VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00361
Package ID: USCOURTS-cofc-1_18-vv-00361
Petitioner: Michael Bull
Filed: 2018-04-20
Decided: 2021-10-25
Vaccine: influenza
Vaccination date: 2016-10-05
Condition: non-specific "vaccine-induced neuropathy" / brachial neuritis
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Michael Bull filed a petition alleging that he suffered from brachial neuritis as a result of receiving an influenza vaccine on October 5, 2016. He was born in 1959. His medical history included osteoarthritis, COPD, and a neck mass. During a hospitalization for chest pain, he received the flu vaccine in his left arm. He reported pain and numbness in his left arm starting immediately or within a day of the vaccination, which he described as a burning sensation radiating from his shoulder to his hand. He also reported dropping objects and difficulty using his arm. His primary care physician noted decreased sensation and tenderness, diagnosed him with neuropathy, and prescribed gabapentin. However, medical records did not confirm a diagnosis of brachial neuritis, and there was no evidence of muscle weakness or wasting, which are considered key features of the condition. Experts disagreed on the diagnosis and causation. Petitioner's expert opined that he had brachial neuritis caused by the vaccine, citing case reports. Respondent's expert opined that the symptoms were inconsistent with brachial neuritis, particularly the lack of weakness and the immediate onset, which is not typical for an immune-mediated condition like brachial neuritis. The Chief Special Master denied the claim, finding that Mr. Bull had not established by a preponderance of the evidence that he suffered from brachial neuritis or that the vaccine caused it, particularly due to the immediate onset of symptoms and the lack of supporting medical evidence. The Court of Federal Claims reviewed the decision and denied Mr. Bull's motion for review, sustaining the Chief Special Master's denial of the claim.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00361-1
Date issued/filed: 2021-07-01
Pages: 22
Docket text: PUBLIC DECISION (Originally filed: 04/20/2021) regarding 58 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (omg) Service on parties made.
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Case 1:18-vv-00361-MMS Document 63 Filed 07/01/21 Page 1 of 22
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-361V
(not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
MICHAEL BULL, *
*
* Chief Special Master Corcoran
Petitioner, *
*
v. * Filed: April 20, 2021
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner.
Mollie D. Gorney, U. S. Dep’t of Justice, Washington, DC, for Respondent.
ENTITLEMENT DECISION1
On March 8, 2018, Michael Bull filed a petition for compensation under the National
Vaccine Injury Compensation Program (the “Vaccine Program”2) alleging that he suffered from a
non-specific “vaccine-induced neuropathy” as a result of receiving an influenza (“flu”) vaccine on
October 5, 2016, or alternatively that the above-stated vaccination significantly aggravated a pre-
1 Although this Decision is not formally designated for publication, it will nevertheless 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 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the published Decision’s inclusion of certain kinds of confidential
information. Specifically, under Vaccine Rule 18(b), each party has fourteen (14) days within which to request
redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance
and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the entire Decision will be
available to the public in its current form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

Case 1:18-vv-00361-MMS Document 63 Filed 07/01/21 Page 2 of 22
existing left-arm neuropathy. See Petition, filed March 8, 2018 (ECF No. 1) (“Pet.”).3 Despite a
fact hearing and my urgings, the parties were unable to settle the matter, and therefore agreed to
resolve the claim via ruling on the record. See Respondent’s Motion to Dismiss, dated November
17, 2020 (ECF No. 49) (“Mot.”); Petitioner’s Response, filed Dec. 15, 2020 (ECF No. 54)
(“Opp.”); Respondent’s Reply, dated Jan. 14, 2021 (ECF No. 56) (Resp.’s Reply”); Petitioner’s
Sur-Reply, dated Jan. 27, 2021 (ECF No. 57) (Pet.’s Sur-Reply”). This matter is now fully briefed
and ripe for a ruling on the record.
As discussed below, Petitioner’s claim is inadequately supported by preponderant
evidence. Petitioner does seem to have suffered some kind of post-vaccination injury, which his
expert characterizes as brachial neuritis.4 However, even if I accept that proposed diagnosis for
purposes of argument (since Respondent cites reasons to question its applicability), he has not
demonstrated that it is more likely than not that this injury was due to the flu vaccine, or that onset
occurred in a medically acceptable timeframe. And Petitioner’s claim overall is insufficiently
supported by medical record evidence that would corroborate his allegations.
I. Medical History
Petitioner was born on June 26, 1959. See Ex. 1 at 1. Prior to the vaccination at issue, his
medical history was significant for osteoarthritis, chronic obstructive pulmonary disease, and a
mass on his neck, which was surgically removed. Ex. 2 at 1.
From October 4-6, 2016, Mr. Bull was admitted to Providence Medical Center in Kansas
City, Kansas, because of complaints of chest pain. See Ex. 2. During his hospital stay, Petitioner
received the flu vaccine in his left arm. Ex. 2 at 9. The medical record and notes from this stay do
not indicate any immediate adverse reaction or other change in circumstances. See Ex. 2.
On October 12, 2016, Petitioner reported to Terry Simmons, M.D., at Providence Medical
Group to follow-up after his hospital stay. Ex. 1 at 3-4. Petitioner denied any further chest pain.
Id. Petitioner was also treated for a rash on the top of his left hand that was itchy and getting bigger.
Id. Dr. Simmons diagnosed him with ringworm and prescribed nystatin-triamcinolone. Id.
Petitioner did not complain of any upper extremity pain, numbness, or tingling. Id.
3 Although the original petition included a significant aggravation claim, there is no evidence in the record to support
this allegation, and Petitioner did not argue it in his subsequent briefs, and thus appears to have abandoned it as grounds
for an entitlement award. As such, I will not address it any further.
4 The alleged injury is variously described as “Parsonage-Turner syndrome” or brachial neuritis, but it is recognized
in medical science that these descriptive terms are interchangeable. See Greene v. Sec. of Health & Hum. Servs., No.
11-631V, 2019 WL 4072110 at *2 n.3 (Fed. Cl. Spec. Mstr. Aug. 2, 2019), mot. for review den’d, 146 Fed. Cl. 655
(2020), aff’d, 841 Fed. App’x. 195 (Fed. Cir. 2020).
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Mr. Bull presented to Dr. Simmons again on December 6, 2016, approximately two months
post-vaccination. Ex. 1 at 1-2. At this visit, Petitioner now complained of “numbness and tingling
after he got his flu shot on 10/4/16.” Id. at 1. He specifically reported that he was dropping things
because of the numbness, and complained that the pain radiated into his fingers and shoulder. Id.
Dr. Simmons noted decreased sensation in the left arm to light touch, and tenderness in the area
where Mr. Bull indicated he had received the vaccination, but that his grip strength was intact. Id.
at 1-2. Dr. Simmons’s assessment was neuropathy, and he was prescribed gabapentin twice a day
for thirty days. Id. at 1.
On December 30, 2016, Mr. Bull reported to Shawn Lillig, M.D., at Heartland Urgent Care
complaining of right flank pain that had started nine days before when he fell from a ladder at
work. Ex. 4 at 2; Tr. at 60-61. Petitioner noted that the pain radiated to his gluteal area, and he had
photographs of the progression of bruising that he experienced. Id. He also reported that he felt the
worst pain in his life when he had to cough the day before. Id. A physical exam of his upper
extremities reflected normal strength and tone, however, and it does not appear from this record
that Mr. Bull repeated the complaints about vaccine-associated pain or other issues that he had
reported earlier that same month. Id. at 3. Dr. Lillig’s assessment was bronchitis and a fractured
rib, and Petitioner was prescribed hydrocodone-acetaminophen. Id.
Mr. Bull has not filed any additional records for any subsequent time periods that would
establish his receipt of additional medical treatment. However, Petitioner continued to fill
prescriptions for gabapentin over the telephone, the last occurring April 9, 2017, when the refills
ran out. Ex. 3 at 1. Petitioner has represented in his affidavit that he still suffers from occasional
numbness, but started to feel better after renewing his prior prescription, which he filled on April
9, 2017. Ex. 6 at 2; Tr. at 67.
II. Fact Hearing
A fact hearing was held in this matter on July 11, 2019. See Docket Entry, dated July 11,
2019. The intent of the hearing was to provide Petitioner with the opportunity to be heard on the
issue of onset.5 See Status Report, filed March 22, 2019 (ECF No. 22).
A. Lisa Langland
Ms. Langland, Petitioner’s ex-wife, provided testimony at the onset hearing. Tr. at 4-35.
She began by describing her relations with Mr. Bull starting in October 2016. Id. at 4-5. Ms.
Langland explained that she and Mr. Bull were married at the time, but she was living in her own
personal residence, which was located less than one mile from Mr. Bull’s residence. Id. at 5. Ms.
5 Prior to the hearing, the witness provided statements indicating what their testimony would cover. See, Ex. 10; Ex.
11.
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Langland described Mr. Bull as a hard-working middle-class person who typically did not go to
the doctor or take medication. Id. at 5-6.
Ms. Langland then described an October 4, 2016 incident where Mr. Bull experienced chest
pains. Id. at 6. Mr. Bull had called Ms. Langland at work to tell her that he was very short of breath,
was having pains in his chest, was lightheaded, and concerned he was having a heart attack. Id.
Because she knew Mr. Bull would not want to go to a doctor or an emergency room, she suggested
he go to a local fire station where he would be able to receive some basic treatment at no cost. Id.
at 6-7. There, it was immediately recommended that he go to the emergency room. Tr. at 7. After
Ms. Langland got off of work, she personally transported Mr. Bull to the hospital for treatment,
where he was admitted and stayed overnight. Id. The following morning, Ms. Langland testified
that she visited Mr. Bull in the hospital to check on him, and his main complaint was about his
arm. Id. at 8. She explained that Mr. Bull had received the flu shot at some point during his stay.
Id. at 9. She remembered Mr. Bull describing it as the most painful shot he had ever had and that
he really could not raise his arm that far. Id.
From October 6, 2016 forward, Ms. Langland explained, Mr. Bull complained about his
arm still bothering him every day. Tr. at 11. She also described incidents in which Mr. Bull would
apparently lose control of his hand and he would not even realize that he had dropped something
until somebody pointed it out to him. Id. at 12. She explained that she moved back in with Mr.
Bull on November 1, 2016, and that she observed that Mr. Bull’s arm was a constant issue for him
on a daily basis. Id. at 14. From December 2016 to February 2017, Ms. Langland stated that Mr.
Bull was grabbing and rubbing his arm regularly. Id. at 17. By February 2017, however, Mr. Bull
seemed to have more range of motion back in his arm and that he really seemed to improve after
he began taking medication in January-February of 2017. Id. at 29, 33.
B. Michael Bull
Mr. Bull submitted an affidavit and provided testimony at the entitlement hearing.
Petitioner’s affidavit, filed as Ex. 6 on March 23, 2018 (ECF No. 6-6) (“Affidavit”); Tr. at 35-72.
