# ()RICIENAt

@nitr! btatts @ourt

# otfelers[ @lsimg

No. 

### 04-l128

### V (Filed Under Seal:

### April 18,2016) (Reissued: 

### May 3. 20161. 

### UNPUBLISHED MAY

## - 3 20t6 U.S. COURT OF FEDERAL CI-AIMS 

### DARIUS AND TERESITA CANUTO. on behalf of 

### DAC, Petitioners, 

### National Childhood Vaccine 

### Injury Act, 42 U.S.C. $300aa-1-34; 

### Motion for Review; Pro se Petitioners 

### THE SECRETARY OF 

### HEAI-TH 

### AND IJUMAN SERVICES,Respondent.



### Darius andTeresita Canuto, 

### pro s€,petitioners. 

### Voris 

### EdwardJohnson, 

### United States Department 

## of Justice, 

## Civil Division, Washington, 

### DC, for respondent. 

### OPINION AND ORDER 

### YOCK, Senior Judge.
This case comes before the court on 

### petitioners' motion for 

### review 

### of Special Master 

### Hastings' decision, 

### which denied the 

### petitioners' claim for compensation under the 

### National Vaccine 

### Injury Compensation 

### Program. 42 U.S.C. $

### 300aa-10 el seq 

### (2012 ed.).

### After thorough consideration 

### of the entire record in this matter, the court

## will deny 

### petitioners' motion and

### aftlrm the special master's decision. 

### FACTUAL BACKGROUND Special Master Hastings provided an exhaustive 

### recitation of the facts in his 

### decision. Dec. at 8- 

### 13.The court refers readers tothat decision 

### for a comprehensive

* This opinion originally was issued under seal onApril 18,2016. The court afforded the parties anopportunity to propose redactions in the opinion prior to its reissue. No such redactions wcre proposed. 

