VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_05-vv-01063
Package ID: USCOURTS-cofc-1_05-vv-01063
Petitioner: M.M.
Filed: 2005-10-05
Decided: 2016-04-25
Vaccine: DTaP and MMR
Vaccination date: 2002-10-14
Condition: encephalopathy, developmental regression
Outcome: denied
Award amount USD: 

AI-assisted case summary:
On October 5, 2005, John and Barbara Murphy filed a petition on behalf of their minor son, M.M., alleging that the DTaP and MMR vaccines administered on October 14, 2002, caused an encephalopathy and subsequent developmental regression. M.M. was born in May 2001 and had received several DTaP vaccinations without notable reaction prior to October 2002. The parents testified that within hours of the October 14, 2002, vaccination, M.M. exhibited high-pitched screaming, arching, and limpness, accompanied by a fever of 105 degrees, dilated pupils, a rash, and gastrointestinal issues. They also claimed M.M.'s language and pointing skills regressed. However, contemporaneous medical records from an October 18, 2002, follow-up visit noted M.M. was fussy but afebrile, with no documented rash, seizure, or decreased level of consciousness. Subsequent records from December 2002 and May 2003 described M.M. as a well child, with concerns about language delay first documented in June 2003, approximately eight months post-vaccination. The parents pursued various treatments, including chelation therapy and hyperbaric oxygen treatments, and consulted with Dr. Mary Megson, a developmental pediatrician, and Dr. Andrew Zimmerman, a pediatric neurologist. Dr. Megson diagnosed vaccine-related encephalopathy, proposing a "perfect storm" causation theory involving M.M.'s alleged G-protein defect, MTHFR polymorphism, and the MMR vaccine's effect on the gut and blood-brain barrier. Dr. Zimmerman's diagnosis also cited vaccine-related encephalopathy based on parental history, though he later suggested M.M. might have a mitochondrial disorder. Respondent's expert, Dr. Max Wiznitzer, a pediatric neurologist, testified that the DTaP vaccine contains inactivated pertussis toxoid, not active toxin, and that M.M.'s symptoms were more consistent with injection pain and the natural progression of idiopathic autism. He stated M.M.'s MRIs were normal, and the timing of developmental regression was consistent with typical autism onset. Special Master Brian H. Corcoran denied the petition, finding that M.M. did not meet the criteria for an acute encephalopathy under the Vaccine Injury Table, as the reported symptoms were transient and not severe enough to require hospitalization. He also found no evidence of chronic encephalopathy. For the non-Table claim, the Special Master found Petitioners' causation theory to be "facially and structurally weak," lacking reliable scientific support, and that Dr. Megson lacked the necessary qualifications to opine on vaccine mechanisms. The temporal relationship between the vaccination and the alleged regression was also deemed too distant. The Court of Federal Claims, in a decision reviewed by Judge Lydia Kay Griggsby, sustained the Special Master's decision, finding no clear error in his factual findings or legal conclusions. The court affirmed that the medical records did not support an encephalopathy diagnosis and that the causation theory was not sufficiently proven. Petitioners' motion for review was denied.

Theory of causation field:
Petitioners alleged that the DTaP and MMR vaccines administered on October 14, 2002, caused M.M. to develop an acute encephalopathy, leading to developmental regression and symptoms consistent with autism. Their theory, termed a "perfect storm" by Dr. Mary Megson, posited that residual pertussis toxin in the DTaP vaccine interacted with M.M.'s alleged G-protein defect, exacerbated by an MTHFR C677T polymorphism that impaired methylation and detoxification. They further claimed the MMR vaccine caused a "leaky gut" and porous blood-brain barrier, allowing vaccine components to reach the brain. Respondent's expert, Dr. Max Wiznitzer, countered that the DTaP vaccine contained inactivated toxoid, not active toxin, and that M.M.'s symptoms were consistent with idiopathic autism. Special Master Brian H. Corcoran denied the claim, finding no evidence of an acute or chronic encephalopathy meeting Table criteria, and that the causation theory lacked scientific support and a medically acceptable temporal relationship, with Dr. Megson deemed unqualified to opine on vaccine mechanisms. The Court of Federal Claims affirmed the Special Master's denial.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_05-vv-01063-0
Date issued/filed: 2016-05-26
Pages: 54
Docket text: PUBLIC DECISION (Originally filed: 04/25/2016) Regarding 118 DECISION of Special Master (Signed by Special Master Brian H. Corcoran). (ay) Copy to parties.
--------------------------------------------------------------------------------
Case 1:05-vv-01063-LKG Document 122 Filed 05/26/16 Page 1 of 54
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 05-1063V
(To be Published)
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
*
JOHN A. MURPHY and BARBARA * Special Master Corcoran
E. MURPHY, parents of *
M.M., a minor, *
* Filed: April 25, 2016
Petitioners, *
* Entitlement Decision; Influenza
v. * (“Flu”) Vaccine; Autism Spectrum
* Disorder (“ASD”); Autoimmune
SECRETARY OF HEALTH AND * Encephalopathy Following Fever
HUMAN SERVICES, * or Vaccine; Post-trial Expert Report.
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Patricia A. Finn, Patricia Finn, P.C., Piermont, NY, for Petitioners.
Ryan D. Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION1
On October 5, 2005, John and Barbara Murphy filed a petition on behalf of their minor
child, M.M., seeking compensation under the National Vaccine Injury Compensation Program (the
“Vaccine Program” or “Program”).2 The Murphys sought to establish that the diphtheria-tetanus-
acellular pertussis (“DTaP”), and measles, mumps, and rubella (“MMR”) vaccines that M.M.
received on October 14, 2002, when he was approximately 17 months old, caused an
1 Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within
which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or
financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure
of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole
decision will be available to the public. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) (the “Vaccine Act” or “Act”).
Individual section references hereafter will be to § 300aa of the Act.

Case 1:05-vv-01063-LKG Document 122 Filed 05/26/16 Page 2 of 54
encephalopathy, resulting in M.M.’s purported developmental regression (which Petitioners
maintain is not an autism spectrum disorder (“ASD”)).
An entitlement hearing was held on May 18-19, 2015, and in the following months the
parties submitted post-hearing briefs. Having completed my review of the evidentiary record and
the parties’ filings, I hereby deny Petitioners’ request for compensation for the reasons stated
below.
I. FACTUAL BACKGROUND
The record in this case consists of the following: M.M.’s medical records; affidavits from
M.M.’s mother (Barbara E. Murphy) and father (John A. Murphy), as well as their testimony; the
written reports and testimony of two experts (one for each side) plus a treating physician; and
medical or scientific literature submitted by the parties in support of their respective positions. I
have reviewed the entire record as required by the Vaccine Act. Section 13(a)(1).3
A. M.M.’s Early Medical History.
M.M. was born on May 16, 2001, and shortly thereafter, on May 21, 2001, was assessed
as a well child with jaundice. Pet’rs’ Ex. 6 at 2; Pet’rs’ Ex. 2 at 32. In the months that followed
M.M. was seen on several occasions by his pediatrician, Thomas Hickey, MD at Kenneth M.
Klebanow, MD and Associates, P.A. in Columbia, Maryland regarding various parental concerns,
including a foot issue that resulted in referral to an orthopedist.4 See, e.g., Pet’rs’ Ex. 2 at 27-28,
3 The medical records in this case are particularly voluminous, and include many records pertaining to the post-
vaccination treatment of M.M.’s developmental problems that only bear tangentially on the issues to be resolved in
this entitlement proceeding, since they do not relate to the causal effect of the relevant vaccines. Accordingly, I do not
discuss all such medical records in detail, but instead focus on what both sides have identified as the most significant
records relevant to the causation issues presented herein. See Paterek v. Sec'y of Health & Human Servs., 527 Fed.
App'x 875, 884 (Fed. Cir. 2013). The same goes for the extensive medical literature submitted by both sides – I have
reviewed all such literature filed in preparing my decision, even if each individual piece of literature is not discussed
in this decision. Moriarty v. Sec’y of Health & Human Servs., No. 2015-5072, 2016 WL 1358616, at *5 (Fed. Cir.
Apr. 6, 2016) (“[w]e generally presume that a special master considered the relevant record evidence even though he
does not explicitly reference such evidence in his decision”) (citation omitted).
4 On May 24, 2001, M.M. was seen by his pediatrician for a one-week check-up, and parental concerns regarding
jaundice and M.M. “sleep[ing] all the time” were noted. Pet’rs’ Ex. 2 at 31. M.M. was assessed as having jaundice,
and his feeding and sleep schedule were discussed with the parent(s). Id. Shortly thereafter, on May 31, 2001, M.M.
was again seen by his pediatrician this time for a weight check, and it was noted that he had excellent weight gain. Id.
at 30. When M.M. was seen by his pediatrician for his one-month well child visit on June 18, 2011, the musculoskeletal
examination was abnormal. Id. at 28. Thereafter, M.M. was seen by Robert W. Bright, MD at Chesapeake Orthopedic
and Sports Medicine Center (in Glen Burnie, MD) on July 5, 2001, regarding concerns of some foot deformities and
diagnosed with metatarsus adductus (although he was generally a healthy baby). Pet’rs’ Ex. 3 at 14-15. On July 10,
2001, M.M. returned to Chesapeake Orthopedic and Sports Medicine Center “to begin his bilateral metatarsus
adductus treatment with manipulation and serial casting,” and he was subsequently seen for follow-up visits on
numerous occasions. Id. at 13, 16-18, 20; Pet’rs’ Ex. 2 at 19, 21.
2

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30; Pet’rs’ Ex. 3 at 14-15. In the first sixteen months of his life, he received several routine
childhood immunizations generally in accordance with the vaccination schedule set forth by his
doctor.5
On November 20, 2001, M.M. had a six-month well child visit, at which time his parents
expressed their concern that he might have a wheat allergy, and also noted that he had recently
experienced a rash. Pet’rs’ Ex. 2 at 24. However, his physical examination noted no problems, and
M.M. subsequently received his third DTaP and Prevnar vaccinations. Id. M.M. was later seen by
Lynne M. Zheutlin, MD, a Diplomate of American Board of Allergy and Immunology (at her
office in Columbia, MD) on February 6, 2002, for an allergy evaluation. Pet’rs’ Ex. 3 at 5-6. Dr.
Zheutlin diagnosed M.M. as having eczema; the remainder of the examination was unremarkable,
and skin allergy tests performed during that visit were negative.6 Id.
M.M. received a nine-month well child checkup on February 22, 2002. Pet’rs’ Ex. 2 at 23.
At the time, he was febrile (101.8 degrees) with a history of a cough. Id. He was assessed as having
an upper respiratory tract infection (“URI”) with fever, and scheduled immunizations were post-
postponed. Id. Shortly thereafter, on March 1, 2002, M.M. visited his pediatrician to address a
fever that had persisted for five days, accompanied by a decreased appetite, sleeplessness, and a
lack of playfulness (among other things). Id. at 22. M.M. had a follow-up examination on March
20, 2002, at which time it was noted that he had been experiencing diarrhea, as well as a URI and
a runny nose that had been ongoing for three weeks. Id. at 21. At this time, M.M. received his third
IPV vaccination.7 Id.
5 Thus, on July 18, 2001, M.M. was seen for a two-month well child check-up, and he received his first DTaP,
inactivated poliovirus (“IPV”), pneumococcal (“Prevnar”), haemophilus influenza B (“Hib”), and Hepatitis B (“Hep
B”) vaccinations. Pet’rs’ Ex. 2 at 27. Thereafter, on August 11, 2001, M.M. was seen by his pediatrician due to parental
concerns about a potential breathing problem, but was assessed as a well child. Id. at 29. On September 20, 2001,
M.M. was seen for his four-month examination; Mrs. Murphy went through a list of concerns with the pediatrician,
but upon examination no problems were identified. Id. at 26. M.M. received his second DTaP, IPV, Prevnar, Hib, and
Hep B vaccinations at that time. Id. On October 15, 2001, M.M. was seen by a pediatrician because he was “making
[a] funny noise” (which was hoarse-sounding and only occurred when he was laughing), and parental concerns
regarding asthma were noted. Id. at 25. Upon assessment, M.M. had “possibly mild tracheolaryngitis” and his
treatment included reassurance of M.M.’s mother and observation. Id.
6 Mrs. Murphy had difficulty believing that the skin test were negative, so Dr. Zheutlin sent M.M. for a
radioallergosorbent (“RAST”) test for confirmation. Pet’rs’ Ex. 3 at 5-6. It is unclear whether such testing was ever
conducted or any results obtained. However, a Pediatric Food Sensitivity Assay ordered by Dr. Layton in December
2004 revealed that M.M. was reactive to certain foods. Pet’rs’ Ex. 4 at 48.
7 On May 17, 2002, M.M. was seen by his pediatrician after a car accident (and the examination was normal). Pet’rs’
Ex. 3 at 20.
3

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M.M. was next seen by Dr. Hickey for a one-year well child check on May 20, 2002. Pet’rs’
Ex. 2 at 19. Although his physical examination revealed no problems, Mrs. Murphy provided the
treater with a history of concerns and questions reflected in the contemporaneous record. Id. At
this time, vaccinations were withheld for an unspecified reason. Id.
One month later, on June 25, 2002, M.M. was seen by Dr. Hickey again because he was
“not his normal self.” Pet’rs’ Ex. 2 at 18. It was noted that M.M. had been rubbing both ears for
the past several days, and that he had a fever, cough, and runny nose, and Dr. Hickey diagnosed
him with right-side otitis media and prescribed antibiotics. Id. On August 31, 2002, M.M. returned
to the doctor for follow-up on the ear infection, and also for evaluation of a head injury that had
occurred earlier that month. 8 Id. at 17. It was noted that M.M. was very wobbly when walking,
and that the problem got worse when he was tired. Id. M.M. had also been experienced a runny
nose for the last four days, resulting in an assessment that he had another URI. Id. During this visit,
M.M. received his third Hib and Hep B vaccinations, as well as his first varicella vaccination. Id.
B. October 2002 Vaccinations and Purported Reactions.
M.M. returned to the pediatrician for his 16-month well child checkup on October 14, 2002.
Pet’rs’ Ex. 2 at 16; Tr. at 9-10, 13, 23-24. At this time, he received his fourth DTaP vaccination
and his first MMR vaccination. Pet’rs’ Ex. 1 at 1 (vaccination record); Pet’rs’ Ex. 2 at 16 (record
from visit). Records from this visit indicated that M.M. was a well child who was now receiving
diluted whole and soy milk. Pet’rs’ Ex. 2 at 16.
Four days later, on October 18, 2002, the Murphys brought M.M. back to their pediatrician
because of concerns that he had an ear infection. Pet’rs’ Ex. 2 at 15. In the history section from the
record of this visit, it was noted that in the day following M.M’s October 14, 2002, receipt of
vaccination he began exhibiting a number of symptoms, including (1) high pitched screaming
when lying down on October 15, 2002; (2) increased sleep time starting on that date; (3)
intermittent fever; and (4) was pulling on his ears. Id. Upon physical examination, however, M.M.
was afebrile, and was merely noted to be “fussy.” Id. The pediatrician attempted to reassure the
Murphys about M.M.’s condition, but instructed them to return if his symptoms persisted or
worsened. Id. There are no other medical records for the interval between the October 14th well
child visit and the October 18th return.9
8 On August 15, 2002, M.M. was seen in the emergency room at Howard County General Hospital, Inc. after falling
into the corner of the coffee table. Pet’rs’ Ex. 7 at 11-19. He had swelling and a hematoma around his eye, but the
examination was otherwise normal. Id.
9 Despite the lack of records from this time period (an interval highly relevant to the Petitioners’ claim), the Murphys
allege (as discussed below) that they repeatedly phoned Dr. Hickey’s office to report concerns about M.M.’s behavior
but were rebuffed. In an effort to substantiate their claims, prior to the hearing in this matter, Petitioners filed a motion
4

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There is a subsequent approximate two-month gap in the medical records. On December
10, 2002, M.M. returned to Dr. Hickey for his 18-month well child check-up. Pet’rs’ Ex. 2 at 14.
Other than mild eczema, the examination was normal. Id. This record contains no mention of any
problems, issues, or distress M.M. is alleged to have experienced in October 2002, nor does it
mention the vaccines he received at that time.
In the months that followed, M.M. was seen by his pediatrician periodically for a number
of minor issues. See, e.g., Pet’rs’ Ex. 2 at 9-13. For instance, on May 3, 2003, M.M. visited his
treater because he had been pulling both ears for the prior four days while afebrile, but no other
changes in M.M.’s behavior were noted. Id. at 13. A few days later, on May 9, 2003, M.M. had
another pediatric visit for evaluation of a laceration to his left toe (reportedly caused by a pot
falling on it), but again no behavioral changes were noted. Id. at 12. M.M. was brought to the
pediatrician a third time that month on May 20, 2003, because he had a fever (of 105.8 degrees),
coughing, a URI (for two days), and pharyngitis, as well as a failure to have a bowel movement
for two days. Id. at 11. At this time, M.M. was prescribed antibiotics and ibuprofen, with the
direction to call the pediatric office if the illness persisted in two days or did not improve. Id.
C. Concerns about M.M.’s Development and Resulting Treatment Efforts.
M.M. returned to the pediatrician for his two-year well child checkup on June 6, 2003.
Pet’rs’ Ex. 2 at 10. His physical examination was unremarkable, but – for the first time in the
medical records – concerns about language delay were noted. Id. The medical records subsequent
to this visit that were filed in this case reflect that M.M. was now recognized to be developmentally
delayed in a number of respects. See, e.g., Pet’rs’ Ex. 4 at 1; Pet’rs’ Ex. 8 at 2-6. Petitioners do
not, however, accept that M.M. has an ASD, despite the fact that such a diagnosis has been made
for him by certain of his treaters.10
requesting authorization to issue a subpoena for phone messages or records allegedly documenting M.M.’s adverse
vaccine reactions reported to Dr. Hickey (including any records related to emergency phone calls from M.M.’s parents
to Dr. Hickey at Klebanow and Associates on October 14, 2002), which I granted. ECF No. 91. Such records, filed
after the hearing (ECF No. 102) do in fact document numerous occasions on which M.M.’s parents called the
pediatrician’s office to express concerns regarding M.M., but include no documented calls from the period of time in
question (October 14th through October 18th 2002). ECF No. 102-2 at 13-45 (call records).
10 For example, on May 9, 2007, M.M. was assessed at The County Diagnostic Center in Columbia, Maryland based
on a referral from the Individualized Education Plan (“IEP”) team at Bushy Park Elementary School. Pet’rs’ Ex. 13
at 1-19. M.M. “was found to qualify for special educational services with educational disability of Developmental
Delay in February 2004,” but “updated assessments [were] needed to determine current levels of functioning and to
establish a new educational disability should special education services continue to be warranted.” Id. at 1. It was
noted that M.M. “was initially referred to the Infants and Toddler program at Triadelphia Ridge Elementary RECC
by his parents at around age 2 ½,” and “[p]arental concerns at that time included lack of speech / language skills and
social behaviors, little eye contact, and not responding to his name or following directions, and hand flapping.” Id. at
2. Consistent with past assessments, however, M.M.’s constellation of behaviors was deemed as fitting the diagnosis
5

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The Murphys thereafter embarked on a comprehensive effort to treat M.M.’s
developmental problems, seeking input from a variety of medical specialists and attempting many
different treatments. In September 2003, they began taking M.M. to Richard E. Layton, MD (an
allergist11) (Pet’rs’ Ex. 4 at 1) to start M.M. on what was then referred to as the Defeat Autism
Now (“DAN!”)12 Protocol (Tr. at 27) for treatment of his speech delay and social
skill/developmental problems, along with some other physical conditions (allergies, recurrent
loose bowel movements, and decreased attention span). Pet’rs’ Ex. 4 at 1, 12-14. Dr. Layton
ordered various testing (including testing conducted by Great Plains Laboratory, Inc. and Doctor’s
Data, Inc.), including blood, hair, and stool sample analysis, as well as tests to measure food
intolerance. See generally Id. Some testing revealed purported elevation of metals in M.M.,
including beryllium and uranium. Id. at 44. In response, Dr. Layton placed M.M. on a variety of
supplements and also recommended certain dietary restrictions, as well as chelation therapy.13 Id.
at 10-62.
of autism, and the recommendations section of the report states that “[i]t is recommended that the IEP team consider
[M.M.] eligible for special education and related services under the category of Autism.” Id. at 9.
11 The Office of Dr. Richard E. Layton, Allergy Connection, http://www.allergyconnection.com/laytonaboutfr.html
(last visited Mar. 29, 2016); see also ECF No. 102-2 at 45 (note from Dr. Hickey’s office indicating that Dr. Layton
is an allergist rather than autism specialist).
12 DAN! is composed of doctors and medical professionals who believe, among other things, that autism can be caused
by vaccines. See Dwyer v. Sec’y of Health & Human Servs., No. 03-1202V, 2010 WL 892250, at *165 (Fed. Cl. Spec.
Mstr. Mar. 12, 2010). The Autism Research Institute (“ARI”), which was founded by Bernard Rimland, MD in 1967,
created the DAN! Protocol in 1995. Moving Forward: The Expanding Mission of ARI, Autism Research Institute,
http://www.autism.com/expanding_2014 (last visited Mar. 29, 2016). “DAN! Doctors [were] trained in an approach
to autism treatment that begins with the idea that autism is a biomedical disorder caused by a combination of lowered
immune response, external toxins from vaccines and other sources, and problems caused by certain foods.” DAN!
PROTOCOL, Autism Services and Resources Connecticut, http://www.autismconnecticut.org/dan-protocol (last
visited Mar. 29, 2016). Accordingly, DAN! “doctors may recommend treatments including nutritional supplements,
special diets, testing for hidden food allergies, treatment of intestinal yeast or bacterial overgrowth, and detoxification
of heavy metals.” Id.
However, ARI discontinued the DAN! Protocol in 2011, indicating that individuals included on the list of providers
were merely doctors who attended training seminars, and there was therefore no way to assure that such practitioners
were providing high quality services. Lisa Jo Rudy, What Was the DAN! (Defeat Autism Now) Protocol?, About
Health (updated Dec. 30, 2015), http://autism.about.com/b/2011/09/02/dan-defeat-autism-now-is-no-morehtm.
13 Chelation therapy has been used for many years as a treatment for mercury and lead poisoning, but it is not a proven
treatment for autism and it can have serious side effects including potentially fatal liver and kidney damage. Rekha
Mankad, M.D., Can Chelation Therapy Treat Heart Disease?, Mayo Clinic (Feb. 11, 2016),
http://wwwmayoclinic.org/diseases-conditions/heart-disease/expert-answers/chelation-therapy/faq-20157449; Jay L.
Hoecker, MD, Is Chelation Therapy an Effective Autism Treatment?, Mayo Clinic (July 9, 2013),
http://wwwmayoclinic.org/diseases-conditions/autism-spectrum-disorder/expert-answers/autism-treatment/faq-
20057933. Dr. Layton’s chelation treatment of M.M. included prescribing DMPS cream, which is intended to act as
a specific chelator of mercury. Pet’rs’ Ex. 4 at 10-62
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On May 26, 2004, M.M. underwent audiology testing at Kennedy Krieger Institute in
Baltimore, Maryland, due to concerns for his “delay in the acquisition of speech and language
skills.” Pet’rs’ Ex. 5 at 7; Pet’rs’ Ex. 8 at 7-14. However, the results of this testing were generally
within normal limits. Pet’rs’ Ex. 5 at 7, 13. The report accompanying the test results included the
suggestion that M.M. be evaluated by a developmental pediatrician, but (as the report also
indicated) Mrs. Murphy did not express an interest in pursuing such an evaluation. Pet’rs’ Ex. 5 at
13. At this time and thereafter, M.M. continued to be seen by Dr. Layton on numerous occasions
(much as he had previously). See Pet’rs’ Ex. 4 at 27-32, 49, 51-52, 54-56.
On October 20, 2005, M.M. was examined by Mary Megson, MD, FAAP, a developmental
pediatrician at Pediatric and Adolescent Ability, in Richmond, Virginia “for evaluation of his
language disorder.” Pet’rs’ Ex. 10 (ECF No. 64-3 at 3-6). In her notes from the visit, Dr. Megson
stated that M.M. had been diagnosed with developmental delay, dyspraxia, and apraxia, and she
noted that he had “features of autism” (although she also observed that M.M. had “not really had
a diagnosis of autism”). Id. at 3-5. However, under the impressions section of her write-up, Dr.
Megson listed the following differential diagnosis: (1) autism, (2) mercury poisoning, (3) yeast,
(4) gluten/casein sensitivity, and (5) multiple food sensitivities. Id. at 5. That assessment was based
on the history provided by M.M.’s parents; the records from that visit say nothing about Dr.
Megson’s review of M.M.’s prior pediatric records.
Dr. Megson’s treatment report specifically incorporated Petitioners’ theory in this case –
that M.M.’s regression was related to his October 2002 vaccinations. Thus, she stated that M.M.
had exhibited high pitched screaming on the same day of the DTaP and MMR vaccinations in
October 2002, along with “head banging.” Pet’rs’ Ex. 10 (ECF No. 64-3 at 3-5). He thereafter
began gradually to lose language, “lost interest in fine motor skills,” and also displayed at two
years of age a “high pain tolerance,” which was effectively treated by magnesium dietary
supplements. Id. at 3. It was also noted in Dr. Megson’s records that “[i]n motor development
[M.M.] was relatively normal with sitting at 6 months, walking at 9 months” but then “[h]e lost
this ability and started to crawl poorly after his shots.” Id. at 4.
