Veryzer v. Secretary of Health & Human Services
100 Fed. Cl. 344
Fed. Cl.2011Background
- Petitioner Veryzer sought Vaccine Act compensation for injuries after Hepatitis A vaccination; record on remand focused on medical records linking vaccination to injury.
- Original petition filed 2003; Hepatitis B claims were withdrawn; Hepatitis A added to Vaccine Injury Table in 2004, enabling later Hepatitis A claim.
- Special Master Abell initially denied compensation on remand (Veryzer II/Veryzer I); this court remanded for factual findings on causation in light of medical records (Veryzer III).
- On remand, Special Master Golkiewicz reopened the record and examined petitioner’s treating‑physician Dr. Astruc’s reports; six questions were posed to Dr. Astruc to clarify causation.
- Special Master concluded no legally probable medical theory linking Hepatitis A vaccine to petitioner’s injury existed, denied compensation, and the court affirmed on review.
- Petitioner challenges the master’s causation standard, temporal relation analysis, and treatment of evidence (including Hepatitis B references), arguing a legally probable theory existed and that records support causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of causation under Althen for off‑Table injuries | Veryzer claims a legally probable theory exists. | Master applied proper standard; no legally probable theory shown. | Not arbitrary or capricious; no legally probable theory shown. |
| Althen prong 1: medical theory linking Hep A to injury | Medical records show vaccine-related indicators; Dr. Astruc supports causation. | No probable medical theory linking Hep A to injury; evidence is speculative. | No legally probable medical theory established. |
| Althen prong 2: logical sequence of causation | Records, read in context, imply causation by vaccine. | Records show hypotheses outside specialty and lack a logical sequence. | No logical sequence showing vaccine caused injury. |
| Althen prong 3: temporal relationship | Injury occurred soon after vaccination; temporal proximity shown. | Temporal proximity alone insufficient without a medical theory. | Temporal relationship alone insufficient; no causation proven. |
| Sufficiency of Dr. Astruc’s opinions on remand | Astruc’s psychiatric focus should still inform causation; supplemental reports should suffice. | Astruc’s vague/supporting records insufficient to satisfy Althen. | Astruc’s opinions deemed vague and insufficient; did not satisfy preponderance. |
Key Cases Cited
- Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367 (Fed.Cir.2009) (treating physicians can be probative for causation, but must connect to records)
- Althen v. Secretary of Health & Human Services, 418 F.3d 1274 (Fed.Cir.2005) (establishes three-prong test for causation in Vaccine Act off-Table cases)
- Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315 (Fed.Cir.2010) (three Althen factors; need not be conclusive, just preponderant)
- Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543 (Fed.Cir.1994) (legal probability standard for causation in vaccine cases)
- Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317 (Fed.Cir.2006) (review standard for vaccine-causation decisions; de novo legal, deferential factual)