MICHEL, Circuit Judge.
Alisa Bradley and Ronald Bradley (the Bradleys), on behalf of their minor daughter, Rachel Bradley, appeal the judgment of the United States Claims Court
Rachel Bradley was born prematurely on July 19, 1983 and had several health problems at birth, including a cleft lip and palate, jaundice and anemia. Two months later, on September 27, 1983, she was admitted to a hospital for apnea (intermittent stoppage of breathing) and gastroesophageal reflux. On December 19, 1983, Rachel received a diphtheria-tetanus (DT) inoculation. She had no adverse reaction to it. On January 30, 1984, she received a second vaccination — a DPT inoculation. According to her mother's testimony at the evidentiary hearing before the special master, Rachel suffered from several symptoms over the three days following the DPT vaccination — fever of 101-104 degrees, extreme irritability, redness and swelling at the injection site, dropped head syndrome, staring episodes during which she did not react to any external stimuli and fitful sleep. Mrs. Bradley further testified that she had phoned the pediatrician during that time period. Mrs. Bradley also testified, but was unsure during testimony, that Rachel also first lost her ability to sit upright during these three days.
A few months after the DPT vaccination, in May, Rachel began experiencing febrile seizures. She experienced several afebrile seizures over the next year, including several staring episodes. She now suffers from an attention deficit disorder, delayed speech, aggressive behavior, and head banging.
The Bradleys' Petition for Compensation was filed on September 30, 1990. In response, the Secretary filed a report recommending denial of compensation. An evidentiary hearing was held on June 12, 1991. Mrs. Bradley testified as to Rachel's symptoms during the first three days following the DPT vaccination, as set forth above. Two medical experts also testified on behalf of Rachel. Dr. Tilelli, a pediatrician, testified that, based upon Mrs. Bradley's testimony and Rachel's medical records since birth, it was his opinion that Rachel had suffered a hypotonic-hyporesponsive episode (HHE) due to the DPT vaccine. Dr. Morrell, a neurologist, testified that, based on all of the same evidence, it was his opinion that Rachel had suffered "an encephalopathy with seizure activity" due to the vaccine. Both HHEs and encephalopathy are Table Injuries, for which compensation is due if certain conditions are met.
In contrast to the Bradleys' experts, Dr. Baumann, a pediatric neurologist appearing as the Secretary's medical expert, testified
The special master ruled, in an oral decision on June 12, 1991, that Rachel Bradley had "not been able to show the existence of a table injury or causation by a preponderance of the evidence." June 12, 1991 Hearing Transcript (Tr.) at 136. In reaching this conclusion, the special master reasoned that, although he believed that Mrs. Bradley was telling the truth as she remembered events, her recollections were not credible and persuasive in certain respects because (a) there were no corroborating, contemporary medical records and (b) the experts' testimony conflicted as to the meaning of the events she described. Id. at 136-40. In addition, the special master found Dr. Tilelli's testimony regarding HHEs to be unpersuasive in light of Dr. Baumann's descriptions of such shock collapses as more noticeable and dramatic events than those suffered by Rachel as related by her mother. Id. at 141. The special master accepted Dr. Tilelli's testimony, corroborated by Dr. Baumann, that Rachel did not suffer seizure activity or encephalopathy in the days directly following the vaccination, and therefore found Dr. Morrell's testimony regarding seizures to be unpersuasive. Id. at 141-42. Furthermore, the special master rejected both Dr. Tilelli's and Dr. Morrell's causation testimony linking Rachel's injury to the DPT vaccination because each one's statement was dependent on his respective belief that a certain injury had been manifested by Rachel, and the special master had previously found their respective injury analyses unconvincing. Id. at 143.
The day after making his bench ruling, the special master issued an order stating:
Although the Bradleys objected to the order, they filed such a request, and the special master then filed an unpublished written decision on September 10, 1991. This written decision restated and clarified the special master's reasoning given originally in his bench ruling. The special master's explanations responded specifically to the Bradleys' questions and assertions of error regarding the bench ruling.
The Bradleys petitioned the Claims Court for review of the special master's decision, challenging the decision on various substantive and procedural grounds. The Claims Court sustained the special master's decision and upheld the special master's findings and conclusions in the face of essentially the same challenges made here. In doing so, it recognized the Vaccine Act's arbitrary and capricious standard of review for fact-findings and stated:
Bradley, 24 Cl.Ct. at 644 (quoting Hines v. Secretary of the Dep't of Health and Human Servs., 940 F.2d 1518, 1528 (Fed.Cir. 1991)).
