Motion for Review Denial-Case States Disorder Results from MMR or DTaP


Nuttal v. HHS, (Fed. Cl. Aug. 19, 2015) (Firestone, J)

Petitioner advanced a theory that his CDD was the sequela of a limbic encephalitis caused by DTaP or MMR, and the case was tried on three issues 1) whether the child experienced brain inflammation, 2) whether the inflammation was severe enough to result in the injuries alleged, and 3) whether the inflammation occurred in the appropriate location in the brain.

The reviewing court noted that the most important evidence as to whether the child had experienced a post-vaccinal encephalitis were two MRIs.  In the trial court, Petitioner’s pediatric neurology expert testified, and a neuroradiologist opined in writing, that the scans were consistent with viral encephalitis.  Respondent’s pediatric neurology expert (Wiznitzer) disagreed.  The special master found that Dr. Wiznitzer was more persuasive on this point because he cited medical literature to support his opinion that the MRI was within normal limits.  The special master also held that Petitioner’s neuroradiologist need not be accorded greater deference on the issue of MRI interpretation either due to his medical specialty or his status as a treating physician.  The neuroradiologist had been a referral from the primary care doctor, however, the repeat MRI which he ordered, years after the alleged encephalitis took place, was done at the request of Petitioner’s pediatric neurology expert in relation to the vaccine litigation.  While the Court indicated this did not cast doubt on the neuroradiologist’s integrity, it did cast doubt on his “neutrality and his purpose relative to this case,” thus he was not entitled to special consideration as a treating physician.

The reviewing court found that the special master’s assignment of weight to the experts’ testimony was not arbitrary and capricious, thus the court could not upset this discretionary ruling.  The Court noted that “there is nothing talismanic about treating a patient that affords special weight to a doctor’s opinion when the treating physician has no particular informational or other advantages over other experts who relied upon the same evidence.”

Finally, the court acknowledged that Petitioners were not required to submit medical theory to prevail, but it “was perfectly reasonable for the special master to find that the expert whose testimony was supported by medical literature was more persuasive.”

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