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In the following cases, Rotoli, Myers, Torbett, Porter, and Hager vs. the Secretary of Health and Human Services, five (5) petitioners alleged that the hepatitis B vaccine had caused them to suffer autoimmune hepatitis. After several days of hearing, a special master determined that the petitioners' expert immunologist, who testified on behalf of all five petitioners, was neither credible nor truthful when he testified that vaccines had caused these injuries. The special master dismissed all five petitions. In so doing, he threatened to deny the fees of the petitioners' expert and their attorneys because, in his view, the claims had no reasonable basis. He also advised the petitioners to accept his decisions as final. In this regard, he warned, special masters' decisions with respect to findings of credibility, like the ones he made in these cases, were "virtually unreviewable" by higher courts. Undaunted by the threats of the special master, the petitioners moved for review of all five decisions. In decisions issued on August 17, 2009, the U.S. Court of Federal Claims agreed with the petitioners that the special master's decisions "were not in accordance with law." See Rotoli v. Sec'y of HHS, No. 99-644V; Myers v. Sec'y of HHS, No. 99-631V; Torbett v. Sec'y of HHS, No. 99-660V; Porter v. Sec'y of HHS, No. 99-639V; and Hager v. Sec'y of HHS, No. 01-307V (USCFC Aug. 17, 2009). In this regard, the court explained, a special master's job is to assess the reliability of the evidence, not to determine the credibility of an expert witness. See Andreu ex. rel. Andreu v. Sec'y of HHS, 569 F.3d 1367 (Fed. Cir. 2009). In these five cases, the court found, the special master had impermissibly cloakedhis denial of the petitions "under the rubric of a credibility determination." This, the court found, was not in accordance with law. In addition, the court found, it was error for the special master to so "egregiously" attack the credibility of the petitioners' expert witness. This error, the court held, "tainted the entirecausation analysis" of the special master. For this reason, the court discarded the special master's decisions, re-examined the evidence, and issued new findings in each case. The court found that three petitioners are entitled to compensation and that two petitioners are not.
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