Mr. Bull began his testimony by describing his hospital stay for chest pains in October of
2016. Affidavit at 1; Tr. at 36. He explained that at some point during the night, he was offered a
flu shot, which he accepted in his left arm. Tr. at 37. He described it as very painful and he said he
knew immediately something was not right. Id. He said that he informed the nurse of the pain in
the arm he received the flu shot in and she responded by telling him that she too had a flu shot that
day and her arm was also sore. Id. at 38. He believed the pain would go away on its own. Id. He
went on to describe his pain the following day (October 6, 2016). Id. at 39. Mr. Bull explained that
he did construction work on houses, and the day following his flu shot he could barely use his left
arm at all, leading him to attempt to work one-handed. Id. He also testified that the pain increased
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on the second day to a burning sensation that ran from his shoulder down to his hand. Affidavit at
1.
Mr. Bull described a subsequent doctor’s appointment on December 6, 2016 that he had
requested for his arm pain. Tr. at 41-42. He said the doctor thought a nerve may have been impacted
during the October vaccine administration, and he was prescribed Gabapentin which he began
taking immediately. Id. at 42; Affidavit at 2. The Gabapentin provided some relief, although not
immediately. Tr. at 43. Around Christmas 2016, Mr. Bull testified, he still had trouble with his
arm, and he remembered dropping ornaments on the floor without even realizing it. Id. He also
recalled regularly dropping cigarettes out of his hand without noticing. Id. And he described an
incident at work in which he fell off a ladder and suffered serious injuries for which he required
medical attention. Affidavit at 2.
At the time of the hearing, Mr. Bull described the state of his arm as better, but added that
he still gets tingling in his left fingers and he knows that he needs to put down whatever he is
holding in his hand. Tr. at 45. He also testified that when he had run out of Gabapentin he had
refilled the prescription, the last time being in April 2017. Id. But, because he had no insurance
and the medication was expensive, he ended up relying on Ibuprofen more than anything. Id. He
added that he does not regularly seek medical care because of the financial strain it puts on him.
Id. at 46.
III. Expert Reports
A. Paul F. Nassab, M.D.
Dr. Nassab’s report was the only report filed on Petitioner’s behalf. Report, dated August
12, 2020, filed as Ex. 12 (ECF No. 45-1) (“Nassab Rep.”). Dr. Nassab maintains that Petitioner
suffers from Parsonage-Turner syndrome/brachial neuritis as a result of the October 2016
vaccination. Nassab Rep. at 2.
Dr. Nassab obtained his medical degree from Boston University School of Medicine. See
Curriculum Vitae, filed as Ex. 15, dated August 13, 2020 (ECF No. 47-1). He completed a general
surgery internship at Tripler Army Medical Center in Honolulu, Hawaii, and his residency at
Medical College of Virginia in Richmond. Ex. 15 at 1. Dr. Nassab is licensed to practice medicine
in Ohio, Virginia, and Missouri. Id. at 2. He has also published several journal articles and book
chapters. Id. Currently, he works as an orthopedic surgery specialist at Orthopedic Health of
Kansas City, P.C. Nassab Rep. at 1.
Dr. Nassab’s two-page opinion is based solely on review of Mr. Bull’s testimony and
records extending back to 2011. Nassab Rep. at 1. Based on this review, Dr Nassab opines, “to a
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reasonable degree of medical probability[,]” that Mr. Bull suffered from Parsonage-Turner
syndrome. Id. at 2. Dr. Nassab describes Parsonage-Turner syndrome as quite painful. Id. Although
the etiology is multifactorial, it has been attributed in the past to injections. Id. Dr. Nassab cites
one case report in which brachial neuritis was observed three days after receipt of the flu vaccine.
Id. (citing M. Shaikh et al., Acute Brachial Neuritis Following Influenza Vaccination, BMJ Case
Rep. (2012), filed on August 12, 2020 as Ex. 14 (ECF No. 46-2) (“Shaikh”)). According to Dr.
Nassab, Petitioner’s onset and timing of symptoms fits the description of post-vaccinal brachial
neuritis, although he provides no elaboration as to why this is so. Id. Thus, Dr. Nassab concludes
that vaccination was the likely prevailing factor in Petitioner’s shoulder injury and impairment. Id.
B. Raymond S. Price, M.D.
Dr. Price, a neurologist and psychiatrist, prepared one five-page report on behalf of
Respondent. Report, dated November 17, 2020, filed as Exhibit A (ECF No. 51) (“Price Rep.”).
Dr. Price reviewed the medical records filed in this case, the affidavits of the petitioner and his
fact witnesses, as well as Dr. Nassab’s expert report. Price Rep. at 1.
Dr. Price obtained his medical degree from the University of Pennsylvania, Perelman
School of Medicine. See Curriculum Vitae, dated November 17, 2020, filed as Ex. B (ECF No.
51-6) (“Price CV”). He performed his residency in neurology as well as a fellowship in clinical
neurophysiology at the Hospital of the University of Pennsylvania, Philadelphia. Id. at 1. Dr. Price
is board certified in Psychiatry and Neurology, Neuromuscular Medicine, and Electrodiagnostic
Medicine. Id. Currently, Dr. Price is co-director of the Neurohospitalist Division of the Department
of Neurology at the University of Pennsylvania Health System. Id. He is also the attending
physician of the outpatient neurology resident clinic and lecturer for neurology residents. Id. at 3.
Dr. Price began the discussion section of his expert report with a review of brachial
neuritis/Parsonage-Turner syndrome. Price Rep. at 2. According to Dr. Price, brachial neuritis has
a unifying clinical triad: an antecedent trigger; severe pain; and severe muscle weakness and
wasting with the upper extremity, shoulder, and ipsilateral chest or bulbar muscles. Id. The severe
unilateral upper extremity pain may last from a few hours to four weeks in duration. Id. Acute pain
is followed by development of denervation, weakness, and atrophy of involved muscles. Id.
Immunization, among other things, is a reported trigger. Id. Onset of symptoms following
vaccination is typically 3-21 days. Id. Although the etiology of brachial neuritis is unclear, it is
thought to be an immune-mediated inflammatory reaction. Id. at 1-2. As such, nerve conduction
studies and needle EMG are critical to confirm the diagnosis and rule out other potential causes.
Id. at 2.
Dr. Price then analyzed Mr. Bull’s presentation of symptoms following vaccination. Price
Rep. at 2. Dr. Price contends that there are several aspects of Mr. Bull’s presentation that are not
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consistent with a diagnosis of brachial neuritis. Id. First, there is no clinical evidence that Mr. Bull
displayed the cardinal feature of muscle weakness and wasting. Id. When Petitioner was examined
by Dr. Simmons on December 6, 2016, Petitioner’s left grip strength was intact, and there was no
comment on loss of left arm muscle bulk. Id. (citing Ex. 1 at 1-2). Similarly, Petitioner’s upper
extremity strength was normal when he was evaluated by Dr. Lillig on December 30, 2016. Id.
(citing Ex. 4).
Second, Petitioner’s left arm numbness without accompanying weakness is inconsistent
with a diagnosis of brachial neuritis. Price Rep. at 3. According to Dr. Price, dropping objects out
of the hand can be secondary to either hand and finger weakness or hand and finger numbness. Id.
But considering the findings in the medical records that showed normal strength examinations by
Drs. Simmons and Lillig, the most reasonable explanation would merely be hand and finger
numbness rather than weakness. Id. Further, the record of Dr. Simmons’s exam indicated a
decreased left arm light touch sensation—also suggesting numbness. Id. While Dr. Price admitted
that numbness can in rare cases be seen in brachial neuritis, numbness without weakness is
inconsistent with the diagnosis. Id.
Third, Dr. Price distinguished Petitioner’s reported inability to lift his arm due to
neuromuscular weakness from weakness secondary to pain. Price Rep. at 3. Dr. Price opined that
the most reasonable explanation for Mr. Bull’s inability to lift his arm would be pain. Id. Dr. Price
based this conclusion on the medical records indicating that Petitioner’s upper extremity strength
examination was normal. Id. (referring to Ex. 4). However, because Petitioner never obtained a
needle electromyography (EMG), it was not possible to confirm the diagnoses of brachial neuritis
and rule out other potential explanations. Id.
Dr. Price also opined that the time course of Mr. Bull’s reported immediate presentation of
symptoms was inconsistent with vaccination-caused brachial neuritis. Price Rep. at 4. According
to Dr. Price, brachial neuritis typically begins days or a few weeks after vaccination, not
immediately. Id.; P. Tsairis et al., Natural History of Brachial Plexus Neuropathy; Report on 99
Patients, 27 Archives of Neurology 109-172 (1972), filed as Ex. A Tab 3 on Nov. 17, 2020 (ECF
No. 51-4) (“Tsairis”). This is because an immune-mediated process would require time for
activation of the immune system. Id. Indeed, even in the Shaikh article referenced by Petitioner’s
expert, the case report subject’s symptoms began no sooner than three days after vaccination, not
immediately. Id. (citing Ex. 14). An immediate presentation of symptoms, according to Dr. Price,
is more suggestive of direct trauma to a nerve or ischemia rather than injury caused by the vaccine
itself. Id.
Finally, Dr. Price noted a lack of medical record proof confirming aspects of Petitioner’s
allegations. For example, there are no medical records filed in this case demonstrating that Mr.
Bull has required further evaluation and management of his symptoms since April 2017. Price
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Rep. at 4. There are also no medical records demonstrating that Petitioner required medications
for neuropathic pain, like Gabapentin, beyond that same date, thus suggesting that Petitioner’s
injury had resolved by that time. Id.
IV. Procedural History
As noted above, the matter was initiated in March 2018. Respondent filed his Rule 4(c)
Report on November 11, 2018 along with a Motion to Dismiss, arguing that (1) Petitioner had not
clearly identified a diagnosis that was caused by the flu vaccination; (2) regardless of Petitioner’s
alleged injury, he had not provided a reliable medical theory of vaccine-causation; (3) there was
not a logical sequence of cause and effect between Petitioner’s alleged injury and the flu
vaccination; (4) Petitioner otherwise had failed to establish a medically-appropriate temporal
relationship between the flu vaccination and the onset of his alleged injury from which to infer
causation; and (5) Petitioner failed to satisfy the severity requirement under the Act. (ECF No. 15,
16). Petitioner filed a response to Respondent’s motion on December 14, 2018. (ECF No. 20).
A fact hearing was thereafter held in July 2019 in Kansas City, Missouri, to allow Mr. Bull
the opportunity to flesh out some of his allegations, given that (as substantiated during that hearing)
his practice was not to seek medical treatment regularly. After hearing testimony from Petitioner
and his ex-wife, I informed the parties that I considered both witnesses honest, and deemed it likely
based upon the available evidence that Petitioner’s symptoms had begun immediately after he
received the flu vaccine. See Mot. at 4. However, I did not make a formal fact ruling, and instead
encouraged the parties to attempt to settle the claim, especially in light of litigation risk issues
(which particularly cut against Mr. Bull, since he could not offer medical record evidence to
substantiate many elements of his claim).
