Paterek v. Secretary of Health & Human Services

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

JAMES L. PATEREK, in his own right and as best

friend of, J.P.,

Petitioner-Appellee,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent-Appellant.

______________________

2012-5078

______________________

Appeal from the United States Court of Federal

Claims in No. 02-VV-411, Judge Susan G. Braden.

______________________

Decided: June 19, 2013

______________________

JOHN F. MCHUGH, of New York, New York, argued for

petitioner-appellee.

JOSHUA PAUL WALDMAN, Attorney, Appellate Staff,

Civil Division, United States Department of Justice, of

Washington, DC, argued for respondent-appellant. With

him on the brief were STUART F. DELERY, Acting Assistant

Attorney General, and THOMAS M. BONDY, Attorney.

2 JAMES PATEREK v. HHS

______________________

Before DYK, SCHALL, and PROST, Circuit Judges.

SCHALL, Circuit Judge

DECISION

The Secretary of Health and Human Services (the

“government”) appeals the judgment of the United States

Court of Federal Claims that reversed and remanded the

Special Master’s denial of a claim for compensation filed

by Mr. James L. Paterek (the “Petitioner”) under the

Vaccine Act. See Doe 21 v. Sec’y of Health and Human

Servs., 88 Fed. Cl. 178 (2009) (the “Final Decision”).

Because the Special Master properly denied the Petition-

er’s claim, we reverse and remand with instructions to

affirm the Special Master’s determination that the Peti-

tioner is not entitled to compensation and to enter judg-

ment for the government.

DISCUSSION

I. CASES UNDER THE VACCINE ACT

Under the Vaccine Act, see 42 U.S.C. §§ 300aa-1 to

300aa-34, a petitioner seeking compensation may prove

causation in one of two ways, depending on whether the

case involves “Table injuries” or “off-Table injuries.” See

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

1315, 1321 (Fed. Cir. 2010). First, if the administered

vaccine and injury are listed in the Vaccine Injury Table,

and the injury manifests itself within the specified time

period, a petitioner receives a presumption of a causal

link between the vaccination and the injury. See de

Bazan v. Sec’y of Health and Human Servs., 539 F.3d

1347, 1351 (Fed. Cir. 2008); see also 42 U.S.C. § 300aa-

11(c)(1)(C)(i) (not requiring a showing of causation for a

Table injury); 42 U.S.C. § 300aa-14(a) (initial Vaccine

Injury Table); 42 C.F.R. § 100.3 (current Vaccine Injury

Table). Second, for injuries not listed in the Table, or

JAMES PATEREK v. HHS 3

which do not occur within the specified time period, a

petitioner seeking compensation must prove causation-in-

fact. See de Bazan, 539 F.3d at 1351; see also 42 U.S.C.

§ 300aa-11(c)(1)(C)(ii) (requiring a showing of causation

for an off-Table injury). This appeal involves only an

alleged off-Table injury. To prove that a vaccination

caused an off-Table injury, a petitioner must demonstrate,

by a preponderance of the evidence, the following three

prongs:

(1) a medical theory causally connecting the vac-

cination and the injury; (2) a logical sequence of

cause and effect showing that the vaccination was

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

proximate temporal relationship between vaccina-

tion and injury.

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

1274, 1278 (Fed. Cir. 2005). If a petitioner establishes a

prima facie case, the burden shifts to the government to

establish an alternative causation by a preponderance of

the evidence. See Walther v. Sec’y of Health and Human

Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007); see also 42

U.S.C. § 300aa-13(a)(1)(B) (noting that compensation will

not be awarded if the injury “is due to factors unrelated to

the administration of the vaccine”). If the government

fails to do so, the petitioner is entitled to compensation.

II. FACTS AND PRIOR DECISIONS

The Petitioner seeks compensation for a diphtheria-

tetanus-acellular pertussis (“DTaP”) vaccination that

allegedly caused developmental delays in his son, J.P. On

July 20, 1999, J.P. received the vaccination at his two-

month well-baby examination. See Doe 21 v. Sec’y of

Health and Human Serves., No. 02-0411V, 2009 WL

3288295, at *1 (Fed. Cl. Jan. 16, 2009) (“Special Master

4 JAMES PATEREK v. HHS

Decision”). 1 At that examination, the treating pediatri-

cian described J.P as “healthy” and noted, regarding gross

motor development, that J.P. could “roll[] to side.” Later

that evening, J.P. was admitted to the emergency room

after having what the government has conceded was an

adverse reaction—more specifically, a hypotonic-

hyporesponsive episode (“HHE”)—to the DTaP vaccine.