A physical examination performed by Dr. Megson during M.M.’s first visit to see her was
unremarkable (although some laboratory test results were viewed as abnormal). Pet’rs’ Ex. 10
(ECF No. 64-3 at 4). M.M. returned to Dr. Megson in January 2006 and several times thereafter,
with similar reports included in notes from subsequent visits.14 Id. at 5-13, 15-16. Dr. Megson
subsequently ordered various testing (see generally id.) in addition to those previously performed
14 For instance, at M.M.’s April 5, 2007, visit, Dr. Megson noted that he was doing better (although he was still non-
verbal). Pet’rs’ Ex. 10 at 8-10.
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by Dr. Layton, including some conducted by Genovations for the Methylene Tetrahydrofolate
Reductase (“MTHFR”) genotype – a key enzyme in folate metabolism (Id. at 14).15 The results of
this testing conducted in the spring of 2006 revealed that M.M. was homozygous for the c667t
mutation, resulting in a 60 to 70 percent reduction in MTHFR enzyme sensitivity and increased
risk of elevated homocysteine. ECF No. 64-5 at 13. Thereafter, M.M. continued to be seen by Dr.
Megson, undergoing various testing and treatment at her direction. See, e.g., Id. at 4.
Two years later, on June 8, 2009, M.M. was seen by Andrew Zimmerman, MD (and
Andrew Schultz, MD, an attending physician) at the Kennedy Krieger Institute in order to obtain
a professional review of magnetic resonance imaging (“MRI”) results previously obtained for
M.M. in order “to rule out structural malformations that can possibly be surgically corrected.”
Pet’rs’ Ex. 8 at 4-6; Pet’rs’ Ex. 12 at 6-7. The medical history recited by M.M.’s parents during
this visit is significant to the resolution of this case, and provides as follows:
Mom states that they last tried imaging in 2002 via CT scan without success secondary to
his inability to stay still. He was diagnosed with vaccine related encephalopathy in October
2002 after receiving multiple vaccines at that time. Prior to receiving those vaccines in
October 2002 (17 month) he was healthy and age appropriate developmentally. Four hours
after receiving the vaccines he developed dilated pupils, drooling, high pitched squealing,
facial droop, and a reduction in pain sensitivity. Since then he has tried many different
types of therapeutic intervention. . . 16
Pet’rs’ Ex. 8 at 4 (emphasis added). Dr. Zimmerman accepted the Murphys’ history without
question, assessing M.M. as “an 8-year-old male who was previously healthy and developing well
until October 2002, when 4 hours after receiving multiple vaccines he developed dilated pupils,
drooling, high pitched squeals, facial droop, decreased pain sensitivity, and stereotyped
movements thought secondary to vaccine related encephalopathy versus autism spectrum
disorder.” Id. at 5. The attending note from this visit added that it would be important to evaluate
any genetic and metabolic studies previously performed on M.M. Id. However, there is no evidence
15 According to the laboratory report, MTHFR is a key enzyme in folate metabolism, facilitating the formation of
methyl tetrahydrofuran (methyl-THR), a required cofactor in the remethylation of homocysteine to methionine. Pet’rs’
Ex. 10 (ECF No. 64-5 at 14). The failure of the methylation process is purported to lead to an increased risk of certain
diseases (including autism). Id.
16 M.M.’s mother subsequently wrote a letter, included in the medical records, indicating two corrections to be made
to the June 8, 2009, evaluation report notes. Pet’rs’ Ex. 8 at 2. Of most relevance to this case was her acknowledgment
that M.M. did not receive a diagnosis of vaccine related encephalopathy in October 2002 following the October 14,
2002, vaccine reaction; rather, the medical records from “October 18, 2002 [] did list on the office visit notes some of
his symptoms which [purportedly] ultimately allowed other doctors to later diagnosis him with ‘Severe Apraxia
Secondary to Vaccine Encephalopathy’ and ‘Vaccine Encephalopathy.’” Pet’rs’ Ex. 8 at 16.
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that any such tests were at the time ordered by Drs. Zimmerman or Schultz – and indeed, no prior
treater had in fact requested metabolic testing, let alone suggested it was appropriate, and thus such
studies were nonexistent.
M.M. was subsequently seen by Dr. Zimmerman on two more occasions. See, e.g., Pet’rs’
Ex. 8 at 2-3; Pet’rs’ Ex. 12 at 3-4. First, M.M. returned to Dr. Zimmerman on September 21, 2009,
“for follow-up of a vaccine related encephalopathy and features of apraxia and autism.” Pet’rs’
Ex. 8 at 2-3; Pet’rs’ Ex. 12 at 4. At this time, Dr. Zimmerman discussed the MRI findings as
negative. Pet’rs’ Ex. 8 at 2. He did not, however, mention again the need for any metabolic testing,
or that he wanted to review the results of testing previously performed. Second, on June 24, 2010,
M.M. returned to Dr. Zimmerman for a follow-up evaluation. Pet’rs’ Ex. 12 at 3. The report
generated from that evaluation specifically states that M.M.’s “[p]arents attribute his rapid
changes to his two immunizations, which have been documented and they have applied to the
Vaccine Injury Program.” Id. (emphasis added). But it contains no discussion of Dr. Zimmerman’s
clinical perspective on the proper diagnosis, and is again silent about the significance of metabolic
testing in deriving a possible cause of M.M.’s condition.
Petitioners have continued their tireless efforts to treat M.M.’s developmental problems.
Concerns regarding M.M.’s inability to communicate through use of spoken language are
consistently echoed by his parents throughout the medical records, and (among other therapies
attempted to remedy M.M.’s symptoms) to that end Petitioners have enlisted the services of speech
and language pathologists. See, e.g., Pet’rs’ Ex. 16 at 1-3. A progress report from “1,2,3 Speak to
ME!” (in Reisterstown, Maryland) from January 2013 indicated that M.M. had seen a speech-
language pathologist once per week since March 2011. Id. It noted that at the time of his initial
consultation, M.M. presented with severe verbal apraxia and since then he has made “nice gains
in the targeted areas of therapy.” Id. at 1.
On October 10, 2013, M.M. was again referred for a County Diagnostic Center
Interdisciplinary Collaborative assessment based on being “identified with an educational
disability of Autism as well as a significant medical history.” Pet’rs’ Ex. 18 at 1-2; Pet’rs’ Ex. 19
at 2-39. The report from this time provided a review of prior collaborative assessments of M.M.,
reiterating that he had been assessed as having the disabilities of both autism and developmental
delay. Pet’rs’ Ex. 18 at 1. It also indicated that “[a]ccording to the current IEP, M[.M.] is identified
with an educational disability of [a]utism” (the assessment had been changed from developmental
delay to autism). Id. at 5. The report also addressed the DSM diagnostic criteria for autism and
whether M.M. met those criteria based on reports from his parents and teachers. See Id. at 9-12.
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II. TESTIMONY PRESENTED AT HEARING
A. Petitioners’ Witnesses.
1. Mrs. Murphy
Mrs. Murphy provided fact testimony regarding the circumstances of M.M.’s alleged
vaccine reaction and subsequent regression, along with information about his overall health and
treatment over the past several years.
Prior to receipt of his October 2002 vaccinations, M.M. appeared to be developing
normally (and was actually advanced for his age). Tr. at 14, 17-20. Thus, when Dr. Hickey would
routinely ask M.M. to verbally identify and point to objects, M.M. was able to do so, and did on
October 14th just as he had at prior visits. Id. at 13-14. Mrs. Murphy also acknowledged that M.M.
had previously received a number of vaccinations without incident – but she attributed that to the
fact that that the October 2002 vaccinations were the first he received without the benefit of the
protective components of breast milk (including vitamins and minerals that passed to him through
that breast milk) in his body – a factor which she felt was particularly significant given his alleged
methylation deficiency and genetic susceptibilities to experience vaccine reactions. Id. at 10, 12,
123-25.
Mrs. Murphy testified that when she and M.M. returned home from the pediatrician’s office
it became apparent to her that something was wrong. Tr. at 28-29. M.M. “would go full scream,
high pitch, arched back, shaking, shaking, and then he would go limp” and that this sequence
occurred multiple times (although she could not recall exactly how many). Id. at 29-33, 38. She
now believes M.M. was having seizures. Id. at 31-34. The Murphys at this time had to begin
feeding M.M. through a syringe due to his difficulty keeping things in his mouth because of
excessive drooling. Id. at 89-90. In addition, she observed that M.M.’s eyes had become dilated,
although she initially attributed this to the fact that M.M. was crying so much. Id. at 34, 36, 93.
M.M.’s pupil dilation remained, Mrs. Murphy contended, until 2006, and she attributed the
amelioration of this condition to the hyperbaric chamber treatments17 he began to receive. Id. at
34-35.
17 Hyperbaric oxygen therapy (which is used to treat a variety of conditions) involves breathing pure oxygen in a
pressurized room or body-sized tube. Tests and Procedures: Hyperbaric Oxygen Therapy, Mayo Clinic (Nov. 25,
2014), http://wwwmayoclinic.org/tests-procedures/hyperbaric-oxygen-therapy/basics/risks/prc-20019167?p=1.
When an individual is placed in a hyperbaric oxygen therapy chamber, air pressure is increased to three times higher
than normal, permitting the lungs to gather more oxygen than would be possible at normal air pressure. Id. The
individual’s blood then carries this oxygen throughout the body, which purportedly helps fight infection and promotes
healing. Id. However, medical science has not confirmed that hyperbaric oxygen therapy is an effective autism
treatment. Id. Moreover, although hyperbaric oxygen therapy is generally a safe procedure, it does involve risks,
including the possibility of lung collapse, middle ear injuries, and seizures. Id.
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Based upon such immediate post-vaccination behavior, Mrs. Murphy called Dr. Hickey’s
office within three hours of leaving.18 Tr. at 29-30, 33. By that time, Mrs. Murphy claimed, M.M.
had a fever of 105 degrees.19 Id. at 45. According to Mrs. Murphy, throughout this period in
October 2002, M.M. continued to experience a high fever, and developed a rash20 on his neck and
chest. Id. at 54, 58, 129. In addition, she testified, M.M. stopped identifying things and pointing
(as he had done at the prior visit on the 14th) and he was not even sitting up (and accordingly no
longer able to play). Id. at 96. Mrs. Murphy also testified that M.M. had dilated pupils post-
vaccination, indicating that she initially attributed it to the fact that he had been screaming. Id. at
32-33, 35-37. There are no contemporaneous medical records to support this assertion about
M.M.’s pupil dilation.
Given her concerns, Mrs. Murphy spoke with a nurse practitioner who tried to assure her
that M.M.’s reaction to vaccination was normal (“a healthy immune response”), indicating that he
was “just worn out, because he was crying so much.” Id. at 33, 40. Mrs. Murphy believed she
should take M.M. to the hospital, but Dr. Hickey’s office told her that “they would laugh at us if
we went to the [emergency room] with a child who’s having a healthy immune response to a
vaccination.” Id. at 41-42. Consistent with her affidavit (Pet’rs’ Ex. 29), Mrs. Murphy testified that
she called the pediatrician’s office again a second time that same day when M.M.’s symptoms did
not improve after treating the fever with acetaminophen, but was again discouraged from returning
to the office. Tr. at 49-50, 52.21 Mrs. Murphy also claimed that she would have sought medical
attention prior to the 18th, but was worried about the ongoing “Beltway Sniper” incident that was
then occurring in the Washington, D.C. metropolitan area.22 Id. at 95, 129-31.
18 As noted above, however, Petitioners have been unable to provide corroborative evidence of any such calls. See
ECF No. 102-1 at 2.
19 Mrs. Murphy specifically recalled measuring M.M.’s fever using a device placed on a child’s forehead (and that
M.M. had never previously had a fever that high). Tr. at 45. But there is no independent record establishing this as a
fact.
20 The medical records from the October 18th visit make no reference to a rash. Pet’rs’ Ex. 2 at 15. Mrs. Murphy
nevertheless insisted in her testimony that the rash not only existed, but that it had been characterized by treaters at
the time as “a measles-like rash,” and deemed a normal vaccine reaction. Tr. at 55-57, 60-61, 100-02. Ms. Murphy
admitted that there was no other evidence (such as a photograph) to corroborate this claim. Id. at 127-128.
21 Mrs. Murphy acknowledged that she did not again contact the pediatrician’s office until October 18th (several days
post-vaccination). Tr. at 95. However, she testified that it was originally the Murphys’ intent to take M.M. to the
emergency room, but that they were dissuaded from doing so by Dr. Hickey’s office based on their assertions that
M.M.’s reaction was completely normal. Id.
22 In October 2002, John Allen Muhammad and Lee Boyd Malvo engaged in a weeks-long shooting spree, which
resulted in 13 individuals being shot (ten of whom died). Seth Cline, A Decade After Killings, D.C. Sniper Malvo
Speaks, U.S. News & World Report (Oct. 2, 2012, at 3:30 PM), http://www.usnews.com/news/articles/2012/10/02/a-
decade-after-killings-dc-sniper-malvo-speaks. The shootings took place in public places (including parking lots and
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In the period of time thereafter until sometime before M.M. was two years old, Ms. Murphy
testified, M.M. displayed progressively worsened developmental and physiologic symptoms. He
had trouble sleeping, his “bowels fell apart” (where he was having 10 to 14 acidic and liquid bowel
movements per day), and his belly became distended. Tr. at 63-64, 67. At some unspecified point,
the Murphys returned to Dr. Hickey to seek treatment for the gastrointestinal issues that M.M. was
experiencing, but were again informed that his symptoms were not out of the ordinary.23 Id. at 66-
67. She claims to have been similarly told that language and developmental problems they
observed were normal. Id. at 108.
Mrs. Murphy explained the absence of medical records for M.M. between December 2002
and May 2003 corroborating her claims about his developmental problems as attributable to the
fact that the pediatric office had recommended that the Murphys wait six months post-vaccination
to see if M.M. “bounced back” (although this ultimately did not happen). Tr. at 132, 134. She took
M.M. to the pediatrician on May 9, 2003, after he had pulled pots and pans out of a cabinet and
cut his toe on the lid of one of the pots. Id. at 27, 133-34. The incident was significant to her
because M.M. was laughing and appeared to have “no sense of pain.” Id. at 27, 51, 134-35.
However, Mrs. Murphy later acknowledged that she also took M.M. to the pediatrician’s office
during this time because M.M. had been experiencing fever and a URI for two days (Pet’rs’ Ex. 2
at 11). Tr. at 97. She also claimed that M.M. was non-responsive during this time and was still
displaying developmental problems, and thus disputed the accuracy of a handwritten statement in
the contemporaneous medical records from this doctor’s visit suggesting the contrary (“[t]alking
more, more playful”). Tr. at 97-98; Pet’rs’ Ex. 2 at 11.24
After May 2003, the Murphys opted to obtain treatment from other providers, due to
concerns that Dr. Hickey’s practice had been unresponsive to M.M.’s developmental problems.
Tr. at 24. But rather than obtain a new pediatrician, Petitioners began taking M.M. to different
gas stations) throughout the District of Columbia, Maryland, and Virginia. Id. Until these individuals were
apprehended on October 24, 2002,“[t]he shootings paralyzed the area, as residents kept their children home and
themselves out of public as much as possible.” D.C. Sniper shootings: 23 days of terror, The Washington Post (Sept.
20, 2013), https://www.washingtonpost.com/local/dc-sniper-shootings-23-days-of-terror/2012/09/30/41a4c768-
098e-11e2-858a-5311df86ab04_video.html.
23 However, Petitioners did not cite to portions of the contemporaneous medical records that support this assertion
(nor was I able to find such information in those records).
24 Mrs. Murphy in several instances questioned the accuracy of medical records that did not comport with or reflect
her testimony, but admitted that generally she did not review M.M.’s medical records for accuracy, except on one
occasion (pertaining to the evaluation M.M. received from Dr. Zimmerman). Tr. at 115-16. With respect to her claim
that M.M. had a rash at the time of his October 18th pediatric visit, however, Mrs. Murphy insisted that she would
have sought the record’s correction had she realized it omitted this fact. Id. at 117.
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kinds of specialists. Id. at 27. Thus, they began to work with Dr. Layton (who appealed to the
Murphys because of his utilization of the DAN! Protocol). Id. at 27, 110. As Mrs. Murphy
understood it, DAN! Protocol practitioners were trained to treat food allergies and gastrointestinal
issues, as well as the other symptoms that M.M. was experiencing (some of which were
understood, she claimed, as post-vaccination reactions). Id. at 110-11. After initially seeing Dr.
Layton, the Murphys later sought out Dr. Megson due to their ongoing concerns about M.M.’s
pupil dilation. Id. at 111-12.
During her testimony, Mrs. Murphy consistently disputed the contention (reflected in some
of the treatment records) that M.M. had been properly diagnosed as suffering from an ASD (and
testified that she has declined to have him so labeled in school even though she was informed that
it would allow for additional treatment coverage). Tr. at 85, 118-19. Instead, she insisted that
M.M.’s correct diagnosis is severe apraxia, secondary to vaccine encephalopathy. Id. at 66-67.
Although she stated that this diagnosis first came from Dr. Megson, it was Dr. Layton who
connected M.M.’s symptoms to his receipt of vaccination. Id. Because of her confidence in that
diagnosis’s accuracy, Mrs. Murphy stated that there was no need to seek out other opinions. Id. at
112-14. She did, however, admit that M.M. exhibits some autistic features (including stereotypical
mannerisms), and that he requires the same level of educational services as someone properly
diagnosed as autistic. Id. at 119-20.
Today, Mrs. Murphy stated, M.M. (who was 14 years old at the time of the hearing) is
enrolled in a school for students with special needs in Baltimore, Maryland and is now beginning
to speak (something she attributed to him working with a specialized instructor). Tr. at 9. She
attributes many of the improvements that M.M. has experienced to some of the treatments the
Murphys have pursued, including hyperbaric chamber treatments and dietary supplements. See,
e.g., id. at 27, 70, 72-74, 84, 91-92, 113-14. She acknowledges that M.M. has not reached
developmental milestones expected for an individual of his age, but remains committed to the
course of treatment the Murphys have pursued despite the personal and financial hardships the
treatments impose. Id. at 14-15, 70, 122.
2. Mr. Murphy
Mr. Murphy also briefly testified, mostly about his observations of M.M.’s changes after
the October 2002 vaccinations. Tr. at 137-45, 149-50. Prior to the vaccinations, Mr. Murphy
recalled boasting about M.M. at work (who by his estimation was developmentally advanced, as
he was almost completely toilet trained and able to walk around with a push cart). Id. at 142. He
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also noted that he still has video tapes of M.M. from around this period of time that he views on
occasion, and that would presumably provide evidence of M.M.’s status at the time.25 Id.
Consistent with his affidavit, Mr. Murphy testified that in the days immediately after
M.M.’s receipt of vaccination, he noticed a dramatic change in M.M.’s behavior, even though
M.M.’s treaters were dismissive of the Murphys’ concerns. Tr. at 141; ECF No. 73-1. Mr. Murphy
believed that M.M.’s brain was affected by the vaccinations “because he went from being ahead
of the curve to behind the curve.” Id. at 137, 143. Mr. Murphy echoed his wife’s testimony about
the changed nature of M.M.’s bowel movements (id. at 142), and also testified that he saw the
same rash Mrs. Murphy claimed to have existed (id. at 150).
In the months that followed, other changes became apparent to Mr. Murphy. M.M.
appeared to have a reduced amount of energy, going from being a child that laughed and was happy
to being a very “stoic child.” ECF No. 73-1 at 2. He also observed M.M. not noticing when left
with a babysitter, whereas prior to receipt of vaccination M.M. would be upset if he could not see
his mother. Id. Additionally, Mr. Murphy indicated that M.M. stopped trying to walk. Id.
The Murphys thereafter spent over a year asking about M.M.’s post-vaccination symptoms
– including “why the bowels are a problem and his speech just went away.” ECF No. 73-1 at 2.
Mr. Murphy indicated that they “were concerned that he was not progressing as he was before,”
but that the doctor assured them that “everything was alright; he is young and [it] was too early to
determine if anything was wrong.” Id. Petitioners only began seeking treatment from other doctors
after the pediatrician could provide no answers and M.M. failed to show improvements. Id. And
Mr. Murphy agreed with his wife’s testimony that some of the subsequent treatments pursued,
such as those involving a restricted diet, proved effective. Id. at 2-3. He recalled being informed
at some point after such treatments were implemented that M.M.’s immune system was not
working correctly – and that M.M. “may have had a stroke or seizure when he got the vaccines
since he had dilated pupils, the thrashing of the body, global apraxia and the apraxia of speech.”
Id. at 3.
Mr. Murphy acknowledged that The County Diagnostic Center (in Columbia, Maryland)
had classified M.M. as having autism, and that both Drs. Zimmerman and Megson had agreed that
M.M. displayed autistic features. Tr. at 139, 140. However, although Mr. Murphy admitted being
aware of the fact that autism occurs on a spectrum based on symptom severity, he rejected the
notion that M.M. is autistic, given that he is affectionate and somewhat social. Id. at 143-45.
25 Upon conclusion of the hearing, I ordered Petitioners to produce any such video documentation of M.M.’s behavior
pre-vaccination. ECF No. 97 at 1. However, Petitioners indicated that they were unable to locate those home videos.
ECF No. 106.
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3. Dr. Megson
Dr. Megson (who, as noted above, was one of M.M.’s treaters) offered an expert report and
testimony at the entitlement hearing in support of Petitioners’ theory that M.M. experienced a
vaccine-induced encephalopathy that was the cause of his subsequent developmental regression
and speech apraxia.
Dr. Megson graduated from the University of Virginia School of Medicine in 1978 (after
completing her undergraduate degree at Hollins College). ECF No. 66-4 at 1; Tr. at 151. Dr.
Megson went on to complete an internship at Tuffs University followed by a residency at Tufts
New England Medical Center. Id. She then completed a one-year fellowship in Ambulatory
Pediatrics at Boston Children’s Hospital followed by a two-year fellowship in Child Development
at the Medical College of Virginia. Id. Dr. Megson subsequently ran the Child Development
Program at the Children’s Hospital in Richmond, Virginia before setting up her own private
practice, the Pediatric and Adolescent Abilities Center, in Richmond, Virginia at the end of 1998
– where she currently works full-time with children with developmental disabilities. Tr. at 151-52.
Dr. Megson is a board-certified pediatrician licensed in the Commonwealth of Virginia,
and whose practice involves working with children with learning disabilities and developmental
issues (including intellectual disability, attention deficit hyperactivity disorder, and autism). Tr. at
152; ECF No. 66-4 at 1. She is also a fellow in the Medical Academy of Pediatric Special Needs.26
Tr. at 192. In the course of her career, she has seen over 13,000 children with developmental
disabilities (the majority of whom were children with autism, although most come to her already
so diagnosed). Id. at 158, 194-95. However, Dr. Megson estimated that she had diagnosed less
than 50 children with vaccine-related encephalopathy. Id. at 158-59.27
Dr. Megson first met M.M. when he was brought by Petitioners to her office for an
evaluation at four years, five months of age, nearly three years after the events in question. Tr. at
26 Dr. Megson testified that she initially started to see children with developmental regression in the 1990s, which
made her curious about the possible causes of such regression; her investigation eventually resulted in her contacting
a group of biochemists whom she has since met with twice a year to share findings. Tr. at 192. However, she denied
affiliation of this group with DAN!. Id. at 193.
27 Throughout the course of her testimony, Dr. Megson attempted to bulwark her assertion that she is not a practitioner
of alternative medicine when it comes to treating children with an autism spectrum disorder (“ASD”). Thus, she
emphasized that 98 percent of her treatments rely on vitamins rather than treatment approaches the efficacy of which
is unconfirmed, such as chelation therapy (which she noted M.M. received from Dr. Layton, not herself). Tr. at 219-
21. However, she does advocate the use of hyperbaric oxygen treatments for children with symptoms similar to
M.M.’s, arguing that there are 17 published studies showing improvements resulting from such treatments, and about
75 percent of her patients use this treatment (although she acknowledged that it not as popular as it used to be, which
she attributed mainly to cost). Id. at 220.
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156. Dr. Megson specifically testified that she was very concerned about his circumstances,
because of the rapid onset of M.M.’s symptoms after his October 14th vaccinations, as reported
by his parents, which resulted in her diagnosing him with a vaccine-related encephalopathy. Id. at
160, 188. By her own admission, however, these concerns arose from the Petitioners’ rendition of
M.M.’s medical history rather than from an independent review of his medical records.28 Id. at
244. Nevertheless, based on what the Murphys relayed to her about their observations of M.M.
over the four-day period between October 14th and October 18th, she concluded that M.M. had
likely experienced an adverse reaction to vaccination because his behavioral change was so quick
and dramatic (and she could not otherwise identify a neurological explanation). Id. at 189-90.29
Consistent with Mrs. Murphy’s views, Dr. Megson opined that M.M. displayed features of
autism rather than an ASD, given that his competency at social interaction was distinguishable
from an individual with classic autism. Tr. at 195. However, she acknowledged that when she first
evaluated M.M. in October 2005, she had listed a number of diagnoses – with the first one being
autism (Pet’rs’ Ex. 10-2 at 5). Tr. at 195.