The parties could not bridge their gap, and therefore I ordered Petitioner to file an expert
report in support of his claim. See Docket Entry, dated December 12, 2019. Dr. Nassab’s report
was filed in August 2020, and in response I ordered Respondent to indicate whether he would
reconsider settlement or instead wished to seek some other form of case resolution. Docket entry,
dated September 2, 2020. Respondent expressed the intent to file a rebuttal report and seek the
claim’s dismissal—and to that end, in November 2020 filed both Dr. Price’s expert report and a
motion for a ruling on the record dismissing the claim. The matter is now fully briefed and ripe for
resolution.
V. Parties’ Respective Arguments
Petitioner asserts that his October 5, 2016 flu vaccination caused him to suffer from
brachial neuritis. Opp. at 4. Petitioner acknowledges that there is a lack of direct evidence for how
the flu vaccine can cause brachial neuritis, but states that it is known that vaccines can cause the
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condition from case reports. Id. at 5. Petitioner’s expert, Dr. Nassab, offered medical literature—
in the form of two case reports—to support his conclusion that Petitioner suffered from brachial
neuritis as a result of his flu vaccination. Id. at 9. And, Petitioner offers a theory—that vaccines in
general can cause local inflammation that could cause conditions like brachial neuritis under
certain circumstances. Id. at 4. Moreover, Petitioner argues that because the Act does not require
proof of causation that rises to the level of scientific certainty, he has made a satisfactory showing
in this case. In addition, Petitioner argues that he has satisfied the six-month severity requirement
based on the testimony provided and documentation that Petitioner continued to take medication
to treat the vaccine caused injury for the required time period. Id. at 6-7.
Respondent, in contrast, asserts that Petitioner has failed to prove by preponderant evidence
that the “vaccine-induced neuropathy” he allegedly suffered was caused by the receipt of his
October 2016 flu vaccination. Mot. at 1. First, Respondent argues that Petitioner has not provided
sufficient evidence that he suffered from a compensable diagnosis. Id. at 5. Respondent’s expert,
Dr. Price, explains that Petitioner’s clinical presentation is not consistent with a diagnosis of
brachial neuritis because Petitioner did not have medical evidence of the cardinal feature of
brachial neuritis, muscle weakness and wasting. Id.
Second, Respondent argues that Petitioner has not offered a reliable medical theory or a
logical sequence of cause and effect to meet the preponderance standard. Mot. at 6. Respondent
critiques Dr. Nassab’s opinion as conclusory, and failing to delineate a theory of how receipt of
the flu vaccination can cause the injury. Id. at 7. Moreover, Dr. Nassab did not identify anything
about Petitioner’s clinical presentation or in his medical records that would indicate a logical
sequence of cause and effect. Id.
Finally, Respondent argues that Petitioner has not established an appropriate timeframe to
attribute causation. Mot. at 7. While, Dr. Nassab asserts that the onset and timing of Petitioner’s
symptoms fits the description of post-vaccinal brachial neuritis, he does not specify what an
appropriate timeframe would be between receipt of the flu vaccine and onset of brachial neuritis
symptoms. Id. at 8. And Respondent argues that Petitioner has not sufficiently demonstrated that
his symptoms continued for six months or more, with the record suggesting that Petitioner’s
neuropathy had resolved approximately three months post-vaccination. Id. at 8.
VI. Applicable Law
A. Petitioner’s Overall Burden in Vaccine Program Cases
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
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or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 2010); Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006). In
this case, Petitioner does not assert a Table claim.
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.”
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344,
1352–53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen v. Secretary of Health and Hum. Servs., 418 F.3d 1274, 1278 (2005): “(1) a
medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause
and effect showing that the vaccination was the reason for the injury; and (3) a showing of
proximate temporal relationship between vaccination and injury.”
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, 451 F.3d at 1355–56 (citations omitted). To satisfy this prong, a
petitioner’s theory must be based on a “sound and reliable medical or scientific explanation.”
Knudsen v. Sec’y of Health & 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.
Petitioners may satisfy the first Althen prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
theory. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009) (citing
Capizzano, 440 F.3d at 1325–26). Special masters, despite their expertise, are not empowered by
statute to conclusively resolve what are essentially thorny scientific and medical questions, and
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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 1367, 1380. Accordingly, special masters must take care not to
increase the burden placed on petitioners in offering a scientific theory linking vaccine to injury.
The Federal Circuit has consistently rejected the contention that the first Althen prong can
be satisfied merely by establishing a proposed causal theory’s scientific or medical plausibility.
See Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019); see also
LaLonde v. Sec’y of Health & Hum. Servs., 746 F.3d 1334, 1339 (Fed. Cir. 2014) (“[h]owever, in
the past we have made clear that simply identifying a ‘plausible’ theory of causation is insufficient
for a petitioner to meet her burden of proof.” (citing Moberly, 592 F.3d at 1322)). Rather, this
prong (like the other two) requires a preponderant showing. This naturally flows from the
overarching fact that Program petitioners always have the ultimate burden of establishing their
claim with preponderant evidence. W.C. v. Sec’y of Health & Hum. Servs., 704 F.3d 1352, 1356
(Fed. Cir. 2013) (citations omitted); Tarsell v. United States, 133 Fed. Cl. 782, 793 (2017) (noting
that Moberly “addresses the petitioner’s overall burden of proving causation-in-fact under the
Vaccine Act” by a preponderance standard).
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,
569 F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Hum. Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Medical records and statements of a treating physician, however, do not per se bind the
special master to adopt the conclusions of such an individual, even if they must be considered and
carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment,
test result, report, or summary shall not be binding on the special master or court”); Snyder v. Sec’y
of Health & Hum. Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is nothing . . . that mandates
that the testimony of a treating physician is sacrosanct—that it must be accepted in its entirety and
cannot be rebutted”). As with expert testimony offered to establish a theory of causation, the
opinions or diagnoses of treating physicians are only as trustworthy as the reasonableness of their
suppositions or bases. The views of treating physicians should be weighed against other, contrary
evidence also present in the record—including conflicting opinions among such individuals.
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Hibbard v. Sec’y of Health & Hum. Servs., 100 Fed. Cl. 742, 749 (2011) (not arbitrary or capricious
for special master to weigh competing treating physicians’ conclusions against each other), aff’d,
698 F.3d 1355 (Fed. Cir. 2012); Veryzer v. Sec’y of Dept. of Health & Hum. Servs., No. 06-522V,
2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review denied, 100 Fed.
Cl. 344, 356 (2011), aff’d without opinion, 475 F. Appx. 765 (Fed. Cir. 2012).
The third Althen prong requires establishing a “proximate temporal relationship” between
the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to the
phrase “medically-acceptable temporal relationship.” Id. A petitioner must offer “preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder’s etiology, it is medically acceptable to infer causation.” de Bazan
v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what
is a medically acceptable timeframe must align with the theory of how the relevant vaccine can
cause an injury (Althen prong one’s requirement). Id. at 1352; Shapiro v. Sec’y of Health & Hum.
Servs., 101 Fed. Cl. 532, 542 (2011), recons. denied after remand, 105 Fed. Cl. 353 (2012), aff’d
mem., 503 F. Appx. 952 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Hum. Servs., No. 11-355V,
2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for rev. denied (Fed. Cl. Dec. 3,
2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
B. Legal Standards Governing Factual Determinations
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [] relevant medical and scientific evidence contained in the record,” including “any
diagnosis, conclusion, medical judgment, or autopsy or coroner’s report which is contained in the
record regarding the nature, causation, and aggravation of the petitioner’s illness, disability, injury,
condition, or death,” as well as the “results of any diagnostic or evaluative test which are contained
in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special master is then
required to weigh the evidence presented, including contemporaneous medical records and
testimony. See Burns v. Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (it is
within the special master’s discretion to determine whether to afford greater weight to
contemporaneous medical records than to other evidence, such as oral testimony surrounding the
events in question that was given at a later date, provided that such determination is evidenced by
a rational determination).
Medical records that are created contemporaneously with the events they describe are
presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient’s
health problems). Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Hum. Servs., 95 Fed.
Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner’s testimony and his
contemporaneous medical records, the special master’s decision to rely on petitioner’s medical
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records was rational and consistent with applicable law”), aff’d sub nom. Rickett v. Sec’y of Health
& Hum. Servs., 468 F. Appx. 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption
is based on the linked propositions that (i) sick people visit medical professionals; (ii) sick people
honestly report their health problems to those professionals; and (iii) medical professionals record
what they are told or observe when examining their patients in as accurate a manner as possible,
so that they are aware of enough relevant facts to make appropriate treatment decisions. Sanchez
v. Sec’y of Health & Hum. Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013); Cucuras v. Sec’y of Health & Hum. Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993
F.2d at 1525 (Fed. Cir. 1993) (“[i]t strains reason to conclude that petitioners would fail to
accurately report the onset of their daughter’s symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-1585V, 2005 WL
6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records
are generally found to be deserving of greater evidentiary weight than oral testimony—especially
where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528; see also
Murphy v. Sec’y of Dep’t of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991) (citing United States
v. United States Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral
testimony which is in conflict with contemporaneous documents is entitled to little evidentiary
weight.”)).
There are, however, situations in which compelling testimony may be more persuasive than
written records, such as where records are deemed to be incomplete or inaccurate. Campbell v.
Sec’y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“like any norm based upon common
sense and experience, this rule should not be treated as an absolute and must yield where the factual
predicates for its application are weak or lacking”); Lowrie, 2005 WL 6117475, at *19 (“’[w]ritten
records which are, themselves, inconsistent, should be accorded less deference than those which
are internally consistent’”) (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a determination
regarding a witness’s credibility is needed when determining the weight that such testimony should
be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570,
1575 (Fed. Cir. 1993).
When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec’y of Health & Hum. Servs.,
No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the
accuracy and completeness of medical records, the Court of Federal Claims has listed four possible
explanations for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that happened
during the relevant time period; (2) the medical professional’s failure to document everything
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reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony;
or (4) a person’s purposeful recounting of symptoms that did not exist. Lalonde v. Sec’y of Health
& Hum. Servs., 110 Fed. Cl. 184, 203–04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014). In making
a determination regarding whether to afford greater weight to contemporaneous medical records
or other evidence, there must be evidence that this decision was the result of a rational
determination. Burns, 3 F.3d at 417.
C. Analysis of Expert Testimony
Establishing a sound and reliable medical theory often requires a petitioner to present
expert testimony in support of his claim. Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357,
1361 (Fed. Cir. 2000). Vaccine Program expert testimony is usually evaluated according to the
factors for analyzing scientific reliability set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 594–96 (1993). See Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328,
1339 (Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Hum. Servs., 195 F.3d 1302, 1316 (Fed.
Cir. 1999)). “The Daubert factors for analyzing the reliability of testimony are: (1) whether a
theory or technique can be (and has been) tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) whether there is a known or potential rate of error
and whether there are standards for controlling the error; and (4) whether the theory or technique
enjoys general acceptance within a relevant scientific community.” Terran, 195 F.3d at 1316 n.2
(citing Daubert, 509 U.S. at 592–95).