See id. at *2. During this episode, J.P had crossed eyes

and a fever, but was described as alert and in no acute

distress. See id. He was discharged approximately 75

minutes later in satisfactory condition. See id.

At J.P.’s four-month well-baby examination on Sep-

tember 14, 1999, the treating pediatrician described him

as “well,” and noted that he could sit, hold up his head,

and babble. See id. The doctor discussed the risks and

benefits of vaccinations with J.P.’s mother and, based on

the previous HHE, gave J.P. only the diphtheria and

tetanus vaccines rather than the DTaP vaccine, which

also includes a component to prevent pertussis (commonly

known as whooping cough). See id. at *3.

At a visit on October 4, 1999, J.P.’s primary treating

pediatrician, Dr. Turow, noted the possibility of a “stra-

bismus” or “pseudostrabismus” 2 based on reports from

1 Under the Vaccine Act, a special master reviews

each petition and issues a decision assessing whether

compensation should be awarded. See 42 U.S.C. § 300aa-

12(c), (d).

2 Strabismus is commonly referred to as “lazy eye,”

in which a person’s eyes are not properly aligned, usually

because of a problem with the muscles around the eye.

See Special Master Decision, 2009 WL 3288295, at *14.

Pseudostrabismus is a similar lack of alignment brought

about by causes other than a problem with the ocular

muscles. See Final Decision, 88 Fed. Cl. at 184 n.17.

JAMES PATEREK v. HHS 5

J.P.’s parents. As a result, he recommended an ophthal-

mological consultation. See id. Dr. Rubin, a pediatric

ophthalmologist, examined J.P. on November 10, 1999,

finding J.P. to be a “healthy 6 month old baby” with no

evidence of strabismus. See id. Dr. Rubin believed that

any symptoms “would probably resolve spontaneously

over the next several months.” See id.

At his sixth-month examination on November 8, 1999,

J.P. was described as a “well infant,” who had good head

control and could grab objects well. See id. The doctor

did note, however, that J.P. could not roll over and could

not sit up without support. See id. J.P. was referred to

another doctor for a left eye “deviation medially.” 3 See id.

Like at the four-month examination, J.P. received the

diphtheria and tetanus vaccines but not the pertussis

component. See id.

On January 31, 2000, at his nine-month well-baby ex-

amination, J.P. was again described as “well,” with the

doctor noting that he could sit indefinitely without sup-

port, use a “pincer” grasp to pick up objects, speak basic

syllables, wave, and play “peek-a-boo.” See id. J.P. could

not, however, pull himself up to stand or walk with the

help of nearby support (known as “cruising”). See id.

On March 8, 2000, Dr. Turow noted a potential con-

cern about J.P.’s “developmental progression.” See id. at

*4. J.P. was diagnosed with “fine & gross motor develop-

mental delay” on March 27, 2000. See id. The examining

specialist recommended physical therapy and monitoring.

See id.

3 A “deviation medially” is a strabismus in which an

eye is pointed towards a person’s nose. See Special Mas-

ter Decision, 2009 WL 3288295, at *15.

6 JAMES PATEREK v. HHS

Two days later, an ophthalmologist observed and rec-

orded a “vertical nystagmus.” 4 See id. The next day, after

J.P.’s mother told Dr. Turow that the vertical nystagmus

appeared to be worsening, Dr. Turow referred J.P. to a

pediatric neurologist. See id. During his examination of

J.P., the neurologist attempted to elicit, but did not ob-

serve, any nystagmus. See id. On April 5, 2000, Dr.

Rubin examined J.P. but also did not observe any nys-

tagmus. See id.

