VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_05-vv-00626
Package ID: USCOURTS-cofc-1_05-vv-00626
Petitioner: J.C.R.
Filed: 2005-06-15
Decided: 2017-11-22
Vaccine: hepatitis B; tetanus
Vaccination date: 2003-06-16
Condition: transverse myelitis and/or Guillain-Barre syndrome
Outcome: compensated
Award amount USD: 1510023.53

AI-assisted case summary:
On June 15, 2005, J.C. filed a petition under the National Vaccine Injury Compensation Program on behalf of his son, J.C.R., alleging that the Hepatitis B and Tetanus vaccines administered on June 16, 2003, caused transverse myelitis (TM) and/or Guillain-Barre syndrome (GBS). The case involved extensive litigation regarding entitlement. Initially, Special Master Christian J. Moran denied entitlement, focusing on the medically acceptable timeframe for molecular mimicry following vaccination. The Court of Federal Claims remanded the case multiple times, including for issues concerning expert evidence. Ultimately, in 2015, the Court of Federal Claims sustained the Special Master's denial of entitlement. However, the case later resolved by stipulation. The caption was amended to reflect J.C.R.'s adulthood, and the final public decision was reissued in redacted form on December 6, 2017, using initials. A corrected stipulation was filed on November 21, 2017, after an earlier stipulation and decision were stricken due to an error reported by the respondent. The respondent continued to deny that the vaccines caused or significantly aggravated J.C.R.'s condition. Nevertheless, the parties agreed to compensation. Chief Special Master Nora Beth Dorsey adopted the corrected stipulation on November 22, 2017. The award included a lump sum of $1,248,834.30 payable to J.C.R., comprising $48,328.00 for first-year expenses, $960,377.30 for past and future lost wages (reduced to net present value), and $240,129.00 for actual and projected pain and suffering (reduced to net present value). An additional lump sum of $261,189.23 was payable to J.C.R. and the California Department of Health Care Services to satisfy a Medicaid lien. The stipulation also included an amount sufficient to purchase an annuity contract, representing all damages available under the Vaccine Act. Petitioner's counsel was Jeffrey S. Pop, and respondent's counsel was Linda S. Renzi.

Theory of causation field:
Petitioner alleged that the Hepatitis B and Tetanus vaccines administered on June 16, 2003, to J.C.R. (age 13) caused transverse myelitis and/or Guillain-Barre syndrome, with onset approximately 24 hours later. The case involved extensive litigation, with Special Master Christian J. Moran repeatedly denying entitlement, questioning the 24-hour onset timeframe for molecular mimicry. The Court of Federal Claims initially sustained these denials but later remanded for further clarification regarding expert testimony, specifically concerning Dr. John T. Sladky, whose credibility and reliability were questioned due to undisclosed substance abuse and licensure issues. Ultimately, the case was resolved by a corrected stipulation, adopted by Chief Special Master Nora Beth Dorsey on November 22, 2017, with a final redacted decision issued on December 6, 2017. Respondent denied causation and significant aggravation. The award included a lump sum of $1,248,834.30 to J.C.R. ($48,328.00 for first-year expenses, $960,377.30 for past/future lost wages, and $240,129.00 for pain/suffering), plus $261,189.23 for a California Medicaid lien, and an amount for an annuity. Petitioner's counsel was Jeffrey S. Pop, and respondent's counsel was Linda S. Renzi. Petition filed June 15, 2005.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_05-vv-00626-0
Date issued/filed: 2014-06-16
Pages: 24
Docket text: PUBLIC DECISION (Originally filed: 5/19/2014 ) re: 210 Order on Motion for Review, Opinion Remanding to Special Master. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.
--------------------------------------------------------------------------------
Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 1 of 24
In the United States Court of Federal Claims
No. 05-626 V
(Filed June 16, 2014)1
* * * * * * * * * * * * * * *
JESSIE CONTRERAS, *
*
Petitioner, * National Childhood Vaccine
* Injury Act of 1986, 42 U.S.C.
v. * §§ 300aa-1 to -34 (2012); Lack
* of Clarity in Credibility and
SECRETARY OF HEALTH AND * Reliability Determinations;
HUMAN SERVICES, * Remand.
*
Respondent. *
* * * * * * * * * * * * * * *
Jeffrey S. Pop, Beverly Hills, CA, for petitioner.
Linda S. Renzi, United States Department of Justice, with whom were Stuart
F. Delery, Assistant Attorney General, Rupa Bhattacharyya, Director, Vincent J.
Matanoski, Deputy Director, Voris E. Johnson, Jr., Assistant Director,
Washington, DC, for respondent.
________________________________
OPINION AND ORDER
________________________________
BUSH, Senior Judge
1/ Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of
Federal Claims, this Opinion and Order was initially filed under seal on May 19, 2014. Pursuant
to ¶ 4 of the ordering language, the parties were to propose redactions of the information
contained therein on or before June 6, 2014. No proposed redactions were submitted to the
court.

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 2 of 24
Now pending before the court is petitioner’s motion for review of the
special master’s decision on remand, see Contreras v. Sec’y of Health & Human
Servs., No. 05-626V, 2013 WL 6698382 (Fed. Cl. Spec. Mstr. Nov. 19, 2013)
(Contreras III),2 which denied Jessie Contreras’s petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(2012) (the Vaccine Act).3 Although petitioner attacks the special master’s
decision on many fronts, a threshold issue regarding the credibility of one of
respondent’s experts and the reliability of that expert’s opinions prevents this
court from reaching the remainder of petitioner’s arguments. Pet.’s Mot. at 2, 4-5;
Resp.’s Resp. at 27-29. Because the credibility and reliability determinations of
the special master regarding this particular expert are unclear, and because the
extent of the special master’s reliance on the opinions of this expert for the
entitlement decision is similarly unclear, the court must remand this case to the
special master.
BACKGROUND
I. Factual History
Prior decisions in this case provide ample factual background for Jessie’s
alleged vaccine injury of transverse myelitis (TM) and Guillain-Barré Syndrome
(GBS). See, e.g., Contreras v. Sec’y of Health & Human Servs., 107 Fed. Cl. 280
(2012) (Contreras II); Contreras v. Sec’y of Health & Human Servs., No.
05-626V, 2012 WL 1441315 (Fed. Cl. Spec. Mstr. Apr. 5, 2012) (Contreras I),
vacated, 107 Fed. Cl. 280. The alleged injury occurred in 2003, approximately
twenty-four hours after Jessie received inoculations containing the Hepatitis B
vaccine (HepB) and tetanus-diptheria vaccine (Td). Jessie is now twenty-four
years old.
II. Procedural History
2/ The court cites not to the Westlaw version of the special master’s opinion on remand,
but follows the practice of the parties and cites to the opinion version (Opin.) available on this
court’s website.
3/ Hereinafter the court will refer to Mr. Contreras as “petitioner” or “Jessie,” because he
was thirteen years old at the time of his alleged vaccine injury.
2

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 3 of 24
On June 15, 2005, Jessie’s father, acting for Jessie, filed a petition under the
Vaccine Act. Petitioner initially engaged Dr. Charles M. Poser, M.D. as an expert.
Respondent then engaged Dr. John T. Sladky, M.D. to opine on causation. Dr.
Sladky’s initial report in 2005 was filed in response to Dr. Poser’s report. See Ex.
I; see also Resp.’s Resp. at 27.
Petitioner then engaged another expert, Dr. Lawrence Steinman, M.D. Dr.
Steinman’s initial report was filed in 2006. A few years later, Dr. Sladky filed a
second report to respond to Dr. Steinman’s report. See Resp.’s Resp. at 27. Dr.
Sladky’s second report was filed on March 8, 2010 and re-filed on March 22,
2010. See Ex. P. Respondent had also engaged a second expert, Dr. J. Lindsay
Whitton, M.D., Ph.D., who also responded to Dr. Steinman’s contentions. Drs.
Steinman, Sladky and Whitton testified at the first evidentiary hearing in this case,
held April 19-20, 2010.4
In Contreras I, the special master denied petitioner entitlement to
compensation under the Vaccine Act. In Contreras II, this court vacated that
opinion and remanded the case to the special master for a revised causation
analysis. In Contreras III, the special master issued a revised causation analysis
which again denied petitioner entitlement to compensation. Before the special
master issued his decision, however, on May 1, 2013 the Secretary filed a status
report revealing previously undisclosed information regarding Dr. Sladky. It is the
special master’s ambiguous response to that disclosure of information that is the
primary focus of this opinion.
DISCUSSION
I. Standard of Review
This court has jurisdiction to review the decision of a special master in a
Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court
of Federal Claims reviews the decision of the special master to determine if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.
4/ All citations to the transcript (Tr.) in this opinion are to the transcript of the 2010
hearing.
3

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 4 of 24
Cir. 2008) (quoting 42 U.S.C. § 300aa-12(e)(2)(B) and citing Althen v. Sec’y of
Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir. 2005)) (alteration in
original). This court uses three distinct standards of review in Vaccine Act cases,
depending upon which aspect of a special master’s judgment is under scrutiny:
These standards vary in application as well as degree of
deference. Each standard applies to a different aspect of
the judgment. Fact findings are reviewed . . . under the
arbitrary and capricious standard; legal questions under
the “not in accordance with law” standard; and
discretionary rulings under the abuse of discretion
standard.
Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed.
Cir. 1992).
The third standard of review, abuse of discretion, is applicable when the
special master excludes evidence or otherwise limits the record upon which he
relies. See id. As this court has stated, the third standard applies to evidentiary
rulings, including those regarding the qualifications of an expert:
Notably, such [discretionary] rulings include
determinations regarding the qualification of expert
witnesses and the reliability of expert testimony.
Piscopo v. Sec’y of Health & Human Servs., 66 Fed. Cl.
49, 53 (2005); see [Gen. Elec. Co. v. Joiner, 522 U.S.
136, 142-43 (1997)] (holding that “abuse of discretion is
the proper standard of review of a [trial] court’s
evidentiary rulings,” including determinations regarding
the reliability of expert testimony under [Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993))];
[Terran ex rel. Terran v. Sec’y of Health & Human
Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999)] (reviewing
for abuse of discretion the Special Master’s decision to
reject as unreliable the testimony of the petitioner’s
expert). Determinations subject to review for abuse of
discretion must be sustained unless “manifestly
4

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 5 of 24
erroneous.” Piscopo, 66 Fed. Cl. at 53; see Milmark
Servs., Inc. v. United States, 731 F.2d 855, 860 (Fed. Cir.
1984) (holding that decisions that lie within the trial
court’s discretion are to be sustained unless “manifestly
erroneous”).
Jarvis v. Sec’y of Dep’t of Health & Human Servs., 99 Fed. Cl. 47, 59 (2011).
Thus, a special master’s determination as to the reliability of expert witness
testimony is reviewed under the abuse of discretion, or manifestly erroneous,
standard. Terran, 195 F.3d at 1316 (citing Burns v. Sec’y of Dep’t of Health &
Human Servs., 3 F.3d 415, 416-17 (1993)); Milmark, 731 F.2d at 860 (citing
Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962)).
On the particular topic of a fact-finder’s determination as to the credibility
of a testifying witness, the United States Court of Appeals for the Federal Circuit
has often stated that such determinations are “‘virtually unreviewable.’” E.g.,
Bradley v. Sec’y of Dep’t of Health & Human Servs., 991 F.2d 1570, 1575 (Fed.
Cir. 1993) (citing Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986)). The court has found no authority, however, which states that a credibility
determination is immune from review, particularly where, as here, extrinsic
evidence has subsequently been disclosed which shows a lack of candor on the
part of an expert witness. For this reason, the court reviews the special master’s
determinations regarding Dr. Sladky’s credibility and the reliability of Dr.
Sladky’s expert opinions for manifest error. Unfortunately, the special master’s
determinations in this regard are ambiguous and resist review absent further
clarification.
II. Analysis
A. Dr. Sladky’s Opinions and Testimony Have Been Undermined By
a Consistent Pattern of Misrepresentations to the Court and to
Respondent’s Counsel
1. An Undisclosed History of Substance Abuse
On May 1, 2013, the Secretary was obliged to disclose that Dr. Sladky, one
of the two experts employed by respondent in this case, had a substance abuse
5

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 6 of 24
problem which led to the suspension and probationary restoration of his license to
practice medicine at or around the time he was drafting an expert report and
testifying at the 2010 hearing in this case.5 Some excerpts of this disclosure reveal
that
the Secretary and respondent’s counsel have only
recently learned . . . that Dr. Sladky agreed not to
practice medicine in the state of Georgia from August
19, 2008 to March 18, 2009, and agreed to the indefinite
suspension of his license to practice medicine on June
17, 2009, and that on March 4, 2010, the suspension of
his license was lifted and his license to practice restored
on a probationary basis. The probation was terminated
on July 5, 2011. . . . Neither the Secretary nor
respondent’s counsel was aware of the suspension or
probationary status of Dr. Sladky’s license prior to or at
the time he provided the expert witness services in this
case.
Status Report of May 1, 2013, at 1.
Attached to the Secretary’s status report were a number of documents issued
by the State of Georgia’s Composite State Board of Medical Examiners (Board),
the earliest of which, dated June 17, 2009, provides an initial insight into Dr.
Sladky’s alcohol dependence:
On or about June 5, 2009, the Board received reliable
information from Talbott Recovery Campus (“TRC”)
that Respondent [Dr. Sladky] tested positive for alcohol
in a urine drug/alcohol screen and, as a result, TRC
recommends that Respondent enter inpatient treatment at
TRC immediately.
Id. at 14. This report of a failed urine test was just one manifestation of Dr.
5/ Dr. Sladky signed his second expert report on March 4, 2010, provided the report to
respondent’s counsel by March 8, 2010, and testified in this case on April 20, 2010.
6

