What Drs. Geier say ... in rebuttal to Quacks Gorski & Probert

References:
In-Reply-To:
Content-Type: text/plain; charset=windows-1252; format=flowed
Content-Transfer-Encoding: 8bit
Lines: 286
Message-ID:
Date: Tue, 23 May 2006 09:18:29 -0400
NNTP-Posting-Host: 68.194.24.232
X-Complaints-To:
X-Trace: fe12.lga 1148390316 68.194.24.232 (Tue, 23 May 2006 06:18:36 MST)
NNTP-Posting-Date: Tue, 23 May 2006 06:18:36 MST
Organization: Optimum Online
Xref: number1.nntp.dca.giganews.com misc.health.alternative:504747 talk.politics.medicine:126569 misc.kids.health:153821

Ilena Rose wrote:

Nothing worth quoting. However, note that this court finds Geier to be
useless and specifically states that more and more courts are following
that trend.




In the United States Court of Federal Claims

No. 01-234V(Filed: May 26, 2005)

RICHARD PISCOPO,Petitioner,
v.
SECRETARY OF HEALTH and HUMAN SERVICES,Respondent.

[...]

The Special Master also noted that Dr. Geier’s opinions have been
increasingly criticized in other vaccine cases. See Decision at 5. The
Special Master identified seven cases in which Special Masters had
rejected the expert opinion offered by Dr. Geier because the opinion
related to areas outside Dr. Geier’s areas of education,training and
experience. Id.

The Special Master further noted that under the American7Medical
Association guidelines for expert witnesses, doctors are to testify only
with respect to areas in which they have education, training, and
experience. See Decision at 4-5(citing American Medical Association,
Policy Compendium 416 (1999)).

Second, the Special Master found that Dr. Geier’s opinion did not
provide a legally sufficient basis to conclude that the petitioner’s
Hepatitis B vaccinations were a“substantial factor” in bringing about
the petitioner’s illness. In particular, the Special Master noted that
while Dr. Geier recognized that other vaccinations that the petitioner
received - such as typhoid, rabies, and Japanese encephalitis (which are
not covered by the Vaccine Act) - might have also played a part in
causing petitioner’s immune problems, he failed to explain why those
vaccines and not the Hepatitis B vaccine were not the substantial cause
of petitioner’s illness. The Special Master stated, “Dr. Geier’s medical
report is devoid of any discussion eliminating as a cause of Rev.
Piscopo’s condition the host of other vaccines that Rev. Piscopo
received concurrently with his hepatitis B vaccinations in1998.”
Decision at 6. Because Dr. Geier did not address the other vaccinations
that the petitioner received at the same time as he received the
Hepatitis B vaccinations, the special master concluded that Dr. Geier
failed to establish that the Hepatitis B vaccine was a substantial
factor in bringing about the petitioner’s injury. Id.