The Daubert factors play a slightly different role in Vaccine Program cases than they do
when applied in other federal judicial fora (such as the district courts). Daubert factors are usually
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable and/or could confuse a jury. In Vaccine Program cases, by contrast, these factors
are used in the weighing of the reliability of scientific evidence proffered. Davis v. Sec’y of Health
& Hum. Servs., 94 Fed. Cl. 53, 66–67 (2010) (“uniquely in this Circuit, the Daubert factors have
been employed also as an acceptable evidentiary-gauging tool with respect to persuasiveness of
expert testimony already admitted”). The flexible use of the Daubert factors to evaluate the
persuasiveness and reliability of expert testimony has routinely been upheld. See, e.g., Snyder, 88
Fed. Cl. at 742–45. In this matter (as in numerous other Vaccine Program cases), Daubert has not
been employed at the threshold, to determine what evidence should be admitted, but instead to
determine whether expert testimony offered is reliable and/or persuasive.
A special master’s decision may be “based on the credibility of the experts and the relative
persuasiveness of their competing theories.” Broekelschen v. Sec’y of Health & Hum. Servs., 618
F.3d 1339, 1347 (Fed. Cir. 2010) (citing Lampe, 219 F.3d at 1362). However, nothing requires the
acceptance of an expert’s conclusion “connected to existing data only by the ipse dixit of the
expert,” especially if “there is simply too great an analytical gap between the data and the opinion
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proffered.” Snyder, 88 Fed. Cl. at 743 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997));
see also Isaac v. Sec’y of Health & Hum. Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed.
Cl. Spec. Mstr. July 30, 2012), mot. for rev. denied, 108 Fed. Cl. 743 (2013), aff’d, 540 F. Appx.
999 (Fed. Cir. 2013) (citing Cedillo, 617 F.3d at 1339). Weighing the relative persuasiveness of
expert testimony, based on a particular expert’s credibility, is part of the overall reliability analysis
to which special masters must subject expert testimony in Vaccine Program cases. Moberly, 592
F.3d at 1325–26 (“[a]ssessments as to the reliability of expert testimony often turn on credibility
determinations”); see also Porter v. Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1250 (Fed.
Cir. 2011) (“this court has unambiguously explained that special masters are expected to consider
the credibility of expert witnesses in evaluating petitions for compensation under the Vaccine
Act”).
Expert opinions based on unsupported facts may be given relatively little weight. See
Dobrydnev v. Sec’y of Health & Hum. Servs., 556 F. Appx. 976, 992–93 (Fed. Cir. 2014) (“[a]
doctor’s conclusion is only as good as the facts upon which it is based”) (citing Brooke Group Ltd.
v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“[w]hen an expert assumes
facts that are not supported by a preponderance of the evidence, a finder of fact may properly reject
the expert’s opinion”)). Expert opinions that fail to address or are at odds with contemporaneous
medical records may therefore be less persuasive than those which correspond to such records. See
Gerami v. Sec’y of Health & Hum. Servs., No. 12-442V, 2013 WL 5998109, at *4 (Fed. Cl. Spec.
Mstr. Oct. 11, 2013), aff’d, 127 Fed. Cl. 299 (2014).
D. Consideration of Medical Literature
Petitioner has filed medical and scientific literature in this case, but not every filed item
factors into the outcome of this decision. While I have reviewed all the medical literature submitted
in this case, I discuss only those articles that are most relevant to my determination and/or are
central to Petitioner’s case—just as I have not exhaustively discussed every individual medical
record filed. Moriarty v. Sec’y of Health & Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016)
(“[w]e generally presume that a special master considered the relevant record evidence even
though he does not explicitly reference such evidence in his decision”) (citation omitted); see also
Paterek v. Sec’y of Health & Hum. Servs., 527 F. Appx. 875, 884 (Fed. Cir. 2013) (“[f]inding
certain information not relevant does not lead to—and likely undermines—the conclusion that it
was not considered”).
E. Consideration of Comparable Special Master Decisions
In reaching a decision in this case, I have taken into account other decisions issued by
special masters (including my own) involving similar injuries, vaccines, or circumstances. I also
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reference some of those cases in this Decision, in an effort to establish common themes, as well as
demonstrate how such prior determinations impact my thinking on the present case.
There is no error in doing so. It is certainly correct that prior decisions from different cases
do not control the outcome herein.6 Boatmon, 941 F.3d at 1358–59; Hanlon v. Sec’y of Health &
Hum. Servs., 40 Fed. Cl. 625, 630 (1998). Thus, the fact that another special master reasonably
determined elsewhere, on the basis of facts not in evidence in this case, that preponderant evidence
supported the conclusion that vaccine X caused petitioner’s injury Y does not compel me to reach
the same conclusion in this case. Different actions present different background medical histories,
different experts, and different items of medical literature, and therefore can reasonably result in
contrary determinations.
However, it is equally the case that special masters reasonably draw upon their experience
in resolving Vaccine Act claims. Doe v. Sec’y of Health & Hum. Servs., 76 Fed. Cl. 328, 338–39
(2007) (“[o]ne reason that proceedings are more expeditious in the hands of special masters is that
the special masters have the expertise and experience to know the type of information that is most
probative of a claim”) (emphasis added). They would therefore be remiss in ignoring prior cases
presenting similar theories or factual circumstances, along with the reasoning employed in
reaching such decisions. This is especially so given that special masters not only routinely hear
from the same experts in comparable cases but are also repeatedly offered the same items of
medical literature regarding certain common causation theories. It defies reason and logic to
obligate special masters to “reinvent the wheel”, so to speak, in each new case before them, paying
no heed at all to how their colleagues past and present have addressed similar causation theories
or fact patterns. It is for this reason that prior decisions can have high persuasive value—and why
special masters often explain how a new determination relates to such past decisions.7 Even if the
Federal Circuit does not require special masters to distinguish other relevant cases (Boatmon, 941
F.3d at 1358), it is still wise to do so.
6 By contrast, Federal Circuit rulings concerning legal issues are generally binding on special masters in all cases.
Guillory v. Sec’y of Health & Hum. Servs., 59 Fed. Cl. 121, 124 (2003), aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see
also Spooner v. Sec’y of Health & Hum. Servs., No. 13-159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan.
16, 2014). Special masters are also bound within a specific case by determinations made by judges of the Court of
Federal Claims after a motion for review is resolved.
7 Consideration of prior determinations is a two-way street that does not only inure to the benefit of one party. Thus,
I would likely take into account the numerous decisions finding no association between vaccination and autism when
confronted with a new claim asserting autism as an injury and have informed such claimants early in the life of their
case that the claim was not viable for just that reason. But I would also deem a non-Table claim asserting GBS after
receipt of the flu vaccine as not requiring extensive proof on Althen prong one “can cause” matters, for the simple
reason that the Program has repeatedly litigated the issue in favor of petitioners.
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F. Evaluation of Expert Credentials and Professional Competence
It is common in Program cases for special masters to evaluate competing expert opinions
when deciding non-Table claims—and that process can be very difficult when the experts are
equally well-credentialed and qualified to provide the opinion offered. Under such circumstances,
resolution of a claimant’s success in establishing causation turns on the comparative reliability of
the scientific/medical contentions each side makes, rather than a measure of each particular
expert’s baseline qualifications against the other. See, e.g., D'Tiole v. Sec'y of Health & Hum.
Servs., No. 15-085V, 2016 WL 7664475, at *20 (Fed. Cl. Nov. 28, 2016) (determination that
causation theory was unreliable did not arise from adequacy of Petitioner’s expert, who was
expressly deemed well-qualified to provide the opinion given), mot. for review den’d, 132 Fed. Cl.
421 (2017), aff'd, 726 F. App'x 809 (Fed. Cir. 2018).
In other circumstances, however, weighing the probative value of an expert’s opinion fairly
takes into account that same expert’s qualifications or professional experience. This is most
obviously necessary when an expert offers an opinion that plainly exceeds his training or
individual competence. Domeny v. Sec’y of Health & Hum. Servs., No. 94-1086V, 1999 WL
199059, at * 15 (Fed. Cl. Spec. Mstr. Mar. 15, 1999) (dentist not qualified to offer diagnostic
opinion on whether petitioner had experienced a neuropathy), mot. for review den’d, slip op., May
25, 1999 (Fed. Cl.), aff’d, 232 F.3d 912 (Fed. Cir. 2000). But it can even be an issue with experts
who possess immense and impressive credentials, and who in prior cases may have offered reliable
opinions. See, e.g., Rolshoven v. Sec'y of Health & Hum. Servs., No. 14-439V, 2018 WL 1124737,
at *21 (Fed. Cl. Spec. Mstr. Jan. 11, 2018) (otherwise-competent expert with significant Vaccine
Program experience undermined his credibility in part with constant commentary about relevant
legal standards to be applied in case).
G. Determining Entitlement Via Ruling on the Record
In accordance with the parties’ agreement and my own assessment of how to best decide
this case, I am resolving Petitioner’s claim on the papers rather than via hearing. 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. Section 12(d)(2)(D); Vaccine Rule 8(d). The decision to rule on the record in lieu
of 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 case on the papers in lieu of hearing and that decision was 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 special
master acted within his discretion in denying evidentiary hearing); Burns, 3 F.3d at 417; Murphy
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v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 71500, at *2 (Fed. Cl. Spec. Mstr. Apr.
19, 1991).
ANALYSIS
I. Petitioner’s Brachial Neuritis Diagnosis Was Not Preponderantly Established
It is often necessary in many cases to determine the nature of the petitioner’s injury—
especially if the causal theory is dependent on establishing that a specific injury occurred.
Broekelschen, 618 F.3d at 1345; LaPierre v. Sec’y of Health & Hum. Servs., No. 17-227V, 2019
WL 6490730, at *16–17 (Fed. Cl. Spec. Mstr. Oct. 18, 2019). Since Petitioner’s expert has opined
that brachial neuritis best explains his injury, an analysis of his success in so establishing is
required to adjudicate the claim.
In this case, there is limited evidence upon which to base the conclusion that Mr. Bull’s
injury likely constituted brachial neuritis. First, he was never so diagnosed—and little medical
record evidence could be cited as consistent with that proposed diagnosis. Even if Dr. Simmons’s
assessment of Petitioner’s injury as a generalized “neuropathy” is deemed arguably to include
brachial neuritis, it was never confirmed, even that same month in December 2016 when Mr. Bull
was treated for a different injury (although that fact might reasonably explain why the neuropathy
was not discussed).
Second, Petitioner did not display an important feature of brachial neuritis: muscle
weakness and wasting. See Ex. A at 3; Ex. 1 at 1-2 (December 6, 2016 evaluation by Petitioner’s
treater, Dr. Simmons, showed Petitioner’s left grip strength intact, and he did not note that there
was a loss of left arm muscle bulk); Ex. 4 at 3 (December 30, 2016 evaluation by Petitioner’s
treater, Dr. Lillig, showed Petitioner’s upper extremities had normal strength and tone, and he did
not note any loss of left arm muscle bulk). Dr. Price persuasively opined in his report that Petitioner
lacked the required clinical indicia or other testing results (muscle atrophy or wasting, needle EMG
study, etc.) that would confirm a diagnosis of brachial neuritis.
