MAREK MILIK, JOLANTA MILIK, LEGAL GUARDIANS AND PARENTS OF A.M., Petitioners-Appellants
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee
from the United States Court of Federal Claims in No.
1:01-vv-00064-PEC, Chief Judge Patricia E. Campbell-Smith.
JOEL KRAKOW, Law Office of Robert J. Krakow, New York, NY,
argued for petitioners-appellants.
PAUL COLEMAN III, Torts Branch, Civil Division, United States
Department of Justice, Washington, DC, argued for
respondent-appellee. Also represented by GABRIELLE M.
FIELDING, VINCENT J. MATANOSKI, RUPA BHATTACHARYYA, BENJAMIN
C. MIZER, LISA WATTS.
O'MALLEY, WALLACH, and HUGHES, Circuit Judges.
Marek and Jolanta Milik (collectively, " the
Miliks" ), on behalf of their son, A.M., appeal the
final judgment of the United States Court of Federal Claims
affirming a special master's decision denying
compensation under the National Childhood Vaccine Injury Act
of 1986 (codified as amended at 42 U.S.C. § §
300aa-1 to -34) (" the Vaccine Act" ). Milik v.
Sec'y of Health & Human Servs., 121 Fed.Cl. 68
(2015). The special master found that the Miliks failed to
prove by a preponderance of the evidence that a measles,
mumps, and rubella (" MMR" ) vaccine caused A.M. to
develop a severe neurological condition, involving
developmental delay, spastic diplegia, and motor
difficulties. Milik v. Sec'y of Health & Human
Servs., No. 01-64V, 2014 WL
6488735 (Fed. Cl. Spec. Mstr. Oct. 29, 2014) ("
Special Master Decision " ). Because the Court
of Federal Claims correctly concluded that the special
master's decision was not arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law, we
relevant facts are primarily those found by the special
master in his detailed October 29, 2014 decision. A.M. was
born on December 5, 1993, and was raised in a predominately
Polish-speaking household. Special Master Decision,
2014 WL 6488735, at *3. At A.M.'s
fifteen-month routine examination, the pediatrician noted
that A.M. was " doing well" and was a " well
child." Id. In December 1995, when A.M. was two
years old, his pediatrician noted that " A.M. responded
to sound, used 4 to 10 words ('mama' and
'dada' were noted specifically), walked up stairs,
and walked independently." Id. During
subsequent visits in 1996, A.M.'s new pediatrician, Dr.
Mitchell Weiler, noted that A.M. could speak several words in
January 29, 1998, when A.M. was four years and one month old,
he received his second MMR vaccination. Id. Eleven
days later, A.M. returned to Dr. Weiler's office
complaining of a sore throat. " Dr. Weiler diagnosed
A.M. with pharyngitis (throat swelling) and otitis media (ear
infection), and treated him with an antibiotic."
Id. Dr. Weiler rechecked A.M.'s ears on February
23, 1998. His notes from that appointment stated that A.M.
had a " Trauma. Slipped/Fell" and that he had a
limp, but he was seen by a podiatrist and the x-rays were
negative. [WL]at *4.
March 2, 1998, A.M. saw Dr. Joseph Maytal, a pediatric
neurologist, for complaints of limping. Id. Dr.
Maytal made several observations during the examination,
including that A.M. did not know his last name, he only spoke
single words in English, and his parents were unsure if he
could use plurals. Id. Dr. Maytal gave A.M. a
provisional diagnosis of " Ataxia/Unsteadiness and
Developmental Delay." Id. He also opined that
A.M. had two issues:
One is the longstanding issue of this youngster who
is globally delayed mostly in the language/communicative
skills but also in his fine motor and possibly in his gross
motor skills . . . . The second issue is his acute symptoms
of " limping." As a precaution I would like to
consider the reason for his limping . . . with an MRI.
Id. (emphasis added). According to Dr. Maytal, the
MRI showed " diffuse white matter demyelination which is
consistent with demyelinating process most likely some form
of leukodystrophy." Id.
1998, A.M. saw Dr. Krystyna Wisniewski, a pediatric
neurologist who was part of an interdisciplinary team of
specialists at the George A. Jervis Clinic, New York State
Institute for Basic Research in Developmental Disabilities
(" IBR" ). Dr. Wisniewski noted that A.M.'s
" cognitive function seems to be appropriate for his
chronological age. He knows colors, numbers, and follows
three step commands. His visual perception seems to be
impaired." Milik, 121 Fed.Cl. at 75. Dr.
Wisniewski diagnosed A.M. with " spastic diplegia, more
right than left." Special Master Decision,
2014 WL 6488735, at *4.
Maria Malinowska, a bilingual psychologist, evaluated A.M. in
September 1998. Id. at *5.
She determined that, at four years and nine months of age,
A.M. had " motor and speech/language difficulties as
well as attentional problems." Id. Dr.
Malinowska concluded that these difficulties " are most
likely due to an organic brain dysfunction interfere [sic]
with his intellectual and adaptive functioning."
