()RICIENAt @nitr! btatts @ourt otfelers[ @lsimg 04-l128 V (Filed Under Seal: April 2016) FILED (Reissued: May 3. 20161. MAY - 20t6

UNPUBLISHED U.S. COURT OF FEDERAL CI-AIMS DARIUS AND TERESITA CANUTO. behalf of DAC,

National Childhood Vaccine Injury Act, 42 U.S.C. $ 300aa-1-34; Petitioners, Motion for Review; Pro se Petitioners THE SECRETARY OF HEAI-TH AND

IJUMAN SERVICES,

Respondent.

Darius and Teresita Canuto, pro s€, petitioners.

Voris Edward Johnson, States Department Justice, Civil Division, Washington, DC, for respondent.

OPINION AND ORDER

YOCK, Senior Judge.

This case comes before petitioners' motion review Special Master Hastings' decision, which denied the petitioners' claim for compensation under National Vaccine Injury Compensation Program. 42 U.S.C. 300aa-10 el seq (2012 ed.). After thorough consideration entire record in this matter, will deny petitioners' motion aftlrm decision.

FACTUAL BACKGROUND Special Master Hastings provided an exhaustive recitation facts in his decision. 8- The court refers readers that decision comprehensive * This opinion originally was issued under seal on April 18,2016. The court afforded the parties an opportunity to propose redactions opinion prior to its reissue. No such redactions wcre proposed.

discussion of the facts this case. However, provide a brief overview of case's most pertinent facts for the convenience ofthe reader.

Petitioners' son ("DAC") born on July 17, 2000, Bocaue, Philippines. Ex. 4 at ^[1] . His physicians he was a "well baby" and in good health. Ex. 13 at 1.

He received several routine early childhood vaccines, including two doses ofa combined diphtheria, tetanus, and whole-cell pertussis well as a hepatitis B vaccine.r Ex. at 1- 2.

Several months later, petitioners son relocated to Los Angeles, Califomia, where DAC received additional vaccinations, including vaccine for diphtheria, tetanus, and acellular pertussis. Ex. I at -3. Around this time, DAC also received haemophilus influenzae type b, measles, mumps, rubella, chickenpox.

Beginning at his one year checkup, on August 3,2001, DAC's physicians noted signs potential developmental delay. Ex. 17. During this visit DAC received a measles, mumps, rubella. Over next few months, DAC continued to struggle with speech and language development and was diagnosed with severe profound expressive and receptive language disorder on October 30, 2003. Ex.34 at2.

At point, DAC word vocabulary did speak more than one word a time. Id.

On March 15,2004, DAC met with developmental behavioral pediatrician, who diagnosed him with autism. Ex. 39 at At this stage, his linguistic skills tested at developmental age 30.4 months his chronological age was 44 months. DAC displayed delayed language skills, difficulty interacting peers, and limited play skills. Ex. 39 at 3. In March of2006, psychoeducational assessment ofDAC confirmed his prior diagnosis. Ex. 53.

On July 6,2004, Darius Teresita Canuto filed short-form petition on behalf DAC. On December special master issued his decision, Canuto v. Human.9ervs., No. 04-l 128V, 2015 WL (Fed' Cl. Sp. Mstr' Dec. 5), which denied claim. Petitioners filed their motion for review ofthe master's decision January 12,2016. ECF No. 61. respondent filed its response on February I1,2016. ECF

I The special master noted vaccination outside ofthe United States could potentially fatal to petitioners' claim. Dec Petitioners respond that this technical defect should be ignored because vaccines manufactued outside ofthe States are sometimes administered domestically. Pet'r's Memorandum ofObjections 16-17. Regardless, because the special master's decision does rely this issue, does not reach the question whether this potential defect would have required the denial ofpetitioners' claim.

STANDARDS This has jurisdiction to review special master's decision in Vaccine Act case upon properly filed petition for review. 42 U.S.C. 300aa-12(e)(l). The court may set aside any of the findings of fact or conclusions of law ifthose determinations were "arbitrary, capricious, an abuse ofdiscretion, or otherwise not accordance with the law ." Id. at 12(e)(2)(B).

The court applies different standards to conclusions of law, findings of fact, discretionary rulings. Masias v. Sec'y of Health & Human Servs.,634 F.3d 1283, 1287- 88 (Fed. Cir. 2011)2; see also Munnv. Sec'y of Health & Servs.,970 F.2d 863, no. (Fed. Cir. 1992); Paffurd v. Sec'y of Health Human Sens., 64 Fed. Cl. 19, (2005), aff'd,451 F.3d 1352 (Fed. Cir. 2006). The court reviews conclusions oflaw under the "not accordance the law" standard," findings of fact under the arbitrary capricious standard, and discretionary rulings under the "abuse of discretion" standard. Saunders v. Sec'y of Health & Human Servs.,25 F.3d (Fed. Cir.

t994). arbitrary capricious standard is "well understood be the most deferential [standard] possible." Munn,970F.2dat870. "Ifthe master'has relevant evidence ofrecord, drawn plausible inferences and articulated rational basis the decision, reversible error extremely difficult to demonstrate."' Hibbardv. Sec'y of Health & Human Servs.,698 F.3d at (quoting Hines Behalf of Sevier v. Sec'y of Health & Human Servs., 940 F.2d 1528 (Fed.