Dr. Megson proposed a complicated theory of vaccine causation – a “perfect storm” of
disparate factors, as she characterized the theory, working in concert to produce the post-
immunization developmental symptoms that M.M. experienced. Tr. at 186-88. Consistent with her
expert report, Dr. Megson testified that M.M.’s injury was caused primarily by the pertussis
component of the DTaP vaccine he received in October 2002, although she also implicated the
MMR vaccination. Id. at 171. Highly relevant to her theory were M.M.’s alleged genetic defects
or susceptibilities that purportedly rendered him more sensitive to the stress caused by the vaccines
he had received.
The first aspect of Dr. Megson’s theory was the purported impact of a component of the
DTaP vaccine on M.M. given his individual genetic makeup. M.M.’s alleged immediate reaction
(as illustrated by high-pitched screaming, back arching, and fever of 105 degrees), Dr. Megson
28 Dr. Megson justified the fact that she did not review M.M.’s pediatric records when she initially evaluated him in
October 2005 by stating that she does not like to be biased in advance of her examination. Tr. at 196-97.
29 Besides testifying in support of Petitioners’ causation theory, Dr. Megson also repeatedly attempted to identify
record support for the Murphys’ reported diagnosis of vaccine-induced encephalopathy, despite the absence of a
contemporaneous treater actually having ever made that diagnosis. For example, she cited in her report the fact that
the Beltway Sniper incident had likely discouraged the Petitioners from seeking immediate treatment for M.M. despite
the vaccination reaction they purport to have observed. ECF No. 65-8 at 1. She excused the lack of record corroborative
proof of M.M.’s purported rash contemporaneous with the vaccination as the product of foreseeable human error on
the part of his pediatric treaters, proposing that such treaters may simply have failed to document it. Tr. at 230-32. In
that same vein, she explained away the fact that M.M.’s medical records from December 2002 (two months post-
vaccination) assessed him as being a well child as attributable to the fact that general pediatricians are not trained in
child development, making them unlikely to detect more subtle problems. Id. at 197.
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asserted, was the product of his genetic susceptibility to the pertussis toxin present in that vaccine.
Tr. at 177, 185-86. His reported post-vaccination screaming was direct evidence that a pertussis
reaction had occurred, as medicine recognizes.30 ECF No. 64-1 at 4. The active pertussis toxin “is
known to induce the release of inflammatory cytokines, and produce dendritic cell activation.”
ECF No. 65-8 at 1 (citing Pet’rs’ Ex. 23 (Diana L. Vargas, et al., Neuroglial Activation and
Neuroinflammation in the Brains of Patients with Autism, 57 Ann Neural 67, 67-81 (2005))
[hereinafter Vargas]). Increased levels of pro-inflammatory cytokines, Dr. Megson opined, have
been found in the spinal fluid and brains of autistic patients, thereby providing a purported link
between the pertussis toxin and the resulting developmental problems alleged to have occurred in
this case. Id.
Yet there was a central flaw to this aspect of her theory – since it is undisputed that M.M.
received the acellular pertussis vaccine, which contains only the pertussis toxoid rather than the
live toxin itself (which is detoxified via a chemical or genetic process).31 She nevertheless
proposed that retoxification had occurred (or that there was some unidentified problem with the
DTaP vaccination that M.M. received), which resulted in the pertussis reaction that he allegedly
experienced. Tr. at 164, 166. Thus, her theory maintained that even the acellular vaccine (designed
specifically not to include pertussis toxin) still contains a small component of active pertussis toxin
left in the vaccine sufficient to cause the reaction alleged. Id. at 163, 211-12 (citing Pet’rs’ Ex. 20,
“In Response to the Retort on [M.M.]”). But Dr. Megson could not pinpoint the basis for this
assertion – offering neither a reliable measure of how much active toxin remains, nor an estimation
of the amount of toxin sufficient to cause the reaction alleged. Indeed – by her own admission the
literature cited in her report did not support this proposition. Id. at 212.32 Moreover, she is
30 To explain this correlation, Dr. Megson testified that “[b]y 1990, high pitched screaming was considered an absolute
contraindication to further pertussis vaccines by the vaccine manufacturers, the Public Health Services Immunization
Practices Advisory Committee (ALIP), and the American Academy of Pediatrics.” ECF No. 64-1 at 4 (citing Harris
L. Coulter & Barbara Loe Fisher, A Shot in the Dark 33 (Avery Publishing Group, 1991)). She admitted in her
supplemental expert report, however, that this reaction is now viewed as merely a “precaution against repeating
pertussis vaccine.” ECF No. 65-8 at 1. Also, as noted in previous Vaccine Program cases, A Shot in the Dark does not
provide particularly probative medical or scientific evidence regarding vaccine causation, as information contained in
the book is largely anecdotal. See, e.g., Watson v. Sec'y of Dep't of Health & Human Servs., No. 89-92V, 1990 WL
293420, at *3, n. 16 (Cl. Ct. Spec. Mstr. Sept. 14, 1990).
31 A toxoid is a bacterial toxin whose toxicity has been inactivated or suppressed while other properties (namely,
immunogenicity – its ability to provoke an immune response in the body) are maintained. Tr. at 435 (testimony from
Dr. Wiznitzer). The term toxin is “frequently used to refer specifically to a protein that is produced by some higher
plants, certain animals, or pathogenic bacteria and is highly toxic for other living organisms.” Dorland’s Illustrated
Medical Dictionary 1942 (32d ed. 2012) [hereinafter Dorland’s]. In contrast, a toxoid is “a modified or inactive
bacterial exotoxin that has lost toxicity but retains the properties of combining with, or stimulating the formation of,
antitoxin.” Id. at 1943.
32 Thus, Dr. Megson cited Sandrine Tonon, et al., Bordetella Pertussis Toxin Induces the Release of Inflammatory
Cytokines in Dendritic Cells Activation in Whole Blood: Impaired Responses in Human Newborns, 32 European
Journal of Immunology 3118, 3118-125 (Nov. 2002) (Pet’rs’ Ex. 22) [hereinafter Tonon] in her report as evidence of
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admittedly not an immunologist or vaccine expert even qualified to offer such testimony. Id. at
193-95.
Moving on, Dr. Megson opined that M.M. possessed genetic deficiencies (as supported by
a family history of vision issues) that made him more susceptible to an adverse reaction to the
pertussis toxin that she believed he had experienced. Tr. at 171. Specifically, M.M. has a defect in
the G protein,33 inherited from one of his parents, and that this is where the pertussis toxin inserts
itself after its introduction into the body.34 Id. at 169, 174. Because there is no evidence in this case
of testing to establish this purported defect, however, Dr. Megson referred to M.M.’s reported
family medical history. She found it significant that M.M.’s maternal grandfather is colorblind,
because she opined that the pertussis toxin inserts itself adjacent to the genetic defect for color
blindness in G proteins. ECF No. 64-1 at 4. Dr. Megson also found it significant that M.M.’s father
suffered from migraines, caused by a double defect in the G protein. ECF No. 64-1 at 4. And both
Petitioners have symptoms of incomplete congenital stationary night blindness, which is caused
by G protein defects (and is seen in the histories of about 30 percent of patients who have
symptoms similar to those exhibited by M.M.).35 Tr. at 170-71.
Given the above, Dr. Megson proposed that the “[t]wo defects in this G protein block
acetylcholine, the main neurotransmitter of the autonomic nervous system.” ECF No. 64-1 at 4.
As discussed above, G proteins play an important role in transmitting signals from a variety of
stimuli outside of a cell to its interior. Farfel at 1012. Dr. Megson explained that when the body is
functioning normally, the calcium channels receive a stimulus (such as acetylcholine) causing
them to open briefly, allowing a small amount of calcium to enter the cell. Tr. at 169-70. For an
the concept that pertussis toxin remained even in the acellular version (Pet’rs’ Ex. 21, n. 1), but was unable to pinpoint
the portion of the article that stood for this proposition, indicating that this article was cited because it refers generally
to inflammatory response. Tr. at 212-16. My review of this piece of literature reveals that it expressly does not support
the contention for which it was cited – nor have Petitioners offered any other reliable scientific or medical proof
establishing that the acellular form of pertussis vaccine contains sufficient amounts of pertussis toxin to have the effect
alleged in this case by Petitioners.
33 G proteins, also known as guanine nucleotide-binding proteins, are involved in transmitting signals from a variety
of stimuli outside of a cell to its interior. ECF No. 113-1 at 1 (Zvi Farfel, et al., The Expanding Spectrum of G Protein
Diseases, 340 New Eng. J. Med. 1012 (1999) [hereinafter Farfel]). The activity of G proteins is regulated by factors
that control their ability to bind to and hydrolyze guanosine triphosphate (“GTP”) to guanosine diphosphate (“GDP”)
– when G proteins are bound to GTP they are “on” and when they are bound to GDP they are “off.” Farfel at 1012,
1015. Accordingly, “[m]utations that alter G protein activation may cause disorders characterized by either insufficient
or excessive transmission of signals.” Id. at 1012.
34 In providing this explanation, Dr. Megson relied on a diagram from Farfel to help illustrate the G Protein’s function
in connection with her theory. Tr. at 174.
35 However, Dr. Megson acknowledged that in the notes from the initial history that she took of M.M. (Pet’rs’ Ex. 10-
2), she documented only that his maternal grandfather had colorblindness. Tr. at 216-17.
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individual with two deficits in the G protein, however, the pertussis toxin inserts itself and those
neurotransmitter-mediated L-type calcium channels remain “stuck open” because they are not
receiving the appropriate signal to close. Id. at 170. Dr. Megson opined that this disturbance in the
calcium channels upsets the homeostasis in the body, leading to a variety of problems that could
include autism (or autism-like features). Id. As evidence, Dr. Megson argued that some of the
nutritional supplements effective in treating autism, including vitamin D3, docosahexaenoic acid
(“DHA”), and magnesium, do so by helping to close the calcium channels. Id.
Further evidence, Dr. Megson testified, for the purported defects in G protein blocking
acetylcholine transmission in M.M.’s case was to be found in his reported pupil dilation36 and
gastrointestinal issues. ECF No. 64-1 at 4. She maintained that “dilated pupils are a sign of
acetylcholine being blocked” (because acetylcholine is responsible for pupillary constriction), and
“[w]hen acetylcholine is blocked, it affects the secretory function of the gut leading to poor
excretion of digestive juices, and enzymes to break down food, leading to malabsorption and
diarrhea.”37 Id.; Tr. at 175-76. Thus, the G protein defect impacted by the pertussis toxin (and
purportedly resulting in M.M.’s developmental problems) was evidenced by M.M.’s pupil dilation
and gastrointestinal disorders. ECF No. 64-1 at 4.
The second component of Dr. Megson’s theory involved another genetic predisposition
M.M. allegedly possessed, rendering him susceptible to an adverse reaction to vaccination: a
double homozygous single nucleotide polymorphism (“SNP”)38 (C677 gene mutation) in the
methylenetetrahydrofolate reductase enzyme (“MTHFR”). ECF No. 65-8. Methylation involves
the transfer of a methyl group (one carbon and three hydrogen atoms) from one compound to
36 As evidence of dilation, Dr. Megson relied partially on Mrs. Murphy’s claim that on “the day of the shot, [M.M’s]
pupils became dilated and they remained that way for years.” Tr. at 175, 205. Dr. Megson further testified that when
she first examined M.M. she put him in a dark room, but his pupils remained dilated even when she shined a bright
light in his eyes. Id. at 175. Dr. Megson acknowledged that her typewritten notes from her initial visit with M.M. seem
to suggest that he no longer had dilated pupils. Id. at 205; Pet’rs’ Ex. 10-2 at 3 (“[h]e used to drool in the past and had
very dilated pupils. This has improved.”). However, Dr. Megson countered that his pupils were huge every time she
saw M.M., and speculated that the note may have merely indicated that they had gotten a little better. Tr. at 206.
37 Dr. Megson explained that acetylcholine is important for secretory functions in the gut, indicating that the gut can
be viewed as a long muscular tube that should squeeze in a coordinated fashion, but for many children like M.M. this
stops happening. Tr. at 175-76. She explained that it also stimulates the muscles around the pancreas to get enzymes
in to digest food and around the gallbladder to get toxins out of the body. Id. at 176. However, if acetylcholine is
blocked, the gut cannot do that which results in a change in bowel function, similar to the one seen in M.M. post-
vaccination (and that persisted for many years) as per parental reports. Id.
38 “A single nucleotide polymorphism or SNP (often pronounced “snip”) is a DNA sequence variation occurring when
a single nucleotide - A, T, C, or G - in the genome (or other shared sequence) differs between members of a species
(or between paired chromosomes in an individual).” Single Nucleotide Polymorphism Analysis and Mutation
Detection, http://www.dnabaser.com/articles/SNP/SNP-single-nucleotide-polymorphism.html (last visited Mar. 29,
2016).
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another, which is important for a variety of important bodily functions, including detoxification of
toxins that come from exposure to environmental factors or that are byproducts of biochemical
reactions that occur at the cellular level. Tr. at 183-84. Glutathione, which Dr. Megson described
as the “trash can,” is involved in the oxidation-reduction reactions that occur in the body and is
responsible for removing toxins from the body. Id.
As Dr. Megson testified, “[a]t the end of this [methylation] pathway, homocysteine is
shunted into glutathione, which helps children deal with toxins and oxidative stress.” ECF No. 65-
8 at 2. But the double homozygous SNP in MTHFR (which post-vaccination testing revealed M.M.
possesses) slowed down M.M.’s methylation pathway by 60 percent,39 making him more
susceptible to an adverse reaction to vaccination because he was unable to deal with the toxins and
oxidative stress caused by the vaccinations he received. ECF No. 65-8.40 In particular, Dr. Megson
opined that the MTHFR gene defect impacting M.M.’s methylation cycle resulted in him having
lower availability of glutathione (which she purported to be associated with developmental
problems). Tr. at 183-84, 199-200.
To support the assertion that methylation deficiencies could be adversely impacted by
vaccination, Dr. Megson cited a study looking at genetic factors increasing an individual’s risk of
adverse events following receipt of the small pox vaccination. ECF No. 65-8 at 2 (citing David M.
Reif, et al., Genetic Basis for Adverse Events after Smallpox Vaccination, 198 J. Infect. Dis. 16,
16-22 (2008)). She noted that “[i]n two trials, a single SNP [] in MTHFR at C667T was
significantly associated with an increased risk of an adverse event following this vaccine” (and
observed that genetic testing revealed that M.M. has two SNPs). ECF No. 65-8 at 2. She also relied
on certain studies (not included in the materials filed in this case)41 showing that children with
developmental disabilities possessed lower levels of glutathione. Tr. at 199. However, Dr. Megson
acknowledged that she did not test M.M.’s glutathione levels before deciding that he was deficient
in it and should start taking a supplement, but instead relied on different tests conducted by Dr.
Layton revealing that M.M. had high levels of certain metals. Id. at 200-01.
39 At hearing, Dr. Megson modified this assertion, stating that this alleged double hit to M.M.’s methylation pathways
actually slowed down the methylation process by 70 to 90 percent. Tr. at 183.
40 The fact that M.M. was no longer breastfeeding when he received the relevant vaccines in October 2002 was
significant to Dr. Megson. In her view, a child with a double C677T double mutation like M.M. would experience a
protective effect from breastfeeding because of the folic acid obtained by Mrs. Murphy from vitamin supplements and
passed on in her milk. Tr. at 185-86. This, in Dr. Megson’s view, was likely sufficient to protect M.M. from metabolic
overload despite his genetic susceptibilities when he received prior vaccinations. Id. at 185.
41 This included work purportedly done by Jill James and Dr. Richard Deth (although articles written by these
individuals supporting this assertion were not filed in this case). Tr. at 200.
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As with the pertussis toxin aspect of Dr. Megson’s theory, however, there were notable
gaps in scientific support for the G protein/methylation deficiency aspects of her overall theory
that Dr. Megson could not deny. Despite her reliance on MTHFR polymorphism testing as
demonstrating the role of vaccination in M.M.’s developmental problems, Dr. Megson admitted
that the American College of Medical Genetics (“ACMG”) practice guidelines observe a lack of
evidence supporting the utility of such testing. Tr. at 202. Indeed, she admitted an absence of
evidence that methylation deficiencies themselves are related to developmental regression or
autism. Id. at 203. Thus, she acknowledged that 10 to 15 percent of the Caucasian population has
homozygous polymorphism in the MTHFR gene, yet a similar rate of autism in that population is
not observed (contrary to what would be expected if methylation problems were causally
associated with autism). Id. at 204. She similarly agreed that the fact that 25 percent of Hispanic
children have this polymorphism does not mean there is a higher rate of autism among Hispanic
children (although she qualified the admission by noting that she did not know their vaccine
schedule, metal sensitivity, or other risk factors in that population). Id. at 204-05. Faced with this
line of questioning on cross-examination, Dr. Megson clarified that she was not trying to say that
this polymorphism specifically caused autism, but rather that it was a likely component of the
“perfect storm” of conditions she observed with respect to M.M. Id. at 204.
The next element of Dr. Megson’s theory related to the purported contributory role of the
MMR vaccine that M.M. received at the same time as the DTaP vaccine. She proposed that M.M.
had experienced “leaky gut” (and a similarly porous blood-brain barrier). Tr. at 178-79. After a
child receives the measles vaccine, she explained, the antibodies produced by the immune system
in reaction to the measles component of the vaccine cross-react with host tissues, called
intermediate filaments, which form the tight junctions that hold the cells that line the gut wall and
blood-brain barrier together. Id. at 177-78. Dr. Megson indicated that this porous blood-brain
barrier thereby increases the chances of vaccine components (such as pertussis toxin) getting into
the brain.42 Id. at 180.
To support this aspect of Petitioners’ causation theory, Dr. Megson relied on the Murphys’
contention that M.M. had developed a high pain tolerance post-vaccination, as evidenced in the
spring of 2003. Pet’rs’ Ex. 2 at 12; Tr. at 185-86. Some children, she testified, fail to digest wheat
and milk proteins completely following receipt of the MMR vaccine, as evidenced by measuring
the levels of gluteomorphin (which is morphine from wheat) and caseomorphin (which is morphine
from milk) in a child’s urine. Id. at 178. Under those circumstances, the milk and wheat protein
42 Dr. Megson also opined that having a leaky gut wall as a result of receipt of the MMR vaccination could undermine
the natural way that the body’s cells protect an individual from “intestinal bacteria and food and garbage from the
blood stream.” Tr. at 178.
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remaining in a child’s diet will begin acting like opiate peptides, such as the ones present in
painkillers, producing a very high pain tolerance. Id. at 178-79.
Finally, Dr. Megson implicated some of the adjuvants43 present in the vaccines M.M.
received as contributing to his developmental problems. As she testified, aluminum is a toxic metal
present in some vaccines. The chance of aluminum entering the brain increases when an individual
has an MMR-induced gut or blood-brain barrier leak. Tr. at 180. However, Dr. Megson did not
propose a specific mechanism by which this process would occur, and she admitted uncertainty as
to the actual effect that the aluminum in the DTaP vaccine had on M.M. (nor did she propose what
amount of aluminum would be necessary to cause such a reaction).44 Id. at 179-80. At best, she
opined that Mrs. Murphy is metal-sensitive,45 a condition Dr. Megson reported was common (in
her experience) to families with children who have experienced symptoms similar to those of M.M.
Id.
4. Dr. Zimmerman
Dr. Zimmerman was one of M.M.’s treaters46 many years after the relevant 2002
vaccinations, and he testified about the circumstances of his examination of M.M. and conclusions
he drew from the same. Dr. Zimmerman based his testimony on his recollection surrounding his
treatment of M.M. (including information reported to him from M.M.’s parents), as well as a more
recent review of M.M.’s medical records. Tr. at 254-55.
43 An adjuvant is a substance that is added to a vaccine to increase the body’s immune response, which is necessary
to develop immunity (and in turn reduces the amount of antigen – the pathogen component of the vaccine that elicits
an immune response – needed for the vaccine’s efficacy). Tr. at 414 (Dr. Wiznitzer’s explanation); Dorland’s at 32
(defining adjuvant – as the term is used in immunology – as “a non-specific stimulator of immune response . . .”).
44 Petitioners’ counsel also asked Respondent’s expert, Dr. Wiznitzer, about aluminum and its potential role in causing
the injuries alleged in this case. Dr. Wiznitzer testified that aluminum is present in small quantities in the DTaP
vaccination, but denied its capacity to pass into the brain, let alone harm it. Tr. at 413-14.
45 Dr. Megson based this opinion not on any formal medical diagnosis or test, but rather on the fact that Mrs. Murphy
does not wear jewelry because of the reaction that her skin has to it. Tr. at 180.
46 As noted above, Dr. Zimmerman testified as a fact witness (although he has offered expert testimony in other
Program cases). Accordingly, his credentials and qualifications have somewhat less bearing on analysis of his
testimony herein. However, Petitioners (perhaps anticipating their desire to make him an additional expert witness)
did question him on his qualifications. See generally Tr. at 252-53. Such testimony established that Dr. Zimmerman
is a pediatric neurologist who has been employed by The University of Massachusetts in Worcester for the past 18
months, and who was formerly employed at Kennedy Krieger Institute in Baltimore, Maryland where he worked for
16 years (and treated M.M.). Id. at 252. Dr. Zimmerman is licensed to practice medicine in Massachusetts and
Maryland. Id.
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Based on the history provided to him in 2009, Dr. Zimmerman had accepted the accuracy
of M.M.’s diagnosis of vaccine-related encephalopathy47 with apraxia48 and features of autism. He
specifically relied on M.M.’s purported history of high fever and persistent behavioral problems
within a week after the October 14, 2002, vaccinations reported to him by M.M.’s parents. Tr. at
259, 265-66. But Dr. Zimmerman did not recall reviewing M.M.’s medical records as a basis for
obtaining the history upon which the diagnosis was based. Id. at 256. Rather, it was Dr. Schultz
(the attending physician) who took the history and drafted it, and then Dr. Zimmerman merely
reviewed it. Id. at 287. At bottom, Dr. Zimmerman was simply echoing what had already been
reported about M.M.’s condition (because at the time he did not have a better explanation for the
situation). Id. at 271-72.49
After his initial examination of M.M., Dr. Zimmerman recommended (in a letter dated June
8, 2009) that his office review any metabolic or genetic testing previously performed, in order to
screen for possible causative elements such as an underlying mitochondrial disease. Tr. at 256,
263. Dr. Zimmerman explained that he was seeking information regarding whether M.M. had a
mitochondrial disorder because that might reveal an underlying sensitivity or susceptibility to
vaccination that could in turn produce a developmental regression. Id. at 257.50 He admitted,
however, that at no time did he directly “order” that any such testing occur – and indeed, as noted
above, the relevance of such testing to M.M.’s situation was raised only in the June 8, 2009, record
from the Murphys’ visit to Kennedy Krieger (Pet’rs’ Ex. 12 at 7), and is not mentioned again
thereafter. He also acknowledged that he did not have any information regarding mitochondrial
testing performed on M.M. Tr. at 259. The record contains no other treater opinions that M.M.
47 In Dr. Zimmerman’s view, vaccine encephalopathy is an untoward reaction to a vaccination affecting the nervous
system. Tr. at 265.
48 Dr. Zimmerman explained that apraxia is a problem with motor planning as “directed” within the brain, which is
very common in children with autism. Tr. at 270.
49 With the benefit of having reviewed the medical records he had not seen at the time he first examined M.M., Dr.
Zimmerman was able to acknowledge discrepancies between the history reported to him by M.M.’s parents and those
records. For instance, the notes from M.M.’s December 10, 2002, pediatric visit (indicating that M.M. was a well child
with the exception of mild eczema) suggested to Dr. Zimmerman that M.M. was not encephalopathic at that particular
point in time. Tr. at 288.
50 As Dr. Zimmerman explained, mitochondrial disorders are usually defined abnormalities in the DNA in the
mitochondria, whereas mitochondrial dysfunction means that there are signs that the mitochondria are not working
optimally. Tr. at 258. Many children with autism have mitochondrial dysfunction but do not actually have a recognized
mitochondrial disorder. Id. at 257. Dr. Zimmerman also opined that vaccine encephalopathy and mitochondrial
dysfunction are commonly associated, but admitted that a direct cause has yet to be established. Id. Certain children
with underlying metabolic disorders or dysfunction are believed susceptible to regression with metabolic stress /
oxidative stress and immune stimulation (receipt of vaccine being one such form of immune stimulation). Id. at 257,
260.
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might have suffered from some kind of mitochondrial disease (and thus no other treater ever
proposed testing that would have produced the results Dr. Zimmerman wished to review).
As noted above, Petitioners made it clear (both during and after the hearing) that they
wished to offer Dr. Zimmerman as a causation expert rather than merely as a fact witness. In an
attempt to lay some of the groundwork required to do so, counsel asked some questions of Dr.
Zimmerman about a possible alternative causation theory relevant to Dr. Zimmerman’s treatment:
that M.M. suffered from a preexisting mitochondrial disease or disorder that was exacerbated by
oxidative stress caused by the relevant vaccinations. Tr. at 282-84. Although Dr. Zimmerman
answered such questions, he admitted that he lacked the direct expertise to opine on the topic, even
though he had read enough to be knowledgeable about it. Id. at 266-67.
B. Respondent’s Expert – Max Wiznitzer, M.D.
Dr. Wiznitzer offered testimony responding to Petitioners’ general assertion that M.M. did
not suffer from an ASD, as well as a critique of Dr. Megson’s causation theory.
