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

********************      *
SINIDU ROBI and           *
YILAK KEBEBEW, legal      *                          No. 12-352V
representatives of a minor child,
                          *                          Special Master Christian J. Moran
DAGIM YILAK,              *
                          *                          UNPUBLISHED
             Petitioners, *
                          *                          Filed: April 4, 2014
v.                        *
                          *                          Contemporaneous records; testimony
SECRETARY OF HEALTH       *                          contradicting records; seizure
AND HUMAN SERVICES,       *                          disorder; onset.
                          *
             Respondent.  *
******************** *

Simina Vourlis, Law Offices of Simina Vourlis, Columbus, Ohio, for petitioners.
Jennifer L. Reynaud, United States Dep’t of Justice, Washington, DC, for
respondent.

                              RULING FINDING FACTS1

       Sinidu Robi and Yilak Kebebew filed a petition for compensation under the
National Childhood Vaccine Injury Compensation Program (the “Vaccine Act” or
“Program”), 42 U.S.C. § 300aa-10 et seq. (2006), alleging that their son, Dagim,
suffered a Table encephalopathy as a result of the vaccines he received on June 18,
2009. Petition at ¶¶ 3-4, 6-9. Alternatively, petitioners allege that Dagim suffered
other vaccine-caused injuries, including seizures, infantile spasms with intractable
epilepsy, hypertonia, and developmental delays. Id. at 5.


       1
         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, Ms. Robi and Mr. Kebebew filed
medical records and affidavits. The recitation of events in the affidavits does not
match entirely with the events set forth in the medical records. Specifically, the
affidavits assert that Dagim experienced some health problems that are not
documented in a medical record created when Dagim was supposedly having his
first seizures. When special masters are confronted with discrepancies between
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 hearing was held on June 20, 2013, during which Dagim’s mother and
father, Ms. Robi and Mr. Kebebew, testified. Dagim’s brother, Kalikeyas
Hailemariam, and his aunt, Frehiwot Kebebew, also testified. All four witnesses
appeared in person. Ms. Robi, Mr. Kebebew, and Frehiwot Kebebew testified with
the assistance of an interpreter.

       Following the hearing, petitioners filed their proposed findings of fact.
Petitioners’ Proposed Findings of Fact (“Pet’rs’ Proposed Findings”). Thereafter,
respondent filed her response to petitioners’ proposed findings of fact.
Respondent’s Response to Pet’rs’ Proposed Findings of Fact (“Resp’t’s Resp.”).
With these submissions, findings of facts are ready to be made.

                           Standard for Finding Facts

      Petitioners are required to establish their cases 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 that are 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

                                         2
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 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
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 (Fed. Cl. 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).


                                         3
       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).

      In determining the accuracy and completeness of medical records, 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. The Court noted that
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 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 2014 WL
1258137 (Fed. Cir. Mar. 28, 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), aff’d, 968 F.2d 1226 (Fed. Cir. 1992)
(“[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.”) (citation omitted).

                                          4
      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).

                               Summary of Parties’ Positions

      The parties dispute when Dagim’s seizures began. Ms. Robi and Mr.
Kebebew argue that Dagim’s seizures began on the evening of June 18, 2009, less
than 24 hours after Dagim received his two-month vaccinations. Pet’rs’ Proposed
Findings at 2-3. The Secretary disagrees, however, noting that petitioners’
proposed factual finding concerning onset is not supported by Dagim’s
contemporaneous medical records.

       Ms. Robi and Mr. Kebebew offer their own testimony and the testimony of
their close relatives to describe the changes in Dagim’s health soon after the
vaccinations he received during his two-month well-child visit on June 18, 2009.2
The details regarding petitioners’ testimonial assertions are found in the section
immediately below. The subsequent section lists the Secretary’s challenges to
petitioners’ assertions. The Secretary focuses on the records created between
Dagim’s two-month vaccinations and his visit to a neurologist on December 9,
2009, a period of almost six months. She emphasizes the absence of reports

       2
           The following provides a brief biographical sketch of each witness:

        Sinidu Robi is the wife of Yilak Kebebew and mother to their three children. Transcript
(“Tr.”) at 10; Pet’rs’ exhibit 14 at ¶ 1 (Ms. Robi’s first affidavit).

        Yilak Kebebew is the husband of Sinidu Robi and father to their three children. Tr. 10;
Pet’rs’ exhibit 15 at ¶ 1 (Mr. Kebebew’s first affidavit).