The Petitioner filed a claim under the Vaccine Act on

April 30, 2002, asserting that the DTaP vaccination

administered on July 20, 1999, caused J.P.’s developmen-

tal delays diagnosed in March of 2000. See id. at *5.

a. THE SPECIAL MASTER DECISION

After a prior decision and remand not before us in this

appeal, 5 the Special Master concluded that the Petitioner

had failed to establish the second and third prongs re-

quired under Althen, and was thus not entitled to com-

pensation. See id. at *22–30. The Special Master found

that J.P was developing normally from July of 1999 to

March of 2000, at which point, the government concedes,

he was suffering from a brain disorder known as an

encephalopathy, and was developmentally delayed. See

id. at *5, *8. The Special Master rejected the opinion,

held by experts for the Petitioner, that J.P. was signifi-

4 A “vertical nystagmus” is a repetitive up-and-

down fluttering of the eyes, usually associated with an

underlying neurological problem. See Special Master

Decision, 2009 WL 3288295, at *15.

5 These two decisions relate to, but are not directly

at issue in, this appeal. They are: Doe 21 v. Sec’y of

Health and Human Servs., 02-0411V, 2008 WL 4679501

(Fed. Cl. Oct. 14, 2008), and Doe 21 v. Sec’y of Health and

Human Servs., 84 Fed. Cl. 19 (2008).

JAMES PATEREK v. HHS 7

cantly developmentally advanced at two months. See id.

at *9. While those experts assumed J.P. was rolling over

(i.e., from front to back or vice versa), the Special Master

pointed out that the pertinent notation actually reads

that J.P. “rolls to side,” an activity perhaps only slightly

advanced at two months. See id. at *9–10. The Special

Master also rejected the related view that J.P. was poten-

tially experiencing developmental delays at four months

because he was not “still” advanced at that time. See id.

at *10–12.

As to J.P.’s condition at his six-month well-baby ex-

amination, the Special Master found that a preponder-

ance of the evidence established that J.P. was developing

normally, and that the failure to roll over or sit up with-

out support merely demonstrated uneven development

rather than delay. See id. at *12–13. The Special Master

noted that Dr. Turow “could not express an opinion as to

whether [J.P.] was developmentally delayed at six

months” while Dr. Wiznitzer, the expert for the govern-

ment, testified that he would have merely “monitored” a

child in J.P.’s situation. See id. at *13. Moreover, the

Special Master was not persuaded by the Petitioner’s

experts, Drs. Shane and Megson, who opined that J.P.

was delayed at six months. See id. According to the

Special Master, their opinions were based on the assump-

tion that a six-month-old should sit without support even

though “a preponderance of the evidence indicates that

most babies achieve this milestone at seven-months.” See

id. Regarding the condition of J.P.’s eyes, the Special

Master clarified the difference between strabismus and

nystagmus, and stated that while “no credible evidence

supports a finding that [J.P.] was suffering from a nys-

tagmus in October and November 1999,” “a preponder-

ance of the evidence supports a finding that [J.P.] suffered

from intermittent strabismus.” See id. at *16, *18. Thus,

the Special Master found that any eye conditions were

8 JAMES PATEREK v. HHS

muscular, rather than neurological, in origin. See id. at

*18.

The Special Master also found that while “a prepon-

derance of the evidence indicates that [J.P.] was still

developing normally” at the time of his nine-month well-

baby examination, “some evidence indicates that [J.P.]

had not reached one milestone,” namely, J.P. could not

cruise or pull himself to standing. See id. at *18. Accord-

ing to the Special Master, the experts supported the

conclusion that J.P. was developing normally at this

stage: Dr. Wiznitzer agreed that J.P. was developing

normally but he would monitor him; Dr. Megson did not

opine on delay, but instead noted the need for additional

information about muscle tone prior to making an as-

sessment; for his part, Dr. Shane did not give an opinion

about J.P.’s development, believing the prior examination

of J.P. was “limited.” See id. For various reasons, the

Special Master found Drs. Shane and Megson unpersua-

sive and not credible as to certain critical points. See id.

at *19–21.

Based on these findings, the Special Master concluded

that the Petitioner had not satisfied the second prong

under Althen because there “is little persuasive evidence

to show that the July 20, 1999 DTaP vaccine caused

[J.P.’s] failure to develop normally.” See id. at *23.

Specifically, the Special Master reasoned that, despite

slightly missing two developmental milestones, J.P.’s

otherwise normal development through the six-month

well-baby examination “is not consistent with a child who

had developed an encephalopathy on July 20, 1999.” See

id. To demonstrate the lack of causation, the Special

Master highlighted the testimony of Dr. Turow, who

stated that “it was not impossible” that the DTaP vaccine

caused the developmental delays, but would go no further.