Cir. 1991)). "Congress assigned group specialists, the Special Masters within the Court Federal Claims, the unenviable job of sorting through these painful cases and, upon accumulated expertise field,judging merits of individual cf aims." Deribeaw ex rel. Deribeaux Human Servs.,717 F .3d 2013) (quoting Hodges Human,Servs.,9 F.3d 958, 961 Cir. 1993) (internal citations omitted)). It role this court "reweigh the factual evidence," "assess whether the special master correctly evaluated the evidence," "examine probative value evidence or the credibility the witnesses." Lampe Servs.,219 Cir.

2010). "Under Vaccine Act, lthe Circuit] review[s] decision ofthe special master under the same standard the

Court of Federal Claims." Masias,634 F.3d

DISCUSSION Petitioners contend that the special master erred in rejecting their theory causation between vaccines3 and autism. To be successful, "must do more than demonstrate a'plausible' or'possible' causal link between the vaccination injury." Il'.C. Servs.,704 F.3d Cir. 2013).

The statutory standard requires "a petitioner demonstrate that the vaccine more likely than not caused condition alleged." LaLonde,746F.3d at 1339. In doing so, a petitioner "must provide a reputable medical or scientific explanation" which is "legally probable" if not "medically or scientifrcally certain." Moberly,592 F.3d (citing Knudson Human.Servs., F.3d 543, 548-49 Cir. 1994)).

The special master analyzed theory under the three-prong test for causation in offtable claims,a set forth in Althen Servs., 2005).5 Under Althen,petitioners must demonstrate by preponderant evidence that vaccination brought about the alleged injury by providing: (l) a medical theory causally connecting vaccination and the injury; (2) a logical sequence ofcause effect showing that vaccination was the reason injury; (3) a showing a proximate temporal relationship between injury. Althen,4lS F,3d If a petitioner satisfies burden, they are entitled to recover unless thc government dcmonstrates by prcponderance ofthc cvidence injury fact caused by unrelated factors. determined had not carried burden, finding that they had not satisfied any Althen test's three prongs. at26-27. Indeed, the special master concluded petition ers "failed to present even prima facie case any played any role causing or aggravating his autism." at 24 (emphasis included). his decision to considerable extent on the testimony credibility experts, but he also discussed records and the testimony of his parents and other family members describing condition. meticulously detailed this evidence, providing comprehensive thorough analysis. 8-13. Particularly, gave weighty

consideration to records. master conflict between I Petitioners' allege that the measles-mumps-rubella, diphtheria-telanus-pertussis, diphtheria+etanus'acellular pertussis, hepatitis B, and haemophilus influenzae type b vaccines, some combination thereof, caused DAC's autism. Autism listed on the Vaccine lnjury Table and, therefore, petitioners must that the vaccines

question were the cause-in-fact DAC's injuries. 300aa-13(a)(l)(B); $ 300aa-1 1(c)(lXCXii).

t petitioners submitted a short-form petition. To the extent that petitioners allege other, non-autism-based causation theories, those theories cannot raised here because they were alleged in the petition considered by the special master.

DAC's contemporaneous medical records and testimony. Dec. at Although allege that DAC suffered from seizures, his contemporaneous medical records showed no support for this claim. The found that this was particularly troubling since contended that DAC suffered nine different seizures over three-year period. Id. (citingEx.2l at 2). The special master commented that for DAC's pediatricians to "not recognize and not record description seizure one instance would unusual enough." 1d Ultimately, the special master concluded that medical records provided the most credible evidence on DAC's symptoms, noting that, where conflict exists, records are "frequently accordIed] more weight" than conflicting subsequent testimony.

The special master next testimony from experts, Dr. Max Wiznitzer, respondent, and Dr. Mark Levin, for petitioners. Dec. at 20-28. The special master began his analysis comparison Dr. Wiznitzer's and Dr. Levin's credentials. Dec. at 15. The found that Dr. Wiznitzer was very credible, citing his specialty in pediatrics and developmental disorders and extensive history with neurology and autism. /d. Conversely, the special master noted Dr. Levin had limited experience with autism and found that Dr. Levin's his specialty in fields of oncology and hematology lent his opinion less weight. The special master then turned Dr. Levin's theory connecting DTP vaccine autism. at 21.

Dr. Levin his theory on the general rise ofautism rates States timing between onset specific case' Levin Report at 3-4. The did not find Dr. Levin's theory credible, describing it "largely, if entirely, unsupported speculation." The special master found Dr. Levin did not actually offer any scientific support notion that the DTP vaccine can cause concurred with Dr. Wiznitzer's observation Dr.

