Wallach, Circuit Judge.
Appellants Laura Oliver and Eddie Oliver, Jr. (together, "the Olivers"), parents and legal representatives of E.O., III ("E.O."), sued the Secretary of Health and Human Services ("the Government") for compensation under the National Childhood Vaccine Injury Act of 1986 ("Vaccine Act"), Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-2-300aa-33 (2012)). The Olivers allege that E.O. developed Dravet syndrome
The Olivers appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012). We affirm.
On April 9, 2009, E.O. visited a pediatrician for his six-month visit and received vaccinations for Diphtheria-Tetanus-acellular Pertussis, Hepatitis B, Inactivated Poliovirus, Pneumococcal Conjugate, and Rotavirus. Oliver I, 2017 WL 747846, at *4. At approximately 11:30 PM that night, Mrs. Oliver "found E.O. seizing in his bed" and called 9-1-1. Id. (citation omitted). When he arrived at the emergency room, E.O. presented with "a fever of 101.3 degrees, red eyes with discharge from his right eye, and a runny nose." Id. (internal quotation marks and citation omitted). The emergency room physician diagnosed E.O. with a febrile seizure and discharged E.O. with instructions to see his pediatrician. Id. On April 10, 2009, E.O.'s pediatrician recorded E.O.'s temperature as 97.1 degrees and diagnosed E.O. with "complex febrile seizure and conjunctivitis in the right eye." Id. (citation omitted).
"E.O. did not have any health issues or seizures for the next two months." Id. However, E.O. had several seizures over the summer of 2009 and began to experience prolonged seizures in March 2010, with each seizure resulting in an emergency room visit. Id. at *5. In April 2010, E.O. was referred to a pediatric neurologist, who diagnosed E.O. with an SCN1A gene defect in June 2010. Id. at *5-6. In July 2010, E.O. began to exhibit developmental delay, and the pediatric neurologist performed general physical, neurological, and motor examinations, which demonstrated "intractable, symptomatic childhood absence and complex partial seizures of independent hemisphere origin secondary to SCN1A gene defect (borderline SMEI syndrome) and encephalopathy characterized by speech delay." Id. at *6 (internal quotation marks and citation omitted).
I. Standard of Review and Legal Standard
"We review an appeal from the Court of Federal Claims in a Vaccine Act case de novo, applying the same standard of review [as the Court of Federal Claims] applied in reviewing the special master's decision." Milik v. Sec'y of Health & Human Servs., 822 F.3d 1367, 1375 (Fed. Cir. 2016) (citation omitted). "Although we review legal determinations without deference, we review the special master's factual findings under the arbitrary and capricious standard." Id. at 1376 (citation omitted). This standard is "uniquely deferential" and "difficult for an appellant to satisfy with respect to any issue, but particularly with respect to an issue that turns on the weighing of evidence by the trier of fact." Id. (internal quotation marks and citations omitted). "[A]s long as the special master's conclusion is based on evidence in the record
Where, as here, a petitioner alleges an injury not found on the Vaccine Injury Table ("the Table"),
II. The Court of Federal Claims Did Not Err in Sustaining the Chief Special Master's Determination
The Chief Special Master determined that the Olivers failed to satisfy their burden as to each of the Althen prongs. Oliver I, 2017 WL 747846, at *11-21. The Olivers aver that the Chief Special Master erred in her evaluation of the Althen prongs by: (1) "misappl[ying] Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] and thus appl[ying] an evidentiary standard not in accordance with law," Appellants' Br. 17 (capitalization modified); see id. at *17-33; and (2) "improperly using estoppel and a faulty scientific premise to deny both a full and fair hearing, in an abuse of her discretion, as well as a finding of causation," id. at *34 (italics omitted); see id. at *34-43. We disagree with the Olivers.
First, although the Olivers claim that the Chief Special Master misapplied Daubert, their argument amounts to no more than a challenge to the weight afforded to their expert's testimony and supporting evidence.