See id. at *25. According to the Special Master, neither

this testimony nor the other evidence set forth by the

Petitioner satisfied the second prong. See id. at *25–26.

JAMES PATEREK v. HHS 9

The Special Master also concluded that the Petitioner

had failed to establish prong three of Althen—a proximate

temporal relationship between the vaccination and the

injury. See id. at *26. First, the Special Master found

that the Petitioner had failed to present any evidence

about the time frame that medical science would expect

an injury caused by a vaccine to be manifest. See id. at

*26–27; see also de Bazan, 539 F.3d at 1352 (“Thus, the

proximate temporal relationship prong requires prepon-

derant proof that the onset of symptoms occurred within a

timeframe for which, given the medical understanding of

the disorder’s etiology, it is medically acceptable to infer

causation-in-fact.”). Second, the Special Master found

that the Petitioner had failed to establish that J.P.’s

symptoms fell within the unidentified medically appropri-

ate time period because, for the reasons noted above, J.P.

was developing normally through March of 2000. See

Special Master Decision, 2009 WL 3288295, at *27–30.

The Special Master made no finding as to Althen prong

one. See id. at *22.

b. THE FINAL DECISION

On review of the Special Master Decision, the Court of

Federal Claims determined that the Petitioner had estab-

lished all three prongs under Althen, and thus remanded

for an award of compensation. See Final Decision, 88 Fed.

Cl. at 198–202. As to the first prong, the court held that

the Petitioner had established a “medical theory causally

connecting the vaccination and theory” because the Vac-

cine Injury Table indicates that DTaP vaccines can cause

encephalopathy—a causal connection “well recognized by

the Office of Special Masters.” See id. at 199.

Regarding the second prong, the Court of Federal

Claims found sufficient evidence of a logical sequence of

cause and effect for three reasons. First, the court found

support in Dr. Turow’s testimony because causation can

be found “even where the treating physician cannot

10 JAMES PATEREK v. HHS

unequivocally state that the vaccination caused the

injury.” See id. at 200 (citing Andreu v. Sec’y of Health

and Human Servs., 569 F.3d 1367, 1375–76 (Fed. Cir.

2009)). The court found that “[a]lthough Dr. Turow did

not testify that the July 20, 1999 vaccine definitely caused

Petitioner’s condition, he ‘believed’ that was the case

here.” See Final Decision, 88 Fed. Cl. at 200. Second, the

court noted that “there was no other evidence that ex-

plained [J.P.’s] injury.” See id. Third, the court was

persuaded by the fact that, after administering the per-

tussis component in the first vaccination, J.P.’s treating

physicians did not administer that component in later

vaccinations, instead only administering the diphtheria

and tetanus components. See id. at 201.

The court found the proximate temporal relationship

required under the third prong of Althen satisfied because

the government conceded that J.P. had suffered an HHE

after receiving the DTaP vaccine. See id. at 199. The

court also found that J.P.’s medical records showed signs

of developmental delay as early as November 1999. See

id. at 202. First, the court determined that, based upon

its review of the medical records, “by October 4, 1999,

nystagmus may have been present, but escaped Dr.

Rubin’s attention or simply was misdiagnosed.” See id.

Second, the court found that J.P.’s failure to roll over or

sit up without support was not a sign of uneven develop-

ment, as the Special Master had found, but rather a

“digression” that represented “a missed developmental

milestone.” See id. Having found causation, the court

reversed and remanded to the Special Master for an

award of compensation. See id. at 202. The Special

Master awarded $2,431,153.51 for life care expenses for

the first two years after judgment, $75,000 in compensa-

tion for past unreimbursable expenses, and an amount

sufficient to purchase an annuity contract.

JAMES PATEREK v. HHS 11

The government timely appealed the judgment of the

Court of Federal Claims awarding compensation. This

court has jurisdiction pursuant to 42 U.S.C. § 300aa-12(f).

