VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01465
Package ID: USCOURTS-cofc-1_16-vv-01465
Petitioner: Gerald Temes
Filed: 2016-11-07
Decided: 2020-12-07
Vaccine: influenza
Vaccination date: 2015-10-19
Condition: cryoglobulinemia
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Gerald Temes, a 76-year-old retired surgeon, filed a claim under the National Vaccine Injury Compensation Program alleging that he developed cryoglobulinemia, a blood disorder that can lead to vasculitis, as a result of receiving the influenza and pneumococcal vaccines on October 19, 2015. He reported symptoms including fever, hand and leg pain, and discoloration of his fingers and toes, beginning approximately one week after vaccination. His treating physicians suspected a link to the flu vaccine. The case proceeded as an off-Table claim, meaning Mr. Temes had to prove causation. He presented expert testimony suggesting the vaccines triggered gene expression related to cryoglobulin production, potentially through epigenetics, molecular mimicry, or bystander activation, and cited case reports of vasculitis following vaccination. The respondent presented expert testimony arguing that the scientific literature did not support a causal link between the vaccines and cryoglobulinemia, and that the onset timeframe was too short. The Special Master denied entitlement, finding that Mr. Temes failed to establish a scientifically reliable theory of causation (Althen Prong One) due to insufficient evidence regarding epigenetics, hyperimmunization, molecular mimicry, and bystander activation. The Special Master also found that while treating physicians believed the vaccines caused the condition, their opinions relied heavily on temporal association and were not supported by robust scientific evidence. Furthermore, the onset timeframe was deemed not medically acceptable. This decision was later affirmed by the Court of Federal Claims on review. Therefore, Mr. Temes was not awarded compensation.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01465-0
Date issued/filed: 2020-06-12
Pages: 31
Docket text: PUBLIC DECISION (Originally filed: 05/12/2020) regarding 59 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01465-LKG Document 62 Filed 06/12/20 Page 1 of 31
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1465V
(To be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
GERALD TEMES, *
* Chief Special Master Corcoran
Petitioner, *
* Dated: May 12, 2020
v. *
* Cryoglobulinemia; Influenza
* Vaccine; Pneumococcal Vaccine;
SECRETARY OF HEALTH * Vasculitis; Case Reports; Onset
AND HUMAN SERVICES, * Timeframe
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Renée J. Gentry, Vaccine Injury Clinic, George Washington University Law School,
Washington, DC, for Petitioner.
Robert P. Coleman, III, U.S. Dep’t of Justice, Washington, DC, for Respondent.
ENTITLEMENT DECISION1
On November 7, 2016, Gerald Temes filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that he
experienced cryoglobulinemia,3 a blood disorder than can lead to vasculitis, as a result of receiving
1 This Decision shall be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of
2002, 44 U.S.C. § 3501 (2012)). This means that the Decision will be available to anyone with access to the
internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion
of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days
within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial
or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the
whole Decision will be available to the public. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
3 Cryoglobulinemia is a condition in which certain immunoglobulins (antibodies) found in the blood precipitate under
cool conditions. Dorland’s Illustrated Medical Dictionary 438, 908 (33d ed. 2020) (hereinafter Dorland’s).

Case 1:16-vv-01465-LKG Document 62 Filed 06/12/20 Page 2 of 31
the influenza (“flu”) and pneumococcal (Prevnar 13)4 vaccines on October 19, 2015. Petition
(“Pet.”) (ECF No. 1) at 1. An entitlement hearing was held on September 10, 2019, in Washington,
D.C., and the parties subsequently filed post-hearing briefs, completing that process in late-
November of 2019.
The matter is finally ripe for resolution. After review of the record and all submissions, I
deny an entitlement award in this case. As discussed in greater detail below, the record does not
permit the conclusion that either vaccine—individually or in combination—can cause
cryoglobulinemia, or that they did so in this case.
I. Factual Background
Vaccinations and Presenting Symptoms
Dr. Temes a retired thoracic surgeon, was 76 years old when he received the flu and
pneumococcal vaccines on October 19, 2015. Vaccine Administration Record, filed as Ex. 8 on
Feb. 2, 2017 (ECF No. 8-2); Hearing Transcript, filed Oct. 10, 2019 (ECF No. 50) (“Tr.”) at 5–6,
8. At the time of his vaccination, Dr. Temes had a medical history significant for coronary artery
disease, high blood pressure, high cholesterol, and mild osteoarthritis, and he had undergone a
coronary artery bypass surgery in 2009. Ex. 1 at 22; Tr. at 13–15.
On October 26, 2015 (approximately one week after receiving the flu and pneumococcal
vaccines), Dr. Temes was seen by Dr. Tuna Ozyurekoglu at the Kleinert Kutz & Associates Hand
Care Center in Louisville, Kentucky for hand discoloration. Ex. 3 at 6. Dr. Ozyurekoglu initially
expressed the view that Dr. Temes’s condition was likely associated with Raynaud’s
phenomenon.5 Id. While at the office, Petitioner’s hands were warmed and normal color was
restored. Id. at 9. That same day, Dr. Temes presented to his primary care physician, Dr. Matthew
Rogers, M.D., at the Associates in Internal Medicine, where he now complained of a persistent
fever that had started three days prior, as well as swelling and pain in his hands and legs. Ex. 1 at
16. A physical examination revealed cyanosis6 in his fingers and toes. Id. at 20. Concerned that
Dr. Temes was experiencing cryoglobulinemia, Dr. Rogers ordered Dr. Temes to undergo
laboratory testing and to return for follow-up care. Id. at 20–21.
4 Prevnar13 is a sterile suspension pneumococcal vaccine targeted against thirteen strains of the Streptococcus
pneumoniae bacterium. It also contains non-toxic diphtheria protein and aluminum adjuvants. Prevnar 13 Package
Insert, filed as Court Ex. 1 on May 12, 2020 (ECF No. 58) at 25–26.
5 Raynaud’s phenomenon is bilateral ischemia in the fingers or toes that causes paresthesia and pain and is usually
induced by cold exposure and relieved by heat. Dorland’s at 1430. It is usually associated with an underlying condition
but can sometimes be idiopathic. Id.
6 Cyanosis is a bluish discoloration of the skin caused by oxygen-depleted blood. Dorland’s at 452.
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A few days later, Dr. Temes sought care with Dr. John Huber, M.D. at the CBC Group in
Louisville, Kentucky on October 30, 2015. Ex. 16 at 273. Dr. Huber noted that laboratory test
results showed Petitioner possessed a slightly elevated rheumatoid factor7 of 24 and suppressed
complement levels with C3 at 75 and a C4 at undetectable levels8, but negative cold agglutinins.9
The result for cryoglobulins was still pending. Id. Dr. Temes again reported that his symptoms had
developed approximately one week after receiving the flu and pneumococcal vaccines. Id. at 274.
Dr. Huber performed a physical examination and noted that Dr. Temes’s fingers and toes continued
to show signs of ischemia.10 Id. at 276. He concluded that Dr. Temes was likely experiencing
mixed cryoglobulinemia as a result of the flu vaccine that he had received, though the pending
cryoglobulin labs were needed to confirm the diagnosis. Id. at 277. He prescribed prednisone and
discussed the possibility of immunosuppressive therapy if Dr. Temes’s condition did not improve.
Id.
On November 2, 2015, Dr. Temes saw Dr. Jeffrey Callen, M.D., a dermatologist, for
follow-up care regarding his previously-treated skin fungal infection. Ex. 2 at 12. During the
appointment, Dr. Temes described getting the flu shot and then subsequently developing
discoloration in his hands and feet. Id. Dr. Callen then performed a physical evaluation, at which
time he noted that Dr. Temes’s fingertips remained bluish in color. Id. Dr. Callen proposed that
Dr. Temes’s symptoms were likely due to either neuropathy or Raynaud’s phenomenon, but he
also discussed a possible relationship between cold agglutinin problems secondary to vaccination.
Id. Dr. Callen agreed with Dr. Huber’s mixed cryoglobulinemia diagnosis, and he recommended
continued treatment with prednisone. Id.
Dr. Temes returned for a follow-up appointment with Dr. Huber on November 5, 2015, for
“[s]uspected cryoglobulinemia in response to [flu] vaccination, with digital ischemia of the hands
and feet and severe fatigue.” Ex. 16 at 246. Dr. Temes reported that since starting prednisone, he
had experienced significant improvement in his fatigue and pain, though both persisted to a lesser
degree. Id. He also remarked that his symptoms were exacerbated by cold exposure. Id. A physical
7 Rheumatoid factor consists of antibodies directed against antigenic determinants of immunoglobulins. Dorland’s at
676. The presence of rheumatoid factor is associated with Type II/mixed cryoglobulinemia. J. Damoiseaux & J.
Tervaert, Diagnosis and Treatment of Cryoglobulinemia: It Takes Two to Tango, 47 Clinical Rev. Allergy and
Immunology 299, 304 (2014), filed as Ex. C (ECF No. 28-3) (“Damoiseaux”).
8 Complement levels measure the concentration of serum proteins associated with various biologic functions.
Dorland’s at 393. In cryoglobulinemia, cryoglobulins fix complement, precipitating it out of the blood serum. Tr. at
61–62.
9 Cold agglutinins are antibodies that will agglutinate, or clump together, at lower temperatures. Dorland’s at 38–39.
10 Ischemia is a deficiency of blood to a part of the body, usually caused by obstruction of a blood vessel. Dorland’s
at 961.
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examination showed that the discoloration of Dr. Temes’s feet had completely resolved, and there
was significant improvement in the appearance of his fingers. Id. at 250. Dr. Huber advised Dr.
Temes to continue treatment with 20 mg of prednisone daily. Id. at 252.
At his next follow-up appointment with Dr. Huber on November 12, 2015, Dr. Temes
complained of persistent pain and dry, cracked skin on his fingertips and toes, though he also noted
that the appearance of ischemia had improved. Ex. 16 at 239. He also reported that his symptoms
were exacerbated by the cold, and that the symptoms in his feet waxed and waned with his activity
level. Id. Dr. Huber reviewed the laboratory test results which showed negative results for both
cryofibrinogen11 and cryoglobulin levels.12 Id. at 240. Dr. Huber, however, felt that
cryoglobulinemia was the proper diagnosis given Dr. Temes’s clinical presentation. Id. at 243–44.
He again advised Dr. Temes to continue 20 mg of prednisone daily, and to start taking 300 mg of
Gabapentin before bed to help with his pain and fatigue. Id. at 244.
On November 16, 2015, Dr. Temes returned for a follow-up dermatology appointment with
Dr. Callen. Ex. 2 at 9. He complained of persistent pain and a blue discoloration in his fingers and
toes that had been present for approximately two weeks following receipt of the flu shot. Id.
Though his symptoms persisted, Petitioner did report that he was experiencing improvement with
prednisone. Id. Dr. Temes was advised to keep his feet warm and to increase his prednisone dosage
from 20 mg to 40 mg a day. Id. Dr. Callen discussed the possibility of treating Dr. Temes with
Rituxan if his condition persisted. Id. He also ordered additional laboratory studies. Id.
Dr. Huber discussed the results of those laboratory studies during a follow-up appointment
with Dr. Temes on November 24, 2015. He noted that Dr. Temes’s rheumatoid factor had now
significantly increased, from 24 to 54. Ex. 16 at 225. During this same appointment, Dr. Temes
reported improvement in his finger and toe pain, but the ischemia appeared worse following the
increased prednisone dosage. Id. Given the lack of substantial improvement, Dr. Huber
recommended Dr. Temes begin treatment with Rituxan and tapering prednisone to 30 mg a day.
Id. at 227. Abiding by this recommendation, Dr. Temes began Rituxan treatment on December 1,
2015, but he was unable to taper his prednisone dosage without worsening pain and ischemia. Id.
at 207.
On December 15, 2015, after two doses of Rituxan, Dr. Temes reported decreased ischemia
in his fingers, though he continued to have problems with finger dexterity and required assistance
with tasks such as buttoning shirts. Ex. 16 at 187. A physical examination showed considerable
improvement in Dr. Temes’s left foot, while his right foot continued have a dusky appearance in
some of his toes. Id. at 190. Multiple digits on his hands also showed ischemic change and necrosis.
11 Cryofibrinogen is a coagulation factor that precipitates in colder temperatures. Dorland’s at 438.
12 Through his own investigation, Dr. Temes later found that these initial laboratory findings were unreliable because
the samples from which they were derived had not been properly transported to the testing facility. Tr. at 20.
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Id. Given these results, Dr. Huber felt that the results of the Rituxan treatment were mixed—Dr.
Temes had experienced some improvement in his left foot, but his fingers appeared to be
worsening. Id. at 192. Dr. Huber ultimately decided that the improvement was enough to continue
treatment, and on December 22, 2015, Dr. Temes received his last scheduled dose of Rituxan and
his prednisone was decreased to 20 mg a day. Id. at 192, 161.
2016 Treatment
A few weeks later, on January 5, 2016, Dr. Temes returned to Dr. Huber for follow-up care
at which time he reported improvement in his left foot and left hand, but he continued to experience
necrosis in some of the fingers of his right hand as well as fairly severe pain in his right foot. Ex.
16 at 161. Dr. Temes’s condition, however, showed overall improvement. Id. at 164. Dr. Huber
therefore recommended two additional doses of Rituxan over the following two months, as well
as tapering prednisone from 20 mg a day to 10 mg a day. Id. at 167.
During another follow-up appointment with Dr. Huber on January 19, 2016, Dr. Temes
showed dramatic improvement, with nearly all of the ischemic changes having been resolved. Ex.
16 at 145. Dr. Huber reviewed the results of laboratory testing that was completed earlier that
month and that showed an elevated rheumatoid factor of 24 as well as positive results for Type I
cryoglobulinemia with monoclonal IgM kappa. Id. at 178, 183. These results effectively ruled out
a differential diagnosis of Waldenstrӧm’s macroglobulinemia.13 Id. at 147. In light of the
significant improvement, Dr. Temes was advised to continue with his Rituxan treatment, and to
taper his prednisone to 5 mg daily and then, after two weeks, 5mg every other day Id. at 151.
On February 18, 2016, Dr. Temes received his last scheduled dose of Rituxan. Ex. 16 at
12. The next day, he returned to Dr. Ozyurekoglu for ischemia, necrosis, and ulceration in his
fingers and toes. Ex. 3 at 11. Dr. Ozyurekoglu advised proper wound care and monitoring of Dr.
Temes’s symptoms. Id. at 13. One month later, on March 18, 2016, Dr. Temes returned to his
primary care physician, Dr. Rogers, with weakness and sinus problems. Ex. 1 at 3. He explained
that he was experiencing some pain in his hands, but that the numbness he had previously
experienced had largely improved. Id. Following a brief examination, Dr. Rogers referred Dr.
Temes to physical therapy to help alleviate the weakness caused by prolonged illness and steroid
use. Id. at 8.
Vasculitic Symptoms and 2017 Updated Diagnosis
Over the next 15 months into the spring of 2017, Dr. Temes continued to follow up with
his treating doctors. During these appointments, he reported continued improvement in his
13 Waldenstrӧm’s macroglobulinemia is a plasma cell disorder, similar to leukemia, that initiates the overproduction
of macroglobulin, thereby making the blood more viscous. Dorland’s at 1093.
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symptoms, though the records indicate that he never experienced a complete remission of his
symptoms. Ex. 16 at 84. Dr. Temes’s overall condition, however, returned to baseline, and he was
able to engage in many of the activities he had enjoyed prior to the onset of his cryoglobulinemia.
See id. (reporting that Dr. Temes was once again able to play golf and he was doing so two to three
times a week); id. at 89 (indicating that Dr. Temes had returned to baseline minus his continuing
neuropathy). He continued to take gabapentin for his neuropathic pain, and wore sandals or loafers
to alleviate any remaining discomfort. Ex. 7 at 17. During an appointment with Dr. Callen on May
3, 2016, Dr. Callen referenced a single case report of cryoglobulinemia following administration
of the flu vaccine. Ex. 2 at 3. He also indicated that he was going to draft and submit a similar case
report detailing Dr. Temes’s clinical course. Id.
Petitioner’s condition took a turn for the worse in 2017. In May 2017, Dr. Temes began to
experience increased discomfort in his fingers and toes. Ex. 51 at 10. His pain was intermittent and
induced by cold exposure, but he did not experience any ischemic changes. Id. He was advised to
undergo further treatment with Rituxan, and he re-started treatment on May 18, 2017. Id.
Laboratory studies conducted a few days later on May 25, 2017 showed an elevated rheumatoid
factor of 36 but were negative for cryoglobulins. Id. at 8. Around this time, Dr. Temes also
developed a rash in his feet. Id. at 10. A biopsy confirmed that the rash was cutaneous vasculitis,
and he was instructed to taper off prednisone. Id. Additional laboratory testing conducted on June
26, 2017, now showed an elevated rheumatoid factor of 40 and was again positive for
cryoglobulins. Ex. 51 at 8.
On June 28, 2017, Dr. Temes was evaluated at the Mayo Clinic by Dr. John Lust, M.D.14
Ex. 19 at 14. Dr. Lust reviewed Dr. Temes’s medical history as well as his more recent biopsy
results, which he characterized as evidencing leukocytoclastic vasculitis.15 Id. at 17. At Mayo, Dr.
Temes underwent diagnostic testing including a bone marrow biopsy and CT scans.16 Id. The
results of the diagnostic testing confirmed a diagnosis of IgM Kapp Type II Cryoglobulinemia.17
14 Though the parties appear to agree that Dr. Lust has recognized expertise in the study of cryoglobulinemia, an
independent review of Dr. Lust’s curriculum vitae and publications shows that he focuses much of his practice on
multiple myeloma, and he is listed as a co-author on only one publication regarding cryoglobulinemia. See generally
Mayo Clinic, Dr. John A. Lust, M.D., Ph.D., https://wwwmayoclinic.org/biographies/lust-john-a-m-d-ph-d/bio-
20053715 (last visited May 5, 2020).
15 Leukocytoclastic vasculitis is a cutaneous vasculitis (sometimes referred to as a hypersensitivity vasculitis)
attributable to dying/broken-down neutrophils that primarily affects the small vessels of the skin. It usually presents
as a rash accompanied by a tingling or burning sensation. The rash may later develop lesions and/or necrosis.
