United States Court of Appeals 

for the Federal Circuit ______________________ 

MAREK MILIK, JOLANTA MILIK, LEGAL 

GUARDIANS AND PARENTS OF A.M.,

Petitioners-Appellants

v.

SECRETARY OF HEALTH AND HUMAN 

SERVICES,

Respondent-Appellee

______________________ 

2015-5109

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:01-vv-00064-PEC, Chief Judge Patricia E. 

Campbell-Smith.

______________________ 

Decided: May 20, 2016

______________________ 

ROBERT JOEL KRAKOW, Law Office of Robert J. Krakow, New York, NY, argued for petitioners-appellants. 

ROBERT PAUL COLEMAN III, Torts Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent-appellee. Also represented by 

GABRIELLE M. FIELDING, VINCENT J. MATANOSKI, RUPA 

BHATTACHARYYA, BENJAMIN C. MIZER, LISA WATTS.

______________________ 
2 MILIK v. HHS

Before O’MALLEY, WALLACH, and HUGHES, Circuit Judges.

O’MALLEY, Circuit Judge. 

 Petitioners Marek and Jolanta Milik (collectively, “the 

Miliks”), on behalf of their son, A.M., appeal the final 

judgment of the United States Court of Federal Claims 

affirming a special master’s decision denying compensation under the National Childhood Vaccine Injury Act of 

1986 (codified as amended at 42 U.S.C. §§ 300aa-1 to -34) 

(“the Vaccine Act”). Milik v. Sec’y of Health & Human 

Servs., 121 Fed. Cl. 68 (2015). The special master found 

that the Miliks failed to prove by a preponderance of the 

evidence that a measles, mumps, and rubella (“MMR”) 

vaccine caused A.M. to develop a severe neurological

condition, involving developmental delay, spastic diplegia, 

and motor difficulties. Milik v. Sec’y of Health & Human 

Servs., No. 01-64V, 2014 WL 6488735 (Fed. Cl. Spec. 

Mstr. Oct. 29, 2014) (“Special Master Decision”). Because 

the Court of Federal Claims correctly concluded that the 

special master’s decision was not arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law, we affirm. 

I. BACKGROUND

A. Factual Background

The relevant facts are primarily those found by the 

special master in his detailed October 29, 2014 decision. 

A.M. was born on December 5, 1993, and was raised in a 

predominately Polish-speaking household. Special Master 

Decision, 2014 WL 6488735, at *3. At A.M.’s fifteenmonth routine examination, the pediatrician noted that 

A.M. was “doing well” and was a “well child.” Id. In 

December 1995, when A.M. was two years old, his pediatrician noted that “A.M. responded to sound, used 4 to 10 

words (‘mama’ and ‘dada’ were noted specifically), walked 

up stairs, and walked independently.” Id. During subsequent visits in 1996, A.M.’s new pediatrician, Dr. Mitchell 
MILIK v. HHS 3

Weiler, noted that A.M. could speak several words in 

English. Id. 

On January 29, 1998, when A.M. was four years and 

one month old, he received his second MMR vaccination. 

Id. Eleven days later, A.M. returned to Dr. Weiler’s office 

complaining of a sore throat. “Dr. Weiler diagnosed A.M. 

with pharyngitis (throat swelling) and otitis media (ear 

infection), and treated him with an antibiotic.” Id. Dr. 

Weiler rechecked A.M.’s ears on February 23, 1998. His

notes from that appointment stated that A.M. had a 

“Trauma. Slipped/Fell” and that he had a limp, but he 

was seen by a podiatrist and the x-rays were negative. Id. 

at *4.

On March 2, 1998, A.M. saw Dr. Joseph Maytal, a pediatric neurologist, for complaints of limping. Id. Dr. 

Maytal made several observations during the examination, including that A.M. did not know his last name, he 

only spoke single words in English, and his parents were 

unsure if he could use plurals. Id. Dr. Maytal gave A.M. 

a provisional diagnosis of “Ataxia/Unsteadiness and 

Developmental Delay.” Id. He also opined that A.M. had 

two issues: 

One is the longstanding issue of this youngster 

who is globally delayed mostly in the language/communicative skills but also in his fine 

motor and possibly in his gross motor skills . . . . 

The second issue is his acute symptoms of “limping.” As a precaution I would like to consider the 

reason for his limping . . . with an MRI.

Id. (emphasis added). According to Dr. Maytal, the MRI 

showed “diffuse white matter demyelination which is 

consistent with demyelinating process most likely some 

form of leukodystrophy.” Id. 

In July 1998, A.M. saw Dr. Krystyna Wisniewski, a 

pediatric neurologist who was part of an interdisciplinary 
4 MILIK v. HHS

team of specialists at the George A. Jervis Clinic, New 

York State Institute for Basic Research in Developmental 

Disabilities (“IBR”). Dr. Wisniewski noted that A.M.’s 

“cognitive function seems to be appropriate for his chronological age. He knows colors, numbers, and follows three 

step commands. His visual perception seems to be impaired.” Milik, 121 Fed. Cl. at 75. Dr. Wisniewski diagnosed A.M. with “spastic diplegia, more right than left.” 

