Bayless v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS

******************** *
NICOLE BAYLESS and LARRY *
BAYLESS, on behalf of SPENCER * No. 08-679V
BAYLESS, * Special Master Christian J. Moran
*
Petitioners, * Filed: January 15, 2015
*
v. * Findings of Fact; contemporaneous
* records; testimony contradicting
SECRETARY OF HEALTH * records; seizure disorder; onset.
AND HUMAN SERVICES, *
*
Respondent. *
*
******************** *
Michael G. McLaren, Black McLaren et al., Memphis, TN, for petitioners.
Julia W. McInerny, United States Dep’t of Justice, Washington, DC, for respondent.

RULING FINDING FACTS1

On September 25, 2008, Nicole and Larry Bayless on behalf of their son,
Spencer, filed a petition for compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. § 300aa-10 through 34 (2006). In their petition,
the Baylesses alleged that Spencer suffered a “table encephalopathy and an
aggravation of his neurologic condition” as a result of the diphtheria-tetanus-
acellular-pertussis (“DTaP”) vaccination he received on October 4, 2005.
Alternatively, petitioners alleged that Spencer suffered “a non-table
encephalopathy and an aggravation of his neurologic condition” as a result of the
DTaP vaccine. See Am. Pet. at 1.

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The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
 To support their claim for compensation, petitioners periodically filed
evidence including medical records, affidavits, and expert reports. The Secretary
filed a responsive expert report, and the parties began planning for an expert
hearing to be held in November 2011. Order, issued June 13, 2011. However, at
petitioners’ request, the scheduled hearing was cancelled and the Baylesses
obtained a supplemental report from their expert. Later, the case was referred to
another special master for alternative dispute resolution. Order, issued May 22,
2012.

The parties did not reach a resolution. In light of this, in February 2013,
petitioners proceeded with filing additional evidence from their experts. On March
28, 2013, the case was reassigned to the undersigned. Following the filing of the
respondent’s second expert report, it became evident that the experts were
assuming different facts regarding Spencer’s condition following his October 4,
2005 DTaP vaccination through his November 28, 2005 hospitalization. See order,
issued June 18, 2013; see also order, issued Oct. 1, 2013. Petitioners’ expert, Dr.
Tena Rosser, appears to credit assertions found in Mrs. Bayless’s affidavit but not
found in any medical record created around November 2005. In contrast, the
Secretary’s expert, Dr. Mary Anne Guggenheim, does not accept the accuracy of
Mrs. Bayless’s assertions. Compare exhibit 56 at 1-2, with exhibit A at 5, and
exhibit D at 5.

When they are confronted with discrepancies among medical records and
affidavits, special masters are encouraged to hold hearings to evaluate the
testimony of the affiants. See Campbell v. Sec'y of Health & Human Servs., 69
Fed. Cl. 775, 779-80 (2006). A fact hearing was thus held on October 16, 2013,
during which Mrs. Bayless as well as Spencer’s maternal grandmother, Ms. Anke
Bahuchet, testified in person. Spencer’s maternal grandfather, Mr. Jacques Pierre,
also testified by telephone from Brazil. Mrs. Bayless’s and Ms. Bahuchet’s in-
person appearance allowed the undersigned to assess their demeanor. The
undersigned also considered Mr. Pierre’s tonal quality as he testified remotely at
the start of the hearing.

Following the hearing, the parties submitted Joint Proposed Findings of Fact
(“Proposed Findings”) on April 30, 2014. Although the Baylesses referred to
Spencer reaching milestones as described by What to Expect in the First Year, the
Baylesses did not submit the pertinent chapters from this book. Consequently, to
cure this omission, the undersigned filed relevant excerpts and allowed the parties
to comment. Order, issued Dec. 23, 2014. Respondent did not submit any
comment. The Baylesses submitted a comment which contained no objection, but

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stated that they reserve the right to provide future comments and/or additional
filings from the book as the matter continues. Pet’rs’ Comment on Exhibit 1001,
filed Jan. 7, 2015. Following this submission, findings of facts are ready to be
made.

Standard for Finding Facts

Petitioners are required to establish their case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).

