VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01450 Package ID: USCOURTS-cofc-1_18-vv-01450 Petitioner: Vahan Eloyan Filed: 2018-09-21 Decided: 2025-09-11 Vaccine: influenza; Tdap Vaccination date: 2015-12-14 Condition: claimed transverse myelitis; cervical spondylotic myelopathy found more likely Outcome: denied Award amount USD: AI-assisted case summary: On September 21, 2018, Vahan Eloyan filed a petition alleging that influenza and Tdap vaccines administered on December 14, 2015 caused transverse myelitis. Before vaccination he had cerebral palsy and diabetes. After vaccination, he developed spinal-cord symptoms and was diagnosed by some providers with transverse myelitis, but respondent disputed that diagnosis. Special Master Katherine E. Oler found respondent's experts more persuasive. At the entitlement hearing, she concluded that the record supported cervical spondylotic myelopathy rather than transverse myelitis. The ruling emphasized that Mr. Eloyan had not ruled out cord compression, had not shown that his condition reached its nadir within the timing required for an acute transverse myelitis diagnosis, and had not shown that three oligoclonal bands in cerebrospinal fluid were diagnostic of transverse myelitis. The petition was dismissed on November 17, 2023. Mr. Eloyan later sought relief from judgment, arguing that his prior attorney's representation and the special master's view of the evidence had affected the result. Special Master Jennifer A. Shah denied Rule 60(b) relief on July 8, 2024. Mr. Eloyan, then proceeding pro se, sought review in the Court of Federal Claims. Judge David A. Tapp denied review on September 11, 2025, holding that Special Master Shah had not abused her discretion. No injury compensation was awarded. A separate fee/cost award in the record related to litigation expenses only. Theory of causation field: Adult petitioner; influenza and Tdap vaccines December 14, 2015; claimed transverse myelitis. DENIED/DISMISSED. Respondent disputed TM and argued cervical spondylotic myelopathy/cord compression. SM Katherine E. Oler credited respondent's experts, finding no proven TM diagnosis, no exclusion of compressive myelopathy, no required nadir timing, and CSF oligoclonal bands not diagnostic. SM Jennifer A. Shah denied Rule 60(b) relief; Judge David A. Tapp denied review September 11, 2025. Petition filed September 21, 2018. No injury award; fee award was litigation fees only. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_18-vv-01450-1 Date issued/filed: 2024-01-02 Pages: 13 Docket text: PUBLIC DECISION (Originally filed: 11/17/2023) regarding 76 DECISION Dismissing Petition. Signed by Special Master Katherine E. Oler. (sl) Service on parties made. -------------------------------------------------------------------------------- Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 1 of 13 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1450V Filed: November 17, 2023 * * * * * * * * * * * * * * * * * * * * * * * * * * * * VAHAN ELOYAN, * * Petitioner, * * * v. * * SECRETARY OF HEALTH AND * * HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * Elizabeth Muldowney, Sands Anderson PC, Richmond, VA, for Petitioner Michael Lang, U.S. Department of Justice, Washington, DC, for Respondent DECISION ON ENTITLEMENT1 Oler, Special Master: On September 21, 2018, Vahan Eloyan (“Petitioner” or “Mr. Eloyan”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Act” or “Program”). The petition alleges that Mr. Eloyan developed Transverse Myelitis (“TM”) as a result of the flu vaccine and the tetanus, diphtheria, acellular pertussis (“Tdap”) vaccine he received on December 14, 2015. Pet. at 1, ECF No. 1. 1 Because this Decision contains a reasoned explanation for the action in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 1 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 2 of 13 Upon review of the evidence submitted in this case, I find that Petitioner has not preponderantly demonstrated that he suffers from TM. The petition is accordingly dismissed. I. Procedural History Mr. Eloyan filed his petition on September 21, 2018. Pet. at 1. He filed evidence in support of his claim on September 26, 2018 (Exs. 1-19) and on July 29, 2019 (Exs. 23-28). Respondent filed his Rule 4(c) Report on January 17, 2020, disputing that Petitioner developed TM and recommending that the case be dismissed. Resp’t’s Rep. at 17-18, 20, ECF No. 26. After that, Petitioner submitted expert reports from neurologist Dr. Salvatore Napoli. Exs. 29, 51. Respondent countered with expert reports from neurologist Dr. Brian Callaghan (Ex. A), immunologist Dr. Ross Kedl (Ex. C), and neuroradiologist Dr. William Zucconi (Ex. E). After Petitioner filed Dr. Napoli’s second expert report, he requested that I conduct a Rule 5 conference and discuss my preliminary views of the case. Accordingly, on November 10, 2021, I met with counsel for both sides via telephone. During this session, I informed the parties that I found Drs. Callaghan and Zucconi, Respondent’s experts, to be persuasive regarding Petitioner’s diagnosis, specifically that Petitioner does not have TM and instead likely has a cervical spondylotic myelopathy (“CSM”). See Rule 5 Order, dated November 10, 2021; ECF No. 52. I provided specific and detailed reasons for this opinion. Id. At the conclusion of the conference, I informed the parties that I did not believe Petitioner had a viable path forward in the successful prosecution of his petition. Accordingly, I recommended that he dismiss his claim. Id. Ms. Muldowney requested time to speak with her client; I ordered that Petitioner file a status report in 45 days indicating how he would like to proceed. Id. at 2. On December 27, 2021, Petitioner filed a status report requesting that I schedule his case for an entitlement hearing. ECF No. 53. After receiving input from the parties on mutually agreeable dates, I scheduled the hearing for November 14-16, 2023. Scheduling Order dated March 9, 2022. The parties filed pre-hearing briefs on October 6 and October 27, 2023. ECF Nos. 63, 69. I held an entitlement hearing via Zoom on November 15, 2023, where I heard testimony from Dr. Napoli, Dr. Callaghan, Dr. Zucconi, and Dr. Kedl. At the conclusion of the hearing, I told the parties that in my view, preponderant evidence supports the diagnosis of cervical spondylotic myelopathy, and not TM. I further stated that I would reduce this finding to writing. II. Applicable Law A. Petitioner’s Burden in Vaccine Program Cases Under the Vaccine Act, when a petitioner suffers an alleged injury that is not listed in the Vaccine Injury Table, a petitioner may demonstrate that he suffered an “off-Table” injury. § 11(c)(1)(C)(ii). 2 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 3 of 13 In attempting to establish entitlement to a Vaccine Program award of compensation for an off-Table claim, a petitioner must satisfy all three of the elements established by the Federal Circuit in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005). Althen requires that petitioner establish by preponderant evidence that the vaccination he received caused 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.” Id. at 1278. Under the first prong of Althen, 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). Proof that the proffered medical theory is reasonable, plausible, or possible does not satisfy a petitioner’s burden. Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1359-60 (Fed. Cir. 2019). 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, v. Sec’y of Health & Hum. Servs., 440 F.3d 1325-26 (Fed. Cir. 2006)). However, special masters are “entitled to require some indicia of reliability to support the assertion of the expert witness.” Boatmon, 941 F.3d at 1360, quoting Moberly, 592 F.3d at 1324. Special Masters, despite their expertise, are not empowered by statute to conclusively resolve what are complex scientific and medical questions, and thus scientific evidence offered to establish Althen prong one is viewed “not through the lens of the laboratorian, but instead from the vantage point of the Vaccine Act’s preponderant evidence standard.” Id. at 1380. Accordingly, special masters must take care not to increase the burden placed on petitioners in offering a scientific theory linking vaccine to injury. Contreras v. Sec’y of Health & Hum. Servs., 121 Fed. Cl. 230, 245 (2015), vacated on other grounds, 844 F.3d 1363 (Fed. Cir. 2017); see also Hock v. Sec’y of Health & Hum. Servs., No. 17-168V, 2020 U.S. Claims LEXIS 2202 at *52 (Fed. Cl. Spec. Mstr. Sept. 30, 2020). 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 (“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). However, medical records and/or statements of a treating physician’s views 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”). As with expert testimony offered to establish a theory of causation, the opinions or 3 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 4 of 13 diagnoses of treating physicians are only as trustworthy as the reasonableness of their suppositions or bases. The views of treating physicians should also be weighed against other, contrary evidence also present in the record. Hibbard v. Sec’y of Health & Hum. Servs., 100 Fed. Cl. 742, 749 (2011), aff’d, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec’y of Health & Hum. Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review den’d, 100 Fed. Cl. 344, 356 (2011), aff’d without opinion, 475 Fed. App’x 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 also coincide 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. den’d after remand, 105 Fed. Cl. 353 (2012), aff’d mem., 503 F. App’x 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 review den’d (Fed. Cl. Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014). B. Law Governing Analysis of Fact Evidence The process for making factual determinations in Vaccine Program cases begins with analyzing the medical records, which are required to be filed with the petition. 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 413, 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 created contemporaneously with the events they describe are generally trustworthy because they “contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions,” where “accuracy has an extra premium.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378 (Fed. Cir. 2021) citing Cucuras, 993 F.2d at 1528. This presumption is based on the linked proposition 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. 4 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 5 of 13 Cl. Spec. Mstr. Apr. 10, 2013), claim den., 2020 WL 5641872 (Fed. Cl. Spec. Mstr. Aug. 26, 2020), rev. den., 152 Fed. Cl. 782 (2021), rev’d and remanded, 34 F.4th 1350 (Fed. Cir. 2022). 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 Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff’d per curiam, 968 F.2d 1226 (Fed. Cir. 1992), cert. den’d, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States v. U.S. 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.”)). However, there are situations in which compelling oral testimony may be more persuasive than written records, such as where records are deemed to be incomplete or inaccurate. Campbell v. Sec’y of Health & 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 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, such as testimony at hearing, there must be evidence that this decision was the result of a rational determination. Burns, 3 F.3d at 417. C. Analysis of Expert Testimony Establishing a sound and reliable medical theory connecting the vaccine to the injury 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 Pharm., Inc., 509 U.S. 579, 594-96 (1993). See Cedillo v. Sec’y of Health & Hum. Servs., 5 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 6 of 13 617 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. Daubert factors are employed by judges to exclude evidence that is unreliable and potentially confusing to a jury. In Vaccine Program cases, these factors are used in the weighing of the reliability of scientific evidence. 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”). Respondent frequently offers one or more experts of his own in order to rebut a petitioner’s case. Where both sides offer expert testimony, a special master’s decision may be “based on the credibility of the experts and the relative persuasiveness of their competing theories.” Broekelschen 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 proffered.” Snyder, 88 Fed. Cl. at 743 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). A “special master is entitled to require some indicia of reliability to support the assertion of the expert witness.” Moberly, 592 F.3d at 1324. Weighing the relative persuasiveness of competing expert testimony, based on a particular expert’s credibility, is part of the overall reliability analysis to which special masters must subject expert testimony in Vaccine Program cases. Id. at 1325-26 (“[a]ssessments as to the reliability of expert testimony often turn on credibility determinations”). D. Consideration of Medical Literature Although this decision discusses some but not all of the medical literature in detail, I reviewed and considered all of the medical records and literature submitted in this matter. See Moriarty v. Sec’y of Health & Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“We generally presume that a special master considered the relevant record evidence even though [s]he does not explicitly reference such evidence in h[er] decision.”); Simanski v. Sec’y of Health & Hum. Servs., 115 Fed. Cl. 407, 436 (2014) (“[A] Special Master is ‘not required to discuss every piece of evidence or testimony in her decision.’” (citation omitted)), aff’d, 601 F. App’x 982 (Fed. Cir. 2015). III. Analysis Because Petitioner does not allege an injury listed on the Vaccine Injury Table, his claim is classified as “off-Table.” As noted above, to prevail on an “off-Table” claim, Petitioner must 6 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 7 of 13 prove by preponderant evidence that he suffered an injury and that this injury was caused by the vaccination at issue. See Capizzano, 440 F.3d at 1320. Petitioner’s medical history is not in dispute and is detailed in the pre-hearing briefs presented by both sides, as well as in each of the expert reports. Notably, Petitioner’s past medical history is significant for cerebral palsy; however, Petitioner was active and lived independently at the time of vaccination. I have not summarized Petitioner’s entire medical history, but instead discuss pertinent points in the analysis below. A. Petitioner Has Not Carried His Burden of