In reviewing the special master's decision, findings, and conclusions, the Claims Court may:
42 U.S.C. § 300aa-12(e)(2). Thus, the Claims Court judge reviews the special master's decision essentially for legal error or factual arbitrariness. Here, the Claims Court judge found neither, and he therefore upheld the special master's findings and conclusions. The Claims Court's determination as to whether the special master's findings were arbitrary and capricious is a legal conclusion. Munn v. Secretary of the Dep't of Health and Human Servs., 970 F.2d 863, 870 (Fed.Cir.1992); Hines, 940 F.2d at 1523-24. We therefore review that determination de novo.
The Bradleys first argue that the special master's reliance on the absence of medical records is arbitrary and capricious because 42 U.S.C. § 300aa-13(b)(2) provides that the special master may find the first symptom of an injury occurred within the applicable time frame, even if the occurrence of the symptom was not recorded. What the Bradleys fail to mention, however, is that the same subsection of the statute further provides that:
42 U.S.C. § 300aa-13(b)(2) (emphasis added). Here, the special master specifically found that, based on all of the evidence, the Bradleys had not demonstrated by a preponderance of the evidence that an onset had so occurred. Tr. at 136. Furthermore, 42 U.S.C. § 300aa-13(a)(1) provides that "[t]he special master or court may not make such a finding based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion." Here, there were no medical records that showed that the symptoms occurred within 72 hours of the DPT vaccine. In addition, although medical opinions were offered in support of Mrs. Bradley's testimony, those medical opinions were based largely on that testimony itself and, therefore, the special master could reasonably conclude that the medical opinions did not qualify "to substantiate" that testimony.
Second, the Bradleys assert that the special master's decision is arbitrary and capricious because, in rejecting Mrs. Bradley's testimony, he did not consider the facts and circumstances surrounding Mrs.
The fact-finder has broad discretion in determining credibility because he saw the witnesses and heard the testimony. Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed.Cir.1985). Such credibility determinations are "virtually unreviewable" by our court. Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986). Thus, the special master did consider the facts and circumstances involved in Mrs. Bradley's testimony, and his rejection of that testimony, in light of all of the evidence, was not arbitrary and capricious.
Third, the Bradleys assert that the special master erred in relying on Dr. Baumann's opinion because Dr. Baumann did not consider Mrs. Bradley's testimony in reaching his opinion regarding encephalopathy. However, Dr. Baumann did give consideration to Mrs. Bradley's testimony in that regard. Dr. Baumann stated that he had reviewed Mrs. Bradley's affidavit, see Tr. at 107, he made several references throughout his testimony to her affidavit and to her oral testimony, see, e.g., id. at 108, 109, 111, and he referred to Mrs. Bradley's "description" of Rachel's illness when testifying specifically to his opinion on encephalopathy, see id. at 111. Dr. Baumann just did not think that the testimony described the kind of symptoms required for a finding of encephalopathy. It was not arbitrary and capricious for the special master to give weight to his opinion.
Fourth, the Bradleys, assuming incorrectly that the special master had determined that Rachel had suffered a Table Injury, assert that the special master erred in denying them compensation because in order to do so he would have had to have concluded that alternative causation for that injury was established by a preponderance of the evidence, see 42 U.S.C. § 300aa-13(a)(1)(B), and he failed to do so. This argument is unfounded, because the special master concluded that a Table Injury had not been proven. According to the statute, the petitioner is granted compensation only when
Id. § 300aa-13(a)(1). Thus, when, as here, the special master concludes that a petitioner has not demonstrated by a preponderance of the evidence a Table Injury or causation required under subsection (A), the alternative causation theories of subsection (B) need not be addressed. Hence, the special master was not required to make a finding regarding alternative causation.
Fifth, we have considered the Bradleys' challenge to Dr. Baumann's evaluation of causation and find it to be without merit because, like the previous argument, it confuses the primary statutory requirement that petitioner prove the existence of a Table Injury, see id. § 300aa-13(a)(1)(A), with the contingent statutory requirement
Finally, the Bradleys allege that the special master abused his discretion by issuing a bench ruling and then requiring them, in order to receive a written decision, to file a written memorandum pointing out the errors they perceived in that ruling. There is nothing in the statute or the Vaccine Rules of the Office of Special Masters of the United States Claims Court, however, that requires the special master to issue a written decision. The Claims Court judge approved the "special master's decisional mechanics," stating that "it is hard to understand how one can find fault with a procedure that, in effect, grants a litigant a second full opportunity to argue his case before the decision maker." Bradley, 24 Cl.Ct. at 647. We agree.
Because we conclude on de novo review of the Claims Court's rulings
PLAGER, Circuit Judge, concurring in part and dissenting in part.