Dorland’s at 2025–26.
16 CT scans, or computed tomography, uses electronic impulses to create an image of internal structures, which is then
digitally recorded. Dorland’s at 1673.
17 Mayo Clinic records were amended after this case was filed to reflect the subsequent diagnosis of Type II mixed
cryoglobulinemia in light of the elevated rheumatoid factor levels. Ex. 49; Ex. 50.
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Id.; Ex. 48 at 7. Dr. Lust recommended continuing treatment with Rituxan, and also discussed
additional treatment with Cytoxan. Ex. 19 at 9. The Rituxan was discontinued on July 6, 2017,
however, after Dr. Temes experienced a severe reaction during an infusion. Ex. 51 at 11; Ex. 54 at
10–11. Alternative treatment with Cytoxan was initiated on July 11, 2017, resulting in some
improvement in Dr. Temes’s complement levels. Ex. 51 at 1.
Dr. Temes returned to Dr. Huber for a follow-up appointment on August 3, 2017. Ex. 54
at 13. He reported that his neuropathy symptoms were stable, and that he was tolerating Cytoxan
treatment well. Id. Dr. Huber advised Dr. Temes to continue with his prescribed treatment and
follow-up care. Id. at 20. On September 25, 2017, laboratory testing showed a decrease in Dr.
Temes’s complement levels, which required an increase in his Cytoxan dosage from 100 mg to
150 mg a day. Ex. 51 at 1–2. Dr. Temes’s complement levels normalized, and on November 30,
2017, a cryoglobulin screen was positive, but the confirmatory test was negative. Ex. 51 at 8.
On April 13, 2018, Dr. Temes returned to Dr. Huber for a follow-up appointment. Ex. 51
at 1. He reported that his peripheral neuropathy symptoms remained stable. Id. at 2. Similar to Dr.
Lust’s assessment, Dr. Huber noted that Dr. Temes’s condition was “clinically…more consistent
with a Type II cryoglobulinemia that we suspect was induced by his [flu] vaccine.” Id. at 12. He
recommended continued treatment with Cytoxan. Id. at 13. Dr. Temes’s Cytoxan treatment was
discontinued on November 5, 2019, but in February 2020, Dr. Temes’s complement levels
declined and Dr. Huber discussed possibly restarting Cytoxan treatment for what he suspected was
another recurrence of Dr. Temes’s cryoglobulinemia. Ex. 59 at 13. No further medical records
were filed in this matter.
II. Witness Testimony
A. Gerald Temes
Dr. Temes provided testimony at the hearing consistent with the contents of his two
affidavits and the filed medical record. Tr. at 4–50; Petitioner’s Affidavit, filed on Feb. 2, 2017 as
Ex. 15 (ECF No. 8-9); Petitioner’s Supplemental Affidavit, filed on Dec. 21, 2017 as Ex. 47 (ECF
No. 25-2). Dr. Temes reported that before his illness, he was active in the medical community and
enjoyed participating in charity organizations, golfing, gardening, traveling, and spending time
with his grandchildren prior to his October 2015 vaccinations. Tr. at 11–12. Though he admittedly
had some preexisting medical conditions, Dr. Temes felt that he was overall in good health. Tr. at
14–15. Within a week of his vaccination, however, he began to develop cyanosis in his fingertips,
as well as weakness, fever, muscle pain and aches. Tr. at 15.
Concerned by these symptoms, Dr. Temes sought treatment with Dr. Ozyurekoglu. Tr. at
15, 17; Ex. 3 at 1–10. Dr. Ozyurekoglu suspected Raynaud’s phenomenon, but Dr. Temes sought
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a second opinion from his primary care physician, Dr. Rogers. Tr. at 17–18; Ex. 1 at 16–21.
Following a brief examination, Dr. Rogers concluded that Dr. Temes was experiencing
coagulopathy or vasculitis, and he attributed Dr. Temes’s condition to the recent flu vaccination.
Tr. at 18; Ex. 1 at 20–21. He was prescribed prednisone and was referred to Dr. Huber for further
assessment and treatment. Tr. at 18; Ex. 16 at 273.
During this time, Dr. Temes continued to experience pain and tingling in his legs, hands,
and feet so intense that he could not sleep, and was forced to wear only light slippers or socks to
limit pain to his feet. Tr. at 18, 21–22. He also noticed that his symptoms were made worse with
cold exposure. Id. He began sleeping in a separate bedroom from his wife so that he could maintain
a warmer room temperature. Id. at 23. He found some relief after taking these steps but continued
to experience persistent symptoms of cryoglobulinemia. Id. The initial laboratory studies,
however, were negative for cryoglobulins. Id. at 20. After speaking with people familiar with
cryoglobulin studies, however, Dr. Temes learned that this was likely due to improper storage and
transport of his blood samples. Id. He therefore arranged to have all further studies conducted at a
local lab. Id.
Dr. Temes also described the Rituxan treatments that he received. Tr. at 24. After beginning
treatment with Rituxan, Dr. Temes experienced some improvement in his symptoms. Id. at 25. But
Dr. Temes suffered from discomfort that prevented him from wearing shoes (other than slippers)
for another six months. Id. He also developed necrosis in the tips of his toes and fingers. Id. This
symptom was unsightly and embarrassing for Dr. Temes, and he began wearing light cotton gloves
and thick socks to hide the necrosis. Id. In addition, rather than driving to Florida as usual, Dr.
Temes and his wife had to fly. Id. Once in Florida, however, Dr. Temes continued to heal and he
noted significant improvement in his necrosis, though he continued to experience persistent pain.
Id. at 26–27. These symptoms prevented Dr. Temes from performing many of the activities he had
previously enjoyed, and he was unable to fully participate in the board positions he held within the
medical community. Id. at 28–29. He was only able to return to playing golf once he found sandal
golf shoes that left his toes exposed. Id. at 29.
In May 2017, Dr. Temes experienced a resurgence in his symptoms. Tr. at 29. In one
particular instance, Dr. Temes was removing food from a freezer while wearing two pairs of light
gloves. Id. at 30. Despite these precautions, Dr. Temes developed “unbearable pain” in his hands.
Id. He returned to Dr. Huber, who concluded that Dr. Temes was experiencing a recurrence of
cryoglobulinemia and recommended additional treatment with Rituxan. Id. This recurrence
prompted Dr. Temes to seek specialized assessment and treatment from Dr. Lust at the Mayo
Clinic. Id.
Dr. Lust’s evaluation did not reveal any clear etiology for Petitioner’s cryoglobulinemia.
Tr. at 30–31. Dr. Lust did express his opinion, however, that the vaccines Dr. Temes received may
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have played a role in the development of his condition. Id. at 31. Dr. Temes was advised to continue
with Rituxan and to consider further treatment with Cytoxan. Id. But after experiencing an adverse
reaction during a Rituxan infusion, Dr. Temes was advised against continuing treatment with
Rituxan. Id. Instead, he began treatment with Cytoxan and prednisone, both of which were found
to raise Dr. Temes’s complement levels and reduced the severity of his symptoms. Id. at 31–32.
He was eventually tapered off prednisone but continues to take Cytoxan every other day. Id. at 32.
This immunosuppressive treatment prevents Dr. Temes from receiving vaccinations and makes
him vulnerable to infection. Id. at 34.
At the time of the entitlement hearing, Dr. Temes reported that he continued to experience
tingling in three fingers of his right hand, though he characterized it as “not incapacitating.” Tr. at
40. He also has persistent pain in his right foot and left great toe. Id. at 41. He takes gabapentin for
these symptoms and reports that he is doing “considerably better” and is able to perform most
tasks. Id. at 41, 43.
B. Petitioner’s Expert – Dr. Joseph Bellanti, M.D.
Dr. Bellanti, an immunologist, testified at hearing and filed two expert reports on behalf of
Petitioner. Tr. at 51–104; Dr. Bellanti Expert Report, dated Oct. 9, 2017, filed as Ex. 20 (ECF No.
19-2) (“First Bellanti Rep.”); Dr. Bellanti Supplemental Expert Report, dated May 17, 2019, filed
as Ex. 52 (ECF No. 34-2) (“Second Bellanti Rep.”). Dr. Bellanti opined that the flu and/or
pneumococcal vaccines Petitioner received caused an inflammatory vasculitis and abnormal
production of cryoglobulin—manifesting as cryoglobulinemia and, later, vasculitis. Second
Bellanti Rep. at 3; Tr. at 78.
Dr. Bellanti currently serves as a professor in pediatrics and microbiology-immunology at
the Georgetown University School of Medicine, as well as director of the International Center for
Interdisciplinary Studies of Immunology at Georgetown University. Dr. Bellanti Curriculum
Vitae, filed on Sept. 9, 2019 as Ex. 55 (ECF No. 47-2) (“Bellanti CV”) at 1. He received both his
bachelor’s and medical degrees from the University of Buffalo before completing an internship at
the Millard Fillmore Hospital in Buffalo, New York. Id. at 2. He then completed his residency in
pediatrics at the Children’s Hospital of Buffalo. Id. He later received specialized training in
immunology at the University of Florida before serving in the United States army as a virology
researcher at the Walter Reed Army Institute of Research in Washington, D.C. Id.; Tr. at 51–52.
He is board certified in pediatrics. Bellanti CV at 3. Dr. Bellanti has also served on the editorial
board of numerous journals dedicated to topics in pediatrics and immunology, and he himself has
published over 300 articles on those subjects. Id. at 5–6, 11–65.
Dr. Bellanti began with a discussion of Dr. Temes’s pre-vaccination medical history. Tr.
at 55–56. None of the conditions listed in Dr. Temes’s medical history, he proposed, likely
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contributed to his post-vaccination condition. Tr. at 56. He then provided detailed information
regarding the vaccines that Dr. Temes received on October 19, 2015. Id. He specifically noted that
the flu vaccine administered to Dr. Temes was a “high dose” version, meaning that it contained
more antigens than the average flu vaccine. Id. The high dose flu vaccine is meant to elicit a more
robust immunologic response from elderly patients whose immune systems tend to be less
responsive than those of younger patients. Id. at 57. Dr. Bellanti also noted that Dr. Temes received
the pneumococcal vaccine at the same time the high dose flu vaccine was administered, thus further
stressing Petitioner’s immune response. Id. at 56.
Dr. Bellanti then described Dr. Temes’s post-vaccination clinical course. Tr. at 57. He
attributed the symptoms Dr. Temes experienced four days after vaccination—fever, aches, pain,
ischemia—to an inflammatory response. Id. Inflammation, he explained, caused Petitioner’s blood
vessels to narrow and constrict, which in turn led to the ischemic changes in Dr. Temes’s fingers
and toes. Id. The fact that this vessel constriction was made worse by cold exposure is what led
Dr. Bellanti to conclude that Dr. Temes suffered from cryoglobulinemia. Id. at 58.
Lab test results supported this conclusion, Dr. Bellanti opined, because they showed Dr.
Temes had low complement levels—a result of cryoglobulin precipitate fixing complement and
removing it from blood serum. Tr. at 60–62. Dr. Temes’s rheumatoid factor levels were also
elevated, which Dr. Bellanti cites as additional support for the diagnosis of Type II
cryoglobulinemia. Id. at 70–71. Though Dr. Bellanti opined that Dr. Temes’s cryoglobulinemia
was more likely than not induced by the vaccinations he received, he acknowledged that many
cases are idiopathic (and thus without a known etiology). Tr. at 86, 89. He also conceded that
laboratory testing cannot distinguish between idiopathic cryoglobulinemia and cryoglobulinemia
secondary to vaccine administration. Id. at 87–88. But even in idiopathic cases, Dr. Bellanti
opined, some antigen-driven process is still responsible for activating the immune system and
causing cryoglobulin production. Tr. at 95.
Beyond consideration of Dr. Temes’s personal medical history, Dr. Bellanti’s reports and
testimony proposed a causation theory by which the vaccines at issue could cause
cryoglobulinemia. His theory generally relied on the concept of “epigenetics,” which he defined
as the study of environmental influence on gene expression. Tr. at 65–66. An individual with a
genetic predisposition to a particular disease, such as cryoglobulinemia, may never develop the
condition unless introduced to a triggering environmental factor. Id. But that environmental factor
may then trigger the expression or suppression of the genes responsible for the manifestation of
the disease. Id. In Dr. Temes’s case, the vaccines he received triggered the expression of certain
genes responsible for the production of cryoglobulins. Id. at 67. Dr. Bellanti acknowledged,
however, that other environmental factors, such as diet, nutrition, exposure to pollutants, and viral
and bacterial infections could also provoke changes in gene expression. Id.
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The other element of Dr. Bellanti’s theory assumed that an aberrant autoimmune response
could cause B cells to produce cryoglobulins essential to the development of cryoglobulinemia.
Tr. at 81–82; Petitioner’s Post-Hearing Brief, filed Nov. 21, 2019 (ECF No. 54) at 5. To support
this aspect of his opinion, Dr. Bellanti cited to a study from the 1960s that observed the effects of
hyperimmunizing rabbits with a pneumococcal vaccine. E. Catsoulis et al., Cryoglobulinemia in
Rabbits Hyperimmunized with a Polyvalent Pneumococcal Vaccine, 9 Immunology 327, 327–331
(1965), filed on Oct. 16, 2017 as Ex. 22 (ECF No. 19-4) (“Catsoulis”). Catsoulis found that
administering the pneumococcal vaccine to rabbits every three days induced cryoglobulinemia
within three to four months. Id. at 327. Importantly, the cryoglobulins that were produced were
found to agglutinate (or cluster)18 pneumococci—the bacteria against which the rabbits had been
immunized. Id. This fact, according to Dr. Bellanti, established that the cryoglobulins possessed
an antibody-like capacity that could then become harmful as they became overexpressed in the
blood. First Bellanti Rep. at 3. When the animal subjects were no longer vaccinated, they recovered
within five weeks. Catsoulis at 327, 330. Re-initiation of the vaccine, by contrast, resulted in a
recurrence of cryoglobulinemia—peaking within three to five weeks of re-exposure to the
pneumococcal vaccine. Id. Catsoulis thus concluded that intense immunization could stimulate the
production of cryoglobulins. Id.
Here, there is no similar evidence that Dr. Temes underwent repeated vaccination
comparable to the tested animals in Catsoulis—and thus there is a question as to how
cryoglobulinemia akin to what Petitioner experienced could become chronic. Dr. Bellanti therefore
invoked other potential autoimmune mechanisms, including molecular mimicry and bystander
activation, to explain how cryoglobulinemia could persist. Tr. at 101. Dr. Bellanti did not provide
robust discussion for either of these theories, but he did (though perhaps inadvertently) offer two
different explanations regarding bystander activation. First, Dr. Bellanti indicated that following
the initial activation of the immune system, nearby immune cells not initially participating in that
response can be activated and contribute to ongoing inflammation, thereby causing it to continue.
Tr. at 101. He later proposed an alternative theory of bystander activation, in which damaged cells
resulting from cryoglobulinemia and leukocytoclastic vasculitis act themselves as antigens that
independently but directly cause an autoimmune response, sufficient to promote chronicity of the
underlying condition. Tr. at 103.
Despite the above, Dr. Bellanti’s opinion largely relied on a series of case reports
identifying instances of vasculitis, cold contact urticaria, and cryoglobulinemia following
vaccination—though his discussion of each report was brief. Tr. at 74–78. The first of these reports
described four cases of leukocytoclastic vasculitis following receipt of the flu vaccine. S. Tavadia
et al., Leukocytoclastic Vasculitis and Influenza Vaccination, 28 Clinical and Experimental
Dermatology 154, 154–56 (2003), filed Apr. 7, 2020 as Ex. 23 (ECF No. 57-1) (“Tavadia”). Of
18 Dorland’s at 38–39.
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the four case reports discussed in Tavadia, Dr. Bellanti focused his testimony on one in which a
seventy-one-year-old woman developed leukocytoclastic vasculitis following receipt of the flu
vaccine two weeks later. Id. at 154. This case was of particular interest to Dr. Bellanti because it
appeared to involve the first flu vaccine the woman had received (meaning her response could not
have constituted a rechallenge event)—though the case report itself does not confirm that the
woman had not previously received a flu shot. Tr. at 75; Tavadia at 154. Overall, Dr. Bellanti
characterizes the case reports discussed in Tavadia as “very similar to what Dr. Temes
experienced.” Tr. at 75.
Dr. Bellanti next discussed a single case report in which the authors described a patient
who experienced onset of cutaneous vasculitis and exacerbation of preexisting rheumatoid arthritis
two weeks after receiving the flu vaccine. P. Iyngkaran et al., Rheumatoid Vasculitis Following
Influenza Vaccination, 42 Rheumatology 907, 907–909 (2003), filed on Apr. 7, 2020 as Ex. 24
(ECF No. 57-2) (“Iyngkaran”). While the temporal relationship between the vaccination and onset
of the patient’s vasculitis suggested a possible cause-and-effect relationship, Iyngkaran was unable
to identify a specific mechanism capable of supporting such a conclusion. Iyngkaran at 909.
Dr. Bellanti then pivoted to four case reports documenting the development of cold contact
urticaria19 following vaccination. N. Raison-Peyron et al., Cold Contact Urticaria Following
Vaccination: Four Cases, 96 Acta Dermato-Venereologica 852, 852–53 (2016), filed on Oct. 16,
2017 as Ex. 25 (ECF No. 19-7) (“Raison-Peyron”). Only one of the cases documented in Raison-
Peyron involved a vaccine that Dr. Temes received, however (pneumococcal), and that case
involved a two-year old whose urticaria began seven days after receipt of it plus several other
vaccines. Id. at 852. At hearing, however, Dr. Bellanti primarily focused on the case report
documenting the development of cold contact urticaria in a thirty-seven-year-old woman three
weeks after receiving the Pandemrix vaccine (a vaccine that never has been administered in the
U.S.)20 against the 2009 H1N1 influenza strain. Raison-Peyron at 853.