Special Master Decision, 2014 WL 6488735, at *4.

Dr. Maria Malinowska, a bilingual psychologist, 

evaluated A.M. in September 1998. Id. at *5. She determined that, at four years and nine months of age, A.M. 

had “motor and speech/language difficulties as well as 

attentional problems.” Id. Dr. Malinowska concluded 

that these difficulties “are most likely due to an organic 

brain dysfunction interfere [sic] with his intellectual and 

adaptive functioning.” Id. A.M. also saw Dr. Ricardo 

Madrid for a neuromuscular evaluation. Dr. Madrid 

opined that A.M.’s condition was “suggestive but not 

diagnostic of post infectious or post vaccination acute 

encephalomyelitis.” Id. But because A.M. did not experience seizure, fever, and altered mental state—symptoms 

that are typically expected with a vaccine complication—

Dr. Madrid doubted that A.M.’s disorder arose from a 

“neurological complication associated with MMR vaccination.” Id. 

The medical records provide little information regarding A.M.’s care after 1998. A group of physicians reevaluated A.M.’s condition beginning in 2011. At that 

time, A.M. was wheelchair-bound and unable to care for 

himself. In March 2012, when he was eighteen years old, 

A.M. saw a specialist in medical genetics who opined that 

“[t]he finding of apparently normal development followed 

by a sudden loss of abilities following an insult with 

severe demyelination is suggestive of vanishing white 

matter disease. This often presents during childhood with 

ataxia following infection or fright.” Id. at *6. 
MILIK v. HHS 5

B. Procedural History

The Miliks filed a petition for compensation on January 31, 2001, on behalf of A.M., alleging that he “suffered 

injuries including spastic diplegia (paraplegia) causing 

[him] to walk with a permanent and debilitating limp, 

severe gross and fine motor difficulties as well as difficulties learning, all of which were ‘caused-in-fact by administration of the MMR vaccination.’” Milik, 121 Fed. Cl. at 

70-71. The Secretary filed a report opposing the petition 

for compensation. At the Miliks’ request, proceedings 

were delayed for several years to allow time to obtain 

counsel and file expert reports. 

The Miliks filed two expert reports, the first of which 

was a one-page letter from Dr. Logush, a pediatric neurologist at the IBR where A.M. was treated. In that letter, 

Dr. Logush stated that A.M.’s history was “suggestive but 

not diagnostic of post infectious or post vaccine, immunologically induced acute disseminated encephalitis vs. 

encephalomyelitis.” Special Master Decision, 2014 WL 

6488735, at *25. Dr. Logush offered the same conclusion

after he conducted a follow-up examination of A.M. in 

February 2011. Milik, 121 Fed. Cl. at 77. Although Dr. 

Logush participated in a telephone conference with the 

special master where he stated that it was “very probable” 

that the MMR vaccine caused A.M.’s injury, he did not 

ultimately testify as the Miliks’ expert. Special Master 

Decision, 2014 WL 6488735, at *25.

The Miliks’ second expert report, filed in November 

2011, was from Dr. Nizar Souayah, the neurologist who 

testified as their expert witness. Dr. Souayah is boardcertified in neurology, electrodiagnostic medicine, and 

neuromuscular medicine. Id. at *8. Dr. Souayah opined 

that A.M.’s condition was “consistent with an extensive 

white matter disease that started approximately 3 weeks 

after MMR vaccination” and that “A.M. suffered an ‘encephalopathy or encephalitis,’ caused by the MMR vac-
6 MILIK v. HHS

cine, at that time.” Id. at *9. In both his written report 

and his testimony, Dr. Souayah opined that the MMR 

vaccine caused A.M.’s injury because: (1) A.M. experienced normal health and development before the vaccine; 

(2) 22 days after receiving the MMR vaccination, A.M. 

developed a limp; (3) no other cause for A.M.’s injury was 

identified, despite extensive testing; and (4) the MMR 

vaccine has been suspected of causing central nervous 

system damage. Id. 

In response, the government filed two expert reports 

from Dr. Michael Kohrman, who is “board-certified in 

neurology and psychiatry, with a special competency in 

child neurology and sleep medicine, and also boardcertified in pediatrics.” Id. Dr. Kohrman opined that 

A.M. had a pre-existing global developmental delay, and 

that his condition is “likely to be a result of a ‘vanishing 

white matter’ disease, such as an unidentified form of 

leukodystrophy, that began around two years of age when 

the first signs of developmental delay appeared.” Id. In 

the alternative, Dr. Kohrman submitted that, even if 

A.M.’s symptoms did not appear until after the MMR 

vaccination, “the cause would still more likely have been 

an infection from which A.M. was suffering at the time, 

rather than his vaccination.” Id. 