The Olivers repeatedly fault the Chief Special Master for failing to afford greater weight to their expert's testimony and supporting evidence. See, e.g., Appellants' Br. 25 (stating that "the [Chief] Special Master is highly dismissive of all of [their expert]'s testimony"), 26 (stating that the Olivers' expert's "theory and ... mechanisms were, in fact, supported by the literature even if his conclusions were not yet published"), 33 (stating that the Chief Special Master "essentially reject[ed]" their expert's supporting evidence). We cannot review such challenges. See Milik, 822 F.3d at 1376 ("[W]e do not reweigh the factual evidence, assess whether the special master correctly evaluated the evidence, or examine the probative value of the evidence or the credibility of the witnesses — these are all matters within the purview of the fact finder." (internal quotation marks and citation omitted)); Lampe v. Sec'y of Health & Human Servs., 219 F.3d 1357, 1362 (Fed. Cir. 2000) (stating that "assessments of the credibility of the witnesses and the relative persuasiveness of the competing medical theories of the case" "are virtually unchallengeable on appeal"). Therefore, we hold that the Chief Special Master did not misapply Daubert in weighing the parties' experts' testimony and supporting evidence and that the Chief Special Master's factual findings were neither arbitrary nor capricious. See de Bazan v. Sec'y of Health & Human Servs., 539 F.3d 1347, 1352 n.4 (Fed. Cir. 2008) (rejecting similar arguments on the grounds that "Daubert is inapposite here because the special master did not exclude any expert evidence under Daubert" and, instead, "admitted and weighed both parties' evidence but simply decided that the [G]overnment's evidence was more persuasive"); Terran ex rel. Terran v. Sec'y of Health & Human Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999) (affirming a "[s]pecial [m]aster's
Second, the Chief Special Master did not apply estoppel to either deny a fair hearing or bar the Olivers' theory of causation. The Olivers assert that the Chief Special Master "effectively estopped the [Olivers] from fully presenting [their] case," Appellants' Br. 39, by noting that, "[t]o date, there have been at least [fifteen] other ... cases which involved children with SCN1A mutations and compensation has been denied in all of these cases," Oliver I, 2017 WL 747846, at *1 (footnote omitted); see id. at *1 n.3 (listing the prior cases); see also Estoppel, Black's Law Dictionary (10th ed. 2014) (defining estoppel as, inter alia, "[a] bar that prevents the relitigation of issues"). However, one reference to other cases rejecting similar claims does not constitute the application of estoppel. Cf. Waymo LLC v. Uber Techs., Inc., 870 F.3d 1350, 1361 (Fed. Cir. 2017) ("We will not find legal error based upon an isolated statement stripped from its context." (internal quotation marks and citation omitted)). Indeed, the Chief Special Master made no reference to estoppel, see generally Oliver I, 2017 WL 747846, and the Olivers concede that they cannot identify where the Chief Special Master applied
We have considered the Olivers' remaining arguments and find them unpersuasive. Accordingly, the Judgment of the U.S. Court of Federal Claims is
Newman, Circuit Judge, dissenting.
Infant E.O. was described by his pediatrician, at his 6-month well-baby visit on April 9, 2009, as developing normally, temperature 97.4° F. He was given the third dose of the DTaP
E.O.'s parents obtained genetic analysis of both his and their DNA. E.O. was found to have a mutation of the SCN1A gene, which has become associated with "severe myoclonic epilepsy in infancy," also called "Dravet syndrome," as characterized by Dr. Dravet in 1978.
I respectfully dissent, for this is a classic case of vaccine injury, within the purpose, policy, and text of the Vaccine Act. Advances in scientific understanding of why some infants experience vaccine-related seizures and their tragic consequences, support the statutory plan.
It was known that about one half of one percent of apparently normal infants experience a serious adverse reaction to vaccine. See S. Hrg. 98-1060, at 21 (1984).
The Special Master held that E.O.'s "destiny" is to be mentally and physically disabled because of his SCN1A gene mutation. The Special Master held that it is irrelevant that E.O. experienced a classic Vaccine Act injury, and irrelevant whether the vaccine triggered or contributed to his ensuing disability. The Special Master discarded the studies that show at least half of the persons found to have the SCN1A mutation never manifest Dravet syndrome. The Special Master deemed it irrelevant that 20-30% of persons afflicted with Dravet syndrome do not have the SCN1A mutation.
The reported studies found that vaccination within the first 6 months of infancy almost always produced seizures and led to Dravet syndrome for infants having the SCN1A mutation, while vaccination after 12 months never produced seizures and Dravet syndrome. The studies show that both vaccination and the mutation have a role in Dravet syndrome. Nonetheless, my colleagues hold that if a genetic relationship to the injury can be found, the triggering role of vaccination is irrelevant.
Science is at last providing answers to why some infants manifest a severe reaction to vaccination. However, these are the infants for whom the Vaccine Act was enacted. Instead, HHS and the courts now exclude these infants from the Vaccine Act — in contravention of the statute and the legislative purpose.
THE EVOLVING SCIENCE OF VACCINE INJURY
HHS acknowledges that E.O.'s 6-month DTaP vaccination produced an immediate reaction of seizures and fever, squarely within the statutory vaccine injury.