Another reason to give limited weight to such case reports, as Dr. Bellanti admitted, is the
fact that cold contact urticaria and cryoglobulinemia are distinguishable. Tr. at 77. Indeed, the
laboratory findings discussed in Raison-Peyron did not reveal any abnormalities, whereas
mixed/Type II cryoglobulinemia is characterized by low complement levels, elevated rheumatoid
factor, and elevated cryoglobulin levels. Raison-Peyron at 852–83; see also A. Lohse et al.,
Vascular Purpura and Cryoglobulinemia After Influenza Vaccination, 66 Rev. Rheumatology 359,
359–62 (1999), filed on Oct. 16, 2017 as Ex. 26 (ECF No. 19-8) (“Lohse”). Thus, although Raison-
19 Cold contact urticaria causes an individual to develop hives when their skin is exposed to cool temperatures.
Dorland’s at 2012; Raison-Peyron at 852.
20 See generally, D’Toile v. Sec’y of Health & Human Servs., No. 15-085V, 2016 WL 7664475 (Fed. Cl. Spec. Mstr.
Nov. 28, 2016) (discussing the use of Pandemrix in Europe), mot. for review den’d, 132 Fed. Cl. 421 (2017)), aff’d,
726 F. App’x 809 (Fed. Cir. 2018).
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Peyron’s authors expressed concerns regarding the possibility of a causal relationship between
vaccination and cold contact urticaria, they were unable to identify a specific causal mechanism,
noting that “the mechanisms and signals for cold-dependent mass cell activation have not been
identified.” Raison-Peyron at 853.
Lastly, Dr. Bellanti mentioned a single case report of a sixty-eight-year-old man who
developed Type II mixed cryoglobulinemia two weeks after receiving the flu vaccine. Tr. at 77–
78; Lohse at 359. But like the other case reports referenced by Dr. Bellanti, this case report mostly
relied on a temporal association between vaccination and disease manifestation, ultimately
concluding that “[t]he mechanism of vasculitis induced by [flu] vaccination remains incompletely
understood….[t]hus in none of the reported cases was proof of a causal link with the [flu] vaccine
obtained.” Lohse at 359.
C. Respondent’s Expert – Dr. Harry Schroeder, Jr., M.D., PhD
Dr. Schroeder testified at hearing and provided two expert reports on behalf of Respondent.
Tr. at 105–68; Dr. Schroeder Expert Report, dated Mar. 30, 2018, filed as Ex. A (ECF No. 28-1)
(“First Schroeder Rep.”); Dr. Schroeder Supplemental Expert Report, dated July 11, 2018, filed as
Ex. G (ECF No. 37-1) (“Second Schroeder Rep.”). He opined that Dr. Temes’s cryoglobulinemia
was most likely unrelated to the vaccines he received. Tr. at 110–11.
Dr. Schroeder is board certified in both internal medicine and genetics. Dr. Schroeder
Curriculum Vitae, filed on Apr. 6, 2018, as Ex. B (ECF No. 28-2) (“Schroeder CV”) at 4. He
received his bachelor’s degree from Texas A&M University, before receiving both his medical
degree and PhD from Baylor College of Medicine. Id. at 1. Dr. Schroeder then completed his
internship and residency at the University of Kentucky Medical Center. Id. at 2. Since 2008, he
has taught as a professor of medicine, microbiology, and genetics at the University of Alabama
where he also serves as the director of the immunology program. Tr. at 105. Dr. Schroeder’s
clinical practice as an immunologist began in 1991. Tr. at 107. He sees patients with a wide range
of immunological disorders, including autoimmune, hypersensitivity, and immunodeficiency
disorders. First Schroeder Rep. at 1. The majority of Dr. Schroeder’s time is spent conducting
research in immunology and the role of genetics in immunological disorders and treatments.
Schroeder CV at 8–23. He has also published numerous articles on these subjects. Id. at 24–33.
However, though much of Dr. Schroeder’s career has focused on immunology, he is not board
certified in the subject, and he does not have expertise or specialized training related to
cryoglobulinemia. Tr. at 109, 132–33.
At hearing, Dr. Schroeder began by contesting Petitioner’s success in establishing how the
relevant vaccines might cause cryoglobulinemia. He specifically criticized Dr. Bellanti’s theory
regarding epigenetics to explain how vaccination might interact with some unknown or undefined
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predisposition, evaluating it in light of what is known about the condition. Tr. at 113–16.
Cryoglobulinemia, Dr. Schroeder observed, in its Type I form is associated with abnormal B cells
produced as a result of persistent malignant conditions, like multiple myeloma and Waldenstrӧm’s
macroglobulinemia. Tr. at 115. Although Dr. Schroeder did not disagree that Petitioner had
properly been diagnosed with Type II, or “mixed” cryoglobulinemia (which features the additional
element of elevated rheumatoid factor lab findings), the underlying product of altered B cells
would still be featured. Id. at 114–16. In either case, Dr. Bellanti’s epigenetics theory relied on the
conclusion that B cell alteration can also be caused by environmental triggers such as vaccination.
Tr. at 64–67. But Dr. Schroeder noted an absence of reliable scientific evidence to suggest that the
flu virus or vaccination can directly result in B cell mutations. Id. at 116.
In so maintaining, Dr. Schroeder rejected the probative value of the limited literature
offered by Petitioner. Lohse, for example, expressly avoided concluding that vaccine causality was
established by its findings from the case studies it considered. Tr. at 126 (citing Lohse at 359
(finding that a relationship between vaccination and cryoglobulinemia could not be confirmed)).
Catsoulis was similarly unpersuasive in Dr. Schroeder’s estimation. Id. at 111–13. The
hyperimmunization achieved in Catsoulis could not be induced by the administration of a single
high dose flu vaccine like that received by Dr. Temes. Id. at 111. Therefore, the effects of
hyperimmunization observed in Catsoulis—the production of cryoglobulins—could not have
resulted from Dr. Temes’s vaccination. Id.
Dr. Schroeder also discussed whether Dr. Temes’s leukocytoclastic vasculitis diagnosed in
2017 could be vaccine-attributed, as a secondary result of cryoglobulinemia first observed fifteen
months earlier. Tr. at 125–29, 146–53, 155, 160–65. He emphasized that the literature offered by
Petitioner to support the proposition that vaccines can cause vasculitis did not involve patients first
suffering from cryoglobulinemia. Tr. at 163–65 (citing S. Monjazeb et al., A Case of
Leukocytoclastic Vasculitis Following Influenza Vaccination, 2 JAAD Case Reports 340, 340–42
(2016), filed Sept. 16, 2019 as Ex. 56 (ECF No. 48-2) (“Monjazeb”); B. Fox & A. Peterson,
Leukocytoclastic Vasculitis After Pneumococcal Vaccination, 26 AJIC 365, 365–66 (1998), filed
Sept. 16, 2019 as Ex. 57 (ECF No. 58-3) (“Fox”)).
Dr. Temes’s vasculitis, by contrast, was secondary to the cryoglobulins precipitating in his
blood, and thus did not itself reflect a direct vaccine injury as discussed in such articles. Tr. at 125.
Dr. Schroeder also observed that the supposed connection between vaccination and vasculitis as a
general matter was itself not reliably supported, citing a comprehensive literature review analyzing
seventy-five studies that concluded that no causal relationship could be confirmed with existing
data. C. Bonetto et al., Vasculitis as an Adverse Event Following Immunization – Systemic
Literature Review, Vaccine 1, 8 (2015), filed as Ex. E (ECF No. 28-5) (“Bonetto”). Additionally,
proposed diagnostic criteria for “cryoglobulinemia vasculitis” includes the presence of
leukocytoclastic vasculitis, further suggesting that clinical manifestations of vasculitis under such
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circumstances were dependent on the pre-existence of cryoglobulinemia. Damoiseaux at 305.
Regarding the onset of Petitioner’s condition, Dr. Schroeder opined that clinical evidence
appearing within a week of vaccination, as here, was too quick to establish a causal relationship
between the two. Tr. at 122–23, 158. Rather, it would take approximately two to three weeks for
an adequate concentration of immunoglobulins to build up in the body before symptoms of
cryoglobulinemia would manifest. Id. Instead, he proposed the possibility that Dr. Temes’s initial
onset was the result of October’s cooler temperatures in Kentucky where Dr. Temes resides—
though Dr. Schroeder was unable to confirm that Dr. Temes’s cryoglobulinemia likely pre-dated
his vaccination. Id. at 123, 157. Dr. Schroeder also admitted that his views on timing had not been
set out in his original reports. Id. at 139–44.
While Dr. Schroeder largely opposed the opinions of Dr. Bellanti, there were several points
on which both experts agreed. First, Dr. Schroeder agreed that Petitioner’s condition was properly
diagnosed as Type II mixed cryoglobulinemia, despite initial reports and medical records
documenting a diagnosis of Type I cryoglobulinemia. Tr. at 125, 142, 166. He also acknowledged
that several of Dr. Temes’s treating physicians expressed the opinion that his condition was related
to the vaccinations that he received in October 2015. Tr. at 128, 158–59. He did not, however, find
this treater support persuasive due to the lack of confirmatory studies. Id. Lastly, after expressing
some skepticism (Tr. at 125, 146), Dr. Schroeder ultimately agreed that Petitioner later experienced
leukocytoclastic vasculitis secondary to his cryoglobulinemia. Tr. at 152, 165.
III. Procedural History
As previously noted, this matter commenced with the filing of the Petition on November
7, 2016. Over the following months, Petitioner filed medical records in support of his claim.
Respondent thereafter filed a Rule 4(c) Report on May 25, 2017, asserting that compensation is
not appropriate in this case. Respondent’s Report, filed May 25, 2017 (ECF No. 15). Petitioner
subsequently filed a report from Dr. Bellanti and supporting literature on October 16, 2017.
Respondent filed a responsive report by Dr. Schroeder on April 6, 2018, along with literature in
opposition to Petitioner’s position. Both Petitioner and Respondent then filed supplemental expert
reports on May 25, 2018 and July 13, 2018 respectively. The parties filed their respective pre-
hearing briefs over the summer of 2019, and a one-day entitlement hearing took place on
September 10, 2019. The parties elected to file post-hearing briefs, which they did on November
21, 2019, and the matter is fully ripe for resolution.
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IV. Applicable Law
A. Petitioner’s Overall Burden in Vaccine Program Cases
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 2010); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006).21
In this case, Petitioner does not assert a Table claim.
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec’y of Health & Human Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.”
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344,
1352–53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen: “(1) a medical theory causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the vaccination was the reason for the injury;
and (3) a showing of proximate temporal relationship between vaccination and injury.” Althen v.
Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005).
21 Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding
authority. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings
concerning legal issues are binding on special masters. Guillory v. Sec’y of Health & Human Servs., 59 Fed. Cl. 121,
124 (2003), aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Human Servs., No. 13-
159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
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Each of the Althen prongs requires a different kind of evidentiary showing. Under Althen
prong one, petitioners must provide a “reputable medical theory,” demonstrating that the vaccine
received can cause the type of injury alleged. Pafford, 451 F.3d at 1355–56 (citations omitted). To
satisfy this prong, a petitioner’s theory must be based on a “sound and reliable medical or scientific
explanation.” Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994).
Such a theory must only be “legally probable, not medically or scientifically certain.” Id. at 549.
Petitioners may satisfy the first Althen prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
theory. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009)
(citing Capizzano, 440 F.3d at 1325–26). Special masters, despite their expertise, are not
empowered by statute to conclusively resolve what are essentially thorny scientific and medical
questions, and thus scientific evidence offered to establish Althen prong one is viewed “not through
the lens of the laboratorian, but instead from the vantage point of the Vaccine Act’s preponderant
evidence standard.” Id. at 1380. Accordingly, special masters must take care not to increase the
burden placed on petitioners in offering a scientific theory linking vaccine to injury.
In discussing the evidentiary standard applicable to the first Althen prong, the Federal
Circuit has consistently rejected the contention that it can be satisfied merely by establishing the
proposed causal theory’s scientific or medical plausibility. See Boatmon v. Sec’y of Health &
Human Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019); see also LaLonde v. Sec’y of Health &
Human Servs., 746 F.3d 1334, 1339 (Fed. Cir. 2014) (“[h]owever, in 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.” (citing Moberly, 592 F.3d at 1322)). Petitioners otherwise always have the
ultimate burden of establishing their overall Vaccine Act claim with preponderant evidence,
regardless of what evidentiary level of evidence on the “can cause” prong is required. W.C. v. Sec’y
of Health & Human Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013) (citations omitted); Tarsell, 133
Fed. Cl. at 793 (noting that Moberly “addresses the petitioner’s overall burden of proving
causation-in-fact under the Vaccine Act” by a preponderance standard).
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,
569 F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Human Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
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trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Medical records and statements of a treating physician, however, do not per se bind the
special master to adopt the conclusions of such an individual, even if they must be considered and
carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment,
test result, report, or summary shall not be binding on the special master or court”); Snyder v. Sec’y
of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is nothing . . . that mandates
that the testimony of a treating physician is sacrosanct—that it must be accepted in its entirety and
cannot be rebutted”). As with expert testimony offered to establish a theory of causation, the
opinions or diagnoses of treating physicians are only as trustworthy as the reasonableness of their
suppositions or bases. The views of treating physicians should be weighed against other, contrary
evidence also present in the record—including conflicting opinions among such individuals.
Hibbard v. Sec’y of Health & Human Servs., 100 Fed. Cl. 742, 749 (2011) (not arbitrary or
capricious for special master to weigh competing treating physicians’ conclusions against each
other), aff’d, 698 F.3d 1355 (Fed. Cir. 2012); Veryzer v. Sec’y of Dept. of Health & Human Servs.,
No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review
denied, 100 Fed. Cl. 344, 356 (2011), aff’d without opinion, 475 F. Appx. 765 (Fed. Cir. 2012).
The third Althen prong requires establishing a “proximate temporal relationship” between
the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to the
phrase “medically-acceptable temporal relationship.” Id. A petitioner must offer “preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder’s etiology, it is medically acceptable to infer causation.” de Bazan
v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for
what is a medically acceptable timeframe must align with the theory of how the relevant vaccine
can cause an injury (Althen prong one’s requirement). Id. at 1352; Shapiro v. Sec’y of Health &
Human Servs., 101 Fed. Cl. 532, 542 (2011), recons. denied after remand, 105 Fed. Cl. 353 (2012),
aff’d mem., 503 F. Appx. 952 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Human Servs., No. 11-
355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for rev. denied (Fed. Cl. Dec.
3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
B. Legal Standards Governing Factual Determinations
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [] relevant medical and scientific evidence contained in the record,” including “any
diagnosis, conclusion, medical judgment, or autopsy or coroner’s report which is contained in the
record regarding the nature, causation, and aggravation of the petitioner’s illness, disability, injury,
condition, or death,” as well as the “results of any diagnostic or evaluative test which are contained
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in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special master is then
required to weigh the evidence presented, including contemporaneous medical records and
testimony. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (it is
within the special master’s discretion to determine whether to afford greater weight to
contemporaneous medical records than to other evidence, such as oral testimony surrounding the
events in question that was given at a later date, provided that such determination is evidenced by
a rational determination).
Medical records that are created contemporaneously with the events they describe are
presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient’s
health problems). Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Human Servs., 95 Fed.
Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner’s testimony and his
contemporaneous medical records, the special master’s decision to rely on petitioner’s medical
records was rational and consistent with applicable law”), aff’d sub nom. Rickett v. Sec’y of Health
& Human Servs., 468 F. Appx. 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption
is based on the linked propositions that (i) sick people visit medical professionals; (ii) sick people
honestly report their health problems to those professionals; and (iii) medical professionals record
what they are told or observe when examining their patients in as accurate a manner as possible,
so that they are aware of enough relevant facts to make appropriate treatment decisions. Sanchez
v. Sec’y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013); Cucuras v. Sec’y of Health & Human Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993
F.2d at 1525 (Fed. Cir. 1993) (“[i]t strains reason to conclude that petitioners would fail to
accurately report the onset of their daughter’s symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V, 2005
WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical
records are generally found to be deserving of greater evidentiary weight than oral testimony—
especially where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528;
see also Murphy v. Sec’y of Dep’t of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (citing
United States v. United States Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been
held that oral testimony which is in conflict with contemporaneous documents is entitled to little
evidentiary weight.”)).
There are, however, situations in which compelling oral testimony may be more persuasive
than written records, such as where records are deemed to be incomplete or inaccurate. Campbell
v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“like any norm based upon
common sense and experience, this rule should not be treated as an absolute and must yield where
the factual predicates for its application are weak or lacking”); Lowrie, 2005 WL 6117475, at *19
(“’[w]ritten records which are, themselves, inconsistent, should be accorded less deference than
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those which are internally consistent’”) (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a
determination regarding a witness’s credibility is needed when determining the weight that such
testimony should be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec’y of Health & Human
Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec’y of Health & Human
Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In
determining the accuracy and completeness of medical records, the Court of Federal Claims has
listed four possible explanations for inconsistencies between contemporaneously created medical
records and later testimony: (1) a person’s failure to recount to the medical professional everything
that happened during the relevant time period; (2) the medical professional’s failure to document
everything reported to her or him; (3) a person’s faulty recollection of the events when presenting
testimony; or (4) a person’s purposeful recounting of symptoms that did not exist. Lalonde v. Sec’y
of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014).
In making a determination regarding whether to afford greater weight to contemporaneous medical
records or other evidence, such as testimony at hearing, there must be evidence that this decision
was the result of a rational determination. Burns, 3 F.3d at 417.
C. Analysis of Expert Testimony
Establishing a sound and reliable medical theory often requires a petitioner to present
expert testimony in support of his claim. Lampe v. Sec’y of Health & Human Servs., 219 F.3d
1357, 1361 (Fed. Cir. 2000). Vaccine Program expert testimony is usually evaluated according to
the factors for analyzing scientific reliability set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 594–96 (1993). See Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328,
1339 (Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316
(Fed. Cir. 1999)). “The Daubert factors for analyzing the reliability of testimony are: (1) whether
a theory or technique can be (and has been) tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) whether there is a known or potential rate of error
and whether there are standards for controlling the error; and (4) whether the theory or technique
enjoys general acceptance within a relevant scientific community.” Terran, 195 F.3d at 1316 n.2
(citing Daubert, 509 U.S. at 592–95).