In March 2013, the special master held an evidentiary 

hearing and heard testimony from Dr. Souayah and Dr. 

Kohrman. Both parties filed post-hearing briefs. A year 

after the hearing, the Miliks filed a motion for consideration of new medical evidence, seeking to introduce a letter 

from Dr. Maytal, A.M.’s pediatric neurologist. Id. at *7. 

In that letter, Dr. Maytal sought to clarify that his use of 

the term “longstanding” in reference to A.M.’s global delay 

should be interpreted as “a condition existing prior to 

examination,” and that his group was “unable to determine the time length of symptoms.” Id. at *12. The 

special master admitted the letter over the government’s 

objection. 
MILIK v. HHS 7

On October 29, 2014, the special master issued a detailed decision denying the Miliks’ petition for compensation. At the outset, the special master noted that, 

although both experts agreed that A.M. suffers from a 

severe developmental disorder, they disagreed as to the 

cause. Weighing the expert testimony, the special master 

found Dr. Kohrman—the government’s expert—more 

persuasive, and credited his opinion that the onset of 

A.M.’s developmental delay preceded the MMR vaccination. Id. at *10. 

Recognizing that the parties presented A.M.’s condition as a single global entity involving both mental delay 

and physical problems, and that the Miliks never argued 

that they were distinct injuries, the special master found 

no evidentiary basis to conclude that part of A.M.’s disability was vaccine-caused. Id. at *27.1 Accordingly, the 

special master concluded that the Miliks had not shown 

by preponderant evidence that the MMR vaccination 

caused A.M.’s disorder. Id. at *27-28 (citing Althen v. 

Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 

(Fed. Cir. 2005)). In the alternative, the special master 

found that: (1) A.M. did not suffer an encephalopathy or 

encephalitis; (2) even if he did, the more likely cause was 

an infection A.M. had at the time; and (3) the onset of 

A.M.’s limping was outside the medically accepted 

timeframe. Id. at *17-20.

The Miliks sought review of the special master’s decision in the Court of Federal Claims, asserting three

primary arguments. First, they argued that the Court of 

 

1 During oral argument before this court, counsel 

for the Miliks reiterated that they did not attempt to 

separate A.M.’s condition into two distinct issues. Oral 

Argument at 19:17-20:08, available at http://

oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-

5109.mp3. 
8 MILIK v. HHS

Federal Claims is constitutionally required to conduct a 

de novo review of the special master’s decision. Milik, 121 

Fed. Cl. at 72 n.11 (citing Bruesewitz v. Wyeth LLC, 562 

U.S. 223 (2011)). Second, the Miliks objected to the 

special master’s onset finding, and his determination that 

Dr. Kohrman was more credible and persuasive than Dr. 

Souayah. Id. at 72. Finally, the Miliks objected to the 

special master’s alternative findings. 

In a decision dated April 29, 2015, the Court of Federal Claims sustained the special master’s decision. The

court began by dismissing the Miliks’ constitutional 

argument regarding the applicable standard of review in 

a footnote, agreeing with the government that the Vaccine 

Act “does not bar a petitioner from later filing a claim in 

an Article III federal court, and that petitioners’ reliance 

on Bruesewitz is misplaced.” Id. at 72 n.11. 

The court then considered the Miliks’ objections to the 

special master’s onset finding that A.M.’s global developmental delay preceded his MMR vaccination. Although 

the court found that some of Dr. Kohrman’s inferences 

based on A.M.’s well-child examinations were not wellsupported, it concluded that the special master’s decision 

“was not based solely, or even largely, on those records.” 

Id. at 86. Instead, the special master based his decision 

on a number of other records, including: (1) Dr. Maytal’s 

March 1998 diagnosis of longstanding global delay; (2) Dr. 

Malinowska’s September 1998 diagnosis of delay in 

communication, daily living skills, and motor skills; 

(3) A.M.’s parents’ repeated reports that he suffered no 

cognitive regression; and (4) Dr. Kohrman’s interpretation 

of two MRI studies of A.M.’s brain taken in 1998. Id. 

Because the special master’s onset decision was based on 

reliable evidence in the record, the court concluded that it 

was not arbitrary or capricious. And, because the court 

sustained that decision, it found it unnecessary to consider the Miliks’ objection to the special master’s alternative 

findings. Id. at 87.
MILIK v. HHS 9

The Miliks timely appealed to this court, and we have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) and 42 

U.S.C. § 300aa-12(f).

II. DISCUSSION 

On appeal, the Miliks argue that: (1) the Vaccine Act, 

and its attendant arbitrary and capricious standard of 

review, is unconstitutional because it deprives petitioners 

of their right to de novo review in an Article III court; and 

(2) even if the standard of review is constitutional, the 

special master’s decision denying compensation is arbitrary and capricious because it is unsupported in the 

record. We address each argument in turn.