Proof 1. Acute Transverse Myelitis and Cervical Spondylotic Myelopathy Transverse means “acting, lying, or being across.”3 Myelitis simply refers to inflammation of the spinal cord.4 Accordingly, TM is a “myelitis in which the functional effect of the lesions spans the width of the entire cord at a given level.”5 TM is a heterogeneous group of inflammatory disorders of the spinal cord “resulting in motor, sensory, and autonomic dysfunction.” Transverse Myelitis Consortium Working Group, Proposed diagnostic criteria and nosology of acute transverse myelitis, 59 NEUROLOGY 499-505, 500 (2002); (filed as Ex. A1) (hereinafter “AAN Criteria”). TM “is characterized clinically by acutely or subacutely developing symptoms and signs of neurologic dysfunction…” Id. at 499. The American Academy of Neurology (“AAN”) Criteria were created by neurologists with expertise in spinal cord disease to aid clinicians in evaluating patients with possible acute transverse myelitis. Dr. Zucconi defined as spondylosis as a term that refers to “structural changes that occur in the spine secondary to disc degeneration.” Ex. E (“Zucconi Rep.”) at 11. These changes include disc bulging, herniation, and bone overgrowth (spurring). Id. These processes can result in narrowing of the spinal cord and the neural foramen, which in turn can cause myelopathy6 and radiculopathy. Id. Cervical spondylotic myelopathy is likely when the anterior-posterior diameter of the spinal canal is less than 10mm. Zucconi Rep. at 11. Unsteady gait, neck pain, and hand weakness are common symptoms that are consistent with a cervical spondylotic myelopathy. 3 Transverse, MERRIAM-WEBSTER.COM, www.merriam-webster.com/dictionary/transverse (last visited Nov. 16, 2023). 4 DORLAND’S MEDICAL DICTIONARY ONLINE, www.dorlandsonline.com/dorland/definition?id=32680 (last visited Nov. 16, 2023) (“DORLAND’S”). 5 DORLAND’S, www.dorlandsonline.com/dorland/definition?id=91212&searchterm=transverse+myelitis (last visited Nov. 16, 2023). 6 Myelopathy is “any of various functional disturbances or pathologic changes in the spinal cord, often referring to nonspecific lesions in contrast to the inflammatory lesions of myelitis.” DORLAND’S, www.dorlandsonline.com/dorland/definition?id=28172 (last visited Nov. 16, 2023). 7 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 8 of 13 2. There is not Preponderant Evidence that Petitioner Suffers from TM As a threshold matter, a petitioner must establish he suffers from the condition for which he seeks compensation. Broekelschen, 618 F.3d at 1346. “The function of a special master is not to ‘diagnose’ vaccine-related injuries, but instead to determine ‘based on the record as a whole and the totality of the case, whether it has been shown by a preponderance of the evidence that a vaccine caused the [petitioner]’s injury.’” Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1382 (Fed. Cir. 2009) (quoting Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)). “Although the Vaccine Act does not require absolute precision, it does require the petitioner to establish an injury – the Act specifically creates a claim for compensation for ‘vaccine-related injury or death.’” Stillwell v. Sec’y of Health & Hum. Servs., 118 Fed. Cl. 47, 56 (2014) (quoting 42 U.S.C. § 300aa-11(c)). Accordingly, the Federal Circuit has concluded that it is “appropriate for the special master to first determine what injury, if any, [is] supported by the evidence presented in the record” before applying a causation analysis pursuant to Althen v. Secretary of Health & Human Services, 418 F.3d 1274 (Fed. Cir. 2005). Lombardi v. Sec’y of Health & Hum. Servs., 656 F.3d 1343, 1351-53 (Fed. Cir. 2011). For the reasons discussed below, I find that Petitioner has not presented preponderant evidence that he suffers from TM. As this issue is dispositive,7 I have not analyzed the Althen prongs. The AAN Working Group lists the following inclusion criteria that support an acute TM diagnosis: • Development of sensory, motor, or autonomic dysfunction attributable to the spinal cord • Bilateral signs and/or symptoms (though not necessarily symmetric) • Clearly defined sensory level • Exclusion of extra-axial compressive etiology by neuroimaging (MRI or myelography; CT of spine not adequate) • Inflammation within the spinal cord demonstrated by CSF pleocytosis or elevated IgG index or gadolinium enhancement. If none of the inflammatory criteria is met at symptom onset, repeat MRI and lumbar puncture evaluation between 2 and 7 d following symptom onset meet criteria • Progression to nadir between 4 h and 21 d following the onset of symptoms (if patient awakens with symptoms, symptoms must become more pronounced from point of awakening) AAN Criteria at 500. Petitioner does not meet two of these criteria: he has not excluded a compressive etiology and he did not reach nadir between four hours and 21 days after the onset of his condition. 7 Petitioner did not present evidence that vaccination caused or significantly aggravated his cord compression. 8 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 9 of 13 a. Compressive Etiology Dr. Zucconi reviewed Petitioner’s imaging studies both in his expert report and at the entitlement hearing. He opined that these images are consistent with a compressive myelopathy. Zucconi Rep. at 5. The presence of a compressive etiology eliminates TM as a diagnosis. AAN Criteria at 500. Petitioner had an initial MRI of the cervical spine on May 26, 2016, approximately six months after vaccination. Ex. 7 at 659-60. The MRI shows “narrowing of the cervical spinal canal with superimposed moderate disc degeneration at the C3-C4 level.” Zucconi Rep. at 5. There is also disc bulging and endplate spurring; and further, there is no fluid surrounding the spinal cord at the C3-C4 level. Id. Dr. Zucconi noted that spinal cord edema extends above and below the level of compression from C2-C3 to C5. Id. Although Dr. Napoli testified that the presence of inflammation both upstream and downstream from the compressed disc means that compression alone cannot explain the MRI findings, this testimony was unpersuasive.8 Dr. Zucconi testified that the compression of Petitioner’s cord at this level was sufficient to push the spinal fluid both above and below the C3-C4 level, because the fluid had no place else to go. He further testified that he sees this frequently in cases of spinal cord compression. Dr. Callaghan agreed, testifying that this is very typical. Dr. Zucconi described that cervical spondylotic myelopathy is likely when the anterior-posterior diameter of the spinal canal is less than 10mm; Petitioner’s was between 7.5- 8.0mm. Id. at 11.With respect to this initial MRI, Dr. Zucconi opined that “[t]hese findings are diagnostic of spondylotic compressive myelopathy and spinal cord injury.” Id. at 5. Figure 1: 5/26/16 MRI showing severe spinal stenosis, cord deformity and abnormal signal entered at the C3-4 disc level. Zucconi Rep. at 6. 