The Daubert factors play a slightly different role in Vaccine Program cases than they do
when applied in other federal judicial fora (such as the district courts). Daubert factors are usually
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable and/or could confuse a jury. In Vaccine Program cases, by contrast, these factors
are used in the weighing of the reliability of scientific evidence proffered. Davis v. Sec’y of Health
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& Human Servs., 94 Fed. Cl. 53, 66–67 (2010) (“uniquely in this Circuit, the Daubert factors have
been employed also as an acceptable evidentiary-gauging tool with respect to persuasiveness of
expert testimony already admitted”). The flexible use of the Daubert factors to evaluate the
persuasiveness and reliability of expert testimony has routinely been upheld. See, e.g., Snyder, 88
Fed. Cl. at 742–45. In this matter (as in numerous other Vaccine Program cases), Daubert has not
been employed at the threshold, to determine what evidence should be admitted, but instead to
determine whether expert testimony offered is reliable and/or persuasive.
Respondent frequently offers one or more experts of his own in order to rebut a petitioner’s
case. Where both sides offer expert testimony, a special master’s decision may be “based on the
credibility of the experts and the relative persuasiveness of their competing theories.”
Broekelschen, 618 F.3d at 1347 (citing Lampe, 219 F.3d at 1362). However, nothing requires the
acceptance of an expert’s conclusion “connected to existing data only by the ipse dixit of the
expert,” especially if “there is simply too great an analytical gap between the data and the opinion
proffered.” Snyder, 88 Fed. Cl. at 743 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997));
see also Isaac v. Sec’y of Health & Human Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed.
Cl. Spec. Mstr. July 30, 2012), mot. for rev. denied, 108 Fed. Cl. 743 (2013), aff’d, 540 F. Appx.
999 (Fed. Cir. 2013) (citing Cedillo, 617 F.3d at 1339). Weighing the relative persuasiveness of
competing expert testimony, based on a particular expert’s credibility, is part of the overall
reliability analysis to which special masters must subject expert testimony in Vaccine Program
cases. Moberly, 592 F.3d at 1325–26 (“[a]ssessments as to the reliability of expert testimony often
turn on credibility determinations”); see also Porter v. Sec’y of Health & Human Servs., 663 F.3d
1242, 1250 (Fed. Cir. 2011) (“this court has unambiguously explained that special masters are
expected to consider the credibility of expert witnesses in evaluating petitions for compensation
under the Vaccine Act”).
Expert opinions based on unsupported facts may be given relatively little weight. See
Dobrydnev v. Sec’y of Health & Human Servs., 556 F. Appx. 976, 992–93 (Fed. Cir. 2014) (“[a]
doctor’s conclusion is only as good as the facts upon which it is based”) (citing Brooke Group Ltd.
v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“[w]hen an expert assumes
facts that are not supported by a preponderance of the evidence, a finder of fact may properly reject
the expert’s opinion”)). Expert opinions that fail to address or are at odds with contemporaneous
medical records may therefore be less persuasive than those which correspond to such records. See
Gerami v. Sec’y of Health & Human Servs., No. 12-442V, 2013 WL 5998109, at *4 (Fed. Cl. Spec.
Mstr. Oct. 11, 2013), aff’d, 127 Fed. Cl. 299 (2014).
D. Consideration of Medical Literature
Both parties filed medical and scientific literature in this case, but not every filed item
factors into the outcome of this decision. While I have reviewed all the medical literature submitted
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in this case, I discuss only those articles that are most relevant to my determination and/or are
central to Petitioner’s case—just as I have not exhaustively discussed every individual medical
record filed. Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016)
(“[w]e generally presume that a special master considered the relevant record evidence even
though he does not explicitly reference such evidence in his decision”) (citation omitted); see also
Paterek v. Sec’y of Health & Human Servs., 527 F. Appx. 875, 884 (Fed. Cir. 2013) (“[f]inding
certain information not relevant does not lead to—and likely undermines—the conclusion that it
was not considered”).
E. Consideration of Comparable Special Master Decisions
In reaching a decision in this case, I have considered other decisions issued by special
masters (including my own) involving similar injuries, vaccines, or circumstances. I also reference
some of those cases in this Decision, in an effort to establish common themes, as well as
demonstrate how prior determinations impact my thinking on the present case.
There is no error in doing so. It is certainly correct that prior decision in different cases do
not control the outcome herein.22 Boatmon v. Sec’y of Health & Human Servs., 941 F.3d 1351,
1358–59 (Fed. Cir. 2019); Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998).
Thus, the fact that another special master reasonably determined elsewhere, on the basis of facts
not in evidence in this case, that preponderant evidence supported the conclusion that vaccine X
caused petitioner’s injury Y does not compel me to reach the same conclusion in this case.
Different actions present different background medical histories, different experts, and different
items of medical literature, and therefore can reasonably result in contrary determinations.
However, it is equally the case that special masters reasonably draw upon their experience
in resolving Vaccine Act claims. Doe v. Sec’y of Health & Human Servs., 76 Fed. Cl. 328, 338–
39 (2007) (“[o]ne reason that proceedings are more expeditious in the hands of special masters is
that the special masters have the expertise and experience to know the type of information that is
most probative of a claim”) (emphasis added). They would therefore be remiss in ignoring prior
cases presenting similar theories or factual circumstances, along with the reasoning employed in
reaching such decisions. This is especially so given that special masters not only routinely hear
from the same experts in comparable cases but are also repeatedly offered the same items of
medical literature regarding certain common causation theories. It defies reason and logic to
obligate special masters to “reinvent the wheel”, so to speak, in each new case before them, paying
22 By contrast, Federal Circuit rulings concerning legal issues are binding on special masters. Guillory v. Sec’y of
Health & Human Servs., 59 Fed. Cl. 121, 124 (2003), aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see also Spooner v.
Sec’y of Health & Human Servs., No. 13-159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
Special masters are also bound within a specific case by determinations made by judges of the Court of Federal Claims
after a motion for review is resolved.
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no heed at all to how their colleagues past and present have addressed similar causation theories
or fact patterns. It is for this reason that prior decisions can have high persuasive value—and why
special masters often explain how a new determination relates to such past decisions.23 Even if the
Federal Circuit does not require special masters to distinguish other relevant cases (Boatmon, 941
F.3d at 1358), it is still wise to do so.
ANALYSIS
I. Overview of Cryoglobulinemia
The experts largely agreed on the characteristics of cryoglobulinemia, but a few additional
points are in order. Cryoglobulinemia is a condition in which particular serum antibodies called
“cryoglobulins” reversibly precipitate in the blood when cooled below 37 degrees Celsius (98.8
degrees Fahrenheit). Damoiseaux at 299. As a result, complex deposits form in the blood vessels,
causing the blood to become more viscous. Id. at 299, 302. These deposits and the increased blood
viscosity may result in vascular occlusion and other vasculitic harm. Id.
Because there are three subtypes of cryoglobulinemia, careful differentiation can provide
useful information regarding potential etiologies and treatment options. Type I is typically
associated with lymphoproliferative diseases and monoclonal IgM.24 Damoiseaux at 299–300.
Type II, or “mixed” cryoglobulenimia is thought to be caused by systemic autoimmune or
infectious disease, and features monoclonal IgM, polyclonal IgG, and rheumatoid factor activity.
Id. Type II is particularly associated with a hepatitis C infection. Damoiseaux at 303. Type III,
which is also associated with autoimmune and infectious processes, may consist of monoclonal
IgM, polyclonal IgG, and/or polyclonal IgA in any combination and may also feature rheumatoid
factor activity. Id. Types II and III are characterized by the formation of immune complexes and
are therefore called mixed cryoglobulins. Id. at 300. In this case, there is no dispute that Dr. Temes
most likely had Type II cryoglobulinemia, given his rheumatoid factor findings, although the
record does not suggest he was ever found to possess an intercurrent hepatitis C infection. Tr. at
70–71, 98. 142, 144–45.25
23 Consideration of prior determinations is a two-way street that does not only inure to the benefit of one party. Thus,
I would likely take into account the numerous decisions finding no association between vaccination and autism when
confronted with a new claim asserting autism as an injury and have informed such claimants early in the life of their
case that the claim was not viable for just that reason. But I would also deem a non-Table claim asserting GBS after
receipt of the flu vaccine as not requiring extensive proof on Althen prong one “can cause” matters, for the simple
reason that the Program has repeatedly litigated the issue in favor of petitioners.
24 IgM is a specific class of immunoglobulins and is involved in the activation of complement pathways as well as the
initiation of phagocytosis of bound antigens. Dorland’s at 913, 919.
25 This agreement was reached only after Dr. Temes’s treating physician, Dr. Lust, was asked to reevaluate Dr.
Temes’s diagnosis in light of Dr. Schroeder’s initial expert report, which noted that Dr. Lust had diagnosed Dr. Temes
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While the serological differences between the subtypes is helpful in distinguishing between
them, their clinical manifestations will also differ and can provide further diagnostic clarity.
Symptoms of Type I cryoglobulinemia include Raynaud’s phenomenon, peripheral necrosis,
increased blood viscosity, and vascular occlusion—though in some cases vasculitis may also
occur. Damoiseaux at 302. It is commonly comorbid with Waldenstrӧm’s macroglobulinemia,
monoclonal gammopathy of unknown significance, or some other lymphoproliferative disease. Id.
Type II cryoglobulinemia, by contrast, often manifests as cutaneous vasculitis and peripheral
neuropathy. Id. In mixed cryoglobulinemia (Type II or III) the immune complexes that form will
interact with complement, thereby interfering with the biological pathways controlled by
complement proteins. Id. at 304. Therefore, measuring complement levels—especially that of
C4—is particularly helpful in the diagnosis and management of mixed cryoglobulinemia. Id. The
presence of rheumatoid factor also distinguishes mixed cryoglobulinemias from Type I. Id.
Treatment of cryoglobulinemia is ill-defined. Where an underlying disease process results
in cryoglobulinemia, such as with lymphoproliferative diseases, treatment of the underlying
disease is the first treatment option employed. Damoiseaux at 306. In mixed cryoglobulinemias
with unknown etiology, by contrast, treatment may be more varied, and may include nonsteroidal
anti-inflammatory drugs or short-term corticosteroids. Id. Avoidance of cold temperatures is also
recommended. Id. For patients who experience relapses in their symptoms, Rituximab (Rituxan)
appears to be an effective treatment. Id.
While cryoglobulinemia has not been alleged as a vaccine injury in prior Program cases,
vasculitic injuries are commonly alleged and have been litigated with varying degrees of success.
See, e.g., Bourche v. Sec’y of Health & Human Servs., No. 15-232V, 2020 WL 571061 (Fed. Cl.
Spec. Mstr. Jan. 7, 2020) (denying entitlement where the alleged injuries included leukocytoclastic
vasculitis after receiving the hepatitis B vaccine); Guzman v. Sec’y of Health & Human Servs., No.
15-736V, 2019 WL 2723392 (Fed. Cl. Spec. Mstr. May 14, 2019) (denying entitlement where
petitioner alleged cutaneous vasculitis following receipt of the flu vaccine); but see McElroy v.
Sec’y of Health & Human Servs., No. 11-679V, 2012 WL 1739873 (Fed. Cl. Spec. Mstr. Apr. 13,
2012) (finding that petitioner was entitled to compensation after providing preponderant evidence
that the flu vaccine caused her to develop urticaria vasculitis within a few days to a week after).
with Type I cryoglobulinemia—the subtype least likely to be associated with an autoimmune or infectious disease
process (and therefore far less likely to be vaccine-caused). See Ex. 50; First Schroeder Rep. at 7. Dr. Lust
subsequently revised his diagnosis and explained that due to the presence of rheumatoid factor, Dr. Temes’s condition
was best classified as Type II mixed cryoglobulinemia. Ex. 50. Thus, although it could be inferred that some of the
impetus to modify Petitioner’s original diagnosis was to support the present claim, the fact that both experts have
accepted it, and that it has evidentiary support, means that the new diagnosis has been preponderantly established.
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II. Petitioner has Not Preponderantly Supported His Burden in Proving Causation
A. Petitioner Has Not Offered a Scientifically-Reliable Causation Theory (Althen
Prong One)
As a threshold matter, I note that Petitioner erroneously argues for an evidentiary standard
of mere plausibility in evaluating his success in establishing the “can cause” prong of the Althen
test. Pet. Post-Hearing Brief at 5 (“Petitioner’s plausible theory of causation presented is that, the
vaccination alone, or in combination with a compromised immune system triggered an abnormal
response in Dr. Temes, which caused him to develop Type II Cryoglobulinemia within a medically
acceptable time frame.” (emphasis added)). Such a standard has consistently been rejected by the
Federal Circuit. Boatmon, 941 F.3d at 1359 (rejecting the “plausibility” standard). Rather, special
masters are tasked with determining whether the proffered theory is “reputable,” or “sound and
reliable.” Id. While the preponderant standard set by the Vaccine Act does not mandate medical
certainty, it also does not permit recovery simply based on the reasonable-sounding nature of a
particular theory. Applying the correct standard, I find that Petitioner has failed to proffer a
medically or scientifically reliable theory of causation as is required under the first Althen prong.
First, Petitioner over-relies on assumptions about the interplay of vaccination with genetic
susceptibility to cryoglobulinemia that the evidence does not support. Dr. Bellanti proposed that
vaccines could trigger malfunction in the expression of genes responsible for cryoglobulin
production. Tr. at 67. He did not, however, identify the genes responsible for cryoglobulin
production, discuss which vaccine components could trigger or silence gene expression, and did
not offer persuasive evidence showing that any vaccines, the specific ones at issue, or even the
wild virus or bacterial antigens underlying those vaccines have this capacity. Id. at 64 (“[T]he
vaccine that caused this abnormal reduction of this gammaglobulin called cryoglobulin. Why that
occurs, we don’t have all the answers”). Indeed, Dr. Bellanti allowed that other environmental
factors (e.g., exposure to pollutants) could also cause alterations in gene expression (thus
complicating the assertion that vaccines would more likely explain this event), and that because
gene expression will change throughout a person’s lifetime, it was conceivable that such changes
predated a given vaccination event. None of the literature offered in this case otherwise
acknowledged epigenetics as a potential mechanism through which an individual may develop
cryoglobulinemia, regardless of trigger.
The second step of Petitioner’s proffered theory proposed that an immunocompromised
state (resulting from the above referenced epigenetic changes) allowed vaccination to initiate the
abnormal production of cryoglobulins. Tr. at 73–74; Petitioner’s Post-Hearing Brief, filed Nov.
21, 2019 (ECF No. 54) (“Pet. Post-Hearing Brief”) at 5. Relying particularly on Catsoulis,
Petitioner argues that pneumococcal vaccines can invoke cryoglobulin production. Pet. Post-
Hearing Brief at 5; Catsoulis at 327. However, Catsoulis’s probative value is limited. Not only was
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its study conducted over fifty years ago (and thus its findings lack recent corroboration or follow-
up), but Catsoulis found that cryoglobulin production was induced in animal subjects only after
hyperimmunization over the course of months. Catsoulis at 327 (explaining that the rabbits were
immunized every three days, and usually thereafter developed cryoglobulins within three to four
months). It also noted that the particular cryoglobulins were specific to the antigen causing the
agglutination (pneumococci), and yet this has not been demonstrated to have occurred in Dr.
Temes’s case. Id. Accordingly, although Catsoulis does suggest that the pneumococcal vaccine
could cause cryoglobulin formation, it does so under circumstances that are not comparable to a
single-instance receipt of the vaccine.
The evidence that the flu vaccine could similarly induce cryoglobulin production, by
contrast, lacked any similar evidentiary support, and was only vaguely supported in Petitioner’s
case. Pet. Post-Hearing Brief at 7; Tr. at 56–57, 64, 73–74. At best, Dr. Bellanti appears to have
assumed that the same hyperimmunization effect was possible when dealing with a high-dose
version of the vaccine comparable to what was administered in this case. Pet. Post-Hearing Brief
at 7; Tr. at 56, 64. This contention was not supported with more than conclusory statements (again
rooted in a conception of plausibility as sufficient to meet the Program’s evidentiary standards),
and a single high dose flu vaccine is unlikely to produce results similar to those seen in Catsoulis,
which required roughly thirty to forty immunizations to induce cryoglobulinemia. Catsoulis at 327;
Tr. at 111.
Petitioner also sought to establish a causal relationship between the flu vaccine and
cryoglobulinemia by invoking case reports of post-vaccination vasculitis (and in particular
leukocytoclastic vasculitis). See generally Pet. Post-Hearing Brief at 8. In so doing, Petitioner
reasoned that because cryoglobulinemia can result in the subsequent development of
leukocytoclastic vasculitis, then a causal relationship likely also exists between vaccines and
cryoglobulinemia. Tr. at 146–53, 160–62, 165; see generally Tavadia; Monjazeb; Fox.
There are, however, several flaws with this argument. First, none of the referenced case
reports confirmed a causal relationship between vaccination and the subsequent development of
leukocytoclastic vasculitis in the first place. See, e.g., Monjazeb at 341 (“[t]he temporal nature of
these cases of vasculitis following vaccination suggest an immunopathogenic link that has yet to
be explained.”). Second, the primary “injury” in this case is Type II cryoglobulinemia—not
leukocytoclastic vasculitis, which can occur independently—and it is well understood in the
Program that establishing that a vaccine can cause a comparable injury is not especially strong
support for the contention that it caused the injury at issue. See, e.g., Hunt v. Sec’y of Health &
Human Servs., No. 12-232V, 2015 WL 1263356, at *15 (Fed. Cl. Spec. Mstr. Feb. 23, 2015)
(denying entitlement where MS was the alleged injury, but the literature offered discussed causal
relationship between vaccines and acute disseminated encephalomyelitis). With the exception of
Lohse, none of the cited case reports observing temporal association between leukocytoclastic
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vasculitis and vaccination mentioned cryoglobulinemia as occurring first. While Lohse suggests
that cryoglobulinemia and hypersensitivity vasculitides such as leukocytoclastic vasculitis may
develop simultaneously, it does not describe how an initial onset of cryoglobulinemia can produce
leukocytoclastic vasculitis years later, as in Dr. Temes’s case. See Lohse at 359.
Third, the general fact that some probative evidence exists for the proposition that a vaccine
can cause a secondary condition does not inexorably lead to the conclusion that it can also be
causal of the preceding injury or illness. To give but one possible example, paraneoplastic
syndrome can occur as the consequence of a cancerous tumor in the body, stimulating aberrant
immune responses that can result in disease processes, such as Guillain-Barré syndrome (“GBS”).