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 7 of 24
Sladky’s substance abuse problem and was the trigger for the Board’s disciplinary
action which included: (1) the indefinite suspension of Dr. Sladky’s license to
practice medicine on June 17, 2009, (2) the requirement that he receive inpatient
treatment for his condition, and, (3) that he attend continuing care after treatment
as required by the rehabilitation center’s staff. There were, however, earlier
incidents that led to this and other disciplinary action by the Board.
As recounted in a later Board decision dated March 4, 2010,
[o]n or about August 19, 2008, Respondent [Dr. Sladky]
was evaluated and treat[ed] for alcohol dependence at
Ridgeview Institute (“Ridgeview”). Respondent notified
the Board that he was in treatment and agreed not to
return to the practice of medicine without the written
express permission of the Board. Respondent completed
treatment and was discharged on or about November 19,
2008.
Status Report of May 1, 2013, at 4. Dr. Sladky was permitted to return to the
practice of medicine on March 18, 2009. That return to practice was short-lived,
however, because
[s]oon after his return to practice, Respondent [Dr.
Sladky] had several positive urine tests for ethyl
glucuronide, in violation of both his monitoring
agreement with Ridgeview and the terms of his Board
Order [of March 18, 2009].
Id. at 5.
Accepting the Board’s disciplinary actions in June 2009,
Respondent [Dr. Sladky] entered the Talbott Recovery
Campus (“TRC”) program on June 9, 2009 . . . . After
completing inpatient treatment on July 31, 2009,
Respondent then entered and completed intensive
outpatient treatment, followed by aftercare.
7

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 8 of 24
Id. As of March 4, 2010, Dr. Sladky’s petition to lift the suspension of his medical
license was granted.
Dr. Sladky, however, was only granted a probationary license to practice
medicine, under the supervision of a physician at his place of employment to
monitor Dr. Sladky’s work, and under the supervision of a different physician to
monitor Dr. Sladky’s treatment for alchoholism and his use of prescription
medications, if any. This probation also included a number of conditions, such as:
substance abuse treatment, including weekly group therapy sessions; participation
in a support group such as Alcoholics Anonymous, including the requirement that
he obtain a sponsor so that he could “work a daily recovery program”;
unscheduled drug and alcohol screening tests; and, initial and quarterly reports
from both his workplace supervising physician and his substance abuse treatment
physician. Id. at 6-8. According to the Board’s order of March 4, 2010, Dr.
Sladky would not “be eligible to petition for termination of probation until five (5)
years of continuous sobriety from the effective date of this Consent Order.” Id. at
11.
More than three and a half years before Dr. Sladky was due, at the earliest,
to become eligible to petition for the termination of his probation pursuant to the
Board’s order of March 4, 2010, the Board terminated the probation conditions on
Dr. Sladky’s license to practice medicine in the State of Georgia, with no
substantive commentary. Status Report of May 1, 2013, at 3. The record before
the court does not show how the Secretary learned of: (1) Dr. Sladky’s
undisclosed substance abuse problem; (2) the first agreement that he not practice
medicine; (3) the second and indefinite suspension of his license to practice
medicine; and, (4) the probation conditions imposed upon his license by the State
of Georgia’s Composite State Board of Medical Examiners. What is clear from
the record is that Dr. Sladky was not candid about the events chronicled here with
either respondent’s counsel or the court. What is also clear is that petitioner was
deprived of any opportunity to elicit testimony from Dr. Sladky as to the actual
conditions of his medical practice because Dr. Sladky’s curriculum vitae
misrepresented the state of his medical licensure at all times relevant to this
litigation.
2. A Pattern of Misrepresentation in the Curriculum Vitae Dr.
Sladky Submitted in This and Other Cases
8

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 9 of 24
a. Dr. Sladky’s Curriculum Vitae in This Case
Dr. Sladky’s curriculum vitae (CV) was submitted by respondent along with
his first expert report on October 27, 2005, and, pursuant to the special master’s
instructions, was refiled as Exhibit J on December 2, 2005 to clarify the docket.
The CV was dated “May 1, 1999,” even though it was submitted to the court six
years after that date, and contained information that referenced responsibilities of
Dr. Sladky extending to the year 2002. Ex. J at 5. Under the rubric “Licensure,”
Dr. Sladky’s CV identified a license to practice medicine in Pennsylvania (No.
MD-022838-E).6 Id. at 3. Respondent does not dispute that Dr. Sladky’s
Pennsylvania license expired in 1996, well before the “May 1, 1999” date on the
CV, and almost ten years before Dr. Sladky’s CV was filed in this case. In the
court’s view, Dr. Sladky’s CV, bearing no notation that his license in
Pennsylvania had expired, misrepresented Dr. Sladky’s credentials. Thus, the
expert report filed by Dr. Sladky in 2005 was supported by an inaccurate and
misleading CV.
As the special master and the parties prepared for the 2010 hearing in this
case, almost five years after respondent had first filed Dr. Sladky’s CV,
respondent’s counsel informed the special master and petitioner that
respondent intends to call John Sladky, M.D., to testify
at hearing. As of the filing of this status report, Dr.
Sladky has indicated that he is making efforts to appear
in person if possible, but will be available by phone, if
necessary. Dr. Sladky is preparing a supplemental expert
report to address the issues raised by petitioner’s expert,
Dr. Steinman. Respondent will file Dr. Sladky’s report,
an updated curriculum vitae, and referenced medical
articles, no later than March 8, 2010.
Status Report of January 27, 2010, at 1 (emphasis added). No updated CV was
filed by respondent.
6/ Dr. Sladky’s license number in Pennsylvania, MD-022838-E, should not be read to
include a designation “E” for “expired.” Active and expired medical licenses in that state may
bear the “E” designation.
9

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 10 of 24
The court notes that as of January 27, 2010, Dr. Sladky’s license to practice
medicine in Georgia was suspended and his license in Pennsylvania had expired
many years before. The following evidence shows that Dr. Sladky was working
on his second expert report while his sole “active” license to practice medicine (in
Georgia) was suspended and before his suspended license (in Georgia) was
reinstated (with probationary conditions) on March 4, 2010: (1) respondent’s
counsel’s statement on January 27, 2010 that Dr. Sladky “is preparing” his second
expert report; (2) the detailed analysis of Dr. Steinman’s opinions in Dr. Sladky’s
second expert report; and, (3) the date marked on Dr. Sladky’s expert report,
March 4, 2010, which was filed by respondent on March 8, 2010 (lacking a
signature) and refiled (with a signature) on March 22, 2010. See Ex. P. Thus, Dr.
Sladky’s first expert report was supported by an inaccurate and misleading CV as
to licensure in Pennsylvania, and Dr. Sladky’s second expert report was again
supported by an inaccurate and misleading CV as to licensure in Pennsylvania.
Furthermore, his inaccurate and misleading CV failed to disclose that the second
expert report had been composed, at least in part, while Dr. Sladky’s license to
practice medicine in Georgia was suspended, and failed to disclose that the report
was signed when his license to practice medicine was subject to probationary
conditions.
There is no information in the record which explains why respondent never
filed an updated CV for Dr. Sladky to accompany his second expert report, as
promised in the January 27, 2010 status report. The court believes that a party in a
vaccine injury case has a duty to update or supplement inaccurate information in
the record before the special master. See Erve by Erve v. Sec’y of Health &
Human Servs., 39 Fed. Cl. 607, 616 (1997) (discussing the obligations of litigants
in vaccine cases to disclose relevant evidence, in light of the informal and
cooperative discovery procedures used in these cases). Here, Dr. Sladky’s
inaccurate CV prevented the special master and petitioner from ascertaining the
true nature of Dr. Sladky’s medical practice and credentials at the times he opined
as an expert in this case.
b. Dr. Sladky’s Curriculum Vitae in Other Vaccine
Cases before This Court
Dr. Sladky, to the court’s knowledge, has never submitted an accurate CV in
the numerous vaccine cases for which he was engaged by the Secretary as an
10

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 11 of 24
expert. To cite perhaps the most egregious example of a misleading CV provided
by Dr. Sladky, the court turns to Crosby v. Sec’y of Health & Human Servs., No.
08-799V (Fed. Cl. filed Nov. 10, 2008). The petition in that case was filed on
November 10, 2008, during a time when Dr. Sladky was not permitted to practice
medicine due to his substance abuse problem. As of September 29, 2009,
respondent’s counsel in that case noted that Dr. Sladky “has indicated that he
requires additional time to complete his review and prepare a report in this case.”
Crosby Status Report of Sept. 29, 2009, at 1. Dr. Sladky’s license to practice
medicine, as of September 29, 2009 when he was producing the expert report in
Crosby, was suspended due to his substance abuse problem.
Dr. Sladky’s expert report in Crosby was signed on October 26, 2009, when
his license to practice medicine was still suspended due to his alcohol dependence.
The CV that supported that expert report, dated “May 1, 2005” but filed November
2, 2009, asserts under “Licensure” that Dr. Sladky is licensed in both Pennsylvania
and Georgia, although in truth he could not practice medicine in either state at the
time his report and CV were filed. Crosby Notice of Filing of November 2, 2009,
Ex. A Tab 1 at 3. Respondent won that case, at least in part, because “[b]oth
parties presented well credentialed experts” and respondent’s experts, including
Dr. Sladky, were found to be more persuasive by the special master. Crosby v.
Sec’y of Health & Human Servs., No. 08-799V, slip op. at 2 (Fed. Cl. Spec. Mstr.
June 20, 2012) (emphasis added). Respondent did not file a status report in that
case disclosing the Secretary’s discovery of Dr. Sladky’s undisclosed substance
abuse problem, licensure difficulties and lack of candor.7
To cite only a few more examples, Dr. Sladky’s pattern of submitting
inaccurate CVs in vaccine cases cannot be described as anything other than
consistent. In Case No. 09-293V, on April 22, 2011 respondent filed a “January 5,
2009” version of Dr. Sladky’s CV, asserting “Licensure” in Pennsylvania
(although that license had expired approximately twelve years before the date of
the CV) and “Licensure” in Georgia (although that license was suspended as of the
date of the CV). In Case No. 08-763V, on May 24, 2010 respondent filed a “May
1, 2005” version of Dr. Sladky’s CV, asserting “Licensure” in Pennsylvania
7/ The court assumes this failure to disclose relevant information was inadvertent,
because the Secretary was diligent in filing status reports in other vaccine cases for which Dr.
Sladky was retained as an expert, whether or not those cases were open or closed.
11

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 12 of 24
(although that license had expired more than eight years before the date of the
CV). In Case No. 10-717V, on September 30, 2011 respondent filed a “May,
2011” version of Dr. Sladky’s CV, which continued to assert “Licensure” in
Pennsylvania (although that license had expired over fourteen years before the
date of the CV).
The court believes that it is wrong to assume that the submission of
consistently inaccurate CVs was inadvertent or the product of laziness on Dr.
Sladky’s part. He obviously was updating his CV throughout this period by
changing the date on the first page of the document (although that date never
appears to have matched the date of the expert report it supported). He also was,
in some instances, adding recent publications to his CV. Furthermore, it is clear
from the Crosby case, in particular, that Dr. Sladky had an updated, if inaccurate,
CV dated “May 1, 2005” that was available to be filed by respondent on
November 2, 2009 in that case, but which was not filed in early 2010 in this case,
as promised by respondent’s counsel. The court cannot minimize the
misrepresentations in the CVs Dr. Sladky has submitted in vaccine cases,8 and
notes that Dr. Sladky was removed as an expert from at least one vaccine case
(which later settled). See Resp.’s May 17, 2013 Status Report, Covin by Strand v.
Sec’y of Health & Human Servs., No. 08-763V (Fed. Cl. closed Mar. 31, 2014).
3. Three Examples of Misleading or Incomplete Testimony
Regarding Dr. Sladky’s Medical Practice
a. Dr. Sladky’s Testimony in This Case
There is no indication that Dr. Sladky perjured himself on April 20, 2010 in
the evidentiary hearing before the special master in this case. He did not state, and
was not asked to state, whether he was licensed to practice medicine in
Pennsylvania and Georgia. He was not asked whether his license to practice
medicine was on probation (which it was at the time he testified), and he was not
asked whether he had been subject to disciplinary proceedings which led to the
8/ The special master commented that “it is difficult to say” whether the representations
as to licensure in Pennsylvania on Dr. Sladky’s CV were “due to forgetfulness or due to intent.”
Opin. at 7. That may be true when this case is viewed in isolation. It is harder to attribute the
inaccuracies in Dr. Sladky’s CV to forgetfulness when one considers that Dr. Sladky exhibited a
lack of candor regarding his licensure problems in multiple vaccine cases.
12

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 13 of 24
suspension of his license. There is also no indication that his employment status
as “senior faculty” in the Department of Pediatric Neurology at Emory University
School of Medicine was misrepresented. Tr. at 275.
The court notes, however, that the testimony of Dr. Sladky was founded on
the CV respondent submitted on December 2, 2005. See Tr. at 278; Ex. J. As
noted supra, that CV, for which an updated version was never proffered, asserted
licensure in Pennyslvania. That “May 1, 1999” CV also stated that Dr. Sladky was
Chief of the Division of Pediatric Neurology at Emory, under the rubric “Hospital
Appointments.” Ex. J at 3. Whether that hospital appointment was still in place
when Dr. Sladky testified is unclear. In the court’s view, Dr. Sladky’s testimony,
like his CV, failed to fully represent the existing state of his credentials and the
existing conditions of his medical practice, as is further evidenced below.
In general terms, Dr. Sladky testified that “I see patients,” that “I see
patients every week,” and that “[I] attend on the inpatient neurology service
roughly three months a year, a little less.” Tr. at 275. He described his work as a
“[p]retty standard, busy clinical and academic lifestyle.” Id. More specifically,
Dr. Sladky testified that “probably half” of his working hours are devoted to
clinical time, and that “I see patients every week, usually five half days a week,
probably average 40-50 patients a week.” Id.
This testimony by Dr. Sladky was provided on April 20, 2010, forty-seven
days after he was permitted to return to the practice of medicine in Georgia. If the
court were to consider the two-year period of time leading up to this testimony,
Dr. Sladky was only licensed to practice medicine for eight and a half of those
twenty-four months, and more than one month of the time that he was licensed to
practice medicine during that period was under supervised probation. When this
factual context is considered, Dr. Sladky’s testimony that he sees patients every
week; that probably half of his working hours are clinical time; that he attends on
inpatient service a little less than three months a year; and that he probably
averages 40-50 patients a week, is misleading.
Whether Dr. Sladky was attempting to describe his recently restored
medical practice that resumed on March 4, 2010, aptly using the present tense, or
whether Dr. Sladky was attempting to paint an impressionistic picture of his long-
term tenure at Emory, imprecisely using the present tense, the description of his
13