8 I have credited Dr. Zucconi’s opinion over that of Dr. Napoli because Dr. Zucconi, unlike Dr. Napoli, is a board certified radiologist with a certificate of added qualification in neuroradiology. Zucconi Rep.at 1. He practices exclusively as a neuroradiologist and has done so for approximately 15 years. Id. 9 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 10 of 13 Petitioner had another MRI of the cervical spine on July 8, 2016, about one and one half months after the previous study. Ex. 3 at 8. Dr. Zucconi testified that this MRI was essential unchanged from the MRI on May 26, 2016, indicating that there has been no healing or improvement in Petitioner’s condition. Dr. Zucconi opined this is what he would expect to see in a case of cervical spondylotic myelopathy. Petitioner had an MRI of the cervical spine on October 7, 2016. Ex. 3 at 7. According to Dr. Zucconi, “the degree of cord compression and spinal stenosis has not changed,” however, the degree of enhancement has progressed, indicating there is an ongoing insult. Zucconi Rep. at 9- 10. This is despite the fact that Petitioner underwent a five day course of plasmapheresis and IV Solumedrol beginning on July 12, 2016. Ex. 11 at 34. Dr. Zucconi opined that Petitioner’s progression on imaging is consistent with a cord compression, and would be expected if the injury is not alleviated. Ultimately, a multi-disciplinary team at UCSF determined that Petitioner was suffering from spinal cord compression. Ex. 16 at 6. On January 8, 2018, Petitioner underwent a cervical laminoplasty.9 Id. at 7. The next day, the medical record notes that he “feels better, the numbness in his toes is improved.” Id. Petitioner had his first follow up after surgery on May 28, 2019. Ex. 46 at 1. The record documents that Petitioner had made improvements. “Prior to surgery, he had pain and numbness in his arms left worse than right and now just in his hands. Also, he was unable to walk prior to surgery. He can now walk 20-30 feet with the assistance of his caregivers.” Id. The fact that Petitioner was evaluated by a team of physicians at UCSF, one of the world’s most prestigious medical treatment centers with a top neurology program, and that this team concluded Petitioner suffered from cord compression and not TM is a significant point. The fact that surgery alleviated some of Petitioner’s symptoms is further compelling evidence that TM is not his correct diagnosis. Treatment for TM was ineffective and Petitioner continued to deteriorate after receiving plasmapheresis and IV Solumedrol, which are “appropriate treatments for transverse myelitis.” Ex. A (“Callaghan Rep.”) at 5.10 In weighing evidence, special masters are expected to consider the views of treating doctors. Capizzano, 440 F.3d at 1326. The views of treating doctors about the appropriate diagnosis are often persuasive because the doctors have direct experience with the patient whom they are diagnosing. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 3640610, at *20 (Fed. Cl. Spec. Mstr. May 22, 2015). Although several of Petitioner’s treating physicians diagnosed him with TM, the Court is not obliged to adopt the same view. See 42 U.S.C. §§ 300aa-13(b)(1) (providing that “[a]ny such 9 Laminoplasty: “incision completely through one lamina of a vertebral arch with creation of a trough in the contralateral lamina; the vertebral arch is then opened like a door with the trough acting as a hinge; performed to relieve compression of the spinal cord or nerve roots.” DORLAND’S, https://www.dorlandsonline.com/dorland/definition?id=27536 (last visited Nov. 17, 2023). 10 Dr. Callaghan testified at the entitlement hearing that Petitioner did have some improvement after steroids. He testified that this is expected because steroids make people feel better. However, the improvement was temporary, and Petitioner continued to deteriorate after treatment. 10 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 11 of 13 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”). The ultimate conclusion from the interdisciplinary team at UCSF, and the subsequent successful surgery, carries significant weight in my analysis. There is preponderant evidence that Petitioner’s MRIs demonstrate the presence of a compressive etiology, which excludes a TM diagnosis under the AAN Criteria. b. Onset to Nadir Mr. Eloyan received the flu and Tdap vaccines on December 14, 2015. Ex. 17 at 2. Petitioner contends that his medical condition changed at the end of January.11 On January 25, 2016, Petitioner reported hand weakness, balance problems, as well as neck and lower back pain to his chiropractor. Ex. 5 at 10. The tingling and weakness in Petitioner’s lower extremities increased slowly over time and spread to his upper extremities. Ex. 4 at 2. On May 26, 2016, Petitioner was admitted to the hospital because his “ambulatory status was dramatically reduced.” Ex. 7 at 562. Dr. Stewart offered Petitioner a wheelchair, but he declined. Id. On May 31, 2016, he was unable to walk. Id. at 330. Petitioner was wheelchair bound at a medical appointment in July of 2016 and August of 2016. Ex. 3 at 2; Ex. 11 at 184. A note from September 7, 2016, documents that Petitioner had improved after his hospitalization, although he was not back to baseline. Ex. 11 at 198. An entry from one of Petitioner’s treating physicians at UCSF summarized his clinical course. The patient reports symptom onset in January 2016, when he began experiencing a gradual progressive onset of weakness and numbness in one of his arms and legs. … Around the same time he was also having difficulty with balance, and his parents report that he was falling. … Between January 2016 and April 2016 the patient reports that the frequency of his falls was increasing and his grip strength was decreasing but he was still ambulatory and got married. He was having trouble walking up the stairs at his parents[’] house. Then he reports spread of symptoms to the other side of his body, both leg[s] and hand[s]. Again, all slowly progressive. He reports that his symptoms eventually progressed to “complete paralysis” of his arms and legs. … Between September 2016 and present the patient reports minimal improvement in his symptoms. Ex. 16 at 983-84. These records suggest that nadir occurred around early September 2016. This finding is in accord with Dr. Callaghan’s opinion expressed in his expert report and at the 11 However, Petitioner’s chiropractic record from December 7, 2015, where he reported balance issues, hand weakness, and neck and low back pain suggests that his condition began before vaccination. Ex. 5 at 10. Accordingly, I have assumed, but do not conclude, that Petitioner’s condition began on January 25, 2016, for the purpose of discussing the onset to nadir of his condition. 