VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01607
Package ID: USCOURTS-cofc-1_17-vv-01607
Petitioner: Donna Martin
Filed: 2017-10-26
Decided: 2024-10-25
Vaccine: influenza
Vaccination date: 2014-11-17
Condition: Microscopic Polyangiitis (MPA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Donna Martin, a 56-year-old adult, received an influenza vaccine on November 17, 2014. She subsequently developed Microscopic Polyangiitis (MPA), a rare autoimmune disease affecting small blood vessels, which she alleged was caused by the vaccine. Her symptoms, including fatigue and a neurogenic cough, began approximately two weeks after vaccination, with initial diagnoses including upper respiratory infection and dermatitis. The case proceeded as an off-Table claim, meaning Ms. Martin had to prove a causal link between the vaccine and her injury. She presented expert testimony from a rheumatologist and an immunologist who argued for a mechanism involving immune system activation and molecular mimicry, suggesting the vaccine triggered her MPA. Respondent argued that the scientific literature lacked sufficient evidence to link influenza vaccines to vasculitis and proposed alternative causes such as a viral upper respiratory infection or medication side effects. The court reviewed the medical records, expert opinions, and legal precedents, including the Althen test for causation. Ultimately, the court found that Ms. Martin failed to present preponderant evidence of a legally probable causation theory linking the flu vaccine to MPA. The court noted that her treaters consistently diagnosed her with a URI, and that isolated case studies, while sometimes used for rare conditions, did not provide sufficient evidence of causation in this instance. Therefore, Ms. Martin's claim was dismissed.

Theory of causation field:
Influenza vaccine on November 17, 2014, age 56, alleged to cause microscopic polyangiitis with fatigue, neurogenic cough, and other sequelae, with onset around 15 days later. DENIED/DISMISSED. Petitioner Donna Martin advanced an off-Table autoimmune vasculitis theory; respondent disputed causation. Special Master Herbrina Sanders Young denied entitlement and dismissed the petition on October 25, 2024. Later supplemental decisions concern attorneys' fees and costs only. No injury compensation awarded.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01607-cl-extra-10736272
Date issued/filed: 2024-02-05
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10269682
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    In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                    Filed: January 19, 2024

* * * * * * * * * * * * * *                      *
DONNA MARTIN,                                    *       No. 17-1607V
                                                 *       Special Master Sanders
                Petitioner,                      *
                                                 *
v.                                               *
                                                 *
SECRETARY OF HEALTH                              *
AND HUMAN SERVICES,                              *
                                                 *
          Respondent.                            *
* * * * * * * * * * * * * *                      *

Alison H. Haskins, Maglio Christopher and Toale, PA, Sarasota, FL, for Petitioner.
Neil Bhargava, United States Department of Justice, Washington, DC, for Respondent.

          DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

        On August 4, 2023, Donna Martin (“Petitioner”) filed a motion for interim attorneys’ fees
and costs, requesting a total of $280,099.12 for her counsel, Ms. Alison Haskins. Mot. Int.
Attorneys’ Fees & Costs at 1, ECF No. 82 [hereinafter “Fees App.”].2 This amount consists of
$220,148.40 in fees and $59,950.72 in costs. Id. at 1. On October 11, 2023, Respondent filed his
response to Petitioner’s motion. Resp’t’s Resp., ECF No. 83. In his response, Respondent stated
that he “defers to the special master regarding whether the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Id. at 2. Further, Respondent “respectfully requests
that the Court exercise its discretion and determine a reasonable award for attorneys’ fees and
costs.” Id. at 3. For the reasons stated below, the undersigned will award interim attorneys’ fees
and costs for Petitioner’s counsel at this time.



1
  Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or
other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon
review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
  All citations to Petitioner’s motion for interim attorneys’ fees and costs, ECF No. 82, will use the page
numbers generated by CM/ECF.
    I.      Procedural History

        On October 26, 2017, Petitioner filed a petition for compensation pursuant to the National
Vaccine Injury Compensation Program (“Program”).3 42 U.S.C. §§ 300aa-1 to -34 (2012); Pet.,
ECF No. 1. Petitioner alleged that she suffered from microscopic polyangiitis and related
symptoms as a result of an influenza (“flu”) vaccine administered on November 17, 2014. Id. at 1,
5. On December 11, 2017, Petitioner filed medical records and a statement of completion. ECF
Nos. 8–11. Petitioner also filed an affidavit on January 4, 2018. ECF No. 13. Petitioner filed
additional medical records and a statement of completion by April 26, 2018. ECF Nos. 15–18.
Petitioner filed additional medical records on July 26, 2018 and October 8, 2018. ECF Nos. 23,
25. On August 17, 2018, Respondent filed his Rule 4(c) report, indicating that this case was not
appropriate for compensation. Resp’t’s Report at 1, ECF No. 26.

        Petitioner filed an expert report and curriculum vitae (“CV”) from Dr. Lindsay Lally along
with medical literature on May 16, 2019. ECF Nos. 36–37. Petitioner filed additional medical
records on May 20, 2019. ECF No. 38. Respondent filed two responsive expert reports by Dr.
Chester Oddis and Dr. You-Wen He, along with CVs and medical literature. ECF Nos. 40–41.
Petitioner also filed additional medical records on October 1, 2019 and November 1, 2019. ECF
Nos. 42–43. On December 3, 2019, Petitioner filed a responsive expert report by Dr. Lally and
medical literature. ECF No. 44. Respondent filed medical literature and supplemental expert
reports by Dr. Oddis and Dr. He on December 3, 2019. ECF No. 45. On September 2, 2020, I held
a Rule 5 status conference. Min. Entry, docketed Sept. 2, 2020. During the conference, the parties
agreed that Petitioner required additional time to retain an expert in immunology. ECF No. 48. On
January 15, 2021, Petitioner filed a status report indicating that Dr. Lally will opine on the
immunology issue, medical records, medical literature, and an expert report by Dr. Lally. ECF
Nos. 51–53.

        On February 16, 2021, this matter was referred to ADR. ECF No. 54. Respondent filed
expert reports by Dr. Oddis and Dr. He on March 15, 2021. ECF No. 59. On May 17, 2021, this
case was removed from ADR after settlement discussions were unsuccessful. ECF No. 60. On
April 19, 2022, Petitioner filed an expert report by Dr. Marc Serota accompanied with a CV and
medical literature. ECF No. 63. Respondent filed a responsive expert report by Dr. He on June 21,
2022. ECF No. 64. Petitioner filed an additional expert report by Dr. Serota on August 8, 2022.
ECF No. 66.

       On February 2, 2023, Petitioner filed a motion for a ruling on the record. ECF No. 74.
Respondent filed a response on March 31, 2023. ECF No. 79. Petitioner filed a reply on April 12,
2023. ECF No. 80.




3
 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

                                                     2
   II.       Availability of Interim Attorneys’ Fees and Costs

          A. Good Faith and Reasonable Basis

        Under the Vaccine Act, petitioners may recover reasonable attorneys’ fees and costs only
if “the petition was brought in good faith, and there was a reasonable basis for which the petition
was brought.” § 15(e)(1). Respondent does not object to Petitioner’s motion on the basis of good
faith or reasonable basis, and the undersigned finds that the statutory criteria for an award of
interim fees and costs are met.

          B. Justification for an Interim Award

        In Avera, the Federal Circuit stated that a special master may award attorneys’ fees and
costs on an interim basis. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir.
2008). The Court noted that such awards “are particularly appropriate in cases where proceedings
are protracted, and costly experts must be retained.” Id. Similarly, the Federal Circuit held in Shaw
that it is proper for a special master to award interim attorneys’ fees “[w]here the claimant
establishes that the cost of litigation has imposed an undue hardship and that there exists a good
faith basis for the claim[.]” Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372, 1375 (Fed.
Cir. 2010).

       Many cases in the Program are proceeding slower than they have in the past. See Miles v.
Sec’y of Health & Hum. Servs., No. 12-254V, 2017 WL 4875816 at *5 (Fed. Cl. Spec. Mstr. Oct.
4, 2017) (“It may be months to years before an entitlement ruling is issued.”); Abbott v. Sec’y of
Health & Hum. Servs., No. 14-907V, 2016 WL 4151689, at *4 (Fed. Cl. Spec. Mstr. July 15, 2016)
(“The delay in adjudication, to date, is due to a steady increase in the number of petitions filed
each year.”).

        This case has been pending for over six years, and an entitlement decision remains
outstanding. Meanwhile, Petitioner’s fees and costs have accumulated in the course of prosecuting
this case. Petitioner’s counsel has requested $280,099.12 in fees and costs, and “[i]t cannot be
seriously argued that in essence loaning cases thousands of dollars for years is not a hardship.”
Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V, 2009 WL 775396, at *2 (Fed. Cl. Spec. Mstr.
Mar. 13, 2009). Because of the protracted nature of the proceedings and the accumulation of fees
and costs, the undersigned finds an award of interim attorneys’ fees and costs reasonable and
appropriate in this case.

   III.      Reasonable Attorneys’ Fees

         The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may



                                                 3
make an upward or downward departure from the initial calculation of the fee award based on
specific findings. Id. at 1348.

        It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Hum. Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d
at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar serves by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895 n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
              A. Hourly Rate
        The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), mot. for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office
of Special Masters has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate
Fee Schedules for 2015–2016, 2017, 2018, 2019, 2020, 2021, 2022, and 2023 can be accessed
online.4
        Petitioner requests the following hourly rates for the work of her counsel: for Ms. Haskins,
$348 per hour of work performed in 2017, $369 per hour of work performed in 2018, $387 per
hour of work performed in 2019, $414 per hour of work performed in 2020, $440 per hour of work
performed in 2021, $460 per hour of work performed in 2022, and $492 per hour of work
performed in 2023; for Mr. Altom Maglio, $362 per hour of work performed in 2017; for Ms.
Anne Toale, $500 per hour of work performed in 2022 and $535 per hour of work performed in
2023; for Ms. Danielle Strait, $395 per hour of work performed in 2021 and $415 per hour of work
performed in 2022; for Ms. Diana Stadelnikas, $359 per hour of work performed in 2016, $415
per hour of work performed in 2019, $470 per hour of work performed in 2021, $490 per hour of
work performed in 2022, and $525 per hour of work performed in 2023; for Ms. Elizabeth
Abramson, $250 per hour of work performed in 2022; and for Ms. Jessica Olins, $145 per hour of
work performed in 2016 as a law clerk and $320 per hour of work performed in 2023 as an attorney.
Pet’r’s Ex. 98 at 53–54, ECF No. 82-2. Petitioner also requested the following rates for the work
of her counsel’s paralegals: $145 per hour of work performed in 2017, $148 per hour of work
performed in 2018, $154 per hour of work performed in 2019, $160 per hour of work performed
in 2020, $165 per hour of work performed in 2021, $170 per hour of work performed in 2022, and
$180 per hour of work performed in 2023. Id. Petitioner further requested the following rates for