# FILEDdiscussion of the facts 

### of this case. However, the court

### will provide a

### brief overview

### of

the case's most 

### pertinent facts 

### for the convenience 

### ofthe reader. 

### Petitioners' son 

### ("DAC") was born on

### July 17, 2000, 

### in Bocaue, 

### Philippines. Ex. 4 at 1

## . His physicians noted that he was a

### "well baby" and in good 

### health. Ex. 13at 1. He received several routine early 

### childhoodvaccines, 

### including 

### two doses

### ofa combined diphtheria, tetanus, and

### whole-cell pertussis as

### well as a hepatitis 

### B

### vaccine.r Ex. 13at 1- 2.
Several months later, petitioners and 

### their son relocated to Los Angeles, 

### Califomia, where 

### DAC received 

### additionalvaccinations, 

### including avaccine 

### for diphtheria, tetanus, andacellular 

### pertussis. 

### Ex. I5at 1

### -3. Around this time, 

### DAC also received vaccinations 

### for haemophilus influenzae type b, measles, mumps, rubella, and chickenpox. 

### Beginning at his oneyear checkup, onAugust 

### 3,2001, 

### DAC's physicians noted signs of 

### potential developmental 

### delay. Ex. 17. During this

### visit DAC received a vaccination 

### for measles, mumps, and 

### rubella. Over the next 

### few months, 

### DAC continued to struggle

### with speech and language development and was diagnosed 

### with severe 

### to profound expressive and receptive language disorder on October 30, 

### 2003. 

### Ex.34 at2. At this 

### point, 

### DAC had a40

### word vocabulary anddid 

### not speak morethan one 

### word at a 

### time. Id. On 

### March 15,2004, 

### DAC met

### with adevelopmental behavioral pediatrician, 

### who diagnosed 

### him

### with autism. Ex. 39 at

### 4, At this stage, 

### his linguistic skills tested at a developmental age

### of 30.4 months and his

### chronological agewas 44 

### months. 

### DAC displayed delayed language 

### skills, 

### difficulty interacting 

### with peers, and 

### limited play 

### skills. Ex. 39 at

## 3. In March

### of2006, apsychoeducational assessment 

### ofDAC confirmed his 

### prior autism 

### diagnosis. Ex. 53. On

### July 6,2004, Darius and Teresita Canuto

### filed a

### short-form autism 

### petition on behalf 

### of 

### DAC. On December 18, 2015, the special master issued his decision, Canuto v. Sec'y of

### Health 

### & Human.9ervs., 

### No. 

### 04-l 128V, 2015

### WL 9854939 (Fed' 

### Cl. Sp. 

### Mstr' Dec. 18, 2015),

### which denied 

### petitioners' 

### claim. Petitioners 

### filed their motionfor review 

### ofthe special master's decision on January 

### 12,2016. ECF 

### No. 

### 61. The respondent 

### filed its response on 

### February 

### I1,2016. ECF 

### No. 65.

IThe special master noted that DAC's vaccination outside ofthe United States could potentially be fatal to petitioners' claim. Dec at 19. Petitioners respond that this technical defect should be ignored becausevaccines manufactued outside ofthe United States are sometimes administered domestically. Pet'r's Memorandum ofObjections at 16-17. Regardless, because the special master's decision does not rely onthis issue, the court does not reach the question of whether this potential defect would have required the denialofpetitioners' claim. 

## -2-

### STANDARDS

This court has

### jurisdiction to 

### review aspecial master's decision 

### in aVaccine 

### Act case upon a

### properly filed petition for 

### review. 42 

### U.S.C. $

### 300aa-12(e)(l). The court may set aside any 

### of the special master's 

### findings 

### of fact or conclusions 

### of law 

### ifthose determinations were 

### "arbitrary, capricious, an abuse 

### ofdiscretion, or otherwise not 

### in accordance 

### with the law

## ." Id. at 12(e)(2)(B).
The court applies 

### different standards to conclusions 

### of law,findings 

### of fact, and 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 

### & Human Servs.,970 F.2d 863, 87 1

### no. 10 (Fed. 

### Cir. 1992); 

### Paffurd v. Sec'y of

### Health and Human 

### Sens., 64 Fed. 

### Cl. 19, 27 (2005), 

### aff'd,451 F.3d 1352 (Fed. 

### Cir. 

### 2006). The court reviews conclusions 

### oflaw under the 

### "not in accordance 

### with the 

### law" standard," 

### findings 

### of fact under the arbitrary and capricious standard, anddiscretionary 

### rulings under the "abuse 

### of discretion" standard. Saunders v. Sec'y of 

### Health 

### & Human Servs.,25 

### F.3d 1031, 1033 (Fed. 

### Cir. t994).
The 

### arbitrary and capricious standard is

### "well understood to bethe most deferential [standard] 

### possible." 

### Munn,970F.2dat870. 

### "Ifthe special 

### master'has considered the relevant evidence 

### ofrecord, drawn plausible inferences andarticulated a 

### rational basis

### for the decision, reversible error

### will be extremely 

### difficult to 

### demonstrate."' 

### Hibbardv. Sec'y of

### Health 

### & Human Servs.,698 F.3d at 1363 

### (quoting Hines on 

### Behalf of Sevier v. Sec'y of 

### Health 

### & Human Servs., 940 

### F.2d 1518, 1528 (Fed. 

### Cir. 1991)). "Congress assignedto agroup 

### of specialists, the Special Masters 

### within the 

### Court of Federal Claims, the unenviable 

### job of sorting through these 

### painful cases and, based upon

### their accumulated expertise 

### in the

### field,judging the merits of the 

### individual cf

### aims." Deribeaw ex 

### rel. Deribeaux v.Sec'y of 

### Health 

### & Human Servs.,717 F.3d 1363, 1366 (Fed. 

### Cir. 2013) (quoting Hodges v. Sec'y of 

### Health 

### & Human,Servs.,9 F.3d 958, 961 (Fed.

### Cir. 1993) 

### (internal citations 

### omitted)). 

### It is not the role 

### of this court

### to "reweigh thefactual evidence," "assess whether the special master 

### correctly evaluated the evidence," 

### or "examine the probative value 

### of the evidence or the 

### credibility of the 

### witnesses." Lampe v. Sec'y of 

### Health 

### & Human Servs.,219 

### F.3d 1357, 1360 (Fed. 

### Cir. 2010).

2"Under theVaccine Act, lthe Circuit] review[s] adecisionofthe special master under the same standard asthe Court of Federal Claims." Masias,634 F.3d at 1287.