Dr. Wiznitzer graduated from the honors program in medical education at Northwestern
University where he received a bachelor’s of science in medicine in 1975, and his medical degree
in 1977. Tr. at 304. He went on to complete a three-year internship and residency in pediatrics at
Cincinnati Children’s Hospital in Cincinnati, Ohio, followed by a one-year fellowship in child
development and developmental disorders at the Cincinnati Center for Developmental Disorders.
Id. at 304-05. He also completed a three-year child neurology fellowship at the University of
Pennsylvania and Children’s Hospital of Philadelphia, followed by a two-year National Institute
of Health fellowship in disorders of higher cortical function in children at the Albert Einstein
College of Medicine in the Bronx, New York (which involved working with children with ASDs).
Id. at 304-06. Dr. Wiznitzer currently works at Rainbow Babies and Children’s Hospital in
Cleveland, Ohio. Id. at 304. Dr. Wiznitzer also serves as a journal reviewer and on two editorial
boards (the Lancet Neurology and the Journal of Child Neurology). Id. at 308. Dr. Wiznitzer is
board certified in pediatrics, neurology (with special qualification in child neurology), and
neurodevelopmental disabilities. Id. at 305.
Dr. Wiznitzer has an active clinical practice, and he estimates that more than a quarter of
the patients he sees have autism (many of whom receive that diagnosis from him). Tr. at 307, 309-
11.51 He also has ASD-related research and teaching experience. When Dr. Wiznitzer started his
current job at Rainbow Babies and Children’s Hospital in 1986, he immediately got involved in
autism research, and his most recent work (which is yet to be published) involves looking at
51 When he is in Cleveland, Dr. Wiznitzer normally sees patients at least seven half-days a week, and he also sees
inpatients about two months a year. Tr. at 307, 309-310.
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treatment protocols for autism. Id. at 305-06. Additionally, Dr. Wiznitzer is on the Autism
Subcommittee of the American Academy of Pediatrics and the American Academy of Neurology,
both of which are working on new guidelines for the diagnosis and management of autism. Id. at
307-08. And he is also involved in teaching individuals about autism both at the medical center,
as well as in the Cleveland area and nationally. Id. at 306-07.
Based on information obtained from the medical records, Dr. Wiznitzer expressed the
opinion that M.M. has an idiopathic ASD. Tr. at 320-21. In his view, M.M. most likely developed
autism because he was born with the genetic predisposition (which gradually showed itself), and
not as a result of his October 2002 vaccinations. Id. at 366-67, 442. As he explained, newly
developed testing can identify a defined genetic component as present in a quarter of individuals
with autism, although this still leaves 75 percent of children where the cause of autism has not
been identified. Id. at 311-13.
Dr. Wiznitzer opined that the record strongly supported an ASD diagnosis over the apraxia
and regressive development “with features of autism” diagnosis urged by Petitioners. In support,
he noted M.M.’s history of impairments in socialization and communication and the presence of
repetitive behaviors documented in the contemporaneous medical records. ECF No. 42-1 at 8.52
Dr. Wiznitzer also indicated that contrary to Petitioners’ assertions, M.M.’s capacity to show
affection (especially toward his parents) did not rule out that he had an ASD, since even young
children with ASD can interact positively with their primary caregiver, and that in any event such
factors are less important to the diagnosis than others (such as the display of intense, single-minded
behavioral “fascinations”). Tr. at 311, 323-24.
Consistent with his views about the most likely origin of M.M.’s ASD, Dr. Wiznitzer
disputed Petitioners’ factual contention that M.M. had experienced a severe reaction to the October
2002 DTaP and MMR vaccines, producing an encephalopathy and subsequent developmental
regression. Tr. at 342-43. Dr. Wiznitzer began by defining encephalopathy as an impairment in
consciousness that can be associated with other neurological symptoms or signs, such as
unsteadiness or seizures.53 Id. But he saw nothing in the contemporaneous medical records
52 M.M. had problems with socialization (citing comments such as no socializing, poor eye contact), he did not respond
to voice, and he was described as not having good pretend play. Tr. at 321. There were also repetitive behaviors
documented in the records, including hand flapping and finger flicking. Id. Moreover, the County Diagnostic
Documents (Pet’rs’ Ex. 13 at 2) stated that “[p]arental concerns at the time included lack of speech/language skills
and social behaviors, little eye contact, not responding to his name or following directions, and hand flapping” – all
features consistent with a diagnosis of ASD. Tr. at 322.
53 Dr. Wiznitzer contrasted an acute encephalopathy with a chronic encephalopathy characterized by ongoing
dysfunction of the brain (which could be defined to include autism). Tr. at 352. However, he stressed that based on
the medical records he saw no evidence that M.M. had a chronic encephalopathy that is not better explained by his
autism diagnosis. Id. at 353.
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supporting the conclusion that M.M. exhibited features of a sudden encephalopathy in the days
immediately following vaccination. Id. at 343. For instance, Dr. Wiznitzer cited M.M.’s October
18, 2002, pediatric visit (Pet’rs’ Ex. 2 at 15), a few days after vaccination, where no changes in
M.M.’s mental status were reported – contrary to what would be expected if M.M. had actually
experienced an encephalopathy. Tr. at 343-45. The next pediatric record (from December 2002)
was similarly unremarkable, with M.M. presenting as a well child. Id. at 348; Pet’rs’ Ex. 23 at
14.54
Dr. Wiznitzer did not accept the Murphys’ assertions that M.M.’s reported immediate
reactions were evidence of encephalopathy. Thus, he disputed the meaningfulness of claims M.M.
had engaged in high-pitched screaming, noting that such behavior was actually inconsistent with
an acute encephalopathy, as it would be very difficult to calm a child under such circumstances.
Tr. at 347-48. Rather, the fact that M.M.’s alleged screaming occurred when lying down, but
ceased when he was picked up, suggested to Dr. Wiznitzer that M.M.’s distress was physical pain
from the vaccinations rather than something more severe. Id. Dr. Wiznitzer also pointed to
pediatric records indicating that M.M. had not lost any weight, and actually had gained a few
pounds (compare Pet’rs’ Ex. 2 at 15 with Pet’rs’ Ex. 2 at 16) as an indicator of his well-being
during this period of time; if M.M. had actually been encephalopathic, he would not have been
feeding well or taking in adequate fluids, and would have lost weight. Tr. at 345.55
Dr. Witznitzer similarly disputed Petitioners’ claims that M.M. experienced seizures in the
days immediately following his October 2002 vaccinations. In his clinical practice, Dr. Wiznitzer
stated that he regularly follows and treats seizure patients, and therefore is aware of what would
constitute seizure activity. Tr. at 349-51. The record facts in his view did not support the conclusion
that seizures had occurred, because the descriptions of arching and thrashing provided by Mrs.
Murphy were not congruent with what a medical professional would expect to see reported when
a child experiences a seizure (stiffening of the body and a rhythmic jerking, not thrashing).56 Id.
In addition, seizures do not spontaneously stop within a few days without intervention, yet that is
54 Dr. Wiznitzer also took issue with Petitioners’ assertions that M.M. was suffering at the time from great
gastrointestinal distress, observing the note in the December 2002 record that M.M. had “one to two stools, plenty of
wet diapers,” which he felt was inconsistent with Mrs. Murphy’s testimony. Tr. at 348.
55 Dr. Wiznitzer expressed the opinion that notations in the medical records that M.M. was pulling on his ears in
reaction to ear infection pain (Pet’rs’ Ex. 2 at 13) was similarly inconsistent with the existence of an acute
encephalopathy, because it was evidence of deliberate action in response to discomfort rather than a generalized
involuntary reaction. Tr. at 346.
56 Dr. Wiznitzer acknowledged that thrashing (such as that reported by M.M.’s parents) could be part of the clinical
picture of someone with an encephalopathy. Tr. at 398. However, he reiterated his opinion that the thrashing reported
with M.M. was more likely a result of the pain or discomfort that he was experiencing as a result of the vaccinations
he had just received. Id. at 398-99.
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what is alleged to have occurred in this case (as the purported seizures are not mentioned after any
October 2002 records). Id. Accordingly, in Dr. Wiznitzer’s estimation, M.M.’s movements were
more consistent with a reaction to transitory pain caused by the vaccinations rather than a
neurologic injury. Id.
In addition to contesting Petitioners’ allegations that M.M. had experienced an
encephalopathy after his vaccinations, Dr. Wiznitzer challenged their assertion that M.M.
thereafter experienced a sudden developmental regression. Tr. at 324-25. He acknowledged that
regression may occur in autism,57 but opined that the contemporary medical records described a
gradual evolution of a “typical” ASD. ECF No. 42-1 at 8. In so maintaining, he questioned the
reliability of the Murphys’ personal allegations about M.M.’s regressive development in light of
the contrary medical records, which did not corroborate their assertions. Id. at 9. Rather, the
pediatric care records in the second and third year of M.M.’s life – well after the October 2002
vaccinations – reflected concerns about language delay instead of something more widespread or
significant. Tr. at 325-26. Indeed, even Dr. Megson’s history (Pet’rs’ Ex. 10-2 at 3) set forth that
M.M. had “gradually lost language,” suggesting that the loss occurred over a period of time
significantly longer than what is alleged by Petitioners. Tr. at 443.
Beyond his testimony about M.M.’s medical history, Dr. Wiznitzer also offered opinions
on the scientific and medical reliability and plausibility of various elements of Dr. Megson’s
causation theory.58 In particular, Dr. Wiznitzer disagreed with Dr. Megson’s assertions that there
is pertussis toxin present in the acellular vaccine that M.M. received. Tr. at 327-28. Rather, the
version of the DTaP vaccine that M.M. received, Tripedia,59 is chemically inactivated using
formaldehyde in order to produce pertussis toxoid – which lacks toxicity but maintains its
57 Dr. Wiznitzer to some extent questioned the very concept of a sudden regression as not normally an aspect of an
idiopathic ASD. As he noted, sibling studies suggest that what is termed regression may simply reflect a faster
development of ASD (with the term “stagnation” being employed to describe a slower-progressing ASD). Tr. at 324-
25.
58 Although my decision includes review and discussion of all of Dr. Wiznitzer’s testimonial points, I note that he is
as much of an expert in immunology or virology as Dr. Megson, and therefore his opinions on medical and scientific
topics ranging from the content of the DTaP vaccine to the permeability of the blood-brain barrier merit no more
weight than I would give to Dr. Megson’s testimony given her own expertise and background. Of course, since the
Petitioners carry the initial burden of proof, and therefore must offer the proper expert to opine on the matters most
relevant to their causation theory, Dr. Megson’s overall qualifications to give the opinion she provides in this case are
of paramount concern.
59 Tripedia is composed a diphtheria and tetanus toxoids and acellular pertussis vaccine. Diphtheria and Tetanus
Toxoids and Acellular Pertussis Vaccine Adsorbed Tripedia (product information as of Dec. 2005), Sanofi Pasteur
Inc., http://wwwfda.gov/downloads/BiologicsBloodVaccines/Vaccines/ApprovedProducts/UCM101580.pdf.
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immunogenicity, and which is therefore incapable of interacting with the G protein in the manner
outlined by Dr. Megson.60 Id. at 329-31, 334-35; ECF No. 42-1 at 9.
Dr. Wiznitzer similarly contested the independent evidence that Dr. Megson said
corroborated her pertussis / G protein interaction theory, such as familial colorblindness, noting
that (a) no research he was aware of supported the concept, (b) he had seen no record evidence
establishing M.M.’s colorblindness, let alone his maternal grandfather’s, and (c) any putative
dysfunction caused in the pertussis insertion in the G protein would occur in the retina rather than
the brain, thus delinking it as proof of a neurologic impact. Tr. at 340. And he did not find
persuasive Dr. Megson’s claims about M.M.’s purportedly dilated pupils, arguing in response that
the record did not establish pupil dilation at the time of the October 2002 vaccinations, that dilation
could be consistent with anxiety at doctor’s visits, and that (as with colorblindness) pupil dilation
is not otherwise associated with clinical pertussis, a respiratory illness (meaning it would similarly
not be associated with a pertussis reaction of any kind). Id. at 338-40, 411-12, 420, 422.
Next, Dr. Wiznitzer took issue with the concept that (assuming pertussis toxin persisted in
the acellular form of the DTaP vaccine in sufficient amounts to cause injury) the pertussis toxin
could have crossed the blood-brain barrier to cause M.M.’s developmental symptoms, asserting
that the relevant molecule was too large to do so (and unlikely to make the journey from injection
point to brain in any event), and that the argument lacked reliable scientific support. ECF No. 42-
1 at 9; ECF No. 68-1 at 2; Tr. at 335, 337. He similarly challenged Dr. Megson’s assertion the
measles component of the MMR vaccine could permit the entry of toxins through the
gastrointestinal system (or permeate the blood-brain barrier) causing an autistic phenotype,
arguing that the position was not supported by science and that he was unaware of any plausible
biologic mechanism by which this process could occur. Tr. at 327, 341-42. And he disagreed with
Dr. Megson’s opinion that (as an alternative causative factor) vaccination could elicit a pathologic
cytokine response in the brain capable of causing neurologic harm of the sort alleged in this case.
Id. at 329-34.61
60 Dr. Wiznitzer also questioned the timing of the alleged G protein interaction mechanism. Because G protein has a
half-life of approximately 24 hours, Dr. Wiznitzer opined that even if pertussis toxin could remain in the acellular
form of vaccine in sufficient amounts to interact with the G protein, it would all be gone within five days and, therefore,
an affected child would no longer be symptomatic after that period of time. Tr. at 338.
61 Dr. Wiznitzer’s attack on this aspect of Dr. Megson’s theory included discussion of some of the scientific and
medical literature she cited in her reports. For example, he pointed out that the authors of the Tonon article (Pet’rs’
Ex. 22) expressly acknowledged that the chemically modified pertussis toxin, such as that contained in the Tripedia
vaccine that M.M. received, did not elicit a significant cytokine response (and they actually stopped using it in future
experiments for that reason). Tr. at 329-31. He also addressed Vargas (Pet’rs’ Ex. 23), noting that it was published ten
years ago and, therefore, does not take into account developments in the most current understanding of cytokine
effects. Id. at 332-33. The most up-to-date understanding of cytokines, Dr. Wiznitzer explained, is that their expression
in the brain reflects the brain’s attempt to fix existing dysfunction, rather than an inflammatory cause of dysfunction
– a fact that Vargas anticipates. Id. at 333-34; Pet’rs’ Ex. 23 at 12-15.
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Finally, Dr. Wiznitzer addressed Dr. Megson’s arguments about M.M.’s purported
methylation deficiencies as established by testing showing M.M. was homozygous for the C677T
polymorphism. He broadly noted that this particular mutation was not itself associated
scientifically with autism (despite his prior assertions that there was an unidentified genetic causal
link likely related to ASD),62 and therefore he would not ever request testing for that polymorphism
in his ASD patients. Tr. at 313, 353-55. He also doubted that the methylation capacity of a child
testing positive for the polymorphism would be affected in a clinically significant way. Id. at 356,
360-61. In the same vein, Dr. Wiznitzer questioned the impact of oxidative stress caused by
vaccination in a person like M.M. with the polymorphism. Id. at 357. He would expect any injury
caused by oxidative stress to be evident on an MRI, but M.M.’s MRIs were normal. Id. at 357-
58.63 Dr. Wiznitzer also deemed the assertion that a glutathione insufficiency due to the MTHFR
gene could have exacerbated oxidative stress in M.M. resulting in injury was biologically
implausible, and not otherwise supported by any reliable data of which he was aware. Id. at 364-
65.
III. PROCEDURAL HISTORY
A. Early Case History.
As stated above, the Murphys filed this petition in 2005, adopting the “Master Autism
Petition for Vaccine Compensation” and providing no further details regarding the nature of the
alleged vaccine-related injury. ECF No. 1. On May 6, 2009, Respondent filed a statement
expressing no objection to the jurisdiction and appropriateness of Petitioners proceeding within
the Omnibus Autism Proceeding (“OAP”).64 However, after the relevant test cases in the OAP
62 Dr. Wiznitzer attacked the credibility of the an article filed by Petitioners – Marvin Boris, et al., Association of
MTHFR Gene Variants with Autism, 9 J. Am. Physicians & Surgeons 106-108 (Winter of 2004) purporting to
demonstrate an association between MTHFR gene variants and autism (Pet’rs’ Ex. 30), arguing that it was published
in a journal with highly questionable peer-review practices, plus inherent biases about the safety of vaccines generally.
Tr. at 376-77. He also suggested that its authors committed a fatal error of selecting the reference basis to support their
ultimate conclusion, because they “cherry-picked” the experimental controls used depending on which variant they
were examining. Id. at 374.
63 Dr. Wiznitzer admitted on cross-examination that the MRIs of children with autism generally are negative. Tr. at
385. He nevertheless found it significant in this case that the MRI performed on M.M. did not show signs of
abnormalities because Petitioners are claiming that M.M. experienced oxidative stress leading to brain damage, which
means that there would be dead brain cells that should show up on an MRI. Id. at 386-87.
64 This case was initially among the more than 5,400 cases filed under short form petition in the OAP, where thousands
of petitioners’ claims that certain vaccines caused autism were joined for purposes of efficient resolution. A
“Petitioners’ Steering Committee” was formed by many attorneys who represent Vaccine Program petitioners, with
about 180 attorneys participating. This group chose “test” cases to represent the entire docket, with the understanding
that the outcomes in these cases would be applied to cases with similar facts alleging similar theories.
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were litigated, and their causation theories rejected, the Murphys elected to remain in the Vaccine
Program, filing an amended petition on March 17, 2011, explaining how their revised theory of
vaccine causation differed from the decided test cases. ECF No. 23.
Petitioners were instructed on March 12, 2012, to obtain an expert report supporting their
claim. ECF No. 24. Thereafter, on July 11, 2012, Petitioners submitted a status report indicating
that they were in the process of obtaining an expert report from Dr. Megson. ECF No. 28.
Petitioners continued to file such status reports in the ensuing months, eventually indicating that
although they still anticipated receiving an expert report from Dr. Megson, they were experiencing
difficulties obtaining that report and were now seeking an additional expert. ECF Nos. 30-36. By
July 13, 2013, however, because Petitioners had still not filed an expert report, an Order to Show
Cause was issued requiring them to so act or risk the action’s dismissal. ECF No. 37.
On August 1, 2013, Petitioners finally filed an expert report from Dr. Megson, proposing
generally (as reviewed in more detail below) that M.M. had experienced an encephalopathic
reaction to the vaccines he received in October 2002. ECF Nos. 39, 64. Respondent’s expert report
from Dr. Wiznitzer was subsequently filed in November 2013, along with a Supplemental Rule
4(c) report. See ECF No. 42. In the latter, Respondent maintained that Dr. Megson’s report was
based on an incomplete, and after-the-fact treatment history, and also that it was scientifically
unreliable, both due to the quality of medical literature offered in support of Dr. Megson’s theories,
as well as her purported lack of qualifications to opine on the relevant theory. ECF No. 42 at 11-
The Petitioners’ Steering Committee chose six test cases to present two different theories regarding autism causation.
The first theory alleged that the measles portion of the MMR vaccine precipitated autism, or, in the alternative, that
MMR plus thimerosal-containing vaccines caused autism, while the second theory alleged that the mercury contained
in thimerosal-containing vaccines could affect an infant’s brain, leading to autism.
The first theory was rejected in three test case decisions, all of which were subsequently affirmed. See generally
Cedillo v. Sec’y of Health & Human Servs., No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot.
for review den’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v. Sec’y of Health &
Human Servs., No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot. for review den’d, 88 Fed.
Cl. 473 (2009), aff’d, 605 F.3d 1343 (Fed. Cir. 2010); Snyder v. Sec’y of Health & Human Servs., No. 01-162V, 2009
WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009).
The second theory was similarly rejected. Dwyer v. Sec’y of Health & Human Servs., No. 03-1202V, 2010 WL 892250
(Fed. Cl. Spec. Mstr. Mar. 12, 2010); King v. Sec’y of Health & Human Servs., No. 03-584V, 2010 WL 892296 (Fed.
Cl. Spec. Mstr. Mar. 12, 2010); Mead v. Sec’y of Health & Human Servs., No. 03-215V, 2010 WL 892248 (Fed. Cl.
Spec. Mstr. Mar. 12, 2010).
Ultimately a total of 11 lengthy decisions by special masters, the judges of the U.S. Court of Federal Claims, and the
panels of the U.S. Court of Appeals for the Federal Circuit, unanimously rejected the petitioners’ claims. These
decisions found no persuasive evidence that the MMR vaccine or thimerosal-containing vaccines caused autism. The
OAP proceedings concluded in 2010.
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12.65 In reaction to such objections, on June 6, 2014, Petitioners filed a supplemental expert report
from Dr. Megson. ECF Nos. 57-58, 65-66.
Before this matter was assigned to me, the parties had scheduled this case for a hearing to
be held in September 2014, but the hearing was later continued at the Petitioners’ request to
January 2015. In her pre-hearing submissions, Respondent reiterated her prior objections to Dr.
Megson’s opinion. ECF Nos. 67-68. In early 2015, the matter was continued for a second time at
Petitioners’ request due to their counsel’s illness (ECF Nos. 70-72), and I therefore rescheduled
the hearing for May 18-19, 2015.
B. Disputes Over Experts and Fact Witnesses.
On March 11, 2015, Respondent filed a Notice of Additional Authority, citing Long v.
Sec’y of Health & Human Servs., No. 08-792V, 2015 WL 1011740, at *19-20 (Fed. Cl. Spec. Mstr.
Feb. 9, 2015) (a decision issued after the parties had filed their pre-hearing submissions) as
additional support for their previous assertion that Dr. Megson was not a reliable expert to offer
an opinion in this case. In it, Respondent referenced comments made in that decision by Special
Master Hastings about Dr. Megson and the reliability of the opinion she had offered in that case.
ECF No. 75.66
In reaction, Petitioners filed an opposition setting forth their concern that Dr. Megson might
refuse to continue to act as their expert because of what she perceived as prejudicial comments
made about her in the Long decision, and that as a result Petitioners were evaluating whether to
obtain an alternative expert to testify in her place. ECF No. 76 at 2. Petitioners also proposed taking
discovery from Dr. Zimmerman, based on their belief that he would not voluntarily appear at trial
to testify about his treatment of M.M. (although Petitioners made no mention at this time of
65 Respondent also questioned whether there was a reasonable basis for Petitioners’ claim in this case, as Respondent
argued that “this case has no distinguishing characteristics from the issues already litigated in the OAP.” ECF No. 42
at 12-13. Accordingly, Respondent requested that this case be dismissed “[i]nasmuch as [P]etitioners have not offered
an adequate medical expert opinion or other reliable evidence sufficient to establish a causal relationship between
[M.M.’s] vaccinations and his condition,” and “[P]etitioners have failed to reasonably distinguish it from issues
litigated in the OAP, of which this case was a part.” ECF No. 42 at 12.
66 As with this case, Long involved the claim that a child’s ASD was impacted and/or caused by receipt of a vaccine.
The Long petitioners specifically proposed that the flu vaccine significantly aggravated their son’s pre-existing
neurologic problems – in particular by causing oxidative stress in a child with a similar genetic mutation in the MTHFR
gene as alleged herein. Long, 2015 WL 1011740, at *8. Special Master Hastings not only rejected the theory as
implausible and unreliable (since Petitioners had failed to link the relevant vaccine to the purported reactions), but
stated that, because the theory relied heavily on specific causation theories addressed at length, but rejected, in the
OAP decisions, he was unlikely in the future to compensate Dr. Megson for such testimony (or other experts who
embraced such theories in other cases before him). Id. at *20.
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designating him as an additional expert).67 Id. Shortly thereafter, Petitioners filed a written motion
asking for issuance of a subpoena to depose Dr. Zimmerman as a fact witness. ECF No. 79.
Petitioners again did not propose that Dr. Zimmerman would act as an additional expert; indeed,
in a subsequent filing Petitioners specifically stated that they desired discovery from Dr.
Zimmerman (among others) solely to “bolster the credibility of the expert witness Dr. Megson.”
ECF No. 82 at 2, 5.
After reviewing the parties’ respective arguments, I denied the request for discovery in
advance of the hearing, but proposed instead that Petitioners determine Dr. Zimmerman’s
availability at trial, and that his presence be compelled by subpoena (although he could testify
remotely to reduce the burden placed upon him). ECF No. 83 (Status Conference Order, dated
Apr. 20, 2015). No further references were made to Dr. Megson’s unavailability, however, and I
indicated my intent to proceed to hearing as scheduled based on the assumption that she would
still appear. Id. Petitioners subsequently subpoenaed Dr. Zimmerman, and formally confirmed that
both he and Dr. Megson would be testifying on their behalf. ECF No. 84. At all times, however, I
informed Petitioners that Dr. Zimmerman was to testify as a fact witness only, as he had not offered
an expert report on behalf of Petitioners’ claims, nor had he ever been identified as a possible
expert in the many years leading to hearing. See May 15, 2015, Status Conference Order (ECF No.
96).
