Owen Hilliard v. HHS - MMR, deafness (2003)

Owen Hilliard, a four-year-old, received his second MMR vaccination on June 28, 1997, along with polio, DPT, and hepatitis B vaccinations as part of a school health screening. Although the screening included audiometric testing, no report was retained, and the school noted no hearing abnormality.

Approximately forty-four days later, in mid-August 1997, Owen's father observed that Owen favored his right ear when using the telephone and tilted his right ear toward sound sources. Owen was seen by a doctor twice in August for this hearing issue and was referred to a specialist.

On September 16, 1997, he was diagnosed with sensorineural hearing loss in his left ear. The petitioner filed a claim under the National Childhood Vaccine Injury Act, alleging that the mumps component of the MMR vaccine caused Owen's deafness.

Because deafness is not a condition listed on the Vaccine Injury Table, the petitioner had to prove causation in fact. At the evidentiary hearing, the petitioner's expert, Dr.

Edward O'Rourke, testified that the mumps component of the MMR vaccine caused the unilateral sensorineural hearing loss. However, Dr.

O'Rourke agreed with government experts that such a reaction would typically manifest no later than one to four weeks post-vaccination, and certainly within six weeks. The Special Master denied compensation, finding that the onset of symptoms, observed 44 days after vaccination, fell outside the window of biologic plausibility described by both sides' experts.

The Special Master relied on the government's experts, who testified that the cause of Owen's hearing loss could not be medically determined and that the medical literature did not support an association between hearing loss and a second MMR vaccination. Dr.

O'Rourke conceded that the literature on post-MMR hearing loss primarily concerned a vaccine strain not used in the United States. The petitioner sought review, arguing on appeal that her husband had noticed the hearing problem approximately three weeks post-vaccination, which would fall within the medically plausible window.

The Court of Federal Claims declined to consider this new claim, as it was not supported by the existing record and contradicted the petitioner's own testimony, which stated that no hearing problems were noticed between June 9 and July 23, 1997. The court affirmed the Special Master's denial, finding it reasonable to credit the government's experts and concluding that the record did not preponderantly support causation.

The court noted that it would not set aside the Special Master's decision unless it was arbitrary and capricious, an abuse of discretion, or otherwise contrary to law, and found no such grounds in this case. The decision was affirmed.