developed aching all over.” A340. However, Mr. Rickett

later testified that he did not recall telling Dr. Goldfarb

about the television show. Although Dr. Goldfarb sus-

pected that Mr. Rickett had FM, he tried to reassure Mr.

Rickett that he did not believe the FM and vaccine were

related.

From March 1999 to the present, Mr. Rickett has seen

various physicians for numerous medical conditions.

Although no treating physician has stated that his Hepa-

titis B vaccine caused his FM and at least two have

doubted such a connection, since March 1999 Mr. Rickett

has consistently claimed that the vaccine caused his FM.

II

On March 8, 2001, Mr. Rickett filed a petition, alleg-

ing that his vaccination had caused his FM. 1 Special

Master John Edwards conducted a hearing on February

21, 2008, at which Mr. Rickett and the parties’ respective

experts testified. On August 1, 2008, the case was reas-

signed to Chief Special Master Gary Golkiewicz, who

conducted a hearing on December 12, 2008, at which only

Mr. Rickett testified.

On May 26, 2010, the Chief Special Master denied Mr.

Rickett’s claim because Mr. Rickett failed to demonstrate

the three prongs of causation-in-fact as articulated in

Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274,

1 Mr. Rickett filed amended petitions on July 2,

2004, and December 13, 2006.

5 RICKETT v. HHS

1278 (Fed. Cir. 2005). The Chief Special Master ex-

plained:

Neither petitioner’s vague and occasionally

ephemeral medical theories, nor his expert’s un-

substantiated conclusion of challenge-rechallenge

satisfy the Althen prongs. Specifically, peti-

tioner’s case is almost entirely lacking in evidence

regarding an appropriate temporal relationship

necessary to satisfy the third prong of Althen.

A91.

The Chief Special Master found that the factual re-

cord did not support Dr. Bellanti’s challenge-rechallenge

model in part because Dr. Bellanti’s expert opinion relied

upon Mr. Rickett’s testimony as to the timing of the onset

of his symptoms, testimony that was inconsistent with the

medical records. The Chief Special Master further ex-

plained, “Dr. Bellanti’s unsupported, often fluctuating

testimony undercuts the persuasiveness of his opinion.

His testimony was punctuated by broad, strong state-

ments, which he later qualifies or withdraws completely,

related to the vaccine causing petitioner’s FM.” A94.

First, Dr. Bellanti appears to have opined that the di-

arrhea following the first vaccination was the initial

challenge event, but later he stated that the diarrhea

being a challenge event was “more speculative than real.”

A1004. Dr. Bellanti then posited that the right side pain

following the second vaccination was the challenge event,

but when it was pointed out that a medical record indi-

cated that the right side pain could have begun prior to

the second vaccination, Dr. Bellanti offered no explana-

tion; instead, he asserted that the left side pain that had

begun on or about April 23, 1998 was the challenge event.

Dr. Bellanti’s supplemental expert report did not “further

address the possibility of the right-sided pain beginning

RICKETT v. HHS 6

before the vaccine was administered” or “discuss the

reliance on the left-sided pain that he pointed to in testi-

mony.” A99. The report simply states that if Mr. Rickett’s

right side pain preceded the second vaccination, then Dr.

Bellanti “cannot offer a causal opinion.” A905.

The Chief Special Master further observed:

During testimony, Dr. Bellanti also discussed a

truncated latent period . . . and “heightened re-

sponse to a vaccine on a second encounter” . . .

[the] truncated latent period was never discussed

regarding petitioner’s medical history and the

heightened response was only discussed as a con-

clusory statement by petitioner’s expert. The un-

dersigned does note that Dr. Bellanti never

defined limits to the time frame in which the reac-

tions would or should occur. . . .

***

Dr. Bellanti offered no justification or reasoning

for the time between petitioner’s second Hep B

vaccine and the left or right arm and shoulder

pains. He likewise failed to offer evidence justify-

ing the time between his proclaimed rechallenge

event and the third Hep B vaccine, which was the

history of pain reported on October 28, 1998 . . .