4
    The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.

                                                    4
the work of her counsel’s medical records paralegals: $140 per hour of work performed in 2018
and $145 per hour of work performed in 2019 and 2020. Id.
       I have reviewed the billing records submitted with Petitioner’s request, and I find that the
hourly rates billed for 2016 through 2023 for attorney time and paralegal time are all reasonable
and in accord with prior awards made by other special masters. See Meyer v. Sec’y of Health &
Hum. Servs., No. 16-1414V, 2018 WL 3987338, at *3 (Fed. Cl. Spec. Mstr. May 15, 2018)
(approving an hourly rate for Ms. Haskins of $324 in 2016 and $348 in 2017, as well as a range of
$105 to $145 for paralegals). See also Ferguson v. Sec’y of Health & Hum. Servs., No. 14975V,
2016 WL 4140949, at *2–3 (Fed. Cl. Spec. Mstr. July 11, 2016) (approving the hourly rates of
$324 for Ms. Haskins in 2016 and $135 for paralegals).
           B. Reasonable Number of Hours
         Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley, 461
U.S. at 434). Upon review of the submitted billing records, I find that the time billed largely
reasonable. See Pet’r’s Ex. 98, ECF No. 82-2. The invoice entries are sufficiently detailed for an
assessment to be made of the entries’ reasonableness.
           C. Attorney Costs
         Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $59,950.72 in costs, primarily comprised of expert costs, medical records costs,
administrative filing fees, and postage. Pet’r’s Ex. 99 at 1–3, ECF No. 82-3. Petitioner has provided
adequate documentation of all these expenses, and they appear reasonable for the work performed
in this case. Therefore, Petitioner is awarded the full amount of costs sought.
   IV.     Conclusion
       Petitioner’s motion is hereby GRANTED. In accordance with the Vaccine Act, 42 U.S.C.
§ 300aa-15(e), the undersigned has reviewed the billing records and costs in this case and finds
that Petitioner’s request for fees and costs is reasonable. Based on the above analysis, the
undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows:

  Attorneys’ Fees Requested                                           $220,148.40
  (Reduction to Fees)                                                   -($0.00)
  Total Attorneys’ Fees Awarded

  Attorneys’ Costs Requested                                           $59,950.72
  (Reduction of Costs)                                                  - ($0.00)
  Total Attorneys’ Costs Awarded

  Total Attorneys’ Fees and Costs                                     $280,099.12




                                                 5
        Accordingly, the undersigned awards a lump sum in the amount of $280,099.12 to be
issued in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Ms. Alison
Haskins, for interim attorneys’ fees and costs.

       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 the above Decision.5

        IT IS SO ORDERED.

                                                  s/Herbrina D. Sanders
                                                  Herbrina D. Sanders
                                                  Special Master




5
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.

                                                      6


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DOCUMENT 2: USCOURTS-cofc-1_17-vv-01607-1
Date issued/filed: 2024-11-19
Pages: 23
Docket text: PUBLIC DECISION (Originally filed: 10/25/2024) regarding 90 DECISION of Special Master. Signed by Special Master Herbrina D S Young. (kis) Service on parties made.
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Case 1:17-vv-01607-UNJ Document 91 Filed 11/19/24 Page 1 of 23
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 25, 2024
* * * * * * * * * * * * * * * * * *
DONNA MARTIN, * No. 17-1607v
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * *
Anne Carrion Toale, Mctlaw, Sarasota, FL, for Petitioner
Neil Bhargava, U.S. Department of Justice, Washington, D.C., for Respondent
DECISION ON ENTITLEMENT1
On, October 26, 2017, Donna Martin (“Petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program (“Program” or “Vaccine Program”).2 Pet. at 1. Petitioner
alleges that she received the influenza (“flu”) vaccine on November 17, 2014, and as a result,
“continues to suffer from fatigue, a neurogenic cough and other sequelae of Microscopic
Polyangiitis [(“MPA”)].” Id. at 5.
For the reasons stated below, Petitioner’s case is hereby DISMISSED.
I. Procedural History
On December 11, 2017, Petitioner filed her medical records, along with a statement of
completion. Pet’r’s Exs. 1–27, ECF Nos. 8–11. Petitioner filed additional medical records on April
3 and April 26, 2018, along with a second statement of completion. Pet’r’s Exs. 30–32, ECF Nos.
1 This Decision shall be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of
Electronic Government Services). This means the Decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to redact
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted Decision. If, upon review, I agree
that the identified material fits within the requirements of that provision, such material will be withheld
from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99–660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2018).

Case 1:17-vv-01607-UNJ Document 91 Filed 11/19/24 Page 2 of 23
17–18. Respondent subsequently identified additional missing medical records, and Petitioner
filed another set of records on July 26 and October 8, 2018. Pet’r’s Exs. 33–36, ECF Nos. 23, 25.
On October 16, 2018, Respondent filed his Rule 4(c) Report. Resp’t’s Rept., ECF No. 26.
Petitioner filed an expert report and curriculum vitae with accompanying literature on May
16, 2019. Pet’r’s Exs. 37–47, ECF Nos. 36–37. Additional medical records were filed on May 20,
2019. Pet’r’s Exs. 48–54, ECF No. 38. Respondent filed his first expert report and medical
literature on August 15, 2019. Resp’t’s Exs. A, Tabs 1–7, B, ECF No. 40. On August 21, 2019,
Respondent filed a second expert report, curriculum vitae, and literature. Resp’t’s Exs. C, Tabs 1–
8, D, ECF No. 41. Petitioner filed additional medical records on November 1, 2019, and a
supplemental expert report on December 3, 2019. Pet’r’s Exs. 56–65, ECF Nos. 43–44.
Supplemental responsive expert reports were filed by Respondent on March 11, 2020. Resp’t’s
Exs. E, F, Tabs 1–3, ECF No. 45.
On January 15, 2021, Petitioner filed additional medical records, a supplemental expert
report, and medical literature. Pet’r’s Exs. 67–81, ECF Nos. 51–52. Respondent filed two
additional supplemental expert reports on March 15, 2021. Resp’t’s Exs. G, H, ECF No. 59.
Supplemental expert reports and medical literature were again filed by Petitioner on April 19,
2022, and by Respondent on June 21, 2022. Pet’r’s Exs. 82–96, ECF No. 63; Resp’t’s Exs. I, Tabs
1–20, ECF No. 64. Petitioner then filed his fifth expert report on August 8, 2022. Pet’r’s Ex. 97,
ECF No. 66. A Motion for Ruling on the Record was filed by Petitioner on February 2, 2023.
Pet’r’s Mot., ECF No. 74. Respondent responded on March 31, 2023, and Petitioner replied to the
response on April 12, 2023. Resp’t’s Resp., ECF No. 79; Pet’r’s Reply, ECF No. 80.
This matter is now ripe for consideration.
II. Evidence
a. Petitioner’s Affidavit
Petitioner filed a short affidavit attesting that her claim is appropriate for resolution within
the Program. Pet’r’s Ex. 28, ECF No. 13-2. She identified her injuries as neurogenic cough, fatigue,
and other MPA sequela and asserted that they were all caused by her flu vaccination. Id. Petitioner
did not provide additional factual information in her affidavit.
b. Medical Records
Petitioner was 56 years old when she received the flu vaccine at issue in this case. Pet’r’s
Ex. 1 at 1, ECF No. 8-2. Her past medical history was significant for GERD, asthma, allergic
rhinitis, anxiety, and obesity. Pet’r’s Ex. 25 at 3, ECF No. 10-8. On November 17, 2014, Petitioner
presented to her primary care physician, Dr. Johnrose-Brown, for treatment of GERD and weight
management. Pet’r’s Ex. 23 at 30–33, ECF No. 10-6. Petitioner’s physical examination was
unremarkable. Id. Petitioner received a flu vaccination during that visit. Pet’r’s Ex. 1 at 1.
On December 2, 2014, approximately two weeks post vaccination, Petitioner returned to
Dr. Johnrose-Brown for head congestion, bilateral ear pressure, nasal drainage, and a cough
2

Case 1:17-vv-01607-UNJ Document 91 Filed 11/19/24 Page 3 of 23
ongoing for two weeks. Pet’r’s Ex. 23 at 26–28. Petitioner also displayed a bilateral, non-pruritic
rash on her upper arms and thighs that had begun a week prior. Id. Dr. Johnrose-Brown diagnosed
her with a rash consistent with dermatitis and an upper respiratory infection (“URI”). Id. Petitioner
was prescribed steroid cream and the antibiotic azithromycin. Id. On December 8, 2014, Petitioner
returned to Dr. Johnrose-Brown for nasal congestion and a cough that was present for one month.
Id. at 21–23. Dr. Johnrose-Brown diagnosed her with bronchitis, a URI, and started Petitioner on
Augmentin, a Medrol dosepak, and tussionex. Id.
One week later, on December 15, 2014, Petitioner sought treatment with Lawrence Kass,
OD, for blood shot eyes that had been present for five days. Pet’r’s Ex. 11 at 5–8, ECF No. 9-3.
Dr. Kass diagnosed Petitioner with conjunctivitis. Id. On December 18, 2014, Petitioner again
returned to Dr. Johnrose-Brown with complaints of nasal congestion and a cough. Pet’r’s Ex. 23
at 16–18. Petitioner’s chest x-ray was positive for bilateral pneumonia and Petitioner was started
on Levaquin. Id.; Pet’r’s Ex. 6 at 8, ECF No. 8-7. By December 22, 2014, Petitioner reported
feeling better with respect to pneumonia, but she complained of a rash present for three weeks
when she sought treatment with Dr. Johnrose-Brown. Pet’r’s Ex. 22 at 11–14, ECF No. 10-5.
Petitioner was diagnosed with skin rash/dermatitis, and Dr. Johnrose-Brown documented that it
“could be streptococcal rash if pneumonia is from strep.” Id. Dr. Johnrose-Brown referred
Petitioner to a dermatologist. Id. On December 24, 2014, Petitioner sought a dermatology
evaluation with Scott Freeman, PA-C at Spencer Dermatology. Pet’r’s Ex. 16 at 9, ECF No. 9-8.
She complained of a whole body rash that “gradually started.” Id. at 9–10. On physical
examination, Petitioner exhibited a rash on her arms, legs, back, and face. Id. She was diagnosed
with a non-specific skin eruption and Mr. Freeman documented a “possible drug reaction
secondary to flu shot.” Id. at 10.
On December 30, 2014, Petitioner sought treatment with Dr. Rajesh Agrawal, a
pulmonologist. Pet’r’s Ex. 24 at 199–200, ECF No. 10-7. Petitioner reported increasing shortness
of breath. Id. Dr. Agrawal diagnosed Petitioner with acute bronchitis and shortness of breath and
ordered labs for further evaluation. Id. On December 31, 2014, Petitioner returned to Spencer
Dermatology with complaints of a gradual onset, whole body rash. Pet’r’s Ex. 16 at 6–8. On
physical examination, Petitioner exhibited a macular hyperpigmentation located on the lateral
aspects of her upper arms and dorsal thighs. Id. Petitioner’s skin biopsy revealed a hypersensitivity
reaction with histocytes neutrophils and eosinophils located within the dermal layer. Id.
On January 13, 2015, Petitioner sought treatment with Jennifer Castro, NP, for an
evaluation of a new rash on her legs. Pet’r’s Ex. 14 at 5–13, ECF No. 9-6. Petitioner reported that
she “had a physical and flu shot before Thanksgiving and started to feel lousy that week.” Id.
Petitioner’s ESR and CRP were elevated, and her ANA screen was negative. Id. Petitioner was
diagnosed with a cough and prescribed steroids. Id. On January 15, 2015, Petitioner’s chest CT
displayed abnormalities. Id. at 30–32. On January 19, 2015, Petitioner sought a thoracic surgery
consultation with Dr. Suhas Pradhan for suspected pneumonia and a respiratory infection with skin
rashes for the last two months. Id. at 65. Dr. Pradhan noted Petitioner’s upcoming bronchoscopy
and indicated that a lung biopsy may be a last resort, if she did not improve. Id. On January 20,
2015, Petitioner sought treatment with pulmonologist, Dr. Shenif El Bayadi. Id. at 67–70. Dr. El-
Bayadi ordered a series of diagnostic testing for further evaluation of Petitioner’s symptoms. Id.
3

