Allison Hager v. Secretary of Health and Human Services

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

ALLISON HAGER,
Petitioner-Appellee,
V.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellant.

2011-5104

Appeal from the United States Court of Federal
Claims in case no. 01-VV-307, Judge Nancy B. Firestone.

ON MOTION

Before RADER, Chief Judge, LINN and PROST, Circuit
Judges.

RADER, Chief Judge.

ORDER

The Secretary of Health and Human Services moves
for summary reversal of the judgment of the United

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States Court of Federal Claims in light of our recent
decision in Porter v. Secretary of Health and Human
Services, 663 F.3d 1242 (Fed. Cir. 2011). Allison Hager
opposes.

This appeal arises out of Hager's petition for compen-
sation under the National Childhood Vaccine Injury Act of
1986. Hager asserted that the hepatitis B vaccine caused
her to suffer autoimmune hepatitis, and that other disor-
ders, including primary sclerosing cholangitis (PSC),
developed as a consequence of her autoimmune hepatitis.

The petition was assigned to a special master who
consolidated Hager's case with those of others petitioners,
including the petitioners in Porter, all of who sought
compensation relating to the hepatitis B vaccine. All of
the petitioners relied upon the testimony and medical
theories of Dr. Joseph Bellanti in support of their peti-
tions.

The special master in relevant part denied the peti-
tions on the ground that Dr. Bellanti's expert testimony
and medical theories did not provide a credible explana-
tion of how the hepatitis B vaccine could cause autoim-
mune hepatitis or her other conditions. The Court of
Federal Claims reversed. The Court of Federal Claims
determined that it was inappropriate for the special
master to consider the petitioner's expert's credibility in
evaluating a petitioner's showing of causation in fact, and
Dr. Bellanti's medical theories sufficiently established the
vaccine caused her condition.

The government appealed, and Hager's case was
stayed pending Porter. On November 22, 2011, this court
in Porter reversed the judgment of the Court of Federal
Claims and remanded for affirmance of the special mas-
ter's determination that the petitioners were not entitled

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to compensation under the Vaccine Act. Porter, 663 F.3d
1242.

Now, the government seeks summary reversal asking
this court to order reinstatement of the special master's
determination that Hager is not entitled to compensation
under the Vaccine Act in view of Porter. Summary dispo-
sition of a case "is appropriate, inter alia, when the posi-
tion of one party is so clearly correct as a matter of law
that no substantial question regarding the outcome of the
appeal exists." Joshua v. United States, 17 F.3d 378, 380
(Fed. Cir. 1994).

This court agrees that summary reversal is warranted
here. In Porter, this court examined the special master's
determination that Dr. Bellanti's theories were not credi-
ble and not sufficient to establish the hepatitis B vaccine
could cause autoimmune hepatitis, and in doing so held
that the special master's decision was not arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.

Because the theories of causation reviewed in Porter
are identical to those that were before the special master
in Hager's case, the government is correct that Porter has
foreclosed any entitlement to compensation under the
Vaccine Act by Hager for autoimmune hepatitis purport-
edly caused by the hepatitis B vaccine. As a result, we
summarily reverse the judgment of the Court of Federal
Claims.

Accordingly,

IT IS ORDERED THAT:

(1) The motion is granted. The judgment of the Court
of Federal Claims is summarily reversed.

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HAGER v. HHS

(2) Each side shall bear its own costs.

FOR THE COURT

MAY 0 1 2012

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Ronald C. Homer, Esq.
Sarang V. Damle, Esq.

s25

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 0 1 2012
JAN HORBALY
CLERK