        Kalikeyas Hailemariam is the brother of Dagim Yilak. At the time he offered his
testimony, Kalikeyas was 14 years old. He was 10 years old when Dagim was born. Tr. 67-68;
Pet’rs’ exhibit 22 at ¶¶ 1-2.

        Frehiwot Kebebew is the sister of Yilak Kebebew. She has lived with her brother and his
wife since she has been in the United States, which includes the time period when Ms. Robi was
pregnant with Dagim and continuously to the date of the hearing. Tr. 96-97; Pet’rs’ exhibit 19 at
¶¶ 1-2 (Ms. Kebebew’s affidavit).

                                                 5
documenting the seizure-like activity petitioners contend began soon after Dagim’s
vaccinations. Additionally, she cites histories provided by petitioners in the
months after Dagim’s vaccinations that contradict their current position as to when
Dagim’s seizures began.

                               Petitioners’ Factual Assertions

       Ms. Robi and Mr. Kebebew assert that Dagim was a healthy child at the time
of his two-month vaccinations on June 18, 2009. Pet’rs’ Proposed Findings at 2.3
During the evening of June 18, 2009, Dagim allegedly developed a fever and
began crying inconsolably. Pet’rs’ Proposed Findings at 2. Ms. Robi testified that
she called Dagim’s pediatrician that evening and reported his fever and continuous
crying. Pet’rs’ Proposed Findings at 2-3.

       Ms. Robi and her husband allege that:

               From the evening of June 18, 2009 and each and every day
               thereafter, Dagim exhibited seizure symptoms of jerking and
               flipping (rolling) his eyes up (back). Dagim’s head would fall
               forward. He continued to cry nonstop. He would wake from
               sleep jerking and flipping (rolling) his eyes (up). He ceased to
               make eye contact and to recognize his family. Dagim became a
               different person.

Pet’rs’ Proposed Findings at 3. Ms. Robi and Mr. Kebebew add that, within a week
of Dagim’s vaccinations, Ms. Robi called the pediatrician’s office to report these
behaviors, which they allege Dagim continued to exhibit for the next seven weeks.
Pet’rs’ Proposed Findings at 3-4.

     Ms. Robi testified that she informed Dagim’s pediatrician of his seizure
symptoms at Dagim’s four-month well-child visit on August 14, 2009. Pet’rs’
Proposed Findings at 4. Ms. Robi and Mr. Kebebew suspect, however, that
Dagim’s pediatrician may have misunderstood what Ms. Robi was attempting to
communicate. Pet’rs’ Proposed Findings at 4.


       3
         All citations concerning petitioners’ factual assertions are made to Petitioners’ Proposed
Findings of Fact. In their Proposed Findings of Fact, petitioners cite extensively to the transcript,
referencing specific page and line numbers.


                                                 6
                                    The Secretary’s Challenges

       In her response to petitioners’ Proposed Findings of Fact, the Secretary notes
that the parties agree that Dagim was healthy and developing normally when he
received his two-month vaccinations on June 18, 2009. Resp’t’s Resp. at 2.
Additionally, the Secretary acknowledge that, on October 1, 2009, Dr. Michael
Perry expressed his concern that Dagim’s behavior, captured on video on
September 27, 2009, was consistent with infantile spasms. Resp’t’s Resp. at 2.

       The Secretary, however, challenges petitioners’ assertions concerning the
onset of Dagim’s abnormal behavior. Specifically, she points to the lack of
contemporaneous medical records supporting petitioners’ assertions that Ms. Robi
called Dagim’s pediatrician’s office on the evening of June 18, 2009, and two more
times within a week of his two-month vaccinations. Resp’t’s Resp. at 2-3. The
Secretary also notes contemporaneous medical records that conflict with the
reports of Dagim’s abnormal behaviors, including his head dropping and nonstop
crying, that Ms. Robi allegedly made to Dr. Haase on August 14, 2009. Resp’t’s
Resp. at 3-4.

      The Secretary references several medical records which indicate that
Dagim’s condition began later than Ms. Robi and Mr. Kebebew allege. For
example, during Dagim’s hospitalization at Nationwide Children’s Hospital in
early October 2009, Ms. Robi reported that Dagim’s abnormal behavior had been
happening for about 2 months. Resp’t’s Resp. at 5 (citing exhibit 7.12 at 43).4




       4
         Respondent cited several notations in Dagim’s medical records placing the onset of his
condition around October 10, 2009. Resp’t’s Resp. at 5-6 (citing exhibit 7.12 at 44 (“Dagim is
[an] almost 6 month old male with a 2 month history of jerks.”); exhibit 7.12 at 59 (“Almost 6
month old male with 2 months of progressive jerking activity and regression of milestones.”);
exhibit 7.12 at 85 (“His parents report ‘jerking’ movements for the last two months. . . . The
parents point out that he was sleeping well until about 2 months of age and then started waking
up and having inconsolable crying.”).