11 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 12 of 13 entitlement hearing. See, e.g., Callaghan Rep. at 4 (noting “progression of symptoms over at least 10 months from December to September.”). The progression of Petitioner’s symptoms is well outside that outlined in the AAN Criteria and is inconsistent with a diagnosis of TM. Kelley et al., describe that “patients with transverse myelitis characteristically reach a nadir of deficit within 2 weeks.” Kelley et al., Compressive Myelopathy Mimicking Transverse Myelitis, 16 THE NEUROLOGIST 2, 120-22 (2010) (filed as Ex. E-10). Dr. Callaghan testified at the entitlement hearing that months and months of progression are completely incompatible with TM. I agree with this assessment. I and other special masters have found that a lengthy period of time between onset of symptoms and nadir suggests that a Petitioner does not have acute TM. Goodwin v. Sec’y of Health & Hum. Servs., No. 16-1676V, 2023 WL 7924657, at *30 (Fed. Cl. Spec. Mstr. Oct. 23, 2023) (concluding that an interval of 41 days from onset to nadir was not consistent with acute TM); Murray v. Sec’y of Health & Hum. Servs., No. 19-1976, 2022 WL 17853378, at *9 (Fed. Cl. Spec. Mstr. Nov. 30, 2022) (finding a six month plus progression of neurologic problems from onset to nadir is not consistent with TM); Pearson v. Sec’y of Health & Hum. Servs., No. 16-09V, 2019 WL 3852633, at *15 (Fed. Cl. Spec. Mstr. July 31, 2019) (noting that “most TM sufferers advance from onset of symptoms to maximum deficit within weeks, days, or even hours.”). c. Oligoclonal Bands Petitioner had three oligoclonal bands in his CSF that were not present in the serum. Ex. 7 at 652. Dr. Napoli testified at the entitlement hearing that the presence of oligoclonal bands made this case a “slam dunk” in favor of a TM diagnosis because there should be zero bands if Petitioner had a cord compression. Dr. Callaghan disagreed and noted that the presence of oligoclonal bands is not included in the diagnostic criteria for TM. Further, he testified that the test’s threshold to report the result as positive was four bands; therefore, this was a negative result. In addition, Dr. Schubert, one of Petitioner’s treating physicians stated the following: The presence of oligoclonal bands in the CSF is of unclear significance in this case, as these have been reported in a wide variety of conditions including structural CNS lesions and can not be used in isolation to exclude a structural etiology as the driver of pathology (Cohen and Steiner. JAMA Neurology 2010. Cerebrospinal Fluid Oligoclonal IgG Bands in Patients With Spinal Arteriovenous Malformation and Structural Central Nervous System Lesions). Ex. 16 at 989. Accordingly, I do not find the presence of three oligoclonal bands in Petitioner’s CSF to be determinative or even especially persuasive evidence in support of a TM diagnosis. Ultimately, the fact that Petitioner’s presentation did not meet the AAN Criteria for acute TM constitutes compelling evidence that TM is not his correct diagnosis. His MRIs demonstrated that he suffered from spinal cord compression. The slow progressive course of his condition over at least eight months is not “acute” and is well in excess of the 21-day outer limit delineated in the AAN Criteria. His lack of imaging improvement after plasma exchange, and his notable improvement after cervical laminoplasty provide further strong support against a diagnosis of TM. 12 Case 1:18-vv-01450-DAT Document 81 Filed 01/02/24 Page 13 of 13 Petitioner has my sympathy for the many years of suffering he has experienced as a result of his condition. However, my decision must be based on the evidence in the record. IV. Conclusion Upon careful evaluation of all the evidence submitted in this matter, including the medical records, the affidavits and testimony, as well as the experts’ opinions and medical literature, I conclude that Petitioner has not shown by preponderant evidence that he is entitled to compensation under the Vaccine Act. His petition is therefore DISMISSED. The clerk shall enter judgment accordingly.12 IT IS SO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master 12 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 13 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_18-vv-01450-cl-extra-10734450 Date issued/filed: 2024-08-23 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10267860 -------------------------------------------------------------------------------- CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1450V ************************* * * VAHAN ELOYAN, * * Special Master Katherine E. Oler * Petitioner, * * Originally Filed: July 8, 2024 v. * * * SECRETARY OF HEALTH AND * Reissued for Public Availability: August HUMAN SERVICES, * 23, 2024 1 * * Respondent. * * ************************* * Elizabeth Muldowney, Sands Anderson PC, Richmond, VA, for Petitioner Michael Lang, U.S. Department of Justice, Washington, DC, for Respondent DECISION AWARDING ATTORNEYS’ FEES AND COSTS 2 Oler, Special Master: On September 21, 2018, Vahan Eloyan (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.3 (the 1 Pursuant to Vaccine Rule 18(b), this decision was initially filed on July 8, 2024, and the parties were afforded 14 days to propose redactions. The parties did not propose any redactions. Accordingly, this decision is reissued in its original form for posting on the court’s website. 2 Because this Decision contains a reasoned explanation for the action in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 3 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. 1 “Vaccine Act” or “Program”). ECF No. 1 (“Pet.”). Petitioner alleges he developed transverse myelitis (“TM”) as a result of the influenza (“flu”) vaccine and the tetanus, diphtheria, acellular pertussis (“Tdap”) vaccine he received on December 14, 2015. Pet. at 1. On November 21, 2023, I issued a decision dismissing this case because Petitioner had not preponderantly demonstrated that he suffered from TM. ECF No. 76 (hereinafter “Dismissal Decision”) at 2. Petitioner filed a motion for final attorneys’ fees and costs on January 8, 2024, requesting a total of $125,935.67. ECF No. 82 (hereinafter “Fees Application”). Respondent responded to the motion on January 9, 2024, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the Court “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” ECF No. 84 (“Fees Resp.”) at 2, 3. Petitioner filed a reply on January 9, 2024. ECF No. 85. I hereby GRANT IN PART Petitioner’s application and award a total of $122,493.67 in attorneys’ fees and costs. I. Legal Standard Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful, they are eligible so long as the Special Master finds that th e petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, although the petition was eventually dismissed, the undersigned finds that the claim possessed good faith and reasonable basis while it was pending before the Court and notes that Respondent has also indicated in his response that he is s atisfied both have been met as well. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs. It is “well within the special master's discretion” to determine the reasonableness of fees. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys' fees and costs.”). Applications for attorneys' fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable . Id. A. Good Faith The good faith requirement is met through a subjective inquiry. Di Roma v. Sec’y of Health 2 & Hum. Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). Such a requirement is a “subjective standard that focuses upon whether [P]etitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Hum. Servs., No. 99- 544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Without evidence of bad faith, “petitioners are entitled to a presumption of good faith.” Grice v. Sec’y of Health & Hum. Servs., 36 Fed. Cl. 114, 121 (1996). Thus, so long as Petitioner had an honest belief that her claim could succeed, the good faith requirement is satisfied. See Riley v. Sec’y of Health & Hum. Servs., No. 09-276V, 2011 WL 2036976, at *2 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citing Di Roma, 1993 WL 496981, at *1); Turner, 2007 WL 4410030, at *5. B. Reasonable Basis Unlike the good-faith inquiry, an analysis of reasonable basis requires more than just a petitioner’s belief in his claim. Turner v. Sec’y of Health & Hum. Servs., No. 99-544V, 2007 WL 4410030, at *6-7 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Instead, the claim must be supported by objective evidence. Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 636 (Fed. Cir. 2017). While the statute does not define the quantum of proof needed to establish reasonable basis, it is “something less than the preponderant evidence ultimately required to prevail on one’s vaccine-injury claim.” Chuisano v. United States, 116 Fed. Cl. 276, 283 (2014). The Court of Federal Claims affirmed in Chuisano that “[a]t the most basic level, a petitioner who submits no evidence would not be found to have reasonable basis….” Id. at 286. The Court in Chuisano found that a petition which relies on temporal proximity and a petitioner’s affidavit is not sufficient to establish reasonable basis. Id. at 290; see also Turpin v. Sec'y Health & Hum. Servs., No. 99-564V, 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005) (finding no reasonable basis when petitioner submitted an affidavit and no other records); Brown v. Sec'y Health & Hum. Servs., No. 99-539V, 2005 WL 1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis when petitioner presented only e-mails between her and her attorney). The Federal Circuit has affirmed that “more than a mere scintilla but less than a preponderance of proof could provide sufficient grounds for a special master to find reasonable basis.” Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1346 (Fed. Cir. Aug. 19, 2020) (finding Petitioner submitted objective evidence supporting causation when she submitted medical records and a vaccine package insert); see also James-Cornelius, 984 F.3d at 1380 (finding that “the lack of an express medical opinion on causation did not by itself negate the claim's reasonable basis.”). Temporal proximity between vaccination and onset of symptoms is a necessary component in establishing causation in non-Table cases, but without more, temporal proximity alone “fails to establish a reasonable basis for a vaccine claim.” Chuisano, 116 Fed. Cl. at 291. “[I]n deciding reasonable basis the [s]pecial [m]aster needs to focus on the requirements for a petition under the Vaccine Act to determine if the elements have been asserted with sufficient evidence to make a feasible claim for recovery.” Santacroce v. Sec’y of Health & Hum. Servs., No. 15-555V, 2018 WL 405121, at *7 (Fed. Cl. Jan. 5, 2018). Special masters cannot award compensation “based on the claims of petitioner alone, unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). 3 When determining if a reasonable basis exists, many special masters and judges consider a myriad of factors. The factors to be considered may include “the factual basis of the claim, the medical and scientific support for the claim, the novelty of the vacc ine, and the novelty of the theory of causation.” Amankwaa, 138 Fed. Cl. at 289. This approach allows the special master to look at each application for attorneys’ fees and costs on a case-by-case basis. Hamrick v. Sec’y of Health & Hum. Servs., No. 99-683V, 2007 WL 4793152, at *4 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). II. Discussion A. Good Faith and Reasonable Basis Respondent has not raised any specific objection to the good faith or reasonable basis for this claim and leaves such a determination to my discretion. See Fees Resp. at 2-4. I find that the petition was filed in good faith. With regard to reasonable basis, an entitlement hearing was held on November 15, 2023. See Minute Entry on 11/15/2023. Dr. Salvatore Napoli, a neurologist, testified during the entitlement hearing that Petitioner had transverse myelitis. Although I did not find Dr. Napoli persuasive for purposes of entitlement, this constitutes sufficient evidence to satisfy the reasonable basis standard. See Decision Dismissing Petition, ECF No. 76. B. Attorneys’ Fees Petitioner retained Ms. Elizabeth Muldowney to represent him in this matter. See Fees App. Petitioner requests a total of $109,903.90 in attorneys’ fees. Ex. 64 at 1. 1. Reasonable Hourly Rate A reasonable hourly rate is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of [P]etitioner's attorney.” Rodriguez v. Sec'y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). McCulloch provides the framework for determining the appropriate compensation for attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Hum. Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years. 4 4 The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys% 27%20Forum%20Rate%20Fee%20Schedule%202018.pdf. The 2019 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2 7%20Forum%20Rate%20Fee%20Schedule%202019.pdf. The 2020 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%2 4 Petitioner requests compensation for his attorney, Ms. Muldowney at the following hourly rates: $363.00 per hour for work performed in 2018; $372.00 per hour for work performed in 2019; $388.00 per hour for work performed in 2020; $408.00 per hour for work performed in 2021; $421.00 per hour for work performed in 2022; $450.00 per hour for work performed in 2023 and 2024. Fees App. at 8 at 2. Petitioner also requests compensation for paralegals ranging from $149-186 per hour for work performed from 2018-2024, and for Mr. Ramon Rodriguez, another attorney at the Sands Anderson firm, at the following hourly rates: $405.00 per hour for work performed in 2019; $444.00 per hour for work performed in 2021. Fees App. at 8 at 2. The Sands Anderson firm has been previously awarded their 2018-2024 rates by other Special Masters. See, e.g., Coleman v. Sec’y of Health & Hum. Servs., No. 19-1476V, 2024 WL 945845 (Fed. Cl. Spec. Mstr. Jan. 31, 2024); Mattus-Lang v. Sec’y of Health & Hum. Servs., No. 15-113V, 2023 WL 8518186 (Fed. Cl. Spec. Mstr. Oct. 28, 2023). Accordingly, I will award the Sands Anderson firm their requested hourly rates. 2. Hours Reasonably Expended Attorneys’ fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Ultimately, it is “well within the Special Master's discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Saxton ex rel. Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir. 1993). In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 728-29 (2011) (affirming the special master's reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special master’s reduction of attorney and paralegal hours). Petitioner bears the burden of establishing that the rates charged, hours expended, and costs incurred are reasonable. Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1993). However, special masters may reduce awards sua sponte, independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 318 (Fed. Cl. 2008), aff’d No. 99-573V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008). A special master need not engage in a line-by-line analysis of petitioner’s fee application 7%20Forum%20Rate%20Fee%20Schedule%202020.PPI_OL.pdf The 2021 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Fo rum-Rate-Fee-Schedule-2021-PPI-OL.pdf The 2022 Fee Schedule can be accessed at: https://www.uscfc.uscourts.gov/sites/default/files/Attorneys% 27-Forum-Rate-Fee-Schedule-2022-%28Final%29.pdf. The 2023 Fee Schedule can be accessed at: https://www.cofc.uscourts.gov/sites/default/files/Attorneys- Forum-Rate-Fee-Schedule-2023.pdf The hourly rates contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323. 