The process for finding facts in the Vaccine Program begins with analyzing
the medical records, which are required to be filed with the petition. 42 U.S.C.
§ 300aa–11(c)(2). Medical records created contemporaneously with the events
they describe are presumed to be accurate. Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

Not only are medical records presumed to be accurate, they are also
presumed to be complete, in the sense that the medical records present all the
problems of the patient. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
see a doctor, they report all of their problems to the doctor. Third, having heard
about the symptoms, the doctor records what he or she was told.

Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras, in which the petitioners
asserted that their daughter, Nicole, began having seizures within one day of
receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of

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seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).

Decisions by judges of the Court of Federal Claims have followed Cucuras
in affirming findings by special masters that the lack of contemporaneously created
medical records can contradict a testimonial assertion that symptoms appeared on a
certain date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.
598, 608 (2010) (stating, “[g]iven the inconsistencies between petitioner’s
testimony and his contemporaneous medical records, the special master’s decision
to rely on petitioner’s medical records was rational and consistent with applicable
law”), aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx.
952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human
Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs.,
36 Fed. Cl. 461, 465 (1996) (stating, “[t]he special master apparently reasoned that,
if Frank suffered such [developmental] losses immediately following the
vaccination, it was more likely than not that this traumatic event, or his parents’
mention of it, would have been noted by at least one of the medical record
professionals who evaluated Frank during his life to date. Finding Frank’s medical
history silent on his loss of developmental milestones, the special master
questioned petitioner’s memory of the events, not her sincerity.”), aff’d, 117 F.3d
545, 547-48 (Fed. Cir. 1997).

The presumption that contemporaneously-created medical records are
accurate and complete is rebuttable, however. For cases alleging a condition found
in the Vaccine Injury Table, special masters may find when a first symptom
appeared, despite the lack of a notation in a contemporaneous medical record. 42
U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar
fact-finding for cases alleging an off-Table injury. In such cases, special masters
are expected to consider whether medical records are accurate and complete. To
overcome the presumption that written records are accurate, testimony is required
to be “consistent, clear, cogent, and compelling.” Blutstein v. Sec’y of Health &
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998).

Special masters will consider various explanations for inconsistencies
between contemporaneously created medical records and later given testimony.
The Court of Federal Claims listed four such explanations. Inconsistencies can be
explained by: (1) a person’s failure to recount to the medical professional
everything that happened during the relevant time period; (2) the medical

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professional’s failure to document everything reported to her or him; (3) a person’s
faulty recollection of the events when presenting testimony; or (4) a person’s
purposeful recounting of symptoms that did not exist. La Londe v. Sec’y Health &
Human Servs., 110 Fed. Cl. 184, 203 (Fed. Cl. 2013), aff’d, 746 F.3d 1334 (Fed.
Cir. 2014).

In weighing divergent pieces of evidence, special masters usually find
contemporaneously-written medical records to be more significant than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at
779 (“[L]ike any norm based upon common sense and experience, this rule should
not be treated as an absolute and must yield where the factual predicates for its
application are weak or lacking.”); Camery v. Sec’y of Health & Human Servs., 42
Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because
medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a
condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.”), aff’d, 968 F.2d 1226 (Fed. Cir.
1992).

The relative strength or weakness of the testimony of a fact witness affects
whether this testimony is more probative than medical records. An assessment of a
fact witness’s credibility may involve consideration of the person’s demeanor
while testifying. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575
(Fed. Cir. 1993).

These criteria are considered in the analysis below.

Summary of Undisputed Facts

Spencer was born on June 2, 2005. Exhibit 2 at 96. To care for Spencer
during the day while the Baylesses worked, they arranged for Ms. Bahuchet, Mrs.
Bayless’s mother, to come to their house. Tr. 145, 166. Ms. Bahuchet moved
from Colorado to the Baylesses’ home in California to tend to Spencer. Tr. 54-55.
Ms. Bahuchet described herself a “teaching parent” who was very involved with
Spencer’s daily routine. Tr. 57.

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 On October 1, 2005, Ms. Bahuchet left the Baylesses’ home ahead of the
visit of ex-husband, Mr. Jacques Pierre. Tr. 60. Ms. Bahuchet used the
opportunity to return to Colorado and complete packing up her house. Tr. 61.
When Mr. Pierre and his wife visited their new grandson, Spencer had his four-
month well-baby checkup with his pediatrician, Dr. Delmonteverde, on October 4,
2005. Tr. 20-22; exhibit 45 at 1-3; exhibit 2 at 90. During this check-up, Spencer
received his second round of IPV, DTaP, Hib-Hep B, and Prevnar immunizations.
Exhibit 2 at 90.

