Case: 19-1379 Document: 43 Page: 1 Filed: 06/26/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ HOLLY AUSTIN, PARENT OF K.A., A MINOR, Petitioner-Appellant v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee ______________________ 2019-1379 ______________________ Appeal from the United States Court of Federal Claims in No. 1:05-vv-00579-LKG, Judge Lydia Kay Griggsby. ______________________ Decided: June 26, 2020 ______________________ HOLLY AUSTIN, Rangeley, ME, pro se.

MOLLIE GORNEY, Vaccine/Torts Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by JOSEPH H.

HUNT, C. SALVATORE D'ALESSIO, HEATHER LYNN PEARLMAN, CATHARINE E. REEVES. ______________________ Before MOORE, O’MALLEY, and HUGHES, Circuit Judges.

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PER CURIAM.

Holly Austin appeals a decision of the United States Court of Federal Claims that affirmed the Special Master’s decision denying Ms. Austin compensation under the Na- tional Vaccine Injury Act. Because the Special Master did not err in deciding that Ms. Austin failed to prove that K.A., her son, experienced a post-vaccination encephalopa- thy, we affirm.

I In 2005, Ms. Austin filed a petition on behalf of her mi- nor son, K.A., for compensation under the National Vaccine Injury Act, 42 U.S.C. §§ 300aa-1–34. According to Ms. Aus- tin, the routine childhood vaccinations K.A. received in 2003 and 2004 triggered and then exacerbated an autoim- mune encephalopathic process that resulted in K.A. expe- riencing seizures and developmental regression.

In a thorough, almost 40-page opinion, the Special Master concluded that Ms. Austin failed to establish enti- tlement to compensation. Austin v. Sec’y of Health & Hu- man Servs., No. 05-579V, 2018 WL 3238608 (Fed. Cl. May 15, 2018) (Special Master Op.), review denied, decision aff’d, 141 Fed. Cl. 268 (2018). The Special Master reviewed K.A.’s medical records; reports from the Secretary’s expert, Dr. Gregory Holmes, and Ms. Austin’s expert, Dr. Yuval Shafrir; submitted medical literature; and the parties’ briefs. From this record, the Special Master concluded that Ms. Austin did not provide preponderant evidence for any of the Althen prongs. See Althen v. Sec’y of Health & Hu- man Servs., 418 F.3d 1274 (Fed. Cir. 2005). In particular, he found that the record evidence did not support that K.A. experienced an encephalopathy, vaccine-induced or other- wise. Special Master Op. at *23–24. The Special Master also determined that a hearing was unnecessary, given the well-developed record and his familiarity with this type of case, generally, and with Ms. Austin’s expert witness, in Case: 19-1379 Document: 43 Page: 3 Filed: 06/26/2020

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particular. Id. at *22, *28. The Special Master therefore entered a ruling on the record denying compensation.

Ms. Austin sought review of the Special Master’s deci- sion in the United States Court of Federal Claims, making many of the same arguments she makes in her appeal to this Court. The Court of Federal Claims affirmed the Spe- cial Master’s decision. Austin v. Sec’y of Health & Human Servs., 141 Fed. Cl. 268 (2018).

Ms. Austin timely appealed. We have jurisdiction un- der 42 U.S.C. § 300aa-12(f).

II “We review an appeal from the Court of Federal Claims in a Vaccine Act case de novo, applying the same standard of review that court applied in reviewing the special mas- ter’s decision.” Milik v. Sec’y of Health & Human Servs., 822 F.3d 1367, 1375–76 (Fed. Cir. 2016) (citations omitted).

We will only overturn the Special Master’s findings of fact or conclusions of law that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C. § 300aa-12(e)(2)(B); Moriarty by Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1327 (Fed. Cir. 2016). “[R]eversible error is extremely difficult to demonstrate if the special master has considered the rel- evant evidence of record, drawn plausible inferences and articulated a rational basis for the decision.” Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (internal quotations omitted).

