The Stewart Case: The Messenger Is Just As Important as the Message
In Stewart v. Secretary of the Department of Health and Human Services, the Special Master devotes a substantial portion of the discussion not just to assessing the medical evidence that supports a finding on Althen Prong 2, but assessing the credibility of the medical experts themselves.
Special Master Millman’s reasoning on Prong 2 focuses heavily on evaluating the credibility of the expert witnesses. This includes specific findings on the character and credibility of the experts individually and as compared with each other. Additionally, the credibility of the documented opinions of the treating physicians is given particular weight in light of the Federal Circuit’s decision in Capizzano, which emphasizes the opinions of treating physicians (440 F.3d at 1326).
What was the reasoning of the Special Master in assessing credibility?
First up on behalf of the petitioners’ son Will, we have Dr. Kane, whom the Special Master finds to be “very credible.” The Special Master specifically finds that:
• “Dr. Kane is an objective, careful, and concerned pediatric neurologist” (Decision at 38).
• “Every decision Dr. Kane made concerning Will’s diagnosis and treatment was right” (id. at 35).
• Dr. Kane reached his opinion after “considering the record …, consulting with an expert neuroimmunologist who himself consulted with colleagues, reviewing medical literature, and consulting with Dr. Hauger, an infectious disease specialist with immunologic training who also was one of Will’s treating physicians.” (Id. at 38.)
• “Dr. Kane’s opinion in December 2006, which comes after litigation began, is consistent with his opinion in 2002 four years before litigation” (id.).
• “Dr. Kane, the expert neuroimmunologist, the neuroimmunologist’s colleagues, and Dr. Hauger were not hired by anyone to testify for anyone’s side” (id.).
Next up for the respondent we have Dr. MacDonald, whom the Special Master finds to be “less than candid or credible for two reasons” (Decision at 41-42):
• His “insistence that Will’s cerebellar ataxia was due to a cold,” when the Special Master finds that “There is no factual support for Dr. MacDonald’s insistence that Will had a cold on March 26, 2002” (id. at 36).
• His “adhering to an onset of cerebellar ataxia on the day of vaccination after viewing the videotape of Will’s birthday party that night when he admitted in his report that the signs he saw were not sufficient to diagnose ataxia.”
Then, in comparing Dr. Marks (an expert for the petitioner) and Dr. MacDonald, the Special Master finds “Dr. Marks’ expert opinion on causation is more credible than Dr. MacDonald’s.” (Decision at 41.) She finds: “Because of Dr. MacDonald’s lack of credibility on these issues and respondent’s failure to impeach Dr. Marks’ testimony, petitioners have prevailed in this case” (id. at 42). Thus the credibility of the each expert plays a large role in evaluating evidence to support a decision in favor of the Petitioner on Prong 2 and this is reflected in the Lab’s Stewart Case Model.
Additionally, the Special Master cites the Federal Circuit in Capizzano, which “emphasized the opinions of petitioner’s four treating doctors in that case that the vaccine was the cause of petitioner’s illness.” (Decision at 33, citing Capizzano, 440 F.3d at 1326.) Directly after citing to Capizzano, the Special Master acknowledges that in this case Dr. Kane (whose credibility has been assessed above) is the treating pediatric neurologist, and that his opinion and that of Dr. Hauger (another treating physician) “support Dr. Marks’ opinion that Will had an autoimmune reaction to hepatitis A vaccine” (id. at 38). In this way, the documented opinions of the treating physicians lend credibility to an assessment on Prong 2. In modeling a case like Stewart, where so much of the opinion centers on assessing credibility of the experts involved, it is tempting to frame the evidentiary assertions around the experts themselves.