The parties do not dispute that on October 5-6, 2005, the two days following
his four-month vaccinations, Spencer had a fever, cried often and was fussy and
irritable. See Proposed Findings at 2; exhibit 25 at 14-15; exhibit 9 at 101; Tr. 150.
Mrs. Bayless testified that Spencer’s fever was gone by October 7, 2005. Tr. 157.

Mr. Pierre left on October 10, 2005. Tr. 22; exhibit 45 at 1. During the
hearing, he testified about his observances of Spencer for the five days after
vaccination. Tr. 30-38; see also exhibit 45 at 2.

Ms. Bahuchet resumed care-taking on October 12, 2005. Tr. 62. Ms.
Bahuchet testified that she deferred to her daughter’s judgment in matters
involving Spencer’s care, and that there were instances when their opinions
differed causing a strain on their relationship. Tr. 71-72, 95-96, 155-56, 228-29.

Between October 5, 2005 and November 23, 2005, relatively few records
were created. Mrs. Bayless made entries on various dates in Spencer’s baby book
and the Baylesses recorded video of Spencer’s first Halloween. Exhibit 25; exhibit
26; exhibit 53. The witnesses provided their recollections about Spencer’s health
during this time, which is discussed in the section of disputed facts.

Mrs. Bayless averred that on November 23, 2005, she “noticed Spencer
flexing his right arm in the morning… [and] thought he was flexing his muscle and
that it looked cute. Over the next several days he continued to do this while
bending his head forward.” Exhibit 43 (second affidavit of Nicole Bayless) at 5.

The Secretary does not dispute that a few days before Spencer was taken to
Torrance Memorial Hospital (TMH) on November 27, 2005, he began to have
jerks or movements described as “twitching.” Proposed Findings at 12-13 (citing
exhibit 34 at 1-3, 6-7; exhibit 9 at 101; exhibit 10 at 40-41, 44-45, 85).

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 Thanksgiving occurred on November 24, 2005. On the day after, the
Baylesses took Spencer shopping during which Spencer moved erratically and Ms.
Bahuchet thought he was having a seizure. Tr. 76, 80-81,111-15, 124-26; exhibit
44 at 4-5. The Baylesses created a video on November 27, 2005, then brought
Spencer to TMH and provided a history to Spencer’s treating physicians. Exhibit
43 at 6; exhibit 34; Tr. 172.

On November 28, 2005, the Baylesses brought Spencer to Dr.
Delmonteverde’s office, where Dr. Chittenden saw Spencer. Exhibit 9 at 101.
Later, Spencer was taken to Children’s Hospital of Los Angeles (CHLA) where
Spencer was seen by Dr. Rosser. Dr. Rosser remains Spencer’s treating
neurologist and offered an opinion that the DTaP vaccine harmed Spencer.
Exhibits 56, 144.

The admission records from TMH and CHLA provide sufficient
documentation to account for Spencer’s condition from November 23, 2005
forward.

Summary of the Parties’ Arguments

The parties’ dispute focuses on Spencer’s condition in the several weeks
following his October 4, 2005 vaccination for which there are no contemporaneous
medical records.

The Baylesses assert that Spencer was a “normal healthy baby who
achieved all of his developmental milestones” prior to his October 4, 2005 DTaP
vaccination. Exhibit 5 (first affidavit of Nicole Bayless) at 1. The Baylesses claim
that following the vaccination, Spencer stopped reaching milestones and began
having many problems including a decreased appetite, listlessness with long
periods of blank staring, irritability, sudden loss of use of his right hand, and
episodes of “bad dreams.” See Proposed Findings.

In support of their allegations, the Baylesses have submitted medical records
and affidavits in addition to their testimony and the testimony of Spencer’s
maternal grandparents. The Secretary challenges the Baylesses’ assertions and
contends that the medical records do not support their assertions about Spencer’s
health.

With the exception of Spencer’s gradual loss of the use of his right hand and
staring, the undersigned finds that the medical records, including the admission

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records from TMH and CHLA, provide sufficient documentation to account for his
condition prior to November 23, 2005.

Specific Findings of Fact

The topics covered by the parties’ proposed findings are each discussed
separately below.