A. Jurisdiction and Standard of Review 

“Childhood vaccinations, though an important part of 

the public health program, are not without risk.” Terran 

v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1306 

(Fed. Cir. 1999). Recognizing that vaccines can cause 

serious adverse side effects in rare circumstances, “Congress became concerned that tort liability and related 

costs might drive up the prices of vaccines and discourage 

vaccine manufacturers from staying in this market, and 

that normal tort litigation might leave many sufferers of 

vaccine-caused injuries uncompensated.” Id. at 1307 

(citing H.R. Rep. No. 99-908, at 1, 4, 6-7 (1986), reprinted 

in 1986 U.S.C.C.A.N. 6287, 6345, 6347-48). 

Accordingly, Congress enacted the Vaccine Act in 

1986 to increase the safety and availability of vaccines. 

Id. at 1307. The Vaccine Act created the National Vaccine Injury Compensation Program (“the Program”), 

through which claimants can petition for compensation 

for vaccine-related injury or death. See 42 U.S.C. 

§ 300aa-10(a). In doing so, the Act established a no-fault 

compensation program “designed to work faster and with 

greater ease than the civil tort system.” Shalala v. Whitecotton, 514 U.S. 268, 269 (1995). The Act requires claim-
10 MILIK v. HHS

ants to seek relief through the Program before filing a 

civil action in a state or federal court against a vaccine 

administrator or manufacturer for damages in an amount 

greater than $1,000. 42 U.S.C. § 300aa-11(a)(2)(A).

As originally enacted, the Vaccine Act provided the 

“district courts of the United States” jurisdiction to determine if a petitioner was entitled to compensation under 

the Program. National Childhood Vaccine Injury Act of 

1986, Pub. L. No. 99-660, § 2112(a), 100 Stat. 3743, 3761. 

The district court would designate a special master to 

prepare proposed findings of fact and conclusions of law. 

Id. at § 2112(c), 100 Stat. at 3761-62. The Act provided 

that, “upon objection . . . to the proposed findings of fact or 

conclusions of law prepared by the special master or upon 

the court’s own motion, the court shall undertake a review 

of the record of the proceedings and may thereafter make 

a de novo determination of any matter and issue its 

judgment accordingly, including findings of fact and 

conclusions of law, or remand for further proceedings.” 

Id. at § 2112(d)(1), 100 Stat. at 3762. 

The Vaccine Compensation Amendments of 1987 

transferred jurisdiction from “district courts of the United 

States” to “the United States Claims Court.” See Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-

203, § 4307, 101 Stat. 1330, 1330-224 to 1330-225 (amending 42 U.S.C. § 300aa-11).2 Congress subsequently 

amended the Act to establish, within the United States 

Claims Court, an office of special masters to review compensation claims. See Omnibus Budget Reconciliation Act 

of 1989, Pub. L. No. 101-239, § 6601(e), 103 Stat. 2106, 

 

2 Congress later replaced the references to the 

“United States Claims Court” with the “United States 

Court of Federal Claims.” See Court of Federal Claims 

Technical and Procedural Improvements Act of 1992, Pub. 

L. No. 102-572, § 902, 106 Stat. 4506, 4516.
MILIK v. HHS 11

2286-89 (amending 42 U.S.C. § 300aa-12). At the same 

time, Congress changed the standard of review. Rather 

than de novo review, the amendment provided that the

Claims Court “shall have jurisdiction to . . . set aside any 

findings of fact or conclusion 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 conclusion of law.” Id. at 

§ 6601(h)(2)(B), 103 Stat. at 2289-90 (codified at 42 U.S.C. 

§ 300aa-12(e)(2)(B)). By statute, the Court of Federal 

Claims’ judgment may be reviewed in this court. 42 

U.S.C. § 300aa-12(f). 

We review an appeal from the Court of Federal 

Claims in a Vaccine Act case de novo, applying the same 

standard of review that court applied in reviewing the 

special master’s decision. Broekelschen v. Sec’y of Health 

& Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010)

(citing Andreu v. Sec’y of Health & Human Servs., 569 

F.3d 1367, 1373 (Fed. Cir. 2009)). Although we review 

legal determinations without deference, we review the 

special master’s factual findings under the arbitrary and 

capricious standard. Griglock v. Sec’y of Health & Human 

Servs., 687 F.3d 1371, 1374 (Fed. Cir. 2012); see Hines v. 

Sec. of Health & Human Servs., 940 F.2d 1518, 1524 (Fed. 

Cir. 1991) (“In effect, then, we review the underlying 

decision of the special master under the arbitrary and 

capricious standard of § 300aa-12(e)(2)(B).”). 