GBS is itself understood to be vaccine-caused in some rare instances—but this does not mean that
vaccines can also cause the tumor giving rise to the syndrome. See, e.g., Sweeney v. Sec’y of Health
& Human Servs., No. 13-392V, 2020 WL 1844672, at *20–23 (Fed. Cl. Spec. Mstr. Feb. 28, 2020)
(providing extensive discussion regarding the relationship between paraneoplastic syndrome and
GBS).
Finally, Petitioner’s explanation for how a one-time vaccination event could result in a
chronic condition was also scientifically unreliable. To substantiate this aspect of his causation
theory, his expert Dr. Bellanti relied on two biologic mechanisms—molecular mimicry and
bystander activation. Tr. at 101. But neither were persuasively shown to have more than theoretical
applicability in this case.
Molecular mimicry is a mechanistic explanation for an autoimmune process, wherein the
immune system of an individual reacts to self-structures as well as a foreign antigen because the
self-structures are sufficiently similar in molecular composition to the foreign antigen that the
immune system is unable to distinguish between the two. See, e.g., Stewart v. Sec’y of Health &
Human Servs., No. 06-777V, 2011 WL 3241585, at *16 (Fed. Cl. Spec. Mstr. July 8, 2011)
(concluding that molecular mimicry was a reliable scientific theory explaining how the flu vaccine
could cause GBS, based on submitted literature and expert testimony identifying specific
homology between the myelin sheath and components of the flu vaccine). But beyond conclusory
statements by Dr. Bellanti, no reliable literature was offered to suggest that the relevant vaccines
can trigger such a process in causing persistent cryoglobulinemia.26
Dr. Bellanti’s characterizations of bystander activation as possibly explaining the
persistence of a vaccine-caused cryoglobulinemia were no better supported, and in fact were
inconsistent. When he first described bystander activation, Dr. Bellanti indicated that following
the initial activation of the immune system, nearby cells not directly implicated in the initial
26 There is some evidence that chronic hepatitis C infections may cause cryoglobulinemia through the mechanistic
process of molecular mimicry. Damoiseaux at 303. This is because monoclonal IgM rheumatoid factor in mixed
cryoglobulinemias share substantial homology with outer layer of the hepatitis C virus. Id. Evidence of similar
homologies in either the flu virus or Streptococcus pneumoniae bacterium was not offered in this case.
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response are activated and can thereby perpetuate the inflammatory response. Tr. at 101. But he
went on to maintain that bystander activation occurs when antigens destroy cellular structures,
causing the destroyed cells to themselves become antigenic. Id. at 103. Although the former version
has been deemed scientifically reliable (see, e.g., Bender v. Sec’y of Health & Human Servs., No.
11-693V, 2018 WL 3679637, at *7–8, *28 (Fed. Cl. Spec. Mstr. July 2, 2018) (discussing the
theory of bystander activation at length but ultimately rejecting it as a reliable theory of causation)),
Dr. Bellanti did not substantiate his contention with either independent literature or his own
personal experience and research to show that cryoglobulinemia is known to become chronic in
this manner.
The more fundamental deficiency with Petitioner’s arguments about how his disease
process became chronic is based in what is known about cryoglobulinemia. As Dr. Schroeder
explained, IgM antibody production increases three to four weeks post-vaccination, but then
declines as B cells responsible for the production of these antibodies expire. Tr. at 114. Only
ongoing exposure to an antagonizing antigen will perpetuate IgM production (and this usually
occurs in cases of Type II/mixed cryoglobulinemia as a result of a persistent hepatitis C infection).
See Tr. at 114, 121; Damoiseaux at 303. But Petitioner did not offer any evidence to suggest that
the antigenic components of the flu and/or pneumococcal vaccines remained present and active in
the body for a sufficiently prolonged period to produce the same chronic effects. Id. at 122.27
With the relatively sparse evidentiary support for Petitioner’s arguments relating to
epigenetics, hyperimmunization, molecular mimicry, and bystander activation, Petitioner’s
theories were ultimately too conclusory and incomplete to be deemed preponderantly reliable. The
lack of credible and persuasive evidence on the issue of causation leads me to conclude that
Petitioner has not satisfied the first Althen prong. Though I found Dr. Bellanti was more qualified
to opine on the presented topics overall, his theories were too thin and relied too heavily upon case
reports to successfully carry Petitioner’s burden. Although Respondent may not have persuasively
rebutted Petitioner’s assertions as a whole, Petitioner nevertheless failed at the outset to provide
preponderant evidence in support of his proposed theories regarding causation.
B. Treater Conclusions About Vaccine Causation Alone Were Not Enough
By Themselves to Satisfy the Second Althen Prong
The second Althen prong requires petitioners to preponderantly establish that the vaccine
in question did cause the alleged injury. Althen, 418 F.3d at 1278. The medical record in this case
does contain some favorable evidence on this point, mainly in the form of statements made by
several of Dr. Temes’s treating physicians in which they expressed the opinion that his
27 I also take note of the relevance of rheumatoid factor in Type II cryoglobulinemia. The record indicates that
Petitioner was found early on to possess this biomarker. See, e.g., Ex. 16 at 178, 273. Petitioner did not propose,
however, that the vaccines he received caused this to occur.
28

Case 1:16-vv-01465-LKG Document 62 Filed 06/12/20 Page 29 of 31
cryoglobulinemia was the result of the vaccinations he received. Ex. 2 at 12; Ex. 16 at 277. Indeed,
Dr. Callen, Dr. Temes’s treating dermatologist, recently co-authored a case report describing Dr.
Temes’s clinical course and observing the (at least temporal) association between the vaccines and
Petitioner’s onset. S. Eid & J. Callen, Type II Mixed Cryoglobulinemia Following Influenza and
Pneumococcal Vaccine Administration, 5 JAAD Case Reports 960, 962 (2019), filed as Ex. 58
(ECF No. 52-2) (“Callen Case Report”). Such evidence is worthy of some weight.
It is, however, well understood in the Program that I am not bound by treater opinions,
especially when other evidence rebuts or contradicts the grounds for such views. Snyder, 88 Fed.
Cl. at 746 n.67 (“there is nothing . . . that mandates that the testimony of a treating physician is
sacrosanct—that it must be accepted in its entirety and cannot be rebutted”). Here, and as
previously discussed, none of the literature filed in this matter supported a causal relationship
between vaccination and the subsequent development of cryoglobulinemia. Nor did Dr. Bellanti
substantiate his opinions with reference to his own experience researching or studying the
condition or its relationship to vaccination. In fact, even Dr. Callen’s case report conceded that
“the mechanisms of vasculitis and cryoglobulinemia induced by the influenza and pneumococcal
vaccination remain unknown” and “it is not clear why cryoglobulins are produced as a response to
a viral antigen triggered in response to a vaccination.” Callen Case Report at 961–62.28
Thus, although the treater views in this case do aid Petitioner’s showing, they ultimately
relied too much on the obvious temporal relationship between vaccination and injury to carry
Petitioner’s “did cause” burden. See, e.g., Callen Case Report at 962 (“Although a causal link with
the influenza vaccination cannot be proved by our observation, we can speculate that based on the
timing of the vaccination, constellation of symptoms, and positive laboratory results, influenza
virus-induced cryoglobulinemia is the most probable cause of our patient’s symptoms”). This
determination is bulwarked by the unpersuasive showing Petitioner made on the first, “can cause”
prong; even if I had found in this case that Petitioner had satisfied the “did cause” prong, his failure
to preponderantly establish the first would still be fatal to his claim. W.C., 704 F.3d at 1356.
The evidence about Dr. Temes’s subsequent development of vasculitis, as diagnosed in
2017, is similarly unsupportive of the conclusion that his injuries were likely vaccine-caused.
While the record preponderantly substantiates that Dr. Temes was properly diagnosed with
leukocytoclastic vasculitis in 2017, it is also the case that the symptoms leading to that diagnosis
did not manifest until a significant time after onset of his cryoglobulinemia in 2015. Tr. at 97–98;
Ex. 54 at 1, 7 (documenting onset of a rash on or around May 25, 2017, and the first biopsy result
confirming the rash as cutaneous vasculitis on May 30, 2017); Ex. 19 at 17 (confirming Petitioner’s
vasculitis diagnosis and more specifically classifying it as leukocytoclastic vasculitis in June
28 I also note that Dr. Callen’s expertise, which lies largely in dermatology further diminished the probative value of
his causation observation.
29

Case 1:16-vv-01465-LKG Document 62 Filed 06/12/20 Page 30 of 31
2017). As a result, even if vasculitis can (at least as established in some case reports) be observed
to be vaccine-caused or secondary to cryoglobulinemia,29 here Dr. Temes’s vasculitis so
significantly post-dated vaccination that it is difficult to associate the October 2015 vaccines with
it (especially in the absence of a credible scientific explanation for how the one-time event of
vaccination resulted in a chronic and persistent condition manifesting as leukocytoclastic vasculitis
over 15 months later). My conclusion is bulwarked by the fact that the case reports offered by
Petitioner to support an association between vasculitis and vaccination all involve far shorter post-
vaccination onsets. See, e.g., Tavadia (onset of leukocytoclastic vasculitis within one to two weeks
of receipt of the flu vaccine).
C. Althen Prong Three
Petitioner’s showing with respect to the third Althen prong, involving onset timeframe,
presents a similarly “mixed bag” of evidence that in the end cannot satisfy this element of his
burden, largely due to his inability to persuasively establish the first prong.
The record in this case establishes an obviously close temporal association (approximately
five to seven days) between the date of Dr. Temes’s vaccinations and initial symptoms onset.
Treaters deemed this temporal relationship significant enough to support the conclusion that the
flu and/or pneumococcal vaccines were causal of Petitioner’s cryoglobulinemia. But as a matter
of reliable science, was that timeframe medically acceptable?
Dr. Schroeder noted that it takes approximately five to seven days from the time of
vaccination for B cells to begin the production of plasma and memory cells. Tr. at 117. It then
takes up to three to four weeks more for the body to produce enough IgM antibody to induce
cryoglobulinemia. Id. at 139, 156, 158. And even in Catsoulis, the item of literature most on-point
in associating vaccination with cryoglobulinemia, the process of causing appearance of the
cryoglobulins took several weeks (and only after repeated vaccination). Catsoulis at 328.Thus,
what is known about the pathogenesis of cryoglobulinemia cuts against such a short turn-around
from vaccination to manifestation of the clinical symptoms Petitioner first reported (hand
discoloration, swelling, pain, etc.).
In response, Petitioner argued that Dr. Temes would likely have experienced a faster
response because he had developed immunologic memory from the flu vaccines he had received
throughout his life. Tr. at 139. This proposition, however, was devoid of any literature or expert
support suggesting that such memory can cause the processes resulting in cryoglobulinemia to
occur faster than otherwise usual (even taking into account the fact that Petitioner received a high
29 I do find, however, that Respondent made a robust showing rebutting this conclusion, as evidenced in Bonetto
(which does not support the vaccine-vasculitis association) or Monzajeb and Fox (in which findings of post-
vaccination vasculitis did not also involve cryoglobulinemia).
30

Case 1:16-vv-01465-LKG Document 62 Filed 06/12/20 Page 31 of 31
dose version of the vaccine). This contention was also undermined by the fact that the seasonal flu
vaccine varies year to year, depending upon what strains of the virus are predicted to be most
prevalent (and thus included in the current formulation). See Lohse at 359; Tavadia at 155. It is
therefore speculative to assume that Dr. Temes would likely have had immunologic memory for
the exact flu vaccine formulation he received in October 2015.
Because of the above, I cannot find that Dr. Temes’s onset post-vaccination was medically
acceptable, despite some treater views to the contrary.
CONCLUSION
Dr. Temes was an engaging witness, and he plainly brought this case in the good-faith
belief that the vaccinations he received might be related to his subsequent and sudden development
of cryoglobulinemia. The fact that those symptoms arose so close in time to vaccination was
facially suspicious, and Petitioner unquestionably has marshalled credible treater support for his
claim—even if that support overinvests in the significance of the temporal association between
onset and vaccination (something the law does not do).
But I am compelled by the Vaccine Act and other controlling precedent to decide this case
based upon a preponderant standard, and to weigh evidence offered in support of a claim based
upon its scientific and medical reliability. Here, the Petitioner did not successfully establish that
either the flu or pneumococcal vaccines, acting alone or in combination, could cause
cryoglobulinemia, and/or do so in a timeframe of one week. Thus, the evidence in the record did
not ultimately preponderate in a favorable ruling, even though Petitioner’s showing on the second
Althen prong was more robust.
Accordingly, and for the aforementioned reasons, I DENY entitlement in this case. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL
ENTER JUDGMENT in accordance with the terms of this Decision.30
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
30 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
31

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_16-vv-01465-1
Date issued/filed: 2020-12-07
Pages: 25
Docket text: JUDGE VACCINE REPORTED MEMORANDUM OPINION AND ORDER Denying Petitioner's Motion For Review and Sustaining The Decision Of The Special Master. Signed by Judge Lydia Kay Griggsby. (rs) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01465-LKG Document 68 Filed 12/07/20 Page 1 of 25
In the United States Court of Federal Claims
No. 16-1465V
Filed Under Seal: October 29, 2020
Reissued: December 7, 2020*
)
GERALD TEMES, )
)
Petitioner, )
) National Childhood Vaccine Injury Act,
v. ) 42 U.S.C. § 300aa–1 to –34;
) Influenza Vaccine; Pneumococcal
SECRETARY OF HEALTH AND ) Vaccine; Cryoglobulinemia; Vasculitis.
HUMAN SERVICES, )
)
Respondent. )
)
)
Renee Gentry, Esq., Counsel of Record, Vaccine Injury Clinic, George Washington
University Law School, Washington, DC, for petitioner.
Alexa Roggenkamp, Trial Attorney, Heather L. Pearlman, Assistant Director, Catharine
E. Reeves, Deputy Director, C. Salvatore D’Alessio, Acting Director, Ethan P. Davis, Acting
Assistant Attorney General, Torts Branch, Civil Division, United States Department of Justice,
Washington, DC, for respondent.
MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge
I. INTRODUCTION
Petitioner, Dr. Gerald Temes, seeks review of the May 12, 2020, Decision of the special
master denying his claim for compensation under the National Childhood Vaccine Injury Act
(“Vaccine Act”), 42 U.S.C. § 300aa–1 to –34. For the reasons set forth below, the Court
* This Memorandum Opinion and Order was originally filed under seal on October 29, 2020. ECF No.
65. The parties were given an opportunity to advise the Court of their views with respect to what
information, if any, should be redacted from the Memorandum Opinion and Order. On December 1,
2020, petitioner filed a joint status report on behalf of the parties stating that the parties had no redactions
to the Memorandum Opinion and Order. ECF No. 67. And so, the Court is reissuing its Memorandum
Opinion and Order, dated October 29, 2020, as the public opinion.

Case 1:16-vv-01465-LKG Document 68 Filed 12/07/20 Page 2 of 25
DENIES petitioner’s motion for review of the special master’s May 12, 2020, Decision and
SUSTAINS the decision of the special master.
II. FACTUAL AND PROCEDURAL BACKGROUND1
A. Factual Background
Dr. Temes is a retired thoracic surgeon who has been diagnosed with Type II
cryoglobulinemia—a blood disorder that can lead to vasculitis.2 Pet’r Pet. at 1. In this Vaccine
Act matter, Dr. Temes alleges that he developed cryoglobulinemia as a result of receiving the
influenza (“flu”) and pneumococcal (“Prevnar 13”) vaccines on October 19, 2015. Id.; see also
Pet’r Mot. for Rev. at 1. On May 12, 2020, the special master denied Dr. Temes’ claim for
compensation under the Vaccine Act. See generally May 12, 2020, Decision.
1. Dr. Temes’ Medical History
Dr. Temes’ medical history is discussed in detail in the special master’s May 12, 2020,
Decision and is summarized here. May 12, 2020, Decision at 2-7.
Dr. Temes received the flu and Prevnar 13 vaccines at issue on October 19, 2015. Pet’r
Ex. 8. During a subsequent consultation with Dr. Tuna Ozyurekoglu, a hand specialist, on
October 26, 2015, Dr. Temes reported experiencing symptoms of purple discoloration and
numbness in his hands, which improved in the clinic upon warming. Pet’r Ex. 3 at 6-7.
During an appointment with his primary care physician, Matthew Rogers, M.D., on that
same day, Dr. Temes complained of a persistent high fever that started three days earlier, as well
as hand pain, myalgias in his legs, and dysuria. Pet’r Ex. 1 at 16, 21. At the time, Dr. Rogers
expressed concern that Dr. Temes was experiencing cryoglobulinemia and ordered Dr. Temes to
undergo further laboratory testing. Id. at 20-21.
1 The facts recounted in this Memorandum Opinion and Order are taken from the petitioner’s petition
(“Pet’r Pet.”); petitioner’s motion for review (“Pet’r Mot. for Rev.”) and the memorandum in support
thereof (“Pet’r Mem.”); petitioner’s exhibits (“Pet’r Ex.”); the Secretary’s exhibits (“Resp’t Ex.”) and the
special master’s May 12, 2020, Decision (“May 12, 2020, Decision”). Except where otherwise noted, the
facts recited herein are undisputed.
2 Cryoglobulinemia is a condition in which certain immunoglobulins found in the blood precipitate under
cool conditions. May 12, 2020, Decision at 1 n.3; Dorland’s Illustrated Medical Dictionary 438, 908
(33d ed. 2020).
2

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On October 30, 2015, Dr. Temes presented to John Huber, M.D., for a consultation. Pet’r
Ex. 16 at 273. Dr. Huber reviewed Dr. Temes’ laboratory results and noted a slightly elevated
rheumatoid factor, depressed complement levels, and the absence of cold agglutinins. Id. Dr.
Temes’ cryoglobulin test results were still pending at that time. Id. at 277. A physical
examination revealed signs of ischemia in Dr. Temes’ fingers and toes. Id. at 276. Dr. Huber
concluded that Dr. Temes was likely experiencing mixed cryoglobulinemia as the result of
receiving the flu vaccine. Id. at 277. And so, Dr. Huber prescribed Dr. Temes prednisone and
directed him to follow-up after receiving the results of his cryoglobulin test. Id.