“Bad Dream” Episodes

The Baylesses assert that, starting October 5, 2005, and continuing until his
November 28, 2005 treatment at CHLA, Spencer experienced “bad dream”
episodes. Proposed Findings at 2-3; exhibit 45 (affidavit of Jacques Pierre) at 2;
Tr. 21. The Secretary argues that there is no documentation, contemporaneous or
otherwise, to support the assertion that Spencer was exhibiting this behavior.
Proposed Findings at 2.

The Baylesses described that during these episodes Spencer would jerk
awake from sleeping with a shake of his head from left to right, followed by
screaming and crying. The Baylesses assert these episodes, which they liken to
awakening from a bad dream, happened several times a day. Exhibit 45 at 2; Tr.
23-24.

The witnesses testified about their recollections of Spencer’s bad dreams.
Mr. Pierre recalls Spencer having bad dream episodes during his October 2005
visit and described Spencer’s behavior during these episodes as abruptly awaking
from sleep with left to right head shaking followed by intense crying. Tr. 19-26.
According to Mr. Pierre’s recollection, these episodes did not cause the Baylesses
to be concerned and were considered “normal.” Tr. 38.

Furthermore, when Ms. Bahuchet arrived back to the Baylesses’ home from
Colorado on October 12, 2005, she was not informed of any new or unusual
behavior by Spencer during her absence. Tr. 89-90. Ms. Bahuchet resumed
Spencer’s daily care without any conversation about the bad dream episodes and
by her account “everyone was acting like nothing happened after the vaccines.”
Tr. 97. Ms. Bahuchet testified that she saw the jerking and bad dream episodes as
Spencer would wake up, with high pitched crying like a “night terror,” and that she
recalled this occurring around the time she returned from Colorado. Tr. 105-06.

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 Mrs. Bayless testified that these episodes occurred during her father’s visit
but that she assumed they were reflexes and medical care was not required. Tr.
158. Although Mrs. Bayless testified that Spencer had been having bad dream
episodes and jerking himself awake starting October 5, 2005, she did not express
concern to Spencer’s primary physician, Dr. Delmonteverde. For example, when
Mrs. Bayless stopped into Dr. Delmonteverde’s office on October 14, 2005, to
retrieve a letter excusing her from jury duty, she did not mention any issues or
arrange for an appointment. Tr. 163-64; exhibit 2 at 89.

Standing by itself, this version seems coherent. The Baylesses did not seek
medical attention for Spencer’s “bad dream” behavior because they did not
understand the behavior was abnormal.

However, a problem with this version arises once additional evidentiary
materials are considered. The medical records created when the Baylesses began
to realize that Spencer might be ill are inconsistent with their testimony. One of
the first doctors to see Spencer was Dr. May at TMH on November 27, 2005. By
this date, the Baylesses had already videotaped Spencer’s aberrant movements and,
thus, were worried about their child’s health. The Baylesses told Dr. May that
Spencer’s “twitching” seemed to occur when he woke from naps and had started
the previous Wednesday, November 23, 2005. Exhibit 34 at 1, 6. Given that both
the reported “twitching,” and Spencer’s bad dream episodes appeared to occur
following naps, it seems that his parents would have been prompted to explain both
to Dr. May. Instead, the Baylesses reported only that Spencer’s “unusual motor
activity” was different from his “baseline.” Exhibit 9 at 102.

Dr. May ordered an electrolyte panel and bloodwork, then called Dr.
Delmonteverde to review the results. Id. Dr. Delmonteverde and Dr. May agreed
to send the Baylesses home with instructions to follow-up with Dr.
Demonteverde’s office the following day. Id. The following day Spencer was
examined by Dr. Chittenden at Dr. Delmonteverde’s office. The history recorded
by Dr. Chittenden indicated that Spencer’s spasms began on Wednesday,
November 23, 2005, and had progressed by Saturday November 26, 2005. Id. at
101. Dr. Chittenden referred Spencer to a pediatric neurologist. Id.

Later that same day, Ms. Bahuchet observed Spencer having another
“twitching” episode which led the Baylesses to take Spencer to CHLA. Again, no
report was provided describing weeks of bad dream behavior. The Baylesses
reported that Spencer was:

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 [W]ell until 6 days ago (11/21/05) when he was first
noted to have the right side of his body "crunch up." His
right eye would start to twitch, his right arm would flex
and stiffen and his right leg would flex inward as well.
This occurred only right after he wakes up.