For the sake of argument, I shall assume herein that the injury Mr. Bull suffered was
brachial neuritis. In addition, and as noted below, the fact evidence testimony is supportive of the
conclusion that Petitioner experienced some kind of post-vaccination injury, suggesting in turn
that the disposition of this matter should not solely arise from a determination that his preferred
injury classification has not been preponderantly established. But it is clear from this record and
the expert opinions that brachial neuritis does not “more likely than not” explain Petitioner’s injury
—and this could reasonably be grounds for the claim’s dismissal, without any concern for his
satisfaction of the Althen prongs.
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II. Petitioner Has Not Established His Onset Occurred in a Medically-Acceptable Timeframe
Concurrent consideration of the proof offered in support of the first and third Althen prongs
is often inherent to evaluating the acceptability of a proposed timeframe for vaccine-induced onset.
This reasonably flows from the close relationship between the two. See, e.g., de Bazan, 539 F.3d
at 1352 (the explanation for what is a medically acceptable timeframe for injury onset must also
coincide with the theory of how the relevant vaccine can cause an injury (Althen prong one's
requirement)); Shapiro v. Sec'y of Health & Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons.
den'd after remand, 105 Fed. Cl. 353 (2012), aff'd mem., 503 Fed. App’x. 952 (Fed. Cir. 2013).
If I address only the first, “can cause” prong in isolation, Petitioner's assertion that the flu
vaccine could cause brachial neuritis is supported with some reliable evidence. To begin with,
literature (in the form of case reports) filed in this case links the flu vaccine to brachial neuritis.
See e.g., Shaikh; P. Foye et al., Electrodiagnostic Findings in Brachial Plexopathy After Influenza
Vaccination, WebmedCentral NEUROLOGY 2011; 2(2): WMC001530, filed on November 25,
2020 as Ex. 16 (ECF No. 52-1).
There are also other Program determinations in which a claimant has received
compensation for this injury after vaccination, even though there is no Table claim for flu vaccine-
caused brachial neuritis. See e.g., Rickstrom v. Sec'y of Health & Hum. Servs, No. 18-53V, 2021
WL 424446 (Fed. Cl. Spec. Mstr. Jan. 12, 2021) (decision on joint stipulation). And I have
addressed non-Table claims involving this injury and other vaccines. See, e.g., Greene v. Sec. of
Health & Hum. Servs., No. 11-631V, 2019 WL 4072110 (Fed. Cl. Spec. Mstr. Aug. 2, 2019)
(tetanus vaccine not shown to have caused brachial neuritis (non-Table claim) because onset was
not medically acceptable), mot. for review den’d, 146 Fed. Cl. 655 (2020), aff’d, 841 Fed. App’x.
195 (Fed. Cir. 2020); Garner v. Sec'y of Health & Hum. Servs., No. 15-063V, 2017 WL 1713184
(Fed. Cl. Spec. Mstr. Mar. 24, 2017) (Hepatitis A and B vaccines not shown to have caused
brachial neuritis, given overly-long onset), mot. for review den’d, 133 Fed. Cl. 140 (2017). It is
certainly plausible that the flu vaccine, like other vaccines, could cause brachial neuritis (although
of course plausibility is not preponderance).
Nevertheless, Petitioner’s prong one showing is far from robust, and not preponderantly
established. Petitioner readily acknowledges in his brief that “[t]here may not be direct evidence
of exactly how the influenza vaccine can cause brachial neuritis,” and thus he relies more on case
reports. Opp. at 5. Petitioner further states that “we know that the influenza vaccine, and vaccines
in general, cause local inflammation that could cause conditions like brachial neuritis under certain
circumstances.” Id. Petitioner goes on to argue that because the Act does not require petitioners to
present proof of causation to the level of scientific certainty, a satisfactory showing has been made
in this case based on the assertions of Dr. Nassab and the filed case reports. But I have repeatedly
19

Case 1:18-vv-00361-MMS Document 63 Filed 07/01/21 Page 20 of 22
held that case reports, though relevant and sometimes helpful, are a kind of evidence having weak
probative causation value. See e.g., Martin v. Sec’y of Health & Hum. Servs., No. 17-250V, 2020
WL 4815840 at *27 (Fed. Cl. Spec. Mstr. July 17, 2020). They are thus not enough alone to meet
Petitioner’s burden—and Dr. Nassab’s fairly conclusory opinion did not provide them additional
weight.
Moreover, even if I could find the “can cause” prong had been met, the third Althen prong
proves a more conclusive stumbling block—for Petitioner has not presented sufficient reliable
scientific or medical evidence establishing that an immediate post-vaccination onset of brachial
neuritis symptoms is medically acceptable. As a factual matter, the evidence supports the
conclusion that onset in this case was immediate.8 As Mr. Bull testified at the fact hearing, “[the
shot] was very painful. I immediately knew something wasn’t right, immediately.” Tr. at 37.
Petitioner also testified about his left arm at work the next day, “[b]asically couldn’t use it…I just
kind of did what I could one-handed.” Id. at 39. As I previously indicated, I found Petitioner and
Ms. Langland to be credible and truthful in their testimony at the hearing.
An onset of Petitioner’s symptoms immediately following administration of the flu shot is,
however, inconsistent with a medically acceptable temporal relationship for vaccine-caused
brachial neuritis. Price Rep. at 3; Shaikh; Nassab Rep. at 2. As Dr. Price established, onset of
brachial neuritis symptoms following vaccination is typically 3-21 days. Price Rep. at 3; Tsairis.
This is because an immune-mediated process would require time for activation of the immune
system. Price Rep. at 4.
Petitioner did not rebut the contention that a one-day or less onset for brachial neuritis
would not be medically acceptable. Dr. Nassab stated in conclusory fashion that “the onset and
timing of [Petitioner’s] symptoms fits the description of post-vaccinal brachial neuritis.” Nassab
Rep. at 2. But Dr. Nassab did not specify what an appropriate timeframe would be between receipt
of a flu vaccine and onset of brachial neuritis symptoms, nor did he explain how an immune-
mediated response could cause immediate symptoms. Petitioner otherwise argued in his brief that
onset of brachial neuritis occurs “between 1-to-30 days post-vaccination.” Pet. Reply at 12. But
Petitioner derived this timeframe from case reports, which (as already noted) have far less
probative value than other kinds of evidence. Neither Dr. Nassab nor the medical literature filed
in support of Petitioner’s claim have demonstrated how a presumptively immune-mediated
process, which requires time for activation of the immune system, can cause immediate onset of
brachial neuritis following flu vaccination. And I am aware of no Program decisions finding an
immediate or one-day onset of brachial neuritis post-vaccination was reasonable.
8 Immediate onset of pain post-vaccination is evidence of a different kind of injury common in the Vaccine Program—
shoulder injury related to vaccine administration (“SIRVA”). SIRVA is also a recognized Table claim for flu vaccine
recipients. See Tenneson v. Sec’y of Health & Hum. Servs., No. 16-1664V, 2018 WL 3083140 (Fed. Cl. Spec. Mstr.
Mar. 30, 2018). But the record in this case does not support the conclusion that Mr. Bull experienced a SIRVA injury,
and Petitioner has not alleged SIRVA either.
20

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In light of the above, even if I accepted that the flu vaccine could cause brachial neuritis—
a determination not particularly well-supported by the evidence in this matter—I unquestionably
cannot find, given the record, that the timeframe at issue in this case was medically acceptable,
and thus Petitioner’s claim cannot satisfy the third Althen prong.
III. Althen Prong Two Has Not Been Satisfied
I also do not find that Petitioner presented preponderant evidence to satisfy the second
Althen prong. This prong requires a Vaccine Act claimant to establish a logical explanation of how
the vaccine actually caused injury under the relevant facts. Althen, 418 F.3d at 1278; Andreu, 569
F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec'y of Health & Hum. Servs., 956 F.2d
1144, 1148 (Fed. Cir. 1992).
As noted, there are problems with Petitioner's favored diagnosis, vaccine-induced
neuropathy/Parsonage Turner syndrome/brachial neuritis. But even accepting that classification of
the injury, the record does not support the conclusion that Mr. Bull’s injury was likely immune-
mediated. The limited medical records and witness testimony do not contain any proof that an
autoimmune process was underway, or that his initial symptoms reflected an immune-mediated
response. Petitioner describes brachial neuritis as “an inflammatory condition that involves injury
to the brachial plexus, a group of nerves that travel from the upper spine to the shoulder, arm, and
hand.” Pet.’s Sur-Reply at 7 (internal quotations omitted). The localized immune-mediated
inflammation damages the nerves of the brachial plexus. Id. at 11. Thus, the condition should be
accompanied by evidence, direct or indirect, of an inflammatory process that could be attributed
to an immune reaction. But Dr. Nassab could not identify anything in Petitioner’s clinical course
that would allow that conclusion, and I see no other evidence in this limited record that would
support the determination either.
IV. Petitioner’s Claim Overall Lacks Sufficient Record Corroboration
A final point to be made about this claim is the overall absence of independent evidence,
whether in the form of medical records or something else, to support Mr. Bull’s contentions. As
noted, I deemed him a credible witness, and I gave some weight to his contentions (supported by
Ms. Langland) that he experienced some kind of injury after receiving the flu vaccine. The record
shows he complained of this injury at a subsequent treater visit, and took medication for it as well.
All of these determinations were reasons to allow the claim to progress, and to give Petitioner the
opportunity to substantiate it with an expert opinion. And I have taken into account Petitioner’s
explanation at the fact hearing that he was not a person who regularly sought medical treatment—
meaning that his claim would have to find non-medical record evidence for its substantiation. Tr.
at 67.
21

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Nevertheless, the overall record in this case is quite thin, and that insufficiency reasonably
weighed down the Petitioner in his efforts to meet the preponderant standard. Indeed—not only
was there hardly any evidence to conclude he likely had brachial neuritis, as Dr. Nassab alleged,
or that the flu vaccine could cause that injury in a day’s time, but the evidence of the injury’s
severity was also quite weak. See Section 11(c)(1)(D); Watts v. Sec’y of Health & Hum. Servs.,
No. 17-1494V, 2019 WL 4741748 at *3 (Fed. Cl. Spec. Mstr. Aug. 13, 2019). Petitioner’s sincerity
in establishing some kind of injury simply could not be bulwarked with enough other evidence to
find entitlement for him.
CONCLUSION
The Vaccine Act permits me to award compensation only if a petitioner alleging a “non-
Table Injury” can show by medical records or competent medical opinion that the injury was more
likely than not vaccine-caused. The medical record in this case reveals that Petitioner's injury
presents too close in time from vaccination to plausibly suggest an immune-mediated link between
the two, nor has Petitioner presented a persuasive or reliable causation theory that fits the facts.