“A petitioner seeking compensation under the Vaccine Act must show, by a preponderance of evidence, ‘that the injury or death at issue was caused by a vaccine.’” Milik, 822 F.3d at 1379 (quoting Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1341 (Fed. Cir. 2010); U.S.C. §§ 300aa–11(c)(1), –13(a)(1). In an “off-Table In- jury” case such as this one, a petitioner must prove causa- tion-in-fact, i.e., by showing by a preponderance of the Case: 19-1379 Document: 43 Page: 4 Filed: 06/26/2020

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evidence: (1) a medical theory causally connecting the vac- cination to the injury; (2) a logical sequence of cause and effect demonstrating that the vaccination caused the in- jury; and (3) a proximate temporal relationship between the vaccine and the injury. Althen, 418 F.3d at 1278.

These are the so-called Althen prongs. Ms. Austin there- fore had to prove, by preponderant evidence, that the vac- cines K.A. received in 2003 and 2004 were the cause-in-fact of K.A.’s claimed injury—an encephalopathy leading to de- velopmental regression.

Though the Special Master analyzed each of the Althen prongs, he correctly identified a threshold issue that im- pacts all three. Special Master Op. at *23–28. Ms. Austin’s causation theory depends on a finding that K.A. experi- enced an encephalopathy. Id. at *23. The Special Master found that K.A.’s medical records contained no evidence that K.A. experienced any encephalopathy, let alone a vac- cine-induced one. Id. (“The facts from the medical record, however, do not support the conclusion that K.A. experi- enced any kind of encephalopathy reaction after his July 29, [2003], vaccinations (or subsequent vaccinations in December [2003] and June [2004]).”). This finding was based on a full review of the record and was neither arbi- trary nor capricious.

In so finding, the Special Master noted that none of the medical professionals who evaluated K.A. “ever proposed that he suffered from an encephalopathic reaction.” Id. at *24. And, he contrasted K.A.’s medical records with the “exceedingly rare cases . . . establish[ing] an encephalopa- thy resulting in ASD-like symptoms,” noting that in K.A.’s case “there are no records establishing any sort of proxi- mate temporal reaction to the vaccines that would support a finding that K.A. experienced such an encephalopathy.”

Id. at *24 n.23. Though K.A. experienced a seizure the day of his July 2003 vaccinations and on several more occasions in 2003 and 2004, as the Special Master noted, “proof of Case: 19-1379 Document: 43 Page: 5 Filed: 06/26/2020

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seizures alone is generally not considered sufficient to es- tablish an encephalopathy.” Special Master Op. at *23.

Ms. Austin argues that the Special Master erred in this determination for several reasons that revolve around her contention that, in 2003 and 2004, autoimmune encephalo- pathy was poorly understood. Pet. Br. 39. Ms. Austin con- tends that this lack of understanding meant that K.A. was not medically evaluated in a way that would produce evi- dence of an autoimmune encephalopathy. She also con- tends that the Special Master relied on the table definition of encephalopathy instead of allowing for advances in the scientific understanding of the condition. Finally, Ms. Aus- tin argues that the Special Master should have provided her the opportunity to present evidence on advances in un- derstanding autoimmune encephalopathy in a hearing.

As an initial matter pertinent to all three of these argu- ments, the key piece of literature 1 that Ms. Austin cites to demonstrate advances in understanding and diagnosing autoimmune encephalopathy—which was allegedly over- looked by the Special Master—was not discussed or cited by her expert, or otherwise made a part of the record in this case when it was before the Special Master. Ms. Austin cannot fault the Special Master for not considering a piece of evidence she never presented to him. Rules of the U.S. Court of Federal Claims, Appendix B, Vaccine Rule 8(f)(1) (“Any fact or argument not raised specifically in the record before the special master will be considered waived and cannot be raised by either party in proceedings on review of a special master’s decision.”). See also Weddel v. Sec’y of Health & Human Servs., 23 F.3d 388, 390 n.2 (Fed. Cir. 1994) (noting that “Congress has expressly forbidden” this

1 Francesc Graus et al., A clinical approach to diag- nosis of autoimmune encephalitis, 15 Lancet Neurol. 391 (2016).

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Court from considering arguments that the petitioners did not raise before the special master).

At bottom, then, Ms. Austin’s first argument asks this court to reweigh the factual evidence in favor of her inter- pretation of K.A.’s medical records and to reassess the cred- ibility of the witnesses. But we can do neither. Our task is not to “reweigh the factual evidence, assess whether the special master correctly evaluated the evidence, or exam- ine the probative value of the evidence or the credibility of the witnesses—these are all matters within the purview of the fact finder.” Porter v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011). “Rather, as long as the special master’s conclusion is based on evidence in the record that is not wholly implausible, we are compelled to uphold that finding as not being arbitrary or capricious.”