## -3-

### DISCUSSION

Petitioners contend that the special master erred in rejecting their 

### theory

## of causation between vaccines3 and

### autism. To be successful, petitioners 

### "must do more than demonstrate 

### a'plausible' or'possible' causal 

### link between thevaccination and 

### injury." Il'.C. v. Sec'y of 

### Health 

### & Human Servs.,704 

### F.3d 1352, 1356 (Fed. 

### Cir. 2013). The statutory standard requires "a 

### petitioner to demonstrate that the vaccine more 

### likely than not caused the 

### 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 orscientifrcally 

### certain." Moberly,592 F.3d

### at 1322 

### (citing Knudson v. Sec'y of 

### Health 

### & Human.Servs., 35 F.3d 543, 548-49 (Fed. 

### Cir. 1994)).
The special master analyzed 

### petitioners' theory under the three-prong test

### for causation 

### in

### offtable claims,a as set

### forth in

### Althen v. Sec'y of 

### Health 

### & Human Servs., 418 

### F.3d 1274, 1278 (Fed. 

### Cir. 2005).5 Under

### Althen,petitioners must demonstrate by preponderant evidencethat vaccination brought about the alleged 

### injury by 

### providing: 

## (l)

a medical 

### theory causally connecting thevaccination andthe 

### injury; (2) a 

### logical sequence 

### ofcause and effect showing that thevaccination was the reason

### for the 

### injury; and 

### (3) ashowing 

### of aproximate temporal relationship between vaccination and 

### injury. 

### Althen,4lS F,3d 

### at 1278. 

### If a petitioner satisfies this burden, they are entitled to recover unless thc government dcmonstrates 

### by a prcponderance 

### ofthc cvidence that the 

### injury was 

### in fact caused by unrelated 

### factors. 1d
The special master determined that petitioners had not carried

### their burden,

### finding thatthey had not 

### satisfied any

### of the

### Althentest's three 

### prongs. Dec. 

### at26-27. Indeed, the special master concluded that petition ers had 

### "failedto present even aprima 

### facie case that any 

### of 

### DAC's vaccinations played any role 

### in causing or aggravating his 

### autism." Dec. at24 (emphasis 

### included). The special master based his decision to a considerable extent on thetestimony and

### credibility of the 

### parties' experts, but he also discussed 

### DAC's medical records andthetestimony of his parents andother

### family members describing 

### DAC's condition.
The special master 

### meticulously detailedthis evidence, 

### providing acomprehensive and thorough 

### analysis. Dec. at

### 8-13. Particularly, the special master gave

### weighty consideration to 

### DAC's medical 

### records. The special master noted a

### conflict between 

## I Petitioners' allegethatthe measles-mumps-rubella, diphtheria-telanus-pertussis, diphtheria+etanus'acellular pertussis, hepatitis B, and haemophilus influenzae type b vaccines, or some combination thereof, caused DAC's autism. aAutism is not listed onthe Vaccine lnjury Table and, therefore, petitioners must demonstrate that the vaccines in question were the cause-in-fact of DAC's injuries. $300aa-13(a)(l)(B); $300aa-1 1(c)(lXCXii). t petitioners submitted ashort-form autismpetition. To the extent that petitioners allege other, non-autism-based causation theories, those theories cannot be raised here because they were not alleged inthe petition considered by the special master. 