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 14 of 24
medical practice that he provided the special master and opposing counsel in his
testimony cannot be reconciled with the interruptions in his medical practice
caused by his substance abuse and licensure problems. Like his inaccurate CV,
Dr. Sladky’s testimony was misleading as to his experience and qualifications to
testify as an expert. Unfortunately, the hearing in this vaccine case is not the only
time that Dr. Sladky’s testimony glossed over and hid the fact that he was
prevented from practicing medicine for fifteen and a half months between 2008
and 2010, and that his license to practice medicine was on probation for over a
year in 2010 and 2011.
b. Dr. Sladky’s Testimony in Other Vaccine Cases
before This Court
Only two special masters, besides the special master presiding over this
case, have commented on the hearing testimony of Dr. Sladky once his lack of
candor was disclosed by the Secretary. In Roberts v. Sec’y of Health & Human
Servs., No. 09-427V, 2013 WL 5314698, at *9 (Fed. Cl. Spec. Mstr. Aug. 29,
2013), the special master noted that Dr. Sladky had been on a probationary license
to practice medicine when he submitted his expert reports in that case. Although
Dr. Sladky’s hearing testimony in Roberts was provided after that probationary
period had terminated, the special master was troubled by Dr. Sladky’s lack of
candor, noting that “in discussing his qualifications at the hearing, no mention was
made of [licensure suspension problems] and such information was glossed over.”
Id.
In Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2014 WL
1092274, at *14 (Fed. Cl. Spec. Mstr. Feb. 24, 2014), the special master noted,
first, that Dr. Sladky “was properly licensed throughout his involvement with
th[at] case.” Nonetheless, the special master observed that the CV provided by Dr.
Sladky in Raymo, dated “January 5, 2009,” was inaccurate:
I looked carefully at the testimony of Dr. Sladky and his
CV, filed as Res. Ex. B. Although filed with his expert
report in February 2012, his CV is dated January 5,
2009. His CV therefore was written or updated near the
end of the period during which Dr. Sladky had agreed
not to practice medicine. However, Dr. Sladky’s CV
14

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 15 of 24
does not reflect that he had taken leave from his hospital
appointments.
Id. at *15 (citation omitted). The special master then turned to the testimony
provided by Dr. Sladky as to his qualifications as an expert:
Doctor Sladky was . . . careful . . . to avoid perjuring
himself. He testified that he began working at Emory
University in 1995 and had recently retired and moved to
a private practice in Atlanta. He did not mention that
between 1995 and 2012 there were periods when he had
a suspended medical license or practiced only on a
probationary basis. When asked to describe his
day-to-day activities while at Emory and in his current
position, he carefully prefaced his answer with “when I
was on service.” This preface could reflect the
difference in his roles when performing medical duties
versus his administrative or teaching duties.
Alternatively, it could be considered a carefully crafted
answer to avoid giving perjured testimony. By
specifying that his answer pertained to the time periods
when he was practicing medicine, he avoided the
necessity of indicating that there were periods when he
was not able to practice medicine due to the suspension
of his medical license.
Id. (citations omitted).
This special master, too, was troubled by Dr. Sladky’s avoidance of the
topic of his licensure problems. The following passage reflects the special
master’s conclusions as to the misleading nature of the testimony provided by Dr.
Sladky:
I administer an oath to witnesses that requires that they
tell the whole truth. Neither . . . nor Dr. Sladky told the
whole truth. Both demonstrated a lack of candor that,
although not related directly to the substance of their
15

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 16 of 24
causation opinions, reflect[s] their willingness to, at the
very least, shade the truth. . . . In the case of Dr. Sladky,
it appears that he so feared the loss of his position and
income as a case reviewer for respondent that he
withheld facts concerning his medical license
suspension.
Id. at *16. Thus, in both Roberts and Raymo, Dr. Sladky’s testimony was viewed
in a negative light because of his misleading statements regarding his medical
practice and qualifications to opine as an expert.
4. Credibility and Reliability Determinations in Other
Vaccine Cases Based on Dr. Sladky’s Lack of Candor
The credibility and reliability determinations regarding the overall value of
Dr. Sladky’s opinions in Roberts and Raymo are not exactly the same. In Roberts,
the special master merely noted that Dr. Sladky’s representations regarding his
qualifications were “questionable,” and that the recently revealed information
about his licensure problems gave her “pause.” 2013 WL 5314698, at *9. Her
conclusion regarding his opinions, based on the candor issue as well as the
substantive content of his opinions, was that she “d[id] not find Dr. Sladky’s
testimony as reliable and persuasive as the testimony of [two of the petitioners’
experts].” Id.
In Raymo, on the other hand, Dr. Sladky’s credibility was destroyed by his
lack of candor regarding his licensure problems. The special master considered
not only Dr. Sladky’s lack of candor in the case before her, but also his lack of
candor in other vaccine cases:
Standing alone, the basis for Dr. Sladky’s disciplinary
action might not affect the reliability of his expert
opinions. However, his failure to disclose the
disciplinary action to respondent, his authoring of expert
opinions while he did not have an active medical license,
and the failure to reflect his voluntary leave from
medical practice due to a substance abuse problem on the
CV filed in this case all cast doubt about his credibility
16

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 17 of 24
as a witness.
Raymo, 2014 WL 1092274, at *15. She therefore did not rely at all on the opinion
of Dr. Sladky for her entitlement decision in that case.
It is perhaps noteworthy that petitioners in both Roberts and Raymo
prevailed on entitlement, at least in part because the expert opinion of Dr. Sladky
was of lessened or no value to respondent’s arguments in those cases. Raymo,
2014 WL 1092274, at *17 (“Because I attach no weight to the opinions of Drs.
Sladky and . . . , [petitioners’ expert’s] opinion is largely unrebutted.”); Roberts,
2013 WL 5314698, at *11 (basing her decision regarding entitlement on the
special master’s “review of the evidence and an assessment of the reliability of the
opinions of the various expert witnesses”).
B. The Special Master’s Assessment of Dr. Sladky’s Credibility and
Reliability in This Case
The special master’s ruling on the credibility and reliability of Dr. Sladky,
rendered after the parties hotly contested the importance of the Secretary’s
disclosures, is ambiguous. In the section of the opinion devoted to Dr. Sladky’s
credibility and reliability as an expert, the special master states:
The Secretary does not dispute that Dr. Sladky
should have disclosed the information concerning his
health issues and the effect they had on his ability to
practice medicine. The failure to disclose this important
information bears on his credibility and reliability as an
expert witness.
However, the lack of disclosure and (implicit)
misrepresentation about qualifications does not entirely
negate Dr. Sladky’s opinion. Dr. Sladky established his
opinion almost three years before his license was
suspended and it has not changed throughout the course
of these proceedings. As the Secretary asserted, it does
not appear that Dr. Sladky’s personal health issues or his
licensure problems affected his opinions in any way. In
addition, Dr. Sladky’s opinions are consistent with the
17

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 18 of 24
opinions of other witnesses. This corroboration shows
that Dr. Sladky’s opinions retain some value.
Opin. at 7 (citations and footnote omitted). A later comment on the credibility and
reliability of Dr. Sladky is presented in a footnote:
The [causation] analysis in the text does not rely upon
Dr. Sladky’s opinion extensively. Thus, under the
circumstances in which the Secretary presented the
opinion of a different doctor, the problems in Dr.
Sladky’s licensing and the non-disclosure of these
problems ha[ve] minimal effect on this case.
Id. at 71 n.51.
1. Minimizing the Importance of Dr. Sladky’s
Misrepresentations and Misleading Testimony for
Credibility and Reliability Determinations
The court observes, first, that the special master appears to dismiss Dr.
Sladky’s substance abuse problem and lack of candor as relatively unimportant.
See Opin. at 71 n.51; see also supra note 8. The special master notes, for example,
that Dr. Sladky never saw Jessie as a patient, and comments that petitioner did not
establish “that a suspension of a license to practice medicine means that the person
may not provide opinions based upon the person’s training and experience.”
Opin. at 6. The more salient issue, in the court’s view, is whether a physician
engaged as an expert by the Secretary should have revealed to respondent’s
counsel that his expert report was created, at least in part, during a time period
when the physician’s license to practice medicine was suspended.
At this late date, it may not be helpful to inquire whether the special
master’s assumptions regarding the severity and duration of Dr. Sladky’s
substance abuse problem are correct. See Opin. at 7 (“Dr. Sladky established his
opinion almost three years before his license was suspended and it has not
changed throughout the course of these proceedings. As the Secretary asserted, it
does not appear that Dr. Sladky’s personal health issues or his licensure problems
affected his opinions in any way.”). The court cannot ignore, however, the fact
18

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 19 of 24
that the special master improperly conflated Dr. Sladky’s 2005 expert report with
his 2010 expert report and hearing testimony, in a manner that minimizes Dr.
Sladky’s credibility problems:
[T]he lack of disclosure and (implicit) misrepresentation
about qualifications does not entirely negate Dr. Sladky’s
opinion. Dr. Sladky established his opinion almost three
years before his license was suspended and it has not
changed throughout the course of these proceedings.
Opin. at 7 (emphasis added). Dr. Sladky provided more than one opinion in this
case, as the record clearly shows.
At the time of the filing of Dr. Sladky’s first report, petitioner’s expert Dr.
Steinman had not yet opined on causation and the subsidiary issues relevant to
causation. Dr. Sladky’s second expert report is not a carbon copy of his first
report – it was filed “to address the issues raised by petitioner’s expert, Dr.
Steinman.” Resp.’s Status Report of January 27, 2010, at 1; see Tr. at 279 (direct
examination confirming that Dr. Sladky’s second report, Ex. P, “was in response
to Dr. Steinman’s report”); Ex. P at 1 (“I have been asked to comment on
supplementary opinions which have been provided to this court regarding the
above referenced matter. I have not previously reviewed these documents as they
were submitted after I prepared my initial report in 2005.”).
Dr. Sladky’s opinions on many issues considered by the special master were
presented in his second expert report or later at the hearing; it cannot be said that
Dr. Sladky’s sole opinion was presented first in 2005 and never changed
thereafter. To the extent that a specific Dr. Sladky opinion disagrees with a
specific proposition advanced by Dr. Steinman in this case, Dr. Sladky’s opinion
is necessarily of a 2010 vintage, not a 2005 vintage. See Tr. at 321-22 (noting that
he had only worked on this case, after 2005, not long “before we came here [for
the 2010 hearing]”). To obtain some of these 2010 vintage opinions, Dr. Sladky
was cross-examined about his second report, which was signed and filed in 2010.
Id. at 353. He was also examined as to his (2010 vintage) view of certain opinions
19

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 20 of 24
of Dr. Steinman. Id. at 371-72, 381-82, 389-90, 396, 402-03.9 Therefore, it
cannot be said that Dr. Sladky’s opinion did not change or was consistent after
2005.
In the court’s view, the proposition that Dr. Sladky’s supposedly “reliable”
2005 opinions somehow validate later opinions tainted by a documented substance
abuse problem, disciplinary actions preventing him from practicing medicine, and
a lack of candor, is flawed. Dr. Sladky’s hearing testimony, it should be noted,
contains some consistent opinions but also contains some newly-proffered
opinions, and these 2010 vintage opinions were considered by the special master
in his decision.10 The body of Dr. Sladky’s oral testimony, which was highly-
detailed and went far beyond the analysis presented in his five-page 2005 expert
report, must largely stand or fall based on Dr. Sladky’s credibility when he was
testifying in 2010.
The only other flaw in the special master’s analysis of the “credibility and
reliability” of Dr. Sladky worth noting is that of an illogical reliance on
“corroboration.” Opin. at 7. Dr. Sladky’s opinions retain some value, according
to the special master, because
Dr. Sladky’s opinions are consistent with the opinions of
other witnesses. This corroboration shows that Dr.
Sladky’s opinions retain some value.
Id. (footnote omitted). One could interpret this statement as suggesting that the
fact-finder may abdicate his role as the assessor of credibility of expert witnesses
whenever the witness in question offers statements that are in harmony with
9/ These transcript citations are limited to instances where Dr. Steinman was mentioned
by name. There are other examples in Dr. Sladky’s testimony where propositions advanced by
Dr. Steinman were referenced but his name was not.
10/ To cite one example, Dr. Sladky’s opinion regarding the significance of a certain
reflex test was cited by the special master. Opin. at 11 n.6, 28. That particular Dr. Sladky
opinion was not presented in 2005. See Ex. I. Although certain opinions, such as Dr. Sladky’s
opinion regarding the timing of the onset of Jessie’s disease, did not evolve in any substantive
way, many other Dr. Sladky opinions were disclosed or refined in 2010.
20

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 21 of 24
statements from other expert witnesses.11
Such a practice would avoid making credibility determinations in the first
instance and would proceed directly to the weighing of available evidence without
first determining whether that evidence is reliable. This approach violates binding
precedent which requires special masters to assess the credibility, in appropriate
instances, of expert witnesses:
Finders 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. . . .
In this case, the special master applied the correct
legal standard and found, based in part on the
unconvincing nature of the expert evidence and the lack
of credibility of the petitioners’ expert, that the
petitioners failed to prove causation by a preponderance
of the evidence.
Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1326
(Fed. Cir. 2010) (emphasis added). If there has ever been an appropriate instance
in a Vaccine Act case where a special master must first assess the credibility of an
expert witness, Dr. Sladky’s testimony and opinions provide that circumstance. In
the court’s view, before the special master can assess whether Dr. Sladky’s
opinions are convincing or persuasive, he must first determine whether or not Dr.
Sladky is a credible witness providing reliable opinions.
11/ An additional weakness in the special master’s reliance on the “corroboration” of Dr.
Sladky’s opinions is the special master’s imprecise characterization of this corroboration as
corroboration provided by “other witnesses.” Opin. at 7 & n.4. The corroboration for Dr.
Sladky’s diagnosis of Jessie’s illness, for example, is provided not by any testifying witness,
affidavit or declaration, but by the special master’s interpretation of excerpts from Jessie’s
medical records. See Pet.’s Mot. at 16 (“None of these four physicians [upon whose commentary
in Jessie’s medical records the special master relied] provided any written opinions to be
considered or testimony at the hearing.”); Opin. at 7 n.4 (“Dr. Sladky’s opinion matches the
diagnosis of Mr. Contreras’s treating neurologist [who did not testify at the hearing or provide a
declaration].”), 25-26 (citing medical records found in Exs. 7, 82), 29-30 & nn.23-24 (citing
medical records found in Ex. 7).
21