C. Post-Hearing Matters.
The hearing occurred as scheduled on May 18-19, 2015. At its close, Petitioners requested
the opportunity to obtain and file an expert report from Dr. Zimmerman regarding his theories on
mitochondrial disorders or other vaccine causation possibilities, in order to bolster Dr. Megson’s
expert opinion regarding oxidative stress. Tr. at 277-78, 284. Petitioners’ counsel also requested
an opportunity to have M.M. tested for a mitochondrial disorder. Id. Respondent opposed the
requests as dilatory. Id. at 455-56. Despite my concerns about the untimely nature of the request,
and the fact (as admitted at trial) that Dr. Zimmerman was not actually an expert on the subject of
mitochondrial diseases, I nonetheless gave Petitioners an opportunity to move formally for
permission to offer such an additional report. Id. at 454-57; ECF No. 97.68
On June 26, 2015, Petitioners filed their motion. ECF No. 104 at 4. In it, Petitioners
represented that Dr. Zimmerman (whom they identified as an expert in vaccine injury) was
67 Petitioners also asked for discovery from M.M.’s pediatrician, Dr. Hickey, and initially suggested he was also a fact
witness with potentially relevant testimony, but ultimately dropped him as a witness without explanation.
68 I also instructed Petitioners to file information regarding the potential for conducting additional metabolic testing
and its relevance to preparation of such an expert report. ECF No. 97.
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prepared to offer an expert opinion on their behalf if certain additional genetic, metabolic, and
mitochondrial disease testing of M.M. were performed (and paid for in advance). ECF No. 104.69
Petitioners offered two grounds for this request expanding upon their previous arguments. First,
Petitioners repeated their earlier assertion that by calling into question Dr. Megson’s credibility
(specifically through reference to discussion of Dr. Megson in Long), Respondent had “opened the
door” to additional expert testimony generally, because the credibility challenge went to the overall
sufficiency of Petitioners’ expert support. ECF No. 104 at 2-3. Second, Petitioners claimed that
they could not meet their burden to demonstrate causation by a preponderance of the evidence
without an additional report. Id.
On July 17, 2015, Respondent opposed Petitioners’ request. ECF No. 108 at 4-6.
Respondent observed in her opposition that any questions about the validity and/or reliability of
Dr. Megson’s opinion had been made clear to Petitioners long before, and as early as the
Supplemental Rule 4(c) report filed in the fall of 2013. Id. at 2 (citing Supp. Rep. at 11-13).
Respondent also questioned whether the Notice she previously filed referencing the Long decision
was unreasonably prejudicial. Id. at 3. At bottom, however, Respondent objected that Petitioners
had had ample time to fully investigate their case and designate experts, and should not be allowed
to propose an effectively new causation theory (that M.M. suffered from an underlying
mitochondrial disorder) at the end of the matter’s procedural history. Id. at 5.
After reviewing the motion and opposition, I held a status conference with the parties on
August 28, 2015, and informed them of my proposed means of resolving the expert dispute. Order,
dated Aug. 28, 2015 (ECF No. 110). Rather than decide the pending motion, I asked the parties to
brief further (in the context of their post-hearing briefs) the grounds for an additional expert – and
particularly directed the Petitioners to set forth how the anticipated opinion from Dr. Zimmerman
would materially alter the outcome of the matter in their favor. Id. Petitioners filed this brief on
December 7, 2015 (ECF No. 115), and Respondent filed her brief on February 1, 2016 (ECF No.
117). The matter is now ripe for resolution.70
69 Petitioners represented that they identified a facility where such testing could be conducted, Courtagen Diagnostics
Laboratory, and that the cost of such testing would be approximately $33,518.00. ECF No. 104 at 3. Respondent
argued in response that there was no basis for payment of such a cost in advance of its having been incurred. ECF No.
108 at 5. Because I decide Petitioners’ motion on other grounds, the propriety of reimbursing the costs of testing
requested by Dr. Zimmerman in advance of an expert opinion is moot – although I note that very clear Vaccine
Program precedent suggests that only incurred costs may be reimbursed under the Act. See, e.g., Barrett v. Sec'y of
Health & Human Servs., No. 09-389V, 2014 WL 2505689, at *6 (Fed. Cl. Spec. Mstr. May 13, 2014) (anticipated
legal costs associated with a guardian’s future exercise of its duties could not be reimbursed because they were not
“incurred” within the meaning of the Act).
70 In addition to addressing the motion for a new expert, I granted Respondent’s motion to strike an exhibit. Order,
dated October 8, 2015 (ECF No. 111). Petitioners had previously filed as an exhibit an expert report prepared by Dr.
Zimmerman in support of an older Program case involving a Table injury, Poling v. Sec’y of Health & Human Servs.,
No. 02-1466V. Respondent moved to strike the exhibit on the grounds that it was not material to this case, and that its
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IV. SUMMARY OF RELEVANT MEDICAL CONCEPTS
Prior to analyzing Petitioners’ claims, it would be beneficial to consider some medical
concepts at issue in this case. The summary below is derived from materials filed by both parties
in this case, as well as discussions of the conditions set forth in the decisions of other special
masters or the Court of Federal Claims.
A. Autism and ASDs.
The term ASD encompasses a group of complex neurodevelopmental disorders
characterized by “self-absorption, impairment in social interaction and communication, and a
restricted range of activities and interests.” Dorland’s Illustrated Medical Dictionary 180 (32d ed.
2012) [hereinafter Dorland’s]; see also Autism Spectrum Disorder Fact Sheet, NATIONAL
INSTITUTE OF NEUROLOGICAL DISORDERS AND STROKES, Oct. 7, 2015, available at
http://www.ninds.nih.gov/disorders/autism/detail_autism.html (last visited Feb. 11, 2016);
Resp’t’s Ex. A, Tab 1 (Johnson, et al., Identification and Evaluation of Children with Autism
Spectrum Disorders, 120 American Academy of Pediatrics 1183, 1183-215 (Oct. 29, 2007)
(discussing ASD screening criteria)). Children diagnosed with ASD are often reported by their
parents to have displayed developmental or behavioral problems around 18 months of age, if not
by the age of two, and a significant minority of children with ASD experience regression/loss of
skills, including language or vocabulary. Lehner v. Sec’y of Health & Human Servs., No. 08-554V,
2015 WL 5443461, at *34-35 (Fed. Cl. Spec. Mstr. July 22, 2015) (discussing the diagnostic
criteria and characteristics of ASDs).
Since the resolution of the OAP cases, there have been numerous petitions attempting to
establish that a variety of vaccines cause autism or an ASD, based on causation theories highly
similar to those asserted in the present action. See, e.g., Hardy v. Sec’y of Health & Human Servs.,
No. 08-108V, 2015 WL 7732603, at *4-5 (Fed. Cl. Spec. Mstr. Nov. 3, 2015) (petitioners failed
to demonstrate that DTaP vaccine caused or significantly aggravated underlying mitochondrial
disease resulting in ASD); Miller v. Sec’y of Health & Human Servs., No. 02-235V, 2015 WL
5456093 (Fed. Cl. Spec. Mstr. Aug. 18, 2015) (petitioners failed to demonstrate that several
childhood vaccines caused encephalopathy or aggravated underlying mitochondrial
inclusion violated Section 12(d)(4)(A) of the Vaccine Act (which states that information submitted to a special master
or the court in a proceeding on a petition may be disclosed to a person who is not a party to the proceeding only with
express written consent of the person who submitted the information). I informed Petitioners prior to the hearing that
I would allow the exhibit to remain in the record if they obtained a current, written consent from the petitioners in the
Poling case specific to this case. ECF No. 96. Petitioners did not do so, however, even after being given multiple
opportunities, and therefore I granted Respondent’s motion.
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disease/dysfunction); Lehner, 2015 WL 5443461 (petitioners failed to demonstrate that flu vaccine
resulted in autoimmune encephalitis). As Special Master Hastings noted in the recent Hardy
decision, however, to date every post-OAP Non-Table claim seeking compensation for autism
injuries purportedly related to a vaccine that has been tried has failed. Hardy, 2015 WL 7732603,
at *4-5 (referencing eleven autism claims unsuccessfully tried (including Miller and Lehner), plus
six that were rejected (over the petitioners’ objections) without trial)).
B. Encephalopathy.
An alleged encephalopathy can be the basis for a Table or Non-Table claim, although the
Table’s definition of the term “simply does not encompass every type of brain dysfunction to
which the broader meaning of ‘encephalopathy’ applies.” Wright v. Sec'y of Health & Human
Servs., No. 12-423V, 2015 WL 6665600, at *6 (Fed. Cl. Spec. Mstr. Sept. 21, 2015); Fester v.
Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *21, n. 5 (Fed. Cl. Spec.
Mstr. Aug. 27, 2013). At hearing, Dr. Witznitzer stated that “[a]n acute encephalopathy, as we
define it in neurology, is an impairment in consciousness, and it’s a decreased level of
consciousness that goes anywhere from basically lethargy, stupor, down to coma, and can be
associated with other neurologic symptoms or signs, such as unsteadiness or seizures.” Tr. at 342-
43. As noted by former Chief Special Master Vowell, the term encephalopathy, “as commonly
used in the medical community, encompasses a much broader class of injuries than the more
stringent definition of acute encephalopathy found in the QAI [qualifications and aids to
interpretation].” Wright, 2015 WL 6665600, at *5 (citing Waddell v. Sec'y of Health & Human
Servs., No. 10–316V, 2012 WL 4829291, at *6 (Fed. Cl. Spec. Mstr. Sept. 19, 2012)).
According to the QAI, a vaccinee is considered to have suffered a Table encephalopathy if
he or she manifests an injury encompassed in the definition of an “acute” encephalopathy within
the appropriate time period, and then a “chronic” encephalopathy is present for more than six
months after the immunization. 42 C.F.R. § 100.3(b)(2) (emphasis added). In accordance with the
QAI, an acute encephalopathy must be sufficiently serve to require hospitalization (regardless of
whether the vaccinee is actually hospitalized). 42 C.F.R. § 100.3(b)(2)(i). For a child less than 18
months of age who did not experience an associated seizure event, an acute encephalopathy is
deemed to be present if there is a “significantly decreased level of consciousness” that persists for
at least 24 hours. 42 C.F.R. § 100.3(b)(2)(i)(A). Children less than 18 months of age presenting
after a seizure are considered to have an acute encephalopathy if they have experienced a
“significantly decreased level of consciousness” that persists beyond 24 hours and cannot be
attributed to the seizure or medication. Id. The referenced phrase “significant decreased level of
consciousness” must be evidenced by the presence of at least one of the following clinical signs
for at least a 24-hour period: “(1) [d]ecreased or absent response to environment (responds, if at
all, only to loud voice or painful stimuli); (2) [d]ecreased or absent eye contact (does not fix gaze
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upon family members or other individuals); or (3) [i]nconsistent or absent responses to external
stimuli (does not recognize familiar people or things).” 42 C.F.R. § 100.3(b)(2)(i)(D).
The QAI defines a chronic encephalopathy to be “a change in mental or neurologic status
that first manifested during the applicable time period and that persists for at least six months post-
vaccination.” 42 C.F.R. § 100.3(b)(2)(ii). Individuals who return to a normal neurologic state after
experiencing an acute encephalopathy shall not be presumed to have suffered residual neurologic
damage from that event, and thus any subsequent chronic encephalopathy shall not be presumed
to be a sequela of the acute encephalopathy. 42 C.F.R. § 100.3(b)(2)(ii). Moreover, “[i]f a
preponderance of the evidence indicates that a child’s chronic encephalopathy is secondary to
genetic, prenatal or perinatal factors, that chronic encephalopathy shall not be considered to be a
condition set forth in the Table.” 42 C.F.R. § 100.3(b)(2)(ii). Similarly, “[a]n encephalopathy shall
not be considered to be a condition set forth in the Table if in a proceeding on a petition, it is shown
by a preponderance of the evidence that the encephalopathy was caused by an infection, a toxin, a
metabolic disturbance, a structural lesion, a genetic disorder or trauma (without regard to whether
the cause of the infection, toxin, trauma, metabolic disturbance, structural lesion or genetic
disorder is known).” 42 C.F.R. § 100.3(b)(2)(iii).
Program petitioners have pursued Table claims (in which causation is presumed if the
factual requirements for the claim are met) based upon an acute encephalopathy by a covered
vaccine that later manifested developmental regression or even autism. In a single instance,
petitioners (the parents of a vaccinated child) succeeded with such a claim. Wright, 2015 WL
6665600, at *30-31. In Wright, the petitioners met the Table criteria for an “acute encephalopathy”
following vaccination by establishing by preponderant evidence that the vaccinated child
experienced a seizure followed by loss of consciousness shortly after receipt of pertussis-
containing vaccine; the severe reaction lasted for more than 24 hours, with resulting demonstrable
significant changes in behavior. Id. But the special master responsible for that decision (former
Chief Special Master Vowell) explicitly noted in her decision that petitioners would not have been
able to establish entitlement (under the same facts) for a Non-Table claim, because their expert
presented a causation opinion that she found “absurd and biologically impossible.” Id. at *2.71
71 In a different case – Poling v. Sec'y of Health & Human Servs., No. 021466V, 2011 WL 678559 at *1 (Fed. Cl.
Spec. Mstr. Jan. 28, 2011) – the petitioners settled their Table claim (that a vaccine produced an encephalopathy that
“eventually manifested as a chronic encephalopathy with features of autism spectrum disorder and a complex partial
seizure disorder as a sequela”) before its adjudication. See also Vernacchio v. Sec'y of Health & Human Servs., No.
08-504V, 2015 WL 1396357, at *2, n. 6 (Fed. Cl. Spec. Mstr. Mar. 6, 2015), reconsideration denied, 2015 WL
1951051 (Fed. Cl. Spec. Mstr. Apr. 10, 2015) (discussing the history of Poling).
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V. APPLICABLE LEGAL STANDARDS
A. Petitioner’s Overall Burden in Vaccine Program Cases.
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 2010); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006).72
In this case, Petitioners assert both kinds of claims.
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec’y of Health & Human Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.”
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344,
1352-53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(1).
When a Table Injury claim is successfully established, causation is presumed. 42 C.F.R. §
100.3. To prove a Table Injury, a petitioner must show that “the first symptom or manifestation of
the onset ... of any such illness, disability, injury, or condition ... occurred within the time period
after vaccine administration set forth in the Vaccine Injury Table.” Shalala v. Whitecotton, 514
U.S. 268, 270 (1995) (quoting 42 U.S.C. § 11(c)(1)(C)(i)). Accordingly, to establish a Table
encephalopathy in this case, Petitioners must demonstrate that M.M. suffered an “encephalopathy”
72 Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding
authority. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings
concerning legal issues are binding on special masters. Guillory v. Sec’y of Health & Human Servs., 59 Fed. Cl. 121,
124 (2003), aff’d, 104 F. App’x 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Human Servs., No. 13-
159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
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as defined by the QAI section of the Vaccine Injury Table (discussed above) within seventy-two
hours of his DTaP vaccination.
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen: “(1) a medical theory causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the vaccination was the reason for the injury;
and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen,
418 F.3d at 1278.
Each of the Althen prongs requires a different showing. Under Althen prong one, petitioners
must provide a “reputable medical theory,” demonstrating that the vaccine received can cause the
type of injury alleged. Pafford, 451 F.3d at 1355-56 (citations omitted). To satisfy this prong,
petitioner’s theory must be based on a “sound and reliable medical or scientific explanation.”
Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). Such a theory
must only be “legally probable, not medically or scientifically certain.” Id. at 549.
Petitioners may satisfy the first Althen prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
theory. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1378-79 (Fed. Cir. 2009) (citing
Capizzano, 440 F.3d at 1325-26). Special masters, despite their expertise, are not empowered by
statute to conclusively resolve what are essentially thorny scientific and medical questions, and
thus scientific evidence offered to establish Althen prong one is viewed “not through the lens of
the laboratorian, but instead from the vantage point of the Vaccine Act’s preponderant evidence
standard.” Id. at 1380. Accordingly, special masters must take care not to increase the burden
placed on petitioners in offering a scientific theory linking vaccine to injury. Contreras v. Sec’y of
Health & Human Servs., 121 Fed. Cl. 230, 245 (2015) (“[p]lausibility . . . in many cases may be
enough to satisfy Althen prong one” (emphasis in original)). But this does not negate or reduce a
petitioner’s ultimate burden to establish his entitlement to damages by preponderant evidence.
W.C. v. Sec’y of Health & Human Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013) (citations omitted).
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,
569 F.3d at 1375-77; Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Human Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
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trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
However, medical records and/or statements of a treating physician’s views do not per se
bind the special master to adopt the conclusions of such an individual, even if they must be
considered and carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis,
conclusion, judgment, test result, report, or summary shall not be binding on the special master or
court”); Snyder v. Sec’y of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is
nothing . . . that mandates that the testimony of a treating physician is sacrosanct—that it must be
accepted in its entirety and cannot be rebutted”). As with expert testimony offered to establish a
theory of causation, the opinions or diagnoses of treating physicians are only as trustworthy as the
reasonableness of their suppositions or bases. The views of treating physicians should also be
weighed against other, contrary evidence also present in the record – including conflicting opinions
among such individuals. Hibbard v. Sec’y of Health & Human Servs., 100 Fed. Cl. 742, 749 (2011)
(not arbitrary or capricious for special master to weigh competing treating physicians’ conclusions
against each other), aff'd, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec’y of Dep't of Health &
Human Servs., 100 Fed. Cl. 119, 136 (2011), aff'd, 463 F. App'x 932 (Fed. Cir. 2012); Veryzer v.
Sec’y of Health & Human Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr.
Apr. 29, 2011), mot. for review den’d, 100 Fed. Cl. 344, 356 (2011), aff’d without opinion, 475
Fed. App’x 765 (Fed. Cir. 2012).
The third Althen prong requires establishing a “proximate temporal relationship” between
the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to the
phrase “medically-acceptable temporal relationship.” Id. A petitioner must offer “preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder’s etiology, it is medically acceptable to infer causation.” Bazan v.
Sec'y of Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what
is a medically acceptable timeframe must also coincide with the theory of how the relevant vaccine
can cause an injury (Althen prong one’s requirement). Id. at 1352; Shapiro v. Sec’y of Health &
Human Servs., 101 Fed. Cl. 532, 542 (2011), recons. den’d after remand, 105 Fed. Cl. 353 (2012),
aff’d mem., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v. Sec'y of Health & Human Servs., No.
11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for review den’d (Fed. Cl.
Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
B. Law Governing Analysis of Fact Testimony.
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [] relevant medical and scientific evidence contained in the record,” including “any
diagnosis, conclusion, medical judgment, or autopsy or coroner’s report which is contained in the
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record regarding the nature, causation, and aggravation of the petitioner’s illness, disability, injury,
condition, or death,” as well as “the results of any diagnostic or evaluative test which are contained
in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special master is then
required to weigh the evidence presented, including contemporaneous medical records and
testimony. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (it is
within the special master’s discretion to determine whether to afford greater weight to
contemporaneous medical records than to other evidence, such as oral testimony surrounding the
events in question that was given at a later date, provided that such a determination is evidenced
by a rational determination).
Medical records that are created contemporaneously with the events they describe are
presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient’s
health problems). Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Human Servs., 95 Fed.
Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner’s testimony and his
contemporaneous medical records, the special master’s decision to rely on petitioner’s medical
records was rational and consistent with applicable law”), aff’d, Rickett v. Sec’y of Health &
Human Servs., 468 F. App’x 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption is
based on the linked propositions that (i) sick people visit medical professionals; (ii) sick people
honestly report their health problems to those professionals; and (iii) medical professionals record
what they are told or observe when examining their patients in as accurate a manner as possible,
so that they are aware of enough relevant facts to make appropriate treatment decisions. Sanchez
v. Sec’y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013); Cucuras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 537, 543 (1992), aff'd, 993
F.2d 1525 (Fed. Cir. 1993) (“[i]t strains reason to conclude that petitioners would fail to accurately
report the onset of their daughter’s symptoms. It is equally unlikely that pediatric neurologists,
who are trained in taking medical histories concerning the onset of neurologically significant
symptoms, would consistently but erroneously report the onset of seizures a week after they in fact
occurred”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V, 2005
WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneously medical
records are generally found to be deserving of greater evidentiary weight than oral testimony –
especially where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528;
see also Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991), aff'd, 968 F.2d
1226 (Fed. Cir.), cert. den’d, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States v.
United States Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral
testimony which is in conflict with contemporaneous documents is entitled to little evidentiary
weight.”)).
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However, there are situations in which compelling oral testimony may be more persuasive
than written records, such as where records are deemed to be incomplete or inaccurate. Campbell
v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“like any norm based upon
common sense and experience, this rule should not be treated as an absolute and must yield where
the factual predicates for its application are weak or lacking”); Lowrie, 2005 WL 6117475, at *19
(“[w]ritten records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent”) (quoting Murphy v. Sec'y of Health & Human Servs., 23
Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed. Cir. 1992)). Ultimately, a
determination regarding a witness’s credibility is needed when determining the weight that such
testimony should be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec’y of Health & Human
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec’y of Health & Human
Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In
determining the accuracy and completeness of medical records, the Court of Federal Claims has
listed four possible explanations for inconsistencies between contemporaneously created medical
records and later testimony: (1) a person’s failure to recount to the medical professional everything
that happened during the relevant time period; (2) the medical professional’s failure to document
everything reported to her or him; (3) a person’s faulty recollection of the events when presenting
testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v.
Sec’y Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir.
2014). In making a determination regarding whether to afford greater weight to contemporaneous
medical records or other evidence, such as testimony at hearing, there must be evidence that this
decision was the result of a rational determination. Burns, 3 F.3d at 417.
C. Analysis of Expert Testimony.
Establishing a sound and reliable medical theory often requires a petitioner to present
expert testimony in support of his claim. Lampe v. Sec’y of Health & Human Servs., 219 F.3d
1357, 1361 (Fed. Cir. 2000). Vaccine Program expert testimony is usually evaluated according to
the factors for analyzing scientific reliability set forth in Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 594-96 (1993). See Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1339
(Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316 (Fed. Cir.
1999)). “The Daubert factors for analyzing the reliability of testimony are: (1) whether a theory or
technique can be (and has been) tested; (2) whether the theory or technique has been subjected to
peer review and publication; (3) whether there is a known or potential rate of error and whether
there are standards for controlling the error; and (4) whether the theory or technique enjoys general
acceptance within a relevant scientific community.” Terran, 195 F.3d at 1316 n.2 (citing Daubert,
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509 U.S. at 592-95).
The Daubert factors play a slightly different role in Vaccine Program cases than they do
when applied in other federal judicial fora (such as the district courts). Daubert factors are usually
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable and/or could confuse a jury. In Vaccine Program cases, by contrast, these factors
are used in the weighing of the reliability of scientific evidence proffered. Davis v. Sec’y of Health
& Human Servs., 94 Fed. Cl. 53, 66-67 (2010) (“uniquely in this Circuit, the Daubert factors have
been employed also as an acceptable evidentiary-gauging tool with respect to persuasiveness of
expert testimony already admitted”). The flexible use of the Daubert factors to evaluate the
persuasiveness of expert testimony has routinely been upheld. See, e.g., Snyder, 88 Fed. Cl. at 742-
45. In this matter (as in numerous other Vaccine Program cases), Daubert has not been employed
at the threshold, to determine what evidence should be admitted, but instead to determine whether
expert testimony offered is reliable and/or persuasive.
Respondent frequently offers one or more experts of her own in order to rebut a petitioner’s
case. Where both sides offer expert testimony, a special master’s decision may be “based on the
credibility of the experts and the relative persuasiveness of their competing theories.”
Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing
Lampe, 219 F.3d at 1362). However, nothing requires the acceptance of an expert’s conclusion
“connected to existing data only by the ipse dixit of the expert,” especially if “there is simply too
great an analytical gap between the data and the opinion proffered.” Snyder, 88 Fed. Cl. at 743
(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 146 (1997)); see also Isaac v. Sec’y of Health & Human
Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec. Mstr. July 30, 2012), mot. for
review den’d, 108 Fed. Cl. 743 (2013), aff’d, 540 Fed. App’x 999 (Fed. Cir. 2013) (citing Cedillo,
617 F.3d at 1339). Weighing the relative persuasiveness of competing expert testimony, based on
a particular expert’s credibility, is part of the overall reliability analysis to which special masters
must subject expert testimony in Vaccine Program cases. Moberly, 592 F.3d at 1325-26
(“[a]ssessments as to the reliability of expert testimony often turn on credibility determinations”);
see also Porter v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1250 (Fed. Cir. 2011) (“this
court has unambiguously explained that special masters are expected to consider the credibility of
expert witnesses in evaluating petitions for compensation under the Vaccine Act”).
In determining whether a particular expert’s testimony was reliable or credible, I may
consider whether the expert is offering an opinion that exceeds the expert’s training or competence.
Walton v. Sec’y of Health & Human Servs., No. 04-503V, 2007 WL 1467307, at *17-18 (Fed. Cl.
Spec. Mstr. Apr. 30, 2007) (otolaryngologist not well suited to testify about disciplines other than
her own specialty). While (in keeping with the liberality with which evidence offered in Vaccine
Program cases is treated) I heard and have considered all of the testimony of the experts offered at
the entitlement hearing, I may properly evaluate, and give appropriate weight to, whether certain
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testimony is beyond a particular expert’s purview. See e.g., King v. Sec’y of Health & Human
Servs., No. 03-584V, 2010 WL 892296, at *78-79 (Fed. Cl. Spec. Mstr. Mar. 12, 2010)
(petitioner’s expert far less qualified to offer opinion on general causation issues pertaining to
autism than specific issues pertaining to the petitioner’s actual medical history, given the nature of
the expert’s qualifications). An opinion does not obtain legitimacy in the Program simply because
it comes out of the mouth of a medical doctor – especially if that opinion concerns matters outside
the doctor’s expertise.