5 when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Special masters may look to their experience and judgment to reduce an award of fees and costs to a level they find reasonable for the work performed. Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). It is within a special master's discretion to instead make a global reduction to the total amount of fees requested. See Hines v. Sec’y of Health & Hum. Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have wide latitude in determining the reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec’y of Health & Hum. Servs., No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011), mot. for rev. denied, 2011 WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the special master's decision and endorsing “a global – rather than line-by-line – approach to determine the reasonable number of hours expended in this case”). Petitioner's counsel has provided a breakdown of hours billed. I find the hours to be largely reasonable but a deduction is necessary for administrative tasks performed by paralegals, such as: “format exhibits,” “draft notice of filing exhibits,” and “finalize exhibit.”5 See Ex. 64. Billing for administrative tasks is not appropriate, and the Sands Anderson firm has been warned of this practice before. See, e.g., Coleman v. Sec’y of Health & Hum. Servs., No 19-1476V, 2024 WL 945845 (Fed. Cl. Spec. Mstr. Jan. 31, 2024) (applying a deduction of $1,000.00 for administrative tasks); Guerrero v. Sec'y of Health & Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May 22, 2015) (citing cases), mot. for rev. den'd in relevant part and granted in nonrelevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016- 1753 (Fed. Cir. Apr. 22, 2016). I apply a $1,000.00 deduction to offset the billing of administrative tasks performed by different paralegals over a number of years. I award Petitioner a total of $108,903.90 in attorneys’ fees. C. Reasonable Costs Petitioner requests a total of $16,031.77 in attorneys’ costs: $2,108.45 for medical record requests; $9,200.00 for Dr. Salvatore Napoli’s reports and entitlement hearing testimony; $1,225.00 for a consultation with Dr. David Wilson; $20.00 for medical literature; $78.04 for mail and postage; $10.00 for binders; $442.00 for CDs; $10.00 for outgoing telecopier expenses; $10.85 for long distance calls; $2,527.43 for copies; and $400.00 for the Court’s filing fee. See Ex. 63. Petitioner provided documentation the medical record requests and medical literature. See id. I will grant Petitioner’s binder, long distance calls costs, outgoing telecopier expenses, mail and postage costs as these seem reasonable and related to normal business activities. I discuss the other costs below. 1. Petitioner’s Expert Costs for Salvatore Napoli, M.D. Petitioner requests $9,200.00 for Dr. Napoli’s work on this case, reflecting 18 hours of work at $400.00 per hour. This includes the time that Dr. Napoli spent drafting two expert reports and testifying at the entitlement hearing. Dr. Napoli has previously been awarded his requested hourly 5 See, e.g., entries on 9/7/2018, 9/13/2018, 8/10/2020, 10/29/2020 (4), 10/30/2020, 8/30/2021, 5/16/2023 (2), 9/29/2023 (2), 10/27/2023 (2), 1/3/2024. 6 rate and I see no reason to disturb this request. See, e.g., Winkelstein v. Sec'y of Health & Hum. Servs., No. 19-815V, 2022 WL 21309767 (Fed. Cl. Spec. Mstr. Sep. 19, 2022); Wentland v. Sec’y v. Sec’y of Health & Hum. Servs., No. 18-1308V, 2022 WL 3153263 (Fed. Cl. Spec. Mstr. July 22, 2022); Heddens v. Sec'y of Health & Human Servs., No. 15-734V, 2019 WL 5791266 (Fed. Cl. Spec. Mstr. Oct. 24, 2019). Further, the number of hours he worked on this case appears to be reasonable. Three invoices were submitted by Dr. Napoli with no dates. See Ex. 63 at 23, 33, 39-40. The first invoice is for a $2,000.00 retainer; the second invoice is for 10 hours of work performed to complete two expert reports; and a third invoice, which was a duplicate of the second invoice, but also included eight hours of testimony during the entitlement hearing. This totals 18 hours of work performed by Dr. Napoli, or $7,200.00. Counsel’s cost log has two $2,000.00 payments to Dr. Napoli and one $5,200.00 payment to Dr. Napoli, totaling $9,200.00. As Dr. Napoli’s invoices only detail 18 hours of work, I will award $7,200.00 for Dr. Napoli’s expert costs. 2. Petitioner’s Expert Costs for David Wilson, M.D. Petitioner requests $1,225.00 6 for a consultation with Dr. Wilson, totaling 2.75 hours at an hourly rate of $500.00 per hour. Ex. 63 at 27. Dr. Wilson has previously been awarded his requested hourly rate. See, e.g., Gudaitis v. Sec’y of Health & Hum. Servs., No. 17-1570V, 2023 WL 4638430 (Fed. Cl. Spec. Mstr. June 29, 2023). The hours performed by Dr. Wilson seem reasonable, thus I award his requested expert costs in full. 3. Other miscellaneous costs Petitioner requests $442.00 for CDs but has provided no documentation to substantiate this request. The docket notes that only one CD was filed in this case and even if Petitioner’s counsel made multiple copies of the CD to submit, this cost seems unreasonable without additional documentation. I hereby deny this cost and warn Ms. Muldowney that additio nal documentation will be required for reimbursement in future cases. I also note that although Petitioner’s expenditures for copying expenses seem high, I will award them at this time. I award Petitioner a total of $13,589.77 in attorneys’ costs. III. Conclusion Accordingly, in the exercise of the discretion afforded to me in determining the propriety of fee and cost awards, and based on the foregoing, I GRANT IN PART Petitioner’s application, as follows: 6 Dr. Wilson’s invoice for 2.75 hours of work performed at an hourly rate of $500.00 per hour totals $1,375.00, yet the invoice balance is $1,225.00. Because $1,225.00 was paid to Dr. Wilson, that is the amount I will award. 7 • A lump sum in the amount of $122,493.67, representing reimbursement of Petitioner’s attorneys’ fees and costs in the form of a check jointly payable to Petitioner and his attorney, Ms. Elizabeth Muldowney. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with this decision. 7 IT IS SO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master 7 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 8 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_18-vv-01450-4 Date issued/filed: 2025-10-01 Pages: 10 Docket text: 2025 - Petitioner served via email on 10/2/2025. (fm).