After consulting with a dermatologist, Jeffrey Callen, M.D.—who noted that Dr. Temes’
cryoglobulinemia “is presumed to be due to a[ flu] vaccination[]”—Dr. Temes underwent
additional laboratory testing on November 17, 2015. Pet’r Ex. 2 at 9-10; see also Pet’r Ex. 1 at
183. Dr. Temes subsequently presented for a follow-up appointment on November 24, 2015,
with Dr. Huber, who noted that Dr. Temes’ rheumatoid factor was significantly elevated
compared to his prior test results. Pet’r Ex. 16 at 225. Although Dr. Temes reported improving
pain in his fingers and toes, a physical examination revealed worsening ischemia. Id. at 227.
And so, Dr. Huber ordered Dr. Temes to begin Rituxan treatments, the first of which Dr. Temes
received on December 1, 2015. Id. at 207, 230.
Dr. Temes complained of necrosis in certain fingers and severe pain in his right foot at a
follow-up appointment with Dr. Huber on January 5, 2016. Id. at 161. Dr. Huber noted,
however, an overall improvement in Dr. Temes’ condition and recommended two additional
Rituxan treatments and a continued taper of Dr. Temes’ prednisone dosage from 20 to 10
milligrams per day. Id. at 164, 166-67. At his next appointment with Dr. Huber on January 19,
2016, Dr. Temes exhibited dramatic improvement and showed almost no signs of ischemic
changes in his hands or feet. Id. at 145. And so, Dr. Huber advised Dr. Temes to continue his
Rituxan treatments and to further taper his prednisone to five milligrams per day. Id. at 151.
Throughout the remainder of 2016 and early 2017, Dr. Temes attended numerous follow-
up appointments with various medical providers and he reported considerable improvement of
his symptoms. See generally May 12, 2020, Decision at 5-6. Despite never achieving complete
remission, Dr. Temes was able to return to many of the activities that he had enjoyed prior to the
onset of his cryoglobulinemia, including playing golf. See, e.g., Pet’r Ex. 16 at 84.
3

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Dr. Temes’ condition began to deteriorate again in May 2017, when he experienced
increased discomfort in his hands and feet, as well as pain precipitated by cold temperatures.
Pet’r Ex. 51 at 10. Dr. Huber recommended restarting Rituxan treatments, which Dr. Temes
began on May 18, 2017. Id. On May 30, 2017, Dr. Temes attended a follow-up with Dr. Huber
and complained of a rash on his bilateral feet. Id. A biopsy confirmed that Dr. Temes was
suffering from cutaneous vasculitis. Id.
On June 28, 2017, John Lust, M.D., an expert in the study of cryoglobulinemia at the
Mayo Clinic, reviewed Dr. Temes’ medical history and outside laboratory results and concluded
that they evidenced a diagnosis of leukocytoclastic vasculitis. Pet’r Ex. 19 at 14, 17. Testing
conducted during Dr. Temes’ consultation with Dr. Lust “showed a trace [amount] of
cryoprecipitate and immunofixation[, which] demonstrated a Type II cryoglobulinemia
(monoclonal IgM kappa plus polyclonal IgG).” Pet’r Ex. 50. In his notes from that visit, Dr.
Lust also wrote that Dr. Temes’ “clinical diagnosis” was cryoglobulinemia that developed “in
response to [a flu] vaccination.” Pet’r Ex. 19 at 14. Dr. Lust recommended that Dr. Temes
continue with the two additional Rituxan treatments four weeks apart. Id. But, Dr. Temes
suffered a severe reaction to his Rituxan treatment on July 6, 2017. Pet’r Ex. 51 at 11. And so,
he began treatment with Cytoxan on July 11, 2017. Id.
Dr. Temes continued to follow-up with Dr. Huber throughout the remainder of 2017 and
2018, and his condition remained stable with some slight fluctuations. See May 12, 2020,
Decision at 7. At a follow-up appointment on April 13, 2018, Dr. Huber wrote that Dr. Temes’
symptoms were “clinically . . . more consistent with a Type II cryoglobulinemia that we suspect
was induced by his [flu] vaccine.” Pet’r Ex. 51 at 12. Dr. Temes’ Cytoxan treatment was
discontinued on November 5, 2019. Pet’r Ex. 59 at 13. But, in February of 2020, Dr. Temes’
condition worsened, and his physicians discussed restarting Cytoxan. Id. at 2, 13.
2. Proceedings Before The Special Master
Dr. Temes commenced this Vaccine Act case before the Office of Special Masters on
November 7, 2016. Pet. at 1. In support of his claim, Dr. Temes submitted fifty-seven exhibits
and two affidavits. See Pet’r Exs. 1-59. The special master held an entitlement hearing on
September 10, 2019. See generally Tr. Thereafter, the parties filed post-hearing briefs. See
Pet’r Post-Hr’g Br.; Resp’t Post-Hr’g Resp. Br.
4

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During the entitlement hearing, Dr. Temes testified that he was in overall good health
before the vaccinations, and that he developed a high fever, muscle pain and aches, and
discoloration in one of his fingertips, within a week of his vaccinations. See generally Tr. 14:24-
15:1; Tr. 15:8-15:16. Dr. Temes also testified that he experienced a resurgence of his symptoms
in May 2017, and that he consulted with Dr. Lust at the Mayo Clinic, who expressed the opinion
that the vaccinations that Dr. Temes received may have played a role in the development of his
condition. Tr. 29:19-31:8.
Joseph Bellanti, M.D., an immunologist, provided two expert reports and testimony in
support of Dr. Temes’ claim.3 See generally Pet’r Exs. 20, 52; Tr. 51:8-104:12. Dr. Bellanti
attributed Dr. Temes’ symptoms, which began within a week of vaccination, to an inflammatory
response and he concluded that Dr. Temes suffered from cryoglobulinemia. See Tr. 57:13-58:9.
But, Dr. Bellanti also acknowledged that many cases of cryoglobulinemia are “idiopathic,” or
without a known etiology. Tr. 86:15-86:17; 89:14-89:20.
With regards to Dr. Temes’ theory of causation, Dr. Bellanti’s expert reports and
testimony generally relied upon the concept of epigenetics, which he described as the study of
environmental influence on gene expression. See Tr. at 65:6-66:8. Dr. Bellanti opined that the
vaccines Dr. Temes received triggered the expression of certain genes responsible for producing
cryoglobulins. Tr. 66:23-66:25. He also acknowledged, however, that other environmental
factors, such as changes in nutrition and certain viral infections, could provoke similar changes
in gene expression. Tr. 67:5-67:7.
Dr. Bellanti’s causation theory also “assumed that an aberrant autoimmune response
could cause B cells to produce cryoglobulins essential to the development of cryoglobulinemia.”
May 12, 2020, Decision at 11; Tr. at 81:5-82:22; Pet’r Post-Hr’g Br. at 5. To support this aspect
of his expert opinion, Dr. Bellanti cited to the Catsoulis article—a study involving the effects of
hyper-immunizing rabbits with a pneumococcal vaccine. See Pet’r Ex. 22; E. A. Catsoulis et al.,
Cryoglobulinaemia in Rabbits Hyperimmunized with a Polyvalent Pneumococcal Vaccine, 9
Immunology 327, 327-31 (1965) (“Catsoulis”). This study found that administering the
3 Dr. Bellanti serves as a professor emeritus in pediatrics and microbiology-immunology at the
Georgetown University School of Medicine. Pet’r Ex. 55 at 1.
5

Case 1:16-vv-01465-LKG Document 68 Filed 12/07/20 Page 6 of 25
pneumococcal vaccine to rabbits every three days induced cryoglobulinemia within three to four
months. Catsoulis at 327. The study also found that when the rabbits were no longer vaccinated,
they recovered to baseline within five weeks. Id. at 330. When researchers re-initiated
vaccination, the rabbits suffered a recurrence of cryoglobulinemia, usually after three to five
weeks. Id. at 327. And so, the Catsoulis study concluded that intense pneumococcal
immunization can stimulate the production of cryoglobulins. Id. at 330.
In addition, Dr. Bellanti proposed that molecular mimicry or bystander activation could
explain how vaccine-induced cryoglobulinemia, which is an acute condition, could persist after a
single vaccination. Tr. 101:12-101:17. In this regard, Dr. Bellanti relied upon several case
reports identifying instances of vasculitis, cold contact urticaria, and cryoglobulinemia following
vaccination. See Tr. at 74:16-78:12.4 First, the Tavadia case report describes four cases of
leucocytoclastic vasculitis following receipt of the flu vaccine. See Pet’r Ex. 23; S. Tavadia et
al., Leucocytoclastic Vasculitis and Influenza Vaccination, 28 Clinical and Experimental
Dermatology 154, 154-56 (2003) (“Tavadia”). Second, Dr. Bellanti relied upon the Iyngkaran
case report, which describes a patient who experienced the onset of cutaneous vasculitis and
exacerbation of pre-existing rheumatoid arthritis two weeks after receiving the flu vaccine. See
Pet’r Ex. 24; P. Iyngkaran et al., Rheumatoid Vasculitis Following Influenza Vaccination, 42
Rheumatology 907, 907-09 (2003) (“Iyngkaran”). Third, Dr. Bellanti cited to the Raison-Peyron
4 Dr. Temes submitted the following medical literature in support of his claim: (1) E. A. Catsoulis et al.,
Cryoglobulinemia in Rabbits Hyperimmunized with a Polyvalent Pneumococcal Vaccine, 9 Immunology
327, 327-331 (1965); (2) S. Eid & J. Callen, Type II Cryoglobulinemia Following Influenza and
Pneumococcal Vaccine Administration, 5(11) JAAD Case Rep. 960, 961-62 (2019); (3) Patrizia Felicetti
et al., Spontaneous Reports of Vasculitis as an Adverse Event Following Immunization: A Descriptive
Analysis Across Three International Databases, Vaccine (2016); (4) B. Fox & A. Peterson,
Leukocytoclastic Vasculitis After Pneumococcal Vaccination, 26 AJIC 365, 365-66 (1998); (5) P.
Iyngkaran et al., Rheumatoid Vasculitis Following Influenza Vaccination, 42 Rheumatology 907, 907-909
(2003); (6) Po-Yu Liu et al., Cutaneous Vasculitis Following Influenza Vaccination, 49 Internal Medicine
2187, 2187-88 (2010); (7) Anne Lohse et al., Vascular Purpura and Cryoglobulinemia after Influenza
Vaccination, 66(6) Rev. Rheumatology 359, 359-62 (1999); (8) Seena Monjazeb et al., A Case of
Leukocytoclastic Vasculitis Following Influenza Vaccination, 2 JAAD Case Rep. 340, 340-42 (2016); (9)
Maria Inês Fernandes Pimentel et al., Henoch-Schönlein Purpura Following Influenza A H1N1
Vaccination, 44(4) Revista da Sociedade Brasileira de Medicina Tropical 531 (2011); (10) Nadia Raison-
Peyron et al., Cold Contact Urticaria Following Vaccination: Four Cases, 96 Acta Dermato-
Venereologica 852, 852-53 (2016); (11) S. Tavadia et al., Leukocytoclastic Vasculitis and Influenza
Vaccination, 28 Clinical and Experimental Dermatology 154, 154-56 (2003); (12) Ronni Wolf et al.,
Neutrophilic Dermatosis of the Hands After Influenza Vaccination, 48 Int’l J. of Dermatology 66, 66-68
(2009).
6

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case report, which documents the development of cold contact urticaria following vaccination.
See Pet’r Ex. 25; Nadia Raison-Peyron et al., Cold Contact Urticaria Following Vaccination:
Four Cases, 96 Acta Dermato-Venereologica 852, 852-53 (2016) (“Raison-Peyron”). Lastly,
Dr. Bellanti relied upon the Lohse case report, which involves a 68-year-old man who developed
Type II/mixed cryoglobulinemia two weeks after receiving the flu vaccine. See Pet’r Ex. 26;
Anne Lohse et al., Vascular Purpura and Cryoglobulinemia after Influenza Vaccination, 66(6)
Rev. Rhum. 359, 359-62 (1999) (“Lohse”).
The Secretary relied upon two expert reports and testimony from Harry Schroeder, Jr.,
M.D., Ph.D. Resp’t Exs. A, G; Tr. 105:14-168:16. During the entitlement hearing, Dr.
Schroeder testified that Dr. Temes’ cryoglobulinemia was most likely unrelated to the vaccines
that he received. Tr. at 110:21-111:2. In this regard, Dr. Schroeder criticized Dr. Bellanti’s
causation theory regarding epigenetics, and he noted the absence of reliable scientific evidence to
suggest that the flu virus or flu vaccine could directly result in B cell mutations, which occurs
with cryoglobulinemia. Tr. 113:6-113:13; Tr. 116:12-116:18.
Dr. Schroeder also testified that he rejected the probative value of the medical literature
offered by Dr. Temes. See Tr. 128:25-130:15. Specifically, Dr. Schroeder observed that the
Lohse case study authors avoided reaching a conclusion regarding vaccine causality. Tr. at
126:20-126:25 (citing Lohse at 359 (finding that a relationship between vaccination and
cryoglobulinemia could not be confirmed)). Dr. Schroeder also found the Catsoulis study to be
unpersuasive, because the effects of the hyperimmunization conducted in Catsoulis could not be
induced by the administration of a single high-dose flu vaccine, like the single dose received by
Dr. Temes. Tr. 111:12-111:23; 112:21-113:5. And so, Dr. Schroeder opined that the effects of
hyperimmunization observed in Catsoulis—the production of cryoglobulins—could not have
resulted from Dr. Temes’ single-dose of the flu vaccination. Tr. 122:1-122:7.
With regards to the Tavadia and Iyngkaran case reports, Dr. Schroeder also opined that
these reports were not relevant, because they focused on diseases other than cryoglobulinemia.
Tr. 129:2-129:21. In addition, Dr. Schroeder observed that the other medical literature offered
by Dr. Temes to show that vaccines can cause vasculitis did not involve patients first suffering
from cryoglobulinemia—like Dr. Temes. Tr. 163:10-165:15 (citing Pet’r Ex. 56; S. Monjazeb et
al., A Case of Leukocytoclastic Vasculitis Following Influenza Vaccination, 2 JAAD Case
7

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Reports 340, 340-42 (2016) (“Monjazeb”); Pet’r Ex. 57; B. Fox & A. Peterson, Leukocytoclastic
Vasculitis After Pneumococcal Vaccination, 26(3) AJIC 365, 365-66 (1998) (“Fox”)). And so,
Dr. Schroeder concluded that the articles submitted by Dr. Temes did not support his contention
that the flu and/or Prevnar 13 vaccines can cause cryoglobulinemia.
Lastly, Dr. Schroeder testified that the onset of Dr. Temes’ cryoglobulinemia, with
clinical evidence appearing within a week of vaccination, was too soon to establish a causal
relationship between the vaccinations that Dr. Temes received and his cryoglobulinemia. Tr.
122:24-123:7; 156:10-156:14. In this regard, Dr. Schroeder opined that it would take
approximately two to three weeks for an adequate concentration of immunoglobulins to build up
in the body before symptoms of cryoglobulinemia would manifest. Tr. 123:1-123:3. And so, he
concluded that the onset of symptoms following Dr. Temes’ vaccinations did not occur within a
medically acceptable time frame.5 Tr. 123:4-123:7.
3. The May 12, 2020, Decision
On May 12, 2020, the special master issued a decision denying Dr. Temes’ Vaccine Act
claim. See generally May 12, 2020, Decision.
In his May 12, 2020, Decision, the special master first addressed the characteristics of
cryoglobulinemia. See May 12, 2020, Decision at 23-24. In this regard, he observed that
“cryoglobulinemia is a condition in which particular serum antibodies called ‘cryoglobulins’
reversibly precipitate in the blood when cooled below 37 degrees Celsius (98.8 degrees
Fahrenheit).” Id. at 23 (citing J. Damoiseaux & J. Tervaert, Diagnostic and Treatment of
Cryoglobulinemia: It Takes Two to Tango, 47 Clinic. Rev. Allerg. Immunol. 299, 299 (2014)
(“Damoiseaux”)). The special master also observed that “Type II, or ‘mixed’ [cryoglobulinemia]
is thought to be caused by systemic autoimmune or infectious disease, . . . features monoclonal
IgM, polyclonal IgG, and rheumatoid factor activity[]” and is “particularly associated with a
hepatitis C infection.” Id. (citing Damoiseaux at 303).
5 The special master observes in the May 12, 2020, Decision that there are several points on which Dr.
Bellanti and Dr. Schroeder agree—namely that: (1) Dr. Temes’ condition was properly diagnosed as
Type II mixed cryoglobulinemia; (2) several of Dr. Temes’ treating physicians expressed the opinion that
his condition was related to the vaccinations that he received in October 2015; and (3) Dr. Temes later
experienced leukocytoclastic vasculitis secondary to his cryoglobulinemia. May 12, 2020, Decision at 15;
Tr. 128:10-128:18; 147:18-147:23; 152:7-152:10.
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The special master then determined, as an initial matter, that Dr. Temes had not offered a
scientifically-reliable causation theory under Althen Prong One, because there was sparse
evidentiary support that the flu and/or Prevnar 13 vaccines can cause cryoglobulinemia.6 See id.
at 25-28. Specifically, the special master found Dr. Bellanti “over-relie[d] on assumptions about
the interplay of vaccination with genetic susceptibility to cryoglobulinemia that the evidence
does not support.” Id. at 25. In this regard, the special master observed that, while Dr. Bellanti
proposed that vaccines could trigger a malfunction in the expression of genes responsible for
cryoglobulin production, he did not: (1) “identify the genes responsible for cryoglobulin
production[;]” (2) “discuss which vaccine components could trigger or silence gene
expression[;]” or (3) “offer persuasive evidence showing that any vaccines . . . have this
capacity.” Id. In addition, the special master found that “[n]one of the literature offered in this
case otherwise acknowledged epigenetics as a potential mechanism through which an individual
may develop cryoglobulinemia, regardless of [the] trigger.” Id. And so, the special master
found Dr. Temes’ arguments related to epigenetics to be unpersuasive. See id.
