      In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                            No. 13-217V
                                     Filed: November 25, 2013

***************************************
CHARLES MAIKISH and JEANNIE                      *
MAIKISH, Parents of S.M., a Minor,               *
                                                 *
        Petitioners,                             *
                                                 *
    v.                                           *                Notice to Withdraw Petition;
                                                 *                Table encephalitis; causation
SECRETARY OF HEALTH                              *                in fact encephalitis; no proof
AND HUMAN SERVICES,                              *                of either; reaction not lasting
                                                 *                more than six months
       Respondent.                               *
                                                 *
***************************************
Patricia A. Finn, Piermont, NY, for petitioners.
Lindsay Corliss, Washington, DC, for respondent.

MILLMAN, Special Master


                                              DECISION1

       On March 23, 2009, petitioners filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10–34 (2012), alleging that measles-mumps-rubella (“MMR”)
vaccine administered on April 1, 2010, caused their daughter S.M. to have a Table encephalitis.



        1
           Because this unpublished decision contains a reasoned explanation for the special master’s
action in this case, the special master intends to post this unpublished decision on the United States Court
of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters
will be made available to the public unless they contain trade secrets or commercial or financial
information that is privileged and confidential, or medical or similar information whose disclosure would
constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days
to identify and move to delete such information prior to the document’s disclosure. If the special master,
upon review, agrees that the identified material fits within the banned categories listed above, the special
master shall delete such material from public access.
        The medical records submitted in this case not only do not support that S.M. had a Table
encephalitis, but also do not support the conclusion that S.M. had an encephalitis at all.
Moreover, although the medical records do support that S.M. reacted to MMR vaccine, they do
not support that her reaction lasted more than six months, which the Vaccine Act requires in
order for petitioners to receive compensation.

       On November 4, 2013, the undersigned issued an Order to Show Cause why this case
should not be dismissed.

        On November 25, 2013, petitioners filed a Notice to Withdraw Petition. The undersigned
interprets this Notice as a motion to dismiss, and GRANTS petitioners’ motion.

                                             FACTS

       S.M. was born on March 23, 2009.

       On April 1, 2010, she received MMR vaccine. Med. recs. Ex. 3, at 38.

        On April 12, 2010, S.M. saw her pediatrician, Dr. Evelyn S. Ha. Id. at 35. S.M. had had
a rash for a week, fever, runny nose, and a hoarse voice. Id. S.M. had not been sleeping well for
five nights. Id. Her rash was spreading. Id. She was very clingy and cranky and not eating as
well, but she was drinking and wetting her diapers. Id. She seemed to be teething. Id. Her
temperature was 98.0 degrees. Id. On physical examination, S.M. had a raised pink rash of her
torso and cheeks. Id. Dr. Ha concluded S.M. might be reacting to MMR vaccine, but she likely
had a current viral infection. Id.

       On April 16, 2010, S.M. returned to Dr. Ha. Id. at 31. She had had a fever of 103
degrees the prior night. Id. That morning, her fever was 101 degrees after she was given
Tylenol at 3:00 a.m. Id. She had had diarrhea once a day for the prior six to seven days. Id.
S.M. was sneezing and had a runny nose. Id. She had eaten green beans, rice, some cereal,
bananas, 14 ounces of milk, four ounces of water, and three ounces of Pedialyte in the last day.
Id. She had been wetting her diapers. Id. On physical examination, S.M. had mild audible
congestion but no rashes. Id. Her temperature was 102.2 degrees. Id. Her oropharynx was
mildly erythematous. Id.

        Also on April 16, 2010, S.M. went to Nyack Hospital Emergency Department. Id. at 65–
69. Dr. Bruce Henry noted that she had a history of fever for the past week, and her temperature
was 103 degrees the day before her visit. Id. at 66. She received MMR vaccine 15 days earlier.
Id. Four days previously, she had a runny nose, fever, and a rash. Id. That day, her fever was
103 degrees, and she had loose stool and decreased activity. Id. On physical examination, S.M.
had mild distress, but she was not lethargic. Id. She was consolable and maintained eye contact
with Dr. Henry. Id. Her temperature rectally was 101.7 degrees. Id. Her tonsils were red. Id.
Her strength and tone were good. Id. Her white blood cell count was normal. Id. at 67. There
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was no clinical evidence of sepsis or meningitis. Id. at 68. S.M. appeared well and remained
alert and active. Id. Her neck was fully supple. Id. Dr. Henry prescribed Tylenol 150 mg p.o.
Id. His clinical impression was viral illness. Id. at 69.