I concur in the judgment reached by the majority — "[b]ecause the Claims Court correctly concluded that the special master's decision ... was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm." Opinion at 1572. Unfortunately, the explanation the majority gives for how they arrived at that judgment departs from our precedents, creates confusion about our role, and leaves litigants with the unrealistic hope that there is a second bite here at the compensation apple. I respectfully dissent from the majority's effort at so describing the applicable law.
The question about which we differ is simply this: whom do we review, and by what standard. In two lengthy textual footnotes (op. at 1574 n. 3, and 1576 n. 4) the majority tells us its answer, which at bottom seems to be that the standard is a "legal" conclusion that we review "de novo," and from that all else appears to follow automatically. But saying something is `legal' hardly defines the universe of possible consequences — a fact determined
There are a few simple propositions that leap out of a study of this vaccine compensation legislation, 42 U.S.C. §§ 300aa-11 to 300aa-34 (1988 & Supp. I 1989 & Supp. III 1991). The statute is sui generis — it creates a federal no-fault system for compensating injuries causally connected to the vaccines given to children. (For a full discussion of the statute and its purposes, see Munn v. Secretary of Dep't of Health and Human Servs., 970 F.2d 863 (Fed.Cir. 1992)). The causal connection is presumed if the administration of the vaccine and the injury are proven to be related in time and nature as specified in 42 U.S.C. § 300aa-14 of the Act (a Table Injury), or if not so related, the connection may be established by other proof.
After first doing it differently, Congress determined that fact finding and fact concluding were to be done by a group of specialists called Special Masters, under the overall supervision of the Claims Court, now the Court of Federal Claims (CFC).
In Munn, this court reviewed at length this history, and concluded that our own review role in turn must be equally if not more constrained. The statute directs that we "review the judgment of the [C]ourt [of Federal Claims]" — the judgment that court reaches after its review of the special master. 42 U.S.C. § 300aa-12(f). We agreed we would review that judgment on the same highly deferential standard that that court must apply to the special masters. I understand this to mean that we look at the judgment of the CFC, we read the judge's opinion in support of that judgment, and with regard to fact-based determinations, we defer absent a clear showing that something went badly awry.
The majority opinion in this case is based on a quite different approach. The special master's fact determinations come in for extensive review and discussion, and while they are ultimately upheld, the court makes clear that that is only because we find them acceptable. (The work of the CFC is mentioned occasionally in passing.) The majority believes it is our duty to do a second time what the statute has specifically assigned to the judges of the CFC: review the fact-based findings and conclusions of the special masters, and decide whether they should be upheld.
There are two possible models for describing the review role to be played by this court under the Vaccine Act. One is the model used in review of decisions of the International Trade Commission (ITC), which decisions come to us after they have first been reviewed by the Court of International Trade (CIT). For all practical purposes, we ignore the work of the CIT judge, and re-examine the ITC decision as if no intermediate review had occurred. See Matsushita Electric Industrial Co. v. United States, 929 F.2d 1577, 1578 (Fed. Cir.1991). The other model is one similar
Unfortunately the Vaccine Act does not tell us which is the correct model for review under the Act. The structure of the Act, the legislative history, and respect for conservation of judicial resources in a time of resource constraint all dictate something closer to the COVA model than to the CIT model. That model is the one this court laid out in Munn, and recently reaffirmed in Phillips v. Secretary of Dep't of Health and Human Servs., 988 F.2d 111 (Fed.Cir. 1993). The majority, in its justification of the result in this case, and in its justification for that justification, has substantially deviated from this controlling precedent. I fear this will add confusion to the law, and serve only to encourage useless appeals.
We should accept that we have no particular expertise to add to these fact- and credibility-controlled decisions, and we should acknowledge that our role is indeed limited as Congress undoubtedly assumed it would be.
Families seeking compensation under the Vaccine Act are victims of a great tragedy — they have a seriously injured infant who will require lifetime care. The compensation program established by Congress however is limited — only those infants found as a fact to have vaccine-caused injury within the scope of the Act are compensated from the fund. Congress intended the 1989 revisions to provide a "quick, flexible, and streamlined system."
In a thoughtful book recently published, Professor Joseph Goldstein sets out five `Canons of Comprehensibility' for opinion writing.
When the Claims Court upholds all of the findings of the special master, there are no findings by the Claims Court. 42 U.S.C. § 300aa-12(e)(2)(A). Thus, if findings are challenged on appeal, we must review the findings of the special master. As the Vaccine Act explicitly commands, those findings are reviewed under an arbitrary and capricious standard. 42 U.S.C. § 300aa-12(e)(2)(B).