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 22 of 24
2. Lack of Clarity as to the Assessment of Dr. Sladky’s
Credibility and Reliability
The court has attempted to reconcile the special master’s statements
regarding Dr. Sladky’s credibility and reliability. These statements include:
(1) “Dr. Sladky’s opinions retain some value”; (2) “The analysis in the text does
not rely upon Dr. Sladky’s opinion extensively”; and, (3) “[U]nder the
circumstances in which the Secretary presented the opinion of a different doctor,
the problems in Dr. Sladky’s licensing and the non-disclosure of these problems
ha[ve] minimal effect on this case.” Opin. at 7, 71 n.51. These statements, in the
court’s view, lack precision and frustrate review. Furthermore, not only are these
statements vague, but the text of the decision contradicts the assertion that Dr.
Sladky’s opinions have not been relied upon extensively.
The special master’s decision includes extensive citations to Dr. Sladky’s
specific opinions on a number of issues relevant to the special master’s decision
on entitlement. Reference is made to Dr. Sladky’s opinions on almost every
decisive issue in this case – these references are found on pages 11 n.6, 17, 27-29,
36-37, 46 & n.35, 48-52, 54, 59-60, 65-68, 70-71, and 74 of the special master’s
decision. Dr. Sladky’s substance abuse, licensure problems and lack of candor
may indeed have had “minimal effect” on the special master’s ruling on
entitlement, but the effect of the disclosure of these issues remains ambiguous.
The special master’s decision reviewed here does not clearly state the special
master’s determinations regarding the credibility of Dr. Sladky and the reliability
of Dr. Sladky’s opinions. The court therefore remands this case to the special
master.
III. Instructions for Remand
Three clarifications are needed before the court can determine whether the
special master has abused his discretion in relying on the expert opinions of Dr.
Sladky. First, the special master must address Dr. Sladky’s credibility and
reliability in light of the consistent pattern of misrepresentations by Dr. Sladky in
his work as an expert for respondent, and provide an unambiguous estimation of
22

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 23 of 24
Dr. Sladky’s credibility and reliability as an expert.12 Second, the special master
must compare Dr. Sladky’s credibility to the credibility of the experts for
petitioner and the witnesses testifying for petitioner. These clarified credibility
determinations should then be integrated into the special master’s decision in a
manner that presents a clear ruling on entitlement for this court’s review.13
Third, for the sake of judicial economy, the special master must present an
alternative ruling on causation which completely disregards all of Dr. Sladky’s
opinions and testimony. This alternative ruling should be adequately detailed to
provide this court with holdings that may either be sustained or vacated should
this court (or a higher court) determine that Dr. Sladky’s testimony should not
have been considered at all in this case once the disclosures regarding Dr. Sladky
had been provided by the Secretary to the special master. In the unique
circumstances of this case, it would be inefficient to further delay proceedings
with another remand to the special master should this court find manifest error in
the special master’s level of reliance on the opinions of Dr. Sladky.14
CONCLUSION
For all of the above-stated reasons, the court remands this case to the special
master so that his credibility and reliability determinations, as well as his holdings
regarding causation, are clearly presented for review. Specifically, for this court
12/ A distinction should be drawn between the content of Dr. Sladky’s opinions, which
may match the special master’s view of the case, and the credibility of Dr. Sladky as an expert
who provided two expert reports and testimony in this case. In essence, the question of
credibility focuses on whether Dr. Sladky was a reliable source of expert opinion in this case, not
whether his opinions, as buttressed by other expert opinion and evidence, were persuasive on
particular issues. See Opin. at 7 (“The failure to disclose this important information bears on
[Dr. Sladky’s] credibility and reliability as an expert witness.”) (citations omitted).
13/ The special master may choose to revise his substantive rulings in this case based on
his clarified credibility rulings, or may re-issue the substantive rulings of the opinion with only
minor modifications which clarify the sections discussing the credibility of witnesses and the
reliability of expert opinion in this case.
14/ The court issues no holding here as to the appropriateness of any particular level of
reliance on Dr. Sladky’s opinions. It is the potential for a ruling requiring the exclusion of Dr.
Sladky’s opinions and testimony that militates for an alternative finding on causation.
23

Case 1:05-vv-00626-RHH Document 212 Filed 06/16/14 Page 24 of 24
to determine whether or not the special master’s evidentiary rulings regarding Dr.
Sladky’s opinions were manifestly erroneous, the special master must follow the
instructions for remand provided in this opinion. See, e.g., Piscopo, 66 Fed. Cl. at
53 (“Determinations as to the qualification of experts and the admissibility of their
testimony, including an evaluation of whether the opinion is reliable and relevant,
are generally within the discretion of a trial judge, and are reviewed for an abuse
of discretion, [and] only overturned if manifestly erroneous.”) (citations omitted).
The court cannot undertake a review of the special master’s ultimate ruling on
entitlement without the clarifications specified in this opinion.
Accordingly, it is hereby ORDERED that
(1) Petitioner’s Motion for Review, filed December 19, 2013, is
GRANTED;
(2) The decision of the special master, filed November 19, 2013, is SET
ASIDE and VACATED;
(3) This case is REMANDED to the special master, pursuant to Vaccine
Rule 27(c), for proceedings in accordance with the principles of law
and the instructions set forth in this opinion; and
(4) The parties shall separately FILE any proposed redactions to this
opinion, with the text to be redacted clearly marked out or otherwise
indicated in brackets, on or before June 6, 2014.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
24

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_05-vv-00626-2
Date issued/filed: 2015-05-06
Pages: 29
Docket text: JUDGE VACCINE REPORTED OPINION re: 223 Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Judge Lynn J. Bush. (kh) Copy to parties.
--------------------------------------------------------------------------------
Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 1 of 29
In the United States Court of Federal Claims
No. 05-626 V
(Filed May 6, 2015)1
* * * * * * * * * * * * * * *
JESSIE CONTRERAS, *
* National Childhood Vaccine
Petitioner, * Injury Act of 1986, 42 U.S.C.
* §§ 300aa-1 to -34 (2012);
v. * Review of Credibility
* Determination; Deferential
SECRETARY OF HEALTH AND * Review of the Fact Findings of
HUMAN SERVICES, * the Special Master.
*
Respondent. *
* * * * * * * * * * * * * * *
Jeffrey S. Pop, Beverly Hills, CA, for petitioner. Kristina E. Grigorian,
Beverly Hills, CA, of counsel.
Linda S. Renzi, United States Department of Justice, with whom were Joyce
R. Branda, Acting Assistant Attorney General, Rupa Bhattacharyya, Director,
Vincent J. Matanoski, Deputy Director, Voris E. Johnson, Jr., Assistant Director,
Washington, DC, for respondent.
________________________________
OPINION AND ORDER
________________________________
BUSH, Senior Judge.
1/ Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of
Federal Claims, this Opinion and Order was initially filed under seal on April 17, 2015. Pursuant
to ¶ 4 of the ordering language, the parties were to propose redactions of the information
contained therein on or before May 1, 2015. No proposed redactions were submitted to the court.

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 2 of 29
Now pending before the court is petitioner’s motion for review of the
special master’s decision upon a second remand from this court, see Contreras v.
Sec’y of Health & Human Servs., No. 05-626V, 2014 WL 8098606 (Fed. Cl. Spec.
Mstr. Oct. 24, 2014) (Contreras V),2 which denied Jessie Contreras’s petition for
compensation under the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-1 to -34 (2012) (the Vaccine Act).3 Under the standard of review
applicable here, the special master’s denial of petitioner’s entitlement to
compensation under the Vaccine Act survives review. For this reason, the court
denies petitioner’s motion for review filed November 21, 2014.
BACKGROUND
I. Factual History
Along with Contreras V, prior decisions in this case provide a factual
background for Jessie’s alleged vaccine injury of transverse myelitis (TM) and
Guillain-Barré Syndrome (GBS). See, e.g., Contreras v. Sec’y of Health & Human
Servs., 116 Fed. Cl. 472 (2014) (Contreras IV); Contreras v. Sec’y of Health &
Human Servs., No. 05-626V, 2013 WL 6698382 (Fed. Cl. Spec. Mstr. Nov. 19,
2013) (Contreras III), vacated, 116 Fed. Cl. 472 (2014); Contreras v. Sec’y of
Health & Human Servs., 107 Fed. Cl. 280 (2012) (Contreras II); Contreras v.
Sec’y of Health & Human Servs., No. 05-626V, 2012 WL 1441315 (Fed. Cl. Spec.
Mstr. Apr. 5, 2012) (Contreras I), vacated, 107 Fed. Cl. 280. The alleged injury
occurred in 2003 when Jessie was thirteen, approximately twenty-four hours after
Jessie received inoculations containing the hepatitis B vaccine and the tetanus-
diptheria vaccine. Jessie is now almost twenty-five years of age. The court
reserves further discussion of the factual background of this case for the analysis
section of this opinion.
II. Procedural History
2/ The court cites not to the Westlaw version of the special master’s opinion on remand,
but follows the practice of the parties and cites to the opinion version (Contreras V or Opin.)
available on this court’s website.
3/ Hereinafter the court will refer to Mr. Contreras as “petitioner” or “Jessie,” because he
was thirteen years old at the time of his alleged vaccine injury.
2

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 3 of 29
In Contreras I, the special master denied petitioner entitlement to
compensation under the Vaccine Act. In Contreras II, this court vacated that
opinion and remanded the case to the special master for a revised causation
analysis. In Contreras III, the special master issued a revised causation analysis
which again denied petitioner entitlement to compensation. Before the special
master issued his decision, however, on May 1, 2013 the Secretary filed a status
report revealing previously undisclosed information regarding one of respondent’s
experts, Dr. John T. Sladky, M.D. The general nature of the information
concerned alcohol abuse and the suspension of Dr. Sladky’s license to practice
medicine. Dr. Sladky carefully avoided revealing this negative information in
documents he supplied to the court and in his testimony before the special master.4
In Contreras IV, in light of the recently-divulged information regarding Dr.
Sladky, the court again remanded this case to the special master in order to obtain
three clarifications of his fact findings as to Jessie’s entitlement to compensation
under the Act. These clarifications required by the court were set forth in the
“Instructions for Remand” section of Contreras IV:
(1) The special master must address Dr. Sladky’s
credibility and reliability in light of the consistent pattern
of misrepresentations by Dr. Sladky in his work as an
expert for respondent, and provide an unambiguous
estimation of Dr. Sladky’s credibility and reliability as an
expert.
(2) The special master must compare Dr. Sladky’s
credibility to the credibility of the experts for petitioner
and the witnesses testifying for petitioner. These
clarified credibility determinations should then be
integrated into the special master’s decision in a manner
that presents a clear ruling on entitlement for this court’s
review.
(3) The special master must present an alternative ruling
on causation which completely disregards all of Dr.
Sladky’s opinions and testimony.
4/ A full recitation of Dr. Sladky’s misleading misrepresentations and lack of candor, in
this Vaccine Act case and in others, is provided in Contreras IV and Contreras V.
3

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 4 of 29
Contreras IV, 116 Fed. Cl. at 484 (formatting slightly altered and footnotes
omitted). The special master’s opinion in Contreras V is structured to respond to
these three questions on remand. See Opin. at 2, 13.
DISCUSSION
I. Standard of Review
This court has jurisdiction to review the decision of a special master in a
Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court
of Federal Claims reviews the decision of the special master to determine if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.
Cir. 2008) (quoting 42 U.S.C. § 300aa-12(e)(2)(B) and citing Althen v. Sec’y of
Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir. 2005)) (alteration in
original). This court uses three distinct standards of review in Vaccine Act cases,
depending upon which aspect of a special master’s judgment is under scrutiny:
These standards vary in application as well as degree of
deference. Each standard applies to a different aspect of
the judgment. Fact findings are reviewed . . . under the
arbitrary and capricious standard; legal questions under
the “not in accordance with law” standard; and
discretionary rulings under the abuse of discretion
standard.
Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed.
Cir. 1992).
The third standard of review, abuse of discretion, is applicable when the
special master excludes evidence or otherwise limits the record upon which he
relies. See id. As this court has stated, the third standard applies to the special
master’s evidentiary rulings, including those regarding the qualifications of an
expert:
Notably, such [discretionary] rulings include
determinations regarding the qualification of expert
4

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 5 of 29
witnesses and the reliability of expert testimony.
Piscopo v. Sec’y of Health & Human Servs., 66 Fed. Cl.
49, 53 (2005); see [Gen. Elec. Co. v. Joiner, 522 U.S.
136, 142-43 (1997)] (holding that “abuse of discretion is
the proper standard of review of a [trial] court’s
evidentiary rulings,” including determinations regarding
the reliability of expert testimony under [Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993))];
[Terran ex rel. Terran v. Sec’y of Health & Human
Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999)] (reviewing
for abuse of discretion the Special Master’s decision to
reject as unreliable the testimony of the petitioner’s
expert). Determinations subject to review for abuse of
discretion must be sustained unless “manifestly
erroneous.” Piscopo, 66 Fed. Cl. at 53; see Milmark
Servs., Inc. v. United States, 731 F.2d 855, 860 (Fed. Cir.
1984) (holding that decisions that lie within the trial
court’s discretion are to be sustained unless “manifestly
erroneous”).
Jarvis v. Sec’y of Dep’t of Health & Human Servs., 99 Fed. Cl. 47, 59 (2011).
Thus, a special master’s determination as to the reliability of expert witness
testimony is reviewed under the abuse of discretion, or manifestly erroneous,
standard. Terran, 195 F.3d at 1316 (citing Burns v. Sec’y of Dep’t of Health &
Human Servs., 3 F.3d 415, 416-17 (1993)); Jarvis, 99 Fed. Cl. at 59. The United
States Supreme Court has also stated that a fact-finder’s decision to admit or
exclude expert testimony is reviewed for abuse of discretion, and that this review
is deferential. Joiner, 522 U.S. at 143 (citing Koon v. United States, 518 U.S. 81,
98-99 (1996)).
On the particular topic of a fact-finder’s determination as to the credibility
of a testifying witness, the United States Court of Appeals for the Federal Circuit
has often stated that such determinations are “‘virtually unreviewable.’” E.g.,
Bradley v. Sec’y of Dep’t of Health & Human Servs., 991 F.2d 1570, 1575 (Fed.
Cir. 1993) (quoting Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986)). The court has found no authority, however, which states that a credibility
determination is immune from review, particularly where, as here, extrinsic
5