Third, the Special Master held that the petitioner’s medical records
alone were not sufficient to establish the petitioner’s claim. The
Special Master held that the petitioner’s medical records reflected that
the petitioner’s doctors held a variety of opinions as to what had
caused the petitioner’s illness. For example, one of the petitioner’s
doctors thought8that the Japanese encephalitis vaccinations were the
“culprit”. Pet’r Ex. 1 at 151. Another doctor, Dr. Robert Good,
acknowledged that he could not determine which vaccination caused the
petitioner’s “autoimmune phenomenon”. Pet’r Ex. 18 ¶ 10. The Special
Master also rejected the petitioner’s contention that the package insert
for the Hepatitis B vaccine prepared by Merck & Company, Inc. proved
that the Hepatitis B vaccine caused petitioner’s illness. The insert
apparently identified various immune illnesses as possible adverse
responses to the vaccine. The Special Master determined that a package
insert was not sufficient to establish specific causation in any
individual case and thus did not prove that the Hepatitis B vaccine
caused the petitioner’s illness in this case. Decision at 7. It was for
all of these reasons that the Special Master determined that the
petitioner was not entitled to compensation.DISCUSSION A.Standard of
review the Vaccine Act provides that this court may set aside a Special
Master’s decision only if the Special Master’s fact finding is arbitrary
and capricious or where the legal conclusions are not in accordance with
law; discretionary rulings of the Special Master are tested on the abuse
of discretion standard. 42 U.S.C. § 300aa-12(e)(2); Turner v. Sec’y of
Health and Human Servs., 268 F.3d 1334, 1337 (Fed. Cir. 2001). In this
connection,Special Masters are accorded deference in determining
credibility and weighing evidence regarding causation and their
determinations will be upheld unless they are shown to be arbitrary and
capricious. Lampe v. Sec’y of Health and Human Servs., 219 F.3d 1357,
13609(Fed. Cir. 2000). Determinations as to the qualification of experts
and the admissibility of their testimony, including an evaluation of
whether the opinion is reliable and relevant, are generally within the
discretion of a trial judge, and are reviewed for an abuse of
discretion,only overturned if manifestly erroneous. See Kumho Tire Co.
v. Carmichael, 526 U.S. 137,152 (1999) (holding that a trial court’s
decision on the admissibility of expert testimony is reviewed for an
abuse of discretion); Milmark Servs., Inc. v. United States, 731 F.2d
855,860 (Fed. Cir. 1984) (holding that the admissibility of expert
testimony is within the discretion of the trial court, and its action
will be sustained unless “manifestly erroneous”);see also Terran v.
Sec’y of Health and Human Servs., 195 F.3d 1302, 1316 (Fed. Cir.
2000)(applying the abuse of discretion standard to a Special Master’s
determination on the reliability of an expert opinion in a case under
the Vaccine Act). The Vaccine Act provides two methods for establishing
causation. Munn v. Sec’y of Health and Human Serbs., 970 F.2d 863, 865
(Fed. Cir. 1992). A petitioner may demonstrate that he or she sustained
an injury that is listed on the Vaccine Table, 42 U.S.C.§ 300aa-14, and
that the injury occurred within the time provided on the Vaccine Table.
Munn, 970 F.2d at 865. In these “Table Injury” cases causation is
presumed. Id. If the injury or timing does not comport with the
requirements of the Vaccine Table, a petitioner may, in the alternative,
establish a claim upon proving that a vaccine covered under the vaccine
Act was the “actual cause” of the injury. Id.; 42 U.S.C. §
300aa-11(c)(1). The level of proof needed to establish entitlement in a
causation-in-fact case, such as this one, has been discussed by the
Federal Circuit in several cases. In brief, a petitioner10must to
satisfy two tests. First, the petitioner must present credible evidence
of general causation, namely evidence that the vaccine, here the
Hepatitis B vaccine, is capable of causing autoimmune disorders,
including the type responsible for the petitioner’s condition. Second,
the petitioner must present credible evidence of specific
causation,namely that the Hepatitis B vaccine was the cause of the
petitioner’s illness in his particular case. The Federal Circuit has
explained that a petitioner must demonstrate that “but for” the
vaccination the injury would not have occurred and that the vaccine was
a “substantial factor” in bringing about the condition. Shyface v. Sec’y
of Health and Human Servs., 165F.3d 1344, 1351-52 (Fed. Cir. 1999). If a
petitioner is able to establish actual causation,then the burden shifts
to the government to establish that a factor unrelated to the vaccine
was the actual cause of the injury or illness. 42 U.S.C. §
300aa-13(a)(1)(B); Jay v. Sec’y of Dep’t of Health and Human Servs., 998
F.2d 979, 984 (Fed. Cir. 1993). B.The Special Master Did Not Abuse His
Discretion by Rejecting the Petitioner’s Expert or by Failing to Provide
the Petitioner with an Opportunity to Find Another Expert At the core of
the petitioner’s motion for review is his assertion that the proceedings
below were not fair because the petitioner believed that the Special
Master was going to “use” Dr. Geier’s opinion to make his decision. The