The Petitioners cite several scientific articles that report studies of the role of vaccination when the SCN1A mutation is present. These articles illustrate evolving understanding, drawing on the capabilities of DNA analysis. I have placed these publications in chronological order, for they illustrate the growth of this area of scientific knowledge, as well as the continuing uncertainties.
M. Nieto-Barrera et al.,
Severe Myoclonic Epilepsy in Infancy. An Analytical Epidemiological Study, 30 REV. NEUROL. 620-24 (2000).
The authors report their study of patients afflicted in infancy with Severe Myoclonic
J.A. 1197 (internal citations omitted). The authors state that "[a] relative increase has been verified of the incidence of convulsions in the three first days that follow to the vaccination," id., and that "[w]ith independence of the differences among vaccines of the diverse manufacturers ... sufficient experimental data exist to imply to the endotoxin and to the germ pertussis in the neurological adverse reactions to the pertussis vaccination." Id.
Charlotte Dravet et al.,
Severe myoclonic epilepsy in infancy (Dravet Syndrome), in Epileptic Syndromes in Infancy, Childhood and Adolescence 89-113 (J. Roger et al. eds., 4th ed. 2005).
The authors review the scientific literature and de-scribe "Dravet syndrome." They note that some studies have concluded that "in a significant number of SME cases a genetic aetiology is likely ...." Id. at 90. The authors report that many studies confirm that the syndrome does not manifest exclusively in individuals with the SCN1A mutation. Id. at 108. The authors discuss their attempts to understand the biophysical properties of SCN1A gene mutations and find phenotype/genotype correlations, and state that the relationship between genotype and phenotype is "complex." Id. at 91. The authors state that:
Id. at 92.
Samuel F. Berkovic et al.,
De-novo mutations of the sodium channel gene SCN1A in alleged vaccine encephalopathy: a retrospective study, 5 LANCET NEUROL. 488-92 (2006).
The authors state that "[v]accination, particularly for pertussis, has been implicated as a direct cause of an encephalopathy with refractory seizures and intellectual impairment." Id. at 488 (Summary). They trace the association with SCN1A mutations, and state that "[t]he mechanism by which SCN1A mutations cause SMEI is unknown." Id. at 491. The authors state that some patients with the SCN1A mutation may develop the syndrome without a vaccine trigger, and also state:
Anne M. McIntosh et al.,
Effects of vaccination on onset and outcome of Dravet syndrome: a retrospective study, 9 LANCET NEUROL. 592-98 (2010).
The authors, reviewing the scientific literature, state that about 70-80% of children with Dravet syndrome have the SCN1A gene mutation, and about 20-30% do not have the mutation. Id. at 592. They report that about one-third of children with Dravet syndrome exhibited onset in less than 3 days after vaccination. The authors state that "[v]accination might trigger earlier onset of Dravet syndrome in children who, because of an SCN1A mutation, are destined to develop the disease." Id. at 592.
Blanca Tro-Baumann et al.,
A retrospective study of the relation between vaccination and occurrence of seizures in Dravet syndrome, 52(1) EPILEPSIA 175-78 (2011).
The authors state that for infants with SCN1A mutations,
Id. at 175 (Summary). They report that "[t]he majority of seizures occurred after DPT vaccinations and within 72 h after vaccination." Id.
The authors state that seizures after vaccination are "a common feature in Dravet syndrome and emphasize the need for preventive measures for seizures triggered by vaccination or fever in these children." Id. at 175.
Meral Özmen et al.,
Severe myoclonic epilepsy of infancy (Dravet syndrome): Clinical and genetic features of nine Turkish patients, 14(3) ANNALS OF INDIAN ACADEMY OF NEUROLOGY 178 (2011).
The authors studied patients having the SCN1A mutation, and discuss the complexities of the relation to vaccines. They summarize past studies, and state:
J.A. 1310 (internal citations omitted). The authors conclude that:
Nelia Zamponi et al.,
Vaccination and Occurrence of Seizures in SCN1A Mutation-positive Patients: A Multicenter Italian Study, PEDIATRIC NEUROLOGY XXX 1-5 (2013).
The authors acknowledge the controversy concerning the relation of vaccination to Dravet syndrome ("DS"), and consider whether vaccination should be withheld for infants with the SCN1A mutation. They state:
Id. at 2 (internal citations omitted). The authors are cautious about extrapolating vaccination recommendations from their results, although they state that "patients who experienced seizures close to vaccination had an earlier seizure onset and a higher frequency of status epilepticus during development." Id. at 4.