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 6 of 29
evidence has subsequently been disclosed which shows a lack of candor on the
part of an expert witness. For this reason, the court reviews the special master’s
determinations regarding Dr. Sladky’s credibility and the reliability of Dr.
Sladky’s expert opinions for manifest error.
II. Analysis
As a threshold matter, the court examines the scope of the remand ordered
by Contreras IV, which appears to have created, or at least to have contributed to,
some confusion. See Pet’r’s Mot. at 1 n.1 (stating that the “procedural state of the
case is unclear”); Resp’t’s Resp. at 7 n.4 (arguing that some of petitioner’s
arguments are “beyond the scope of the Court’s remand”). Contreras IV clearly
indicated, however, that both the special master’s denial of entitlement and his
assessment of the credibility and reliability of medical opinions are within the
scope of the latest remand. See Contreras IV, 116 Fed. Cl. at 484 (requiring
clarified credibility/reliability determinations and an integration of these
determinations into the special master’s entitlement decision, as well as an
alternative finding on entitlement which excludes Dr. Sladky’s evidence).
Because Contreras V does not restate the special master’s entitlement decision set
forth in Contreras III, but merely references that decision as the embodiment of
the special master’s entitlement decision, the parties were not prevented from
contesting the lengthy entitlement analysis which was provided by Contreras III.
See Contreras V, at 37 (“For the reasons explained in [this opinion], Dr. Sladky is
sufficiently credible and sufficiently reliable that his evidence should remain in the
record. Thus, the outcome of [Contreras III], a denial of compensation, does not
differ.”). Therefore, even though Contreras III was vacated by this court, the
analysis contained in that decision was incorporated into Contreras V by the
special master, and that entitlement decision remains within the scope of the
court’s remand.
In light of the foregoing, the scope of the remand ordered by Contreras IV
included, at least, the following three elements: (1) clarified credibility/reliability
determinations for the medical opinions offered by the parties’ experts and
witnesses in this case; (2) the entitlement decision set forth in Contreras III
(supplemented by the clarifications of the special master’s credibility/reliability
determinations set forth in Contreras V); and, (3) the alternative entitlement
decision rendered in Contreras V which excluded Dr. Sladky’s evidence. These
6

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 7 of 29
three aspects of Contreras III and Contreras V were set forth as the proper subject
for petitioner’s motion for review and the Secretary’s response brief. These three
topics also provide the general outline for the court’s opinion here.
A. The Special Master’s Reliance on Dr. Sladky’s Medical Opinions
Was an Abuse of Discretion
1. Credibility/Reliability in the Context of Later-Disclosed
Misrepresentations and Lack of Candor
The court acknowledges, as does the special master in Contreras V, that
there is no binding precedent from the Federal Circuit as to the proper course of
action to be followed when an expert’s lack of candor and misrepresentations
regarding his credentials are discovered after a bench trial or hearing. Opin. at 20.
Nor is the court aware of any precedent from the Supreme Court that directly
addresses this specific question. The special master examined a number of cases
for guidance and appears particularly influenced by Elcock v. Kmart Corp., 233
F.3d 734 (3d Cir. 2000). Opin. at 17-18. The court does not find Elcock
particularly helpful because much of the instruction in that opinion is focused on
the trial court’s limited role in assisting a jury to find facts. See 233 F.3d at 751
n.8 (warning that an aggressive approach to assessing the credibility of an expert
might “improperly impinge on the province of the ultimate fact-finder, to whom
issues concerning the general credibility of witnesses are ordinarily reserved”).
Where there is no jury, as here, the credibility/reliability question must be
approached differently.
The Secretary cited to United States v. Shaffer Equip. Co., 11 F.3d 450,
458-59 (4th Cir. 1993) when she revealed Dr. Sladky’s transgressions, Opin. at 10,
and the court finds this case to be more helpful. Although the special master noted
differences between the circumstances in Shaffer and the circumstances in this
case (in that case the government’s attorneys unethically delayed the revelation of
their deceitful witness problem), Shaffer offers almost exactly the same underlying
factual scenario as this case – an important witness is discovered to have
repeatedly misrepresented his credentials to his employer and various judicial
officers. A brief examination of Shaffer is instructive.
The basic fact scenario in Shaffer involved a key government employee who
7

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 8 of 29
directed environmental clean-up efforts at a polluted site, oversaw the creation of
the administrative record of the clean-up efforts, and testified in support of the
government’s claims seeking to recoup clean-up costs from the landowners. 11
F.3d at 453-55. This employee lied about his educational credentials on his
government employment application, his resume, and in depositions or testimony
in various lawsuits. Id. at 454-55. The trial court, finding that the government’s
attorneys had violated their duty of candor to the court by not disclosing the
credibility problem for this witness, dismissed the government’s claims in their
entirety. Id. at 456.
On appeal, the United States Court of Appeals for the Fourth Circuit first
discussed the fundamental requirement for truth in court proceedings:
Our adversary system for the resolution of
disputes rests on the unshakable foundation that truth is
the object of the system’s process which is designed for
the purpose of dispensing justice. However, because no
one has an exclusive insight into truth, the process
depends on the adversarial presentation of evidence,
precedent and custom, and argument to reasoned
conclusions – all directed with unwavering effort to
what, in good faith, is believed to be true on matters
material to the disposition. Even the slightest
accommodation of deceit or a lack of candor in any
material respect quickly erodes the validity of the
process. As soon as the process falters in that respect,
the people are then justified in abandoning support for
the system in favor of one where honesty is preeminent.
Shaffer, 11 F.3d at 457. In the case before the Fourth Circuit, the government’s
key employee was “responsible for making” the administrative record of the clean-
up, and his “credentials, capability and credibility [we]re relevant to the
examination of the administrative record in this case.” Id. at 460. The appeals
court concluded that “[t]he fact that the government’s agent in charge of
monitoring expenses and selecting responses [to the presence of hazardous waste]
filed fraudulent documents with the federal government and perjured himself
repeatedly in connection with his federal employment is, we think, of primary
8

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 9 of 29
relevance to an examination of the integrity and reliability of the administrative
record.” Id. Thus, this employee’s credibility was material to the outcome of the
dispute before the trial court. Id. at 461.
The appeals court did not agree with the trial court, however, that the
extreme sanction of dismissal was the appropriate resolution with regard to the
credibility and lack of candor problems in the government’s presentation of its
case. Instead, the circuit court’s approach was to caution that a trial court was
required to not only exercise its inherent power to dismiss with restraint, but that it
could only exercise that power after considering several factors. These factors,
which in the court’s view evince an obvious general applicability to situations in
which candor to a court has been lacking, were set forth by the circuit court as
follows:
(1) the degree of the wrongdoer’s culpability; (2) the
extent of the client’s blameworthiness if the wrongful
conduct is committed by its attorney, recognizing that we
seldom dismiss claims against blameless clients; (3) the
prejudice to the judicial process and the administration
of justice; (4) the prejudice to the victim; (5) the
availability of other sanctions to rectify the wrong by
punishing culpable persons, compensating harmed
persons, and deterring similar conduct in the future; and
(6) the public interest.
Shaffer, 11 F.3d at 462-63. The court notes, in particular, the Fourth Circuit’s
interest in the deterrence of similar conduct in the future, as well as its interest in
safeguarding public access to judicial proceedings untainted by deception.
The special master here does not appear to have considered either
deterrence or the public interest in his credibility and reliability findings regarding
Dr. Sladky, or in his decision to rely upon Dr. Sladky’s evidence in this case. Dr.
Sladky’s evidence on every topic, save his credentials, has been accorded full and
undiminished weight in Contreras III and Contreras V.5 According to the special
5/ The special master was obliged by the remand to also provide an alternative finding on
(continued...)
9

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 10 of 29
master’s opinion:
Dr. Sladky satisfies the minimal standard for credibility. Dr.
Sladky also offered opinions based upon reliable methodologies. His
opinions, therefore, remain in the record and, to the extent that Mr.
Contreras has argued that his testimony should be stricken, Mr.
Contreras’s request is denied.
Opin. at 31. In the court’s view, the special master’s reliance on Dr. Sladky’s
testimony and opinions constitutes manifest error and an abuse of discretion.
In his latest opinion, the special master ably surveys cases which show the
range of measures that a judicial officer may take in response to the disclosure of
negative information reducing a witness’s credibility. Opin. at 16-26. It is
difficult to establish a bright-line rule for Vaccine Act proceedings from these
cases, for a number of reasons. Some of the cases discussed by the special master
address the admissibility of witness testimony, and give basic guidance as to when
a trial judge should permit a witness with credibility problems to testify in front of
a jury. See, e.g., In re Heparin Prods. Liab. Litig., 803 F. Supp. 2d 712, 752 (N.D.
Ohio 2011) (admitting some testimony and excluding other testimony by a
medical expert and indicating that the trial judge would “provide a cautionary
instruction informing the jury that Dr. Burch lied under oath in this proceeding
and others about some aspects of his credentials, and his opinions are therefore
subject to greater scrutiny”). Because a special master is the ultimate fact-finder
and does not instruct a jury, these evidentiary rulings in the context of jury trials
are not as relevant to the issue presented in this case.
Even when a bench trial ruling regarding a witness’s below-average
credibility is presented in the cases cited by the special master, it is impossible to
discern a rule for solving the problem of an expert witness who consistently
misrepresents his credentials. In an unreported decision cited by the special
master, a United States District Court was adjudicating a damages dispute after
liability had already been decided when one of the damages experts
5(...continued)
entitlement which excluded Dr. Sladky’s evidence. For this alternative finding, the special
master’s assessment of Dr. Sladky’s credibility and reliability was irrelevant.
10

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 11 of 29
misrepresented his recently-expired credential. Pikas v. Williams Cos., No. 8-cv-
101-GKF-PJC, 2013 WL 622234, at *1 (N.D. Okla. Feb. 20, 2013). The district
court refused to strike the expert’s declarations, without much explanation, other
than to state that his opinions were “helpful to understanding the issues before the
court.” Id. at *2. As the special master noted here, not only did Dr. Sladky
repeatedly misrepresent that he was currently licensed in Pennsylvania (although
that license had expired almost ten years before the filing in this case of his
inaccurate curriculum vitae), he also repeatedly misled a number of special
masters as to his licensure in Georgia and his medical practice. Opin. at 24-26.
The court does not view Pikas as persuasive authority – it presents neither a
thorough analysis nor an analogous fact-pattern.
The court finds more persuasive authority in In re Unisys Sav. Plan Litig.,
173 F.3d 145 (3d Cir. 1999), a precedential decision also cited by the special
master. The United States Court of Appeals for the Third Circuit affirmed the trial
court’s decision to exclude expert testimony because “[w]e would be hard pressed
to require a District Court judge sitting in a non-jury case who credibly and with
reason found that he could not believe a witness to nevertheless hear the witness’s
direct examination, cross-examination, and rebuttal examination in an extended
trial when he knew that he would only reject it as unbelievable.” Id. at 157. The
trial judge could not believe the expert because his credibility and reliability had
been diminished for a number of reasons, including the provision of conflicting
testimony regarding his credentials. Id. at 156-57. It is important to note that the
Third Circuit in Unisys appears to have found rough equivalence among the terms
“credibility,” “reliability,” “believability” and “weight to be accorded expert
testimony,” because such terms are used interchangeably in its analysis. Id. at
156-58. The court finds this analytical construct persuasive, and concludes that an
expert witness who is not credible does not, as a general rule, provide reliable
expert testimony.
Even if a pattern of misrepresentation is seen by the fact-finder as less
consequential in its effect on an expert witness’s credibility and reliability, the
court cannot read persuasive caselaw as permitting a fact-finder to brush past the
credibility problem merely because the only documented misrepresentations in the
record were on the subject of the expert’s qualifications. In similar cases, a
rational approach is to diminish the weight of that expert’s testimony or to subject
that expert’s testimony to stricter scrutiny. See, e.g., Harkabi v. SanDisk Corp.,
11

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 12 of 29
891 F. Supp. 2d 527, 539 (S.D.N.Y. 2012) (noting that an expert, Dr. Johnson, had
twice exaggerated her credentials in that litigation and stating that “this Court
discounts Dr. Johnson’s opinions and views them skeptically”); Roberts v. Sec’y of
Health & Human Servs., No. 09-427V, 2013 WL 5314698, at *9 (Fed. Cl. Spec.
Mstr. Aug. 29, 2013) (finding the opinions of Dr. Sladky to be less reliable and of
less weight than those of the petitioners’ experts due, in part, to his lack of candor
regarding his licensure problems). The court sees no sign that the special master
in this case discounted the substantive testimony and opinions provided by Dr.
Sladky, despite being confronted with far more information regarding Dr. Sladky’s
pattern of misrepresentations as to his credentials than had been presented to the
special master in Roberts.
In another Vaccine Act case, the chief special master thoroughly explored
the issue of Dr. Sladky’s credibility and reliability, as well as the pattern of
misrepresentations in his work for respondent in a number of cases, when she
discussed two expert “witnesses with ethical challenges.” Raymo v. Sec’y of
Health & Human Servs., No. 11-654V, 2014 WL 1092274, at *14 (Fed. Cl. Spec.
Mstr. Feb. 24, 2014). The chief special master carefully examined the importance
of truthfulness as a factor in credibility and reliability:
Standing alone, the basis for Dr. Sladky’s
disciplinary action might not affect the reliability of his
expert opinions. However, his failure to disclose the
disciplinary action to respondent, his authoring of expert
opinions while he did not have an active medical license,
and the failure to reflect his voluntary leave from
medical practice due to a substance abuse problem on the
[curriculum vitae] filed in this case all cast doubt about
his credibility as a witness.
Id. at *15. The court notes that the chief special master, like the Third Circuit in
Unisys, treated credibility and reliability as related and roughly equivalent
concepts. See id. at *13-15 (employing the terms credibility and reliability
interchangeably).
The chief special master in Raymo concluded that she must exclude Dr.
Sladky’s opinions:
12