***

During his testimony, Dr. Bellanti stated the rea-

son for this belief that petitioner’s case was chal-

lenge-rechallenge was due to the temporal

association between the vaccine and petitioner’s

symptoms. . . . the temporal relationship is the

only basis given for his view regarding challenge-

rechallenge, which is insufficient to prove causa-

tion in a Vaccine Act case.

7 RICKETT v. HHS

A97-98, 101.

The Chief Special Master also relied upon the testi-

mony of the Government’s expert, Dr. Alan Brenner, who

stated that most FM symptoms do not abate once they

have begun. According to Dr. Brenner, Mr. Rickett’s

testimony that his symptoms waxed and waned undercut

Dr. Bellanti’s opinion regarding the existence of chal-

lenge-rechallenge.

On June 24, 2010, Mr. Rickett filed a petition for re-

view before the Court of Federal Claims, arguing that the

Chief Special Master erred by: (i) ignoring his prior deci-

sion in Lee v. Sec’y of Health & Human Servs., 2005 U.S.

Claims LEXIS 132 (Fed. Cl. Apr. 8, 2005); (ii) discounting

Mr. Rickett’s account of events; and (iii) rejecting the

applicability of the challenge-rechallenge effect.

On November 5, 2010, Judge George Miller of the

Court of Federal Claims denied Mr. Rickett’s motion for

review. Specifically, Judge Miller noted that because of

inconsistencies between the medical records and Mr.

Rickett’s affidavit and testimony, it was not error for the

Special Master to rely upon the medical records rather

than Mr. Rickett’s account of events. Judge Miller further

held that the Special Master did not err by reaching a

different outcome than in Lee because special masters are

not bound by their earlier decisions or those of other

special masters. Judge Miller further found that the

“differing factual records in the two cases and the proof in

the Lee case of a distinct medical theory of causation”

warranted the opposite outcomes. A40. Finally, Judge

Miller determined that the Special Master’s decision that

Mr. Rickett’s case did not “fit the challenge-rechallenge

model” was rational and supported by the record. A33.

RICKETT v. HHS 8

III

STANDARD OF REVIEW

This court reviews questions of law de novo and fac-

tual findings for clear error under an arbitrary and capri-

cious standard. See Broekelschen v. Sec’y of Health &

Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010), reh’g

denied, 2010 U.S. App. LEXIS 26926 (Fed. Cir. Dec. 8,

2010); Althen, 418 F.3d at 1278 (“[W]e review the trial

court’s factual findings for clear error.”). The arbitrary

and capricious test is a highly deferential standard of

review. See Sharpnack v. Sec’y of Health & Human

Servs., 27 Fed. Cl. 457, 1993 U.S. Claims LEXIS 348, *6

(1993) (internal citations omitted), aff’d, 17 F.3d 1442

(Fed. Cir. 1994). “If the special master has considered the

relevant evidence of record, drawn plausible inferences

and articulated a rational basis for the decision, reversi-

ble error will be extremely difficult to demonstrate.” Id.

at *6-7.

CAUSATION-IN-FACT

Under the National Childhood Vaccine Injury Act of

1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”), a peti-

tioner may establish causation in two ways. See Althen,

418 F.3d at 1278. Causation is presumed if a petitioner

demonstrates that the injury is listed in and meets the

requirements of the Vaccine Injury Table. See 42 U.S.C.

§ 300aa-14; Althen, 418 F.3d at 1278. Where the alleged

injury is not listed in the Vaccine Injury Table, a peti-

tioner must establish causation-in-fact. See 42 U.S.C.

§ 300aa-13(a)(1), -11(c)(1)(C)(ii)(I); Althen, 418 F.3d at

1278.

In Althen, the Federal Circuit articulated a peti-

tioner’s burden of proof as to causation-in-fact:

9 RICKETT v. HHS

Concisely stated, [a petitioner’s] burden is to show

by preponderant evidence that the vaccination

brought about her injury by providing: (1) a medi-

cal theory causally connecting the vaccination and

the injury; (2) a logical sequence of cause and ef-

fect showing that the vaccination was the reason

for the injury; and (3) a showing of a proximate

temporal relationship between vaccination and in-

jury. If [a petitioner] satisfies this burden, she is

‘entitled to recover unless the [government]

shows, also by a preponderance of evidence, that

the injury was in fact caused by factors unrelated

to the vaccine.’