Valentina Cetica et al.,
Clinical and Genetic Factors Predicting Dravet Syndrome in Infants with SCN1A Mutations, 88(11) NEUROLOGY 1037 (2017).
This is a study of 200 persons having the SCN1A mutation, wherein 97 had Dravet syndrome, including borderline forms, and 103 did not have the syndrome. All 200 subjects were more than 24 months of age, which is when Dravet syndrome can usually be diagnosed; the sample had an average age of 18.58 years.
Of these subjects, the relation of seizure occurrence to Dravet syndrome was analyzed, with 182 patients having had seizures as their presenting symptom. The authors report that "age at first seizure and frameshift mutations were associated with Dravet Syndrome. The risk of [developing] Dravet Syndrome was 85% [if the first seizure occurred] in the 0- to 6-month group, 51% in the 6- to 12-month range, and 0% after the 12th month." Id. at 1037. The authors report that: "None of the patients who experienced their first seizure after 12 months of age developed Dravet syndrome." Id. at 1040. Thus, "an older age at seizure onset represents a protective factor against the risk of developing Dravet syndrome." Id.
APPLICATION TO E.O.
The government's position is that "E.O.'s mutation is the sole cause of his Dravet syndrome and his resulting neurological condition." J.A. 2. Although the science is still evolving, it is apparent that this simplistic statement is incorrect.
All of the reported studies show a role of vaccination in producing seizures in infants with the SCN1A mutation. The Petitioners agree that there is a relationship between E.O.'s genetic mutation and his seizures and ensuing disabilities; they argue that "his DTaP vaccination in conjunction, with his SCN1A mutation ... likely caused his seizure disorder, encephalopathy, and developmental delays." Reply Br. 1.
It is not known whether E.O. would have manifested Dravet syndrome without the vaccination. The only certainty is that E.O. experienced a dramatic reaction within a few hours of DTaP vaccination, that the seizures continued, and that there were developmental consequences. The Special Master so acknowledged, but leaped to the conclusion that "[a]lthough E.O.'s vaccinations may have caused a fever or otherwise triggered his first seizure, neither that initial seizure nor his vaccinations caused his Dravet syndrome or neurological complications." Oliver v. Sec'y of Health & Human Servs., No. 10-394V, 2017 WL 747846, at *2 (Fed. Cl. Feb. 1, 2017).
This conclusion does not withstand scrutiny. The scientific studies all show a reasonable likelihood that E.O.'s vaccination in his first 6 months triggered the adverse events he suffered. The seizures and fever on the evening of E.O.'s 6-month DTaP vaccination are recognized in the scientific literature as likely to have contributed to or triggered the Dravet syndrome in conjunction with the SCN1A mutation.
"Likelihood" is the standard of Vaccine Act recovery, for the Vaccine Act arose because certainty was not available. Until modern science discovered a genetic foundation for at least some vaccine injury, E.O.'s vaccine response would have been classified as a "Table Injury" and routinely entitled to the support of the Vaccine Act. Though science has begun to understand previously unexplained responses to vaccines, such understanding does not alter the Vaccine Act.
Until every infant is genetically analyzed before vaccination and all aberrant genes are identified, the Vaccine Act is the nation's response to potential vaccine-induced consequences such as Dravet syndrome. HHS is required to administer the Vaccine Act in accord with its text and purpose. From my colleagues' contrary ruling, I respectfully dissent.
Scientific "theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201." Daubert, 509 U.S. at 592 n.11, 113 S.Ct. 2786; see Fed. R. Evid. 201(b) ("The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."). However, the Olivers have failed to establish that this theory has garnered such widespread acceptance, as evidenced by the Chief Special Master's extensive discussion of articles with contradictory findings. See, e.g., Oliver I, 2017 WL 747846, at *15 (discussing "studies show[ing] that the occurrence of febrile seizures following vaccinations does not change the clinical course or outcome of Dravet syndrome"). Therefore, we decline to take judicial notice of the 2017 Article. See Brown v. Piper, 91 U.S. 37, 42-43, 23 S.Ct. 200 (1875) (explaining that a courts' power to take judicial notice "is to be exercised... with caution," that "[c]are must be taken that the requisite notoriety exists," and that "[e]very reasonable doubt upon the subject should be resolved promptly in the negative"). To the extent the Olivers ask us to consider findings in the 2017 Article, "studies that were not before the [Chief S]pecial [M]aster are not appropriate for consideration on appellate review." Whitecotton ex rel. Whitecotton v. Sec'y of Health & Human Servs., 81 F.3d 1099, 1104-05 (Fed. Cir. 1996) (citation omitted).