Levin "offer[ed] no causal theory whatsoever." Id. (citing Ex. A 6). special master also Dr. Levin's admission this theory is debatable, finding Dr. Levin's opinion "equivocal in addition to unsupported." Id. The special master concluded that Dr. Levin's opinion point was ultimately "wholly unpersuasive regarding every element necessary proving causation-in-fact." Id. master was similarly unpersuaded by Dr. Levin's opinion whether

vaccines caused autism in DAC specifically. found Dr' Levin's opinion inadequate because it was "predicated entirely" on the alleged temporal relationship between injury. As master noted, "a temporal connection alone is enough causation." at22 (quoting LaLonde Servs.,'146 2004)). special master was also troubled by Dr. Levin's confusion over the record.

Dec. 22-23. The special master noted "Dr. Levin's very limited discussion of history mistaken on the critical point of identifoing type *6 DAC actually received." at22. special master commented that Dr. Levin's confusion resulted an expert report that was "actually quite incoherent." 22-23.

In sum, the special master weighed opinions of Dr. Levin Dr. Wiznitzer6 on petitioners' theory for causation and determined that latter "was far more persuasive." at24. found that Dr. Wiznitzer "fully rebutted" Dr.

Levin's "very weak" opinion and that Dr. Wiznitzer was both better qualified better supported by facts. Id. In master's view, Dr. Wiznitzer's opinion provided "an explanation of condition better accounts complete medical history." assessment the experts, records, and other

evidence conclusion had failed to causal link between vaccines and arbitrary capricious. record reflects that the carefully thoroughly weighed the evidence before him determined that petitioners not provided legally probable theory of causation-in-fact. The appropriately evaluated the expert witnesses' credibility, citing credentials, mastery records, and ability support their theories.

The court also notes causation theories based on have been uniformly rejected. An initial round oftest claims autism theories were brought denied part an omnibus proceeding. Cedillo v. Sec'y of Health & Human Servs., 617 1328 (Fed. 2010); Hazlehurst v. Sec'y Health & Human,9ervs., F.3d 1343 (Fed. Cir.20l0); Snyderv. Health Human,lervs., 88 Fed. Cl. 706 (2009); Dwyer v. Human Servs., No. 03-1202V , 2010 WL 892250 Cl. Spec. Mstr. Mar.12,201); Kingv. Servs., No. 03- 584V,2010 WL892296 (Fed. Cl. Spec. Mstr. Mar 12,2010); Meadv. Sec'y & Servs., No. 03-215V, WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12,2010). Subsequently, special masters have rejected numerous claims based on autism.? 'l'he court notes that the petitioners, themselves, provided the special master documenls purporting

demonsfate causal link between vaccines and autism. The special master found were not qualified make assertions based these submissions under 42 U.S.C. 300aa a13)(a)(l). In the altemative, the special found that Dr. Wiznitzer's contrary opinion was more persuasive. See e.g.,Blake v. HHS, No. 03-31V, 2014 WL 2'169979 (Fed. Cl. Spec. Msfi. Vowell May 21, 2014); Henderson y. HHS, No.09-616V,2012WL 5194060 (Fed. Cl. Spec. Mstr. Vowell Sept.28,20l2): Franklin v. HHS, No.99- 855V, | WL 3755954 (Fed. Cl. Spec. Mstr. Hastings May 2013); Coombs v. HHS, No. 08-81 8V, WL 1677584 (Fed. Cl. Spec. Mstr. Hastings Apr. 2014); Long HHS, No. 08-792V,2015 WL l0l (Fed. Cl. Spec. Msrr. Hastings Feb. 2015); Brook HHS, No. 04-405V, 2015 WL 3799646 (Fed. Cl. Spec. Mstr. Hastings May 14, 2015); Holt v. HHS, No. 05-136V, 2015 WL 4381588 (Fed. Cl. Spec. Mstr. Vowell June 24, 2015); Lehner v. HHS, No, 08-554V, 2015 WL Cl. Spec. Mstr. Vowell July 22, 2015); Miller HHS, 02-235V, 2015 WL 5456093 (Fed. Cl. Spec. Mstr. Vowell August 2015); Allen v HHS, No, 02-1237V,2015 WL 6160215 (Fed.

CI. Spec. Mstr. Vowell Sept.26,2015): R.K. v. HHS Cl. Spec. Mstr. Vowell Sept. 28,20t5).

It is role this court to reconsider the "probative value of the evidence or credibility witnesses." Lampe,2l9 F.3d at Here, the special master "has relevant evidence ofrecord, drawn plausible inferences and articulated rational basis decision" and, therefore, not disturb his decision case. Hines,940 F.2d at 1528.

CONCLUSION Accordingly, petitioners' MOTION for review is DENIED. master's decision is affirmed. Clerk hereby directed to enter judgment according to the master's decision.

IT IS SO ORDERED.

Robert J. Yock -7 -