Id. at 1278 (internal citation omitted).

“Although probative, neither a mere showing of a

proximate temporal relationship between vaccination and

injury, nor a simplistic elimination of other potential

causes of the injury suffices, without more, to meet the

burden of showing actual causation.” Id. Rather, the

Althen prongs “must cumulatively show that the vaccina-

tion was a ‘but-for cause’ of the harm, rather than just an

insubstantial contributor in, or one among several possi-

ble causes of, the harm.” Pafford v. Sec’y of Health &

Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006), reh’g

denied, 2006 U.S. App. LEXIS 28907 (Fed. Cir. Oct. 24,

2006), cert. denied, 551 U.S. 1102 (2007). In other words,

to prevail, a petitioner must show that it was more prob-

able than not that the vaccine caused the injury. Althen,

418 F.3d at 1279.

As such, a petitioner is not required to show that the

vaccine was the sole or predominant cause of the injury;

nor must a petitioner produce particular types of evidence

or prove causation as a matter of scientific or medical

certainty. See, e.g., Capizzano v. Sec’y of Health & Human

RICKETT v. HHS 10

Servs., 440 F.3d 1317, 1325 (Fed. Cir. 2006) (“requiring

either epidemiologic studies, rechallenge, the presence of

pathological markers or genetic disposition, or general

acceptance in the scientific or medical communities to

establish a logical sequence of cause and effect is contrary

to what we said in Althen III.”); Althen, 418 F.3d at 1279-

80 (explaining that a petitioner may demonstrate causa-

tion-in-fact with circumstantial evidence); Knudsen v.

Sec’y of Health & Human Servs., 35 F.3d 543, 548-49

(Fed. Cir. 1994) (“The determination of causation in fact

under the Vaccine Act involves ascertaining whether a

sequence of cause and effect is ‘logical’ and legally prob-

able, not medically or scientifically certain.”). Medical

literature is not required. Althen, 418 F.3d at 1280.

However, recorded statements of treating physicians are

particularly probative. Capizzano, 440 F.3d at 1326.

Close calls regarding causation are resolved in favor of

injured claimants. Althen, 418 F.3d at 1280.

ANALYSIS

On appeal, Mr. Rickett lodges four primary objections.

First, Mr. Rickett claims that it was error to rely upon

Mr. Rickett’s medical records, rather than his testimony.

Second, Mr. Rickett argues that it was error to discount

Dr. Bellanti’s expert testimony and reports regarding

challenge-rechallenge to the extent they were based on

Mr. Rickett’s testimony. Third, Mr. Rickett contends that

the Special Master arbitrarily and capriciously rejected a

medical theory that he had accepted in another vaccine

case arising from a similar factual predicate. Finally, Mr.

Rickett asserts that he demonstrated causation-in-fact.

As to the first issue, it was not error for the Special

Master to rely upon Mr. Rickett’s medical records rather

than his testimony where the two were inconsistent.

Although Althen does not require a petitioner to proffer

11 RICKETT v. HHS

both expert testimony and medical records to demonstrate

causation, where, as here, a petitioner offers both forms of

evidence and they are inconsistent, a special master may

give greater weight to the medical records. As this court

explained in Cucuras v. Sec’y of Health & Human Servs.:

Neither the trial court nor the special master

erred in their reliance on medical records to de-

termine the onset of injury. The Vaccine Act ex-

pressly bars the court or a special master from

finding a table injury “based on the claims of the

petitioner alone, unsubstantiated by medical re-

cords or by medical opinion.” 42 U.S.C. § 300aa-

13(a)(1). Moreover the Supreme Court counsels

that oral testimony in conflict with contempora-

neous documentary evidence deserves little

weight. United States v. United States Gypsum

Co., 333 U.S. 364, 396, 92 L. Ed. 746, 68 S. Ct. 525

(1947). . . . Medical records, in general, warrant

consideration as trustworthy evidence. The re-

cords contain information supplied to or by health

professionals to facilitate diagnosis and treatment

of medical conditions. With proper treatment

hanging in the balance, accuracy has an extra pre-

mium. These records are also generally contempo-

raneous to the medical events.

