Heather Rogero, Walter A. Rogero, Ii, W.r., Aminor v. Secretary of Health and Human Services

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HEATHER ROGERO, WALTER A. ROGERO, II,
W.R., A MINOR,
Petitioners-Appellants
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2018-1684
______________________
Appeal from the United States Court of Federal
Claims in No. 1:11-vv-00770-EDK, Judge Elaine Kaplan.
______________________
Decided: September 12, 2018
______________________
HEATHER ROGERO, WALTER A. ROGERO, II, W.R.,
Mountain Home, AR, pro se.
VORIS EDWARD J OHNSON, J R., Vaccine/Torts Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by C. SALVATORE D'ALESSIO, CATHARINE E. REEVES ,
CHAD A. READLER .
______________________

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ROGERO v. HHS 2
Before D YK, L INN, and T ARANTO, Circuit Judges.
P ER CURIAM .
Heather Rogero and Walter Rogero, II, the parents of
W.R., a minor, filed a petition for compensation under the
National Childhood Vaccine Injury Act of 1986, codified as
amended at 42 U.S.C. §§ 300aa-1 to -34. They alleged
that W.R. suffered injuries, including encephalopathy,
caused at least in part by vaccinations that he received
before his second birthday. The special master denied
compensation, and the United States Court of Federal
Claims affirmed. Because the Court of Federal Claims
correctly concluded that the special master’s decision was
not arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law, we affirm.
I
A
Born in September 2008, W.R. received vaccinations
on six occasions before his second birthday. Special
Master Decision at 15–21.1 First: On November 19, 2008,
when he was roughly two months old, W.R. received
Pediarix, which includes “the diphtheria/tetanus/pertussis
(DTaP), hepatitis B, and inactivated polio vaccines), Hib
(Haemophilus influenza type B), and pneumococcal vac-
cination.” Id. at 15. Second: He received Pediarix and
pneumococcal vaccinations at his four-month well-visit on
January 19, 2009. Id. at 15–16. Third: He again received
Pediarix and pneumococcal vaccinations on April 27,
2009. Id. at 17. Fourth: At about eleven months of age,
1 The special master’s decision appears at Rogero v.
HHS, No. 11-770V, 2017 WL 4277580 (Fed. Cl. Sept. 1,
2017). In citing the opinion, we use the pagination as it
was released, not Westlaw pagination.

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ROGERO v. HHS 3
on August 1, 2009, W.R. received a Hib vaccination. Id. at
18. Fifth: On September 24, 2009, he received additional
vaccinations, which the medical records suggest were a
Hepatitis A vaccine and either a Hib or a varicella vac-
cine. Id. at 18–19. Sixth: More than seven months later,
on May 4, 2010, W.R. received a DTaP vaccine. Id. at 20.
Thus, five of the six vaccinations occurred before the
end of 2009. Until the end of 2009, when the family
moved, W.R.’s main doctor was Christopher Dalton, D.O.,
though W.R. saw other medical service providers. The
sixth vaccination—when he was given his fourth DTaP
vaccine, which the Rogeros have emphasized in this
court—occurred in May 2010. By then he was seeing
other providers.
According to the medical records of 2008 and 2009, on
the same day as his first vaccinations, W.R. missed the
developmental milestone of “turns head to sound.” Id. at
15. At four months of age, he missed the “rolling” mile-
stone, and his medical records do not report rolling until
he was about eight months old. Id. at 15–17. At five
months old, on February 13, 2009, he was diagnosed as
underweight and failing to thrive. On March 11, 2009, he
was referred to SoonerStart, an early intervention devel-
opmental therapy program. Id. at 16. At his nine-month
checkup, on June 16, 2009, W.R. was recorded as missing
most of his developmental milestones. He “was assessed
as being underweight, having short stature, and as being
‘off on his development and delayed.’” Id. at 17. Although
he made some improvement and had several appoint-
ments with SoonerStart throughout the summer, he again
missed most of his developmental milestones at his one-
year checkup on September 24, 2009. Id. at 17–18.
The medical records from before 2010 also report oth-
er medical issues. W.R. was assessed as having “bad
cradle cap” (November 19, 2008), episodes of congestion
(November 19, 2008; January 3, 2009), discharge from his

