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The U.S. Court of Appeals for the Federal Circuit has reversed a ruling by the U.S. Court of Federal Claims that two petitioners were entitled to compensation under the National Vaccine Injury Compensation Program, finding that the claims court was mistaken in rejecting findings of a special master. A judge dissenting with respect to one petitioner said that while the Federal Circuit’s review of special masters’ rulings in vaccine cases is deferential, it is not a rubber stamp. The claims court held that Mona Porter and Claudia Rotoli — whose case was brought by her estate’s personal representative, Amanda Knight — were entitled to compensation, finding that they had contracted autoimmune hepatitis from three-dose hepatitis B vaccines in the 1990s. The Federal Circuit’s combined Nov. 22 ruling in Porter v. Secretary of Health and Human Services and Knight v. Secretary of Health and Human Services reversed and remanded the case with instructions to affirm the special master’s determination that neither can recover under the National Vaccine Injury Compensation Program, known as the Vaccine Act. Both Porter and Rotoli filed petitions in 1999 seeking compensation under the Vaccine Act. A special master held joint hearings on the petitioners’ cases and other cases in September 2007 and March 2008. The hearings focused principally on testimony from the government’s experts — immunologist Dr. Burton Zweiman and hepatology specialist Dr. Raymond Koff — and the petitioners’ expert, Dr. Joseph Bellanti, an immunologist. The special master denied Porter’s and Rotoli’s petitions in October 2008, concluding that “none of [Dr. Bellanti's] theories presents a reliable explanation of how the hepatitis B vaccine can cause autoimmune hepatitis.” He also found that neither petitioner offered a medical theory causally connecting the hepatitis B vaccine to autoimmune hepatitis. On Rotoli’s petition, the special master found that she failed to show a proximate temporal relationship between her vaccinations and the autoimmune hepatitis. On Porter’s petition, the special master found that her use of the acne drug minocycline was the likely cause of her autoimmune hepatitis. The claims court rejected the special master’s factual findings on the ground that he erroneously used his assessment of the petitioner’s expert’s credibility to reject the expert’s testimony. The claims court made its own findings on the cases, which opposed all of the special master’s findings about causation for the petitioners’ autoimmune hepatitis and the temporal relationship between Rotoli’s vaccine and her disease. Judge Sharon Prost authored the majority ruling, joined by Chief Judge Randall Rader. Judge Kathleen O’Malley wrote a concurring-in-part, dissenting-in-part opinion. Prost wrote that the claims court incorrectly applied the Federal Circuit’s 2009 ruling in Andreu v. Secretary of Health and Human Services to set aside the special master’s findings because the special master allegedly erred when he considered the credibility of the petitioners’ expert witness. She noted that, according to Andreu, a special master cannot “cloak the application of an erroneous legal standard in the guise of a credibility determination, and thereby shield it from appellate review.” Prost observed that in subsequent cases, the Federal Circuit “has unambiguously explained that special masters are expected to consider the credibility of expert witnesses in evaluating petitions for compensation under the Vaccine Act.” “The Claims Court’s blanket approach of setting aside the factual findings without ever determining whether the findings were arbitrary and capricious failed to accord the deference to those findings required by the Vaccine Act and constitutes legal error,” Prost wrote. Prost also concluded that the special master’s determination that the petitioners were not entitled to Vaccine Act compensation was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law: “The special master’s decision reveals a thorough and careful evaluation of all of the evidence including records, tests, reports, and medical literature, as well as the experts’ opinions and their credibility.” O’Malley agreed with the majority on Rotoli’s claim, but found that Porter is entitled to compensation. Shey wrote that she cannot endorse the special master’s pervasive errors in his “credibility” and “demeanor” assessments, the erroneous legal standards he used in the case, and the double standard he applied when evaluating both sides’ evidence. “While our review of special masters’ decisions in Vaccine Act cases is deferential, it is not a rubber stamp. And our standard of review is not a license for special masters to discount medical literature on a whim or misapply legal standards,” O’Malley wrote. O’Malley also rejected the majority’s interpretation of the Federal Circuit’s prior case law and said its opinion “takes our statements that credibility assessments of experts are permissible in Vaccine Act cases and interprets them to mean that credibility assessments are expected. That is not the law, and it invites, or at least tolerates, the very mischief that occurred in these cases.” O’Malley disputed the special master’s findings in the Porter case on several grounds. She found that he discrediting a medical textbook and two case studies supporting Bellanti’s theory; placed “great weight on an imagined omission” in an article that otherwise supported Bellanti’s theory; held Porter to an unreasonably high standard by requiring her to identify when her disease began; and erroneously required Porter to disprove that minocycline was an alternative cause of her autoimmune hepatitis. On the Rotoli claim, O’Malley agreed with the majority that the special master’s rejection of her claim was based on independent grounds “within the proper scope of his discretion.” The Justice Department, which represented the U.S. Department of Health and Human Services, declined to comment. Porter’s and Knight’s lawyers at Boston-based vaccine litigation boutique Conway, Homer & Chin-Caplan did not respond to requests for comment. Sheri Qualters can be contacted at [email protected].

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