The arbitrary and capricious standard is “difficult for 

an appellant to satisfy with respect to any issue, but 

particularly with respect to an issue that turns on the 

weighing of evidence by the trier of fact.” Lampe v. Sec’y 

of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 

2000). If the special master “has considered the relevant 

evidence of record, drawn plausible inferences and articulated a rational basis for the decision,” then reversible 

error is “extremely difficult to demonstrate.” Hines, 940 

F.2d at 1528. As this court has recognized:
12 MILIK v. HHS

Congress assigned to a group of specialists, the 

Special Masters within the Court of Federal 

Claims, the unenviable job of sorting through 

these painful cases and, based upon their accumulated expertise in the field, judging the merits of 

the individual claims. The statute makes clear 

that, on review, the Court of Federal Claims is not 

to second guess the Special Masters fact-intensive 

conclusions; the standard of review is uniquely 

deferential for what is essentially a judicial process. Our cases make clear that, on our review of 

the judgment of the Court of Federal Claims, we 

remain equally deferential. That 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) (internal citations omitted). Accordingly, we “do not reweigh the factual evidence, assess 

whether the special master correctly evaluated the evidence, or examine the probative value of the evidence or 

the credibility of the witnesses – these are all matters 

within the purview of the fact finder.” Porter v. Sec’y of 

Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 

2011) (citing Broekelschen, 618 F.3d at 1349). Rather, as 

long as the special master’s “conclusion [is] based on 

evidence in the record that [is] not wholly implausible, we 

are compelled to uphold that finding as not being arbitrary or capricious.” Cedillo v. Sec’y of Health & Human 

Servs., 617 F.3d 1328, 1338 (Fed. Cir. 2010) (citation 

omitted).

On appeal, the Miliks argue that the Vaccine Act unconstitutionally denies them access to de novo review in 

an Article III court. Specifically, they argue that, by 

limiting a vaccine injury claimant to filing a claim against 

the Secretary in an Article I court, “the Vaccine Act has 

deprived petitioners of the rights granted in Article III of 

the United States Constitution and the common law 
MILIK v. HHS 13

protections afforded in state courts for tortious injuries 

against the manufacturers of vaccines.” Pet’rs Br. 14-15. 

The Miliks point to two recent Supreme Court decisions

which they argue, when taken together, support their 

argument that the Vaccine Act is unconstitutional: 

Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011), and Stern 

v. Marshall, 564 U.S. 462 (2011). 

In Bruesewitz, the Court held that the Vaccine Act 

“pre-empts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for 

injury or death caused by vaccine side effects.” 562 U.S. 

at 243. There, the Court considered 42 U.S.C. § 300aa22(b)(1), which provides that: 

No vaccine manufacturer shall be liable in a civil 

action for damages arising from a vaccine-related 

injury or death associated with the administration 

of a vaccine after October 1, 1988, if the injury or 

death resulted from side effects that were unavoidable even though the vaccine was properly 

prepared and was accompanied by proper directions and warnings.

Given the statutory text, the Court concluded that, as 

long as “there was proper manufacture and warning, any 

remaining side effects, including those resulting from 

design defects, are deemed to have been unavoidable. 

State-law design-defect claims are therefore preempted.” 

Id. at 231-32. 

The Miliks also cite the Supreme Court’s decision in 

Stern, which reiterated that:

Congress may not “withdraw from judicial cognizance any matter which, from its nature, is the 

subject of a suit at the common law, or in equity, 

or admiralty.” Murray’s Lessee v. Hoboken Land 

& Improvement Co., 59 U.S. 272 (1856). When a 

suit is made of “the stuff of the traditional actions 
14 MILIK v. HHS

at common law tried by the courts at Westminster 

in 1789,” . . . and is brought within the bounds of 

federal jurisdiction, the responsibility for deciding 

that suit rests with Article III judges in Article III 

courts. The Constitution assigns that job—

resolution of “the mundane as well as the glamorous, matters of common law and statute as well as 

constitutional law, issues of fact as well as issues 

of law”—to the Judiciary. 

564 U.S. at 484 (citation omitted). Applying these principles in Stern, the Court held that an Article I bankruptcy 

court “lacked the constitutional authority to enter a final 

judgment on a state law counterclaim that is not resolved 

in the process of ruling on a creditor’s proof of claim.” Id. 

at 503. In reaching this conclusion, the Court noted that 

it was not dealing with “a situation in which Congress 

devised an ‘expert and inexpensive method for dealing 

with a class of questions of fact which are particularly 

suited to examination and determination by an administrative agency specially assigned to that task.’” Id. at 494

(citation omitted). Instead, the “‘experts’ in the federal 

system at resolving common law counterclaims such as 

Vickie’s [tortious interference counterclaim] are the 

Article III courts, and it is with those courts that her 

claim must stay.” Id.3 

 

3 Stern was recently narrowed in Wellness International Network v. Sharif, 135 S. Ct. 1932 (2015). There, 

the Court made clear that “Article III is not violated when 

the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge.” Id. at 1939. The Court 

explained that “allowing Article I adjudicators to decide 

claims submitted to them by consent does not offend the 

separation of powers so long as Article III courts retain 

supervisory authority over the process.” Id. at 1944.
MILIK v. HHS 15

The Miliks’ briefing on Stern is sparse, and the government’s response does not address it. At oral argument, counsel for the Miliks clarified their position as 

follows: 

Under the original understanding of the Act, there 

was an opportunity for a petitioner to reject the 

judgment in the Vaccine court or elect to proceed 

in a state or federal court under common law or 

under state statutes. That is now gone. We submit that a litigant bringing these kinds of claims 

is entitled to de novo review in an Article III 

court, as it traditionally would be available.