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ROGERO v. HHS 4
eyes (December 3, 2008), and infantile eczema (December
3, 2008; February 13, 2009; and April 27, 2009). Id. at
15–19. By the time he was four months old, W.R. had
started “having problems of spitting up after eating and
while lying down for a diaper change.” Id. at 15. He had
multiple ear infections in 2009, one in early March and a
second in mid-April; he went to the hospital on March 2,
2009 for bronchiolitis; he had allergic reactions, including
an episode of hives that resulted in an urgent care visit on
April 25, 2009; and he was regularly deemed under-
weight. Id. at 16–18.
On December 18, 2009, Dr. Dalton assessed W.R. as
“essentially behind with fine motor skills and language
development,” and he recommended aggressive speech
and physical therapy. Id. at 19. After W.R.’s family
moved, W.R. received his sixth vaccination—on May 4,
2010, at his appointment with Barbara Stevens, M.D.
W.R. had a follow-up appointment with Dr. Stevens three
days later, and the record of that visit contains no report
of regression or any negative symptoms. Id. at 20.
On June 8 and 15, 2010, W.R. was evaluated by a de-
velopmental pediatrician. The notes from the evaluation
state that W.R. “meets the DSM [Diagnostic and Statisti-
cal Manual] criteria for Autism,” but that the pediatrician
was deferring adoption of the diagnostic label until W.R.’s
second birthday, “even though the literature indicates
that the presence of these significant findings is likely to
be consistent.” Id. at 21–22.
In late June 2010, W.R. saw Dr. Stevens for rhinor-
rhea and constipation. The Special Master summarized
the records from Dr. Stevens: “Among other things, those
records from Dr. Stevens reflect a description of W.R. as a
21-month-old boy with failure-to-thrive and autism.” Id.
at 20.
Shortly thereafter, W.R.’s parents changed his prima-
ry care provider. While meeting in July 2010 with a

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ROGERO v. HHS 5
pediatrician at the new provider, Mrs. Rogero asked about
“mercury poisoning” and speculated about potential
causes of W.R.’s autism. Id. at 20 n.33. In late July 2010,
W.R. went to the emergency room and was assessed as
having an allergic reaction. In September 2010, W.R.
visited the emergency room and was assessed as having
an acute upper respiratory infection. Id. at 21.
Between June and September 2010, W.R. saw a num-
ber of specialists. In addition to the developmental pedia-
trician (noted above), W.R. also saw an allergist, several
neurologists, a cardiologist, and a gastroenterologist. In
particular, W.R. saw neurologist Lucy Civitello, M.D., in
late September. The records report an “admitting diagno-
sis” of “[e]ncephalopathy NOS [not otherwise specified]”
and Mrs. Rogero’s statements about W.R.’s diagnoses of
autism and eczema as well as her assertion that he was
possibly injured by aluminum-based vaccines. Id. at 21–
23.
On October 25, 2010, W.R. underwent a 23-hour EEG
study. No seizure activity was seen on the test, and
W.R.’s results were “within normal limits.” Id. at 23.
W.R.’s subsequent medical records indicate that he has
“continued to suffer from an autism spectrum disorder,
developmental delays, and other medical conditions.” Id.
at 24.
B
Acting pro se, Heather and Walter Rogero (the Rog-
eros) filed a petition for compensation on W.R.’s behalf on
November 15, 2011. They ultimately retained counsel,
and the case was assigned to a special master under 42
U.S.C. §§ 300aa-12(c)(1), 300aa-12(d)(3)(A). The special
master received medical records, medical and other
literature, and the testimony of numerous experts on both
sides. The Rogeros sought to prove that the aluminum in
vaccines received by W.R. can cause “neurodevelopmental

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ROGERO v. HHS 6
disorders, such as encephalopathy or autistic symptoms,”
Special Master Decision at 68, and did so in W.R.’s case.
On September 1, 2017, the special master filed his de-
cision. He rejected the Rogeros’ evidence as unpersuasive
for various reasons. He denied compensation, finding
that the Rogeros had not proved causation under the
applicable standards of 42 U.S.C. §§ 300aa-11(c)(1)(C),
300aa-14 and 42 C.F.R. § 100.3, as interpreted by this
court in cases such as Althen v. HHS, 418 F.3d 1274, 1278
(Fed. Cir. 2005), Pafford v. HHS, 451 F.3d 1352, 1355–56
(Fed. Cir. 2006), and Moberly v. HHS, 592 F.3d 1315,
1322 (Fed. Cir. 2010). See also LaLonde v. HHS, 746 F.3d
1334, 1341 (Fed. Cir. 2014). He noted the variety of
causation theories presented by the Rogeros’ evidence and
concluded: “After thoroughly reviewing the record of this
case, I have found all of the causation theories advanced
in this case to be quite unpersuasive.” Special Master
Decision at 47; see id. at 82–83.
In so finding, the special master explained that the
Rogeros’ experts based their causation opinions in key
respects on “facts alleged by W.R.’s parents” that “d[id]
not appear in W.R.’s contemporaneous medical records.”
Id. at 48 (emphasis omitted). He found that the contem-
poraneous records were “more reliable” than the parental
testimony, which he found to be unreliable. Id. Because
the expert testimony was based on assertions of fact that
did not appear in the medical records, the special master
determined that the Rogeros’ experts had relied on “criti-
cal misassumptions of fact” in forming their opinions,
rendering the opinions “fatally flawed” and “wholly unre-
liable.” Id. (emphasis omitted); see id. at 49–57.
The special master also found that the qualifications
of the government’s experts were “overwhelmingly superi-
or” to those of the Rogeros’ experts and, in addition, were
“far more persuasive” in the content of their testimony
than were the Rogeros’ experts. Id. at 48; see id. at 57–68.