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 13 of 29
Although both Dr. Becker and Dr. Sladky are well
qualified to opine, I cannot rely on their opinions. I
administer an oath to witnesses that requires that they tell
the whole truth. Neither Dr. Becker nor Dr. Sladky told
the whole truth. Both demonstrated a lack of candor
that, although not related directly to the substance of
their causation opinions, reflect their willingness to, at
the very least, shade the truth. In the case of Dr. Becker,
he attempted to pass off another’s work as his own. In
the case of Dr. Sladky, it appears that he so feared the
loss of his position and income as a case reviewer for
respondent that he withheld facts concerning his medical
license suspension. I thus do not rely at all on their
expert opinions in this case.
2014 WL 1092274, at *16. The court notes that the chief special master in Raymo
based her decision to exclude Dr. Sladky’s opinions on her knowledge of a limited
number of misrepresentations by Dr. Sladky, whereas the special master in this
case has now reviewed a more complete record yet he continues to rely on Dr.
Sladky’s opinions.
Having reviewed the most persuasive cases discussing, in a non-jury setting,
the significance of: (1) truthfulness in judicial proceedings; (2) lack of candor to
the court; (3) misrepresentations of an expert witness’s credentials; (4) the
importance of deterrence of similar behavior; and, (5) the close connection
between credibility and reliability, the court believes that in the circumstances of
this case it was manifest error for the special master to fail to exclude Dr. Sladky’s
evidence, or at the very least, to significantly discount the reliability and weight of
Dr. Sladky’s opinions. Although a variety of meaningful responses to Dr.
Sladky’s “ethical challenges” might have been appropriate, it was an abuse of
discretion to completely ignore those ethical challenges in weighing the reliability
of Dr. Sladky’s opinions. See Opin. at 27 n.17 (“The reliability of Dr. Sladky’s
opinion does not take into account the lack of disclosures that diminish his
credibility.”). In other words, the special master’s conclusions that “Dr. Sladky
satisfies the minimal standard for credibility,” id. at 31, and that Dr. Sladky’s
opinions on diagnosis, timing, and causation were reliable, id. at 29-31, constitute
manifest error.
13

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 14 of 29
2. Credibility and Reliability Cannot Be Viewed as Distinct
and Severable Concepts
The special master analyzed Dr. Sladky’s credibility and reliability
separately, and treated these two terms as distinct aspects of an expert’s evidence.
It appears that the special master believes that an expert witness can be judged to
be not credible, but can at the same time be judged to be a source of reliable expert
testimony. The court provides here a few excerpts from Contreras V to illustrate
the special master’s logical construct.
First, after a lengthy discussion of Dr. Sladky’s lack of candor with the
Secretary and this court, the special master notes:
It is relatively easy to find that Dr. Sladky feared
answering questions about why he lost his license and
his fear motivated him to do what he could to avoid
answering those questions. What Dr. Sladky did to
protect himself was to remain silent. This was an error
on Dr. Sladky’s part and this error appears to be
intentional.
Opin. at 25 (discussing one “factor weighing against Dr. Sladky’s credibility”).
Nonetheless, the special master balanced Dr. Sladky’s credibility “negatives” with
what he apparently viewed as credibility “positives”:
Given that Dr. Sladky testified in Mr. Contreras’s
case, it is appropriate to review the remainder of his
testimony to look for places when he could be viewed
. . . as shading the truth. . . . The remainder of Dr.
Sladky’s testimony should be considered in evaluating
his credibility because special masters should consider
the entire record in making a decision.
Does Dr. Sladky’s substantive testimony
demonstrate other examples of presenting something
other than the truth, the whole truth, and nothing but the
truth? Apart from the aspect of his testimony concerning
his personal qualifications, Dr. Sladky appeared
14

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 15 of 29
accurate, honest, and forthcoming.
Id. at 26 (citations omitted). The court notes that this is an odd test for credibility,
which apparently calculates whether the number of instances of known deceptions
are outweighed by instances of what appear to be truthful and accurate statements.
The special master cites as authority for this approach the dissent rejected in
Unisys. Id.
After recounting elements in Dr. Sladky’s testimony which could be viewed
as favoring petitioner’s cause, the special master stated that “[f]or his substantive
opinions, Dr. Sladky appeared credible,” and that “[o]n the whole, Dr. Sladky’s
candor on substantive matters offsets his lack of disclosures regarding personal
matters.” Opin. at 27. The special master then concluded that “Dr. Sladky is
sufficiently credible that his testimony should be evaluated for its reliability.” Id.
In the court’s view, the first half of the credibility/reliability analysis in
Contreras V, which apparently gives Dr. Sladky a passing credibility score
because his misrepresentations as to his qualifications were outnumbered by
“forthcoming” statements interpreting medical science, is neither logical nor
grounded in persuasive authority. In Shaffer, for example, the government’s
attorneys, despite their ethical lapses, ceased to rely on their key witness once they
knew he had repeatedly lied about his credentials. 11 F.3d at 455. They clearly
had no expectation that the fact-finder would credit his testimony after his untruths
had been revealed. The court sees no logical reason why a pattern of
misrepresentation and lack of candor should be seen as a minor factor in the
determination of the credibility of a witness which can be overshadowed by
testimony which contains no apparent falsehoods.
In persuasive caselaw, courts typically consider an expert’s
misrepresentations as to his qualifications to be serious transgressions. See, e.g.,
In re Vioxx Prods., 489 F. Supp. 2d 587, 591-94 (E.D. La. 2007) (granting a new
trial because a testifying cardiologist with an expired board certification had
asserted that he was “board certified,” and commenting that the expert’s
“misrepresentation call[s] into question the Court’s acceptance of him as an expert
witness, [and] also sheds an unfavorable light upon his propensity for
truthfulness”). In a non-jury setting, where the judge or other judicial officer is the
ultimate finder of fact, such misrepresentations are a dominant factor in credibility
15

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 16 of 29
determinations, not a minor one. See, e.g., Bonar v. Dean Witter Reynolds, Inc.,
835 F.2d 1378, 1383-86 (11th Cir. 1988) (finding that where the testifying expert
for the prevailing party had perjured himself as to his qualifications, a lower court
had abused its discretion when it refused to vacate the portion of an arbitration
award which relied upon that expert’s testimony); In re WRT Energy Corp., 282
B.R. 343, 371 (Bkrtcy. W.D. La. 2001) (“The court cannot trust the word of an
expert witness who would brazenly lie about her credentials and then further lie
when caught. If she would lie about her academic credentials, there is no reason
to believe that she would not provide erroneous and/or misleading valuation
testimony if she believed it would benefit her client. The court, therefore, will not
ascribe any weight to the evidence supplied by [this expert].”). In cases which do
not involve juries, the court has found no authority for the proposition that a
judicial officer should establish his or her credibility determination by balancing
known lies or deceptions against representations which appear to be forthright.
Thus, the court finds the first half of the special master’s credibility/reliability
analysis to constitute manifest error and an abuse of discretion, because it runs
counter to reason and persuasive authority.
The court turns now to the special master’s assessment of the reliability of
the evidence provided by Dr. Sladky. As stated supra, the special master excluded
Dr. Sladky’s lack of candor and misrepresentations from the inquiry into the
reliability of Dr. Sladky’s evidence. Opin. at 27 n.17. Instead of clarifying the
impact of Dr. Sladky’s credibility problems upon the reliability of his evidence, as
this court attempted to request in its remand, the special master performed a
Daubert analysis of Dr. Sladky’s opinions provided in this case. Id. at 27. The
special master acknowledged that there is some imprecision in the use of the terms
credibility and reliability in Vaccine Act cases and elsewhere. Id. at 20 n.13
(citations omitted).
To the extent that the remand instructions in Contreras IV may have
contributed to the special master’s decision to divorce credibility from reliability,
the court regrets any ambiguity in that opinion. The court utilized both terms,
credibility and reliability, in its remand instructions because each of these terms is
present in precedential cases discussing the credibility of expert witnesses in the
Vaccine Program. See, e.g., Porter v. Sec’y of Health & Human Servs., 663 F.3d
1242, 1250 (Fed. Cir. 2011) (holding that “this court has unambiguously explained
that special masters are expected to consider the credibility of expert witnesses in
16

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 17 of 29
evaluating petitions for compensation under the Vaccine Act”); Broekelschen v.
Sec’y of Health & Human Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (noting
that a special master weighs both “the credibility of the experts and the relative
persuasiveness of their competing theories”) (citation omitted); Moberly ex rel.
Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1325-26 (Fed. Cir.
2010) (“Assessments as to the reliability of expert testimony often turn on
credibility determinations . . . .”) (citations omitted); Andreu ex rel. Andreu v.
Sec’y of Dep’t of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009)
(distinguishing credibility, as a measurement of candor, from the assessment of the
weight of scientific evidence). In light of the varying precedential formulations of
the credibility inquiry, the court included both credibility and reliability in its
instructions for remand so that no aspect of Dr. Sladky’s diminished credibility
would be overlooked by the special master. See Contreras IV, 116 Fed. Cl. at 484
(stating that “the special master must address Dr. Sladky’s credibility and
reliability in light of the consistent pattern of misrepresentations by Dr. Sladky in
his work as an expert for respondent, and provide an unambiguous estimation of
Dr. Sladky’s credibility and reliability as an expert”). The court also attempted to
explain the purpose of its request for a clarified credibility determination:
A distinction should be drawn between the content of Dr.
Sladky’s opinions, which may match the special master’s
view of the case, and the credibility of Dr. Sladky as an
expert who provided two expert reports and testimony in
this case. In essence, the question of credibility focuses
on whether Dr. Sladky was a reliable source of expert
opinion in this case, not whether his opinions, as
buttressed by other expert opinion and evidence, were
persuasive on particular issues.
Id. at 484 n.12.
In Contreras V, the special master concluded that Dr. Sladky’s diminished
credibility was not relevant to the determination of the reliability of Dr. Sladky’s
testimony and opinions. In Contreras III, he came to the opposite conclusion:
“The failure to disclose this important information [regarding Dr. Sladky’s
alcoholism and licensure problems] bears on [Dr. Sladky’s] credibility and
reliability as an expert witness.” 2013 WL 6698382, at *5 (citations omitted).
17

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 18 of 29
Perhaps this is merely a question of imprecision as to the meaning of the term
“reliability.” In the court’s view, once Dr. Sladky’s misrepresentations and lack of
candor came to light, the question necessarily became one of credibility and
reliability as these terms refer to trustworthiness, not as to the scientific legitimacy
of his opinions that might be tested through Daubert or other means.
The court cannot wholly separate credibility from reliability in this case. As
noted supra, courts generally find a strong connection between an expert’s
credibility and the reliability of that expert’s opinions; further, these
determinations are not unrelated to the question of how much weight should be
accorded to a particular expert’s opinion, or whether such an opinion is ultimately
found to be persuasive. E.g., Porter, 663 F.3d at 1250-51; Broekelschen, 618 F.3d
at 1347; Moberly, 592 F.3d at 1325-26; Unisys, 173 F.3d at 156-58; Harkabi, 891
F. Supp. 2d at 539; Raymo, 2014 WL 1092274, at *16; Roberts, 2013 WL
5314698, at *9. The court finds nothing in the special master’s assessment of Dr.
Sladky’s “reliability,” under Daubert, to redeem the special master’s determination
that Dr. Sladky “satisfies the minimal standard for credibility.” Opin. at 31.
3. The Special Master’s Credibility and Reliability
Determinations Cannot Stand
The abuse of discretion standard applicable here is highly deferential, as
noted supra. In the particular circumstances of this case, however, the court finds
that the special master failed to integrate a rational credibility determination into
his ruling on entitlement in Contreras III. It would have been rational to have
excluded Dr. Sladky’s evidence, as did the chief special master in Raymo. It could
have been rational to have considered Dr. Sladky’s evidence while assigning that
evidence diminished weight and greater scrutiny. The special master in this case
chose neither of these rational courses of action. Based on this court’s review of
relevant authority, and particularly in light of the need for deterrence of similar
behavior from experts guiding special masters in Vaccine Act cases, the court
finds that the special master’s credibility and reliability determinations in
Contreras V constitute manifest error and an abuse of discretion.
B. The Special Master’s Denial of Entitlement to Compensation in
Contreras III, Tainted by Unqualified Reliance on Dr. Sladky’s
Testimony and Opinions, Cannot Be Sustained
18

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 19 of 29
1. Dr. Sladky’s Testimony and Opinions Were Sufficiently
Important to the Result in Contreras III to Invalidate That
Ruling
If Dr. Sladky had been merely a peripheral witness in this litigation, the
special master’s unqualified (and inappropriate) reliance on Dr. Sladky’s
testimony and opinions for his entitlement ruling in Contreras III might have been
harmless error. But as the special master clearly shows in Contreras V, Dr.
Sladky’s testimony and opinions were considered for rulings on Jessie’s diagnosis,
Opin. at 39, 41; the timing of onset, id. at 44-47; the theory of causation, id. at 53-
56; and, albeit minimally, any logical sequence of cause and effect connecting
Jessie’s vaccinations to his alleged vaccine injury, id. at 57. Because Contreras
III and the special master’s findings on entitlement therein, as clarified by
Contreras V, rely on Dr. Sladky’s testimony and opinions as if he had no
credibility problems at all, the court finds that the entitlement ruling in Contreras
III is tainted by the special master’s manifest error and cannot be sustained.
2. Less Significant Errors in Contreras III and Contreras V
a. Diagnosis Not Required in Jessie’s Case
The special master’s causation analysis in Contreras I began with his
diagnosis of Jessie’s alleged vaccine injury; the special master found preponderant
evidence of a sole diagnosis of TM, not TM and GBS. Contreras I, 2012 WL
1441315, at *8. In Contreras II, this court opined that diagnosis by a special
master of an alleged vaccine injury is not appropriate except in limited
circumstances, none of which applied in this case. Contreras II, 107 Fed. Cl. at
293-95 (citing Locane v. Sec’y of Health & Human Servs., 685 F.3d 1375, 1381
n.3 (Fed. Cir. 2012); Lombardi v. Sec’y of Health & Human Servs., 656 F.3d 1343,
1351 (Fed. Cir. 2011); Broekelschen, 618 F.3d at 1346). In Contreras III, the
special master again began his causation analysis with a diagnosis of Jessie’s
alleged vaccine injury, although he asserted that his “finding that Mr. Contreras
did not suffer GBS appears to be in accord with this [court’s] instruction [in
Contreras II] because Dr. Lake (not the undersigned) diagnosed Mr. Contreras’s
illness.” Contreras III, 2013 WL 6698382, at *25 n.24. Although Dr. Lake never
testified and never submitted a report in this case, the special master relied on Dr.
Lake’s notes in Jessie’s medical records, among other sources of information, to
19