Case 1:17-vv-01607-UNJ Document 91 Filed 11/19/24 Page 4 of 23
Petitioner went to St. Joseph’s Hospital on January 25, 2015, presenting with cough and
blood streaked sputum, dyspnea, and low oxygen levels. Pet’r’s Ex. 18 at 2–5, ECF No. 9-10. She
was admitted, and a January 29, 2015 medical record noted that Petitioner’s “symptoms started in
November when she developed a small rash around a flu shot injection site.” Id. at 19. Petitioner
was initially treated with steroids, but she deteriorated and required intubation. Id. at 2–5.
Petitioner’s bronchoscopy cultures were negative and her P-ANCA was positive. Id. She was
started on plasmapheresis and Rituximab. Id. Petitioner also required a blood transfusion. Id.
Petitioner’s condition improved, and she was discharged on February 19, 2015, with the principal
diagnoses of acute respiratory failure secondary to alveolar hemorrhage, MPA, hospital acquired
pneumonia, and blood loss anemia status-post transfusion. Id. At the time of discharge, Petitioner
was asymptomatic and ambulating. Id.
On February 24, 2015, Petitioner sought follow-up treatment with pulmonologist, Dr. El
Bayadi. Pet’r’s Ex. 15 at 12–14, ECF No. 9-7. She reported shortness of breath and difficulty with
activities of daily living, post hospitalization. Id. Dr. El-Bayadi’s assessment was Wegener’s
granulomatosis with vasculitis. Id. Dr. El-Bayadi felt Petitioner was clinically stable and instructed
her to continue with her current medications. Id. Petitioner was also instructed to get the flu vaccine
seasonally. Id. Petitioner continued treatment with Dr. Dodji Modjinou, a rheumatologist, who
followed her during her hospitalization. Pet’r’s Ex. 5 at 20–24, ECF No. 8-6. On February 27,
2015, she reported some difficulty going up and down the stairs due to shortness of breath. Id.
Petitioner was diagnosed with MPA and a purpuric rash. Id. On February 28, 2015, Petitioner
began in-home physical therapy. Pet’r’s Ex. 17 at 37, ECF No. 9-9. Dr. Modjinou saw Petitioner
again on March 17, 2015. Pet’r’s Ex. 5 at 11–13. Petitioner continued to complain of shortness of
breath but was improving. Id. On March 25, 2015, Petitioner sought treatment with Dr. El-Bayadi
who felt that her MPA had “improved significantly.” Pet’r’s Ex. 14 at 47–50. Five days later, on
March 30, 2015, Petitioner sought evaluation with an ear, nose, and throat (“ENT”) specialist, Dr.
Lawrence Krieger, for an abnormal sensation in her left posterior pharynx since her extubation.
Pet’r’s Ex. 3 at 8–12, ECF No. 8-4. Dr. Krieger felt the “symptoms [were] possibly related to
reflux, non-acidic reflux, or [a] contact ulcer from prolonged intubation or [a] combination.” Id.
On April 9, 2015, Petitioner was discharged from formal physical therapy and began her home
exercise program. Pet’r’s Ex. 17 at 113. Petitioner’s shortness of breath and fatigue continued, and
she returned to Dr. Modjinou on April 23, 2015. Pet’r’s Ex. 5 at 2–4. Dr. Modjinou instructed
Petitioner to continue her medications and noted that he would “write letter for patient to return to
work at 10 hours per week to start, per patient’s request.” Id.
On April 25, 2015, Petitioner presented to urgent care with complaints of left flank pain
for one day with an associated one-week history of nausea and vomiting. Pet’r’s Ex. 10 at 5–7,
ECF No. 9-2. Petitioner was transferred to the emergency room and passed a kidney stone before
being discharged the same day. Pet’r’s Ex. 18 at 53–55. She returned to her pulmonologist, Dr.
Agrawal, on June 2, 2015, with complaints of shortness of breath and sleep problems. Pet’r’s Ex.
24 at 40–42. Dr. Agrawal diagnosed Petitioner with shortness of breath, chronic airways
obstruction, asthma, and bronchitis and ordered a CT scan. Id. Petitioner’s CT scan displayed
improved ground glass opacities and some evidence of bronchitis and air trapping suggestive of
restrictive/obstructive lung disease. Pet’r’s Ex. 6 at 13–14.
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Dr. Sara Downs became Petitioner’s primary care provider on July 8, 2015. Pet’r’s Ex. 13
at 14–18, ECF No. 9-5. During that visit, Petitioner reported that she had no active MPA
symptoms, and her physical examination was normal. Id. On August 14, 2015, Petitioner sought
treatment with ENT, Dr. Elisa Lynskey. Pet’r’s Ex. 12 at 17, ECF No. 9-4. During that visit,
Petitioner complained of a dry, chronic cough associated with hoarseness since her intubation. Id.
Dr. Lynskey noted that Petitioner’s symptoms were likely multifactorial and were a combination
of vocal cord irritation and inflammation, as well as acid reflux. Id.
On August 17, 2015, Petitioner sought an evaluation with gastroenterologist, Dr. Tejinder
Glamour. Pet’r’s Ex. 2 at 39–40, ECF No. 8-3. Dr. Glamour ordered an
esophagogastroduodenoscopy (“EGD”) for Petitioner’s ongoing cough and ordered a colonoscopy
for preventative screening. Id. The EGD revealed esophagitis, and the colonoscopy displayed
diverticulosis and hemorrhoids. Id. at 15–17. On September 2, 2015, Petitioner returned to Dr.
Agrawal and reported that she was not using her CPAP machine, but she continued to experience
a cough. Pet’r’s Ex. 24 at 22–24. Dr. Agrawal diagnosed her with shortness of breath, obstructive
sleep apnea, COPD, mycobacterial disease, and chronic bronchitis and started her on new
medications. Id.
Continued cough, shortness of breath, and chest pain led to hospitalization for hypoxia
from September 21 to September 23, 2015. Pet’r’s Ex. 20 at 26, ECF No. 10-3. Her discharge
diagnoses included GERD, laryngopharyngeal reflux, mycobacterium avium intracellulare, MPA,
and OSA. Id. at 29. On October 15, 2015, Petitioner sought treatment with her gastroenterologist,
Dr. Glamour, and reported feeling “miserable” and “vomiting up acid.” Pet’r’s Ex. 2 at 36–37. Dr.
Glamour strongly advised Petitioner to discontinue steroids and lose weight to improve her
condition. Id. On October 23, 2015, Petitioner returned to Dr. Lynskey for evaluation. Pet’r’s Ex.
12 at 15. Petitioner felt that her cough and hoarseness symptoms were 80% improved. Id. Dr.
Lynskey instructed her to continue her acid reflux management as instructed by her
gastroenterologist and to return to her office in two months. Id.
On November 23, 2015, Petitioner returned to Sara Downs, DO, at her primary care office
for a referral to a new gastroenterologist. Pet’r’s Ex. 13 at 10–12. Dr. Downs advised her to cease
taking NSAIDS and to alter her diet. Id. On December 4, 2015, Petitioner sought treatment with
Dr. Shilpa Renukuntla, another ENT specialist. Pet’r’s Ex. 21 at 5–7, ECF No. 10-4. Dr.
Renukuntla diagnosed Petitioner with vocal cord dysfunction and discussed the potential for
speech therapy. Id. Petitioner returned to Dr. Glamour on December 9, 2015, and reported that she
would be starting speech therapy for her vocal cord dysfunction. Pet’r’s Ex. 2 at 34. Petitioner’s
physical examination was normal, and Dr. Glamour instructed her to return for evaluation in six
months. Id. Following a voice assessment on December 21, 2015, Petitioner was referred for voice
therapy. Pet’r’s Ex. 21 at 8–11.
Dr. Agrawal considered a surgical vagotomy for Petitioner’s ongoing cough during a
January 26, 2016 exam. Pet’r’s Ex. 24 at 16–18. Dr. Agrawal advised Petitioner to reduce her
weight and use her CPAP machine. Id. Petitioner returned to Dr. Renukuntla on February 12, 2016,
and Dr. Renukuntla again recommended voice therapy. Pet’r’s Ex. 21 at 13.
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During a March 1, 2016 office visit with Dr. Downs, Petitioner requested diet pills. Pet’r’s
Ex. 13 at 3–5. Dr. Downs instructed her to seek an evaluation with a weight loss clinic regarding
diet pills and to seek a cardiac evaluation. Id. On March 21, 2016, Petitioner sought treatment with
Dr. Marion Ridley, ENT, for a second opinion. Pet’r’s Ex. 21 at 17. Following Petitioner’s
examination, Dr. Ridley recommended gabapentin and speech therapy. Id. On April 19, 2016,
Petitioner sought a second opinion with gastroenterologist, Dr. Joel Richter, for her GERD. Id. at
19–21. Dr. Richter noted that Petitioner’s GERD was well-controlled, and he did not believe
GERD was contributing to her cough. Id.
On May 16, 2016, Petitioner returned to Dr. Ridley and reported that she “feels cough is
much improved, but still coughs when she is around her husband or even speaks to him on the
phone. She has seen a psychologist in the past for anxiety. Went for [one] full week without
coughing when her husband was away.” Pet’r’s Ex. 21 at 23–24. Dr. Ridley referred Petitioner to
a “psychologist/psychiatrist for anxiety-related cough when around/talking to husband” and
referred her to general surgery for a weight-loss surgery consultation. Id. On September 23, 2016,
Petitioner sought evaluation and treatment with Dr. Michelle Spuza-Milord for lumbosacral
spondylosis. Pet’r’s Ex. 4 at 10–14, ECF No. 8-5. Petitioner’s diagnoses included GERD,
lumbosacral spondylosis, and Wegener’s granulomatosis with multisystem involvement. Id.
In 2017, Petitioner reported that she was interested in bariatric surgery. Pet’r’s Ex. 29 at
11–13, ECF No. 15-2. A May 11, 2017 note from an evaluation completed by Dr. Spuza-Milford
noted that Petitioner’s “pulmonary diagnosis began after last flu shot November 17 2014.” Pet’r’s
Ex. 30 at 20–24, ECF No. 17-2.
c. Petitioner’s Expert, Dr. Lindsay Lally, M.D.
Petitioner offered the expert opinion of Dr. Lindsay Lally. Pet’r’s Ex. 37, ECF No. 36-2.
Dr. Lally received her medical degree from Well Cornell Medical College and completed an
internship and residency in internal medicine at New York Presbyterian-Well Cornell. Id. She
completed an additional fellowship “to focus on research related to vasculitis.” Id. Dr. Lally has
been an assistant professor “within the Scleroderma, Vasculitis and Myositis Center of Excellence
at the Hospital of Special Surgery” since 2015. Id. She has authored “several articles about
different types of vasculitis and ha[s] served as principal investigator in many clinical trials.” Id.
She has treated “more than 100 patients with Antineutrophil Cytoplasmic Antibody (ANCA)
Associated vasculitis (AAV).” Id.
Dr. Lally agreed with Petitioner’s diagnosis of MPA. She explained that MPA is a type of
ANCA-AAV “characterized by pauci-immune necrotizing vasculitis of small to medium sized
blood vessels and an association with serologically detectable ANCA in the majority of cases.” Id.
Dr. Lally went on to review Petitioner’s medical records and provide an overview of an MPA
diagnosis. She noted that the rare disease involves “[i]nflammation in the vessels result[ing] in
hypoxemia and end organ damage.” Id. at 2. Using criteria from the 2012 Chapel Hill Consensus
Conference, Dr. Lally distinguished MPA from other forms of vasculitis by noting there are “few
or no immune deposits” and no granulomatous inflammation, but necrotizing glomerulonephritis
and pulmonary capillaritis are common. Id. at 3. Additional factors include pulmonary
involvement in 85% of patients, specifically, “pulmonary infiltrates or diffuse alveolar
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hemorrhage.” Id. at 4. Dr. Lally noted that Petitioner’s medical records indicate she developed
sinonasal disease and diffuse alveolar hemorrhage. Id. She concluded that Petitioner’s “clinical
presentation along with the supportive laboratory and radiographic tests are completely consistent
with MPA.” Id.
The pathogenesis of MPA is “not completely understood,” but Dr. Lally stated “it is known
that there is activation of the innate immune system.” Id. She explained that one role of the innate
immune is the priming of neutrophils in response to the presence of “molecular patterns that may
signal ‘damage’ or ‘danger.’” Id. Consequently, several pro-inflammatory chemokines are
released. Id. Dr. Lally continued that “[p]rimed neutrophils are better able to release their toxic
granules which have the ability to destroy bacterial invaders in the context of infection.” Id. In
cases of MPA, the neutrophil interaction with antibodies, in the absence of actual bacteria, leads
to an autoimmune attack and “endothelial damage.” Id. at 5. This damage causes the release of
more granules, resulting in “more damage to the surrounding blood vessels and tissues,” and “more
inflammatory cytokine release and more tissue damage.” Id. Ultimately, “the adaptive immune
system with antibody producing B cells and cytokine activating T cells take over resulting in
chronic inflammation and scarring.” Id.
To connect MPA to the flu vaccine, Dr. Lally noted that vasculitis has been reported as an
adverse event following flu vaccination. She specifically identified medical “literature of systemic
necrotizing vasculitis, such as MPA, occurring after [flu] vaccination.” Id. at 6 (citing Pet’r’s Ex.
46, ECF No. 36-11).3 In Uji et al. the authors examined a case study involving an 83-year-old
woman who received the flu vaccine on November 26, 2003. Pet’r’s Ex. 46 at 1. She complained
of sore throat and fever seven days later, and worsening symptoms led to her hospitalization on
December 11, 2003. Id. On the fourth day of hospitalization, the patient was diagnosed with MPA.
Id. The study noted that infectious agents “are associated with the occurrence of vasculitis, but the
precise mechanisms leading to vasculitis after [flu] vaccination are unknown.” Id. at 4. The authors
generally noted that the vaccine could directly cause the inflammation, or the condition could occur
as the result of “an immunological activation.” Id. In the case study, the authors pointed to a
decrease in autoimmune inflammatory markers following treatment, possibly “reflect[ing]
immunological activity causing vasculitis rather than the direct damage to the vessel walls by the
vaccine itself.” Id. They concluded that “[c]linicians should be aware of the possible association
between systemic vasculitis and influenza vaccinations.” Id. Dr. Lally echoed the authors’
disclaimer that “[t]he precise mechanism of vaccine induced MPA is not identified.” Pet’r’s Ex.
37 at 6. She described complement activation as a mechanism for neutrophil priming leading to
“presentation of antigen on the cell surface which could enhance ANCA development and
specificity and lead to tissue damage.” Id.
Although Dr. Lally did not provide a specific onset date for Petitioner’s injuries, she opined
that “the onset of [Petitioner’s] respiratory symptoms on December 2, 2014, establishes a clear
temporal relationship between exposure and disease onset.” Id. Dr. Lally stated that Petitioner’s
respiratory symptoms were incorrectly related to a “[URI] or an infectious pneumonia in December
2014.” Id. Instead, Dr. Lally asserted that “these were her presenting features of MPA.” Id. She
noted that this interval is consistent with “a vaccine induced autoimmune response,” and concluded
3 Masoto Uji et al., Microscopic Polyangiitis After Influenza Vaccination, 44 INTERNAL MED. 892 (2005).
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that Petitioner “developed MPA with pulmonary hemorrhage as a direct result of her [flu]
vaccine.” Id.
In a supplemental report, Dr. Lally acknowledged that Petitioner did have some relevant
comorbidities but argued that her vasculitis treatment exacerbated those conditions. Pet’r’s Ex. 63
at 1, ECF No. 44-2. She described the potential side effects of Petitioner’s corticosteroid, including
GERD and chronic infections. Id. Dr. Lally clarified that she does not believe Petitioner’s MPA
was triggered by her phentermine use. Id. After noting Petitioner’s incomplete treatment history,
Dr. Lally conceded that the medication “has definitely been associated with pulmonary arterial
hypertension.” Id. In this case, she argued that Petitioner’s elevated pressure “was secondary to
intrinsic lung disease related to her MPA, not primary [pulmonary arterial hypertension] as one
would see in phentermine toxicity.” Id. Dr. Lally observed nothing in Petitioner’s medical record
at the time of vaccination “noting any viral symptoms and no documented physical exam findings
consistent with a cold-like illness.” Id. at 3.
Lastly, Dr. Lally asserted that “[t]here is strong literature to support the role of the innate
immune system in AAV/MPA” pathogenesis. Id. at 2 (citing Pet’r’s Ex. 64, ECF No. 44-3;4 Pet’r’s
Ex. 65, ECF No. 44-4).5 Both the Ohlsson et al. and Brilland et al. papers discuss the role of
alternative pathway systems in ANCA-associated vasculitis. The Ohlsson et al. “study shows that
