In plaintiff's petition seeking compensation on behalf of her infant daughter under the National Childhood Vaccine Injury Act, 42 U.S.C. sections 300aa-1 and 300aa-34, claiming that the DPT vaccine caused her daughter's seizures, decision by the Court of Federal Claims upholding the special master's finding that the plaintiffs failed to establish causation is affirmed where: 1) determination by the special master and the Court of Federal Claims that no treating physician ever drew a causal link between the child's seizures and the vaccination is neither arbitrary not capricious; 2) the special master did not err in concluding that the blood-brain barrier theory did not support the plaintiffs' claim of causation; 3) the special master properly held that the plaintiffs could not rely on the NCES (British epidemiological study) to prove causation because they failed to establish that the child would have been regarded as a "case child" within the scope of that study; and 4) the special master applied the correct legal standard and found, based in part on the unconvincing nature of the expert evidence and the lack of credibility of the plaintiffs' expert, that the plaintiffs failed to prove causation by a preponderance of the evidence.
Read Moberly v. Sec'y of Health & Human Serv., No. 09-5057
Appealed from: United States Court of Federal Claims
Decided January 13, 2010
Before: Bryson, Prost, and Moore, Circuit Judges
Opinion by Bryson, Circuit Judge
For Appellant: Kevin P. Conway, Homer and Chin-Caplan, PC
For Appellee: Voris, E. Johnson, Jr., US Department of Justice, Civil Division