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 20 of 29
diagnose Jessie with TM, not TM and GBS.
The court restates here its concern regarding the special master’s threshold
inquiry into the diagnosis of Jessie’s alleged vaccine injury. In a typical Vaccine
Act case adding this threshold inquiry does not serve a useful purpose and may
actually cause significant harm:
If . . . the petitioner’s array of symptoms is diagnosed,
perhaps wrongly, by the special master, as an initial step
in the causation-in-fact analysis, that petitioner’s case
could be drastically compromised. The testimony
mustered by the petitioner might focus on a causation
mechanism that could persuasively link a vaccine to
petitioner’s proffered diagnosis, but that same testimony
might be unpersuasive as to causation of the diagnosis
assigned by the special master. The special master’s fact
findings as to the diagnosis of the petitioner’s illness,
under an overbroad reading of Broekelschen, would be
virtually unassailable upon review. The petitioner, in
essence, would be forced to prove causation-in-fact of an
illness diagnosed by the special master based on his
reading of the evidence.
Contreras II, 107 Fed. Cl. at 295. Once Contreras II issued, however, the
precedential landscape changed somewhat, and a threshold inquiry into diagnosis
was approved in another decision by the Federal Circuit. See Hibbard v. Sec’y of
Health & Human Servs., 698 F.3d 1355 (Fed. Cir. 2012). The court sees no
authorization in Hibbard for the type of causation analysis conducted here,
however.
In Hibbard, the Federal Circuit broached the diagnosis topic by first
summarizing three cases where a special master correctly conducted a threshold
diagnosis inquiry as a supplement to the causation inquiry set forth in Althen:
In previous cases, this court has sanctioned an approach
similar to the one taken in this case, in which a special
master has addressed the nature of the injury suffered
20

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 21 of 29
before addressing the question whether there is a viable
medical theory by which a vaccine can cause the injury
claimed by the petitioner. See Locane, 685 F.3d 1375;
Lombardi v. Sec’y of Health & Human Servs., 656 F.3d
1343 (Fed. Cir. 2011); Broekelschen v. Sec’y of Health &
Human Servs., 618 F.3d 1339 (Fed. Cir. 2010).
In each of those cases, there was a dispute as to the
nature of the petitioner’s injury, and in each case the
special master’s findings on the nature of the injury that
the petitioner incurred were sufficient to resolve the case
because the special master found that the injury the
petitioner incurred was not one that could have been
vaccine-induced according to the petitioner’s medical
theory.
Hibbard, 698 F.3d at 1365. Thus, Hibbard teaches that in some cases where a
significant dispute as to diagnosis has been presented by the parties, and where a
specific diagnosis is sufficient to resolve the case, a special master may diagnose
the alleged vaccine injury.
Here, however, as this court stated in Contreras II, there was no significant
dispute as to the type of illness Jessie suffered, and a diagnosis of TM versus TM
plus GBS was not considered by the parties, or even by the special master, to be
crucial to the resolution of this case. Yet the special master apparently believes
that even in these circumstances it was appropriate for the special master to
diagnose Jessie’s alleged vaccine injury before conducting the causation analysis
required by Althen. The court disagrees, and turns to Hibbard for further
guidance.
In Hibbard, the causation analysis was distinguishable from the analysis
required in this case. Although the parties agreed that Ms. Hibbard’s chronic
nerve condition was dysautonomia, they disagreed as to whether an intermediate
injury, autonomic neuropathy, linked the vaccine to her chronic condition.
Hibbard, 698 F.3d at 1358. In such a circumstance, where the damage caused by
autonomic neuropathy was posited to have caused the chronic condition of
dysautonomia, the special master rightly inquired as to whether Ms. Hibbard had
ever experienced autonomic neuropathy. Her entire medical theory depended on
21

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 22 of 29
that crucial intermediate step:
The issue that the special master addressed in this
case is whether Ms. Hibbard suffers from autonomic
neuropathy. As [her expert’s] report and testimony made
clear, that was a necessary component of her theory of
vaccine-induced injury. Therefore, even assuming the
medical plausibility of Ms. Hibbard’s theory of causation
– that the vaccine triggered an immune response that
damaged her autonomic nerves – her failure to show that
she had autonomic neuropathy would be fatal to her case.
Hibbard, 698 F.3d at 1365. Here, in contrast, the theory advanced by Jessie’s
experts did not rely on a crucial, intermediate injury in whose absence Jessie’s
petition would necessarily have been dismissed.
For the reasons stated in Contreras II, and in light of the Federal Circuit’s
decision in Hibbard, the court continues to believe that, except in unusual
circumstances, a threshold inquiry by the special master into the diagnosis of the
alleged vaccine injury is not appropriate. Most cases can be decided through the
Althen framework, by establishing through a preponderance of the 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, 418 F.3d at 1278. The Althen framework, often referred to as the three
Althen prongs, allows the typical petitioner to attempt to prove his or her own
prima facie case, and does not require that the petitioner defend against the
diagnostic fact-finding of a special master. The court does not believe that a
threshold inquiry into the specific diagnosis of Jessie’s alleged vaccine injury was
appropriate in this case.6
6/ By itself, this error is harmless, because the special master has made it clear that his
(continued...)
22

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 23 of 29
b. Althen Prong One Burden Was Inappropriately
Heightened
Althen prong one examines whether a petitioner has established “a medical
theory causally connecting the vaccination and the injury.” 418 F.3d at 1278. The
special master did not make any findings of fact regarding Althen prong one in
Contreras I, but was required to do so by Contreras II. In Contreras III, the
special master found that petitioner’s evidence did not establish, by a
preponderance of the evidence, the reliability of the causation mechanism posited
by petitioner’s experts. See Contreras III, 2013 WL 6698382, at *39 (“Mr.
Contreras has not provided preponderant evidence that demonstrates the reliability
of the proposition that the hepatitis B vaccine can cause transverse myelitis (or
GBS) via molecular mimicry with respect to the Daubert factors.”). In Contreras
V, the special master again concluded that petitioner “failed to show the
persuasiveness of [his expert’s] theory as measured against the Daubert factors.”
Opin. at 56.
In Contreras V, the special master expounded upon his ruling on Althen
prong one, noting, in particular, that the petitioner’s expert Dr. Steinman relied
upon a causation theory founded on the mechanism of “molecular mimicry,” a
theory which has some credence in the scientific community. Opin. at 56 (noting
that Dr. Steinman’s theory is a “plausible construct”); see also Contreras III, 2013
WL 6698382, at *34 (“Molecular mimicry appears in articles published in highly
regarded medical journals and Dr. Steinman has written some of these articles.”).
The special master also mentioned that petitioner might have buttressed the
persuasiveness of his expert’s theory with evidence of testability and peer review,
6(...continued)
findings as to the timing prong of Althen apply whether Jessie experienced TM, or TM and GBS.
See Contreras V, at 43 (noting that the opinion of respondent’s expert regarding the timing issue,
which was ultimately the most persuasive evidence considered by the special master, would not
change if Jessie had TM and GBS, as opposed to TM only); Contreras III, 2013 WL 6698382, at
*25 (stating that “the medically-acceptable time-frame for the onset of transverse myelitis after
vaccination would remain an issue even if Mr. Contreras were found to suffer from GBS in
addition to transverse myelitis”); see also Contreras I, 2012 WL 1441315, at *8 (“It is important
to emphasize that the same result would be reached if Mr. Contreras suffered from both
transverse myelitis and Guillain-Barré syndrome. The outcome of Mr. Contreras’s case depends
on the interval between his vaccinations and the onset of his disease, not on the specific
disease.”).
23

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 24 of 29
but that such evidence was lacking in this case. Opin. at 53. In the end, the
special master ruled that “plausibility does not satisfy Mr. Contreras’s burden” on
Althen prong one. Id. at 56 (citing Moberly, 592 F.3d at 1322).
Plausibility, however, in many cases may be enough to satisfy Althen prong
one. See, e.g., Hibbard, 698 F.3d at 1365 (stating that under Althen prong one
“Ms. Hibbard had to show . . . the medical plausibility of her theory of
causation”); [M.S.B.] ex rel. Bast v. Sec’y of Health & Human Servs., 117 Fed. Cl.
104, 119 (2014) (stating that the burden for Althen prong one is for the petitioner
to “put forth a biologically plausible theory explaining how the vaccines could
have caused the sustained injury”); Hirmiz v. Sec’y of Health & Human Services,
No. 06-371V, 2014 WL 4638375, at *15 (Fed. Cl. Spec. Mstr.) (describing the
burden under Althen prong one as “petitioners’ burden of demonstrating a
plausible medical theory”), aff’d, 119 Fed. Cl. 209 (2014). Althen prong one
merely demands a threshold level of scientific reliability for an expert’s proposed
biological mechanism which can cause a vaccine injury.
Any reliance on Moberly by the special master to reject plausible biological
mechanisms, Opin. at 56 (citing Moberly, 592 F.3d at 1322), is misplaced. The
discussion of plausibility in Moberly does not focus on Althen prong one
specifically, and has no relevance to the question of whether a plausible medical
theory satisfies Althen prong one. Instead, the Federal Circuit in Moberly simply
required “some indicia of reliability” regarding the medical theory advanced by
petitioners for the purposes of satisfying Althen prong one. 592 F.3d at 1324.
Moberly does indicate that plausibility, in general, is insufficient for a
petitioner to establish overall causation-in-fact in Vaccine Act cases. See 592 F.3d
at 1322 (distinguishing a lower plausibility standard from the preponderant
standard for evidence of causation-in-fact). But that guidance refers to petitioner’s
overall burden to prove causation under the Vaccine Act, not petitioner’s specific
burden under Althen prong one. See id. (citing 42 U.S.C. § 300aa-13(a)(1)(A)).
The court has found no evidence that a plausible medical theory is per se
inadequate to satisfy Althen prong one.
A recent decision of the Federal Circuit, which again focused on the overall
causation-in-fact burden for petitioners under the Vaccine Act, also discusses
plausibility:
24

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 25 of 29
[I]n the past we have made clear that simply identifying a
“plausible” theory of causation is insufficient for a
petitioner to meet her burden of proof. Moberly, 592
F.3d at 1322. Instead, the statutory standard of
preponderance of the evidence requires a petitioner to
demonstrate that the vaccine more likely than not caused
the condition alleged. See id. (“[P]roof of a ‘plausible’
or ‘possible’ causal link . . . is not the statutory
standard.”); see also 42 U.S.C. § 300aa-13(a)(1).
LaLonde v. Sec’y of Health & Human Servs., 746 F.3d 1334, 1339 (Fed. Cir.
2014). But this same decision also references Hibbard and the burden on
petitioners to prove the “medical plausibility” of their proposed biological
mechanism so as to satisfy Althen prong one. Id. at 1340 (citing Hibbard, 698
F.3d at 1365). Thus, while plausibility is not enough to show that a particular
vaccine caused a particular injury, this is a separate question from the inquiry
required by Althen prong one. See, e.g., Veryzer v. Sec’y of Health & Human
Servs., 100 Fed. Cl. 344, 352 (2011) (explaining that plausibility goes to Althen
prong one, because “plausibility is confined properly to general causation – the
biological or medical theory put forward – [not] Althen’s second prong . . .
examining specific or legal causation”), aff’d, 475 F. App’x 765 (Fed. Cir. 2012).
The inquiry for Althen prong one has often been described as the question of
whether a particular vaccine “can” cause a particular type of injury. See, e.g.,
Hibbard, 698 F.3d at 1365 (describing the inquiry for Althen prong one as “the
separate (and frequently more difficult) question whether there is a medical theory,
supported by ‘reputable medical or scientific explanation,’ by which a vaccine can
cause the kind of injury that the petitioner claims to have suffered” (citing Althen,
418 F.3d at 1278)). In other words, the petitioner must present a “viable” medical
theory. Id. The special master did not apply this precedential standard in his
Althen prong one analysis, because he required more than a plausible medical
theory. Perhaps this error was based on a misreading of the discussion of
plausibility in Moberly and LaLonde.
The court has reviewed the expert reports and hearing transcripts in this
case. Dr. Steinman’s molecular mimicry theory appears to be far more reliable and
viable than the theories criticized and rejected in LaLonde and Moberly. See, e.g.,
25

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 26 of 29
Barone v. Sec’y of Health & Human Servs., No. 11-707V, 2014 WL 6834557, at
*8 (Fed. Cl. Spec. Mstr. Nov. 12, 2014) (listing cases accepting molecular
mimicry as a reliable medical theory for vaccine injuries). Respondent’s most
persuasive expert in this case testified that molecular mimicry has been the subject
of study for a number of years, and that there is some evidence that molecular
mimicry is linked to auto-immune diseases, a category of diseases which includes
TM and GBS. Hearing Transcript at 419, 426. Because the special master’s
analysis of Althen prong one imposed a higher burden on petitioner than is
appropriate under Federal Circuit precedent, and because the record evidence
regarding Dr. Steinman’s proposed biological mechanism appears to present a
sufficiently reliable scientific theory, the special master’s ruling on Althen prong
one in this case was in error.7
C. Although the Special Master Abused His Discretion When
Relying on Dr. Sladky’s Testimony and Opinions, His Alternate
Ruling on Althen Prong Three Which Ignores Dr. Sladky’s
Testimony and Opinions Survives Review
The special master has consistently ruled, in Contreras I, Contreras III, and
Contreras V, that twenty-four hours is too short a time-frame for Jessie’s
vaccinations to have caused TM, or a combination of TM and GBS. For this
reason, the special master denied Jessie entitlement to compensation under the
Vaccine Act because the preponderance of the evidence as to Althen prong three
did not weigh in his favor. See Althen, 418 F.3d at 1278 (requiring that a
petitioner establish a “proximate temporal relationship between vaccination and
injury”). As this court noted in Contreras II, petitioner was required to show that
the onset of Jessie’s alleged vaccine injury occurred within a “medically-
acceptable time-frame.” 107 Fed. Cl. at 302-03.
In Contreras V, as required by Contreras IV, the special master removed all
evidence provided by Dr. Sladky and reweighed the remaining evidence which
related to Althen prong three. The expert opinions on this issue differed, and the
scientific studies in the extensive record contained somewhat ambiguous evidence
7/ This, too, is harmless error, because petitioner needed to prevail on all three Althen
prongs to establish entitlement to compensation, and a special master may focus on just one
Althen prong to deny entitlement. See, e.g., Hibbard, 698 F.3d at 1364-65.
26

