WEISS v. SECRETARY OF HEALTH AND HUMAN SERVICES
1:19-vv-01786
| Fed. Cl. | Jul 10, 2025Background
- Dr. Edwin Weiss (73 at vaccination) received an influenza vaccine on November 29, 2016 and was hospitalized on December 22, 2016 with a diagnosis consistent with Guillain‑Barré syndrome (Miller‑Fisher variant); he received IVIG and improved at discharge.
- Weiss alleged persistent residuals (primarily balance/ataxia) lasting more than six months and filed a Vaccine Program petition in November 2019 claiming a Table injury and ongoing sequelae.
- Medical record timeline: normal gait noted at discharge (Dec 2016); an April 2017 ophthalmology note said “back to normal”; next GBS‑related notations appear in Oct–Nov 2018 and Nov 2019 (neurologist notes of mild gait ataxia possibly related to prior GBS but possibly age‑related); no contemporaneous treatment records for GBS during ~22‑month gap (late 2016–Oct 2018).
- Petitioner submitted an affidavit (Aug 2024), a neurology expert (Dr. Napoli) asserting residual ataxia can persist beyond six months, and 2024 physical‑therapy records; respondent’s expert (Dr. Bromberg) attributed later gait findings to age/variability and emphasized sparse contemporaneous documentation.
- Special Master Young ordered Weiss to supply objective evidence of >6‑month residuals, found the record mixed and the affidavit insufficient to overcome contemporaneous records, and dismissed the petition for failure to meet the statutory six‑month severity requirement.
- The Court of Federal Claims reviewed whether the Special Master considered the record as a whole and whether the six‑month‑severity finding was arbitrary and capricious; the Court sustained the Special Master’s decision.
Issues
| Issue | Weiss's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether the Special Master failed to consider the record as a whole such that de novo review is required | Special Master ignored/undervalued three treating‑physician notations (Oct/Nov 2018 and Nov 2019) showing ongoing balance problems; thus decision is not "record as a whole" | Special Master cited and quoted those records, weighed mixed evidence, and expressly considered the record as a whole | Court: Special Master did consider and quote the records; no legal error; review under arbitrary‑and‑capricious standard applies |
| Whether Weiss proved the Vaccine Act’s six‑month severity requirement by a preponderance | Weiss: contemporaneous treating‑physician notes + affidavit and expert opinion establish residual ataxia >6 months | Secretary: contemporaneous records show recovery/normal gait or alternative (age) explanations; later affidavit cannot overcome contemporaneous records | Court: Special Master reasonably weighed mixed contemporaneous records and affidavit and permissibly found petitioner did not meet preponderance burden |
| Proper evidentiary weight of petitioner’s later affidavit and delayed treatment | Weiss: gaps in records are explainable (did not seek care because nothing could be done); medical records are not presumed complete (Kirby) so affidavit has probative value | Secretary: contemporaneous records generally entitled to greater weight where inconsistent with later litigation‑generated statements | Court: Affidavit has some weight but insufficient alone to satisfy preponderance given contrary contemporaneous evidence; Special Master’s approach was not arbitrary |
| Whether dismissal for failure to show six‑month severity was procedurally improper (dismissal vs. merits hearing) | Weiss did not press a procedural‑due‑process challenge here but argued Special Master gave insufficient weight to key records | Secretary: dismissal was appropriate because claimant failed to carry the jurisdictional/pleading content requirement under §11(c) by preponderance | Court: did not decide a procedural‑due‑process issue; affirmed dismissal/denial on the ground that Special Master’s factual finding was not arbitrary or capricious |
Key Cases Cited
- Cloer v. Sec'y of Health & Hum. Servs., 654 F.3d 1322 (Fed. Cir. 2011) (explains Vaccine Act’s six‑month severity as a petition content requirement and Program purpose)
- Hines v. Sec'y of Dep't of Health & Hum. Servs., 940 F.2d 1518 (Fed. Cir. 1991) (arbitrary‑and‑capricious standard: special master must consider relevant evidence, draw plausible inferences, articulate rational basis)
- Kirby v. Sec'y of Health & Hum. Servs., 997 F.3d 1378 (Fed. Cir. 2021) (medical records are not presumed to be complete as to all conditions; lay testimony and corroboration can be probative)
- Lampe v. Sec'y of Health & Hum. Servs., 219 F.3d 1357 (Fed. Cir. 2000) (court will not reweigh factual evidence or reassess credibility on review)
- Munn v. Sec'y of Health & Hum. Servs., 970 F.2d 863 (Fed. Cir. 1992) (standard of review framework for special master findings)
- Porter v. Sec'y of Health & Hum. Servs., 663 F.3d 1242 (Fed. Cir. 2011) (lay testimony may have probative value but cannot alone meet statutory evidentiary requirements)
- Moriarty v. Sec'y of Health & Hum. Servs., 844 F.3d 1322 (Fed. Cir. 2016) (presumption that special master considered relevant record evidence)
- Hodge v. Sec'y of Health & Hum. Servs., 164 Fed. Cl. 633 (Fed. Cl. 2023) (special master must consider the record as a whole; failure to do so can be legal error)
- Shapiro v. Sec'y of Health & Hum. Servs., 101 Fed. Cl. 532 (Fed. Cl. 2011) (special master may not selectively ignore portions of a record that contradict findings)