NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK MILES, LEGAL REPRESENTATIVE OF A
MINOR CHILD J.M.,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2019-1480
______________________
Appeal from the United States Court of Federal Claims
in No. 1:12-vv-00254-LAS, Senior Judge Loren A. Smith.
______________________
Decided: May 8, 2019
______________________
MARK MILES, Carrollton, TX, pro se.
DARRYL R. WISHARD, Vaccine/Torts Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JOSEPH
H. HUNT, C. SALVATORE D'ALESSIO, HEATHER LYNN
PEARLMAN, CATHARINE E. REEVES.
______________________
2 MILES v. HHS
Before DYK, MOORE, and TARANTO, Circuit Judges.
PER CURIAM.
Pro se petitioner, Mark Miles, the parent of J.M., filed
a petition for compensation under the National Childhood
Vaccine Injury Act of 1986 (“Vaccine Act”), codified as
amended at 42 U.S.C. §§ 300aa-1 to -34. A special master
denied the petition on the merits, and the Claims Court de-
nied review. Because we find that the Claims Court cor-
rectly concluded that the special master’s decision was not
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law, we affirm.
BACKGROUND
This case involves an aggravation claim. Petitioner
claims that his son, J.M., suffered a relapse of his preexist-
ing nephrotic syndrome because of an October 1, 2009, in-
fluenza vaccine.
J.M. was born on February 23, 2001. Throughout
J.M.’s early childhood, he received numerous vaccines
without suffering any side effects. On September 6, 2007,
J.M. was taken to a children’s hospital after experiencing
body swelling (i.e., edema) and a renal ultrasound was per-
formed, which showed findings “consistent with the typical
findings seen in nephrotic syndrome, including large kid-
neys with increased echogenicity.” J.A. 4. 1 On October 11,
2007, J.M.’s doctor noted that “J.M. had new-onset ne-
phrotic syndrome [a large group of diseases involving de-
fective renal glomeruli and characterized by excess protein
and lipids in the urine, with varying degrees of body swell-
ing, and abnormally low levels of serum albumin and a de-
crease in plasma lipoprotein], and a moderate amount of
proteinuria [an excess of protein in the urine].” J.A. 4. J.M.
1 Uses of “J.A.” throughout this opinion refer to the
appendix included with the respondent’s brief.
MILES v. HHS 3
was then started on prednisone, a steroid, to treat his ne-
phrotic syndrome. Eventually, J.M. was weaned from the
steroid.
Over the years that followed, J.M. experienced medical
issues, including bronchitis and persistent hypertension,
and received several vaccines, including a November 19,
2008, influenza vaccination. J.M. did not experience a re-
lapse of nephrotic syndrome in response to any of these
events. Sometime in June 2009, J.M. experienced a relapse
of his nephrotic syndrome and was again placed on ster-
oids. 2 There was no report of any illness that could have
triggered the relapse.
On October 1, 2009, J.M. received the influenza vaccine
at issue here. On October 9, 2009, J.M. again visited his
treating doctor who noted that J.M. had generally done
well since August 2009, but had suffered an increase in
urine protein and edema over the past two weeks. J.M.’s
urine protein apparently increased immediately following
the influenza vaccination and was “markedly higher the
morning after his flu vaccination.” J.A. 6. J.M. was again
placed on steroids.
As J.M. was being weaned from steroids between No-
vember and December of 2009, he suffered a third relapse
of nephrotic syndrome. J.M. suffered several relapses
thereafter, and in mid-2011, J.M.’s nephrotic syndrome
stopped responding to steroid treatment. Later in 2011,
J.M. suffered a cardiovascular attack, three strokes, and a
syncopal episode.
On April 18, 2012, petitioner filed a petition claiming
that an influenza vaccine administered to his son, J.M., on
2 J.M.’s treating physician noted on August 26, 2009,
that J.M. had also suffered a relapse of nephrotic syndrome
in February of 2008 (cause unknown), but there is no other
indication in J.M.’s medical records that this was the case.
4 MILES v. HHS
October 1, 2009, caused J.M. to have a “relapse of his preex-
isting nephrotic syndrome.” 3 A special master held a hear-
ing on October 17 and 18, 2017, where she heard expert
testimony on both sides.
On June 28, 2018, the special master issued an opinion
denying compensation and dismissing the petition on the
merits. Petitioner filed a motion for review of the special
master’s decision, which the Claims Court denied on De-
cember 20, 2018. Petitioner now appeals, and we have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
“We review an appeal from the [Claims Court] in a Vac-
cine Act case de novo, applying the same standard of review
that court applied in reviewing the special master’s deci-
sion.” Milik v. Sec’y of Health & Human Servs.,
822 F.3d
1367, 1375 (Fed. Cir. 2016). We set aside the special mas-
ter’s fact findings only if they are found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with the law.” 42 U.S.C. § 300aa-12(e)(2)(B);
Milik, 822 F.3d at 1376.