primed and ANCA-stimulated neutrophils from AAV patients have a greater ability to activate the
alternative complement pathway compared to primed neutrophils from healthy controls.” Pet’r’s
Ex. 64 at 1. The authors were seeking to highlight “the therapeutic potential of C5a[6] and other
complement blockade.” Id. The Brilland et al. study reached a similar conclusion based on animal
models and argued that “complement alternative pathway activation has been shown to be
determinant in AAV pathogenesis through [] a potent chemoattractant for neutrophils with priming
capabilities.” Pet’r’s Ex. 65 at 1.
Dr. Lally submitted a supplemental expert report to respond to Respondent’s experts and
further clarify her asserted biological mechanism. Pet’r’s Ex. 74, ECF No. 52-1. Noting that the
innate immune system is complex, Dr. Lally argued that some parts “may be activated, while others
may be actually less effective or dysfunctional, furthering fueling disease.” Id. at 1. Her and Dr.
He’s understanding of complement activation’s role in AAV disease development are not mutually
exclusive. Dr. Lally explained that “the combination of the alternative complement system and the
neutrophils is integral to disease development from the triggering of ANCA production through to
generation of vasculitic damage,” but conceded that “these interactions are not yet clearly defined.”
Id. At the end of the report is a “schematic that depicts the current acceptance of AAV disease
pathogenesis in the vasculitis community highlighting the joint interaction between neutrophils
4 Sophie Ohlsson et al., Neutrophils from ANCA-Associated Vasculitis Patients Show an Increased
Capacity to Activate the Complement System via the Alternative Pathway After ANCA Stimulation, 4
PLOS ONE e0218272 (2019).
5 Benoit Brilland et al., Complement Alternative Pathway in ANCA-Associated Vasculitis: Two Decades
Form Bench to Bedside, AUTOIMMUNITY REVS., https://doi.org/10.1016/j.autrev.2019.102424.
6 C5a is an anaphylatoxin and chemotactic factor for neutrophils, generated in the cleavage of C5 by C5
convertases. It is a potent local mediator of inflammation. C5a, DORLAND’S MED. DICTIONARY ONLINE,
https://www.dorlandsonline.com/dorland/definition?id=66271(last visited Oct. 15, 2024).
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and complement in perpetuating vascular damage in AAV.” Id. at 2–3. Dr. Lally also included a
chart with the loss of immune tolerance to ANCA antigens and the development of ANCA. Id. at
4.
d. Petitioner’s Expert, Dr. Marc Serota, M.D.
Dr. Marc Serota graduated from the University of Missouri with a bachelor’s degree and
medical degree pursuant to an interdisciplinary program. Pet’r’s Ex. 82 at 1, ECF No. 63-2. He
completed residencies in pediatrics at Cohen’s Children’s Hospital in New York and in
dermatology at the University of Colorado. Id. Dr. Serota also completed a fellowship in allergy
and immunology at Children’s Mercy Hospital in Missouri. Id. He is board certified in pediatrics,
dermatology, and allergy/immunology. Id. Dr. Serota is currently “in private practice in Denver,
Colorado [practicing] both Dermatology and Allergy/Immunology.” Id. at 20. His expertise
includes immunology/immunologic mediated disease/skin disease. Id.
In his report, Dr. Serota, focused on the biological mechanism that Petitioner asserted and
the role of the innate immune system. Id. at 6. Dr. Serota explained that the lower oxidative burst
capacity in granulocytes seen in MPA patients is only a fair characterization when compared to
patients with polyangiitis or eosinophilic granulomatosis. Id. This is a comparison of innate
immune system activity in individuals that are all suffering from disease without evidence that
“MPA does not include a heightened innate immune response” compared to healthy individuals.
Id. He continued that the Johansson et al. article “discuss[es] the innate immune systems role and
changes in the normal homeostasis for patients with AAV including low lymphocytes, increased
PMN’s . . . , which have an increased release from bone marriage, and increased survival in AAV.”
Id. In fact, Dr. Serota argued that “a drastic reduction in cell lines,” is proof to the authors that
“that the interplay between the innate and adaptive immune systems and the changes in their
homeostasis and release and depletion of their granules, are an important part of autoimmunity.”
Id. Additionally, he cited the Braudeau et al. article to assert that “when the immune system is
responding and creating inflammation, some measurables of the immune system will naturally go
down as they are used up and brought into tissue – this does not mean they aren’t involved.” Id. at
6–7. Dr. Serota argued that “[i]f those components were not involved in the process, we would
expect them to be unchanged.” Id. at 8. Dr. Serota argued that, in fact, the opposite is true. Id. He
concluded that the literature “showing decreases in some measurables of the innate immune system
([reactive oxygen species] production and [dendritic cells])” actually supports their involvement
and utilization. Id.
Dr. Serota also discussed molecular mimicry at length in his expert report. Id. at 8–12. He
noted that the “etiology of autoimmune disease is not fully elucidated,” but a combination of
hereditary and environmental factors are likely the main causes. Id. at 8. Dr. Serota explained the
concept of molecular mimicry by way of mice that developed encephalomyelitis following
exposure to hepatitis B. Id. at 9. He then listed several diseases that are featured in “numerous
articles in the immunologic literature discussing molecular mimicry and when known, the specific
human antigen targets being mimicked.” Id. MPA is not one of those diseases, but Dr. Serota
explained, “it is not practical or plausible to study or know every potential molecular target –
especially for rare events such as MPA following [flu] vaccination.” Id. He then spent some time
discussing Guillain-Barré syndrome and active infection as catalysts for autoimmunity via
molecular mimicry. Id. at 10. He asserted that the rare occurrence of MPA does not lend itself to
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the best causal evidence (“clinical data, epidemiologic studies, and basic science”), and submitted
case reports as “data point[s] we can use to help form an opinion.” Id. at 10.
Petitioner filed the Kelsall et al.7 article abstract, which purported to describe a case of
MPA following flu vaccination. Pet’r’s Ex. 92, ECF No. 63-12. The article text was not filed, but
the abstract indicated that patients developed vasculitis, including MPA following “[flu]
vaccination or [flu]-like illness.” Id. The authors contended that “this does not provide conclusive
evidence that the vaccination caused the vasculitis, [but] it supports this hypothesis.” Id.
A second article that Dr. Serota referenced was the Uji et al. article that Dr. Lally also
described. Pet’r’s Ex. 46. Dr. Serota detailed the patient’s clinical progression. Pet’r’s Ex. 82 at
11. Following her flu vaccination, the patient developed a fever and sore throat. Pet’r’s Ex. 46 at
1. Imaging revealed “thickened bronchovascular bundles, multiple nodules with feeding vessels
and consolidation.” Id. She also had high MPO-ANCA and soluble IL-2R levels in serum,
“abnormal renal function and urinary sediment.” Id. The authors concluded that the decrease of
sIL-2r post treatment “might have reflected immunological activity causing vasculitis rather than
the direct damage to the vessel walls by the vaccine itself.” Id. at 4. They acknowledged that while
“[s]everal infectious agents, including viruses, are associated with the occurrence of vasculitis, []
the precise mechanisms leading to vasculitis after [flu] vaccination are unknown.” Id. The authors
encouraged clinicians to “be aware of the possible association between systemic vasculitis and
[flu] vaccination.” Id.
Dr. Serota summarized the Konishi et al.8 article abstract, but the article text was not
translated into English from its original Japanese version. Pet’r’s Ex. 94, ECF No. 63-14. The
abstract noted that the case report involved a 67-year-old female who developed MPA and giant
cell arteritis following a flu vaccination. Id. at 1. The summary concluded with the assertion “that
the [flu] vaccination may cause different types of vasculitis . . . through the common mechanism
in pathophysiology.” Id.
Relying on evidence from case reports is often necessary in instances of vaccine-caused
illness, according to Dr. Serota, because these are such rare occurrences of immune system failure.
Pet’r’s Ex. 82 at 12. He articulated the series of events and failures that must occur within an
individual, specifically: 1) the induction of T-cell tolerance to antigens; 2) the presence of genetic
pre-dispositions that undermine pathogenesis checkpoints within the immune system; 3) an
external trigger; and 4) the failure of T-regulatory cells to stop an autoimmune response. Id. Dr.
Serota argued that this confluence of events is rare enough as to not pick up a signal on
epidemiologic studies even upon millions of doses of vaccine being given. Id. He further explained
that “[i]t is not enough for an antigen to share homology with human antigens, ALL of these
different points of failure must be present.” Id.
In Petitioner’s case, Dr. Serota asserted that there is “a clear temporally associated
vaccination,” and he agreed “with Dr. Lally’s proposed mechanism of autoimmune stimulation.”
7 J.T. Kelsall et al., Microscopic Polyangiitis After Influenza Vaccination, 24 J. RHEUMATOLOGY 1198
(1997).
8 Mai Konishi et al., A Case of Microscopic Polyangiitis and Giant Cell Arteritis After Influenza
Vaccination, 34 Japan J. Clinical Immunology 154 (2011).
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Id. Dr. Serota concluded that Petitioner’s symptoms were likely early symptoms of her MPA and
occurred “outside the normal expected timing of a routine viral [URI].” Id.
In his final submitted expert report, Dr. Serota did not identify any new arguments or
provide further clarification of previously asserted positions. Pet’r’s Ex. 97, ECF No. 66-2. He
identified areas where he asserted that Dr. He oversimplified or mischaracterized his previous
arguments. He also clarified his assertion that in MPA patients, cells within the innate immune
system have lower oxidative capacity because that capacity is being used to trigger MPA, whereas
in healthy controls the cells are not otherwise being activated and therefor have a larger capacity.
Id. at 2. Dr. Serota also briefly discussed the difference between wild virus infections and
vaccinations, while maintaining that both can be the impetus for autoimmune disease.
e. Respondent’s Expert, Dr. Chester V. Oddis, M.D.
Dr. Oddis is a Professor in the Division of Rheumatology and Clinical Immunology at the
University of Pittsburgh School of Medicine. Resp’t’s Ex. A at 1, ECF No. 40-1. He received his
undergraduate degree at the University of Pittsburgh and his medical degree at Pennsylvania State
University. Resp’t’s Ex. B at 1, ECF No. 40-7. Dr. Oddis completed his internship and residency
at Pennsylvania State and a rheumatology fellowship at the University of Pittsburgh. Id. He is
board certified in internal medicine and rheumatology and has “managed or consulted on over 100
cases of ANCA-associated vasculitis.” Resp’t’s Ex. A at 1. Dr. Oddis has also written “over 120
peer-reviewed publications and nearly 60 invited articles or book chapters.” Id. at 2.
Dr. Oddis agreed with Petitioner’s treaters and Dr. Lally that Petitioner suffered from
MPA. Id. at 3. He noted that “clinical features include constitutional symptoms such as fatigue,
fever, weight loss, joint pain, sinus problems, pulmonary complaints[,] and kidney or neurologic
involvement.” Id. Petitioner exhibited many of the key features associated with MPA, and Dr.
Oddis noted that Petitioner “responded well to the medical treatment” typical for MPA, including
“high dose steroids and different forms of immunosuppressive therapy.” Id. Dr. Oddis continued
that Petitioner “had a monophasic course of MPA in that she has not had significant recurrent
symptoms for [three] years after this diagnosis.” Id. at 4.
There was also agreement between Drs. Lally and Oddis that the cause of MPA is largely
unknown but involves “activation of the innate immune system.” Id. However, Dr. Oddis noted “a
clear paucity of data and literature support linking any vaccine to the development of systemic
vasculitis.” Id. He opined that there are “other potential alternative explanations” for Petitioner’s
vasculitis. Id. First, Dr. Oddis identified Petitioner’s URI with symptom onset “at approximately
November 18, which is one day after vaccination.” Id. He argued that it “[i]t is certainly well
known and postulated that an infection can serve as a trigger for many autoimmune and vasculitic
illnesses.” Id. Dr. Oddis also asserted that it is “plausible” that Petitioner’s phentermine medication
“could have triggered her multisystem illness.” Id. Specifically, phentermine “belongs to a class
of medications termed sympathomimetic amines,” and “is known to have vascular effects and in
some cases . . . cause pulmonary hypertension.” Id.
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f. Respondent’s Expert, You-Wen He, M.D., Ph.D.
Dr. He is a Professor of Immunology at Duke University Medical Center. Resp’t’s Ex. C
at 1, ECF No. 41-1. He received his medical degree from The Fourth Military Medical University
in Xian, China and a doctorate in microbiology and immunology from the University of Miami
School of Medicine. Resp’t’s Ex. D at 1, ECF No. 41-10. He also has a master’s degree in
microbiology and epidemiology from the Academy of Military Medical Sciences in Beijing. Id.
He has been “conducting research on immunology since 1986.” Resp’t’s Ex. C at 1. Dr. He’s
research has focused on “both innate and adaptive immunity against viral and bacterial infections,”
and he has studied “human immune responses to viral infections including [flu].” Id. He has served
as editor for several major biomedical journals, including the Journal of Immunology and Cell and
Molecular Immunology. Id.
The lack of epidemiologic evidence to support a relationship between flu vaccination and
MPA is Dr. He’s main argument against causation in this case. Dr. He noted that the National
Academy of Medicine found insufficient evidence “to assess an association between [flu] vaccine
and onset of vasculitis.” Id. at 3. Furthermore, volunteer scientists within the Academy “reviewed
mechanistic evidence base on 48 publications reporting or studying onset or exacerbation of
vasculitis after administration of the [flu] vaccine [and found evidence was insufficient] for the
committee to conclude the vaccine may be a contributing cause of vasculitis.” Id. Dr. He did
concede that there was some evidence of the recurrence of vasculitis symptoms “upon vaccine
rechallenge.” Id. at 4. Specifically, “[a]utoantibodies, T cells, complement activation, and immune
complexes may contribute to the symptoms of vasculitis.” Id. He noted, however, that this
evidence was characterized by the Academy Committee as weak, and they ultimately “concluded
that the evidence is inadequate to accept or reject a causal relationship between [flu] vaccine and
vasculitis.” Id. Dr. He focused on the lack of associative evidence to opine that the Academy
“clearly stated that there is no adequate evidence to support a link between influenza vaccine and
MPA.” Id. Dr. He also discussed “a randomized clinical trial [that] investigated whether [flu]
vaccination is safe in patients with ANCA-associated vasculitis.” Id. The study revealed “no
statistically significant increase[d] risk of autoantibody production and disease activity.” Id.
Dr. He disputed Dr. Lally’s contention that an increased innate immune response was
observed in MPA patients. He relied on one study of 104 ANCA-AAV patients wherein “[t]he
authors found a decreased production of reactive oxygen species in AAV phagocytes and lower
oxidative burst capacity in granulocytes” compared to granulomatosis and eosinophilic
granulomatosis. Id. at 5 (citing Resp’t’s Ex. C, Tab 6, ECF No. 41-7).9 Another study conducted
by Braudeau et al.10 found decreased blood dendritic cells in MPA patients during the active phase
of disease and a decrease in certain cytokines “when compared to patients in remission and healthy
