Denial of Entitlement – Mitochondrial Autism


R.K. v. HHS, (Fed. Cl. Feb. 12, 2016) (Braden, J)

Denial of Entitlement Affirmed – Mitochondrial Autism – No Judicial Estoppel

The Special Master had denied entitlement, finding that 1) the evidence failed to establish that the child had a mitochondrial disorder, a prerequisite for the medical theory; 2) the evidence showed that the child had preexisting autism; and 3) the medical theory was unsupported and unpersuasive.

On appeal, the Petitioner unsuccessfully argued that the Vaccine Act is unconstitutional because it denies access to Article III courts.  The reviewing judge noted that Petitioners may appeal to the Federal Circuit, and that delegation to Article I adjudicators is constitutional as long as Article III courts retain supervisory powers.

With regard to the persuasiveness of the medical theory, the Court held that the special master misapplied Althen by rejecting the causation theory as “unsupported by any scientific literature.”  However, the special master was not arbitrary and capricious in finding that the child’s ASD preceded the vaccines and that the diagnosis of a mitochondrial disorder had not been established.

Petitioner also argued that the special master erred in denying Petitioners’ motion to stop the Government from denying that a vaccination creates sufficient stress to cause autism in a child with mitochondrial disorder, based on its concession in Poling.  The reviewing judge noted that the doctrine of judicial estoppel did not apply, because the government was not taking an inconsistent position in this case – different vaccines were involved than in Poling.

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