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ROGERO v. HHS 7
In particular, he found that the Rogeros’ experts “failed to
demonstrate the basic premise of their causation argu-
ments, that the tiny amount of aluminum in vaccination
can cause any harm to vaccinees” or “that the aluminum
in W.R.’s own vaccines caused him to suffer an ‘encepha-
lopathy,’ caused his autism spectrum disorder, or caused
any other harm.” Id. at 48; see id. at 68–70. Nor did the
Rogeros’ experts prove the allegations that W.R. had an
immune system disorder or a mitochondrial disorder or
was more susceptible to harm by vaccinations because of
his genetic variants. Id. at 48–49; see id. at 70–76.
For these and other reasons, the special master de-
termined that the Rogeros had demonstrated neither that
vaccines could cause injuries of the type W.R. suffered nor
that W.R.’s vaccinations had caused his specific injuries.
Therefore, he determined that the Rogeros were not
entitled to Vaccine Act compensation. Id. at 85.
On October 2, 2017, the Rogeros timely sought review
of the special master’s decision in the Court of Federal
Claims pursuant to 42 U.S.C. § 300aa-12(e). That court
sustained the special master’s decision on January 11,
2018, J.A. 323–33, and the judgment was entered the next
day, J.A. 740.
On March 8, 2018, within the 60 days permitted by 42
U.S.C. § 300aa–12(f), the Rogeros appealed to this court.
They are now acting pro se. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
II
Our task on appeal is to review the special master’s
decision under the same standard of review that is ap-
plied by the Court of Federal Claims. Milik v. HHS, 822
F.3d 1367, 1375 (Fed. Cir. 2016). As relevant here, we
must uphold the special master’s factual findings unless
they are arbitrary and capricious. Id. at 1376. We have
described such review in the Vaccine Act context as

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ROGERO v. HHS 8
“uniquely deferential.” Id. If a special master’s finding is
“based on evidence in the record that [is] not wholly
implausible, we are compelled to uphold that finding as
not being arbitrary or capricious.” Id.
Like all or nearly all Vaccine Act cases, this case in-
volves an individual with undisputed, serious, burden-
some, indeed life-altering medical problems. But the
Vaccine Act does not provide for compensation of all such
conditions. To support compensation under the Vaccine
Act in this case, the Rogeros had to establish causation in
fact of the asserted injury—specifically, W.R.’s neurologi-
cal difficulties. Specifically, they had to show, by a pre-
ponderance of the evidence, (1) a medical theory causally
connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination
was the reason for the injury; and (3) a proximate tem-
poral relationship between vaccination and injury. Al-
then, 418 F.3d at 1278. This is not a case subject to the
special, less burdensome standards for establishing
causation applicable to certain injuries listed on an offi-
cial “table” where symptoms appear in a specified time.
See 42 U.S.C. § 300aa–14; 42 C.F.R. § 100.3. Although
one of the injuries claimed, an “encephalopathy,” can be a
table injury, see 42 C.F.R. § 100.3, there was no allegation
and proof in this case that W.R.’s symptoms appeared in
the statutorily required time, and so the case was pre-
sented and tried under the usual standards requiring
proof of causation.
The special master found that the Rogeros’ proof
failed under all three of the Althen requirements. He
found that the proof (1) did not establish that “aluminum
adjuvants in vaccines can cause neurological injury,” (2)
did not establish “that it is ‘more probable than not’ that
W.R.’s vaccinations containing aluminum adjuvants did
contribute to the causation of one or more of W.R’s own
neurologic or autoimmune conditions,” and (3) also did not
establish “a proximate temporal relationship between the