        On April 18, 2010, S.M. saw Dr. Neil Spielsinger, a pediatrician. Id. at 71–72. S.M.’s
history was a gradual onset of moderate fever, lasting three days without improving. Id. at 71.
She had had a rash and fever intermittently for a while. Id. She also had a runny nose and nasal
congestion. Id. On physical examination, S.M. was awake and alert with enlarged, red, but non-
obstructing tonsils. Id. at 71–72. He diagnosed her with a viral syndrome. Id. at 72.

       On June 5, 2010, S.M. saw Dr. Jacques Edouard Etienne, a pediatrician. Id. at 75–76.
She had the onset of thrush two days previously. Id. at 75. On physical examination, she had
white oral plaques. Id. She was alert and oriented. Id. Dr. Etienne diagnosed S.M. with
candidiasis and prescribed oral Nystatin. Id. at 76.

       On October 22, 2010, S.M. saw Dr. Patrick J. Murray, an orthopedist, because of her toe-
walking and knee-walking. Med. recs. Ex. 7, at 3–5. His report notes that S.M. had never been
diagnosed with a significant problem. Id. at 3. She had reached all her developmental
milestones, according to her mother. Id. S.M. had a normal gait and was awake and alert. Id. at
4. She had no complaints and did all her activities without complication. Id. at 5. Dr. Murray
noted that S.M. should outgrow her issues. Id.

       On October 29, 2010, S.M. saw Dr. David M. Merer, an ear, nose, and throat specialist.
Med. recs. Ex. 3, at 3. S.M. had a very congested nose. Id. She was not tired during the day and
snored at night. Id. Dr. Merer noted that S.M. had excellent language development. Id.

       On November 5, 2010, S.M. was evaluated by Ms. Margaret Treanor, who found that
S.M. did not qualify for Early Intervention Services. Med. recs. Ex. 6, at 5, 8.

        On January 20, 2011, S.M. saw Dr. Iris E. Schlesinger, a pediatric orthopedist and
orthopedic surgeon for a consultation. Med. recs. Ex. 3, at 5. S.M. had been walking on her
knees since she was fifteen months of age. Id. She could walk on her feet, but usually was on
her toes. Id. She was flat-footed infrequently. Id. S.M. said “tons of words” and repeated
everything. Id. The primary issue was S.M. really had no need to walk on her feet since she was
so good at getting around on her knees. Id.

        On March 15, 2011, S.M. saw her treating pediatric neurologist, Dr. Stanley Rothman.
Med. recs. Ex. 9, at 7. Her parents stated S.M.’s reaction to MMR vaccine lasted three months.
Id. Petitioners were concerned that S.M. had autism. Id. Dr. Rothman did not diagnose S.M.
with a neurologic disease. Id.

      On April 14, 2011, S.M. returned to Dr. Schlesinger, who noted S.M. was walking one
month previously. Med. recs. Ex. 12, at 5. Her parents wrapped her knees, and she started
                                               3
walking. Id. On physical examination, S.M. was walking and running. Id. Her feet have
normal arches and normal muscle tone. Id. S.M. was speaking quite well. Id. She had mild
pronation but did not need orthotics. Id.

                                          DISCUSSION

        Petitioners allege that S.M. had a Table encephalitis. Part 42 of the Code of Federal
Regulations, § 100.3(a), lists a Table encephalopathy or encephalitis occurring within five to
fifteen days of vaccination. 42 C.F.R. § 100.3(a) (2011). However, under the qualifications and
aids to interpretation in part (b), 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)(A). A
significantly decreased level of consciousness is indicated by “[d]ecreased or absent response to
environment . . .; [d]ecreased or absent eye contact . . .; or [i]nconsistent or absent responses to
external stimuli.” 42 C.F.R. § 100.3(b)(2)(D)(1), (2), (3).

       S.M. did not have a significantly decreased level of consciousness lasting for at least
twenty-four hours. She was drinking, eating, alert, not lethargic, consolable, able to maintain eye
contact, active, awake, and appeared well. Not one doctor diagnosed her with either
encephalopathy or encephalitis. S.M.’s condition does not satisfy the requirements of a Table
encephalitis.

