Brook v. HHS, No. 04-405V (Fed. Cl. Spec. Mstr. May 14, 2015)(Hastings)
Denial of entitlement in a case alleging an autoimmune encephalopathy resulting in an autism spectrum disorder (ASD) caused in fact, or significantly aggravated, by MMR, varicella, and/or pneumococcal vaccines.
Dr. Joseph Bellanti, an immunologist, testified for Petitioner and opined that the child had suffered an autoimmune encephalopathy resulting in global developmental delay, and symptoms consistent with ASD. Dr. Bellanti proposed two similar mechanisms, polyclonal activation or bystander activation, due to viral persistence of MMR or varicella.
Dr. Christine McCusker, an immunologist, testified for Respondent and did not disagree that the child had suffered a static encephalopathy, but disagreed that it was autoimmune. Dr. McCusker also opined that the child’s developmental problems preceded the vaccines and his developmental course was unchanged after the vaccines.
The court rejected the testimony of the parents that the child had a high fever, and was screaming and crying immediately after the vaccines, which testimony was at odds with the contemporaneous medical records. Likewise, the special master rejected Dr. Bellanti’s testimony that the child experienced a developmental regression following the vaccines, finding that conclusion was not supported by the medical records or the parental testimony. The evidence was undisputed that the child had suffered hypoxia at birth and was somewhat delayed prior to the vaccines, had already been in PT and his language was being monitored. These factual findings were fatal to the claim, as they were essential to the expert’s testimony on Althen prongs two and three.
Special Master Hastings nevertheless analyzed the causation theory presented by Dr. Bellanti. The court held that the evidence did not support a conclusion under Althen prong one that the vaccines given could cause an autoimmune encephalopathy or that an autoimmune encephalopathy could result in ASD-like symptoms. In so ruling, the court noted that no literature had been presented in support of the proffered medical theory.
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