VI. ANALYSIS
A. M.M. Did Not Experience a Post-Vaccination Encephalopathy.
Petitioners’ two claims depend on a fact finding that M.M. suffered from an
encephalopathy prior to his alleged regression. It is thus logical to first determine if the evidence
supports that finding. Broekelschen, 618 F.3d at 1346 (when an injury or diagnosis is disputed,
and “the proposed injuries differ significantly in their pathology,” the special master may “first
find which of [the] diagnoses was best supported by the evidence presented in the record before
applying the Althen test so that the special master could subsequently determine causation relative
to the injury”).The facts from the medical records, however, do not support the conclusion that
M.M. experienced any kind of encephalopathy (whether as defined by the Table or as the basis for
a Non-Table claim).
As the records plainly establish, M.M.’s DTaP and MMR vaccinations in October 2002
were not followed by any identifiable, measurable, severe reaction of the kind that would constitute
an acute encephalopathy. At most, Petitioners have established that M.M. experienced some
transient symptoms, such as a high fever that arguably could be attributed to the vaccinations
(although it equally could have been the result of his ear infection). But he quickly recovered from
these symptoms, and within two months was deemed a well child at his December 2002 pediatric
visit. He was never hospitalized or treated in an emergency room, and there is no persuasive
evidence of a significant change in M.M.’s consciousness. There is nothing recorded in the
contemporaneous medical history suggesting any immediate encephalopathic reaction. Blake v.
Sec’y of Health & Human Servs., No. 03-31V, 2014 WL 2769979, at *6-12 (Fed. Cl. Spec. Mstr.
May 21, 2014) (little evidence of acute reaction to MMR vaccine beyond petitioner recollections
and allegations of post-vaccine lethargy, therefore Table claim failed).
I reach the same conclusion even if I accept some of the Petitioners’ factual testimony
about M.M.’s post-vaccination state.73 Thus, they maintain (although they cannot corroborate the
73 I do not find persuasive the Murphys’ assertions that M.M. had a seizure-like reaction to the vaccinations. Claims
of a seizure in this case are uncorroborated by any independent direct or circumstantial evidence. Moreover, Dr.
Wiznitzer proposed a persuasive explanation for M.M.’s post-vaccination pain and purported thrashing. In any event,
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fact with phone records) that they repeatedly attempted to express to their pediatrician’s office
concerns about M.M.’s alleged reaction to his vaccinations, but that their concerns were given
short shrift74 dissuading them from taking M.M. to the emergency room. By this, Petitioners
suggest it is proper to infer that M.M.’s reaction to the vaccinations was likely far more severe
than the otherwise-sparse medical records establish.
There is logic to this line of reasoning. Moreover, the testimony offered in its support does
not contradict the existing record but instead supplements it, and was not otherwise rebutted by
Respondent. Stevens v. Sec'y of Health & Human Servs., No. 90-221V, 1990 WL 608693, at *3
(Cl. Ct. Dec. 21, 1990) (“discrepancies between the testimony and records or gaps in the medical
records are not in and of themselves decisive; clear, cogent, and consistent testimony can overcome
such missing or contradictory medical records”). And yet – even if I accept these allegations as
correct, the record does not subsequently corroborate Petitioners’ factual assertion that M.M.
experienced a chronic encephalopathy. For there is no compelling evidence from the days, weeks,
or months after the October 14, 2002, pediatric visit establishing that M.M. was experiencing a
persistent “change in mental or neurologic status” as defined in the QAI. Indeed, there is contrary
record evidence that he did not (as suggested by the October 18, 2002, December 2002, and May
2003 pediatric records). Indeed, no pediatric records record any concerns about M.M.’s
developmental problems before June 2003, nine months post-vaccination. See Pet’rs’ Ex. 2 at 10.
The probative nature of such proof greatly outweighs the strength of the Petitioners’ after-the-fact
testimony designed to “fill in” gaps in the medical records with unverifiable assertions about
M.M.’s developmental and physical state within 72 hours of his receipt of the DTaP and MMR
vaccines.75
Petitioners therefore cannot establish by preponderant evidence that M.M. experienced an
encephalopathy as defined by the Table. The QAI specifically indicates that symptoms such as
those now alleged by the Murphys, including “[s]leepiness, irritability (fussiness), high-pitched
and unusual screaming, persistent inconsolable crying, and bulging fontanelle” are insufficient,
standing alone or in combination, to demonstrate an acute encephalopathy. 42 C.F.R. §
the presence of “[s]eizures in themselves are not sufficient to constitute a diagnosis of encephalopathy.” 42 C.F.R. §
100.3(b)(2)(E) (“In the absence of other evidence of an acute encephalopathy, seizures shall not be viewed as the first
symptom or manifestation of the onset of an acute encephalopathy.”).
74 Petitioners are correct that during the time of the Beltway Sniper, many D.C. metropolitan region citizens avoided
motor travel. ECF No. 65-8 at 1 (Dr. Megson’s expert report). It is therefore credible that the Murphys may have
decided not to risk a pediatric visit. Yet it could also be inferred that M.M.’s distress was not at the time sufficiently
alarming for them to act. Mrs. Murphy admitted during her testimony that if she had observed M.M.’s condition to be
sufficiently concerning, she would have brought her son to the doctor despite the sniper situation. Tr. at 129-30.
75 The Vaccine Table specifically indicates that “[i]n determining whether or not an encephalopathy is a condition set
forth in the Table, the Court shall consider the entire medical record.” 42 C.F.R. § 100.3(b)(2)(iv).
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100.3(b)(2)(E). The record similarly does not support the finding that M.M. subsequently
experienced a chronic encephalopathy as defined in the QAI. The medical records from M.M.’s
second October pediatric visit, as well as his subsequent December visit, simply do not reveal an
ongoing problem of the kind alleged. See Pet’rs’ Ex. 2 at 14-15.
For purposes of comparison, it is instructive to consider the facts of the Poling and Wright
cases, where the petitioners successfully established (or settled) Table claim encephalopathies
resulting in ASD-like symptoms. In the Poling case, the child in question (who was later diagnosed
with a mitochondrial disease) had received several vaccinations (including MMR), and then within
48 hours developed a high fever that became low-grade over the next several days, along with
inconsolable crying, sleeplessness, and significant, noticeable motor problems that worsened over
the next several days. Pet’rs’ Ex. 41, ref. 26 at 170. In Wright, the petitioners’ child received
Pentacel (a multi-virus vaccine),76 and then, on the drive home from the pediatric visit at which
the vaccination was administered, experienced a brief seizure, followed by a week in which he
displayed a decreased level of consciousness and lethargy, during which the child’s parents made
many unsuccessful efforts to convince his pediatric treaters of the severity of his condition. Wright,
2015 WL 6665600, at *12-16. Such cases demonstrate the extreme factual circumstances
reflecting an encephalopathy – in stark contrast to the evidence here.
I similarly find that Petitioners have failed to establish that M.M. experienced any kind of
encephalopathy for purposes of their Non-Table claim, based upon the same evidence discussed
above.77 The weight of the evidence does not establish an encephalopathic reaction to the DTaP or
MMR vaccines. No treaters diagnosed M.M. with an encephalopathy, moreover, and to the extent
the medical records reference the diagnosis of “encephalopathy after vaccination,” that diagnosis
is based completely on parental recitations of M.M.’s history rather than an informed
professional’s reading of the records or relevant test results. Petitioners have thus not established
that it is “more likely than not” that an encephalopathy occurred. To conclude otherwise is to give
the term such a broad definition as to be meaningless for purposes of determining Vaccine Program
76 Pentacel is the trade name for a vaccine that consists of combined DTaP, inactivated polio virus, and Haemophilus
influenza type B vaccines. Dorland’s at 1406.
77 In this case, Petitioners strenuously denied that M.M. suffers from an ASD, arguing that such a condition could not
have been brought on so suddenly, and disparaging record evidence in which treaters proposed that M.M. was autistic.
Tr. 64, 118-20. Their causation theory instead relies on the concept that M.M. experienced an initial, post-vaccination
encephalopathy, producing a subsequent developmental regression “with autistic features,” as Dr. Megson stated in
her report. Pet’rs’ Ex. 9 at 1, 9. Respondent’s expert, Dr. Wiznitzer, by contrast, maintained in his testimony that
M.M.’s history was merely indicative of a typical presentation of idiopathic autism, given the prevailing view that an
individual is born with a predisposition which gradually shows itself (with signs of autism now believed to be present
as early as two to six months of age). Tr. 312, 442. As noted here and below, I do not find Petitioners carried their
burden to establish either a Table encephalopathy or a Non-Table causation claim, and therefore the burden in this
case never shifted to Respondent to establish a more likely alternative cause. Deribeaux v. Sec'y of Health & Human
Servs., 105 Fed. Cl. 583, 589 (2012), aff'd, 717 F.3d 1363 (Fed. Cir. 2013).
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award entitlement.
B. Petitioners Have Not Satisfied the Althen Prongs.
1. Petitioners did not Establish a Reliable Causation Theory
(Althen Prong One)
The theory Petitioners outlined – that pertussis toxin (contained in a vaccine designed
specifically to neutralize that very component) could interact with proteins in the body, cause
oxidative stress (exacerbated by underlying methylation dysfunction), and thereby produce the
kind of brain injury resulting in an encephalopathy sufficient to result in a non-autistic
developmental regression – was facially and structurally weak. Significant links in the theory chain
were missing or proved unreliable, given the disconnect between the theoretical proposition stated
and the evidence offered to support it. As another special master noted in considering the Althen
prong one analysis, “[t]he weight to be given an expert’s opinion is based in part on the size of the
gap between the science and the opinion proffered.” Isaac, 2012 WL 3609993, at *17 (citing
Cedillo, 617 F.3d at 1339). That gap is wide in this case.
Petitioners did not offer direct evidentiary support establishing the capacity of the MMR
or DTaP vaccines to function as alleged, in this or other analogous circumstances. Nor did they
invoke any studies involving these vaccines, or others, and their roles in incidents of
developmental regression. Instead, they relied on a loose chain of propositions in order to make a
circumstantial case establishing their causation theory. But those propositions were insufficiently
supported with reliable scientific evidence, thereby lacking the support necessary to conclude that
the overall theory was plausible.
Thus, Petitioners proposed that the DTaP vaccine, despite its acellular character, could
nevertheless still contain sufficient toxin to be harmful, without offering reliable support for that
contention (while at the same time allowing the proposition to be voiced by an expert not qualified
to testify about vaccine formulation or manufacture). Similarly, they posited that tetanus toxin
could interact in a harmful manner with the G protein, citing proof of G protein dysfunction
(colorblindness and pupil dilation) not established to be at issue with M.M., and certainly not
correlated with his developmental problems. And they purported that a brain injury could occur as
a result of the passage of vaccine components through the blood-brain barrier without reliable
evidence bulwarking the claim. Indeed, Petitioners’ expert invoked theories about “leaky gut” and
the MMR vaccine already persausively rebutted in the OAP cases. See, e.g., Snyder ex rel. Snyder
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v. Sec'y of Dep't of Health & Human Servs., No. 01-162V, 2009 WL 332044 (Fed. Cl. Feb. 12,
2009).78
Highly relevant to my analysis of the adequacy of Petitioners’ theory is the fact that Dr.
Megson lacks the qualifications necessary to offer persuasive expert testimony in its support. She
is not an immunologist, does not specialize in the study of degenerative encephalopathies
precipitated by oxidative stress or other genetic causes, is not notably experienced in treating such
diseases, and has no background studying the effect of vaccines on individuals. I have considered
her testimony carefully (and was not swayed by the statements from the Long case characterizing
the merits of her expert testimony), but it is reasonable to afford it significantly less weight since
it comes from a person unqualified to give it. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311,
1317 (9th Cir. 1995) (“[o]ne very significant fact to consider is whether the experts are proposing
to testify about matters growing naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed their opinions expressly for purposes
of testifying”).
All in all, the causation theory offered in this case was thin and did not rise to the level of
even bare plausibility. It was thus insufficient to meet the evidentiary standards required of the
first Althen prong.
2. The MMR and DTaP Vaccines did not Cause M.M.’s Developmental
Problems (Althen Prong Two)
Petitioners have not established by preponderant evidence that the MMR and DTaP
vaccines did in fact cause M.M.’s developmental problems – whether directly (by precipitating an
encephalopathy that then resulted in a dramatic developmental regression) or indirectly (by
impacting M.M.’s metabolic/genetic susceptibility to vaccine stress). Rather, the record suggests
that any loss of skills or language M.M. suffered began long after, and independent of, the October
2002 vaccinations.
First, the evidence of a dramatic drop-off in M.M.’s developmental or physiologic state
after October 14, 2002, is minimal. At best, the Murphys established that M.M. suffered some kind
of immediate reaction to the vaccines – but by the time of his next pediatric visit several days later,
his subsequent health was good. That conclusion is further corroborated by the December 2002
78 This was a repeating deficiency in Petitioners’ causation theory. Thus, Dr. Megson also proposed the concept that
the “oxidative stress” brought on by vaccination is enough to precipitate an encephalopathy with developmental effects
equivalent to an ASD – a theory handily dispensed with in the OAP cases, which also involved autism as the claimed
injury. King v. Sec'y of Health & Human Servs., No. 03-584V, 2010 WL 892296, at *55 (Fed. Cl. Spec. Mstr. Mar.
12, 2010) (describing flaws in the petitioners’ general causation theory regarding vaccines causing autism though
“oxidative stress” in brain cells).
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records. At no time did M.M. require hospitalization, and there are no test results or tertiary
evidence providing circumstantial support for the Murphys’ version of events.79
The evidence from the first half of 2003 further supports this conclusion. There are no
troubling medical records, treater opinions, or other evidence suggesting that M.M. was observed
as developmentally problematic before June 2003 – approximately nine months after the October
2002 vaccinations. This is too distant in time from the vaccination date to constitute a dramatic or
sudden change produced by encephalopathy or other stress to which M.M. was susceptible, and
the record similarly does not support the conclusion of downward progression in M.M.’s
symptoms. Rather, Dr. Wiznitzer’s interpretation of this record – that M.M.’s ASD was idiopathic
in nature – is far more persuasive than Petitioners’ reading of the facts, and nothing Petitioners
said or offered at hearing rebuts this conclusion.80
3. Petitioners Did Not Establish a Medically Reasonable Timeframe
(Althen Prong Three)
Because I have found that Petitioners failed to offer a plausible theory linking the MMR
and DTaP vaccines to M.M.’s condition, and because I do not find that preponderant evidence
supports the conclusion that M.M. experienced an encephalopathy, I need not also consider if the
Petitioners have met the evidentiary requirements of the third Althen prong, by establishing a
“medically-acceptable temporal relationship” between onset and receipt of the vaccines. But here,
too, Petitioners’ evidentiary showing is flimsy. The medical records establish that, other than the
initial, immediate reaction to the vaccines (assuming for the moment that I accept the Murphys’
testimony as correct and unrebutted), M.M. displayed no symptoms of the purported
developmental regression until June 2003. Pet’rs’ Ex. 2 at 10. And the Petitioners’ testimonial
claims of an immediate behavioral or developmental change in October 2002 are rebutted by
contemporaneous records (for example, M.M.’s December 2002 pediatric visit (Pet’rs’ Ex. 2 at
14)) that make no mention of any developmental concerns.
Moreover, Dr. Megson offered nothing (whether in the form of medical or scientific
literature, or based on her own personal expertise) that would suggest a medically plausible
79 In fact, the results that do exist (notably the MRI result reviewed by Dr. Zimmerman) support the opposite
conclusion, as no direct evidence of a brain injury was ever revealed. While this may not rule out the existence of an
encephalopathy, such unrebutted evidence weighs against Petitioners’ arguments.
80 Even where the burden does not shift to Respondent to establish a more likely alternative cause for a petitioner’s
condition than the vaccine(s) he received, I may consider evidence offered by Respondent in weighing whether a
petitioner has met his initial burden. Bazan v. Sec'y of Health & Human Servs., 539 F.3d 1347, 1353 (Fed. Cir. 2008)
(“[t]he government, like any defendant, is permitted to offer evidence to demonstrate the inadequacy of the petitioner’s
evidence on a requisite element of the petitioner's case-in-chief”); see also Roberts v. Sec'y of Health & Human Servs.,
No. 09-427V, 2013 WL 5314698, at *5 (Fed. Cl. Spec. Mstr. Aug. 29, 2013) (internal citations omitted).
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timeframe in which the pertussis toxin purportedly remaining in the DTaP vaccine would be
expected to produce the reactions alleged, and/or cause the oxidative stress that is alleged to have
resulted in M.M.’s developmental problems. And as noted above, she lacks the expertise to opine
on the topic, and could therefore only have offered her own interpretation of other medical and
scientific literature that, however reliable it might be, would not arise from her personal medical
or scientific experience. Otherwise there is no evidentiary support for the plausibility of the
vaccines having the temporal effect on M.M. alleged in this action.
VII. REQUEST FOR ADDITIONAL EXPERT OPINION
Resolving Petitioners’ request to submit another expert report after conclusion of the
entitlement hearing in this case entails consideration of case management in Vaccine Program
cases. Special masters have broad discretion in conducting proceedings, including deciding
whether, when, and how to take and consider evidence in resolving a petitioner’s entitlement to
damages. See Hovey v. Sec’y of Health & Human Servs., 38 Fed. Cl. 397, 400 (1997) (concluding
that it was within the special master’s discretion to determine whether to allow in new evidence
after an evidentiary hearing in the case); § 12(d)(3)(B) (special master afforded discretion when
making determinations regarding admission of evidence).81 However, in accordance with Vaccine
Rule 8(b)(1), to ensure fundamental fairness of the proceedings to both parties, special masters
must consider “all relevant and reliable evidence.” Vaccine Rule 8(b)(1) (“[i]n receiving evidence,
the special master will not be bound by common law or statutory rules of evidence but must
consider all relevant and reliable evidence governed by principles of fundamental fairness to both
parties”).
In light of the above, leniency is usually the appropriate response when resolving a request
to allow new evidence into the record just before, or even during, an evidentiary hearing. Tembenis
v. Sec'y of Health & Human Servs., No. 03-2820V, 2010 WL 1508646, at *2-6 (Fed. Cl. Spec.
Mstr. Mar. 29, 2010). This is true even where a party seeks to introduce new expert testimony late
in a case’s life. In Cedillo v. Sec’y of Health & Human Servs., No. 98–916V, 2009 WL 331968,
*62 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), mot. for review den’d, 89 Fed. Cl. 158 (2009), aff’d, 617
F.3d 1328 (Fed. Cir. 2010), for example, a special master permitted two expert reports to be filed
only four days before the hearing in the case was to commence. Circumstances excused the dilatory
filing: the relevant reports had been previously sealed in prior British litigation, Respondent acted
81 The statute states in pertinent part as follows: “(B) In conducting a proceeding on a petition a special master— (i)
may require such evidence as may be reasonable and necessary, (ii) may require the submission of such information
as may be reasonable and necessary, (iii) may require the testimony of any person and the production of any documents
as may be reasonable and necessary, (iv) shall afford all interested persons an opportunity to submit relevant written
information— (I) relating to the existence of the evidence described in section 300aa–13(a)(1)(B) of this title, or (II)
relating to any allegation in a petition with respect to the matters described in section 300aa–11 (c)(1)(C)(ii) of this
title, and (v) may conduct such hearings as may be reasonable and necessary.”
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diligently in procuring the reports once she became aware that they were relevant, and Respondent
filed the reports within an hour of actually receiving them. Cedillo, 2009 WL 331968, at *59.
Because of the need to avoid prejudice, however, the special master allowed the petitioner the
opportunity to file a response. Id. at *62. The special master also acknowledged that permitting
the late expert reports could prolong the proceedings, but that doing so served the ultimate purpose
of making such the decision in the case was fully informed. Id.
Relevant case law does not, however, address whether leniency is still appropriate in the
final stages of a proceeding (such as after a hearing), when the record is essentially closed (or
should be, especially in an old matter). Such circumstances can be analogized to a request to reopen
proceedings to permit the introduction of newly-discovered evidence, and requests in such
circumstances have been granted. See, e.g., Kaminski v. Sec’y of Health & Human Servs., 39 Fed.
Cl. 253, 255 and 258 (1997) (special master erred in denying Respondent’s motion to reopen
proceedings where Respondent discovered that fact witness possessed relevant information after
hearing’s conclusion, and where timeliness of request to reopen was not questioned). Even lengthy
time lapses between the close of evidentiary proceedings and a subsequent request to reopen the
record have been overlooked where the newly-discovered evidence was deemed sufficiently
important. Vant Erve v. Sec’y of Health & Human Servs., 39 Fed. Cl. 607 (1997) (special master’s
refusal to reopen a question of liability was an abuse of discretion even though three years had
passed since decision; information offered by Respondent was highly probative, there was no
showing of prejudice to Petitioners, and Respondent was not at fault for the delay), aff'd after
remand, 232 F.3d 914 (Fed. Cir. 2000) (unpublished table decision).
A rudimentary test can be applied in evaluating a request to reopen the record. Vant Erve,
232 F.3d at 914. These factors are: (1) the nature of the proffered new evidence; (2) the prejudice
to the parties; (3) the length of the delay; and (4) the reason for the delay. Vant Erve, 39 Fed. Cl.
at 612 (cited with approval, 232 F.3d at 914). Each factor should not be afforded equal weight,
however, because “[t]he paramount test is the nature of the proffered new evidence,” meaning “the
extent to which the new evidence is both relevant and affective of the outcome.” Vant Erve, 232
F.3d at 612. Where the evidence “is of marginal relevance and impact, the burden on the moving
party increases dramatically with respect to the influence of the remaining factors,” with the
opposite the case if the evidence is “highly relevant and clearly outcome determinative.” Vant
Erve, 39 Fed. Cl. at 612 (citing Horner, 35 Fed. Cl. at 27 (fundamental fairness requires admission
of highly probative evidence of vaccine record) and Kaminski v. Sec’y of Health & Human Servs.,
39 Fed. Cl. 253, 258–59 (1997) (error in special master's refusal to reopen entitlement proceedings
to hear probative, relevant testimony)).
Applying the above, I deny Petitioners’ request to obtain and file an expert report from Dr.
Zimmerman. The most important reason for doing so is because the best opinion Petitioners could
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hope to obtain from him82 – that M.M. suffered from a mitochondrial disease (or some other
unspecified form of metabolic disorder) that, in turn, interacted with the MMR and DTaP vaccines
to precipitate an encephalopathy – would not be sufficiently “affective of the outcome” of this
case. My fact-finding in this matter would not be impacted by such a theory – and those facts
would still be fatal to the Petitioners’ Non-Table claim.83
In particular, a new expert opinion would not alter my conclusion, derived from weighing
the evidence, that M.M. never experienced an encephalopathy. The testimony of Dr. Zimmerman
during the hearing supports this finding. He acknowledged that the sole evidence he relied upon
for proof of a vaccine-induced encephalopathy came from the Murphys rather than from his review
of the medical records. Tr. at 255-56, 271 (“I was simply echoing what had already been said and
what the parents told me”). He also admitted on cross-examination that (at least as of December
2002, at M.M.’s well child visit) the evidence he had seen did not corroborate the existence of a
prior encephalopathic event. Id. at 288. Dr. Zimmerman himself would thus be unable to offer
factual support for the existence of an encephalopathy even if he offered a new causation theory.
The new theory is also unsupported by the existing record. Any new theory that M.M. was
metabolically susceptible to stress from a vaccination would still require proof that such stress
“more likely than not” precipitated a change in M.M.’s brain. Such proof is lacking in this case.
The same goes for the concept that M.M. suffers from an underlying metabolic disorder. The first
time in the medical records that metabolic testing was mentioned was at Petitioners’ initial visit to
the Kennedy Krieger Institute in June 2009. But the intent of that visit was to obtain a professional
reading of M.M.’s MRI – not to explore the possibility that M.M. had an underlying mitochondrial
disease. Tr. at 80-81 (testimony from Mrs. Murphy); Pet’rs’ Ex. 8 at 4. Such metabolic testing was
never performed – before or after the visit.84 The two subsequent visits with Dr. Zimmerman (in
September 2009 and June 2010, respectively) make no further mention of such testing, although
they do discuss the MRI results (which were normal). I infer from this that after the MRI results
82 Of course, any putative opinion Dr. Zimmerman might offer is contingent on metabolic testing that remains
unperformed – nearly seven years after such testing was first proposed. Pet’rs’ Ex. 8 at 5-6. It is far from certain that
the results of such testing would persuade Dr. Zimmerman to offer the kind of opinion Petitioners expect; he might
well conclude the testing results do not support the conclusion that M.M. had a mitochondrial disease. And Dr.
Zimmerman has acknowledged he lacks the specific background in mitochondrial disease necessary for an expert
opinion in any event. Tr. at 266. It therefore is speculative to assume the opinion offered would even be favorable for
the Petitioners’ case, ignoring the extent to which such a favorable opinion is corroborated by the actual record.
83 The present circumstances are thus much different from those instances (in Vant Erve and other cases) where a new
expert report builds upon undisputed record facts instead of presenting an entirely new and untested vector for
argument. Vant Erve v. Sec’y of Health & Human Servs., 39 Fed. Cl. 607 (1997), aff'd after remand, 232 F.3d 914
(Fed. Cir. 2000).
84 Dr. Zimmerman, moreover, testified at hearing that he never formally ordered, as part of his treatment of M.M., that
such metabolic testing be performed. Tr. at 265.
