from the United States Court of Federal Claims in No.
1:05-vv-00626-LJB, Senior Judge Lynn J. Bush.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly
Hills, CA, argued for petitioner-appellant.
Edward Johnson, Jr., Vaccine/Torts Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellee. Also represented by Benjamin C.
Mizer, Vincent J. Matanoski, Rupa Bhattacharya, Linda Sara
Dyk, Mayer, and Hughes, Circuit Judges.
Hughes, Circuit Judge.
Contreras appeals from a U.S. Court of Federal Claims
judgment upholding a Special Master's denial of
compensation for his Guillain-Barre Syndrome and Transverse
Myelitis allegedly caused by vaccinations. Because the
Special Master improperly diagnosed Mr. Contreras and failed
to consider relevant evidence related to his Guillain-Barre
Syndrome, we vacate and remand for further proceedings
consistent with this opinion.
16, 2003, Jessie Contreras (Mr. Contreras), then thirteen
years old, received the Tetanus-Diphtheria vaccine and his
third inoculation of the Hepatitis B vaccine. Before he
received these vaccinations, Dr. Fred Kyazze conducted a
complete physical examination and determined that Mr.
Contreras was healthy.
twenty-four hours later, Mr. Contreras complained to his
mother that he was experiencing back pain and numbness in his
hands. She immediately took Mr. Contreras to the emergency
room, where Dr. Mark Wagner, a board-certified emergency room
physician, diagnosed him with atypical Guillain-Barre
Syndrome (GBS), a peripheral nervous system disease that
causes descending paralysis from the upper to lower
extremities. J.A. 281; 586. Mr. Contreras's symptoms
rapidly escalat-ed-within hours he had difficulty standing or
walking, weakness in his arms, and required catheterization.
Mr. Contreras was ultimately transferred to the pediatric
intensive care unit at Miller Children's Hospital.
admittance at Miller Children's, Mr. Contreras was
described as presenting "progressive neuromuscular
deterioration and life-threatening respiratory failure."
J.A. 288. Over the next three months, Mr. Contreras suffered
from a variety of symptoms caused by his illness, including
quadriplegia and acute respiratory failure. J.A. 289. Mr.
Contreras was discharged from Miller Children's on
September 11, 2003, with a discharge diagnosis of Transverse
Myelitis (TM), an inflammatory disease of the spinal
cord. J.A 289; J.A. 608.
15, 2005, Mr. Contreras's father filed a petition for
vaccine compensation under the Vaccine Act, alleging that Mr.
Contreras suffered TM and GBS as the result of the
vaccinations administered on June 16, 2003. Mr.
Contreras's petition included affidavits from: (1) Dr.
Kyazze; (2) Dr. Wagner; and (3) Dr. Jeremy S. Garrett, a
general pediatrician and critical care physician, who treated
Mr. Contreras during his admission to Miller Children's
and ultimately diagnosed him with TM. Mr. Contreras also
filed the expert report of pediatric neurologist Dr. Charles
M. Poser, M.D., who concluded that he developed GBS and TM as
a direct result of the administration of the vaccines.
October 7, 2005, the Secretary of Health and Human Services
filed her Vaccine Rule 4 Report indicating that Mr. Contreras
was not entitled to compensation because he had failed to
establish, by a preponderance of the evidence, that either
vaccine caused his condition. The Secretary also filed the
expert report of pediatric neurologist John T. Sladky, M.D.,
who opined that Mr. Contreras only suffered from TM, not both
TM and GBS, and that the time interval-less than twenty-four
hours between the administration of Mr. Contreras's
vaccines and the onset of his TM-was too soon for one or both
of the vaccinations to have caused his condition.
address whether Mr. Contreras's illness had occurred
within a medically-appropriate time-frame, Mr. Contreras
submitted the medical expert report of pediatric neurologist
Lawrence Steinman, M.D., who concluded that Mr. Contreras
developed both GBS and TM caused by a rapid adverse
immunological response to both vaccinations. In response to
Dr. Steinman's report, the Secretary filed an expert
report from immunologist J. Lindsay Whitton, M.D., Ph.D., who
agreed that Mr. Contreras suffered from both GBS and TM, but
disputed Dr. Steinman's theory of causation and the
timing of Mr. Contreras's condition in relation to his
vaccinations, reiterating that twenty-four hours was not
enough time for either TM or GBS to develop after
April 5, 2012, the Special Master issued his first decision
(Contreras I) denying Mr. Contreras compensation
under the Vaccine Act. See J.A. 30-64. The Special
Master determined that Mr. Contreras only suffered from TM,
not both TM and GBS. The Special Master then concluded that
Mr. Contreras failed to establish that the TM arose within a
"medically appropriate" timeframe following his
vaccinations under the ...