VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_00-vv-00341 Package ID: USCOURTS-cofc-1_00-vv-00341 Petitioner: Owen Hilliard Filed: 2003-08-06 Decided: 2003-08-06 Vaccine: MMR Vaccination date: 1997-06-28 Condition: deafness Outcome: denied Award amount USD: AI-assisted case summary: 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. Theory of causation field: Petitioner alleged that the mumps component of the second MMR vaccination administered on June 28, 1997, to four-year-old Owen Hilliard caused his sensorineural hearing loss diagnosed on September 16, 1997. As deafness is not a Table injury, causation in fact had to be proven. Petitioner's expert, Dr. Edward O'Rourke, opined that the mumps component caused the hearing loss, but agreed with government experts that onset would occur within one to six weeks post-vaccination. The observed onset at 44 days (over six weeks) was outside this window. Government experts testified that the cause could not be determined and no literature supported an association with the second MMR, with Dr. O'Rourke acknowledging literature focused on a non-US vaccine strain. The Special Master denied the claim, finding the timing outside biologic plausibility, and relied on the government's experts. The Court of Federal Claims affirmed, finding the Special Master's reliance reasonable and the record insufficient to prove causation, and declined to consider an alleged earlier onset not supported by the record. No award was made. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_00-vv-00341-cl6652406 Date issued/filed: 2003-08-06 Pages: 1 Docket text: lead-opinion -------------------------------------------------------------------------------- *50OPINION HODGES, Judge. Petitioner contends that Owen Hilliard’s deafness resulted from a vaccination for measles, mumps, and rubella. She seeks compensation for her son’s partial deafness under the National Childhood Vaccine Injury Act. The Special Master ruled that petitioner did not prove a causal link between Owen’s second vaccination and the hearing loss in his left ear. We affirm the Special Master’s ruling. I. Owen Hilliard received his first measles, mumps, and rubella vaccination in June 1993. His second MMR vaccination was in June 1997, along with polio, DPT, and hepatitis B vaccinations. Owen’s father first noticed a hearing problem in July 1997, forty-four days after the second MMR vaccination. Owen went to the doctor about his hearing twice in August 1997. The doctor referred him to a specialist for hearing tests. The specialist diagnosed Owen with sensorineural hearing loss on September 16. The second MMR vaccination in June 1997 was part of a health screening program at Owen’s school. The screening apparently included audiometric testing, but no report of a hearing test appears in the record. The school reported no abnormality in Owen’s hearing. His father noticed six weeks later that Owen would switch the telephone receiver to the right side, and otherwise favor his right ear. Petitioner sued under the National Childhood Vaccine Injury Act of 1986. 42 U.S.C. §§ 300aa-l to -34. The Special Master conducted an evidentiary hearing in October 2002, and concluded that the second MMR vaccination could not have caused Owen’s partial hearing loss. Petitioner appealed to this court on May 28 of this year. II. The National Vaccine Injury Compensation Program is a no-fault system for individuals who have suffered injuries thought to be caused by vaccines. See 42 U.S.C. § 300aa-10. If a petitioner can show by a preponderance of the evidence that an injury occurred within the time established by the Vaccine Injury Table, the vaccine is presumed to have caused the injury. 42 U.S.C. § 300aa-14. The Special Master may then deny compensation only if a preponderance of the evidence shows that a specific factor other than the vaccine caused the injury. 42 U.S.C. § 300aa-13(a)(l). If the injury did not' occur within the time listed in the Vaccine Table, or is not on the Table, petitioner must prove causation in fact to obtain compensation. 42 U.S.C. § 300aa-11; see Terran ex rel. Terran v. Secretary of Health and Human Servs., 195 F.3d 1302, 1307 (Fed.Cir.1999) (act provides two ways for claimant to receive compensation). The injury claimed here is not a part of the Vaccine Table, so petitioner must prove a causal connection between the MMR vaccine and Owen’s loss of hearing in his left ear. III. Dr. Edward O’Rourke was petitioner’s expert witness at the evidentiary hearing. He stated that the mumps component of the measles, mumps, and rubella vaccine caused Owen’s unilateral sensorineural hearing loss. However, he agreed with government experts that Owen’s deafness would have occurred within six weeks after administration of the vaccine. Expert testimony was consistent that such a reaction would have been evident not later than one to four weeks after administration of the vaccine. Dr. O’Rourke concluded that Owen’s hearing loss must have occurred sooner than anyone noticed. Two government experts testified that the cause of Owen’s hearing loss cannot be medically determined. The Special Master relied on the Government’s experts to deny petitioner’s claim. DISCUSSION This court will not set aside a Special Master’s decision unless it was arbitrary and capricious, an abuse of discretion, or otherwise contrary to law. See 42 U.S.C. § 300aa-12(e)(2)(B). We consider petitioner’s arguments under this limited power of review. Petitioner argues on appeal that *51Owen’s hearing loss occurred reasonably soon after his second MMR vaccination, and that the vaccine was the cause of his partial deafness. The Special Master relied improperly on the Government’s expert witnesses, petitioner believes. A. Petitioner states in her motions for review that her husband noticed Owen’s hearing loss approximately three weeks after Owen’s second MMR vaccination, on June 28, 1997. She reports that her husband noticed instances in which Owen would bend forward, and “slightly twist his upper body----” He' would tilt his “right ear towards the speaker, or sound source.” This date does not appear in the record. We cannot consider an alleged earlier onset of deafness for the first time on appeal. See Vaccine Rule 8(f). If we could consider this new evidence, petitioner’s observations are inconsistent with other testimony from her and her husband. Petitioner testified during the hearing that neither she nor her husband, nor Owen’s teachers noticed a problem with his hearing between June 9,1997 and July 23,1997. The record does not contain evidence that the injury occurred earlier than July 23. We agree with the Special Master that petitioner did not prove causation. B. The Special Master may consider medical judgment and expert reports in the record, but such evidence is not binding. 42 U.S.C. § 300aa-13(b)(1); see also Summar v. Secretary of Dep’t of Health & Human Servs., 24 Cl.Ct. 440, 444—45 (1991) (special master need only provide a rational explanation for relying on a particular expert); Mills v. Secretary of Dep’t of Health & Human Servs., 27 Fed.Cl. 573, 578 (1993) (special master may reject expert testimony if the special master finds another expert to be more persuasive). The Special Master relied on the Government’s expert witnesses because of the “absence of proof that onset [of the hearing loss] was within the time limits both sides’ experts described as necessary for biologic plausibili-ty____” Op. at 16. Respondent’s expert stated that medical literature does not support an association between hearing loss and a second MMR vaccination. Petitioner’s expert witness, Dr. O’Rourke, acknowledged that medical literature describing hearing loss following an MMR vaccination focused on a strain of vaccine that is not administered in the United States. The Special Master had the opportunity to evaluate the witnesses’ demeanor, to judge their credibility, and to examine their qualifications. We may not substitute our judgment for that of the Special Master in this ease. See Johnson v. Secretary of Health and Human Servs., 33 Fed.Cl. 712, 725-726 (1995), aff'd, 99 F.3d 1160 (Fed.Cir.1996). CONCLUSION The record did not provide proof, by a preponderance of the evidence or otherwise, that Owen’s second MMR vaccination caused his deafness. The Special Master’s decision was not arbitrary or capricious; it reflected properly the testimony and other evidence in the record. It was reasonable for the Special Master to rely on respondent’s experts, whose credibility she considered superior to petitioner’s. We see no reason in the record to question her judgment in this respect. The decision is AFFIRMED.