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 27 of 29
as to a medically-acceptable time-frame for the onset of TM, or of TM and GBS.
The court finds, nonetheless, that the special master rationally weighed this
evidence and rationally relied upon respondent’s other expert, Dr. Whitton.
Dr. Whitton opined that twenty-four hours was too short a time for either
TM or GBS to develop after vaccination, even if molecular mimicry had been
triggered by Jessie’s vaccinations. Dr. Whitton’s opinion was buttressed by his
persuasive analysis of numerous scientific articles. The special master carefully
considered the views of opposing experts and the totality of the evidence, and
concluded that
Dr. Sladky’s evidence added little to the [Althen prong
three] analysis. Thus, eliminating the (meager)
contributions from Dr. Sladky does not change the
undersigned’s view that the evidence is not close. The
evidence preponderates in favor of finding that the
minimal amount of time needed for molecular mimicry
exceeds one day and is likely to be around five days.
Opin. at 51-52. Because Jessie’s alleged vaccine injury did not occur within a
medically-acceptable time-frame, the special master denied entitlement in this
case.
The special master’s alternative fact-finding as to Althen prong three which
excluded Dr. Sladky’s evidence contains no error of law or abuse of discretion.
The special master applied the appropriate standard for establishing a proximate
temporal relationship between a vaccine and a vaccine injury. Opin. at 51-52. As
for the special master’s evidentiary rulings, the court notes that special masters
have broad discretion in determining the reliability of scientific evidence. E.g.,
Terran, 195 F.3d at 1316. Under this standard, the court has examined the
alternative Althen prong three analysis in Contreras V, which references and relies
heavily on Contreras III, for any manifest error in the consideration of the
evidence presented by the parties. There is no sign that the special master
erroneously excluded petitioner’s scientific evidence as unreliable.
Nor, in the court’s view, is the special master’s alternative ruling on Althen
prong three arbitrary or capricious. It is important to note that the court’s review
27

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 28 of 29
of the special master’s weighing of the evidence is highly deferential. See, e.g.,
Munn, 970 F.2d at 870 (“This is a standard [of review] well understood to be the
most deferential possible.”) (citations omitted). As long as the special master’s
findings of fact and conclusions regarding the preponderance of the evidence
going to Althen prong three are reasonable, this court must sustain the special
master’s entitlement decision. See, e.g., Broekelschen, 618 F.3d at 1348
(“‘[R]eversible error is “extremely difficult to demonstrate” if the special master
“has considered the relevant evidence of record, drawn plausible inferences and
articulated a rational basis for the decision.”’” (quoting Hines v. Sec’y of Health &
Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991))) (alteration in original).
Under this highly deferential standard of review, the special master’s alternative
Althen prong three analysis, which is rational, survives review.
The court turns to petitioner’s arguments in this regard. Petitioner first
invites the court to reweigh the record evidence as to the timing issue. Pet’r’s
Mot. at 23-24. This reviewing court “does not reweigh the factual evidence or
assess whether the special master correctly evaluated the evidence, nor does it
examine the probative value of the evidence.” Porter, 663 F.3d at 1254 (citations
omitted). Thus, the court must defer to the fact-finding role of the special master
and cannot reconsider the expert opinions and other evidence cited by petitioner.
Second, petitioner attacks Dr. Whitton, whose opinion was persuasive on
the timing issue. None of these criticisms of Dr. Whitton’s expertise, opinions or
credibility renders the special master’s reliance on Dr. Whitton’s opinions
arbitrary or capricious. Although Dr. Whitton may not have been the ideal expert
in every respect, the court finds that the special master’s reliance on Dr. Whitton’s
opinions was rational. In addition, although petitioner attempts to portray Dr.
Whitton as applying an inappropriate “scientific certainty” standard when
rendering his opinions, Pet’r’s Mot. at 24-25, it is clear that the special master
applied the correct preponderance standard to the parties’ evidence which related
to Althen prong three. Under the highly deferential standard of review that applies
here, the court finds nothing arbitrary or capricious in the special master’s
alternative ruling on Althen prong three.
CONCLUSION
For the above-stated reasons, the court sustains the entitlement decision of
28

Case 1:05-vv-00626-RHH Document 225 Filed 05/06/15 Page 29 of 29
the special master which did not rely on the evidence of Dr. Sladky. Accordingly,
it is hereby ORDERED that
(1) Petitioner’s Motion for Review, filed November 21, 2014, is
DENIED;
(2) The decision of the special master, filed October 24, 2014, is
SUSTAINED;
(3) The Clerk’s Office is directed to ENTER final judgment in
accordance with the special master’s decision of October 24, 2014;
and
(4) The parties shall separately FILE any proposed redactions to this
opinion, with the text to be redacted clearly marked out or otherwise
indicated in brackets, on or before May 1, 2015.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
29

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_05-vv-00626-3
Date issued/filed: 2015-09-17
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 08/17/2015) regarding 229 DECISION Interim Fees Stipulation. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:05-vv-00626-RHH Document 232 Filed 09/17/15 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
JESSIE CONTRERAS, *
* No. 05-626V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 17, 2015
*
SECRETARY OF HEALTH * Attorneys’ fees and costs; interim
AND HUMAN SERVICES, * award; amount to which respondent
* does not object.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Jeffrey S. Pop, Beverly Hills, CA, for petitioner;
Linda S. Renzi, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
Mr. Jessie Contreras sought compensation through the National Childhood
Vaccine Injury Compensation Program, codified at 42 U.S.C. § 300aa—10 through
34 (2006), claiming the vaccinations he received, particularly the hepatitis B
vaccine, caused his neurologic problems. After extensive proceedings, including a
lengthy attempt at alternative dispute resolution and six substitutive rulings, the
judgment of the Court of Federal Claims was that Mr. Contreras is not entitled to
an award of compensation.2 Mr. Contreras has appealed this judgment to the
Federal Circuit. No. 15-5097 (Fed. Cir. June 19, 2015).
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
2 An April 5, 2012 Entitlement Decision denied compensation because Mr. Contreras did
not meet his burden of proof regarding the appropriate interval between vaccination and the
onset of the transverse myelitis. 2012 WL 1441315 (“Contreras 1”). The United States Court of
Federal Claims (“the Court”) vacated this decision and remanded with instructions. 107 Fed. Cl.

Case 1:05-vv-00626-RHH Document 232 Filed 09/17/15 Page 2 of 3
While the case was pending, the undersigned previously awarded Mr.
Contreras interim attorneys’ expert costs. Decision, issued May 3, 2013. The
present decision concerns Mr. Contreras’s attorneys’ fees. Mr. Contreras seeks an
award for work his attorney, Jeffrey S. Popp, performed through May 27, 2015.
On July 29, 2015, respondent filed a stipulation of fact concerning interim
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
informally submitted a draft application for interim attorneys’ fees and costs to
respondent for review. Upon review of petitioner’s application, respondent raised
objections to certain items. Based on subsequent discussions, petitioner amended
his application to request $333,550.00, an amount to which respondent does not
object. The Court awards this amount.
Regardless of whether they entitled to compensation, petitioners who bring
their petition in good faith and who have a reasonable basis for the petition may be
awarded attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). Respondent
does not contend that Mr. Contreras fails to satisfy this standard. Thus, Mr.
Contreras is entitled to an award of attorneys’ fees and costs.
After a determination that Mr. Contreras is entitled to an award of interim
attorneys’ fees and costs, the next question is to decide the reasonable amount. A
review of the materials offered in support of petitioner’s draft application for
interim attorneys’ fees and costs indicates that the (reduced) requested amount is
reasonable. Therefore, Mr. Contreras is awarded the amount to which respondent
did not object.
There is no just reason to delay the entry of judgment on interim attorneys’
fees and costs. Therefore, in the absence of a motion for review filed under RCFC
Appendix B, the clerk of court shall enter judgment in petitioner’s favor. Those
fees and costs are awarded as follows:
280 (2012) (“Contreras 2”). A November 19, 2013 Remand Decision again denied
compensation. 2013 WL 6698382 (“Contreras 3”). The Court also vacated the Remand
Decision and remanded the case again. 116 Fed. Cl. 472 (2014) (“Contreras 4”). On the second
remand, the undersigned again found that Mr. Contreras did not meet his burden of proof for
entitlement to an award. 2014 WL 8098606 (Fed. Cl. Spec. Mstr. Oct. 24, 2014) (“Contreras 5”).
Mr. Contreras again filed a motion for review of the special master’s decision, and the Court
denied the motion for review. 121 Fed. Cl. 230 (2015) (“Contreras 6”).
2

Case 1:05-vv-00626-RHH Document 232 Filed 09/17/15 Page 3 of 3
A lump sum payment of $333,550.00, in the form of a check payable to
petitioner and petitioner’s counsel of record, Jeffrey S. Pop.
The Clerk shall enter judgment accordingly.3 The court thanks the parties
for their cooperative efforts in resolving this matter.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
3 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
3

================================================================================
DOCUMENT 4: USCOURTS-cofc-1_05-vv-00626-4
Date issued/filed: 2017-12-06
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 11/22/2017) regarding 278 DECISION Stipulation/Proffer Signed by Chief Special Master Nora Beth Dorsey. (tlf) Copy to parties.
--------------------------------------------------------------------------------
Case 1:05-vv-00626-RHH Document 282 Filed 12/06/17 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 22, 20171
Refiled in Redacted Form: December 6, 2017
* * * * * * * * * * * * * * * UNPUBLISHED
J.C.R., *
* No. 05-626V
Petitioner, *
v. * Chief Special Master Dorsey
*
SECRETARY OF HEALTH * Decision Based on Stipulation;
AND HUMAN SERVICES, * Tetanus; Hepatitis B (“Hep B”);
* Transverse Myelitis (“TM”); Guillan
Respondent. * Barre Syndrome (“GBS”).
*
* * * * * * * * * * * * * * *
Jeffrey Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Linda Renzi, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION BASED ON STIPULATION
On June 15, 2005, J.C. filed a petition in the National Vaccine Injury Compensation
Program on behalf of his son, J.C.R.2 (“petitioner”). The petition alleged that J.C.R. developed
transverse myelitis (“TM”) and/or Guillain-Barre syndrome (“GBS”) as a result of receiving the
Hepatitis B (“Hep. B”) and Tetanus vaccines on June 16, 2003.
On November 21, 2017, the parties filed a stipulation3 in which they stated that a decision
should be entered awarding compensation. Respondent denies that the Tetanus and/or Hep. B
1 When this decision was originally filed, the undersigned advised the parties of her intent to 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 note (2012) (Federal management and Promotion of Electronic
Government Services). In accordance with Vaccine Rule 18(b), petitioner filed a motion to
redact certain information. This decision is being reissued with minimal changes, including
redaction of the petitioner and his father’s names in the case caption to initials. Except for those
changes and this footnote, no other substantive changes have been made.
2 During the course of the proceedings, the case caption was amended to reflect that J.C.R.
reached the age of majority. Additionally, on November 20, 2017, petitioner filed an unopposed
motion to amend the case caption to reflect that petitioner’s given name is J.C.R. The
undersigned granted petitioner’s motion and the case caption was amended on November 21,
2017.
3 On November 15, 2017, the parties filed a stipulation in which they stated that a decision
should be entered awarding compensation, and the undersigned issued a Decision based on the
1

Case 1:05-vv-00626-RHH Document 282 Filed 12/06/17 Page 2 of 11
vaccinations caused or significantly aggravated petitioner’s condition, or caused him any other
injury.
Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A.
The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in
awarding damages, on the terms set forth therein.
The parties stipulate that petitioner shall receive the following compensation:
a. A lump sum of $1,248,834.30, in the form of a check payable to petitioner, Mr.
J.C.R. This represents compensation for first year expenses in the amount of
$48,328.00; past and future lost wages in the amount of $960,377.30 (future wages
have been reduced to net present value); and actual and projected pain and
suffering in the amount of $240,129.00 (projected pain and suffering has been
reduced to net present value); and
b. A lump sum in the amount of $261,189.23, representing compensation for
satisfaction of the State of California Medicaid Lien in the form of a check payable
to petitioner and:
Department of Health Care Services
DHCS Account NO: C95483627A-VAC03
DCHS case name: J.C.R.
Recovery Branch – MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
Petitioner agrees to endorse this payment to the Department of Health Care Services; and
c. An amount sufficient to purchase the annuity contract described in paragraph 10 of
the Stipulation.
These amounts represent compensation for all damages that would be available under 42
U.S.C. §300aa-15(a). Stipulation at ¶8.
The undersigned approves the requested amount for petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
parties’ stipulation the same day. On November 20, 2017, respondent contacted the Court to
report an error in the November 15, 2017 stipulation. On the same day, respondent filed a joint
motion to strike the November 15, 2017 Decision and the underlying stipulation upon which it
was based. On November 21, 2017, the undersigned issued an Order striking the original
decision and stipulation.
2

Case 1:05-vv-00626-RHH Document 282 Filed 12/06/17 Page 3 of 11
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.4
IT IS SO ORDERED
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
3

CCaassee 1 1:0:055--vvvv--0000662266--RRHHHH D Dooccuummeennt t2 28727 F Filieledd 1 121/0/261/1/177 P Paaggee 4 1 o of f1 81

CCaassee 1 1:0:055--vvvv--0000662266--RRHHHH D Dooccuummeennt t2 28727 F Filieledd 1 121/0/261/1/177 P Paaggee 5 2 o of f1 81

CCaassee 1 1:0:055--vvvv--0000662266--RRHHHH D Dooccuummeennt t2 28727 F Filieledd 1 121/0/261/1/177 P Paaggee 6 3 o of f1 81

CCaassee 1 1:0:055--vvvv--0000662266--RRHHHH D Dooccuummeennt t2 28727 F Filieledd 1 121/0/261/1/177 P Paaggee 7 4 o of f1 81

CCaassee 1 1:0:055--vvvv--0000662266--RRHHHH D Dooccuummeennt t2 28727 F Filieledd 1 121/0/261/1/177 P Paaggee 8 5 o of f1 81

CCaassee 1 1:0:055--vvvv--0000662266--RRHHHH D Dooccuummeennt t2 28727 F Filieledd 1 121/0/261/1/177 P Paaggee 9 6 o of f1 81

CCaasese 1 1:0:055-v-vv-v0-000662266-R-RHHHH D Doocucummeennt 2t 28727 F Fileiledd 1 121/0/261/1/177 P Paaggee 1 70 ooff 811

CCaasese 1 1:0:055-v-vv-v0-000662266-R-RHHHH D Doocucummeennt 2t 28727 F Fileiledd 1 121/0/261/1/177 P Paaggee 1 81 ooff 811