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

For similar reasons, it was not error for the Special

Master to assign less weight to Dr. Bellanti’s conclusion

regarding challenge-rechallenge to the extent it hinged

upon Mr. Rickett’s testimony that was inconsistent with

the medical records. Dr. Bellanti initially relied upon Mr.

Rickett’s assertion that his diarrhea began almost imme-

diately after his first vaccination to opine that the diar-

rhea may have been the challenge event but later stated

RICKETT v. HHS 12

that the diarrhea being a challenge event was “more

speculative than real.” A1004. Furthermore, a medical

record indicates that Mr. Rickett reported developing

diarrhea during the summer, not the spring, of 1998. Dr.

Bellanti also relied upon Mr. Rickett’s assertion that he

developed right arm and shoulder pain shortly after his

April 8, 1998 vaccination to suggest that Mr. Rickett’s

right side pain could have been a challenge event. Ac-

cording to a medical record dated April 24, 1998, however,

Mr. Rickett reported developing right side pain two to

three weeks earlier—several days of which predate his

second vaccination. When asked whether the right side

pain could be a challenge event if it began before the

second vaccination, Dr. Bellanti offered no explanation;

instead, he claimed that the left side pain that Mr.

Rickett reported developing on April 23, 1998, was the

challenge event. In his supplemental expert report, Dr.

Bellanti stated that if the right side pain began prior to

the second injection, he could not offer a causal opinion.

As to the third issue, the Special Master was not

bound by his decision in Lee. It is well-settled that

“[s]pecial masters are neither bound by their own deci-

sions nor by cases from the Court of Federal Claims,

except, of course, in the same case on remand.” Hanlon v.

Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630

(1998), aff'd, 191 F.3d 1344 (Fed. Cir. 1999).

Moreover, the Special Master did not err because Lee

is distinguishable. In Lee, the central issue was whether

the Hepatitis B vaccine could cause headaches that might

have triggered Lee’s FM. Lee proffered medical literature

and treating physician testimony in support of her claim.

Here, Mr. Rickett claimed that the Hepatitis B vaccine

caused his FM, and he offered no treating physician

testimony to demonstrate causation. The medical records

13 RICKETT v. HHS

indicate that at least two physicians doubted a causal

connection.

A special master evaluates the utility of evidence dif-

ferently in “light of all facts relevant in a specific claim.”

Sharpnack, 27 Fed. Cl. 457, 1993 U.S. Claims LEXIS at

*13-14. A special master’s acceptance of a theory in one

case does not require him or her to accept the theory in

subsequent cases involving similar facts or the same

vaccine. Rather, a different evidentiary record can lead to

different outcomes. Compare Andreu v. Sec’y of Health &

Human Servs., 569 F.3d 1367, 1370 (Fed. Cir. 2009) with

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

1315, 1325-26 (Fed. Cir. 2010). To decide otherwise would

effectively require special masters to ignore the impact of

ever-changing technological advances and medical break-

throughs that might discredit the plausibility of a for-

merly accepted theory.

As to the final issue, Mr. Rickett challenges the con-

clusion that he failed to meet his burden of proof as to

Althen Prong Three, which requires a showing that the

onset of the symptoms of the injury occurred within a

medically appropriate period of time after receipt of the

vaccine. To the extent this challenge implicates factual

findings, our review is limited. See Lampe v. Sec’y of

Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.

2000). We see no reason to disturb the Special Master’s

findings of fact that Dr. Bellanti’s expert reports and

testimony did not clearly elucidate the appropriate tem-

poral relationship that one would expect to see as part of

the challenge-rechallenge model.

For the foregoing reasons, we affirm.

AFFIRMED

RICKETT v. HHS 14

COSTS

No costs.