donor controls.” Id. (citing Resp’t’s Ex. I, Tab 2, ECF No. 64-3). Dr. He argued that these studies
offer support against an innate immune system causation theory. Id.
9 Ȧsa CM Johansson et al., Impaired Phagocytosis and Reactive Oxygen Species Production in
Phagocytes is Associated With Systemic Vasculitis, 18 ARTHRITIS RSCH. & THERAPY (2016).
10 Cécile Braudeau et al., Dysregulated Responsiveness of Circulating Dendritic Cells to Toll-Like
Receptors in ANCA-Associated Vasculitis, 8 FRONTIERS IMMUNOLOGY (2017).
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While Dr. He conceded that there is some “speculation that complement activation could
result in enhanced ANCA development and lead to tissue damage,” he noted that there is no
evidence to support this idea. Id. Indeed, all vaccine-induced immune protection develops due to
the “activation of the innate and adaptive immu[ne systems] to induce antigen-specific responses.”
Id. In Petitioner’s case, Dr. He argued that “no evidence has been provided on the induction of
auto-reactive T lymphocytes, complement activation[,] and immune complexes formation [] after
her flu vaccination.” Id. at 6. The temporal relationship of less than one week from flu vaccine to
the onset of MPA, “a complex autoimmune disease with autoantibody production,” is also too
short. Id. at 7.
In a supplemental report, Dr. He clarified that the decreased immune function he noted
from the Johansson et al. article was observed in comparison to controls. Resp’t’s Ex. I at 2, ECF
No. 64-1. Dr. He wrote, “[i]n fact, the Johansson [et al.] study used healthy human subjects as
controls throughout and investigated the activation and functional status of phagocytes between
patients and healthy human subjects.” Id. The authors asserted that “phagocytes in patients with
AAV were not more activated than in healthy controls.” Id. Dr. He agreed with the article’s
ultimate conclusion that “[t]he association between low reactive oxygen species formation in PMN
and disease severity is consistent with findings in other autoimmune diseases and might be
considered as a risk factor.” Id. at 3.
Dr. He also clarified his understanding of the significance of the Braudeau et al. study. Id.
at 4. The authors noted a significant decrease in “absolute counts of [conventional dendritic cells],”
decreases in interleukin production by conventional dendritic cells, and a slight “reduction of
TNFα production” in plasmacytoid dendritic cells observed in ANCA-associated vasculitis. Id. Dr.
He rejected any assertion that these reductions are indicative of “increased recruitment in
[inflammatory tissues such as skin, synovial fluids, or muscle.” Id. (citing Resp’t’s Ex. I, Tab 2 at
4). This hypothesis, according to Dr. He, “is without evidentiary support.” Id. Petitioner’s expert
also claimed that dendritic cells are hyper-activated during remission when they are “no longer
needed in the tissue,” but that is also disputed by Dr. He. Id. at 5.
Petitioner’s biological mechanism begins with “activation of innate immunity by [flu]
vaccination.” Id. Dr. He maintained in his supplemental report that innate immune components are
suppressed during MPA pathogenesis per the Braudeau et al. study. Id. at 6. However, he reiterated
that innate and adaptive immunity are necessary to “generate vaccine-induced immune
protection.” Id. Dr. argued that “no evidence has been provided on the induction of autoreactive T
lymphocytes, complement activation, and immune complexes formation in [Petitioner] after her
[flu] vaccination.” Id.
Dr. He noted that Petitioner is relying on molecular mimicry to explain how her flu
vaccination caused her MPA. Dr. He responded by asserting that “this old theory has been strongly
challenged by recent scientific evidence from large sequencing of proteomes of microbial
pathogens.” Id. at 8. Given the extensive peptide similarity between virus and human, “90% of the
viral 5-mer peptides are widely . . . repeatedly scattered throughout the human proteome,” Dr. He
argued that molecular mimicry “would suggest a 100% autoimmune disease rate in the general
population after ether infection or vaccination.” Id. Dr. He noted that even “at the highly stringent
8-mer level, the overlap between viral and human proteome still occurs at 8805 matches.” Id. The
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Institute of Medicine Committee’s statement that “homology or even similar conformational
structure between an exogenous agent and a self-antigen alone are not sufficient to prove that
molecular mimicry is the pathogenic mechanism for disease,” is quoted by Dr. He. Id. He also
noted that sometimes “[c]ross-reacting antibodies can also be secondary to nonspecific tissue
injury,” and “infection with viruses that express antigens having immunologic cross-reactivity can
actually protect against autoimmune disease in certain animal models.” Id.
Dr. He warned about the conflation of infection-induced immune responses and vaccine-
induced immune responses. Id. at 9. One major difference that he explained is that “microbial
pathogens contain many more [pathogen-associated molecular patterns] to stimulate a much
broader immune response than their corresponding vaccines”. Id. at 10. Furthermore, “[w]ild type
virus natural infection routes cannot be controlled, while [a] vaccine is administrated by
intramuscular/intradermal/subcutaneous injections that is a controlled process.” Id. at 11. As it
relates specifically to the flu vaccine, Dr. He concluded that “there is no clinical evidence that [flu]
vaccine is causally linked to any forms of vasculitis.” Id. at 14. Instead, Dr. He argued that
Petitioner “developed symptoms of nasal congestion, rhinorrhea, and cough,” several days post
vaccination and was properly diagnosed with a viral URI. Id. at 15–16. This infection “would have
produced a much stronger immune stimulation than the [flu] vaccination that [Petitioner]
received.” Id. at 16.
III. Summary of the Parties’ Arguments
a. Petitioner’s Motion for Ruling on the Record
Petitioner’s motion for a ruling on the record is a comprehensive briefing that provides a
medical history, expert opinion summaries, a legal standard that includes a discussion of
plausibility and alternative causation, and an analysis of Petitioner’s case pursuant to Althen.
Pet’r’s Mot. (citing Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005)).
Petitioner asserted in her legal application section that she should prevail if she “can show by a
preponderance of evidence that there is a causal relationship between the vaccine and the injury,
whatever the details of the mechanism may be.” Id. (citing Moberly v. Sec’y of Health & Hum.
Servs., 592 F.3d 1315, 1325 (Fed. Cir. 2010). Citing Moberly, Petitioner noted that conclusive
evidence within the medical literature is not necessary. Id. (citing Moberly, 592 F.3d at 1325). She
also cited Kottenstette to assert that a detailed medical and scientific exposition on the biological
mechanisms is not required for a causation theory to be sound and reliable. Id. (citing Kottenstette
v. Sec’y of Health & Hum. Servs., 861 F. App’x 433, 441 (Fed. Cir. 2021)).
Notably, Petitioner sought to address the “significant confusion in the case law as to
whether prong one [of Althen] can be satisfied by the demonstration of a biologically plausible
mechanism.” Id. at 24. She criticized Respondent’s understanding of the phrase and argued that
the term “has a specific scientific meaning.” Id. Petitioner relies on the Reference Manual on
Scientific Evidence11 (within the context of Toxicology) to define the term as “consideration of
existing knowledge about human biology and disease pathology to provide a judgement about the
11 National Academies of Sciences, Engineering, and Medicine. 2011. Reference Manual on Scientific
Evidence: Third Edition. Washington, DC: The National Academies Press. https://doi.org/10.17226/13163.
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plausibility that an agent causes disease.” Id. The the authors note that “summing, or synthesizing,
data addressing different linkages [between kinds of data] forms a more complete causal evidence
model and can provide the biological plausibility needed to establish the association being
advocated or opposed.” Id. at 23–24. (internal quotations omitted). Petitioner argued that scientific
and medical definitions of biological plausibility are consistent with a Program application that
the concept is “not only relevant [] in any discussion of vaccine causation, but its existence lends
credence to an inference of causality.” Id. at 25. Lastly, Petitioner referenced several cases to argue
that “[w]ell established vaccine precedents refer to ‘proof of medical plausibility.” Id. at 26.
Petitioner next sought to establish how to determine if a causation theory is reliable,
specifically as it relates to molecular mimicry. She noted that molecular mimicry “has been
accepted as a sound and reliable theory, even without demonstrating specific homology between
a vaccine and the autoimmune injury, in some cases.” Id. at 29. Petitioner noted that there is no
need for epidemiological studies to prove causation as that would “impermissibly raise the
[P]etitioner’s burden of proof.” Id. at 30. Petitioner went on to discuss her burden pursuant to the
remaining Althen prongs.
In the analysis section of her motion, Petitioner reiterated the biological mechanism
discussed by her experts, Drs. Lally and Serota. She provided a diagram that explains the interplay
among genetic predispositions, environmental factors, and characteristics of the innate and
adaptive immune systems that is key to the pathogenesis and propagation of ANCA-AAV. Id. at
41. She also provided a flowchart to “elucidate the key stages in ANCA-AAV,” from the initial
loss of immune tolerance to ANCA antigens, to the role of activated neutrophils in causing
inflammation, leading to necrotizing vasculitis and scarring. Id. at 43.
Molecular mimicry is the mechanism submitted by Petitioner to explain how vaccination
results in the loss of ANCA tolerance. She noted that “molecular mimicry and an association of
this phenomenon with antigenic stimuli from both de novo infection and from vaccination are well
established in the scientific literature.” Id. at 44. Petitioner then acknowledged a previously
brought claim that unsuccessfully “offered the theory of molecular mimicry to prove the [flu]
vaccine caused her MPA.” Id. at 45 (citing Knorr v. Sec’y of Health & Hum. Servs., No. 15-1169V,
2018 WL 6991548 (Fed. Cl. Spec. Mstr. Dec. 7, 2018)). In that case, Petitioner noted the Chief
Special Master required “some evidence that the ANCA antibodies that drive the resulting
vasculitis are produced as a result of vaccination.” Id. at 46 (quoting Knorr, 2018 WL 6991548, at
*29). The expert’s lack of familiarity with ANCA-AV was also of concern in the prior case. Id.
Petitioner argued that her case is distinguishable because she has offered a vasculitis expert, and
she did not rely on medical literature that only discussed granulomatosis with polyangiitis (GPA),
a different type of ANCA-AV than MPA, at issue in both cases.
In the present case, Petitioner presented case studies of “systemic necrotizing vasculitis,
such as MPA, occurring after [flu] vaccination.” Id. at 57. She conceded that the causation
mechanism is not identified but noted one theory of “upregulation of the immune response after
the vaccine [leading] to an exuberant host response inappropriately resulting in autoantibody
production and disease propagation.” Id. This immune system response necessarily involves
complement activation that “could result in neutrophil priming” and initiate MPA pathogenesis.
Id.
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Petitioner stated that case studies do not provide conclusive evidence that the flu vaccine
can cause MPA; however, “together with the serologic data [presented], it supports the
hypothesis.” Id. at 60. Through her medical literature filings and expert opinions, Petitioner argued
that she presented “evidence of antibody responses specifically localized to the affected joint” to
support a theory of molecular mimicry, “and also demonstrate[d] that autoimmune responses can
be localized to the target tissues, and not necessarily found in serum in all instances.” Id.
With respect to Althen prongs two and three, Petitioner argued that “the medical records
show a clinical course consistent with the mechanism and time frame within which MPA can occur
following vaccination. Id. at 61. Drs. Lally and Serota opined that her cold-like symptoms that
were diagnosed as a URI, “were more likely the presenting symptoms of her MPA.” Id. They noted
that her symptoms were “outside the normal expected timing of a routine viral [URI],” but the
onset was within days of her vaccination. Id. Dr. Serota also highlighted her lack of documented
cold symptoms on the day of vaccination. Id. Lastly, Dr. Serota pointed to Petitioner’s “elevated
ANCA IgG, perinuclear pattern with increased myeloperoxidase.” Id. Petitioner did not articulate
an appropriate timeframe for a medically acceptable temporal relationship between her vaccination
and the onset of her MPA. However, she noted Dr. Lally’s opinion that the “interval between
[vaccination and onset of a week] is consistent with the timeline that one would expect from a
vaccine induced autoimmune response.” Id. (citing Pet’r’s Ex. 82 at 12).
Finally, Petitioner addressed Respondent’s contention that there were potential alternative
causes for her MPA. Id. at 63–64. She reiterated Dr. Serota’s position that a URI is inconsistent
with her clinical presentation in onset and duration. Id. at 63. Dr. Lally dismissed Respondent’s
contention that Petitioner’s use of phentermine was the cause of her MPA. Id. at 64. While he
acknowledged that phentermine has been associated with pulmonary arterial hypertension (PAH),
Dr. Lally argued that Petitioner’s was secondary to intrinsic lung disease related to her MPA, not
primary PAH as one would see in phentermine toxicity. Id.
b. Respondent’s Response
Respondent’s response to Petitioner’s motion included procedural and medical histories, a
section outlining the applicable legal framework, and an argument that Petitioner has not met her
burden to “establish[] a causal link between the alleged injury and a covered vaccine.” Resp’t’s
Resp. at 27. In Respondent’s discussion of Petitioner’s Althen prong one evidence, he noted that
“the Federal Circuit has made clear that ‘simply identifying a plausible theory of causation is
insufficient for a petitioner to meet her burden of proof.” Id. at 16 (citing LaLonde v. Sec’y of
Health & Hum. Servs., 746 F.3d 1334, 1339 (Fed. Cir. 2014)). Both parties agree that Petitioner
“was properly diagnosed with MPA.” Id. at 17. Respondent asserted that “[t]he exact mechanism
of disease remains unclear, but genetics and infection may be associated with MPA disease
development.” Id. (internal quotations omitted). According to Respondent, Dr. Serota’s contention
that MPA is too rare an event to identify “every potential molecular target,” is insufficient because
shared homology is very common and autoreactive T cells are present in many healthy individuals.
Id. at 18. Therefore, those two events are not indicative of disease. Id. Respondent argued that
there is insufficient epidemiological evidence to “assess an association between [flu] vaccine and
onset of vasculitis.” Id. at 19 (citing IOM, 2012).
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Likewise, a study of “the mechanistic evidence between the flu vaccine and MPA [was]
inadequate to accept or reject a causal relationship.” Id. Dr. He argued that a study of ANCA-AAV
patients did not reveal a “statistically increased risk of autoantibody production and disease activity
following flu vaccination.” Id. at 19. Isolated case studies “do not provide evidence beyond
temporality.” Id. Respondent also reiterated the significance of studies showing the decreased
production of reactive oxygen species, dendritic cells, and relevant cytokines. Dr. He argued that
these studies “argue against the activation of innate immunity theory” and ultimately, Petitioner’s
theory of causation. Id. at 21. Respondent asserted that generally, “newer research [] casts doubt
on the wide applicability of [molecular mimicry], given that viral and human proteomes have
massive peptide sharing.” Id. He continued that Petitioner has not provided the additional medical
and scientific evidence to support her theory that “ANCA antibodies that drive the resulting