Oral Argument at 3:02-3:37, available at http://

oralarguments.cafc.uscourts.gov/default.aspx?fl=2015-

5109.mp3. The Miliks suggest that, in light of Stern—

which says that, unless certain exceptions apply, Congress cannot take away access to Article III courts for 

resolution of common law claims—the Supreme Court’s 

decision in Bruesewitz rendered the Vaccine Act unconstitutional because it does just that. We disagree. 

 The separation of powers concerns at play in Stern

are not implicated by Bruesewitz. In the Vaccine context, 

the only questions the special master addresses are those 

related to the fact of injury and causation. No liability 

issues are determined by the special master; it is a no 

fault statute that assumes the right to recovery whenever 

injury and causation are established. The “design defect” 

question is never addressed by the Article I court or its 

special master program. 

The issues that are addressed are not barred from 

subsequent Article III review. While the legal theories 

under which questions of injury and causation may be 

reconsidered by the Article III court may be narrowed by 

Bruesewitz’s reading of the Vaccine Act, those questions 

nonetheless can be revisited. Indeed, the Miliks could 

revisit the very issues decided by the special master in the 
16 MILIK v. HHS

context of a manufacturing defect claim, breach of express 

or implied warranty claims, or even a contract claim if the 

predicate for such claims exists. Thus, even if Stern were 

applicable to these facts, its limitations would not be 

violated. 

More importantly, however, is the fact that Stern is 

not applicable here. The only constitutional question 

Bruesewitz implicates is whether Congress may preempt a 

cause of action altogether, such that no court may decide 

the claim. There is no doubt Congress has the authority 

under the Supremacy Clause to preempt state law causes 

of action which conflict with the federal standards and 

policies set forth in a duly authorized federal statute. See 

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) 

(“State action may be foreclosed by express language in a 

congressional enactment, by implication from the depth 

and breadth of a congressional scheme that occupies the 

legislative field, or by implication because of a conflict 

with a congressional enactment.” (internal citations 

omitted)). That is precisely what the Court in Bruesewitz

said Congress did when it passed the Vaccine Act. See 

Bruesewitz, 562 U.S. at 231-33. We have no authority to 

disagree with that conclusion, and do not believe Stern

provides a vehicle for doing so. Stern simply does not 

address the preemption of state law claims; it only addresses who may decide claims that are not otherwise 

preempted. 

Because the Court’s decision in Stern does not apply 

in these circumstances, and because the Court’s decision 

in Bruesewitz has no bearing on the applicable standard 

of review, we continue to review the special master’s

findings of fact under the deferential arbitrary and capricious standard. 
MILIK v. HHS 17

B. The Special Master’s Decision Was 

Neither Arbitrary Nor Capricious

A petitioner seeking compensation under the Vaccine 

Act must show, by a preponderance of the evidence, “that 

the injury or death at issue was caused by a vaccine.” 

Broekelschen, 618 F.3d at 1341 (citing 42 U.S.C. §§ 300aa11(c)(1), -13(a)(1)). A petitioner can establish causation in 

one of two ways. Id. If the petitioner shows that he or 

she received a vaccination listed on the Vaccine Injury 

Table, 42 U.S.C. § 300aa-14, and suffered an injury listed 

on that table within a statutorily prescribed time period, 

then the Act presumes the vaccination caused the injury. 

Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 

1374 (Fed. Cir. 2009). Where, as here, the injury is not on

the Vaccine Injury Table, the petitioner may seek compensation by proving causation-in-fact. Id. 

To prove causation, a petitioner must show that the 

vaccine was “not only a but-for cause of the injury but also 

a substantial factor in bringing about the injury.” Shyface 

v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352 

(Fed. Cir. 1999). Specifically, the petitioner must show 

the following by a preponderance of the evidence: (1) a 

medical theory causally connecting the vaccination to the 

injury; (2) a logical sequence of cause and effect demonstrating that the vaccination caused the injury; and (3) a 

proximate temporal relationship between the vaccine and 

the injury. Althen v. Sec’y of Health & Human Servs., 418 

F.3d 1274, 1278 (Fed. Cir. 2005). If the petitioner satisfies this burden, he is “entitled to compensation unless 

the government can show by a preponderance of the 

evidence that the injury is due to factors unrelated to the 

vaccine.” Broekelschen, 618 F.3d at 1341 (citing Doe v. 

Sec’y of Health & Human Servs., 601 F.3d 1349, 1351 

(Fed. Cir. 2010)). 