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were obtained and reviewed, and based on the examination of M.M., no other signs of
mitochondrial disease were detected – consistent with the fact that no other treaters ever suggested,
based on their evaluations of M.M., that he might have a mitochondrial disease of some kind.
Accordingly, there is already an absence of support in the record for the proposition that M.M. has
a mitochondrial disease, even if the theory that individuals with such a disease could experience
injury after vaccination was determined to be plausible.
To the extent Dr. Zimmerman would simply offer the opinion that oxidative stress incited
by the DTaP or MMR vaccines was enough to produce a regression or decompensation in M.M.’s
circumstances, Dr. Megson has beat him to the punch, eliminating the need for more expert
testimony on that subject. More importantly, however, the very theory of “oxidative stress” itself
– at least as applied in cases in which autism was the identified vaccine injury – was addressed at
length in the OAP cases, but found wanting. See King, 2010 WL 892296, at *55-61 (OAP case
describing flaws in theory that oxidative stress resulting from vaccination could precipitate
autism); see also Long, 2015 WL 1011740, at *8, *13-14 (theory proposed by Dr. Megson that
excessive oxidative stress can disrupt brain function causing an aggravation in autism lacked
merit). A theory already given full consideration in comparable circumstances but rejected will
not find new life in this case simply because a different expert (and one less qualified to overall to
state the theory, moreover) embraces it.
Because the proposed opinion will not affect the outcome of this case, the other Vant Erve
factors warrant greater weight – and they do not support Petitioners’ request for an additional
expert report. First, the evidence to be offered cannot be characterized as newly-discovered. Dr.
Zimmerman has been known to Petitioners since 2009, and his views on the possible role that a
mitochondrial disorder might have played in M.M.’s regression were expressed six years prior to
the hearing.85 No showing has been made that mitochondrial testing (a prerequisite to the proposed
expert opinion) could not have been performed earlier in the case.
Second, the causation theory upon which Dr. Zimmerman would opine is not itself the
product of a new scientific development. Dr. Zimmerman was aware in 2009 of a possible link
between mitochondrial disease and subsequent developmental problems in children. The theory
has also been previously advanced in other contemporaneous cases. See, e.g., McLaughlin v. Sec'y
of Dep't of Health & Human Servs., No. 07-497V, 2008 WL 4444142, at *1 (Fed. Cl. Spec. Mstr.
Sept. 9, 2008) (advancing a theory that an underlying mitochondrial disorder was significantly
aggravated by vaccination leading to autism-like symptoms); Poling v. Sec'y of Health & Human
85 Petitioners also acknowledged in their hearing testimony that they have known of the availability of such metabolic
testing for some time. Thus, Mrs. Murphy expressed her belief that M.M. has a mitochondrial disorder, but indicated
that she had to date refused to allow him to undergo the muscle biopsy necessary to conclusively establish this fact.
Tr. at 121.
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Servs., No. 02-1466 V, 2008 WL 1883059, at *1 (Fed. Cl. Spec. Mstr. Apr. 10, 2008) (noting that
a theory was advanced that vaccination significantly aggravated an underlying mitochondrial
disorder, which manifested as a regressive encephalopathy with features of ASD). There is no
reason why Petitioners could not have embraced this causation theory earlier in the ten-year history
of the matter.
Third, the dilatory character of this request cannot be overlooked. The Petitioners have had
four years since the filing of their amended petition to identify an expert. Petitioners chose Dr.
Megson. After Petitioners filed Dr. Megson’s report in August 2013, and learned of Respondent’s
objections and challenges to its sufficiency later that fall, they still had time to modify or
supplement their causation theory. They did not do so, waiting instead until the eve of trial to ask
for an additional expert. For a case filed over ten years ago, that is simply too late.
Petitioners do not effectively contest any of the above points. Rather (and as they admit),
their sole rationale for seeking a report from Dr. Zimmerman is to repair a causation theory that
they decided, almost immediately before trial, was lacking in probative strength, and/or tainted
after the Long decision. Pet’rs’ Post-Hr’g Brief (ECF No. 115) at 20. Yet as I emphasized to
Petitioners in subsequent pretrial status conferences, I was not bound by Long to reach the same
conclusion about the weight to be afforded Dr. Megson’s testimony in this case. Indeed, I
emphasized that I was fully prepared to hear her testimony, and to decide this case on its own
merits. I have tried to do so herein.
Finally, the prejudice to the timely administration of this case is significant if I allow
another expert report to be prepared and then (at some indeterminate time later) filed. As noted
above, the amended version of Petitioners’ claim has existed for over four years, culminating in a
hearing held just last year. Allowing not merely the preparation of a new report, but one that is
dependent on unperformed testing which itself could take months (assuming it can be paid for),
and then giving Respondent the opportunity to supplement her existing expert reports will only
further delay resolution of a case that is now over ten years old. Such delay is not justified given
how unlikely it is that the requested expert opinion would alter my current conclusions about
entitlement.86
86 I also do not find persuasive Petitioners’ reliance on the sole case cited in support of their request, Jicarilla Apache
Nation, formerly Jicarilla Apache Tribe v. The United States, No. 02-25L, 112 Fed. Cl. 274 (2013) that, because Dr.
Megson’s report was deemed insufficient in Long, it is proper to permit the Petitioners herein to offer a second expert
report from a different expert. Jicarilla does not stand for the proposition that a claimant in a legal proceeding should
be allowed to submit additional evidence at any juncture of a case, regardless of their ability to do so at an earlier point
in time, merely because they fear their existing proof is weak. In fact, it is unclear why Petitioners view this case as
supportive of their request. Petitioners indicate that Jicarilla is apt precedent because Dr. Megson’s report was
“deemed insufficient.” But that case involved an action brought against the federal government by a Native American
tribe seeking an accounting, and to recover for monetary losses and damages, related to an alleged breach of fiduciary
duties by the Bureau of Indian Affairs (“BIA”) in mismanaging the tribe’s trust assets and other funds during a
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Under the circumstances, therefore, I find that Petitioners have not established grounds for
allowing them to extend this case’s life by offering a second expert report. And it is not enough to
justify the request by invoking the Vaccine Program’s overall goals (which broadly include
striving to act in the interests of petitioners generally). For the remedial goals of the Program – so
often brought up by petitioners as the basis of motions for extensions of time, or to excuse the
missing of deadlines – cannot be so stretched to cover any and all requests a petitioner makes in a
case, simply because he perceives it to be in his immediate interest.
CONCLUSION
The Murphys have done much to care for M.M., and have displayed great passion in their
efforts to aid him (and in their corresponding conviction about the merits of their claims herein).
But that passion is not bulwarked by an evidentiary record supporting their contention that M.M.
experienced a vaccine-induced encephalopathy, that the vaccines he received had a causal
connection to M.M.’s developmental regression, or even that the DTaP and MMR vaccines could
produce the kind of regression or ASD symptoms M.M. experienced. This is far from a close case
– the evidence does not weigh in favor of the Petitioners in any regard.
I therefore DENY an entitlement award in this case. I instruct the Clerk of Court to enter
judgment dismissing the case unless a motion for review is filed.87
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
specified period of time. It says nothing about expert testimony, or the circumstances in which a party should be
permitted to supplement it.
87 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
54

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_05-vv-01063-1
Date issued/filed: 2016-09-15
Pages: 20
Docket text: REPORTED OPINION denying petitioners' motion for review. Signed by Judge Lydia Kay Griggsby. (lh) Copy to parties.
--------------------------------------------------------------------------------
Case 1:05-vv-01063-LKG Document 129 Filed 09/15/16 Page 1 of 20
In the United States Court of Federal Claims
No. 05-01063
Filed Under Seal: August 15, 2016
Reissued for Publication: September 15, 2016*
)
JOHN A. MURPHY AND )
BARBARA E. MURPHY, parents of )
M.M., a minor )
) National Childhood Vaccine Injury
Petitioners, ) Act (“Vaccine Act”), 42 U.S.C. §
) 300aa–1 to –34 (2012); Vaccine Rule
v. ) 23; Diphtheria-Tetanus-Acellular
) Pertussis Vaccine; Measles, Mumps
SECRETARY OF HEALTH AND ) And Rubella Vaccine.
HUMAN SERVICES, )
)
Respondent. )
)
Patricia A. Finn, Patricia Finn Attorney, P.C., Piermont, NY, for petitioners.
Ryan D. Pyles, Trial Attorney, Catharine E. Reeves, Acting Deputy Director, Rupa
Bhattacharyya, Director, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Torts Branch, Civil Division, United States Department of Justice, Washington, DC, for
respondent.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
Petitioners, John A. Murphy and Barbara E. Murphy, parents of M.M., a minor child,
seek review of the April 25, 2016, decision of the special master denying their claim for
compensation under the National Childhood Vaccine Injury Act (“Vaccine Act”), 42 U.S.C. §
300aa–1 to –34 (2012). Petitioners allege that their minor child suffered an encephalopathy,
* This Memorandum Opinion and Order was originally filed under seal on August 15, 2016 (docket entry
no. 126). The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted. The parties filed a joint status report on September 15, 2016, in
which petitioners request one redaction and respondent takes no position with regard to the proposed
redaction (docket entry no. 128). The Court adopts petitioners’ proposed redaction. Accordingly, the
Court is reissuing its Memorandum Opinion and Order dated August 15, 2016, with the redaction
indicated by three consecutive asterisks within brackets ([***]).

Case 1:05-vv-01063-LKG Document 129 Filed 09/15/16 Page 2 of 20
resulting in developmental regression, as the result of the diphtheria-tetanus-acellular pertussis
(“DTaP”) and measles, mumps and rubella (“MMR”) vaccinations that he received on October
14, 2002. For the reasons set forth below, the Court DENIES petitioners’ motion for review and
SUSTAINS the decision of the special master.
II. FACTUAL AND PROCEDURAL BACKGROUND1
A. Factual Background
The medical history of petitioners’ son, M.M., is discussed in detail in the special
master’s April 25, 2016, decision (“Special Master’s Decision”) and can be briefly summarized
here. Murphy v. Sec’y of Health & Human Servs., No. 05-1063V, 2016 WL 3034047 (Fed. Cl.
Spec. Mstr. Apr. 25, 2016). M.M. was born on [***], 2001, and on May 21, 2001, M.M. was
assessed as a well child with jaundice. Id. at *1. Today, M.M. is developmentally delayed in a
number of respects. Id. at *3. In this action, petitioners allege that the DTaP and MMR vaccines
that M.M. received on October 14, 2002, at approximately 17 months of age, caused an
encephalopathy and resulted in M.M.’s developmental regression. See generally Pet. Mot.
In the first 16 months of his life, M.M. received several immunizations, including three
DTaP vaccinations. Dec. at *1 n.5, 2. During this time, M.M.’s doctors did not note any major
health issues.2 Id. On October 14, 2002, at 17 months of age, M.M. returned to the pediatrician,
where he received his fourth DTaP vaccination and his first MMR vaccination. Id. at *2.
M.M.’s medical records from that visit indicate that M.M. was a well child. Id.
Four days later, on October 18, 2002, petitioners brought M.M. back to his pediatrician.
Id. at *3. Mrs. Murphy testified that M.M. had developed a rash on his chest and neck after his
vaccinations, as well as a fever. Pet. Memo. at 2-5; Tr. at 54-58. The history section from the
1 The facts recounted in this Memorandum Opinion and Order are taken from the special master’s April
25, 2016, decision in Murphy v. Sec’y of Health & Human Servs., No. 05-1063V, 2016 WL 3034047
(Fed. Cl. Spec. Mstr. Apr. 25, 2016) (“Dec.”); the transcript of the entitlement hearing before the special
master held on May 18-19, 2015 (“Tr.”); petitioners’ motion for review, as amended (“Pet. Mot.”);
petitioners’ memorandum of objections (“Pet. Memo.”); the exhibits to petitioners’ motion for review
(“Pet. Ex.”); and respondent’s response to petitioners’ motion for review (“Resp. Brief”). Except where
otherwise noted, the facts recited here are undisputed.
2 Prior to the October 14, 2002, doctor’s visit, M.M. had been seen by the pediatrician for a number of
minor health issues, including upper respiratory infections, eczema, ear infections, concerns about food
allergies and a head injury. See Pet. Ex. 4 at 17-32.
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medical record of this visit provides that, after M.M. received the vaccinations on October 14,
2002, he began exhibiting symptoms including high-pitched screaming, intermittent fever, and
pulling on his ears. Pet. Ex. 4 at 15; Pet. Memo. at 6. Under the phrase “Reason for Visit,”
M.M.’s pediatrician wrote “?OM,” noting concern about a possible “Otitis Media,” or ear
infection. Pet. Ex. 4 at 15; see also Dec. at *3. The physical examination during this visit found
M.M. to be fussy, but did not note any other concerns. Dec. at *3; Pet. Ex. 4 at 15. The parties
dispute whether M.M. also presented with a rash during this visit. See, e.g., Pet. Mot. at 6, 12-
13; Resp. Brief at 7.
M.M. visited the pediatrician again in December 2002 and May 2003, but the pediatrician
did not note any major changes in M.M.’s behavior during these visits. Dec. at *3; Pet. Ex. 4 at
13-14. During a regular well child checkup on June 6, 2003, M.M.’s pediatrician noted concern
about a language delay for the first time. Dec. at *3.
On October 20, 2005, Dr. Mary Megson, a developmental pediatrician, examined M.M.
to evaluate his language delay. Id. at *5. In her notes from this visit, Dr. Megson observed that
since M.M.’s October 14, 2002, vaccinations, he “gradually lost language” and his “fine motor
skills decreased.” Pet. Expert Report, Ex. 10.1 at 3, Dec. 17, 2014. She also noted that M.M.
had been diagnosed with developmental delay, dyspraxia, apraxia and displayed “features of
autism.” Dec. at *5. Dr. Megson saw M.M. on several more occasions and eventually diagnosed
M.M. with vaccine-related encephalopathy.” Id. at *11.
On June 8, 2009, M.M. was seen by Dr. Andrew Zimmerman at the Kennedy Krieger
Institute for a magnetic resonance imaging consultation. Dec. at *5. Dr. Zimmerman’s medical
report from that day provides that M.M. was “an 8-year-old male who was previously healthy
and developing well until October 2002, when 4 hours after receiving multiple vaccines he
developed dilated pupils, drooling, high pitched squeals, facial droop, decreased pain sensitivity,
and stereotyped movements thought secondary to vaccine-related encephalopathy versus autism
spectrum disorder.” Id. at *6; Pet. Ex. 3 at 5. During the entitlement hearing, Dr. Zimmerman
admitted that his diagnosis of “vaccine related encephalopathy with apraxia and features of
autism” was based upon M.M.’s medical history as reported to him by Dr. Scott Schultz, an
attending physician at the Kennedy Krieger Institute who obtained this medical history from
M.M.’s parents. Dec. at *16; Tr. 259. Dr. Zimmerman’s medical report from this visit
3

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recommends “chromosome and microarray testing, DNA fragile X and checking for
mitochondrial disorders, in view of [M.M.’s] history.” Pet. Ex. 3 at 5. Dr. Zimmerman also
suggested that the Murphys bring in prior laboratory work during future visits or fax the
laboratory work to the neurology clinic office during this visit. Id.; see also Pet. Memo. at 10;
see Tr. at 265. No tests were ordered for M.M. at the time of M.M.’s first visit. Dec. at *6; Pet.
Memo. at 10. In addition, although Dr. Zimmerman subsequently treated M.M. on two more
occasions–September 21, 2009 and June 24, 2010, he did not revisit the possibility of genetic and
metabolic testing. Dec. at *6.
B. The Special Master’s Decision
On April 25, 2016, the special master issued a decision denying petitioners’ claim for
compensation under the Vaccine Act. See generally Dec. In the decision, the special master
determined that petitioners’ on-Table and causation-in-fact claims should be denied, because
petitioners did not establish that the vaccines M.M. received had a causal connection to his
developmental regression, or that the DTaP and MMR vaccines could produce the kind of
developmental regression and symptoms that M.M. has experienced. Id. at *39.
First, the special master determined that the evidentiary record before the Court did not
show that M.M. experienced an on-Table encephalopathy. Id. at *31. In this regard, the special
master found that M.M.’s reaction and symptoms after receiving the DTaP and MMR vaccines in
October 2002 did not constitute an encephalopathy as defined by the Vaccine Injury Table’s
qualifications and aids to interpretation (“QAI”). Id. Specifically, the special master found that
the DTaP and MMR vaccinations M.M. received in October 2002 were not followed by any
“identifiable, measurable, severe reaction of the kind that would constitute an acute
encephalopathy.” Id. The special master also determined that, at best, petitioners established
M.M. had experienced some “transient symptoms” post-vaccination that were not severe enough
to require hospitalization. Id. In this regard, the special master observed that the QAI
“specifically indicates that symptoms such as those now alleged by the Murphys, including
‘[s]leepiness, irritability (fussiness), high-pitched and unusual screaming, persistent inconsolable
crying, and bulging fontanelle’ are insufficient, standing alone or in combination, to demonstrate
an acute encephalopathy.” Id. at *32.
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The special master also found that the contemporaneous medical records from this time
did not demonstrate that M.M. experienced symptoms “suggesting any immediate
encephalopathic reaction.” Id. (citation omitted). The special master further found that, even if
he accepted petitioners argument that M.M.’s medical records from the time period following the
vaccination are sparse due to the fact that petitioners were dissuaded by M.M.’s pediatrician
from seeking medical treatment, there was no evidence in the evidentiary record from the time
period after the October 14, 2002, vaccinations to show that M.M. was experiencing “a persistent
‘change in mental or neurologic status’” that would constitute a chronic encephalopathy. Id. at
*32 (quoting 42 C.F.R. § 100.3(b)(2)(ii)).
In addition, the special master determined that petitioners did not satisfy the Althen
prongs in bringing their causation-in-fact claim. Id. at *33; see Althen v. Sec'y of Health &
Human Servs., 418 F.3d 1274 (Fed. Cir. 2005). With respect to the first prong under Althen, the
special master determined that the medical theories put forth by petitioners–that the pertussis
toxin could interact with proteins in the body, causing oxidative stress and leading to an
encephalopathy or that the tetanus toxin’s interaction with M.M.’s G proteins led to an
encephalopathy that caused developmental regression–were “facially and structurally weak.”
Dec. at *33. With regard to the pertussis toxin theory, the special master determined that
“[s]ignificant links in the theory chain were missing or proved unreliable, given the disconnect
between the theoretical proposition stated and the evidence offered to support it.” Id. With
regard to the tetanus toxin theory, the special master observed that petitioners did not offer direct
evidentiary support to establish that the MMR or DTaP vaccines could interact in a harmful
manner with the G protein, or to establish that either of these vaccines could play a role in
developmental regression. Id.
The special master also found that petitioners’ theory that a brain injury could occur as a
result of the passage of vaccine components through the blood-brain barrier to be without
reliable evidentiary support. Id. The special master also observed that Dr. Megson “does not
specialize in the study of degenerative encephalopathies precipitated by oxidative stress or other
genetic causes.” Id. And so, the special master concluded that Dr. Megson lacked the
qualifications necessary to offer persuasive expert testimony in support of petitioners’ causation
theories. Id. at *33-34.
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The special master also found that petitioners did not satisfy the second prong of Althen,
because they failed to show that the vaccines at issue can cause developmental regression. Id. at
*34. In this regard, the special master determined that petitioners did not established, by
preponderant evidence, that the MMR and DTaP vaccines caused M.M.’s developmental
problems, either directly or indirectly. Id. Rather, the special master determined that the
evidence suggested that any loss of skills or language that M.M. suffered “began long after, and
independent of, the October 2002 vaccinations.” Id. The special master also noted that the
evidence of a decline in M.M.’s developmental or physiologic state after the October 2002
vaccinations was minimal, and that there was no evidence suggesting that M.M. had a
developmental problem before June 2003–approximately eight months after the October 2002
vaccinations. Id. at *32, 34-35. And so, the special master concluded that the onset of M.M.’s
developmental regression was “too distant in time from the vaccination date to constitute a
dramatic or sudden change produced by encephalopathy.” Id.
The special master similarly found that petitioners did not satisfy Althen’s third prong,
which requires that petitioners demonstrate a medically reasonable time frame for the onset of
symptoms after the vaccinations. Id. at *35. Specifically, the special master determined that
M.M.’s medical records show that M.M. displayed no symptoms of developmental regression
until June 2003−eight months after the subject vaccinations. Id. The special master also found
that petitioners’ claims that M.M. experienced an immediate behavioral or developmental change
in October 2002 were rebutted by contemporaneous medical records, including the records of
M.M.’s December 2002 pediatric visit. Id. In addition, the special master determined that Dr.
Megson did not offer any testimony or medical literature to suggest a medically plausible
timeframe for her causation theory. Id. Given this, the special master concluded that there was
no evidentiary support to demonstrate that the vaccines had the temporal effect on M.M. that is
alleged by petitioners in this action. Id. And so, the special master determined petitioners had
failed to meet their burden to prove a Table encephalopathy, or to prove causation-in-fact under
Althen.
Petitioners, alleging error, seek review of the Special Master’s Decision.
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C. Procedural Background
The relevant procedural history is set forth in the Special Master’s Decision. In short, on
October 4, 2005, petitioners filed a petition for vaccine compensation on behalf of M.M. under
the Vaccine Act. Dec. at *1. On May 18-19, 2015, following the submission of medical records
and expert reports, the special master convened an entitlement hearing. Id. at *2. During the
hearing, John and Barbara Murphy, Dr. Andrew W. Zimmerman and petitioners’ medical expert,
Dr. Mary Megson, testified on behalf of the petitioners, and the government’s medical expert,
Dr. Max Wiznitzer, testified on behalf of the respondent. See generally Tr. On April 25, 2016,
the special master issued a decision denying petitioners’ request for compensation. See generally
Dec.
On May 25, 2016, petitioners filed a motion for review of the Special Master’s Decision.
See generally Pet. Mot. On May 31, 2016, the Court issued an Order directing petitioners to file
an amended motion for review that complies with Rule 24 of the Rules of the United States
Court of Federal Claims. See generally Scheduling Order, May 31, 2016. On June 2, 2016,
petitioners filed an amended motion for review. See generally Pet. Mot. The government filed a
response to petitioners’ motion for review on July 5, 2016. See generally Resp. Brief.
Petitioners’ motion for review having been fully briefed, the Court resolves the pending motion.
III. STANDARDS FOR DECISION
A. Standard Of Review
The United States Court of Federal Claims has jurisdiction to review the record of the
proceedings before a special master and, upon such review, may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
(B) set aside any findings of fact or conclusions of law of the special master found
to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
42 U.S.C. § 300aa–12(e)(2).
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The special master’s determinations of law are reviewed de novo. Andreu ex rel. Andreu
v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1373 (Fed. Cir. 2009). The special master’s
findings of fact are reviewed for clear error. Id.; see also Broekelschen v. Sec’y of Health &
Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010) (“We uphold the special master’s findings
of fact unless they are arbitrary or capricious.”). In addition, a special master’s findings
regarding the probative value of the evidence and the credibility of witnesses will not be
disturbed so long as they are “supported by substantial evidence.” Doe v. Sec’y of Health &
Human Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010) (citation omitted); see also Burns v. Sec’y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that the decision of
whether to accord greater weight to contemporaneous medical records or later given testimony is
“uniquely within the purview of the special master”). This “level of deference is especially apt
in a case in which the medical evidence of causation is in dispute.” Hodges v. Sec’y of Health &
Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993). And so, the Court will not substitute its
judgment for that of the special master “if the special master has considered all relevant factors,
and has made no clear error of judgment.” Lonergan v. Sec’y of Health & Human Servs., 27
Fed. Cl. 579, 580 (1993).
B. Vaccine Injury Claims
Pursuant to the Vaccine Act, the Court shall award compensation if a petitioner proves,
by a preponderance of the evidence, all of the elements set forth in 42 U.S.C. § 300aa–11(c)(1),
unless there is a preponderance of evidence that the illness is due to factors unrelated to the
administration of the vaccine. 42 U.S.C. § 300aa–13(a)(1). A petitioner can recover either by
proving an injury listed on the Vaccine Injury Table (“Table”), or by proving causation-in-fact.
See 42 U.S.C. §§ 300aa–11(c)(1)(C); Althen, 418 F.3d at 1278. And so, to receive compensation
under the National Vaccine Injury Compensation Program, a petitioner must prove either that:
(1) the petitioner suffered a “Table Injury” that corresponds to one of the vaccinations in
question within a statutorily prescribed period of time or, in the alternative, (2) the petitioner’s
illnesses were actually caused by a vaccine. See 42 U.S.C. §§ 300aa–13(a)(1)(A), 300aa–
11(c)(1)(C)(i-ii), 300aa–14(a); see also Moberly v. Sec’y of Health & Human Servs., 592 F.3d
1315, 1321 (Fed. Cir. 2010); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320
(Fed. Cir. 2006).
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In Table and non-Table cases, a petitioner bears a “preponderance of the evidence”
burden of proof. 42 U.S.C. §§ 300aa–13(a)(1)(A); Althen, 418 F.3d at 1278 (citing Shyface v.
Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)). And so, a petitioner
must offer evidence that leads the “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has the burden to
persuade the judge of the fact’s existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank
Enter. v. United States, 6 Cl. Ct. 476, 486 (1984) (holding that mere conjecture or speculation is
insufficient under a preponderance standard).