                                               7
                                         Finding of Fact5

      Based on the record as a whole, Dagim’s excessive eye blinking first
occurred on or about August 10, 2009.

       For his four-month well baby appointment, Ms. Robi took Dagim to see Dr.
Haase at Children’s Close to Home on August 14, 2009. Exhibit 7.12 at 16-19;
exhibit 23; Tr. 46. Dr. Haase’s report presents Dagin as a normally developing
infant and suggests no abnormal behaviors. Id. Although Dr. Haase did not record
any problems with Dagim, it is possible that Ms. Robi’s limited English impeded
her ability to communicate information about Dagim accurately.

       Four days later, on August 17, 2009, Ms. Robi took Dagim to Dr. Perry of
Building Blocks Pediatrics. Exhibit 5.2 at 31. The short interval between these
appointments suggests that Dr. Haase did not address a concern that Ms. Robi
raised or attempted to raise on August 14. For Ms. Robi to be frustrated enough to
switch pediatric practice groups, Dagim’s problem must have existed before his
August 14, 2009 visit to Dr. Haase.

      The question of how long before August 14, 2009, Dagim’s problem began
can be answered, in part, by the record from Dr. Perry’s August 17, 2009
evaluation. Dr. Perry recorded that Dagim had watery eyes for seven days.
Exhibit 5.2 at 31, 53. Ms. Robi easily could have confused repeated blinking with
watery eyes. Furthermore, medical records from early October 2009, indicate that

       5
          In evaluating the record as a whole, including Dagim’s medical records and the
affidavits and hearing testimony of Ms. Robi, Mr. Kebebew, and their witnesses, the undersigned
considered several factors.
         First, the undersigned considered that Ms. Robi, Mr. Kebebew, and Frehiwot Kebebew
were born in Ethiopia. Exhibit 1 at 1; Tr. 42, 95-96. The range of conditions that would prompt
a person to call or to visit a doctor may be different in Ethiopia than in the United States.
Additionally, the undersigned recognizes that, as non-native speakers, Ms. Robi and Mr.
Kebebew’s reports to Dagim’s health care providers may not have been fully understood and
thus not accurately recorded.
         Second, the undersigned acknowledges that the record from Dagim’s August 14, 2009
visit to Dr. Haase may not be entirely accurate. Dr. Haase has a busy practice and relies on
parents of infants to describe their child’s problems. Dr. Haase may not have comprehended
everything that Ms. Robi was attempting to communicate.
         Finally, in light of Ms. Robi and Mr. Kebebew’s heartfelt testimony, the undersigned is
certain that they are loving and caring parents who will go to great lengths to care for their
children.


                                               8
Dagim’s problems began two months earlier, in August 2009. Exhibit 7.12 at 43-
44, 59, 85. If these records—created close in time to the events in question—are
correct, then they support a finding that the onset of Dagim’s condition was in
early August 2009, on or about August 10.

       Crediting Ms. Robi’s testimony that the onset of Dagim’s condition was
approximately seven weeks earlier than August 10, 2009, is difficult. In Ms.
Robi’s account, Dagim was never the same after his June 18, 2009 vaccinations.
See exhibit 14 at ¶ 9; exhibit 19 at ¶ 3. Because Ms. Robi and Mr. Kebebew are
loving parents, it is unlikely that they would fail to seek medical attention for their
child when he changed dramatically. Ms. Robi’s scheduling of an appointment
with Dr. Perry following Dagim’s visit to Dr. Haase just days earlier demonstrates
that she and her husband were willing to take swift action to address their concerns
about Dagim’s condition.6

                                       Conclusion

      The parties are ordered to provide this ruling to any expert they retain. If the
expert’s opinion is not consistent with these findings of fact, the opinion is likely to
not 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”).

       A status conference is set, sua sponte, for Wednesday, April 24, 2013 at
1:00 P.M. Eastern Time. The petitioners should be prepared to propose the next
step in this case.

       IT IS SO ORDERED.

                                                 S/Christian J. Moran
                                                 Christian J. Moran
                                                 Special Master




       6
        Their delay in following through with Dr. Perry’s recommendation that Dagim undergo
an EEG is might be explained by language barriers.

                                             9