The special master found that the Miliks met their 

burden of establishing the first prong of the Althen test, 
18 MILIK v. HHS

but failed to meet prongs two and three. Indeed, as to the 

first prong, both parties’ experts agreed that the MMR 

vaccination is capable of causing an encephalitis or encephalopathy. Special Master Decision, 2014 WL 

6488735, at *28. As to prong two, the special master 

found that the Miliks failed to show that the MMR vaccine caused A.M.’s condition because the record evidence 

revealed that A.M. had a preexisting developmental 

delay. Id.4 Although the special master deemed it unnecessary to address the third Althen prong, given his finding 

that the Miliks did not satisfy the second, he nonetheless 

found that A.M.’s condition did not fit the timeframe 

discussed in the medical literature of record, thus precluding a finding of a proximate temporal relationship between the vaccine and injury. Id. 

On appeal, the Miliks allege that there was “no credible evidence supporting the special master’s finding that 

A.M. had a developmental disorder preceding the administration of the MMR vaccination.” Pet’rs Br. 11. Specifically, they argue that the special master erred in: 

(1) determining that the onset of A.M.’s condition predated the vaccine; (2) rejecting Dr. Maytal’s clarification of 

the term “longstanding”; and (3) crediting Dr. Kohrman’s 

opinion over that of Dr. Souayah. As to the alternative 

findings, the Miliks contend that the special master erred 

in finding that they failed to show a medically appropriate 

temporal relationship between A.M.’s condition and the

MMR vaccine. 

The Miliks’ essentially ask this court to reweigh the 

factual evidence and assess the credibility of the witnesses. As an appellate tribunal, we can do neither. See 

 

4 The special master clarified that the Miliks “failed 

to show that A.M.’s condition was either initially caused 

by his vaccinations, or was aggravated in any way by his 

vaccinations.” Id. at *28 n.31. 
MILIK v. HHS 19

Porter, 663 F.3d at 1249. And, as explained below, because the special master’s onset decision was based on 

reliable evidence of record, it was neither arbitrary nor 

capricious. 

First, the Miliks argue that the contemporaneous 

medical records reveal that A.M.’s pre-vaccination development was normal, and that none of his treating physicians noted any developmental delay. The Miliks further 

note that the Court of Federal Claims found “multiple 

instances where the record failed to support the special 

master’s findings” with respect to A.M.’s pre-vaccination 

development. Pet’rs Br. 17. 

While it is true that the court found some of Dr. 

Kohrman’s inferences unsupported, the special master 

considered all of the evidence of record and relied substantially on one of the first contemporaneous medical 

records created: Dr. Maytal’s diagnosis that A.M. suffered 

from “longstanding” global developmental delay. See

Special Master Decision, 2014 WL 6488735, at *10. The 

special master also relied on records from A.M.’s bilingual 

psychologist—Dr. Malinowska—showing that, at age four 

years and nine months, A.M. was delayed in his communication, daily living, and motor skills. Id. at *14. These 

reports, coupled with the Miliks’ own representation that 

A.M. did not experience cognitive regression postvaccination, supported the inference that A.M.’s developmental delay must have preceded the vaccination. Id. 

The special master further considered two of A.M.’s 

post-vaccination MRI studies conducted in 1998, both of 

which showed no interval changes. Id. at *15. Dr. 

Kohrman opined that those studies were “consistent with 

a demyelinating or dysmyelinating process that produced 

longstanding developmental delay dating back to his 

examination at the age of two years.” Id. In light of the 

foregoing, we agree with the Court of Federal Claims that 

“the special master based his finding that the onset of 
20 MILIK v. HHS

A.M.’s global developmental delay preceded his MMR 

vaccination on reliable evidence in the record.” Milik, 121 

Fed. Cl. at 86. 

Next, the Miliks argue that the special master unfairly rejected as “litigation driven” Dr. Maytal’s letter clarifying his use of the term “longstanding.” As noted, in 

March 1998, Dr. Maytal examined A.M. and identified 

two issues: “longstanding” global delay and “acute” symptoms of limping. Roughly sixteen years later, Dr. Maytal 

sent a letter stating that the “term ‘longstanding’ should 

be interpreted as ‘a condition existing prior to examination.’ We are unable to determine the time length of 

symptoms.” Special Master Decision, 2014 WL 6488735, 

at *12. 

Recognizing that Dr. Maytal’s letter was “not contemporaneous to the events to which it sp[oke],” and was 

“outside the context of diagnosis and treatment,” the 

special master found that it was “entitled to less deference.” Id. at *12 n.14. Although the special master 

classified Dr. Maytal’s letter as “litigation driven,” he did 

not reject it for that reason. Instead, the special master 

“found that the meaning of longstanding urged by petitioners simply did not make sense within the context of 

Dr. Maytal’s original diagnosis.” Milik, 121 Fed. Cl. at 82. 

The special master began by looking to the dictionary 

definition of “longstanding,” which is “of long duration.” 