There is therefore insufficient evidence to support an award of compensation, and I must hereby
DISMISS this claim.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
22

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_18-vv-00361-2
Date issued/filed: 2021-10-25
Pages: 13
Docket text: JUDGE VACCINE REPORTED OPINION reissuing 66 Judge Vaccine Order/Opinion. Signed by Senior Judge Margaret M. Sweeney. (kb1)
--------------------------------------------------------------------------------
Case 1:18-vv-00361-MMS Document 68 Filed 10/25/21 Page 1 of 13
In the United States Court of Federal Claims
No. 18-361V
(Filed Under Seal: October 8, 2021)
(Reissued for Publication: October 25, 2021)1
***************************************
MICHAEL BULL, *
*
Petitioner, *
* Vaccine Act; Motion for Review; Influenza
v. * Vaccine; Nature of Injury; Brachial Neuritis;
* Consideration of Evidence; Causation;
SECRETARY OF HEALTH AND HUMAN * Althen Prongs Two and Three
SERVICES, *
*
Respondent. *
***************************************
Mark T. Sadaka, Englewood, NJ, for petitioner.
Mollie D. Gorney, United States Department of Justice, Washington, DC, for respondent.
OPINION AND ORDER
SWEENEY, Senior Judge
Petitioner Michael Bull seeks compensation under the National Childhood Vaccine Injury
Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34 (2018), alleging that he developed
brachial neuritis as a result of an influenza vaccination. In an April 20, 2021 decision, the chief
special master denied petitioner’s request for compensation. Before the court is petitioner’s
motion for review of that decision. As discussed below, the court denies petitioner’s motion and
sustains the decision of the chief special master.
I. BACKGROUND
Petitioner filed his petition for compensation under the Vaccine Act on March 8, 2018.
After he filed his medical records and other relevant fact evidence, the chief special master held
a fact hearing regarding the onset of petitioner’s injury. The parties then filed expert reports and
1 Vaccine Rule 18(b), set forth in Appendix B of the Rules of the United States Court of
Federal Claims, affords each party fourteen days in which to object to the disclosure of (1) trade
secrets or commercial or financial information that is privileged or confidential or (2) medical
information that would constitute “a clearly unwarranted invasion of privacy.” Neither party
objected to the public disclosure of any information contained in this opinion.

Case 1:18-vv-00361-MMS Document 68 Filed 10/25/21 Page 2 of 13
medical literature, and respondent filed a motion for a ruling on the record. When respondent
filed his motion, the record included petitioner’s medical records; petitioner’s sworn affidavit;
sworn certifications from petitioner, petitioner’s coworker, and petitioner’s ex-wife; hearing
testimony from petitioner and petitioner’s ex-wife; two expert reports; and eleven pieces of
medical literature. The court briefly summarizes the relevant facts from these sources.
A. Medical Records
Petitioner was born in 1959. On October 4, 2016, he was admitted to the hospital upon
complaining of chest pain. He remained hospitalized overnight, and the following morning, he
received an influenza vaccination in his left arm. He was discharged from the hospital later that
day.2 The records from the hospitalization do not reflect that petitioner suffered adverse effects
from the vaccination.
On October 12, 2016, petitioner was seen by his primary care physician to follow up after
his discharge from the hospital. He was treated for a rash on his left hand, which was diagnosed
as ringworm. Absent from the provider’s record is any reference to the influenza vaccination or
any complaints concerning petitioner’s left arm.
Petitioner next visited his primary care physician on December 6, 2016, complaining of
numbness and tingling in his left arm that began after he received his influenza vaccination. He
told his physician that he was dropping things due to the numbness and that pain radiated into his
fingers and shoulder. The physician performed a physical examination and noted decreased
sensation to light touch in petitioner’s left arm, tenderness at the vaccination site, and generally
intact grip strength. He assessed petitioner with neuropathy and prescribed a month’s supply of
gabapentin.
On December 30, 2016, petitioner visited an urgent care center due to pain he was
experiencing in his right flank after falling from a ladder nine days previously. Although the
urgent care center record indicates a past medical history of left-arm neuropathy due to the
influenza vaccine, the physician who saw petitioner indicated that petitioner did not report any
muscle pain or weakness, and upon examination, found that petitioner had normal strength and
tone in his upper extremities.
There are no medical treatment records dated after December 30, 2016, but pharmacy
records indicate that petitioner obtained three refills of his gabapentin prescription, with the last
one obtained on April 9, 2017.
2 In his decision, the chief special master states that petitioner was hospitalized from
October 4 to October 6, 2016. See Bull v. Sec’y of HHS, No. 18-361V, slip op. at 2 (Fed. Cl.
Spec. Mstr. Apr. 20, 2021). However, the hospital’s records reflect that petitioner was
discharged on October 5, 2016. See Pet’r’s Ex. 2 at 17, 53. This minor discrepancy does not
affect the outcome of the case.
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B. Affidavits, Certifications, and Hearing Testimony
In written and oral testimony, petitioner and his ex-wife provided additional details
regarding the vaccination, the symptoms petitioner experienced thereafter, and the reasons for
the paucity of medical records addressing those symptoms.3 With respect to the latter issue, they
explained that they had a general reluctance to visit health care providers or take medicine unless
there was a serious problem, that there was a lack of financial resources during periods of time
when petitioner was uninsured, and that when seeing a health care provider, petitioner tended
only to discuss symptoms related to the reason for the visit.
The chest pain that petitioner was experiencing in October 2016 was serious enough for
petitioner to seek medical treatment. Ultimately, he was admitted to the hospital where he
received the influenza vaccine. The vaccination was painful and he immediately had difficulty
raising his left arm, but he did not say anything to the nurse at that time. However, at his ex-
wife’s urging, he later told a nurse about the pain, and the nurse advised him that the pain would
go away. The day after he was discharged from the hospital, the pain evolved into a burning
sensation from his shoulder to his hand. He continued to work through the pain, but was unable
to perform certain tasks at his job rehabbing houses, such as hanging kitchen cabinets and
drywall.
Petitioner was still experiencing pain, numbness, and tingling in his left arm when he
visited his primary care physician one week after his hospitalization. He did not mention these
symptoms, however, because they were not the purpose of the visit and he thought that the
symptoms would go away. In fact, he did not even mention the rash on his hand. Rather, the
physician noticed it himself and prescribed a treatment.
In conjunction with his left-arm symptoms, petitioner began to drop things, such as
cigarettes, without realizing that he had dropped them. He also dropped paint pots he was using
at work, and was unable to carry forty- or fifty-pound feed bags. The numbness and tingling
were occurring every four or five minutes. By Thanksgiving, he was unable to grasp or hold
heavy objects with his left hand, and was unable to help clean and set the table like he normally
did. He continued to experience pain, as well as stinging and burning at the vaccination site.
When petitioner ultimately saw his primary care physician for his left-arm symptoms on
December 6, 2016, the physician advised him that there was not much he could do except to
prescribe gabapentin, and that the symptoms should resolve in six-to-twelve months. Petitioner’s
symptoms continued to affect his work, preventing him from performing certain tasks and
requiring him to compensate by using his right hand as much as he could. He also continued to
drop things, such as Christmas ornaments, without noticing. Eventually, the frequency of his
symptoms decreased and his range of motion improved, but he continued to experience pain and
to drop things.
3 The chief special master found petitioner and petitioner’s ex-wife to be honest and
therefore credited their testimony regarding petitioner’s postvaccination symptoms.
-3-

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Since his last gabapentin refill, petitioner’s pain symptoms have improved, but he still
suffers from occasional numbness and tingling.
C. Expert Reports and Medical Literature
In support of his petition for compensation, petitioner submitted an expert report from an
orthopedic surgeon, Paul F. Nassab, M.D.; two pieces of medical literature attached to Dr.
Nassab’s report (a case series and a case report); and six other pieces of medical literature (four
case reports, a book chapter, and a case series). In his expert report, Dr. Nassab opined that
based on his symptoms, petitioner suffered from Parsonage-Turner syndrome, which is also
known as brachial plexus neuritis or just brachial neuritis. Dr. Nassab further opined that
brachial neuritis can be caused by an influenza vaccination, as demonstrated by the case report
he attached to his expert report; that the onset and timing of petitioner’s symptoms were
consistent with a postvaccination brachial neuritis; and that the prevailing cause of petitioner’s
injury was the influenza vaccination. The case series attached to Dr. Nassab’s expert report (but
not discussed by Dr. Nassab) is a retrospective review of magnetic resonance image findings and
clinical information for twenty-seven patients diagnosed with Parsonage-Turner syndrome. Of
the four case reports submitted by petitioner separate from Dr. Nassab’s expert report, two
concern brachial neuritis following an influenza vaccination, one concerns brachial neuritis
following a swine flu vaccination, and one concerns brachial neuritis following rotator cuff
surgery. The book chapter submitted by petitioner generally addresses brachial neuritis, and the
case series submitted by petitioner focuses on the treatment of neuropathic and musculoskeletal
pain with gabapentin.
Respondent, in turn, submitted an expert report from a neurologist, Raymond S. Price,
M.D., and four pieces of medical literature relied upon by Dr. Price (three case series and the
same case report relied upon by Dr. Nassab). In his expert report, Dr. Price opined that
petitioner’s presentation of symptoms was inconsistent with a diagnosis of brachial neuritis. He
explained that muscle weakness and wasting is a hallmark of brachial neuritis, but that there is
no evidence that petitioner suffered from such symptoms. Rather, he elaborated, the medical
records reflect that petitioner had normal strength in his left arm and an intact left grip, and
petitioner’s dropping of items and inability to fully raise his arm were reasonably explained by,
respectively, petitioner’s numbness and pain. Dr. Price further opined that the timing of the
onset of petitioner’s symptoms was inconsistent with brachial neuritis because brachial neuritis is
presumed to be immune-mediated, and immune-mediated processes require time to activate the
immune system. Indeed, Dr. Price observed, in the case report that Dr. Nassab relied upon,
symptoms of brachial neuritis did not begin to occur until three days after the vaccination.
Finally, Dr. Price remarked that petitioner never received a confirmed diagnosis of brachial
neuritis––either through examination by a neurologist or with testing (nerve conduction studies
and needle electromyography).
D. The Chief Special Master’s Decision
On April 20, 2021, the chief special master decided respondent’s motion for a ruling on
the record. After a review of petitioner’s medical history, the expert reports, and the applicable
law, the chief special master concluded that petitioner had not established that he suffered from
-4-

Case 1:18-vv-00361-MMS Document 68 Filed 10/25/21 Page 5 of 13
brachial neuritis due to the lack of such a diagnosis by his treating physicians, as well as the lack
of demonstrated muscle weakness and wasting. With respect to the latter reason, the chief
special master was persuaded by Dr. Price’s opinion that petitioner “lacked the required clinical
indicia or other testing results . . . that would confirm a diagnosis of brachial neuritis.” Bull, slip
op. at 18. The chief special master determined, in short, that “brachial neuritis does not ‘more
likely than not’ explain Petitioner’s injury––and this could reasonably be grounds for the claim’s
dismissal . . . .” Id.
Nevertheless, the chief special master assumed, for the sake of argument, that petitioner
suffered from brachial neuritis and thus analyzed petitioner’s claim under the test for causation
set forth in Althen v. Secretary of HHS:
[Petitioner]’s burden is to show by preponderant evidence that the vaccination
brought about [the] injury by providing: (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.