When a Table Injury claim is successfully established, causation is presumed. 42 C.F.R.
§ 100.3. To prove a Table Injury, petitioners must show that “the first symptom or manifestation
of the onset . . . of any such illness, disability, injury, or condition . . . occurred within the time
period after vaccine administration set forth in the Vaccine Injury Table.” Shalala v.
Whitecotton, 514 U.S. 268, 270 (1995) (quoting 42 U.S.C. § 300aa–11(c)(1)(C)(i)).
To establish a prima facie case when proceeding on a causation-in-fact theory, as
petitioners also seek to do in this matter, a petitioner must “prove, by a preponderance of the
evidence, that the vaccine was not only a but-for cause of the injury but also a substantial factor
in bringing about the injury.” Shyface, 165 F.3d at 1352. “[T]o show that the vaccine was a
substantial factor in bringing about the injury, the petitioner must show ‘a medical theory
causally connecting the vaccination and the injury.’” Id. at 1352-53 (quoting Grant v. Sec’y of
Health & Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992) (per curiam)). In other words,
“[t]here must be a ‘logical sequence of cause and effect showing that the vaccination was the
reason for the injury,’” id. at 1353 (quoting Grant, 956 F.2d at 1148), and “[t]his ‘logical
sequence of cause and effect’ must be supported by a sound and reliable medical or scientific
explanation.” Knudsen ex rel. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548
(Fed. Cir. 1994) (quoting Jay v. Sec’y of Health & Human Servs., 998 F.2d 979, 984 (Fed. Cir.
1993)); see also 42 U.S.C. § 300aa–13(a)(1) (“The special master or court may not make such a
finding based on the claims of a petitioner alone, unsubstantiated by medical records or by
medical opinion.”). However, medical or scientific certainty is not required. Knudsen, 35 F.3d
at 548-49.
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In Althen, the Federal Circuit addressed the three elements that a petitioner must provide
to prove causation-in-fact:
(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the
injury; and (3) a showing of a proximate temporal relationship between vaccination
and injury.
Althen, 418 F.3d at 1278. All three prongs “must cumulatively show that the vaccination was a
‘but-for’ cause of the harm, rather than just an insubstantial contributor in, or one among several
possible causes of, the harm.” Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355
(Fed. Cir. 2006). In addition, if a petitioner establishes a prima facie case, the burden shifts to
the respondent to show, by a preponderance of the evidence, that the injury was caused by a
factor unrelated to the vaccine. See 42 U.S.C. § 300aa–13(a)(1)(B); Shalala, 514 U.S. at 270-71.
But, regardless of whether the burden of proof ever shifts to the respondent, the special master
may consider the evidence presented by the respondent in determining whether the petitioner has
established a prima facie case. See Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373,
1379 (Fed. Cir. 2012) (“[E]vidence of other possible sources of injury can be relevant not only to
the ‘factors unrelated’ defense, but also to whether a prima facie showing has been made that the
vaccine was a substantial factor in causing the injury in question.”); de Bazan v. Sec’y of Health
& Human Servs., 539 F.3d 1347, 1353 (Fed. Cir. 2008) (“The government, like any defendant, is
permitted to offer evidence to demonstrate the inadequacy of the petitioner’s evidence on a
requisite element of the petitioner’s case[-]in-chief.”).
C. Encephalopathy
The Vaccine Injury Table identifies an encephalopathy as one of the illnesses,
disabilities, injuries, or conditions that may result from the DTaP or MMR vaccinations. 42
C.F.R. § 100.3. The Table defines an encephalopathy as “any significant acquired abnormality
of, or injury to, or impairment of function of the brain.” 42 U.S.C. § 300aa–14(b)(3)(A).
According to the Table’s qualifications and aids to interpretation, an individual is considered to
have suffered a Table encephalopathy if he or she “manifests, within the applicable period, an
injury meeting the description . . . of an acute encephalopathy, and then a chronic
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encephalopathy persists in such person for more than 6 months beyond the date of vaccination.” 3
42 C.F.R. § 100.3(b)(2). For a child less than 18 months of age who did not experience an
associated seizure event, an acute encephalopathy is “indicated by a significantly decreased level
of consciousness lasting for at least 24 hours.” 42 C.F.R. § 100.3(b)(2)(i)(A). The QAI explains
that “sleepiness, irritability (fussiness), high-pitched and unusual screaming, persistent
inconsolable crying, and bulging fontanelle,” presented either individually or alone, do not
demonstrate that an acute encephalopathy has occurred. 42 C.F.R. § 100.3(b)(2)(i)(E).
The QAI also defines a chronic encephalopathy to be “a change in mental or neurologic
status, first manifested during the applicable time period, [and that] persists for a period of at
least 6 months from the date of vaccination.” 42 C.F.R. § 100.3(b)(2)(ii). Individuals who
“return to a normal neurologic state after the acute encephalopathy shall not be presumed to have
suffered residual neurologic damage from that event; any subsequent chronic encephalopathy
shall not be presumed to be a sequela of the acute encephalopathy.” Id. Moreover, “[i]f a
preponderance of the evidence indicates that a child’s chronic encephalopathy is secondary to
genetic, prenatal or perinatal factors, that chronic encephalopathy shall not be considered to be a
condition set forth in the Table.” Id. Similarly, “[a]n encephalopathy shall not be considered to
be a condition set forth in the Table if in a proceeding on a petition, it is shown by a
preponderance of the evidence that the encephalopathy was caused by an infection, a toxin, a
metabolic disturbance, a structural lesion, a genetic disorder or trauma (without regard to
whether the cause of the infection, toxin, trauma, metabolic disturbance, structural lesion or
genetic disorder is known).” 42 C.F.R. § 100.3(b)(2)(iii).
IV. LEGAL ANALYSIS
Petitioners enumerate several objections to the special master’s decision. See generally
Pet. Memo. First, petitioners argue that the special master erred in finding that M.M.’s October
18, 2002, visit to the pediatrician was due to an ear infection. Id. at 2, 5. Second, petitioners
argue the special master also erred in determining that petitioners failed to file medical literature
to support the testimony of their medical expert. Id. at 7. Third, petitioners contend that the
3 The “appropriate time period” varies based upon which vaccine allegedly caused the encephalopathy.
The Table specifies that the appropriate time period for an acute encephalopathy to manifest after a DTaP
vaccination is within 72 hours after the vaccine is administered, while the appropriate time period with
respect to the MMR vaccine is within five to fifteen days after vaccination. 42 C.F.R. § 100.3(a).
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special master made several errors with regard to how he considered and weighed the testimony
of Dr. Zimmerman. Id. at 8, 14-15. Finally, petitioners argue that the special master erred in
finding that M.M. did not suffer a chronic encephalopathy. Id. at 8.
The government counters that the special master’s decision to deny compensation in this
case is reasonable, in accordance with law and supported by the record evidence. See generally
Resp. Brief. For the reasons discussed below, the Court agrees. And so, the Court SUSTAINS
the decision of the special master.
A. The Special Master Did Not Err In Finding That M.M.’s
October 18, 2002, Doctor’s Visit Was Due To An Ear Infection
As an initial matter, the record evidence demonstrates that the special master properly
determined that M.M. visited his pediatrician on October 18, 2002, due to an ear infection. The
Court reviews the special master’s findings of fact on this issue for clear error. Andreu, 569 F.3d
at 1373.
In his decision, the special master determined that M.M. visited the pediatrician on
October 18, 2002, “because of concerns that [M.M.] had an ear infection.” Dec. at *3. The
special master based this finding upon the medical records for this visit which show that the
pediatrician wrote “?OM”–meaning otitis media, or ear infection–under the section of the
records designated as “Reason for Visit.” Id. at *3 (citing Not. Of Filing Medical Records, Ex. 2
at 15, Nov. 10, 2009). The special master also considered Mrs. Murphy’s testimony during the
entitlement hearing, in which she testified that M.M. presented with a rash during this visit. Id.
at *3, 7 n.20; Tr. 54-58, 129-30. The special master determined, however, that the medical
records for this visit did not support Mrs. Murphy’s testimony. Id. at *7 n.20; see also Pet. Ex. 4
at 15.
This Court has long recognized that when witness testimony conflicts with
contemporaneous medical records, the Court may accord such testimony little weight. See
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (citing
United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948)) (explaining that “oral testimony in
conflict with contemporaneous documentary evidence deserves little weight”); see also Rickett v.
Sec’y of Health & Human Servs., 468 F. App’x 952, 958 (Fed. Cir. 2011) (holding that when
medical records and testimony are “inconsistent, a special master may give greater weight to the
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medical records”). And so, here, the special master found that the probative value of M.M’s
contemporaneous medical records outweighed Mrs. Murphy’s testimony that the October 18,
2002, visit was due to a rash. Dec. at *3. Given the conflict between the relevant medical
records and Mrs. Murphy’s testimony, the special master also appropriately acted within his
discretion in giving more weight to M.M.’s contemporaneous medical records than to the
testimony of Mrs. Murphy. And so, the Court will not disturb the finding of the special master.
See Cucuras, 993 F.2d at 1528 (holding that the special master’s reliance on contemporaneous
medical records over conflicting oral testimony given after the fact was not arbitrary or
capricious); see also Burns, 3 F.3d at 417 (holding that the decision of whether to accord greater
weight to contemporaneous medical records or later given testimony is “uniquely within the
purview of the special master”).
The Court will also not disturb the special master’s factual finding that M.M. did not
present with a rash during the October 18, 2002, visit. In their motion for review, petitioners
contend that the letter “e,” which they allege appears next to the word “rash” in the records for
this visit indicates that a rash was present and evaluated by the pediatrician. Id.; see Pet. Ex. 4 at
15. But, as discussed above, the medical records for this visit show that the reason for the visit
was a possible ear infection. Pet. Ex. 4 at 15. In addition, petitioners do not point to any
evidence or testimony to support their contention that the medical records also show that a rash
was evaluated or observed by the pediatrician during this visit. See generally Pet. Mot.; Pet.
Memo. And so, the Court cannot draw a reasonable inference from the relevant medical records
that M.M. actually presented with a rash during the October 18, 2002, visit.4
B. The Special Master Properly Found That Petitioners
Did Not Submit Medical Literature On Glutathione
The special master similarly did not err in finding that the medical literature submitted by
petitioners to support the testimony of their medical expert failed to show how children with
developmental disabilities possess lower levels of glutathione. In the decision, the special master
4 It is also important to note that, even if M.M. did present with a rash during the October 18, 2002,
doctor’s visit, such a symptom is not indicative of an acute encephalopathy. See Waddell v. Sec’y of
Health & Human Servs., No. 10-316V, 2012 WL 4829291, at *10 (Fed. Cl. Spec. Mstr. Sept. 19, 2012)
(finding that symptoms of a fever, rash, diarrhea and fussiness following the child’s vaccinations, without
more, were insufficient to support a finding of an acute encephalopathy). And so, petitioners also fail to
show how the special master’s alleged error would have changed the outcome of this case.
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observed that petitioners’ medical expert, Dr. Megson, relied upon certain medical studies in her
testimony that were not included in the medical literature filed in the case. Dec. at *14 n.41. In
particular, the special master noted that medical studies authored by Jill James and Dr. Richard
Deth, that purportedly support Dr. Megson’s testimony that children with developmental
disabilities possess lower levels of glutathione, were not filed with the Court. Id.; see also Tr. at
200.
In their motion for review, petitioners incorrectly argue that the special master’s finding
is partially in error, because petitioners did submit a medical study authored by Jill James. See
Pet. Memo. at 7; Notice of Filing Medical Literature, April 30, 2015. A careful review of the
article submitted by petitioners reveals, however, that this article does not discuss whether
children with developmental disabilities possess lower levels of glutathione. Notice of Filing
Medical Literature, April 30, 2015; Pet. Ex. 5. Nor does the article even address glutathione at
all. Notice of Filing Medical Literature, April 30, 2015; Pet. Ex. 5. Given this, the special
master correctly determined that petitioners had failed to file the referenced medical study.
C. The Special Master Properly Considered The Testimony Of Dr. Zimmerman
Petitioners’ various objections to the special master’s evaluation of the testimony of Dr.
Zimmerman are similarly without merit. Pet. Memo. at 9-15. In their motion for review,
petitioners raise four objections to the special master’s findings regarding the testimony of Dr.
Zimmerman. First, petitioners argue that the special master erred in determining that Dr.
Zimmerman did not order metabolic tests for M.M. Id. at 9-13. Second, petitioners argue that
the special master erred in finding that Dr. Zimmerman accepted M.M.’s medical history as
recounted by M.M.’s parents to Dr. Schultz “without question.” Id. at 11-13. Third, petitioners
argue that the special master also erred by declining to analyze Dr. Zimmerman’s testimony
under the treating physician standard. Id. at 13-14. Lastly, petitioners object to the special
master’s finding that Dr. Zimmerman was not qualified to testify about mitochondrial disease.
Id. at 14-15. For the reasons discussed below, the Court finds that petitioners’ objections are
unsubstantiated by the record evidence.
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1. The Special Master Did Not Err In Finding
That Metabolic Testing Was Not Ordered For M.M.
As an initial matter, the testimony and evidence in the record make clear that the special
master reasonably concluded that Dr. Zimmerman did not order metabolic testing in connection
with his treatment of M.M. In his decision, the special master found that Dr. Zimmerman
suggested, but did not order, metabolic testing for M.M when he treated M.M. at the Kennedy
Krieger Institute on June 8, 2009. Dec. at *5, 37. Specifically, the special master found that Dr.
Zimmerman’s medical report from this visit recommended a review of the results of any
metabolic or genetic testing that had been previously performed on M.M. Id. at *16; see also
Pet. Ex. 3 at 5; Pet. Memo. at 10; Tr. at 265. The special master determined, however, that no
metabolic or genetic tests were ordered by Dr. Zimmerman at that time, and that the possibility
of genetic and metabolic testing was not revisited during M.M.’s subsequent visits to Dr.
Zimmerman on September 21, 2009 and June 24, 2010. Dec. at *6.
A review of Dr. Zimmerman’s testimony during the entitlement hearing shows that the
special master’s finding is correct. Dr. Zimmerman testified during the entitlement hearing that
he “didn’t order [metabolic testing] in the sense of ordering it directly from out clinic, because
. . . it was recommended that [M.M.’s parents] either bring the prior lab work that has been
performed to future visits or to fax the lab work to the neurology clinic office.” Tr. at 265. Dr.
Zimmerman also testified that he did not “have any record of results of metabolic testing” for
M.M. Tr. at 259. M.M.’s medical records similarly do not indicate that metabolic testing was
ever ordered or performed. See generally Pet. Exs. 3, 4. And so, the evidentiary record
demonstrates that the special master correctly concluded that Dr. Zimmerman did not order
metabolic testing in connection with his treatment of M.M.
2. The Special Master Reasonably
Determined That Dr. Zimmerman Accepted
The Medical History Provided By M.M’s Parents
The evidentiary record similarly makes clear that the special master correctly concluded
that Dr. Zimmerman relied upon a recounting of M.M.’s medical history as provided by M.M.’s
parents during a June 8, 2009 visit to the Kennedy Krieger Institute. In his decision, the special
master determined that, during this visit, the Murphys relayed M.M.’s medical history to Dr.
Scott Schultz−an attending physician at the Institute−and that Dr. Schultz relayed this medical
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history to Dr. Zimmerman. Dec. at *16; Tr. at 287. The special master also notes in the decision
that Dr. Zimmerman admitted during the entitlement hearing that his diagnosis of “vaccine-
related encephalopathy with apraxia and features of autism” was based upon M.M.’s medical
history as relayed to him by Dr. Schultz. Dec. at *16; see also Tr. at 259.
Petitioners contend that the special master’s finding is in error, because Dr. Zimmerman
“not only incorporate[d] the information being orally relayed by M.M.’s parents, but . . . [also]
decide[d] if this [medical] history was logically applicable to M.M.’s condition at presentation.”
Pet. Memo. at 12. Petitioners’ argument is, however, belied by Dr. Zimmerman’s own testimony
during the entitlement hearing. As discussed above, Dr. Zimmerman acknowledged that his
diagnosis was based upon the medical history relayed by M.M.’s parents. Tr. at 259. In
addition, the medical records reflecting Dr. Zimmerman’s subsequent treatment and evaluation
of M.M., between June 8, 2009 and June 24, 2010, also do not show that Dr. Zimmerman
analyzed or revisited M.M.’s medical history. See generally Pet. Exs. 3, 4. And so, Dr.
Zimmerman’s testimony and the relevant medical records support the special master’s
determination that Dr. Zimmerman based his diagnosis upon the medical history that M.M.’s
parents provided to Dr. Schultz.5
3. The Special Master Did Not Err In Declining To Consider Dr.
Zimmerman’s Testimony Under The Treating Physician Standard
The record evidence similarly shows that the special master properly declined to consider
the testimony of Dr. Zimmerman under the treating physician standard. In their motion for
review, petitioners argue that the special master committed reversible error by declining to treat
Dr. Zimmerman as a treating physician. Pet. Memo. 13-14. Petitioners arguments are
unsubstantiated by the facts.
In this case, it is undisputed that Dr. Zimmerman was not M.M.’s treating physician at
the time that M.M. received the DTaP and MMR vaccinations in October 2002. See Pet. Mot. at
10-11 (explaining that M.M.’s pediatrician at Klebanow and Associates vaccinated him on
October 14, 2002); see also Pet. Mot. at *15-16; Resp. Brief at 9-10. It is also without dispute
5 Petitioners also argue that the special master improperly discredited Dr. Zimmerman’s assessment of
MM’s injuries, because Dr. Schultz obtained M.M.’s medical history. Pet. Memo. at 15. But, petitioners
offer no evidence to demonstrate that the special master discredited Dr. Zimmerman’s analysis because of
Dr. Schultz’s involvement. See Pet. Memo. at 15-16.
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that Dr. Zimmerman did not begin to treat M.M. until June of 2009−almost seven years after the
subject vaccinations, and many years after the onset of M.M.’s symptoms. See Dec. at *5; see
generally Pet. Ex. 3. Given these undisputed facts, it was reasonable for the special master to
decline to apply the treating physician standard to Dr. Zimmerman’s testimony.
More importantly, the record evidence shows that Dr. Zimmerman’s testimony supports
the special master’s determination that M.M. did not suffer a vaccine-related encephalopathy.
During the entitlement hearing, Dr. Zimmerman testified that, based upon his review of M.M.’s
December 2002 medical records, M.M. was not “encephalopathic at that time.” Tr. at 288; Dec.
*16 n.49. And so, Dr. Zimmerman’s testimony substantiates the special master’s determination
that M.M. did not suffer an encephalopathy in the weeks and months immediately following the
October 2002 vaccinations. See 42 C.F.R. § 100.3(b)(2) (To establish that an encephalopathy
occurred, petitioners must prove that M.M. “manifest[ed], within the applicable time period, an
injury meeting the description . . . of an acute encephalopathy, and then a ‘chronic’
encephalopathy persist[ed] . . . [for] more than 6 months beyond the date of vaccination.”).
4. The Special Master Properly
Determined That Dr. Zimmerman Was Not
Qualified To Testify About Mitochondrial Disease
The special master also reasonably found that Dr. Zimmerman lacked the qualifications
to testify about mitochondrial disease during the entitlement hearing. In his decision, the special
master determined that Dr. Zimmerman “admitted that he lacked the direct expertise to opine on
the topic [of mitochondrial disease], even though he had read enough to be knowledgeable about
it.” Dec. at *16. Petitioners contend that the special master erred in this determination, because
the special master stated that “Dr. Zimmerman has the qualifications to tell you about
[mitochondrial disease]” during the entitlement hearing. Pet. Memo. at 14; Tr. at 261.
Petitioners’ contention is simply without merit. The transcript for the entitlement hearing
makes clear that, when Dr. Zimmerman was specifically asked about whether he had “any
special expertise regarding mitochondrial dysfunction/disorder and vaccines,” Dr. Zimmerman
testified in response “no.” Tr. at 266. Given Dr. Zimmerman’s own testimony that he lacks any
such expertise, the Court finds no error in the special master’s determination.
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D. The Special Master Reasonably Determined
That M.M. Did Not Suffer A Chronic Encephalopathy
As a final matter, the special master also reasonably concluded that M.M. did not suffer
either an acute or a chronic encephalopathy. Pursuant to the Vaccine Injury Table’s
qualifications and aids to interpretation, an individual is considered to have suffered a Table
encephalopathy if he or she “manifests, within the applicable period, an injury meeting the
description . . . of an acute encephalopathy, and then a chronic encephalopathy persists in such
person for more than 6 months beyond the date of vaccination.” 42 C.F.R. § 100.3(b)(2). For a
child like M.M., an acute encephalopathy is “indicated by a significantly decreased level of
consciousness lasting for at least 24 hours.” 42 C.F.R. § 100.3(b)(2)(i)(A).
The qualifications and aids to interpretation defines a chronic encephalopathy to be “a
change in mental or neurologic status, first manifested during the applicable time period, [and
that] persists for a period of at least 6 months from the date of vaccination.” 42 C.F.R.
§ 100.3(b)(2)(ii). And so, individuals who “return to a normal neurologic state after the acute
encephalopathy shall not be presumed to have suffered residual neurologic damage from that
event; any subsequent chronic encephalopathy shall not be presumed to be a sequela of the acute
encephalopathy.” Id.
In his decision, the special master determined M.M. did not suffer an acute
encephalopathy, because M.M.’s contemporaneous medical records show that M.M.’s
vaccinations in October 2002 “were not followed by any identifiable, measurable, severe
reaction of the kind that would constitute an acute encephalopathy.” Dec. at *31. In this regard,
the special master also determined that, “[a]t most, [p]etitioners have established that M.M.
experienced some transient symptoms, such as a high fever that arguably could be attributed to
the vaccinations.” Id. Such symptoms are not sufficient to demonstrate an acute
encephalopathy.
The special master further found that there was “no compelling evidence from the days,
weeks, or months after the October 14, 2002, pediatric visit establishing that M.M. was
experiencing a persistent ‘change in mental or neurologic status’” that could constitute a chronic
encephalopathy. Dec. at *32 (quoting 42 C.F.R. § 100.3(b)(2)(ii)). Rather, the special master
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observed that no pediatric records document any concerns about M.M.’s developmental
problems before June 2003−eight months after the subject vaccinations. Id.
While petitioners object to the special master’s determinations, their specific objection is
difficult to discern. It appears that petitioners contend that the special master erred by failing to
properly analyze the relevant factors to demonstrate the existence of a chronic encephalopathy
under the Vaccine Injury Table’s qualifications and aids to interpretation. Pet. Mot. at 10; Pet.
Memo. at 8; 42 C.F.R. § 100.3(b)(2)(ii-iii). To the extent that this is the case, petitioners’
argument is misguided.
The record evidence demonstrates that the special master reasonably determined that
M.M. did not suffer from an acute encephalopathy. As discussed above, the special master
reviewed M.M.’s medical records and found that these records provided “no persuasive evidence
of a significant change in M.M.’s consciousness” following the vaccinations. Dec. at *31. A
careful review of the medical records for M.M.’s October 2002 doctor’s visit also demonstrates
that there is no indication that M.M. suffered from a significantly decreased level of
consciousness during the days and weeks following the vaccinations. Id.; Pet. Ex. 4. In fact, the
medical records for M.M.’s December 10, 2002 doctor’s visit shows that the pediatrician found
M.M. to be a well child with no noted neurological concerns. See Pet. Ex. 4 at 14. And so, the
special master reasonably determined that M.M. did not suffer an acute encephalopathy
following the subject vaccinations.
As the government correctly notes in its response to petitioners’ motion for review, M.M.
simply could not have suffered a chronic encephalopathy, because the record evidence in this
case clearly demonstrates that M.M. did not suffer an acute encephalopathy following the subject
vaccinations. See Resp. Brief at 8-9. Petitioners also fail to identify any evidence or testimony
to show that M.M. experienced a change in his neurologic state that lasted at least six months
after the subject vaccinations. See generally Pet. Mot.; Pet. Memo. Rather, the record evidence
shows that it was not until June 2003–eight months after the subject vaccinations−that concerns
were first raised about M.M.’s developmental regression. Dec. at *32, 34-35; Pet. Ex. 4 at 10.
Given the weight of this evidence, the special master’s determination that M.M. did not suffer a
vaccine-related encephalopathy−either acute or chronic−is well supported by the record
evidence. And so, the Court will not set aside the special master’s decision.
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V. CONCLUSION
In sum, the record evidence in this case demonstrates that petitioners have
not met their burden to show that the special master erred in denying their vaccine
injury claim. To the contrary, the record evidence in this matter demonstrates that
the special master’s decision was reasonable, supported by the evidence and in
accordance with law.
And so, for the foregoing reasons, the Court DENIES petitioners’ motion for review and
SUSTAINS the decision of the special master.
The Clerk is directed to enter judgment accordingly.
Each party to bear their own costs.
Some of the information contained in this Memorandum Opinion and Order may be
considered privileged, confidential, or sensitive personally-identifiable information that should
be protected from disclosure. Accordingly, this Memorandum Opinion and Order shall be
FILED UNDER SEAL. The parties shall review the Memorandum Opinion and Order to
determine whether, in their view, any information should be redacted prior to publication. The
parties shall also FILE, by September 15, 2016, a joint status report identifying the information,
if any, that they contend should be redacted, together with an explanation of the basis for each
proposed
redaction.
IT IS SO ORDERED.
s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge
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