petitioner claims that“had I . . . been told or informed, that Dr. Mark
R. Geier’s M.D. Report was not suita[able], I would have secured and
will yet, secure, another expert medical report, by one who meets the
courts [sic] standard of expert witnesses.” Mot. Review at 3. The
petitioner argues that11he was somehow misled about the Special Master’s
consideration of Dr. Geier’s testimony and that this resulted in a
deprivation of “due process”.After carefully reviewing the case, the
court finds that the Special Master did not abuse his discretion in
rejecting Dr. Geier’s expert opinion or in failing to provide the
petitioner with an opportunity to obtain another expert before he
rendered his decision. Each issue will be examined in turn.First, the
Special Master did not abuse his discretion in determining that Dr.
Geier did not have the education, training or experience to proffer a
reliable opinion on the cause of the petitioner’s immunological
disorders. Although under RCFC Appendix B, Rule 8(c),“[t]he special
master will consider all relevant, reliable evidence, governed by
principles of fundamental fairness to both parties” and is not bound by
rules of evidence, the special master also has discretion in determining
what evidence is relevant and reliable, and may apply the principles
articulated in Daubert. See Terran v. Sec’y of Health and Human
Servs.,41 Fed. Cl. 330, 336 (1998) (“Although the Federal Rules of
Evidence do not apply in vaccine cases, the court believes Daubert is
useful in providing a framework for evaluating the reliability of
scientific evidence.”), aff’d, 195 F.3d 1302, 1316 (Fed. Cir. 1999).
Under Daubert, trial courts are charged with a “gatekeeping” function to
“ensure that any and all scientific testimony . . . is not only relevant
but reliable” because experts are given latitude to give opinions that
are not based on firsthand knowledge on the “assumption that the
expert’s opinion will have a reliable basis in the knowledge and
experience of his discipline.” 509 U.S. at 589, 592. The Supreme Court
has also recognized that in some12cases, “the relevant reliability
concerns may focus upon personal knowledge or experience.” Kumho, 526
U.S. at 150. Dr. Geier’s curriculum vitae reveals that his medical
training and professional experience relate to the areas of genetics and
obstetrics and gynecology. Pet’r Ex. 21AA. This experience and training
is largely irrelevant to the expertise needed to establish a causal
relationship between the Hepatitis B vaccine and the petitioner’s
autoimmune disorder. Dr. Geier does not have a background in immunology.
The Special Master therefore did not abuse his discretion in concluding
that Dr. Geier’s conclusions about the specific cause of the
petitioner’s illness were not reliable. The fact that Dr. Geier had
testified in other vaccine cases does not alter this conclusion. The
Special Master correctly noted that Dr. Geier had been previously
criticized for offering expert opinions outside his areas of training,
education, and experience. Decision at 5. For all of these reasons, the
Special Master did not abuse his discretion when he decided to reject
Dr.Geier’s expert opinion on the ground that he was not qualified to
offer an opinion regarding the petitioner’s Hepatitis B vaccination and
his alleged autoimmune illness. Second, the Special Master did not err
in failing to provide the petitioner with an opportunity to secure and
submit another expert opinion after the Special Master rejected Dr.
Geier’s opinion. The record reveals that the Special Master provided the
petitioner with ample time to secure a medical expert. In addition, the
petitioner knew about, and was given an opportunity to respond to, the
respondent’s criticism of Dr. Geier’s testimony. In this connection, the
petitioner informed the Special Master that he had no intention
of13securing additional experts, even though he understood that his case
was vulnerable on the issue of causation. See Pet’r December 7, 2004
Notice at 1, 4.This court has not had occasion to address whether
principles of fundamental fairness dictate that petitioners should be
given the opportunity to remedy deficiencies in their proffered
testimony after an expert’s opinion has been rejected by a Special
Master. Courts have held in similar circumstances that trial judges are
not required to provide parties with an opportunity to cure their case
after their expert has been rejected. See Nelson v. Tennessee Gas
Pipeline Co., 243 F.3d 244, 249 (6th Cir. 2001); Pride v. BICCorp., 218
F.3d 566, 578-79 (6th Cir. 2000) (“District courts have broad discretion
to exclude untimely disclosed expert-witness testimony.”). In Nelson,
the Sixth Circuit explained that where a plaintiff has an adequate
opportunity to develop his expert testimony and to respond to the
challenges raised to the testimony, “fairness does not require that
plaintiff . . . be afforded a second chance to marshal other expert
opinions . . . .” Id. at 250. The Nelson court was guided by the Supreme
Court’s decision in Weisgram v. Marley Co.,528 U.S. 440 (2000), in which
the Supreme Court held that after Daubert, parties are expected to put
their best case forward in the first instance and are not entitled under