        However, petitioners have the alternative of proving that MMR vaccine caused in fact
S.M. to have encephalitis. To satisfy their burden of proving causation in fact, petitioners must
prove by preponderant evidence: “(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 v. Sec’y of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal
Circuit quoted its opinion in Grant v. Secretary of Health and Human Services, 956 F.2d 1144,
1148 (Fed. Cir. 1992):

               A persuasive medical theory is demonstrated by “proof of a logical
               sequence of cause and effect showing that the vaccination was the
               reason for the injury[,]” the logical sequence being supported by
               “reputable medical or scientific explanation[,]” i.e., “evidence in
               the form of scientific studies or expert medical testimony[.]”

Althen, 418 F.3d at 1278.

       Without more, “evidence showing an absence of other causes does not meet petitioners’
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.


                                                 4
        There is nothing in these medical records to substantiate that S.M. had encephalitis. She
did not have a significantly decreased level of consciousness. She was feverish, irritable, and
mildly distressed. But there is no indication whatsoever in the medical records that S.M. had
anything wrong with her neurologically, and no doctor diagnosed her with a neurologic illness.
“Encephalitis” means inflammation of the brain.2 S.M. had no symptom indicative of
encephalitis. The Vaccine Act does not permit the undersigned to rule for petitioners based on
their claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C.
§ 300aa-13(a)(1) (2012).

       Petitioners may have the impression that S.M.’s knee-walking was related to her alleged
vaccine reaction, but no doctor has substantiated that view. No one regarded her knee-walking
as anything other than a personal preference. When S.M.’s parents wrapped her knees, S.M.
chose to walk and had no problems doing so.

        The Federal Circuit has emphasized that special masters are to consider seriously the
opinions of treating physicians. Broekelschen v. Sec’y of HHS, 618 F.3d 1339, 1347 (Fed. Cir.
2010); Andreu v. Sec’y of HHS, 569 F.3d 1367, 1375 (Fed. Cir. 2009); Capizzano v. Sec’y of
HHS, 440 F.3d 1317, 1326 (Fed. Cir. 2006). The doctors who treated S.M. opined that she had a
viral syndrome but also entertained that she may have reacted adversely to her MMR
vaccination. None of them described that reaction as neurological, and none of them ascribed
her knee-walking to her MMR reaction.

       If one looks solely at the April 2010 rash, fever, and irritability as S.M.’s reaction to
MMR vaccine, that reaction was not long enough to warrant compensation under the Vaccine
Act. The Vaccine Act requires that a vaccine reaction and its sequelae last more than six
months. 42 U.S.C. § 300aa-11(c)(1)(D)(i). There is no medical record beyond April 2010 that
substantiates a reaction to MMR vaccine. Petitioners themselves described S.M.’s reaction to
MMR vaccine as lasting three months. In the history petitioners gave to S.M.’s treating pediatric
neurologist, Dr. Stanley Rothman, on March 15, 2011, they stated S.M.’s reaction to MMR
vaccine lasted three months. Med. recs. Ex. 9, at 7. Petitioners were concerned that S.M. had
autism. Id. Dr. Rothman did not diagnose S.M. with a neurologic disease, id., and no one has
diagnosed S.M. with autism.

        Petitioners have not satisfied the three prongs of Althen in that they have not presented a
credible medical theory explaining how MMR could cause knee-walking or that there is a logical
sequence of cause and effect showing that MMR did cause S.M.’s knee-walking. Petitioners
have not proven that S.M. had a Table encephalitis or a cause-in-fact encephalitis, nor have they
provided a basis for linking S.M.’s transient reaction to MMR to her knee-walking. Thus,
petitioners have not made a prima facie case of causation.



       2
           Dorland’s Illustrated Medical Dictionary 612 (32d ed. 2012).
                                                5
       On November 4, 2013, the undersigned issued an Order to Show Cause for petitioners to
show why this case should not be dismissed. On November 25, 2013, petitioners filed a Notice
to Withdraw Petition, which the undersigned interprets as a motion to dismiss. The undersigned
GRANTS their motion to dismiss and cancels the telephonic status conference set for Thursday,
December 5, 2013, at 11:30 a.m. (EST).

       This petition is hereby DISMISSED for failure to make a prima facie case.

                                       CONCLUSION

       Petitioners’ petition is DISMISSED. In the absence of a motion for review filed
pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3


IT IS SO ORDERED.

November 25, 2013                                                s/Laura D. Millman
DATE                                                              Laura D. Millman
                                                                    Special Master




       33
          Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party,
either separately or jointly, filing a notice renouncing the right to seek review.
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