The arbitrary and capricious standard is particularly
difficult to satisfy where, as here, the appellant challenges
a special master’s weighing of the evidence. See
Milik, 822
F.3d at 1376. It is not within the purview of this court to
reweigh the evidence or to assess whether the special mas-
ter correctly evaluated such evidence.
Id.
To prevail on an aggravation claim in a vaccine case,
“[a] petitioner must prove by preponderant evidence that
the vaccination caused significant aggravation by show-
ing”:
3 The petitioner also filed an amended petition and
supplemental petition on August 6, 2012, and October 23,
2012, respectively.
MILES v. HHS 5
(1) the person’s condition prior to administration of
the vaccine, (2) the person’s current condition (or
the condition following the vaccination if that is
also pertinent), (3) whether the person’s current
condition constitutes a “significant aggravation” of
the person’s condition prior to vaccination, (4) a
medical theory causally connecting such a signifi-
cantly worsened condition to the vaccination, (5) a
logical sequence of cause and effect showing that
the vaccination was the reason for the significant
aggravation, and (6) . . . a proximate temporal rela-
tionship between the vaccination and the signifi-
cant aggravation.
W.C. v. Sec’y of Health & Human Servs.,
704 F.3d 1352,
1357 (Fed. Cir. 2013) (alteration in original) (quoting Lov-
ing v. Sec’y of Health & Human Servs.,
86 Fed. Cl. 135, 144
(2009)). We must sustain the special master’s decision if
supported by substantial evidence. See Doe v. Sec’y of
Health & Human Servs.,
601 F.3d 1349, 1355 (Fed. Cir.
2010).
There is no argument on appeal that that the special
master committed legal error. Petitioner argues only that
the special master’s decision is unsupported by substantial
evidence.
Here, the special master reviewed J.M.’s medical his-
tory and testimony from both petitioner’s experts (Dr.
Quan, J.M.’s treating physician and a pediatric nephrotic
specialist, and Dr. Bellanti, an immunologist) and respond-
ent’s experts (Dr. Kaplan, a specialist in pediatric nephrol-
ogy, and Dr. Levinson, an immunologist). As required by
our case law, the special master gave particular weight to
the testimony of J.M.’s treating physician, Dr. Quan. See
Capizzano v. Sec’y of Health & Human Servs.,
440 F.3d
1317, 1326 (Fed. Cir. 2006). Nevertheless, the special mas-
ter concluded that petitioner had not borne his burden of
demonstrating by preponderant evidence that the
6 MILES v. HHS
influenza vaccine caused a relapse of J.M.’s nephrotic syn-
drome.
First, the special master determined that minimal
change nephrotic syndrome is not immune-mediated, i.e.,
it is not an inflammatory disease resulting from the dysreg-
ulation of the normal immune response. The special mas-
ter relied on testimony from Dr. Kaplan, “a patriarch of
pediatric nephrology,” in support of her finding, which she
credited over Dr. Bellanti’s. J.A. 58. Both Dr. Kaplan and
Dr. Levinson testified, and a separate academic article
(Greenbaum) confirmed, that the medical community does
not accept the view that minimal change nephrotic syn-
drome is immune-mediated. Accordingly, the special mas-
ter determined that petitioner’s causation theory lacked
support as a general matter.
Second, the special master found J.M.’s theory of cau-
sation unlikely based on J.M.’s own medical history. J.M.
experienced multiple events that would have impacted his
immune system in the same or similar way as the October
2009 influenza vaccine (i.e., illnesses, infections, and vac-
cinations, including a November 2008 influenza vaccine).
Yet none of these events precipitated either the initial on-
set of J.M.’s nephrotic syndrome or a relapse thereof. And
none of the expert testimony nor the case studies cited by
petitioner’s experts supported as quick an onset of ne-
phrotic syndrome symptoms following administration of a
vaccine as that experienced by J.M.
The special master also concluded that the expert tes-
timony presented by petitioner as to causation in J.M.’s
case did not adequately support petitioner’s theory. She
found that, the case studies cited by petitioner’s experts
were all “speculating as to cause” and were, in any event,
dissimilar from (and therefore not explanatory of) J.M.’s
case. J.A. 61. For one, J.M.’s treating physician, Dr. Quan,
admitted that “[t]here’s no way to prove that the [October
2009] flu vaccine made anything worse.” Transcript of
MILES v. HHS 7
Hearing at 76, Miles v. Sec’y of Health & Human Servs.
(Oct. 2017) (No. 1:12-vv-00254). Moreover, even peti-
tioner’s expert, Dr. Bellanti, testified only that an “innate
immune injury,” purportedly caused by the October 2009
influenza vaccine, “may be playing a role in the pathogen-
esis of [J.M.’s nephrotic syndrome].”
Id. at 134. He admit-
ted that he was relying, in part, on “magic and
imagination” to divine such a connection,
id. at 461–62,
and conceded that the understanding of the “pathenogene-
sis or the pathological manifestation” of nephrotic syn-
drome continues to change “as we speak,”
id. at 142.
We find no error in the special master’s determina-
tions, and therefore affirm.
AFFIRMED
COSTS
No costs.