III. STANDARD OF REVIEW

In Vaccine Act cases, we review de novo a decision by

the Court of Federal Claims, applying the same standard

of review as that court applies in reviewing a decision of a

special master. See Porter v. Sec’y of Health and Human

Servs., 663 F.3d 1242, 1248–49 (Fed. Cir. 2011); Ha-

zelhurst v. Sec’y of Health and Human Servs., 604 F.3d

1343, 1348–49 (Fed. Cir. 2010). Under that standard, we

uphold factual findings that are not arbitrary and capri-

cious and review legal conclusions to assess whether they

accord with the law. 6 See Moberly, 592 F.3d at 1321; see

also Munn v. Sec’y of Health and Human Servs., 970 F.2d

863, 870 n.10 (Fed. Cir. 1992) (clarifying the standard set

forth in 42 U.S.C. § 300aa-12(e)(2)(B)).

The arbitrary and capricious standard provides a fact

finder the most deference possible. See Munn, 970 F.2d at

870. Under that standard, “[i]f the special master has

considered the relevant evidence of record, drawn plausi-

ble inferences, and articulated a rational basis for the

decision, ‘reversible error will be extremely difficult to

demonstrate.’” See Hazelhurst, 604 F.3d 1343 at 1349

(quoting Hines v. Sec’y of Health and Human Servs., 940

F.2d 1518, 1528 (Fed. Cir. 1991)). In other words, as long

as a special master’s factual finding is based on record

6 The Petitioner relies on Hines v. Secretary of

Health and Human Services, 940 F.2d 1518, 1523 (Fed.

Cir. 1991), for the proposition that this court reviews

factual findings for “clear error.” See Appellee Br. 30.

The cited discussion from Hines makes clear, however,

that, after statutory amendments made in 1989, that less

deferential standard no longer applies to factual findings

by a special master.

12 JAMES PATEREK v. HHS

evidence that is “not wholly implausible, we are compelled

to uphold that finding as not being arbitrary or capri-

cious.” See Lampe v. Sec’y of Health and Human Servs.,

219 F.3d 1357, 1363 (Fed. Cir. 2000). A court reviewing a

special master’s decision should not “reweigh the factual

evidence, assess whether the special master correctly

evaluated the evidence, or examine the probative value of

the evidence or the credibility of the witnesses—these are

all matters within the purview of the fact finder.” See

Porter, 663 F.3d at 1249.

IV. ANALYSIS

On appeal, the government argues that the Court of

Federal Claims legally erred by substituting its own

factual findings for those already made by the Special

Master. According to the government, the court should

have deferred to the Special Master’s findings, which were

never explicitly found to be arbitrary or capricious. The

Petitioner responds that the first symptoms of delay

should be deemed the onset of a vaccine-related injury,

even if the first symptoms predate the diagnosis of the

injury. Here, according to the Petitioner, the eye move-

ments reported by J.P.’s parents in October of 1999, as

well as the potential indications of motor skill delays in

November of 1999, represent early evidence supporting a

finding that J.P. was, in fact, suffering from an encepha-

lopathy soon after the first vaccination.

Based on the record, we agree with the government

and conclude that the Court of Federal Claims erred in

rejecting the Special Master’s determination that the

Petitioner failed to demonstrate entitlement to compensa-

tion. To resolve this appeal, we only need address the

second prong under Althen—a logical sequence of cause

and effect showing that the vaccination was the reason for

J.P.’s developmental delays. We will first explain why the

findings in the Special Master Decision regarding prong

two were not arbitrary or capricious and why his legal

JAMES PATEREK v. HHS 13

conclusions accorded with the law. Then we will turn to

the analysis of the Court of Federal Claims in the Final

Decision.

a. THE SPECIAL MASTER DECISION

As noted, the Special Master’s determined that the

Petitioner failed to establish the second prong under

Althen—a logical sequence of cause and effect. See Spe-

cial Master Decision, 2009 WL 3288295, at *22–26. The

government has conceded two of the three necessary links

in the causal chain: (1) that the DTaP vaccine caused the

HHE on July 20, 1999, see id. at *2; and (2) that whatever

caused the encephalopathy (which the government admits

was present by March of 2000) also caused the develop-

mental delays, i.e., the relevant injury to J.P., see id. at

*5. The issue here is whether the vaccination (or HHE)

caused the encephalopathy and developmental delays.

For the following reasons, we conclude that the Special

Master’s determination that the Petitioner failed to show

this linkage by a preponderance of the evidence was not

arbitrary or capricious, or tainted by legal error.