vasculitis are produced as a result of vaccination.” Id. at 22 (internal citations omitted). Petitioner’s
expert is a rheumatologist that accurately diagnosed Petitioner; her MPA is undisputed.
Respondent argued that “Dr. Lally has simply not shown the scientific heft required as a causation
expert.” Id.
Respondent argued that Petitioner has not met her burden under the second prong of Althen
because her treaters maintain that Petitioner suffered from a URI, “a well-known trigger for
vasculitic disease.” Id. at 24. Respondent further argued that Petitioner has not met her burden
under Althen prong three. Id. Specifically, Respondent asserts Petitioner is “perhaps intentionally
vague, as her assertion that her earliest URI symptoms arising right after vaccination were actually
MPA is inconsistent with the multi-step innate and adaptive immune responses she has proposed.”
Id. at 25–26. Because Petitioner has not established a prima facie case of causation, Respondent
bears no burden of proof in this case. Id. at 26.
IV. Applicable Law
I am resolving Petitioner’s claim on the filed record. The Vaccine Act and Rules not only
contemplate but encourage special masters to decide petitions on the papers where, in the exercise
of their discretion, they conclude that doing so will properly and fairly resolve the case. See 42
U.S.C. § 12(d)(2)(D); Vaccine Rule 8(d). The decision to rule on the record in lieu of a hearing
has been affirmed on appeal. Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d 1362, 1366
(Fed. Cir. 2020); see also Hooker v. Sec’y of Health & Hum. Servs., No. 02-472V, 2016 WL
3456435, at *21 n.19 (Fed. Cl. Spec. Mstr. May 19, 2016) (citing numerous cases where special
masters decided cases on the papers in lieu of hearing and those decisions were upheld). I am
simply not required to hold a hearing in every matter, no matter the preferences of the parties.
Hovey v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 397, 402–03 (1997) (determining that the
special master acted within his discretion in denying an evidentiary hearing); Burns v. Sec’y of
Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993); Murphy v. Sec’y of Health & Hum. Servs.,
No. 90-882V, 1991 WL 71500, at *2 (Fed. Cl. Spec. Mstr. Apr. 19, 1991).
To receive compensation under the Vaccine Act, a petitioner must demonstrate either that:
(1) the petitioner suffered a “Table injury” by receiving a covered vaccine and subsequently
developing a listed injury within the time frame prescribed by the Vaccine Injury Table set forth
at 42 U.S.C. § 300aa-14, as amended by 42 C.F.R. § 100.3; or (2) the petitioner suffered an “off-
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Table injury,” one not listed on the Table, as a result of his receiving a covered vaccine. See 42
U.S.C. §§ 300aa-11(c)(1)(C); Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321
(Fed. Cir. 2010); Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1319–20 (Fed. Cir.
2006). Petitioner does not allege a Table injury in this case; thus, she must prove that her injury
was caused-in-fact by a Table vaccine.
In the seminal case of Althen, the Federal Circuit set forth a three-pronged test used to
determine whether a petitioner has established a causal link between a vaccine and the claimed
injury. See 418 F.3d at 1278–79. The Althen test requires petitioners to set forth: “(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.” Id. at 1278.
Each of the Althen prongs requires a different 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 v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355–56 (Fed.
Cir. 2006) (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 & Hum. 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.
Petitioner may satisfy the first Althen prong without resorting to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
theory. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009) (citing
Capizzano, 440 F.3d at 1325–26). This may be accomplished in a number of ways. “Reliability
and plausibility of . . . pathogenesis can be bolstered by providing evidence that at least a sufficient
minority in the medical community has accepted the theory, so as to render it credible.” See Pafford
v. Sec’y of Health & Hum. Servs., No. 01-0165V, 2004 WL 1717359, at *4 (Fed. Cl. Spec. Mstr.
July 16, 2004). Special Masters, despite their expertise, are not empowered by statute to
conclusively resolve what are complex 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.” Andreu,
569 F.3d at 1380.
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. 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 & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation
for what is a medically acceptable timeframe must also coincide with the theory of how the relevant
vaccine can cause an injury (Althen prong one’s requirement). de Bazan, 539 F.3d at 1352; Shapiro
v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons. denied after remand on
other grounds, 105 Fed. Cl. 353 (2012), aff’d without op., 503 F. App’x 952 (Fed. Cir. 2013);
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Koehn v. Sec’y of Health & Hum. Servs., No. 11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr.
May 30, 2013), mot. for review denied (Fed. Cl. Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir.
2014). The special master cannot infer causation from temporal proximity alone. See Thibaudeau
v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 400, 403–04 (1991); see also Grant v. Sec’y of Health
& Hum. Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992).
A petitioner who satisfies all three prongs of the Althen test has established a prima facie
showing of causation. Hammitt v. Sec’y of Health & Hum. Servs., 98 Fed. Cl. 719, 726 (2011).
When and if a petitioner establishes a prima facie case, the burden then shifts to the government
to prove that an alternative cause, unrelated to the administration of the vaccine, was the “sole
substantial factor” in causing the alleged injury. de Bazan, 539 F.3d at 1354; see also Hammitt, 98
Fed. Cl. at 726 (explaining that the respondent’s burden is to show that the “factor unrelated” was
the “sole substantial factor” in causing the injury). Additionally, a factor unrelated “may not
include ‘any idiopathic, unexplained, unknown, hypothetical, or undocumentable cause, factor,
injury, illness or condition.’” 42 U.S.C. § 300aa-13(a)(2).
In Program cases, contemporaneous medical records and the opinions of treating
physicians are favored. Capizzano, 440 F.3d at 1326 (citing Althen, 418 F.3d at 1280). This is
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. In
addition, “[m]edical records, in general, warrant consideration as trustworthy evidence. The
records contain information supplied to or by health professionals to facilitate diagnosis and
treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an
extra premium. These records are also generally contemporaneous to the medical events.”
Cucuras v. Sec’y of Health and Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). While a special
master must consider these opinions and records, they are not “binding on the special master or
court.” § 13(b)(1). Rather, when “evaluating the weight to be afforded to any such . . . [evidence],
the special master . . . shall consider the entire record . . . .” Id.
In determining whether a petitioner is entitled to compensation, a special master must
consider the entire record and is not bound by any particular piece of evidence. § 13(b)(1) (stating
that a special master is not bound by any “diagnosis, conclusion, judgment, test result, report, or
summary” contained in the record). Furthermore, a petitioner is not required to present medical
literature or epidemiological evidence to establish entitlement. The special master essentially must
weigh and evaluate opposing evidence in deciding whether a petitioner has met their burden of
proof. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1380 (Fed. Cir. 2009); see
also Grant v. Sec’y of Health & Hum. Servs., 956 F.2d 1144, 1149 (Fed. Cir. 1992).
V. Analysis
a. General Causation: Althen Prong One
There is no dispute in this case that Petitioner suffers from ANCA-AAV, specifically MPA.
MPA is a type of small vessel vasculitis with most patients also presenting with necrotizing
glomerulonephritis and/or diffuse alveolar hemorrhage. There is also no dispute that the
pathogenesis of MPA is unclear. It is an autoimmune disease, characterized by the presence of
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antineutrophil cytoplasmic autoantibodies. The experts agree that the innate immune system is
involved but differ as to context. The disconnect concerns what, if any, relationship exists among
vaccination, innate system reaction, and ANCA-AAV.
Petitioner’s expert Dr. Lally and Respondent’s expert Dr. Oddis both agree that innate
immune system activation plays a role in MPA pathogenesis. Dr. Lally argued that that this
activation manifests as an alternate complement system that results in increased ANCA antigen
production and ultimately, vasculitis. Dr. Oddis did not rebut Dr. Lally’s characterization of the
alternative complement system as a catalyst for MPA. He noted that this is not a causation theory
and focuses on etiology without pathology. Respondent’s second expert, Dr. He, argued that there
is no evidence of increased innate system activity in cases of MPA, particularly given the decreased
reactive oxygen species production and dendritic cells in patients. Alternatively, Petitioner’s
second expert, Dr. Serota, argued that when innate system measurables in AAV patients are used
and brought into tissue, a natural result is decreased levels, but this is evidence of active
involvement in MPA pathogenesis. Either of these theories could occur in a patient, and there is
no way of knowing in any given case if, for example, dendritic cells are depleted due to decreased
production or extensive use. Even if the former is true, that does not disqualify Dr. Lally’s point
that the alternative complement system plays a role in the development of vasculitis. Experts on
both sides have agreed that the innate system is involved in this process, and Dr. Lally has
explained how the alternative complement system produces a feedback loop, resulting in
progressive vasculitis. Petitioner has presented preponderant evidence that the innate system is
involved in the development of MPA, but the inquiry does not end there.
Dr. Lally is an esteemed vasculitis expert who clearly explained Petitioner’s diagnosis and
presentation. She is not, however, an immunologist. Dr. Lally relied heavily on a single case study
to establish that vasculitis can follow vaccination but conceded that the specific mechanism is
unclear. Conversely, Dr. Oddis argued that Dr. Lally presented no direct evidence that links a post-
vaccination, innate system response to vasculitis. He noted the lack of data and literature to support
Petitioner’s position and did not address Dr. Lally’s argument any further. Success in this Program
does not depend upon epidemiological studies or medical literature that proves a medical or
scientific theory. However, Petitioner’s mechanism must consist of a sound and reliable theory,
not simply plausible conclusions.
In her brief, Petitioner included a comprehensive discussion on the significance of
mechanism plausibility to meet the preponderant standard. Petitioner reiterated the Federal
Circuit’s admonition that the applicable standard of proof is not certainty or convincing evidence.
Instead, she argued that “more likely than not” is akin to the meaning of biological plausibility
within the medical and scientific communities. Petitioner is correct that biological plausibility is a
solid foundation upon which to build a theory that is sufficiently substantiated, competent, and
reliable. The Reference Manual on Scientific Evidence also assesses the value of medical evidence
based on the ability to consistently repeat study findings. Given the rarity of some of the conditions
that are routinely seen in the Program, this covariant of plausibility may not be a realistic
requirement for a successful vaccine claim. The Federal Circuit has held repeatedly that “Althen
makes clear that a claimant's theory of causation must be supported by a reputable medical or
scientific explanation.” 418 F.3d at 1278. A comprehensive evaluation of medical testimony,
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specifically medical causation theories, should be used in the Program to ensure experts
substantiate their opinions or provide reliable support for their conclusions.
Petitioner distinguished her case from a prior, unsuccessful MPA claim by noting that she
(1) obtained a vasculitis expert that could discuss MPA specifically; (2) established that MPA is
an autoimmune disease characterized by the presence of autoantibodies and a localized immune
response in support of molecular mimicry; and (3) presented a case study that discusses a patient
who developed MPA following vaccination to establish an appropriate timeframe and clinical
progression. Indeed, Petitioner’s vasculitis expert effectively explained and confirmed her
diagnosis. However, her diagnosis was never in dispute, given her medical records. Also not in
dispute is MPA’s autoimmune nature. Autoimmune conditions are some of the most common
types of injury alleged in the Program due to their direct relationship to the immune system, the
bodily system that is targeted by vaccines. Dr. He explained that the innate immune system (and
adaptive immunity) is a necessary condition to “generate vaccine-induced immune protection.”
Resp’t’s Ex. I at 6. Indeed, anytime the body is introduced to a foreign antigen, the immune system
is activated as a direct responder. While it is true that autoimmune diseases and molecular mimicry
both result from immune system dysfunction, that per se does not establish the two are connected
in every instance. Lastly, while case reports are a common type of evidence used when trying to
determine etiology in rare occurrences, isolated case reports are largely unhelpful beyond
identifying a correlation that could be the basis for further study. Petitioner may have distinguished
her case from previous unsuccessful claims, but she must still provide preponderant evidence of
flu vaccine causation for MPA.
Petitioner’s immunology expert, Dr. Serota, fleshed out this asserted causation theory. He
linked Dr. Lally’s discussion of MPA pathogenesis to vaccine immunogenicity through molecular
mimicry. Dr. Serota acknowledged the impartibility and implausibility of discovering the
homology for an event as rare as MPA. He referenced a second case study, but only the abstract
was filed for my consideration. Of note, the authors provided a disclaimer that the study only
provided support for the hypothesis that vaccines can cause vasculitis. Without additional context,
the abstract’s evidentiary value is minimal. Dr. Serota devoted a significant percentage of his report
to a discussion of molecular mimicry. However, his explanation was foundational and did not
address the specific characteristics of MPA or how the flu vaccine specifically is a potential mimic.
Dr. Serota did not clarify why he chose to use mice that developed encephalitis after hepatitis B
exposure as a way of illustration in this case that does not involve a brain injury or hepatitis.
Dr. He argued on Respondent’s behalf that recent studies focused on molecular mimicry
have illustrated the widespread prevalence of peptide homology. Indeed, if molecular mimicry was
as common statistically as one would expect given the level of homology naturally present among
living things, every person vaccinated or subject to an infection could at some point develop an
autoimmune disease. Dr. He also cited the Institute of Medicine’s statement that homology is
insufficient to prove a molecular mimicry pathology for a disease. Although the Program does
contemplate rare conditions that may not appear in widespread studies, molecular mimicry is
commonly submitted in cases as a causation theory without any specificity to the vaccine
administered or the injury alleged. Additionally, Dr. He correctly noted how studies that focus on
molecular mimicry post infection are conflated with vaccine causation, even in cases where the
immune response is much weaker from the vaccine than the wild virus. Due to the ever-growing
21