The special master also rejected Dr. Temes’ theory that an immunocompromised state
resulting from epigenetic changes could allow a vaccination to initiate the abnormal production
of cryoglobulins. See id. at 25-26. In this regard, the special master observed that Dr. Temes
relied upon the Catsoulis study to support his theory that the Prevnar 13 vaccine can initiate the
production of cryoglobulins. Id. at 25. But, the special master determined that the Catsoulis
study had limited probative value, because the study only suggests that the Prevnar 13 vaccine
can cause cryoglobulin production after hyperimmunization over a prolonged time period. Id. at
25-26. Specifically, the special master found that the hyperimmunization that occurred in
Catsoulis was “not comparable to a single-instance receipt of the [Prevnar 13] vaccine” which
occurred in Dr. Temes’ case. Id. In addition, the special master determined that Dr. Temes’
proposition that the flu vaccine could similarly induce cryoglobulin production lacked
evidentiary support, because it “was not supported with more than conclusory statements . . . and
a single high dose flu vaccine is unlikely to produce results similar to those seen in Catsoulis,
which required roughly thirty to forty immunizations to induce cryoglobulinemia.” Id. (emphasis
6 The special master also observed that Dr. Temes erroneously argued for an evidentiary standard of mere
plausibility in evaluating whether he can satisfy Althen Prong One. May 12, 2020, Decision at 25.
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in original); Catsoulis at 327. And so, the special master rejected Dr. Temes’ arguments that the
flu and/or Prevnar 13 vaccines can instigate the production of cryoglobulins necessary for the
development of cryoglobulinemia. See May 12, 2020, Decision at 26.
The special master also determined that none of the case reports referenced by Dr. Temes
confirmed a causal relationship between the flu vaccine and the subsequent development of
leukocytoclastic vasculitis. Id. Specifically, the special master observed that, apart from the
Lohse study, “none of the cited case reports observing [a] temporal association between
leukocytoclastic vasculitis and vaccination mentioned cryoglobulinemia as occurring first.” Id.
at 26-27. The special master acknowledged that the Lohse study does “suggest[] that
cryoglobulinemia and . . . leukocytoclastic vasculitis may develop simultaneously[.]” Id. at 27.
But, he concluded that Lohse study “does not describe how an initial onset of cryoglobulinemia
can produce leukocytoclastic vasculitis years later, as occurred in Dr. Temes’[] case.” Id.
The special master similarly found Dr. Temes’ arguments that molecular mimicry or
bystander activation could explain why he developed chronic cryoglobulinemia after a single
dose of the flu and/or Prevnar 13 vaccines to be scientifically unreliable. See id. at 27-28. First,
the special master found that, “beyond conclusory statements by Dr. Bellanti, no reliable
literature was offered to suggest that the relevant vaccines can trigger such a process in causing
persistent cryoglobulinemia.” Id. at 27. Second, the special master found that Dr. Bellanti’s
characterizations of bystander activation to explain the persistence of a vaccine-caused
cryoglobulinemia “were no better supported, and in fact were inconsistent.” Id. In this regard,
the special master observed that “Dr. Bellanti did not substantiate his contention [regarding
bystander activation] with either independent literature or his own personal experience and
research to show that cryoglobulinemia is known to become chronic in this manner.” Id. at 28.
Lastly, the special master determined that, based upon Dr. Schroeder’s expert testimony,
“[o]nly ongoing exposure to an antagonizing antigen will perpetuate IgM production [resulting in
persistent cryoglobulinemia.]” Id. In this regard, the special master found that Dr. Temes “did
not offer any evidence to suggest that the antigenic components of the flu and/or [Prevnar 13]
vaccines remained present and active in the body for a sufficiently prolonged period to produce
the same chronic effects.” Id. Given this, the special master concluded that, “[Dr. Temes’]
theories were ultimately too conclusory and incomplete to be deemed preponderantly reliable.”
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Id. And so, the special master also concluded that “[t]he lack of credible and persuasive
evidence on the issue of causation leads [him] to conclude that [Dr. Temes] has not satisfied the
first Althen prong.” Id.
Regarding Althen Prong Two—which requires that Dr. Temes establish that the flu
and/or Prevnar 13 vaccines did in fact cause his injury—the special master found that the
conclusions of Dr. Temes’ treating physicians, alone, were not enough to satisfy the burden of
proof under this prong. Id. at 28-29. In this regard, the special master determined that the
medical records did contain some favorable evidence for Dr. Temes, mainly in the form of
statements made by several of his treating physicians that his cryoglobulinemia was vaccine
induced. Id. But, the special master observed that he was “not bound by [these] treater opinions,
especially when other evidence rebuts or contradicts the grounds for such views.” Id. at 29
(citing Snyder ex rel. Snyder v. Sec’y of Health and Human Servs., 88 Fed. Cl. 706, 745 n.67
(2009)).
The special master also determined that “none of the literature filed in this matter
supported a causal relationship between vaccination and the subsequent development of
cryoglobulinemia.” Id. Specifically, the special master observed that “Dr. Bellanti [failed to]
substantiate his opinions with reference to his own experience researching or studying the
condition or its relationship to vaccination.” Id. The special master also observed that Dr.
Callen’s case report, which focused on Dr. Temes’ clinical course, “conceded that ‘the
mechanisms of vasculitis and cryoglobulinemia induced by the [flu] and [Prevnar 13]
vaccination remain unknown’ and ‘it is not clear why cryoglobulins are produced as a response
to a viral antigen triggered in response to a vaccination.’” Id. (emphasis in original) (quoting
Pet’r Ex. 58; S. Eid & J. Callen, Type II Mixed Cryoglobulinemia Following Influenza and
Pneumococcal Vaccine Administration, 5(11) JAAD Case Reports 960, 961-62 (2019)). And so,
the special master concluded that, while “the treater views in this case do aid [Dr. Temes’]
showing, they ultimately relied too much on the obvious temporal relationship between
vaccination and injury to carry [Dr. Temes’] ‘did cause’ burden.” Id.
The special master also determined that the evidence about Dr. Temes’ subsequent
development of vasculitis did not support the conclusion that his injuries were likely vaccine-
caused, because “the symptoms leading to that diagnosis did not manifest until a significant time
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after onset of his cryoglobulinemia in 2015.” Id. (emphasis in original). Given this, the special
master concluded that Dr. Temes’ vasculitis “so significantly post-dated vaccination that it is
difficult to associate the October 2015 vaccines with it[.]” Id. at 30.
Lastly, regarding the onset of Dr. Temes’ cryoglobulinemia symptoms, the special master
determined that Dr. Temes failed establish a medically acceptable onset timeframe under his
causation theory. Id. Notably, the special master found that Dr. Temes’ showing with respect to
this prong “presents a similarly ‘mixed bag’ of evidence that in the end cannot satisfy this
element of his burden, largely due to his inability to persuasively establish the first prong [of
Althen].” Id. In this regard, the special master recognized that the evidentiary record
“establishes an obviously close temporal association (approximately five to seven days) between
the date of Dr. Temes’[] vaccinations and initial symptoms onset.” Id. But, he observed that Dr.
Schroeder testified that “it takes approximately five to seven days from the time of vaccination
for B cells to begin the production of plasma and memory cells” and “then takes up to three to
four weeks more for the body to produce enough IgM antibody to induce cryoglobulinemia.” Id.
(emphasis in original) (citing Tr. at 117:5-117:7).
In addition, the special master observed that “the process of causing [the] appearance of
the cryoglobulins took several weeks (and only after repeated vaccination)[]” in the Catsoulis
study. Id. (citing Catsoulis at 328). Given this, the special master found that Dr. Schroeder’s
testimony and the Catsoulis article “cut[] against such a short turn-around from vaccination to
manifestation of the clinical symptoms [Dr. Temes] first reported[.]” Id. And so, the special
master concluded that Dr. Temes’ onset of cryoglobulinemia did not occur within a medically
acceptable timeframe under his proposed causation theory.7 Id.
Because the special master determined that Dr. Temes did not successfully establish that
either the flu and/or Prevnar 13 vaccines “could cause cryoglobulinemia, and/or [did] so in a
timeframe of one week,” he concluded that the record evidence did not preponderate in a
favorable ruling. Id. at 31. And so, the special master denied entitlement in this case. Id.
Dr. Temes, alleging error, seeks review of the special master’s decision.
7 The special master also rejected the argument that Dr. Temes would have experienced a faster response
because he had developed immunologic memory from the flu vaccines that he received throughout his
life—a concept known as “re-challenge.” May 12, 2020, Decision at 30-31.
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B. Procedural Background
On June 11, 2020, Dr. Temes filed a motion for review of the special master’s May 12,
2020, Decision. See generally Pet’r Mot. for Rev. On July 13, 2020, the Secretary filed a
response to Dr. Temes’ motion for review. See generally Resp’t Resp.
The motion for review having been fully briefed, the Court resolves the pending motion.
III. STANDARDS FOR DECISION
A. Vaccine Act Claims
The United States Court of Federal Claims has jurisdiction to review the record of the
proceedings before a special master and, upon such review, may:
(A) uphold the findings of fact and conclusions of law of the special master
and sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master
found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law and issue its own findings of fact and conclusions of
law, or
(C) remand the petition to the special master for further action in accordance
with the court’s direction.
42 U.S.C. § 300aa–12(e)(2).
The special master’s determinations of law are reviewed de novo. Andreu ex rel. Andreu
v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1373 (Fed. Cir. 2009). The special master’s
findings of fact are reviewed for clear error. Id. (citation omitted); see also Broekelschen v.
Sec’y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010) (“We uphold the special
master’s findings of fact unless they are arbitrary or capricious.”). The special master’s
discretionary rulings are reviewed for abuse of discretion. Munn v. Sec’y of Dep’t of Health &
Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
In addition, a special master’s findings regarding the probative value of the evidence and
the credibility of witnesses will not be disturbed so long as they are “supported by substantial
evidence.” Doe v. Sec’y of Health & Human Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010)
(citation omitted); see also Burns v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d 415, 417
(Fed. Cir. 1993) (holding that the decision of whether to afford greater weight to
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contemporaneous medical records or later given testimony is “uniquely within the purview of the
special master”); see also Hibbard v. Sec’y of Dep’t of Health & Human Servs., 698 F.3d 1355,
1363 (Fed. Cir. 2012) (citation omitted) (stating that there is no reversable error so long as the
special master considers relevant evidence, draws plausible inferences from said evidence, and
articulates a rational basis for his decision.). This “level of deference is especially apt in a case
in which the medical evidence of causation is in dispute.” Hodges v. Sec’y of Dep’t of Health &
Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993). And so, the Court will not substitute its
judgment for that of the special master, “if the special master has considered all relevant factors,
and has made no clear error of judgment.” Lonergan v. Sec’y of Dep’t of Health & Human
Servs., 27 Fed. Cl. 579, 580 (1993).
Under the Vaccine Act, the Court must award compensation if a petitioner proves, by a
preponderance of the evidence, all the elements set forth in in 42 U.S.C. § 300aa–11(c)(1), unless
there is a preponderance of evidence that the illness is due to factors unrelated to the
administration of the vaccine. 42 U.S.C. § 300aa–13(a)(1). A petitioner can recover either by
proving an injury listed on the Vaccine Injury Table (the “Table”), or by proving causation-in-
fact. See 42 U.S.C. §§ 300aa–11(c)(1)(C)(i)-(ii); Althen v. Sec’y of Health & Human Servs., 418
F.3d 1274, 1278 (Fed. Cir. 2005). And so, to receive compensation under the National Vaccine
Injury Compensation Program, a petitioner must prove either that: (1) the petitioner suffered a
“Table Injury” that corresponds to one of the vaccinations in question within a statutorily
prescribed period of time or, in the alternative, (2) petitioner’s injury was actually caused by a
vaccine. See 42 U.S.C. §§ 300aa–11(c)(1)(C)(i)-(ii), 300aa–14(a); see also Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010); Capizzano v. Sec’y of Health &
Human Servs., 440 F.3d 1317, 1319-20 (Fed. Cir. 2006).
In addition, in Table and non-Table cases, a petitioner bears “a preponderance of the
evidence” burden of proof. 42 U.S.C. § 300aa–13(a)(1)(A); Althen, 418 F.3d at 1278 (citing
Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)). And so,
a petitioner must offer evidence that leads the “trier of fact to believe that the existence of a fact
is more probable than its nonexistence before [he] may find in favor of the party who has the
burden to persuade the [judge] of the fact’s existence.” Moberly, 592 F.3d at 1322 n.2 (brackets
existing) (citations omitted); see also Snowbank Enters., Inc. v. United States, 6 Cl. Ct. 476, 486
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(1984) (holding that mere conjecture or speculation is insufficient under a preponderance
standard).
In Althen, the Federal Circuit addressed the three elements to prove causation-in-fact.
Althen, 418 F.3d at 1278. The Federal Circuit has also held that all three elements “must
cumulatively show that the vaccination was a ‘but-for’ cause of the harm, rather than just an
insubstantial contributor in, or one among several possible causes of, the harm.” Pafford v. Sec’y
of Health & Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). Specifically, to establish a
prima facie case when proceeding on a causation-in-fact theory, a petitioner must “prove, by a
preponderance of the evidence, that the vaccine was not only a but-for cause of the injury but
also a substantial factor in bringing about the injury.” Shyface, 165 F.3d at 1352. In addition, a
petitioner must prove by 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. While the Vaccine Act
does not require medical or scientific certainty, any theory posited must be “sound and reliable.”
Boatman v. Sec’y of Health & Human Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019) (quoting
Knudsen by Knudsen v. Sec’y of Dep’t of Health & Human Servs., 35 F.3d 543, 548-49 (Fed. Cir.
1994)).
The Federal Circuit has also recognized the probative value of the opinions of treating
physicians contained in contemporaneous medical records. Capizzano, 440 F.3d at 1326. Such
opinions and medical records are favored in Vaccine Act matters, because “treating physicians
are likely to be in the best position to determine whether ‘a logical sequence of cause and effect
show[s] that the vaccination was the reason for the injury.’” Id. (quoting Althen, 418 F.3d at
1280) (brackets existing). But, these opinions are not “binding on the special master or court.”
42 U.S.C. § 300aa–13(b)(1); see also Snyder ex rel. Snyder, 88 Fed. Cl. at 745 n.67 (citing
Andreu ex rel. Andreu, 569 F.3d at 1375) (“[T]here is nothing . . . that mandates that the
testimony of a treating physician is sacrosanct—that it must be accepted in its entirety and
cannot be rebutted.”). Rather, “the special master or court shall consider the entire record and
the course of the injury” when “evaluating the weight to be afforded to any such” opinion. 42
U.S.C. § 300aa–13(b)(1).
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Lastly, if a petitioner establishes a prima facie case, the burden shifts to the respondent to
show, by a preponderance of the evidence, that the injury was caused by a factor unrelated to the
vaccine. See 42 U.S.C. § 300aa–13(a)(1)(B); see also Shalala v. Whitecotton, 514 U.S. 268,
270-71 (1995). But, regardless of whether the burden of proof shifts to the respondent, the
special master may consider the evidence presented by the respondent in determining whether
the petitioner has established a prima facie case. See Stone v. Sec’y of Health & Human Servs.,
676 F.3d 1373, 1379 (Fed. Cir. 2012) (“[E]vidence of other possible sources of injury can be
relevant not only to the ‘factors unrelated’ defense, but also to whether a prima facie showing
has been made that the vaccine was a substantial factor in causing the injury in question.”); de
Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1353 (Fed. Cir. 2008) (“The
government, like any defendant, is permitted to offer evidence to demonstrate the inadequacy of
the petitioner’s evidence on a requisite element of the petitioner’s case[-]in-chief.”).
IV. LEGAL ANALYSIS
In his motion for review, Dr. Temes raises three objections to the special master’s May
12, 2020, Decision. First, Dr. Temes argues that the special master impermissibly raised the
burden of proof under Althen Prong One, by requiring confirmation or certainty of the validity of
his theory of causation in the medical literature. Pet’r Mot. for Rev. at 10-17. Second, Dr.
Temes argues that the special master impermissibly raised the burden of proof under Althen
Prong Two, by requiring direct evidence and scientific confirmation of how the flu and/or
Prevnar 13 vaccines caused his cryoglobulinemia. Id. at 17-19. Lastly, Dr. Temes argues that
the special master erred in his analysis of Althen Prong Three, by finding that the timing of Dr.
Temes’ onset of cryoglobulinemia was not medically acceptable. Id. at 19-20.
The Secretary counters that the special master reasonably concluded, after examining the
evidence, that Dr. Temes failed to establish by preponderant evidence that either the flu or
Prevnar 13 vaccines administered on October 19, 2015, can or did cause Dr. Temes to develop
cryoglobulinemia. Resp’t Resp. at 1, 9-19. The Secretary further argues that Dr. Temes has not
shown that the special master erred, or that the special master’s factual findings and legal
conclusions were arbitrary, capricious, an abuse of discretion or contrary to law. Id. at 1-2, 5-6,
17. And so, the Secretary requests that the Court deny Dr. Temes’ motion for review and sustain
the decision of the special master. Id. at 2, 19.
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For the reasons discussed below, the evidentiary record before the Court shows that the
special master did not abuse his discretion, or act contrary to law, in reaching the decision to
deny Dr. Temes’ Vaccine Act claim. And so, the Court DENIES Dr. Temes’ motion for review
of the special master’s May 12, 2020, Decision and SUSTAINS the decision of the special
master.
A. The Special Master Reasonably Concluded
That Dr. Temes Did Not Satisfy Althen Prong One
As an initial matter, the record evidence demonstrates that the special master applied the
correct legal standard to analyze Dr. Temes’ claim under Althen Prong One. In the May 12,
2020, Decision, the special master stated that the preponderant standard under the Vaccine Act
does not mandate medical certainty. May 12, 2020, Decision at 25. But, he also observed that
the preponderant standard does not permit recovery based upon the reasonable-sounding nature
of a particular theory. Id. It is well-established that the Vaccine Act does not require medical or
scientific certainty to establish causation, but a theory posited must be, nonetheless, “sound and
reliable.” Boatman v. Sec’y of Health & Human Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019)
(quoting Knudsen by Knudsen v. Sec’y of Dep’t of Health & Human Servs., 35 F.3d 543, 548-49
(Fed. Cir. 1994)). In this case, the record evidence shows that the special master conducted his
analysis of Althen Prong One consistent with this standard. And so, the Court concludes that the
special master did not err in applying the law in this case. May 12, 2020, Decision at 25.