Exhibit 10 at 44 (emphasis added).

The CHLA history is a third instance in which the parents provided a history
about when Spencer’s unusual waking movements began. The CHLA history is
relatively consistent with the TMH history; the former places onset at November
21, 2005, and the latter gives an onset of November 23, 2005. Exhibit 10 at 44;
exhibit 34 at 3. This two-day discrepancy is not important. What does matter is
neither history even remotely suggests that the problem started in early October
2005.

Given the above, it is difficult to accept that Spencer routinely woke from
sleep with abnormal screaming and head shaking as if aroused from a bad dream or
“night terror.” It seems that if this were the actual severity of Spencer’s typical
behavior, the Baylesses and/or Ms. Bahuchet would have reported it to his treating
physicians when care was sought in November 2005. Moreover, given that the
history provided included a newly observed behavior when waking, it is difficult to
accept that his parents would not report other routine and abnormal behavior that
also occurred as he woke. Thus, it appears that the Baylesses and their witnesses
are not accurately recalling the onset, severity, or frequency of Spencer’s behavior.
The evidence, on the whole, does not support a finding that Spencer routinely
awoke with abnormal “night terror” screaming, head shaking and inconsolable
crying.

“Milestones”

Mrs. Bayless claims that, according to her interpretation of What to Expect
the First Year, Spencer was a “normal healthy baby who achieved all of his
developmental milestones” before his four-month vaccinations. Tr. 145; exhibit 43
at 4; exhibit 5 at 1. Mrs. Bayless argues that Spencer stopped reaching
“developmental milestones” following his four-month vaccinations. Exhibit 34 at
4 (“When I read [What to Expect the First Year] near the end of October and
beginning of November, when Spencer turned 5 months old, I noticed that he had
not reached any new developmental milestones in the previous month.”).

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 Ms. Bahuchet, in particular, expressed her strong personal belief that
Spencer’s development slowed following his October 4, 2005 vaccinations. Tr.
57-72. Ms. Bahuchet described herself as a “teaching parent” and oversaw
Spencer’s daily routine as his caregiver when Mr. and Mrs. Bayless were at work.
Tr. 66, 100-01, 166. Ms. Bahuchet stated that upon her return from Colorado on
October 12, 2005, Spencer was “a different child.” Tr. 66. She gave several
examples of what she believed to be causes for concern, stating that Spencer was
“generally listless and uninterested to reach, kick and play with his toys.” Tr. 99-
102; exhibit 44 at ¶ 10.

Ms. Bahuchet described Spencer’s development before the October 4, 2005
vaccination as “advanced,” and that there was a “huge contrast” in his development
after vaccination. Exhibit 44 at ¶ 7. Ms. Bahuchet and Mrs. Bayless testified that
their discussions about Spencer’s alleged condition occurred frequently and caused
stress between them. Tr. 71-72, 96, 109, 132, 155-56, 166, 228-29.

Again, the Secretary contends that there is an absence of documentation,
contemporaneous or otherwise, to support the Baylesses’ assertions that Spencer
stopped reaching “developmental milestones.” Proposed Findings at 9. Moreover,
the Secretary contends that Ms. Bahuchet and Mrs. Bayless lack the scientific
and/or medical expertise to characterize the progression or lack thereof of
Spencer’s “developmental milestones.” Id. at 9, 12.

The milestones described in the popular “What to Expect” books are simple
and easily observed. See exhibit 1001 at 3-4 (Arlene Eisenberg et al., What to
Expect the First Year 200-01 (1996)). Given that a caregiver would not need to be
a medical doctor to observe a child reaching these developmental milestones, the
undersigned finds that Ms. Bahuchet and Mrs. Bayless are qualified to express an
opinion as to whether Spencer could perform the actions described by in What to
Expect.

The five-month chapter of What to Expect the First Year lists many
milestones that an adult can understand. Exhibit 1001 at 5-6. However, neither
Mrs. Bayless nor Ms. Bahuchet identified which of the specific milestones listed in
What to Expect the First Year that Spencer failed to meet. This lack of specificity
greatly handicaps their testimony.

