The recent decision handed down on August 17, 2009 by the U. S. Court of Federal Claims in the case of Rotoli, Myers, Torbett, Porter, and Hager v. the Secretary of Health and Human Services has me wondering if the days of the so-called "Vaccine Court" are numbered. (An abridged discussion of this case can be found on the web-site of Conway, Homer, and Chin-Caplan, HERE.)
Coming so quickly after the U. S. Court of Appeals decision in Andreu v. Sec. of Health and Human Services (see my previous article Vaccine Court: Don't Be a Putz) it seems as if serious questions are being raised about the conduct of the Vaccine Court. In Andreu, the appeals court found that the Vaccine Court failed to properly apply all three parts of the three-pronged Althen test in the case of a child who developed seizures after a DPT vaccination. In what can only be regarded as a slap in the face to the Vaccine Court, the appeals court found the petitioners had made their case and the only question to be answered by the Vaccine Court was the amount of damages. The Rotoli court specifically cited the Andreu decision in various parts of its decision as an example of serious errors by the Vaccine Court. (Click HERE to read Rotoli.)
In the three public test cases linking vaccines to autism, Cedillo, Hazlehurst, and Snyder, the Special Masters not only denied a link, but took extraordinary efforts to disparage the entire community of parents and medical professionals who assert the credibility of such a link. This is beyond the pale of what a court is supposed to do and I had wondered if this was simply limited to those who were asserting a vaccine connection to autism.
After reading the sixty-six page Rotoli decision, though, I’m starting to believe the Special Masters are interested in disputing a connection between vaccines and any health problems. The federal courts now appear to be pushing back against this effort. I think this apparent federal distrust of the decisions of the Vaccine Court will have significant effects when the three public vaccine-autism cases already decided make their way into the traditional legal system.
In Rotoli, et al, the five petitioners claimed the hepatitis B vaccine caused them to suffer autoimmune hepatitis. In its review, the U. S. Court of Federal Claims found that three of the petitioners were entitled to compensation, while two were not. The Federal Claims Court also found the Special Master had so thoroughly misread the law that the decision to render a verdict would be taken away from the Vaccine Court.
With a few edits for ease of reading (mostly eliminating citations and footnotes), here's the bulk of Section I from the discussion section of Rotoli. (Author's note - The underlining is from the decision itself.)
"I. The Special Master's Rejection of the Petitioner's Evidence of Causation Violated the Federal Circuit's Standards Under Andreu."
"As described above, the Federal Circuit recently held in Andreu v. Secretary of Health and Human Services that, ‘[w]hile considerable deference must be accorded to the credibility determination of special masters, this does not mean a special master can cloak the application of an erroneous legal standard in the guise of a credibility challenge, and thereby shield it from appellate review.’ The Federal Circuit in Andreu clarified that “[a] trial court makes a credibility determination in order to assess the candor of a fact witness, not to evaluate whether an expert witness’ medical theory is supported by the weight of epidemiological evidence."
"In these five cases, the special master’s analysis of the petitioners’ evidence ran afoul of the Federal Circuit’s standards regarding credibility determinations. Just as the special master did in Andreu, the special master in these cases erroneously ‘cloak[ed]’ much of his rejection of the petitioners’ theory of causation ‘under the rubric of a credibility determination’ regarding Dr. Joseph A. Bellanti, the petitioners’ expert witness."
"These were not cases in which the special master was ‘assessing the candor of a fact witness,’ in which a credibility determination might have been appropriate. Instead, Dr. Bellanti was a highly qualified expert witness whose extensive credentials are not in dispute. At the time of the hearings in this case, Dr. Bellanti was a Professor of Microbiology and Immunology and Pediatrics at Georgetown University Medical Center. He was the Director of the International Center for Interdisciplinary Studies of Immunology at Georgetown University Medical Center. He was also the Director of the Division of Immunology and Virology at the Department of Laboratory Medicine at the Georgetown University Hospital. He was involved in research, education, and in patient care at Georgetown. Among other professional organizations, Dr. Bellanti served on the American Board of Allergy and Immunology, where he was the pediatric component’s chairman alongside respondent’s expert, Dr. Burton Zweiman, who served as Dr. Bellanti’s counterpart in internal medicine. Though Dr. Bellanti is admittedly not a gastroenterologist nor a hepatologist, he is an expert in the field of immunology and is qualified to discuss the pathways of autoimmune disease. As the Federal Circuit emphasized, where a highly qualified expert such as Dr. Bellanti presents a biologically plausible theory of causation in a vaccine case, the issue is not one of credibility."