The record evidence also shows that the special master reasonably considered and
weighed the opinions of Dr. Bellanti—and the scientific evidence—in determining that Dr.
Temes failed to meet his burden of proof under Althen Prong One. The Court will not disturb the
special master’s findings regarding the probative value of this evidence in this case, so long as
those findings are “supported by substantial evidence.” Doe, 601 F.3d at 1355.
1. The Special Master Reasonably Weighed The
Expert Opinions And Evidence Regarding Epigenetics
First, the substantial evidence in the record supports the special master’s determination
that Dr. Bellanti’s expert opinions regarding epigenetics were not adequately supported to meet
the requirements under Althen Prong One. In the May 12, 2020, Decision, the special master
found that Dr. Bellanti made certain assumptions about the interplay between a vaccination and
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changes in the genes responsible for cryoglobulin production (i.e. epigenetics) “that the evidence
does not support.” May 12, 2020, Decision at 25. Specifically, the special master observed that
Dr. Bellanti failed to: (1) “identify the genes responsible for cryoglobulin production[;]” (2)
“discuss which vaccine components could trigger or silence gene expression[;]” or (3) “offer
persuasive evidence showing that any vaccines, the specific [vaccines] at issue, or even the wild
virus or bacterial antigens underlying those vaccines have [the] capacity[]” to cause
cryoglobulinemia. Id. The special master also observed that Dr. Bellanti did not provide any
medical literature to support his views related to epigenetics. Id. And so, the special master
found Dr. Bellanti’s opinions related to the interplay of epigenetics and vaccination to be
unpersuasive. Id. at 25, 28.
The special master’s decision to afford limited weight to Dr. Bellanti’s opinions
regarding epigenetics is supported by the substantial evidence. As the special master correctly
observes in the May 12, 2020, Decision, Dr. Bellanti failed to address which vaccine was
capable of stimulating genetic changes in this case; which vaccine components were responsible
for stimulating genetic changes; or which gene or genes were the target of these changes, during
the proceedings before the special master. See generally Pet’r Exs. 20, 52; Tr. 51:8-104:12. In
fact, as the special master also correctly observes, Dr. Bellanti failed to provide any evidentiary
support for the epigenetics portion of his causation theory. See May 12, 2020, Decision at 25;
see also id. A careful reading of the articles that Dr. Bellanti submitted with his expert reports
also reveals that none of these articles address epigenetics in relation to vaccines. See generally
Catsoulis; Fox; Iyngkaran; Lohse; Monjazeb; Raison-Peyron; Tavadia. Given this evidence, the
special master’s determination that Dr. Bellanti’s opinions regarding epigenetics were not
adequately supported is substantiated by the substantial evidence in this case.
2. The Special Master Reasonably Weighed The Evidence
Regarding Molecular Mimicry And Bystander Activation
The substantial evidence also supports the special master’s determinations about the
probative value of Dr. Bellanti’s opinions regarding molecular mimicry and bystander activation.
In the May 12, 2020, Decision, the special master found that Dr. Bellanti’s testimony
regarding how a single dose of the flu and/or Prevnar 13 vaccines could result in chronic
cryoglobulinemia to be “scientifically unreliable.” May 12, 2020, Decision at 27. Specifically,
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with regards to Dr. Bellanti’s opinions related to molecular mimicry, the special master found
that Dr. Bellanti did not support his views “beyond conclusory statements.” Id. The special
master also observed that Dr. Bellanti failed to provide any “reliable literature” to demonstrate
that the flu and/or Prevnar 13 vaccines “can trigger [molecular mimicry to] caus[e] persistent
cryoglobulinemia.” Id. With regards to Dr. Bellanti’s opinions on bystander activation, the
special master similarly found that “Dr. Bellanti did not substantiate his contention with either
independent literature or his own personal experience and research to show that
cryoglobulinemia is known to become chronic in this manner.” Id. at 28. And so, the special
master concluded that Dr. Bellanti’s opinions related to molecular mimicry and bystander
activation did not meet the preponderant standard under Althen Prong One.
Again, the special master’s conclusions regarding the probative value of this evidence are
supported by the substantial evidence. The record evidence shows that Dr. Bellanti did not
provide any support—by way of medical literature or otherwise—for his opinion that either
molecular mimicry or bystander activation played a role in Dr. Temes’ case. See generally Pet’r
Exs. 20, 52; Tr. 51:8-104:12. Notably, Dr. Bellanti responded to a question from the special
master about how Dr. Temes’ cryoglobulinemia became chronic, by simply stating that “all I can
say is that I believe these bystander effects are the cause of perpetuating[ Dr. Temes’
condition].” Tr. 101:19-101:20. Given this evidence, the special master reasonably concluded
that Dr. Bellanti’s opinions regarding molecular mimicry and bystander activation should be
afforded limited weight.
3. The Special Master Reasonably Weighed
The Evidence Regarding Hyperimmunization
The special master’s findings regarding the probative value of the Catsoulis article and
the issue of hyperimmunization were also reasonable in light of the record evidence in this case.
In the May 12, 2020, Decision, the special master found that Dr. Temes failed to provide
evidence that a single dose of the Prevnar 13 vaccine or flu vaccine could trigger
cryoglobulinemia. May 12, 2020, Decision at 26. In making this finding, the special master
observed that Dr. Temes received just a single dose of the Prevnar 13 and flu vaccines before the
onset of his symptoms. Id. Given this, the special master concluded that the “probative value”
of the Catsoulis article was limited, because the study in that article involved hyperimmunized
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rabbits that experienced cryoglobulinemia after approximately three to four months of repeatedly
receiving the pneumococcal vaccine. Id. at 25-26.
The special master’s conclusion that the Catsoulis article has limited probative value in
this case is supported by the substantial evidence. As the special master correctly observes in the
May 12, 2020, Decision, the Catsoulis article is distinguishable from this case, because the
rabbits in Catsoulis were vaccinated with the pneumococcal vaccine every three days until they
developed cryoglobulinemia—which usually occurred after approximately three to four months
of repeated vaccinations. Catsoulis at 327. In contrast, it is undisputed that Dr. Temes received
a single dose of the Prevnar 13 and flu vaccines prior to the onset of his symptoms. See Pet’r Ex.
8. Given this, the special master’s determinations regarding the probative value of the Catsoulis
article and the issue of hyperimmunization were reasonable.
4. The Special Master Reasonably Considered Petitioner’s Case Reports
Dr. Temes’ argument that the special master failed to adequately consider the case reports
that he submitted in this case is also unavailing. In his motion for review, Dr. Temes argues that
the special master erred, because “Dr. Bellanti’s theory of causation was certainly supported by
case reports.” Pet’r Mot. for Rev. at 13. As Dr. Temes correctly observes in his motion for
review, Dr. Bellanti submitted numerous case reports documenting either cryoglobulinemia or
forms of vasculitis following the administration of the flu or pneumococcal vaccines. See, e.g.,
Catsoulis; Tavadia; Iyngkaran; Monjazeb (documenting cases of vasculitis following flu
vaccination); Fox (documenting a case of leukocytoclastic vasculitis following pneumococcal
vaccination); Raison-Peyron (documenting cases of cold contact urticaria following flu
vaccination); Lohse (documenting a case of vascular purpura and cryoglobulinemia following flu
vaccination); Callen (a case report documenting Dr. Temes’ clinical course). But, the record
evidence also makes clear that the special master adequately considered these case reports and
reasonably determined that the reports were not probative evidence to show causation in this
case. May 12, 2020, Decision at 26.
Notably, the special master correctly observes in the May 12, 2020, Decision that none of
the case reports that document leukocytoclastic vasculitis, or other forms of vasculitis, espouse a
causal connection between such diseases and the flu vaccine. Id. at 26; see, e.g., Lohse at 359
(noting that “in none of the reported cases [discussed in the article] was proof of a causal link
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with the [flu] vaccine obtained.”); Monjazeb at 341 (“The temporal nature of these cases of
vasculitis following vaccination suggests an immunopathogenic link that has yet to be
explained.”). The special master also correctly observes in his decision that, with the exception
of the Lohse case report, none of the submitted case reports involve an individual who developed
vasculitis after first suffering from cryoglobulinemia—which is what occurred to Dr. Temes in
this case. May 12, 2020, Decision at 26-27. In fact, the record evidence makes clear that Dr.
Temes did not show how these case reports—which mostly do not involve patients that are
similar to him in either demographic characteristics or symptom development—are analogous to
his own experience during the proceedings before the special master. And so, the special master
reasonably concluded that the case reports were insufficient to meet Dr. Temes’ burden under
Althen Prong One. Id. at 26-27.
5. The Special Master Reasonably Weighed The
Opinions Of Petitioner’s Treating Physician Opinions
Lastly, the special master’s determinations regarding the probative value of the opinions
of Dr. Temes’ treating physicians were also reasonable and supported by the substantial evidence
in this case. Dr. Temes argues in his motion for review that the special master erred, because the
opinions of his treating physicians support a finding that he met his burden under the Althen
Prong One. Pet’r Mot. for Rev. at 17. But, again, the record evidence shows that the special
master appropriately weighed this evidence and reasonably concluded that the treating physician
evidence was not sufficient to meet Dr. Temes’ burden of proof.
Specifically, in the May 12, 2020, Decision, the special master acknowledges that the
medical records “contain some favorable evidence” by way of “statements made by several of
Dr. Temes’[] treating physicians in which they expressed the opinion that his cryoglobulinemia
was the result of the vaccinations he received.” May 12, 2020, Decision at 28-29. The record
evidence also shows that all of Dr. Temes’ treating physicians concluded that Dr. Temes was
likely experiencing mixed cryoglobulinemia as the result of receiving the flu vaccine. See Pet’r
Ex. 1 at 20-21; Pet’r Ex. 2 at 2, 9; Pet’r Ex. 16 at 277; Pet’r Ex. 50 at 1. While there is no
dispute that Dr. Temes’ treating physicians agree that he is experiencing cryoglobulinemia as a
result of the flu vaccine, the special master decided to afford limited weight to these opinions,
because the opinions “relied too much on the obvious temporal relationship between vaccination
and injury[.]” May 12, 2020, Decision at 29.
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The special master’s decision to afford limited weight to the views of Dr. Temes’ treating
physicians is supported by the substantial evidence. A careful review of the medical records
shows that the opinions of Dr. Temes’ treating physicians are based in large part upon the
temporal association between the date of his vaccinations and the onset of symptoms—
approximately five to seven days later. For example, one of Dr. Temes’ treating physicians, Dr.
Callen, observes in his medical notes that Dr. Temes developed symptoms of cryoglobulinemia
“[five] days after his flu shot.” Pet’r Ex. 2 at 9. The record evidence also shows that none of Dr.
Temes’ treating physicians espoused a causation theory to explain how the flu vaccine caused
Dr. Temes’ symptoms. See, e.g., id.; Pet’r Ex. 16 at 277; Pet’r Ex. 19 at 14, 17. In fact, Dr.
Callen acknowledges in his case report documenting Dr. Temes’ clinical course that “a causal
link with the [flu] vaccination cannot be proved by our observation[.]” Callen at 962; see also
Pet’r Ex. 16 at 16 (Dr. Huber noting that “[i]t was suspected that [Dr. Temes] had developed a
cryoglobulinemia induced by the [flu] vaccine[]” without providing a basis for that opinion,
aside from the timeline of Dr. Temes’ symptom development and subsequent laboratory testing).
As the special master also correctly observes in the May 12, 2020, Decision, there is
other evidence in the record that contradicts the opinions of Dr. Temes’ treating physicians.
Specifically, none of the medical literature submitted in this case supports finding a causal
relationship between the flu and/or Prevnar 13 vaccines and cryoglobulinemia. See generally
Catsoulis; Fox; Iyngkaran; Lohse; Monjazeb; Raison-Peyron; Tavadia. In addition, as discussed
above, Dr. Bellanti did not substantiate his theory of causation with other scientific evidence
during the proceedings before the special master. May 12, 2020, Decision at 25-28. Given this,
the special master reasonably decided to afford limited weight to the opinions of Dr. Temes’
treating physicians. See Snyder ex rel. Snyder, 88 Fed. Cl. at 745 n.67.
Because the evidentiary record makes clear that the special master appropriately
considered and weighed the expert opinions and reports of Dr. Bellanti—as well as the other
evidence submitted by both parties—in analyzing this case under Althen Prong One, Dr. Temes
has not shown that the special master erred by concluding that Dr. Temes failed to satisfy Althen
Prong One.
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B. The Special Master Reasonably Concluded
That Dr. Temes Did Not Satisfy Althen Prong Two
The record evidence also makes clear that the special master reasonably determined that
Dr. Temes failed to satisfy Althen Prong Two. In his motion for review, Dr. Temes argues that
the special master incorrectly focused his Althen Prong Two analysis on evidence that Dr. Temes
submitted under Althen Prong One. Pet’r Mot. for Rev. at 17. In this regard, Dr. Temes
correctly observes that the special master began his Althen Prong Two analysis by considering
the evidentiary concerns with Dr. Temes’ arguments regarding the theory of causation in this
case. May 12, 2020, Decision at 29 (noting that “none of the literature filed in this matter
supported a causal relationship between vaccination and the subsequent development of
cryoglobulinemia.”). But, the special master did not err in doing so, as Dr. Temes suggests.
The Federal Circuit has long held that there is “no reason why evidence used to satisfy
one of the Althen . . . prongs cannot overlap to satisfy another prong.” Capizzano, 440 F.3d at
1326. And so, in this case, the special master appropriately considered the lack of evidentiary
support for Dr. Temes’ theory of causation to analyze whether there was sufficient evidence to
establish a logical sequence of a cause and effect showing that the vaccines at issue were the
reason for the Dr. Temes’ injury. May 12, 2020, Decision at 28-29.
Dr. Temes also argues without persuasion that the special master erred in finding that the
treating physician evidence in this case failed to satisfy Althen Prong Two. Pet’r Mot. for Rev. at
22. As the special master correctly states in the May 12, 2020, Decision, special masters are not
bound by the opinions of treating physicians when there is conflicting evidence in the record.
Snyder ex rel. Snyder, 88 Fed. Cl. at 745 n.67 (citing Andreu ex rel. Andreu, 569 F.3d at 1375)
(stating that “there is nothing . . . that mandates that the testimony of a treating physician is
sacrosanct—that it must be accepted in its entirety and cannot be rebutted.”). As discussed
above, the special master found the views of the treating physicians in this case to be in stark
contrast with the submitted medical literature, which does not establish a definitive causal
relationship between the flu vaccine and cryoglobulinemia. May 12, 2020, Decision at 29. And
so, the special master reasonably concluded that the views of Dr. Temes’ treating physicians
were not sufficient to meet petitioner’s burden under Althen Prong Two. Id. at 30.
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C. The Special Master Reasonably Concluded That
Petitioner Failed To Establish A Medically Acceptable Timeframe
As a final matter, the record evidence also shows that the special master reasonably
concluded that Dr. Temes had not established a medically acceptable timeframe for the onset of
his symptoms. In his motion for review, Dr. Temes argues that the special master erred, because
the “record clearly shows that all treaters and Dr. Bellanti support the temporal association
between the October 19, 2015[,] vaccinations and the onset of Dr. Temes’ cryoglobulinemia as
being medically appropriate.” Pet’r Mot. for Rev. at 19-20. But, as the special master observes
in the May 12, 2020, Decision, Dr. Temes failed to establish what a medically acceptable onset
timeframe would be based upon his causation theory in this case. See May 12, 2020, Decision at
30. In fact, Dr. Temes did not put forward any evidence to show that the onset of his
symptoms—five to seven days after receiving the vaccinations—was medically acceptable,
during the proceedings before the special master. See generally Pet’r Exs. 20, 52.
Rather, the evidence regarding the expected onset of cryoglobulinemia symptoms
contradicts Dr. Temes’ theory in this case. Notably, the Secretary’s expert, Dr. Schroeder,
testified that it takes up to three to four weeks after receiving a vaccination for the body to
produce enough IgM antibody to induce cryoglobulinemia. Tr. 116:19-117:17. Dr. Temes did
not rebut this testimony during the proceedings before the special master. See Pet’r Ex. 52 at 3
(failing to provide a detailed discussion of what an appropriate temporal relationship would be
under petitioner’s theory beyond noting that the onset that occurred in this case was appropriate).
Given this, the special master special master reasonably concluded that Dr. Temes failed to
satisfy his burden to establish a medically acceptable timeframe for the onset of his symptoms in
this case.
V. CONCLUSION
In sum, the evidentiary record in this Vaccine Act case shows that the special master did
not abuse his discretion, or act contrary to law, in finding that petitioner failed to establish that
the flu and/or Prevnar 13 vaccines can cause, or did in fact cause, his cryoglobulinemia. While
petitioner understandably disagrees with the special master’s May 12, 2020, Decision,
petitioner’s objection to the decision is, at bottom, a disagreement about the probative value of
the evidence submitted in this case. Because the record evidence shows that the special master
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considered relevant evidence—and that the special master’s determinations regarding the
probative value of that evidence are supported by substantial evidence—the Court will not
substitute its judgment for that of the special master.
And so, for the forgoing reasons, the Court:
1. DENIES petitioner’s motion for review of the special master’s May 12, 2020,
Decision; and
2. SUSTAINS the decision of the special master.
The Clerk shall enter judgment accordingly.
Some of the information contained in this Memorandum Opinion and Order may be
considered privileged, confidential or sensitive personally-identifiable information that should be
protected from disclosure. And so, this Memorandum Opinion and Order shall be FILED
UNDER SEAL. The parties shall review the Memorandum Opinion and Order to determine
whether, in their view, any information should be redacted prior to publication. The parties shall
also FILE, by December 1, 2020, a joint status report identifying the information, if any, that
they contend should be redacted, together with an explanation of the basis for each proposed
redaction.
IT IS SO ORDERED.
s/Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge
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