Even more importantly, it seems clear that Spencer could actually perform
many of the events described in the five-month chapter of What to Expect the First
Year. When admitted to CHLA on November 28, 2005, Spencer was able to

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perform many of the milestones listed, such as holding his head steady, rolling
over, and reaching for objects. Exhibit 10 at 44 (“he raises his head more than 90
degrees… he is able to sit in a tripod position… is observed to roll over
adequately… able to reach for a toy in the midline with no signs of shakiness”).
Spencer is also seen supporting his own head in the Halloween video. Exhibit 53.
The contradiction between Spencer’s abilities as recorded in a medical record
created in November 2005 and Spencer’s abilities as recalled in either written or
oral testimony created many years later greatly diminishes the value of that
testimony. The Baylesses appear not to be remembering Spencer’s abilities
accurately.

Loss of Appetite

Mrs. Bayless testified that Spencer “didn’t eat much at all” for the two days
following his October 4, 2005 vaccinations. Tr. 150-52, 218. Mrs. Bayless
recalled that although Dr. Delmonteverde had advised her to start Spencer on solid
foods during his October 4, 2005 four-month check-up, she was unable to do so
right away. Tr. 150-52.

Mrs. Bayless provided two reasons for not starting Spencer on a solid food
diet until two-and-one-half weeks after Dr. Delmonteverde’s recommendation.
First, Mrs. Bayless explained that she might have tried to introduce Spencer to
solid food that same day, but had not yet had the chance to buy infant cereal from
the grocery store. Tr. 152. Second, Mrs. Bayless testified that, due to Spencer’s
fever the following two days, he was uninterested in eating and she thought he was
not well enough for a new diet. Tr. 152. According to Mrs. Bayless, Spencer’s
appetite slowly returned and by October 22, 2005, she felt he was well enough to
have him try solid food for the first time. Tr. 150-52.

Ms. Bahuchet testified that in her opinion Spencer’s feedings became
difficult following his October 4, 2005 vaccinations. Tr. 69. Mrs. Bayless testified
that Spencer continued to have trouble eating and “did not want to take his bottles”
through October 2005, which she attributed to her assumption that he was teething.
Tr. 162, 218.

The Secretary does not dispute that Spencer started solids on October 22,
2005, but contends that there is a lack of evidence supporting the claim that
Spencer’s appetite was decreased following his vaccinations through October 22,
2005. Proposed Findings at 3.

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 During this period of time, Mrs. Bayless did not make additional notes in
Spencer’s baby book akin to the notes describing his fever and fussiness on
October 5-6, 2005. Additionally, the Baylesses did not contact Dr. Delmonteverde
to report any change in Spencer’s eating. It is likely that if Spencer had not
resumed more regular eating habits following his October 5-6, 2005 fever, Mrs.
Bayless would have called Dr. Delmonteverde, as she claims to have done when
Spencer’s fever lasted more than a day. Tr. 209-12.

Thus, it is likely that Spencer’s eating habits improved during the time
following his fever until he started solid foods on October 22, 2005, and continued
to be relatively normal through November 2005. Exhibit 34 at 1-2 (patient history
given on Nov. 27, 2005 stating “patient has been taking good p.o.’s2”); exhibit 10
at 40-41, 48 (physical exam performed on Nov. 29, 2005: “Well nourished boy.
Large for age”).

Loss of Right Hand Function

The Baylesses claim that in the six to seven weeks following his four-month
vaccinations, Spencer “suddenly” began using his left exclusively and fisting his
right hand. Exhibit 5 at 3. Specifically, Spencer would rely on his left hand to sit
up and play with toys. Tr. at 127-29. Mrs. Bayless testified that she attributed this
behavior to Spencer being left handed and that it was not until his admission at
CHLA that she realized he could no longer grasp with his right hand. Exhibit 25 at
14; Tr. 127-29.

Although Spencer’s admitting physicians at CHLA noted that he “[m]oves
all extremities equally,” on November 29, 2005, Spencer is seen in the Halloween
trick-or-treating video resting in his mother’s arms with his right hand in a fist.
Exhibit 10 at 41; exhibit 53. The Secretary’s expert addresses this stating:

I suspect that the parental observations are true; indeed
some asymmetric fisting of his right hand is noticeable
on the video taken on Halloween. (Exhibit 53) Relative
disuse (often interpreted as a preference for the opposite
side) for one side of the body during this stage of brain
development (typically at 4-6 months of age) is often a

2
P.O. refers to “by mouth” feedings. Neil M. Davis, Medical Abbreviations 261 (15th
ed. 2011).

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 more sensitive indicator of cortical dysfunction than a
formal medical examination.