Case 1:17-vv-01607-UNJ Document 91 Filed 11/19/24 Page 22 of 23
body of literature that illustrates “the overlap between viral and human proteome,” Petitioner must
provide preponderant evidence that narrows her theory of causation to her alleged vaccine and
injury. She does not do that. Petitioner has not presented preponderant evidence of a medical theory
that causally connects the flu vaccine to the development of MPA.
b. Specific Causation: Althen Prong Two
Because Petitioner has not presented preponderant evidence of a legally probable causation
theory, I cannot determine if a logical sequence of cause and effect exists in her case. In support
of their argument for vaccine causation in this case, Drs. Lally and Serota both opined that
Petitioner’s cold-like symptoms were misdiagnosed as a URI instead of the onset of her MPA.
Petitioner’s treaters, including the primary care physician who saw her first post vaccination, a
pulmonologist, and a thoracic surgeon, all diagnosed Petitioner with an infection. Importantly, that
chronology persisted even after her MPA was properly diagnosed. Petitioner noted to treaters
during her hospitalization in January of 2015 that her cold symptoms started following her flu shot.
Despite this information, none of her treaters identified her flu vaccine as causal or reassessed her
prior URI diagnosis. While petitioners do not need to present evidence of causation from treaters,
the assertion by Petitioner’s experts in this case that her treaters were incorrect does highlight their
opinions and potentially contradicts the pathology asserted in this case. In the face of
contemporaneous medical records from multiple treaters, including general practitioners to
surgeons that consistently diagnose Petitioner with a URI, I do not find that she has presented
preponderant evidence to rebut her URI diagnosis.
Dr. Oddis also identified Petitioner’s URI as the most likely cause of Petitioner’s MPA.
However, Respondent’s burden to provide preponderant evidence of alternative causation only
arises when Petitioner presents evidence to establish a prima facie case. Petitioner’s inability to
present sufficient evidence of a causation theory means that the burden never shifts to Respondent
in this case.
c. Timing: Althen Prong Three
Petitioner did not identify an appropriate timeframe for the onset of MPA symptoms caused
by the flu vaccine. Dr. Lally’s opinion that Petitioner’s symptom onset timeline establishes a clear
relationship is a conclusion that lacks evidentiary support. The case study that Petitioner presented
does describe a timeline of approximately one week, and that could be consistent with Petitioner’s
account. Molecular mimicry is commonly expected to occur within days to weeks of exposure to
the mimic. In this case, Petitioner’s symptoms, whatever the cause, occur within proximity to her
vaccination. I cannot conclude that Petitioner’s alleged timeframe is consistent without more
context. However, I can find that Petitioner has presented preponderant evidence that her
symptoms developed within days to one week of vaccination.
VI. Conclusion
Petitioner has experienced an immeasurable loss, and I have reviewed the entire record in
an effort to understand what happened to her. In this case, Petitioner has been unable to present
preponderant evidence of a causation theory that links the flu vaccine to MPA or to apply said
22