## -4-

### DAC's contemporaneous medical records and 

### petitioners' 

### testimony. Dec. at 12.



### Although petitioners allege that 

### DAC suffered 

### from seizures, his contemporaneous medical records showed no support 

### for this 

### claim. The special master found that thiswas 

### particularly troubling since petitioners contended that 

### DAC suffered nine 

### different seizures over athree-year 

### period. Id. 

### (citingEx.2l at

### 2). The special master commented that 

### for 

### DAC's pediatricians to 

### "not recognize and not record adescription 

### of aseizure 

### in one instance 

### would be unusual

### enough." 

## 1d Ultimately, the special master concluded that 

### DAC's medical records provided the most credible evidence on 

### DAC's symptoms, noting that, where 

### conflict exists, medical records are 

### "frequently accordIed] more 

### weight" than 

### conflicting subsequent

### testimony. 1d
The special master next considered the

### testimonyfrom the 

### parties' experts, Dr. 

### Max Wiznitzer, for respondent, and 

### Dr. 

### Mark Levin, for 

### petitioners. Dec. at

### 20-28. The special master began his analysis 

### with acomparison 

### of 

### Dr. Wiznitzer's and 

### Dr. 

### Levin's credentials. Dec.

### at 

### 15.The special master found that 

### Dr. Wiznitzer was

### very credible, 

### citing hisspecialty in pediatrics anddevelopmental disorders and extensive 

### history

### with neurology and

### autism.

## /d. Conversely, the special master noted that 

### Dr. Levin had 

### limited experience 

### with autism and found that 

### Dr. 

### Levin's hisspecialty in the fields 

## of oncology and hematology lent his 

### opinion less

### weight. The special master then turned 

### to Dr. 

### Levin's theory connecting the DTP vaccine and 

### autism. Dec. at21.


### Dr. 

### Levin based histheory on the general rise

### ofautism rates in the 

### United States and the

### timing between vaccination andautism onset 

### in 

### DAC's specific 

### case' Levin Report at

### 3-4. The special master 

### did not

### find Dr. 

### Levin's theory credible, describing 

### it
as

### "largely, 

### if not 

### entirely, unsupported

### speculation." Dec. at

### 21. The special master found that 

### Dr. Levin did not actually 

### offer any 

### scientific support 

### for the notion that the 

### DTPvaccine can cause autism and concurred

### with Dr.Wiznitzer's observation that 

### Dr. 

### Levin "offer[ed] no causaltheory 

### whatsoever." 

## Id. (citing Ex.

### A at

### 6). The special master also noted 

### Dr. 

### Levin's admission that this 

### theory is debatable, 

### finding Dr. 

### Levin's opinion "equivocal in addition to 

### unsupported." 

## Id. Thespecial master concludedthat 

### Dr. Levin's opinion on this 

### point was 

### ultimately 

### "wholly unpersuasive regarding every element necessaryto 

### proving causation-in-fact." Id.
The special master was 

### similarly unpersuaded 

### by Dr. 

### Levin's opinion onwhether vaccines caused autism in 

### DAC specifically. The special master found 

### Dr' Levin's opinion inadequate because 

### itwas "predicated 

### entirely" on the allegedtemporal relationship between 

### DAC's vaccinations and 

### injury. As the special master noted, 

### "a temporal connection alone is not enough to demonstrate 

### causation." Dec.

### at22 (quoting LaLonde v. Sec'y of 

### Health 

### & Human Servs.,'146 

### F.3d 1334, 1341 (Fed. 

### Cir. 2004)).
The special master was also troubled by 

### Dr. Levin's confusion over the record. Dec. at

### 22-23. The special master noted that 

### "Dr. Levin's very 

### limited discussion 

## of DAC's medical 

### history was mistaken onthe 

### critical point of identifoing thetype

### of


## -5-vaccinations that 

### DAC actually 

### received." Dec.

### at22. The special master commented

that 

### Dr. 

### Levin's confusion resulted 

### in an expert report that was 

### "actually quite 

### incoherent." Dec. at22-23. 

### In sum, the special master weighed the opinions 

### of Dr. 

### Levin and 

### Dr. Wiznitzer6 on 

### petitioners' theoryfor causation anddetermined that the latter 

### "was far more 

### persuasive." Dec.

### at24. The special master found that 

### Dr.Wiznitzer 

### "fully rebutted" 

### Dr. 

### Levin's "veryweak" opinion andthat 

### Dr. Wiznitzer was both better 

### qualified and better supported by the

### facts. 

## Id. In thespecial master's

### view, 

### Dr.Wiznitzer's opinion provided 

### "an explanation of 

### DAC's condition that better accounts 

### for 

### DAC's complete medical 

### history." 1d
The special master's assessment 

### of the experts, medical records, and other evidence and conclusion that petitioners had failed to demonstrate a causal 