"In these cases, however, the special master erroneously founded his rejection of the petitioners’ theory of causation on his assessment of Dr. Bellanti’s ‘poor’ credibility. The special master’s discussion of Dr. Bellanti’s credibility permeated his analysis of the petitioner’s claims. Most egregiously, the special master included a nine-page-section – a substantial portion of the total length of each decision – entitled ‘Additional Comments regarding Dr. Bellanti,’ in which he questioned not only ‘Dr. Bellanti’s persuasiveness but also his truthfulness’ as a result of various weaknesses in the evidence underlying Dr. Bellanti’s claims and Dr. Bellanti’s ‘demeanor.’ (‘[T]he evidence from each case solely supports a finding that Dr. Bellanti lacks credibility.')"
'In addition to the portion of each decision devoted expressly to Dr. Bellanti’s credibility, references to Dr. Bellanti’s credibility also pervaded the special master’s analyses of the medical theory proposed by five petitioners and of the specific evidence of causation in each of the five cases. In reviewing the evidence (including the medical literature) in the five cases, the special master – rather than simply evaluating whether Dr. Bellanti’s medical theory of causation was supported by the weight of that evidence – went so far as to conclude that the ‘questions about the basis for Dr. Bellanti’s statements . . . have led to a question about Dr. Bellanti’s veracity. Indeed, by couching his rejection of Dr. Bellanti’s testimony in terms of credibility, the special master apparently expected his analysis to be ‘virtually not reviewable on appeal.’”
“In view of the foregoing, the court finds that the special master erroneously used his assessment of Dr. Bellanti’s credibility – an assessment that should be reserved for ‘assessing the candor of a fact witness’ – as a basis for rejecting Dr. Bellanti’s expert testimony regarding causation, in violation of Andreu. Moreover, the court finds that the pervasiveness of the comments regarding Dr. Bellanti’s credibility throughout the special master’s decisions – both in his discussion of the medical theory put forth by all five petitioners and in his discussions of the specific evidence of causation in each of the five individual cases – makes it impossible to review the special master’s evaluation of the evidence separately from his erroneous credibility determination. The special master’s error has tainted his entire causation analysis. Accordingly, the court finds that the special master’s framing of his rejection of the petitioners’ theory of causation “under the rubric of a ‘credibility’ determination constituted a legal error allowing the court to set aside the special master’s findings under 42 U.S.C. section 300aa-12(e)(2)(B).”
“Rather than remand to the special master for a redetermination regarding causation, the court will issue its own findings in these cases . . . The Federal Circuit has recognized that the Court of Federal Claims may make its own findings of fact in circumstances in which it concluded that the special master’s decision was arbitrary and capricious or not otherwise in accordance with law ‘and that it is necessary for the [Court of Federal Claims] to substitute its own findings of fact.’ While remand to the special master for a redetermination regarding causation would ordinarily be appropriate, given the protracted, ten-year history of this litigation and the impossibility of separating the special master’s error regarding Dr. Bellanti’s credibility from the rest of the special master’s analysis, the court has deemed it appropriate to make its own findings as to causation in these five cases.” (Rotoli, pages 11-15)
What can be taken away from this decision? A couple things come to mind. For the second time a federal court looking at a decision of the Vaccine Court has found it to be so flawed it must be taken away from the Special Masters. It's difficult to fully convey how strong of an insult this is in the legal community.
Courts operate on the principle of being fair and unbiased in their application of the law. They're not supposed to be "arbitrary and capricious." The Special Master's attack against a well-qualified expert witness like Dr. Bellanti as if he was some junkie eye-witness to a homicide has the federal courts calling into question the very impartiality of the Vaccine Court.
In my opinion the decisions in Cedillo, Hazlehurst, and Snyder suffered from many of the same problems. Expert witnesses were attacked for their credibility, rather than responding to their theories with clear discussions of the scientific questions at issue. The claims of the expert witnesses, their theories, the reports of attending physicians, and the very standards by which the Special Masters were supposed to rule were tossed aside.
In Andreu and now Rotoli the federal courts didn’t even trust the Special Masters of the Vaccine Court to follow their specific instructions. In reading between the lines of the Rotoli decision it's difficult to come to any other conclusion than that now two federal courts don't trust the Vaccine Court to find vaccine injuries.
How long can a court which is held in such contempt by the members of its own legal community continue to exist?
Kent Heckenlively is Contributing Editor to Age of Autism (Thanks to Theresa Cedillo to alerting me to this case.)