Id. A.M. also saw Dr. Ricardo Madrid for a
neuromuscular evaluation. Dr. Madrid opined that A.M.'s
condition was " suggestive but not diagnostic of post
infectious or post vaccination acute encephalomyelitis."
Id. But because A.M. did not experience seizure,
fever, and altered mental state--symptoms that are typically
expected with a vaccine complication--Dr. Madrid doubted that
A.M.'s disorder arose from a " neurological
complication associated with MMR vaccination."
medical records provide little information regarding
A.M.'s care after 1998. A group of physicians reevaluated
A.M.'s condition beginning in 2011. At that time, A.M.
was wheelchair-bound and unable to care for himself. In March
2012, when he was eighteen years old, A.M. saw a specialist
in medical genetics who opined that " [t]he finding of
apparently normal development followed by a sudden loss of
abilities following an insult with severe demyelination is
suggestive of vanishing white matter disease. This often
presents during childhood with ataxia following infection or
fright." Id. at *6.
Miliks filed a petition for compensation on January 31, 2001,
on behalf of A.M., alleging that he " suffered injuries
including spastic diplegia (paraplegia) causing [him] to walk
with a permanent and debilitating limp, severe gross and fine
motor difficulties as well as difficulties learning, all of
which were 'caused-in-fact by administration of the MMR
vaccination.'" Milik, 121 Fed.Cl. at 70-71.
The Secretary filed a report opposing the petition for
compensation. At the Miliks' request, proceedings were
delayed for several years to allow time to obtain counsel and
file expert reports.
Miliks filed two expert reports, the first of which was a
one-page letter from Dr. Logush, a pediatric neurologist at
the IBR where A.M. was treated. In that letter, Dr. Logush
stated that A.M.'s history was " suggestive but not
diagnostic of post infectious or post vaccine,
immunologically induced acute disseminated encephalitis vs.
encephalomyelitis." Special Master Decision,
2014 WL 6488735, at *25. Dr. Logush
offered the same conclusion after he conducted a follow-up
examination of A.M. in February 2011. Milik, 121
Fed.Cl. at 77. Although Dr. Logush participated in a
telephone conference with the special master where he stated
that it was " very probable" that the MMR vaccine
caused A.M.'s injury, he did not ultimately testify as
the Miliks' expert. Special Master Decision,
2014 WL 6488735, at *25.
Miliks' second expert report, filed in November 2011, was
from Dr. Nizar Souayah, the neurologist who testified as
their expert witness. Dr. Souayah is board-certified in
neurology, electrodiagnostic medicine, and neuromuscular
medicine. Id. at *8. Dr.
Souayah opined that A.M.'s condition was "
consistent with an extensive white matter disease that
started approximately 3 weeks after MMR vaccination" and
that " A.M. suffered an 'encephalopathy or
encephalitis,' caused by the MMR vaccine, at that
time." Id. at *9. In
both his written report and his testimony, Dr. Souayah opined
that the MMR vaccine caused A.M.'s injury because: (1)
A.M. experienced normal health and development before the
vaccine; (2) 22 days after receiving the MMR vaccination,
A.M. developed a limp; (3) no other cause for A.M.'s
injury was identified, despite extensive testing; and (4) the
MMR vaccine has been suspected of causing central nervous
system damage. Id.
response, the government filed two expert reports from Dr.
Michael Kohrman, who is " board-certified in neurology
and psychiatry, with a special competency in child neurology
and sleep medicine, and also board-certified in
pediatrics." Id. Dr. Kohrman opined that A.M.
had a pre-existing global developmental delay, and
that his condition is " likely to be a result of a
'vanishing white matter' disease, such as an
unidentified form of leukodystrophy, that began around two
years of age when the first signs of developmental delay
appeared." Id. In the alternative, Dr. Kohrman
submitted that, even if A.M.'s symptoms did not appear
until after the MMR vaccination, " the cause would still
more likely have been an infection from which A.M. was
suffering at the time, rather than his vaccination."
March 2013, the special master held an evidentiary hearing
and heard testimony from Dr. Souayah and Dr. Kohrman. Both
parties filed post-hearing briefs. A year after the hearing,
the Miliks filed a motion for consideration of new medical
evidence, seeking to introduce a letter from Dr. Maytal,
A.M.'s pediatric neurologist.
Id. at *7. In that letter, Dr. Maytal sought to
clarify that his use of the term " longstanding" in
reference to A.M.'s global delay should be interpreted as
" a condition existing prior to examination," and
that his group was " unable to determine the time length
of symptoms." Id. at
*12. The special master admitted the letter over the
October 29, 2014, the special master issued a detailed
decision denying the Miliks' petition for compensation.
At the outset, the special master noted that, although both
experts agreed that A.M. suffers from a severe developmental
disorder, they disagreed as to the cause. Weighing the expert
testimony, the special master found Dr. Kohrman--the
government's expert--more persuasive, and credited ...