In his decision, the Special Master conducted a

thorough review of the relevant evidence, including the

testimony of the expert witnesses, and concluded that the

medical records did not support a finding that J.P. devel-

oped an encephalopathy at the time of the HHE. See id.

at *23. In reaching that conclusion, the Special Master

provided a reasoned explanation for crediting the gov-

ernment’s expert, Dr. Wiznitzer, who testified that the

failure to roll over and sit up without support at the six-

month examination were not signs of an encephalopathy

beginning in July of 1999. See id. at *12–13. The Special

Master found additional support for his conclusion in a

note from a pediatric neurologist, Dr. Eviatar, who wrote

that “[i]t is my medical opinion that [J.P.’s] developmental

delay and immature eye movements are the result of

congenital hydrocephalus and Arnold Chiara malfor-

14 JAMES PATEREK v. HHS

mation . . . and are not related to [diphtheria-pertussis-

tetanus] encephalopathy.” See id. at *24. Further, the

Special Master highlighted the testimony of Dr. Turow,

who “was quite clear that he could not say that the DTaP

[vaccine] caused the developmental delay.” See id. at *25

(citing testimony at J.A. 388–90). Under the highly

deferential standard applicable here, the Special Master’s

reasoned conclusions regarding prong two of Althen were

not arbitrary or capricious, and should be upheld. See

Hazelhurst, 604 F.3d at 1349; Lampe, 219 F.3d at 1363.

b. THE FINAL DECISION

We turn now to the analysis in the Final Decision

regarding the second prong of Althen. See Final Decision,

88 Fed. Cl. at 199–201. In that regard, we conclude that

the Court of Federal Claims generally failed to apply the

highly deferential standard applicable to its review of the

Special Master Decision; rather than assessing whether

the Special Master’s findings were arbitrary and capri-

cious, the court instead reevaluated the evidence and

came to its own findings. This constitutes legal error. See

Munn, 970 F.2d at 870 (“The Claims Court owes these

findings and conclusions by the special master great

deference—no change may be made absent first a deter-

mination that the special master was arbitrary and

capricious.”); see also Porter, 663 F.3d at 1249 (cautioning

a reviewing courts not to “reweigh the factual evidence,

assess whether the special master correctly evaluated the

evidence, or examine the probative value of the evidence

or the credibility of the witnesses”); Hazelhurst, 604 F.3d

at 1349 (noting that a reviewing court may not “second-

guess the special master’s fact-intensive conclusions,

particularly where the medical evidence of causation is in

dispute”).

One example of the court’s reweighing of the evidence

here is its reliance on the testimony of Dr. Turow as one

of the three bases supporting a finding of a logical se-

JAMES PATEREK v. HHS 15

quence of cause and effect between the vaccination and

the injury. When discussing the potential causation

between the vaccination and the developmental delays in

J.P., Dr. Turow stated that it was “not impossible,” but

that he did not “have concrete evidence to connect the

two.” See Final Decision, 88 Fed. Cl. at 200 (excerpting

the relevant testimony). The Special Master relied on

this same testimony to support a finding that the Peti-

tioner did not establish causation. See Special Master

Decision, 2009 WL 3288295, at *25 (“Like Dr. Turow’s

written statements, his testimony falls short of the stand-

ard of evidence that supports a finding of ‘a logical se-

quence of cause and effect.’”). The Court of Federal

Claims, however, reinterpreted Dr. Turow’s testimony to

support causation, finding that he, in fact, “believed” that

the vaccination caused J.P.’s condition. 7 See Final Deci-

sion, 88 Fed. Cl. at 200. In so doing, the court erred first

by failing to explain why the Special Master’s contrary

finding was arbitrary or capricious, see Munn, 970 F.2d at

870, and second by improperly reweighing the Turow

testimony, see Porter, 663 F.3d at 1249.

In its analysis, the court also erred, we think, in its

application of this court’s decisions in Andreu v. Secretary

of Health and Human Services, 569 F.3d 1367 (Fed. Cir.

2009), and Capizzano v. Secretary of Health and Human

Services, 440 F.3d 1317 (Fed. Cir. 2006), to support its

finding regarding the second prong. See Final Decision,

88 Fed. Cl. at 199–201. The court relied on Andreu for

the proposition that “the testimony of a treating physician

7 At oral argument, counsel for the Petitioner con-

ceded that this finding by the Court of Federal Claims

was “a clear mistake.” See Oral Argument at 13:10–

13:50, Paterek v. Sec’y of Health and Human Servs., No.