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ROGERO v. HHS 9
vaccination and the injury.” Special Master Decision at
84 (emphasis omitted). On appeal, we conclude, the
Rogeros have not shown that these findings, which fol-
lowed the established legal standards, were arbitrary and
capricious.
The Rogeros’ contentions, at bottom, take issue with
the special master’s interrelated findings that deemed the
medical records as to W.R.’s conditions more reliable than
the Rogeros’ testimony, that credited the government’s
experts over the Rogeros’ experts, and that accepted the
autism diagnosis over some other “encephalopathy”
diagnosis. In all of those respects, however, we see no
basis for rejecting the special master’s findings as arbi-
trary and capricious.
The special master determined that it was appropri-
ate to “credit the contemporaneous medical records over
the assertions” of the Rogeros, whose testimony about
conditions he did not find reliable. Special Master Deci-
sion at 49 (emphasis omitted). Determinations of relative
weight of different evidence are generally for the trier of
fact. See Moberly, 592 F.3d at 1325–26. More particular-
ly, it is a familiar and reasonable assessment that con-
temporaneous documentary evidence of the sort at issue
here, prepared by professionals doing their jobs inde-
pendently of litigation, can be (though is not necessarily)
more reliable than testimony of interested parties. See
Cucuras v. HHS, 993 F.2d 1525, 1528 (Fed. Cir. 1993);
Reusser v. HHS, 28 Fed. Cl. 516, 523 (1993) (stating that
“written documentation recorded by a disinterested
person at or soon after the event at issue is generally
more reliable than the recollection of a party to a lawsuit
many years later”); cf. Randall Mfg. v. Rea, 733 F.3d
1355, 1362–63 (Fed. Cir. 2013) (documentary evidence
may be more reliable in patent context); Sandt Tech., Ltd.
v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350–51
(Fed. Cir. 2001) (documents preferred to corroborate

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ROGERO v. HHS 10
inventor testimony). We see nothing unreasonable about
applying that rationale in this particular case.
The special master likewise had a sufficient basis for
finding the testimony of the government’s experts more
persuasive than that of the Rogeros’ experts. That finding
rested in part on detailed comparisons of the experts’
qualifications. Special Master Decision at 57–63. It
rested in part on detailed explanations of problems with
the content of the testimony of the Rogeros’ experts,
including problems of inconsistency and inadequate
support in medical literature. Id. at 63–68.
Perhaps most importantly, the special master’s find-
ings rested on the strength of the explanations given by
the government’s experts, especially as to the deficiencies
of key bases for the assertions of the Rogeros’ experts.
For example, the special master reasonably credited
government expert Dr. Edward Cetaruk’s explanation
that the Rogeros’ experts had no sound scientific founda-
tion for finding injury causation from “the tiny amount of
aluminum” in the vaccines at issue. Id. at 69. Similarly,
the special master reasonably credited government expert
Dr. Max Wiznitzer’s explanation that the contemporane-
ous medical records “show that W.R.’s development grad-
ually got further and further behind the typical child’s
development course, without a series of distinct regres-
sions after each vaccine administration, as some of [the
Rogeros’] experts assumed.” Id. at 56; see id. at 50–56.
Likewise, the special master reasonably credited govern-
ment expert Dr. Andrew MacGinnitie’s explanation of
why W.R.’s medical records contradicted the assertion
that W.R. had abnormal immune reactions to the vaccina-
tions. Id. at 70. With respect to the Rogeros’ assertions
about genetic variants and mitochondrial dysfunction, the
special master examined in detail the weaknesses in the
testimony by the Rogeros’ experts as shown by the testi-
mony of the government’s experts. Id. at 72–76. The
Rogeros have not shown that this analysis—including its

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ROGERO v. HHS 11
repeated demonstration of how the Rogeros’ experts relied
on factual assumptions not supported by the contempora-
neous medical records—was arbitrary and capricious.
The Rogeros also criticize the special master’s decision
for its crediting of the diagnosis of autism, arguing that it
should have focused on “encephalopathy.” But as an
initial matter, there was a sufficient basis in the record
for the special master to accept the autism diagnosis. The
medical records, which we have summarized above,
support the finding that “W.R.’s medical records show
that he has been definitively diagnosed with an autism
spectrum disorder.” Id. at 80.2 And the government’s
expert, Dr. Wiznitzer, confirmed the propriety of the
diagnosis based on the records and explained the reasons
in adequate detail. See id. at 45–46, 56, 81 n.68 (recount-
ing testimony).
And in any event, the special master did not limit his
focus. He concluded that the Rogeros had “failed to show
that the aluminum in vaccines harmed W.R. in any way”
and that “the outcome of this case would be no different if
W.R. had never been diagnosed with an ASD.” Id. at 80–
81 (emphasis added). The Rogeros have not shown lack of
support for that finding. And that finding makes immate-
rial their contention that W.R. met diagnostic criteria for
“encephalopathy” as defined in the Table and the DSM-
IV—neither of which, moreover, was a basis for any cited
testimony by the Rogeros’ experts.
2 It has not been shown that the issues before us
are materially affected by any difference between “au-
tism” and (a newer nomenclature) “autistic spectrum
disorder,” both terms having been used throughout this
case.

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ROGERO v. HHS 12
III
The Rogeros have not shown reversible error—in par-
ticular, they have not shown arbitrary and capricious fact
finding—in the special master’s determination that they
failed to show by a preponderance of the evidence that
W.R.’s vaccinations caused any of his alleged injuries.
Accordingly, we affirm the Court of Federal Claims’
decision.
No costs.
AFFIRMED

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