### link between 

### DAC's vaccines and autismwas not 

### arbitrary or 

### capricious. The record reflects that the special master 

### carefully and 

### thoroughly weighed the evidence before 

### him anddetermined that petitioners had not provided a 

### legally probable theory 

### of causation-in-fact. The special master appropriately evaluated the 

### parties' expertwitnesses' 

### credibility, citing their credentials, mastery

### of 

### DAC's medical records, and

### ability to support their theories. The court also notesthat causation theories based on autism have been 

### uniformly rejected.

### An initial round 

### oftest claims based on autismtheories were brought and denied as part 

### of an omnibus 

### proceeding. Cedillo v. Sec'y of

### Health 

### & Human Servs., 617 

### F.3d 1328 (Fed. 

### Cir. 2010); Hazlehurst v. Sec'y of 

### Health 

### & Human,9ervs., 604 F.3d 1343 (Fed. 

### Cir.20l0); Snyderv. Sec'y of

### Health 

### & Human,lervs., 88 Fed. 

### Cl. 706 (2009); 

### Dwyer v. Sec'y of 

### Health 

### & Human Servs., 

### No. 03-1202V ,2010

### WL 892250 (Fed. 

### Cl. Spec. 

### Mstr. 

### Mar.12,201); Kingv. Sec'y of

### Health 

### & Human Servs., 

### No. 03- 

### 584V,2010 WL892296 (Fed. 

### Cl. Spec. 

### Mstr. 

### Mar 12,2010); 

### Meadv. Sec'y of 

### Health 

### & Human Servs., 

### No. 03-215V, 2010

### WL 892248 (Fed. 

### Cl. Spec. 

### Mstr. 

### Mar. 12,2010). Subsequently, special masters have rejected numerous claims based on autism.?

6 'l'he court notesthat the petitioners, themselves, provided the special master with documenls purporting to demonsfate a causal link between vaccines andautism. The special master found that petitioners were not qualified to make assertions basedon these submissions under 42 U.S.C. $300aaa13)(a)(l). In the altemative, the special master found that Dr. Wiznitzer's contrary opinion was more persuasive.

7See e.g.,Blake v. HHS, No. 03-31V, 2014WL 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, 20 |3WL 3755954 (Fed. Cl. Spec. Mstr. Hastings May 16, 2013); Coombs v. HHS, No. 08-81 8V, 2014 WL 1677584 (Fed. Cl. Spec. Mstr. Hastings Apr. 8, 2014); Long v. HHS, No. 08-792V,2015 WL l0l 1740 (Fed. Cl. Spec. Msrr. Hastings Feb. 19, 2015); Brook v. HHS, No. 04-405V, 2015 WL 3799646 (Fed. Cl. Spec. Mstr. Hastings May 14, 2015); Holt v. HHS, No. 05-136V, 2015WL 4381588 (Fed. Cl. Spec. Mstr.Vowell June 24, 2015); Lehner v. HHS, No, 08-554V, 2015 WL 5443461 (Fed. Cl. Spec. Mstr. Vowell July 22, 2015); Miller v. HHS, No. 02-235V, 2015 WL 5456093 (Fed. Cl. Spec. Mstr. Vowell August 18,2015); Allen v HHS, No, 02-1237V,2015 WL 6160215 (Fed. CI. Spec. Mstr. Vowell Sept.26,2015): R.K. v. HHS (Fed. Cl. Spec. Mstr.Vowell Sept.28,20t5). 

## -6-

### It is not the role 

### of this court to reconsider the 

### "probative value of the evidence or

the

### credibility of the

### witnesses." 

### Lampe,2l9 F.3d at 

### 1360. Here, the special master "has considered the relevant evidence 

### ofrecord, drawn plausible inferences andarticulated a rational basis 

### for the

### decision" and,therefore, the court

### will not disturb his decision 

### in this case. 

### Hines,940 F.2d at 1528. 

### CONCLUSION Accordingly, petitioners' 

### MOTION for review is 

### DENIED. The special master's decision is

### affirmed. The 

### Clerk is hereby directed to enter

### judgment according to the special master's decision. 

### IT IS SO 

### ORDERED.

Robert J.

### Yock



### -7

-