Milik, 822 F.3d at 1376 (internal quotation marks, citation, and original alterations omitted). Here, the record evi- dence supports the fact that none of K.A.’s treating physi- cians concluded that he experienced an encephalopathy, let alone a vaccine-induced one, resulting in his seizures or de- velopmental regression. 2 The only medical professional who disagreed with this conclusion was Ms. Austin’s ex- pert, Dr. Shafrir. And the Special Master thoroughly ana- lyzed Dr. Shafrir’s reports in light of the overall record before concluding that K.A. had not experienced an

2 Notably, this was not the case in Moriarty, where one treating physician noted their suspicion that the child had Lennox-Gastaut syndrome, “a form of age-dependent epileptic encephalopathy,” and another later diagnosed her with “[s]tatic encephalopathy of unknown etiology.” Mori- arty, 844 F.3d at 1325 (alteration in original). Ms. Austin’s arguments comparing the two cases are therefore unavail- ing.

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encephalopathy. See, e.g., Special Master Op. at *8–13.

The Special Master’s decision was not arbitrary or capri- cious.

Ms. Austin’s second argument—that the Special Master rigidly, and incorrectly, relied on the Table definition of en- cephalopathy—does not accurately reflect the Special Mas- ter’s decision. To the contrary, the Special Master clearly explained that “although the term ‘encephalopathy’ is less strictly defined in the context of a non-Table claim, it nev- ertheless is not so elastic as to include any possible type of brain injury no matter the degree.” Special Master Op. at *23. And, that “even though a petitioner with a non-Ta- ble causation-in-fact claim may evade some of the Table’s requirements for establishing an encephalopathy (such as that it is both ‘acute’ and ‘chronic’ . . .) a non-Table peti- tioner will still need to point to reliable evidence from the record establishing that the injured party’s symptoms were sufficiently evident and severe to constitute an encephalo- pathy.” Id. (citing non-Table encephalopathy cases). Fur- ther, the Special Master compared K.A.’s symptoms to other cases of alleged non-Table encephalopathies and found that K.A. had not experienced symptoms sufficiently “evident and severe” so as to constitute an encephalopathy. Id. at *23–24. We do not find this conclusion wholly im- plausible based on the record.

Finally, the Vaccine Rules explicitly authorize a Special Master to “decide a case on the basis of written submissions without conducting an evidentiary hearing.” Vaccine Rule 8(d); see generally Kreizenbeck v. Sec’y of Health & Human Servs., No. 08-209V, 2018 WL 3679843 (Fed. Cl. June 22, 2018), review denied, decision aff’d, 141 Fed. Cl. 138 (2018), aff’d, 945 F.3d 1362 (Fed. Cir. 2020). As Congress intended and the Vaccine Act requires, Ms. Austin has had ample opportunity since this case began in 2005 “to submit argu- ments and evidence on the record,” 42 U.S.C. § 300aa- 12(d)(2)(A), (C)–(D), of any advances in the medical or Case: 19-1379 Document: 43 Page: 8 Filed: 06/26/2020

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scientific understanding of autoimmune encephalopathy by submitting medical records and expert reports. Having had this opportunity, she cannot now argue that the only avenue to showcase her claim effectively was through a hearing. After all, “[i]t is reasonable to expect experts to prepare reports accurately reflecting the opinion they in- tend to offer at trial, with all necessary evidentiary support to bulwark the opinions included, rather than as a ‘teaser,’ with the best and most persuasive parts withheld so they may be unfurled at hearing in dramatic fashion.”

Kreizenbeck, 2018 WL 3679843, at *35.

In sum, Ms. Austin has not provided reason to set aside the Special Master’s determination that she failed to show by preponderant evidence that K.A. experienced an en- cephalopathy.

III Because we agree that Ms. Austin’s claim has failed to show the alleged injury by preponderant evidence, we do not address the remainder of her objections to the decision.

Ms. Austin is not entitled to compensation under the Na- tional Vaccine Injury Act. We therefore affirm.

AFFIRMED No costs.