Encephalopathy or Encephalitis and MMR


Milik v. HHS, No. 01-064V (Fed. Cl. May 14, 2015) (Campbell-Smith, CJ)

Appeal from a denial of compensation in a case alleging neurological injuries resulting from MMR vaccine; denial of entitlement was sustained.

Nizar Souayah, MD, had testified for Petitioners, and Michael Kohrman, MD, had testified for Respondent.

On appeal, Petitioners objected to the special master’s findings of fact that the onset of the child’s global developmental delay preceded the MMR vaccine as arbitrary and capricious.  Petitioner also objected to the alternative findings of fact that the child did not suffer an encephalopathy or encephalitis, and if he did it was more likely caused by an infection, and finally that the onset of symptoms following such an injury occurred too late in any event.

The reviewing court first held that Petitioners waived any objection to the special master’s reliance on various medical records and studies by failing to object to these aspects of the evidentiary record, but that the opinions drawn from this evidence were nevertheless plausible.

Further, the court noted that it could not reweigh the evidence with respect to the special master’s factual findings, and the special master’s findings were not “wholly implausible,” and thus could not be considered arbitrary and capricious.

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