418 F.3d 1274, 1278 (Fed. Cir. 2005). With respect to the first prong, he concluded that
petitioner had submitted reliable evidence––in the form of case reports––to support his
contention that the influenza vaccine can cause brachial neuritis, but that such evidence was not
preponderant. Turning to the third prong, the chief special master found, based on the honest,
credible testimony of petitioner and petitioner’s ex-wife, that petitioner’s left-arm symptoms
began immediately after his vaccination. Given that finding, he determined that petitioner had
not established that the onset of his injury occurred within a medically accepted period of time
because––as reflected by the case report relied upon by Dr. Nassab, Dr. Price’s expert report, and
an article relied upon by Dr. Price––symptoms of brachial neuritis would not manifest
immediately after vaccination. Next, addressing the second prong, the chief special master
concluded that petitioner did not establish that the influenza vaccine did cause his injury, noting
that there was no evidence that petitioner experienced an inflammatory process that would
indicate an immune-mediated response to the vaccine.
As a final matter, the chief special master explained that the overall thinness of the record
hampered petitioner’s ability to establish a preponderance of the evidence in support of his
claim. This thinness specifically affected petitioner’s ability to establish that he suffered from
brachial neuritis, that the influenza vaccine could cause brachial neuritis, and the severity of his
injury. The chief special master ultimately granted respondent’s motion and dismissed
petitioner’s claim.
Petitioner timely sought review of the chief special master’s decision. Respondent
subsequently filed his response to the motion for review, and the court heard argument on
October 8, 2021. The motion is now ripe for adjudication.
-5-

Case 1:18-vv-00361-MMS Document 68 Filed 10/25/21 Page 6 of 13
II. DISCUSSION
In his motion for review, petitioner enumerates, pursuant to Vaccine Rule 24, two
objections to the chief special master’s decision.4 First, petitioner avers that the chief special
master did not consider medical facts and medical literature supporting a diagnosis of brachial
neuritis. Second, petitioner asserts that the chief special master did not consider facts and peer-
reviewed medical literature relating to the onset and causation of his injury.5 As a consequence
of these purported errors, petitioner contends, the chief special master improperly raised his
burden of proof such that he was required to establish with certainty that the influenza vaccine
caused his injury. Petitioner further contends that the chief special master’s fact findings were
arbitrary and capricious. Petitioner accordingly requests that the court set aside the chief special
master’s findings of fact and conclusions of law, and either (1) issue its own findings and
conclusions, and determine that he is entitled to compensation, or (2) remand the case to the
chief special master for further proceedings.
A. Standard of Review
The United States Court of Federal Claims has jurisdiction to review the record of the
proceedings before a special master, and upon such review, may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master found
to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
42 U.S.C. § 300aa-12(e)(2). The standards set forth in section 12(e)(2)(B) “vary in application
as well as degree of deference. . . . Fact findings are reviewed . . . under the arbitrary and
capricious standard; legal questions under the ‘not in accordance with law’ standard; and
discretionary rulings under the abuse of discretion standard.” Munn v. Sec’y of HHS, 970 F.2d
863, 870 n.10 (Fed. Cir. 1992). Specifically, with respect to the special master’s fact findings,
4 Petitioner numbered his objections differently in his memorandum in support of his
motion for review. Objections “1” and “2” in the motion for review are numbered “1.1” and
“1.2” in the supporting memorandum. Objections “1” and “2” in the memorandum set forth
petitioner’s arguments regarding the legal consequences of the purported deficiencies described
in objections “1.1” and “1.2.” The court addresses petitioner’s arguments regarding the legal
consequences in conjunction with the purported deficiencies.
5 Petitioner characterizes this objection as relating only to the onset of his injury (Althen
prong 3), but two of the arguments he advances relate to whether his injury was caused by the
influenza vaccine (Althen prong 2).
-6-

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the court does “not reweigh the factual evidence, assess whether the special master correctly
evaluated the evidence, or examine the probative value of the evidence or the credibility of the
witnesses—these are all matters within the purview of the fact finder.” Porter v. Sec’y of HHS,
663 F.3d 1242, 1249 (Fed. Cir. 2011); see also Hodges v. Sec’y of HHS, 9 F.3d 958, 961 (Fed.
Cir. 1993) (“[O]n review, the Court of Federal Claims is not to second guess the Special
Master[’]s fact-intensive conclusions; the standard of review is uniquely deferential for what is
essentially a judicial process.”). “Rather, as long as a special master’s finding of fact is ‘based
on evidence in the record that [is] not wholly implausible, [the court is] compelled to uphold that
finding as not being arbitrary or capricious.’” Porter, 663 F.3d at 1249 (first alteration in the
original) (quoting Cedillo v. Sec’y of HHS, 617 F.3d 1328, 1338 (Fed. Cir. 2010)).
B. Legal Standard
The objections set forth in petitioner’s motion for review relate to the chief special
master’s determination that petitioner did not meet his burden of proving that the influenza
vaccine caused his injury, which he identifies as brachial neuritis. As an initial matter, because
injuries may have significantly different causes and pathologies, “identifying the injury is a
prerequisite to the analysis” of causation. Broekelschen v. Sec’y of HHS, 618 F.3d 1339, 1346
(Fed. Cir. 2010). Indeed, “if the existence and nature of the injury itself is in dispute, it is the
special master’s duty to first determine which injury was best supported by the evidence
presented in the record before applying the Althen test to determine causation of that injury.”
Lombardi v. Sec’y of HHS, 656 F.3d 1343, 1352 (Fed. Cir. 2011); accord Hibbard v. Sec’y of
HHS, 698 F.3d 1355, 1365 (Fed. Cir. 2012) (“If a special master can determine that a petitioner
did not suffer the injury that she claims was caused by the vaccine, there is no reason why the
special master should be required to undertake and answer the separate (and frequently more
difficult) question whether there is a medical theory, supported by ‘reputable medical or
scientific explanation,’ by which a vaccine can cause the kind of injury that the petitioner claims
to have suffered.” (quoting Althen, 418 F.3d at 1278)).
As noted above, to prove causation under the Vaccine Act, a petitioner must
show by preponderant evidence that the vaccination brought about [his] injury by
providing (1) a medical theory causally connecting the vaccination and the injury;
(2) a logical sequence of cause and effect showing that the vaccination was the
reason for the injury; and (3) a showing of a proximate temporal relationship
between vaccination and injury.
Althen, 418 F.3d at 1278; see also Boatmon v. Sec’y of HHS, 941 F.3d 1351, 1355 (Fed. Cir.
2019) (noting that a petitioner must “prove[] all three Althen prongs by a preponderance of the
evidence”). Under the first prong, a petitioner must demonstrate that the vaccine at issue can
cause the injury alleged. Pafford v. Sec’y of HHS, 451 F.3d 1352, 1355-56 (Fed. Cir. 2006). To
make this showing, “a petitioner must provide a reputable medical or scientific explanation that
pertains specifically to the petitioner’s case, although the explanation need only be ‘legally
probable, not medically or scientifically certain.’” Broekelschen, 618 F.3d at 1345 (quoting
Knudsen v. Sec’y of HHS, 35 F.3d 543, 548-49 (Fed. Cir. 1994)). The second prong requires a
petitioner to show “that the vaccine was the ‘but for’ cause of the harm,” Pafford, 451 F.3d at
-7-

Case 1:18-vv-00361-MMS Document 68 Filed 10/25/21 Page 8 of 13
1356, or, in other words, “‘that the vaccine actually caused the alleged symptoms in [the]
particular case,’” id. (quoting the decision of the special master as recited by the trial court).
Establishing the third prong “requires preponderant proof that the onset of symptoms occurred
within a timeframe for which, given the medical understanding of the disorder’s etiology, it is
medically acceptable to infer causation-in-fact.” de Bazan v. Sec’y of HHS, 539 F.3d 1347,
1352 (Fed. Cir. 2008); accord Althen, 418 F.3d at 1281 (describing the requirement as “a
medically-acceptable temporal relationship between the vaccination and the onset of the alleged
injury”). In short, a petitioner is required “to prove, by a preponderance of the evidence, that the
vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about
the injury.” Shyface v. Sec’y of HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999); see also Moberly v.
Sec’y of HHS, 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (“The burden of showing something by
a ‘preponderance of the evidence,’ the most common standard in the civil law, simply requires
the trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the [judge] of the
fact’s existence.” (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr.
for S. Cal., 508 U.S. 602, 622 (1993))).
Generally, “[t]he determination of causation in fact under the Vaccine Act involves
ascertaining whether a sequence of cause and effect is ‘logical’ and legally probable, not
medically or scientifically certain.” Knudsen, 35 F.3d at 548-49. Thus, causation can be
established with circumstantial evidence––in other words, with medical records or medical
opinion. Althen, 418 F.3d at 1279-80 (citing 42 U.S.C. § 300aa-13(a)(1)); see also Knudsen, 35
F.3d at 548 (observing that the “‘logical sequence of cause and effect’ must be supported by a
sound and reliable medical or scientific explanation” (citing Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993); Jay v. Sec’y of HHS, 998 F.2d 979, 984 (Fed. Cir. 1993))). A
petitioner “need not produce medical literature or epidemiological evidence to establish
causation,” but “where such evidence is submitted, the special master can consider it in reaching
an informed judgment as to whether a particular vaccination likely caused a particular injury.”
Andreu v. Sec’y of HHS, 569 F.3d 1367, 1379 (Fed. Cir. 2009). But see LaLonde v. Sec’y of
HHS, 746 F.3d 1334, 1341 (Fed. Cir. 2014) (“In Vaccine Act cases, petitioners must proffer
trustworthy testimony from experts who can find support for their theories in medical literature
in order to show causation under the preponderance of the evidence standard. The level of
specificity of such support may vary from circumstance to circumstance.”).
C. The Chief Special Master’s Consideration of Evidence Related to the Diagnosis of
Petitioner’s Injury Was Not Arbitrary and Capricious
Petitioner’s first enumerated objection is that the chief special master did not consider all
of the evidence in the record supporting a diagnosis of brachial neuritis, and therefore improperly
raised his burden of proof. In particular, petitioner contends that the chief special master
“overemphasized and/or misapprehended the role of ‘muscle weakness and wasting’”;6 failed “to
6 Petitioner contends that “both experts agree that [muscle weakness and wasting] can
sometimes only be seen by expensive testing,” Pet’r’s Mem. 4, but Dr. Nassab’s report does not
mention testing at all, and Dr. Price merely states that electromyography testing “is frequently
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consider that only 30% of the people who develop brachial neuritis have muscle wasting,”7
failed “to consider testimony that [petitioner] had documented weakness and was unable to lift
bags of feed”; failed to consider “direct evidence that petitioner was suffering from brachial
neuritis”––the tingling and numbness petitioner reported to his primary care physician on
December 6, 2016—despite the “classical presentation of brachial neuritis [being] the sudden
onset of intense shoulder pain any time after the triggering event followed by localized weakness
or hypothesia/paresthesia”;8 and did not recognize that “the presence of weakness is not required
for a diagnosis of brachial neuritis.”9 Pet’r’s Mem. 4-5. Respondent counters that the chief
special master properly concluded that the record did not support a diagnosis of brachial neuritis,
remarking that none of petitioner’s treating physicians diagnosed petitioner with brachial
neuritis; that the contemporaneous medical records lack any evidence of muscle weakness or
wasting; that medical literature submitted by petitioner confirms that muscle weakness is a main
characteristic of brachial neuritis; that petitioner’s inability to lift feed bags was never attributed
to muscle weakness (rather than pain or numbness); and that the chief special master’s decision
to credit Dr. Price’s opinion was proper, especially given Dr. Nassab’s failure to explain why
petitioner’s symptoms supported a diagnosis of brachial neuritis.
helpful in distinguishing neuromuscular weakness from weakness secondary to pain,” Resp’t’s
Ex. A at 3.