fairness principles to “shore up their cases by other means [as they
would have] had they known their expert testimony would be found
inadmissible.” Id. at 455-56. In light of these decisions and the
circumstances present in this case, this court finds that principles of
fundamental fairness did not dictate that this petitioner be given
second chance to find an expert after his first expert was rejected. The
petitioner was given1In his decision, Special Master Edwards did,
apparently in the alternative, evaluate Dr.Geier’s expert opinion as
part of the petitioner’s case and found it insufficient to prove
causation as a matter of law. However, in his Motion to Review, the
petitioner does not challenge this holding, but instead argues that he
established causation through his medical records alone. 14ample
opportunity to find an expert and to address the respondent’s objections
to his expert’s opinion. In his response, the petitioner indicated that
he was not interested in providing the Special Master with another
expert opinion. Pet’r December 7, 2004 Notice at 1. In such
circumstances, fundamental fairness did not dictate that the petitioner
be given another opportunity to present a new expert opinion to shore up
his case.C.The Special Master’s Conclusion that the Petitioner Failed to
Prove A Non-Table Injury Was Not Arbitrary or capricious the petitioner
also argues that he established a vaccine-related injury based on the
medical records presented to the Special Master.1The petitioner contends
that “[e]verydoctor within the record of fact, states that the present
disease which I suffer with, is a direct result of the vaccines.” Mot.
Review at 2. In particular, he notes that Dr. Robert Good stated that he
“suffered serum sickness from the vaccines.” Id. In this connection,the
petitioner does not dispute that Dr. Good stated that he could not
determine which vaccine caused his “autoimmune phenomenon.” See Pet’r
Ex. 18 ¶ 10. The petitioner states that he knows that “the vaccines I
received in April May [sic] and June of 1998 have caused my present
disease.” Mot. Review at 2. He does not claim specifically that his
illness was actually caused by the Hepatitis B vaccine.As discussed
above, the Special Master concluded that the petitioner had failed
to15prove causation because the petitioner failed to present evidence to
rule out the effect of his other vaccinations on his illness. The
Special Master noted that Dr. Geier never eliminated the other vaccines
that the petitioner received, such as the rabies and Japanese
encephalitis vaccines, as the primary cause of the petitioner’s
condition. The special master further noted that petitioner’s medical
records indicated that the other non-Vaccine Act vaccines the petitioner
had received were the possible causes of his condition. Decision at 6-7.
For example, one of the petitioner’s doctors identified the Japanese
encephalitis vaccine as the likely “culprit” for his present illness.
Pet’r Ex. 1 at 151. Another identified the rabies vaccine as the cause
of the petitioner’s health problems after being vaccinated. Pet’r Ex. 3
at 3. Even Dr. Good, whom the petitioner relies upon, noted that it was
not possible to determine which of the vaccines caused the petitioner’s
illness. See Mot. Review at 2; Pet’r Ex. 18 ¶ 10. In these
circumstances, the Special Master was not arbitrary or capricious in
concluding that the petitioner had failed to meet his burden of proof on
causation. Where,as here, the petitioner received multiple vaccinations,
the Special Master correctly concluded that the petitioner needed to
rule out the role of the other non-Vaccine Act vaccines in causing the
petitioner’s illness. See Pafford v. Sec’y of Health and HumanServs., 64
Fed. Cl. 19, 35 (2005) (“the attendant burden of proof in an actual
causation case subsumes the obligation to successfully eliminate
potential alternative causes of the alleged injury that have been
identified in the record.” (citing Munn, 970 F.2d at 865)).Where
evidence of causation is not plain from the medical records, an expert
opinion is16needed to establish causation. See Rutigliano v. Valley
Business Forms, 929 F. Supp. 779,783, aff’d, 118 F.3d 1577 (3d Cir.
1997). Here, the medical records do not establish that the petitioner’s
condition was substantially caused by the Hepatitis B vaccine. None of
the doctors who treated the petitioner identified the Hepatitis B
vaccine as a substantial factoring causing his illness. The Special
Master therefore did not err in concluding that the petitioner failed to
prove by a preponderance of the evidence that the Hepatitis B
vaccine,and not some other agent, was the actual cause of his injury.

CONCLUSION the court sympathizes with the petitioner’s circumstances.
However, the court is bound by the requirements of the Vaccine Act and
the law interpreting that statute. Under the Vaccine Act, a petitioner
with a non-Table injury must establish that a vaccine listed Anthe
Vaccine Act actually caused the illness for which the petitioner is
seeking compensation. For all of the reasons set forth above, the
Special Master correctly determined that the petitioner failed to meet
his burden of proof.

Accordingly, the decision of the Special Master is AFFIRMED.IT IS SO
ORDERED.
NANCY B. FIRESTONE
Judge