2012-5078 (Fed. Cir. Apr. 5, 2013), available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

12-5078.mp3.

16 JAMES PATEREK v. HHS

can establish a logical sequence of cause and effect, even

where the treating physician cannot unequivocally state

that the vaccination caused the injury.” See id. at 200

(citing Andreu, 569 F.3d at 1376). This overstates the

weight of equivocal testimony, such as Dr. Turow’s. In

Andreu, one physician had already testified unequivocally

as to causation, leaving the equivocal testimony from

another physician to merely provide some additional

support. See Andreu, 569 F.3d at 1375–76. Thus, Andreu

does not stand for the proposition that equivocal testimo-

ny alone can establish causation. More importantly, as

reasonably concluded by the Special Master, see Special

Master Decision, 2009 WL 3288295, at *25, Dr. Turow’s

testimony that causation was “not impossible” fails to

provide support for causation at all. As this court has

previously held, the statutory standard requires more

than just “proof of a ‘plausible’ or ‘possible’ causal link

between the vaccine and the injury.” See Moberly, 592

F.3d at 1322.

We also find error in the court’s application of Andreu

and Capizzano to the two other bases relied on by the

court to support the finding that the Petitioner estab-

lished the second prong: that “there was no other evidence

that explained [J.P.’s] injury” and that J.P.’s treating

physicians withheld future administration of the pertus-

sis vaccine. See Final Decision, 88 Fed. Cl. at 200–01

(citing Andreu, 569 F.3d at 1375–77 and Capizzano, 440

F.3d at 1326). In both Andreu and Capizzano, unlike

here, the treating physician affirmatively concluded that

the vaccine did, in fact, cause the injury. See Andreu, 569

F.3d at 1376 (noting that the relevant expert “stated

unequivocally” that he believed that the vaccine caused

seizures); Capizzano, 440 F.3d at 1326 (holding that “the

chief special master erred in not considering the opinions

of the treating physicians who concluded that the vaccine

was the cause of Ms. Capizzano’s injury”). In the absence

of an affirmative conclusion as to causation, the lack of an

JAMES PATEREK v. HHS 17

alternative cause does not, alone, satisfy a petitioner’s

burden. See Althen, 418 F.3d at 1278 (stating that “nei-

ther a mere showing of a proximate temporal relationship

between vaccine and injury, nor a simplistic elimination

of other potential causes of the injury suffices, without

more, to meet the burden of showing actual causation”);

Hodges, 9 F.3d at 960. 8 Similarly, given Dr. Turow’s

testimony, the decision to withhold future administration

of the pertussis vaccine provides little probative evidence

of causation. See Andreu, 569 F.3d at 1376–77. For these

reasons, we conclude that the Court of Federal Claims

erred in finding the second prong under Althen satisfied.

Lastly, we briefly address the conclusion that the

Special Master committed legal error by allegedly engag-

ing in a “[s]elective review” of J.P.’s medical records. See

Final Decision, 88 Fed. Cl. at 201. We can discern no

basis for this conclusion. Although the Special Master did

state that “[t]he details of most events in [J.P.’s] medical

history after April 2000 are generally not relevant to

determining whether the July 20, 1999 DTaP vaccination

caused [J.P.’s] developmental delay,” he also made clear

that “[a]lthough details of [J.P.’s] medical history after

April 2000 are not set forth in this decision, these details

appear in the two previous opinions and have been consid-

ered.” See Special Master Decision, 2009 WL 3288295, at

*5 (emphasis added). Finding certain information not

relevant does not lead to—and likely undermines—the

conclusion that it was not considered. This alleged error

of law was not a proper basis to reverse the Special Mas-

ter.

8 We note that while causation cannot generally be

based on the mere lack of an alternative cause alone, a

petitioner may affirmatively rule out other possible alter-

native causes to prove causation-in-fact. See de Bazan,

539 F.3d at 1352 n.3.

18 JAMES PATEREK v. HHS

For these reasons, we reverse the judgment of the

Court of Federal Claims and remand with the instruction

that the court affirm the Special Master’s determination

that the Petitioner is not entitled to compensation.

REVERSED AND REMANDED

COSTS

No costs.