7 In support of this contention, petitioner relies on a case series of twenty-seven patients
diagnosed with Parsonage-Turner syndrome in which all of the “patients either reported having
shoulder weakness or were found to have shoulder weakness,” Pet’r’s Ex. 13 at 3, and “[n]ine
(30%) shoulders were noted at [magnetic resonance] imaging to have muscular atrophy,” id. at 4.
8 The case report from which petitioner derives this classical presentation provides:
[Parsonage-Turner syndrome] usually occurs after an inciting event . . . .
Historically, the classical form of this syndrome presents with excruciating
pain, anytime up to a few weeks following an inciting event, with subsequent
localized weakness or hypothesia/paresthesia in certain areas innervated by the
affected nerves. However, motor deficits are more common than sensory
involvement.
Pet’r’s Ex. 19 at 1; accord id. at 4 (“The classical presentation typically manifests within the first
few weeks of inciting events and is characterized by pain and motor weakness.”). The onset of
the “right upper extremity weakness” in the patient described in the case report occurred ten
weeks after rotator cuff surgery. Id. at 1.
9 The authors of the case report on which petitioner relies for this proposition do not state
that muscle weakness is not required for a brachial neuritis diagnosis. See generally Pet’r’s Ex.
16. Moreover, they describe a patient who had “mild, but detectable, left deltoid weakness.” Id.
at 3.
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Petitioner primarily focuses on the chief special master’s findings pertaining to muscle
weakness and wasting, challenging the chief special master’s statement that these two symptoms
were important features of brachial neuritis. Petitioner’s argument is not persuasive because the
chief special master’s statement is amply supported by the evidence in the record, including Dr.
Price’s expert report and every piece of medical literature submitted by the parties that addresses
brachial neuritis.10 Furthermore, it was reasonable for the chief special master to rely on Dr.
Price’s opinion that there is a lack of clinical evidence of brachial neuritis in the record. Dr.
Price explained that petitioner’s medical records from December 2016 indicate that petitioner
had normal strength in his left arm, and lack any indication that he lost muscle bulk in his left
arm. Consequently, Dr. Price concluded and the chief special master agreed that the most
reasonable explanations for petitioner’s dropping of objects and inability to lift his left arm was
numbness and pain, respectively, and not muscle weakness.
There is no requirement that a special master discuss every piece of evidence in the
record when making a factual finding. See, e.g., Snyder v. Sec’y of HHS, 36 Fed. Cl. 461, 466
(1996) (“The special master need not discuss every item of evidence in the record so long as the
decision makes clear that the special master fully considered a party’s position and arguments on
point.”), aff’d, 117 F.3d 545 (Fed. Cir. 1997); see also Hazlehurst v. Sec’y of HHS, 604 F.3d
1343, 1352 (Fed. Cir. 2010) (noting that a reviewing court presumes that the fact finder has
considered all of the material in the record, regardless of whether it is mentioned in his or her
decision). In this case, it is readily apparent from the extensive factual recitation in his decision
that the chief special master considered all of the evidence in the record, even if he did not
specifically mention each potentially relevant fact. Further, his factual findings were supported
by that record: brachial neuritis is characterized by muscle weakness and there is limited
evidence in the record that petitioner suffered from muscle weakness. Petitioner had the burden
of establishing that he suffered from brachial neuritis by preponderant evidence, and the chief
special master did not heighten that burden by seeking objective evidence that petitioner
experienced a key symptom of that injury.
In short, it was not arbitrary or capricious for the chief special master to conclude that
petitioner had not established by a preponderance of evidence that he suffered from brachial
neuritis. Because petitioner’s theory of causation depends upon a diagnosis of brachial neuritis,
this conclusion alone requires the court to deny petitioner’s motion for review. Nevertheless, the
court will address petitioner’s other objection to the chief special master’s decision.
D. The Chief Special Master’s Consideration of Evidence Related to the Onset and
Causation of Petitioner’s Injury Was Not Arbitrary and Capricious
In his second enumerated objection, petitioner asserts that the chief special master did not
consider facts and medical literature related to the onset and causation of his injury, specifically
identifying four purported deficiencies. First, petitioner contends that the chief special master
ignored the book chapter on brachial neuritis, which supports the possibility of a one-day onset
of brachial neuritis after the triggering event. Second, in apparent contradiction to his first
10 Only one article does not concern brachial neuritis: the case series concerning the
treatment of neuropathic and musculoskeletal pain with gabapentin.
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argument, his own testimony (which the special master found to be credible), and his own
expert’s report, petitioner contends that the onset of his injury was not immediate because no
symptoms related to his left arm are mentioned in the record of his visit with his primary care
physician on October 16, 2016. Third, petitioner maintains that the record includes evidence that
the influenza vaccination caused an inflammatory response (indicating an immune-mediated
reaction that is generally understood to be the cause of brachial neuritis)11––the tenderness on his
left arm at the vaccination site noted by his primary care physician on December 6, 2016––and
that the chief special master improperly required him to provide evidence of an inflammatory
process when such evidence does not exist due to the cost of obtaining the necessary medical
treatment and testing. Fourth, petitioner asserts that the chief special master did not consider the
causal link purportedly drawn by his primary care physician between the influenza vaccination
and his injury. In response, respondent contends that there is no indication that the chief special
master disregarded evidence in the record concerning the onset of petitioner’s injury, that the
evidence in the record supports the chief special master’s finding that the onset of whatever
injury petitioner sustained from the vaccination was immediate rather than between one and
twenty-eight days, that the evidence in the record supports the chief special master’s finding that
the onset of brachial neuritis could not occur immediately after an influenza vaccination, and that
Dr. Nassab did not explain how the tenderness petitioner exhibited on December 6, 2016, was
evidence of an inflammatory response to the October 5, 2016 influenza vaccination.
In his first two contentions, petitioner complains that the chief special master did not
consider evidence in the record (a book chapter and a medical record) related to the timing of the
onset of brachial neuritis postvaccination. He argues that this evidence, which pertains to the
third Althen prong, demonstrates that his injury did not manifest until at least eleven days after
his influenza vaccination and, to the extent the weight of the evidence instead reflects a one-day
onset, that brachial neuritis can occur between one and twenty-eight days postvaccination.
Petitioner’s argument fails for two reasons. First, there is no indication that the chief special
master failed to consider the book chapter or medical record identified by petitioner. In his
decision, the chief special master described the contents of the medical record and quoted the
portion of petitioner’s response brief for which petitioner relied on the book chapter.12 Second,
the chief special master reasonably found that petitioner’s injury manifested before the one-to-
twenty-eight-day time frame petitioner urges. Petitioner and his ex-wife testified that petitioner
experienced pain and was unable to fully lift his arm immediately after he received the influenza
vaccination. Because the chief special master regarded petitioner and his ex-wife to be honest,
he credited this testimony and found that the onset of petitioner’s injury was immediate (in other
words, before the one-day minimum petitioner espouses). Further, to the extent that petitioner’s
failure to mention his left-arm symptoms to his primary care physician on October 16, 2016,
constitutes evidence of a later onset date, the chief special master was entitled to give little
weight to that evidence, especially since petitioner explained that he was in fact experiencing
11 Petitioner avers that “both experts agree that brachial neuritis is caused by an
inflammatory process,” Pet’r’s Mem. 6, but Dr. Nassab does not make such a statement in his
expert report.
12 The chief special master refers to this portion of petitioner’s response brief as “Pet.
Reply at 12” rather than “Pet. Resp. at 12.”
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symptoms at that time. See, e.g., Koehn v. Sec’y of HHS, 773 F.3d 1239, 1244 (Fed. Cir. 2014)
(remarking “that it is within the Special Master’s discretion to weigh the relevant evidence”).
In his remaining two contentions, petitioner asserts that the chief special master
disregarded evidence in the record indicating that the influenza vaccine did, in fact, cause his
injury––the third prong of Althen. He specifically identifies this evidence as vaccination-site
tenderness that his primary care physician observed in December 2016 and his primary care
physician’s purported linking of his injury to his vaccination. With respect to the former,
petitioner does not identify any evidence in the record supporting the proposition that
vaccination-site tenderness two months postvaccination indicates an inflammatory response to
the vaccine. With respect to the latter, the record lacks any evidence that petitioner’s primary
care physician ever linked petitioner’s left-arm symptoms to his vaccination. There is, however,
an urgent care center record on which it is noted that petitioner had a history of left-arm
neuropathy due to the influenza vaccine. But there is no indication that this notation reflects the
treating physician’s determination that petitioner’s injury was caused by the vaccine.13
More generally, petitioner claims that by requiring him to produce “evidence, direct or
indirect, of an inflammatory process that could be attributed to an immune reaction,” Bull, slip
op. at 21, the chief special master was penalizing him for lacking the financial resources to visit a
medical provider more frequently or undergo testing that could confirm his diagnosis. While the
court is sympathetic to petitioner’s situation, the Vaccine Act provides no mechanism for the
special masters or the court to take into account a petitioner’s financial circumstances when
ascertaining whether he or she has provided a preponderance of evidence that a vaccine caused
the complained-of injury. Moreover, it does not heighten petitioner’s burden to require him to
provide such evidence.
In sum, it was not arbitrary or capricious for the chief special master to conclude that
petitioner did not establish by a preponderance of evidence that his injury manifested within a
medically acceptable time frame postvaccination and that his injury was actually caused by the
influenza vaccine.
III. CONCLUSION
As the chief special master found, the evidence in the record reflects that petitioner
experienced a painful, debilitating injury to his left arm that manifested when he received an
influenza vaccination on October 5, 2016, and that he continues to suffer residual effects from
that injury. And it very well may be that the vaccine caused that injury. But, given petitioner’s
insistence that his injury was brachial neuritis, the chief special master could not reach that
conclusion in the absence of preponderant evidence that petitioner actually suffered from
brachial neuritis and that the influenza vaccine caused that brachial neuritis. The chief special
master reasonably concluded that petitioner had not satisfied his burden on either point.
13 Indeed, petitioner testified that he “might have” given that history to the providers at
the urgent care center. Hr’g Tr. 64.
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Accordingly, the court DENIES petitioner’s motion for review and SUSTAINS the decision of
the chief special master. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Senior Judge
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