Exhibit D at 7.

The evidence supports a finding that at some point prior to the end of
October 2005, Spencer began favoring his left hand and fisting his right hand.

Staring and Listlessness

The Baylesses also assert that following his four-month vaccinations,
Spencer began staring at objects for extended periods of time. Examples of objects
that fascinated him include a jack-o-lantern Halloween decoration, his hands, and
his arms. Tr. 126-27, 153-54, 168-69; exhibit 25 at 14 (baby book October 2005
notation: “I like our jack-o-lantern and like to stare at its flickering lights”). In her
August 2011 affidavit, Mrs. Bayless alleged that Spencer began staring at his
hands beginning around October 7, 2005. Exhibit 43 at 3. Mrs. Bayless described
this behavior as lasting for seven weeks. Exhibit 5 at 2-3. During her testimony,
Mrs. Bayless pointed to two examples of Spencer staring at his hand from the
video taken of him during Halloween 2005. Tr. 168-69 (discussing exhibit 53).

The Baylesses’ witnesses also testified that Spencer’s overall demeanor and
personality changed following his October 4, 2005 vaccinations. Exhibit 45 at 2;
exhibit 44; Tr. 63-64. Mr. Pierre testified that Spencer was not “a happy person”
in the days following his vaccination and no longer played or smiled. Tr. 26. Mr.
Pierre recalled that Spencer was not as “alert” as he was before his October 5, 2005
vaccination and would stare for long periods of time. Tr. 39; exhibit 45 at 2.

Ms. Bahuchet testified that Spencer would stare “blankly” and no longer
reached for his toys. Tr. 70. Ms. Bahuchet also testified that Spencer lost interest
in playing and remained fussy in the weeks following his October 4, 2005
vaccination. Tr. 68.

Mrs. Bayless testified that during the weeks following Spencer’s
vaccination, her mother made comments to her that Spencer’s behaviors, including
his staring and listlessness, were not normal. Exhibit 44; Tr. 155, 166. In
response, she researched Spencer’s behaviors, including the hand staring, on the
internet until she was satisfied that Spencer was normal. Tr. 212. Mrs. Bayless
explained that she preferred looking for answers on the internet because she was
reluctant to see a physician and be considered a hypochondriac. Tr. 229-30.

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 The Secretary does not dispute that Spencer stared at the family’s jack-o-
lantern decoration as indicated in Spencer’s baby book. Exhibit 25 at 14.
However, the Secretary contends that there is a lack of documentation in support of
a finding that Spencer spent long periods of time staring at any object including his
hand. Proposed Findings at 3.

It is clear from their testimony that Mrs. Bayless and Ms. Bahuchet worked
closely in coordinating Spencer’s care at this time. Tr. 70, 108,155, 166. They
share a similar perspective and both clearly recall specific conversations and
disagreements regarding Spencer’s staring and listless behavior. In light of this,
the evidence preponderates in favor of the Baylesses’ allegation that from around
October 7, 2005, and during the following seven weeks, Spencer stared at objects
for long periods of time and appeared listless.

Conclusion

The parties are ordered to provide these findings of fact to any expert whom
they have retained to testify. Expert opinion inconsistent with these findings of
fact is not likely to be persuasive. See Burns v. Sec’y of Health & Human Servs.,
3 F.3d 415, 417 (1993) (holding that the special master did not abuse his discretion
in refraining from conducting a hearing when the petitioner’s expert “based his
opinion on facts not substantiated by the record”); Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“When an expert opinion is
not supported by sufficient facts to validate it in the eyes of the law, or when
indisputable record facts contradict or otherwise render the opinion unreasonable,
it cannot support a jury’s verdict.”); Perreira v. Sec’y of Health & Human Servs.,
33 F.3d 1375, 1376 n.6 (Fed. Cir. 1994) (“An expert opinion is no better than the
soundness of the reasons supporting it.”); see also Bradley v. Sec’y of Health &
Human Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993) (the assumption of an expert
about the accuracy of a fact witness’s testimony does not “substantiate” the fact
witness’s testimony).

A status conference is set, sua sponte, for Wednesday, January 28, 2015 at
11:00 A.M. The parties should be prepared to propose the next step in this case.

Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.

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IT IS SO ORDERED.

s/Christian J. Moran
Christian J. Moran
Special Master

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