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Milik v. Sec'y of HHS

United States Court of Appeals, Federal Circuit

May 20, 2016


          Appeal from the United States Court of Federal Claims in No. 1:01-vv-00064-PEC, Chief Judge Patricia E. Campbell-Smith.


         ROBERT JOEL KRAKOW, Law Office of Robert J. Krakow, New York, NY, argued for petitioners-appellants.

         ROBERT 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.

         Before O'MALLEY, WALLACH, and HUGHES, Circuit Judges.


         O'Malley, Circuit Judge.

         Petitioners 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 affirm.

         I. Background

         A. Factual Background

         The 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 English. Id.

         On 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.

         On 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.

         In July 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.

         Dr. 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." Id.

         The 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.

         B. Procedural History

         The 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.

         The 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.

         The 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.

         In 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." Id.

         In 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 government's objection.

         On 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 ...

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