Special Master Decision, 2014 WL 6488735, at *12 n.15. 

He then noted that Dr. Maytal performed his initial 

examination only one month after A.M. received the MMR 

vaccination. The special master found that the “ordinary 

use of the term ‘longstanding’ would indicate that the 

delay had lasted substantially longer than one month.” 

Id. at *12. Next, the special master found it significant 

that Dr. Maytal’s original report contrasted A.M.’s 

“longstanding” delay with his “acute” onset of limping, 

which began ten days prior to the examination. To accept 
MILIK v. HHS 21

Dr. Maytal’s clarification of “longstanding” to mean “a 

condition existing prior to the examination,” would “erase 

the distinction he originally drew between the ‘longstanding’ global delay and the ‘acute’ symptom of limping, and 

would make the original record incoherent as written.” 

Id. On this record, we conclude that the special master 

reasonably chose to credit the plain meaning of 

“longstanding” over Dr. Maytal’s belated clarification. 

Finally, the Miliks argue that the special master 

erred in finding Dr. Kohrman, the government’s expert, 

more persuasive than Dr. Souayah. It is well established 

that “[f]inders of fact are entitled—indeed, expected—to 

make determinations as to the reliability of the evidence 

presented to them and, if appropriate, as to the credibility 

of the persons presenting that evidence.” Moberly v. Sec’y 

of Health & Human Servs., 592 F.3d 1315, 1326 (Fed. Cir. 

2010). We have recognized that “special masters have 

that responsibility in Vaccine Act cases.” Id. at 1325. We 

have further recognized that a “special master’s decision 

often times is based on the credibility of the experts and 

the relative persuasiveness of their competing theories,” 

and that the special master’s credibility findings “‘are 

virtually unchallengeable on appeal.’” Broekelschen, 618 

F.3d at 1347 (quoting Lampe, 219 F.3d at 1361). 

The record reveals that the special master considered 

the conflicting testimony from the parties’ experts and 

reasonably concluded that Dr. Kohrman’s opinion was 

entitled to more weight. To begin, the special master 

found that Dr. Souayah’s testimony was based on a 

“flawed assumption as to the time of onset of A.M.’s 

neurological dysfunction.” Special Master Decision, 2014 

WL 6488735, at *16. The special master also found that 

Dr. Kohrman was more qualified to address the issues in 

this case, given that he is a pediatric neurologist who sees 

children with neurological problems on a regular basis. 

In contrast, Dr. Souayah generally treats adults and “has 
22 MILIK v. HHS

not diagnosed developmental delay in a child since his 

residency in 2002.” Id. 

The special master further found Dr. Kohrman more 

persuasive because his testimony evinced a more detailed 

understanding of the Denver Developmental Screening 

Test (“the Denver test”), which Dr. Maytal applied in his 

examination of A.M. Id. at *11-12. Dr. Kohrman explained that failing one of the Denver test’s language 

domains is cause for concern, and that “Dr. Maytal noted 

that A.M. failed three language domains—A.M. could not 

use plurals, could not use his last name, and failed to 

comprehend cold.” Id. at *12. While Dr. Kohrman analyzed A.M.’s scoring under the Denver criteria, Dr. 

Souayah “did not touch on any of the specifics of the 

Denver test.” Id. We find nothing arbitrary or capricious 

about the special master’s determination that Dr. 

Kohrman’s testimony was more persuasive than that of 

Dr. Souayah. See Locane v. Sec’y of Health & Human 

Servs., 685 F.3d 1375, 1379-80 (Fed. Cir. 2012) (finding 

“nothing arbitrary or capricious” about the special master’s decision to credit the government expert’s testimony 

regarding the onset of injury). 

This case, like so many in the Vaccine Act context, 

turns on its facts. While we agree with the Court of 

Federal Claims that some of the inferences Dr. Kohrman 

drew from A.M.’s pre-vaccination records were unsupported, we also agree that the special master’s decision 

“was not based solely, or even largely, on those records.” 

Milik, 121 Fed. Cl. at 86. We conclude that the special 

master thoroughly reviewed all of the relevant evidence, 

including the expert witnesses’ testimonies and reports, 

and that the record supports his finding that A.M.’s 

developmental delay predated the MMR vaccination. We 

therefore cannot say that the special master’s onset 

decision was arbitrary or capricious. Because the Miliks 

failed to show that the MMR vaccination caused A.M.’s 

injury, they did not meet their burden under the second 
MILIK v. HHS 23

Althen prong, and the special master correctly denied the 

petition for compensation. Given this conclusion, we need 

not address the special master’s alternative findings.

III. CONCLUSION

While we certainly sympathize with the Milik family, 

we conclude that the special master’s decision was not 

“arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 42 U.S.C. § 300aa12(e)(2)(B). For the foregoing reasons, and because we 

find the Miliks’ remaining arguments unpersuasive, we 

affirm the judgment of the Court of Federal Claims. 

AFFIRMED

COSTS

No costs.