Case 1:17-vv-01607-UNJ Document 91 Filed 11/19/24 Page 23 of 23
theory to her medical history and establish causation in her case. Petitioner’s URI diagnosis is also
compelling evidence of a stronger immunogenic response that may be responsible for her immune
system disorder. Consequently, Petitioner has not met her burden to establish that but-for her flu
vaccination, she would not have developed MPA. Therefore, her claim must be dismissed.
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
23

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_17-vv-01607-cl-extra-11126631
Date issued/filed: 2025-08-25
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10660044
--------------------------------------------------------------------------------
    In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                         Filed: June 11, 2025

* * * * * * * * * * * * *  *
DONNA MARTIN,              *                              No. 17-1607V
                           *
         Petitioner,       *                              Special Master Young
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *

Anne Carrion Toale, Maglio Christopher & Toale, P.A., Sarasota, FL for Petitioner;
Neil Bhargava, United States Department of Justice, Washington, DC, for Respondent.

                  DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

       On October 26, 2017, Donna Martin (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program. 42 U.S.C. § 300aa-10 to -34
(2018)2 (the “Vaccine Act” or “Program”). Petitioner alleged that she received the influenza (“flu”)
vaccine on November 17, 2014, and as a result, “continues to suffer from fatigue, a neurogenic
cough and other sequelae of Microscopic Polyangiitis [(‘MPA’)].” Pet. at 5, ECF No. 1. On
October 25, 2024, I issued my decision denying entitlement and dismissing the petition. ECF No.
90.

       On August 4, 2023, Petitioner’s former counsel filed a motion for interim attorneys’ fees
and costs requesting $280,099.12 in interim fees and costs. ECF No. 82. On January 19, 2024,
2021, Petitioner’s motion for interim fees was granted in full. ECF No. 85.

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2
    National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
        On December 9, 2024, Petitioner’s current counsel filed a final motion for attorneys’ fees
and costs. (“Pet’r’s Mot. for AFC”) (ECF No. 93). Petitioner requests total attorneys’ fees and
costs in the amount of $3,570.73, representing $3,552.10 in attorneys’ fees and $18.63 in
attorneys’ costs. Pet’r’s Mot. for AFC at 1. Pursuant to General Order No. 9, Petitioner indicates
that she has not personally incurred any costs in pursuit of her petition. Id. at 2. Respondent
responded to the motion on January 2, 2025, stating that Respondent “is satisfied that the statutory
requirements for an award of attorneys’ fees and costs are met in this case” and asking the Court
to “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s
Resp. at 2, 4 (ECF No. 95). Petitioner filed a reply on January 3, 2025. ECF No. 96.

   I.      Reasonable Attorneys’ Fees and Costs

        The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” §
15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is
automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not
prevail on entitlement to receive a fee award as long as the petition was brought in “good faith”
and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, although the petition
was eventually dismissed, I am satisfied that good faith and reasonable basis have been met in the
instant case. Respondent has also indicated he is satisfied that good faith and reasonable basis have
been met. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and
costs.

          The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343,
1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the
court may make an upward or downward departure from the initial calculation of the fee award
based on specific findings. Id. at 1348.

        It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.



                                                     2
          A.      Hourly Rate

        The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules can be accessed online.3

        Petitioner requests the following rates of compensation for her attorneys at mctlaw: for Ms.
Anne Toale, $570.00 per hour for work performed in 2024; for Ms. Alison Haskins, $492.00 for
work performed in 2023; for Mr. Jamie Robinson, $310.00 for work performed in 2024; and for
Ms. Jessica Olins, $355.00 for work performed in 2024. Petitioner also seeks compensation for
paralegals, ranging from $180.00-$190.00 per hour for work performed in 2023-2024. Id. These
rates are consistent with what counsel and paralegals have previously been awarded for their
Vaccine Program work and the I find them to be reasonable herein.

          B.      Reasonable Number of Hours

         Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).

        Upon review, I find the overall hours billed to be reasonable. Counsel has provided
sufficiently detailed descriptions for the tasks performed, and upon review, I do not find any of the
billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees in the
amount of $3,552.10.

          C.      Costs

         Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $18.63 in attorneys’ costs. This amount is comprised of electronic signature services and
postage. Ex. 104. These costs have been supported with the necessary documentation and are
reasonable. Accordingly, Petitioner is entitled to final attorneys’ costs in the amount of $18.63.

    II.        Conclusion

       In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2018), I have reviewed the billing
records and costs in this case and finds that Petitioner’s request for fees and costs is reasonable.



3
  The OSM Fee Schedules are available at https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-
rate-fee-schedules. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.

                                                      3
Based on the above analysis, I find that it is reasonable to compensate Petitioner and her counsel
as follows:

    Attorneys’ Fees Requested                                             $3,552.10
    (Reduction to Fees)                                                       -
    Total Attorneys’ Fees Awarded                                         $3,552.10

    Attorneys’ Costs Requested                                              $18.63
    (Reduction to Costs)                                                      -
    Total Attorneys’ Costs Awarded                                          $18.63

    Total Attorneys’ Fees and Costs                                       $3,570.73

        Accordingly, I award a lump sum in the amount of $3,570.73, representing
reimbursement for Petitioner’s attorneys’ fees and costs, to be paid through an ACH deposit
to Petitioner’s counsel’s IOLTA account for prompt disbursement.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.4

                IT IS SO ORDERED.

                                                         s/Herbrina Sanders Young
                                                         Herbrina Sanders Young
                                                         Special Master




4
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.

                                                        4