**RE-DOCKETED 115 FOR PUBLICATION**JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION) re: 110 Opinion Denying Motion for Review. Signed by Judge David A. Tapp. (fm) Service on parties made. Modified on 10/2/ -------------------------------------------------------------------------------- Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 1 of 10 In the United States Court of Federal Claims No. 18-1450 Filed: September 11, 2025 Reissued: October 1, 2025† VAHAN ELOYAN, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Vahan Eloyan, Elkins Park, PA, Pro Se Petitioner. Irene A. Firippis, Trial Attorney, Alexis B. Babcock, Assistant Director, Heather L. Pearlman, Deputy Director, C. Salvatore D’Alessio, Director, Torts Branch, Yaakov M. Roth, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent. MEMORANDUM OPINION AND ORDER TAPP, Judge. Disappointment alone may warrant sympathy, but it cannot overturn a sound judgment. In this vaccine case, Vahan Eloyan (“Mr. Eloyan”) previously moved to reconsider the dismissal of his petition, expressing deep dissatisfaction not only with the outcome of his case but also with the representation he received throughout litigation. He now moves for review of the Special Master’s decision denying him relief, arguing that the circumstances call for reconsideration. (Mot. for Review (“Pet’r’s Mot.”), ECF No. 102). Although his disappointment is palpable and his concerns about counsel’s performance are noted, Mr. Eloyan has not met the burden required to disturb the Special Master’s decision. Accordingly, Mr. Eloyan’s Motion for Review is DENIED. † This Opinion was originally filed under seal on September 11, 2025. (ECF No. 111). The Court provided parties the opportunity to review this Opinion for any proprietary, confidential, or other protected information and submit proposed redactions. In a Joint Status Report filed September 23, (ECF No. 112), the parties indicated that no redactions were required. Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 2 of 10 I. Background On September 21, 2018, Mr. Eloyan sought relief from the National Vaccine Injury Compensation Program, alleging injury from the influenza (“flu”) and tetanus, diphtheria, acellular pertussis (“Tdap”) vaccines he received on December 14, 2015. (Petition (“Pet.”), ECF No. 1); National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), Pub. L. No. 99-660, 100 Stat. 3755 (1986) (codified as amended at 42 U.S.C. §§ 300aa-1 to 34). Before receiving the flu and Tdap vaccinations, Mr. Eloyan had been diagnosed with cerebral palsy and diabetes but maintained an active, independent lifestyle. (Pet. at 2). Mr. Eloyan contends that after vaccination, he developed Transverse Myelitis (“TM”), an inflammatory disorder of the spinal cord, often characterized by “motor, sensory, and autonomic dysfunction.” (Id. at 4; Resp’t’s Ex. E-3 (Transverse Myelitis Consortium Working Group, Proposed diagnostic criteria and nosology of acute transverse myelitis, 59 NEUROLOGY 499–505 (2002))).1 Mr. Eloyan submits that his condition began with tingling and weakness throughout his extremities, back pain, and gross motor skill difficulties; eventually, his condition escalated to hand contracture, spastic quadriplegia, and a paralytic gait. (Pet. at 2–9; Pet’r’s Mot. at 3, 7; Pet’r’s Exs. 5, 6, 23, 24). A. Petition and Recommendation to Dismiss Mr. Eloyan, initially represented by attorney Elizabeth Muldowney (“Ms. Muldowney”), supported his claim with several exhibits, including medical records and expert reports from a neurologist. (Pet’r’s Exs. 1–19, 23–51). However, from the outset, the Secretary of Health and Human Services (“the Secretary”) disputed Mr. Eloyan’s TM diagnosis. (Resp’t’s Rule 4(c) Report at 17–18, 20, ECF No. 26). Specifically, the Secretary submitted that, due in part to Mr. Eloyan’s history of cerebral palsy, it was more likely that his myelopathy was due to trauma—an acute spinal cord injury—rather than inflammation associated with TM. (Id. at 17 (“Myelopathy refers to a clinical syndrome that can be caused by many pathologies. When the myelopathy is due to trauma, it is known as an acute spinal cord injury. When the cause is inflammatory, it is known as myelitis. The most common diagnosis petitioner received was myelopathy of unknown etiology[.]”)). The Secretary supported its position with expert reports from a neurologist, immunologist, and neuroradiologist. (Resp’t’s Exs. A, C, E). Following a Rule 5 conference, Special Master Oler advised the parties that she found the Secretary’s experts persuasive and tentatively concluded that Mr. Eloyan likely had cervical 1 For his underlying claim, Mr. Eloyan’s supporting exhibits are located on the docket at ECF Nos. 5 (Exs. 1–10), 6 (Exs. 11–19), 20 (Exs. 23–28), 33 (Exs. 29–38), 34 (Exs. 39–43), 37 (Exs. 44–47), 38 (Exs. 48–50 (exhibits filed on compact disc)), and 49 (Ex. 51). Likewise, the Secretary of Health and Human Services’ exhibits are located at ECF Nos. 43 (Exs. A–D), 45 (Exs. A1–A3), 46 (Ex. E), 64 (Exs. C1–C19), 55 (Ex. F), and 66 (Exs. E1–E10). For clarity and readability, the Court will refer to relevant exhibit numbers or titles rather than citing docket entries throughout this Opinion, (“Pet’r’s Ex._,” “Resp’t’s Ex. _”). 2 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 3 of 10 spondylotic myelopathy (“CSM”), not TM.2 (Rule 5 Order, ECF No. 52). Finding no viable path forward, Special Master Oler advised Mr. Eloyan to withdraw his case. (Id.). Despite her recommendation, Mr. Eloyan requested an entitlement hearing, which was held almost two years later on November 15, 2023. (ECF No. 57). B. Entitlement Decision At the entitlement hearing’s conclusion, Special Master Oler ruled that Mr. Eloyan was not entitled to compensation, finding that “preponderant evidence supports the diagnosis of [CSM], and the record does not support a diagnosis of [TM].” (Entitlement Hr’g Tr., Oler, 175:2–6, ECF No. 78). In the written decision, Special Master Oler expounded on her oral findings. See Eloyan v. Sec’y of Health & Hum. Servs., No. 18-1450V, 2023 WL 9053983 at *1 (Fed. Cl. Spec. Mstr. Nov. 17, 2023), (“Eloyan Dismissal Decision”)). There, she noted that because Mr. Eloyan alleged an off-table injury, he would need to “prove by preponderant evidence that he suffered an injury and that this injury was caused by the vaccination at issue.” Eloyan Dismissal Decision at *6 (citing Capizzano, v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006)); see also de Bazan v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1351 (Fed. Cir. 2008) (holding that a petitioner in off-table injury cases “is not afforded a presumption of causation and thus must prove causation-in-fact.”). Devoid of medical jargon, Special Master Oler ultimately concluded that Mr. Eloyan’s TM diagnosis was incorrect and that his actual ailment, CSM, was something he would have suffered from regardless of the vaccines. See Eloyan Dismissal Decision. Upon reviewing the diagnostic criteria for acute transverse myelitis, Special Master Oler found that Mr. Eloyan failed to satisfy three requisite factors, thereby rendering him ineligible for entitlement. Id. at *6–9. First, Special Master Oler concluded that Mr. Eloyan had not ruled out myelopathy—a compressive etiology—relying on findings from a multi-disciplinary team at the University of California, San Francisco, which determined that Mr. Eloyan was experiencing spinal cord compression rather than TM despite earlier diagnoses. Id. at *7 (citing Pet’r’s Ex. 16 at 6). Next, Special Master Oler found that Mr. Eloyan did not establish that his condition reached its nadir within twenty-one days of vaccination, the required time frame for a TM diagnosis.3 Id. at *8–9. Finally, Special Master Oler held that Mr. Eloyan did not demonstrate that the presence of three oligoclonal bands in his cerebrospinal fluid was diagnostic of TM.4 Id. at *9. 2 A “Rule 5 Conference” refers to a preliminary status conference where the special master affords the parties an opportunity to address each other’s positions, reviews submissions, and presents tentative findings and conclusions. RCFC App’x B (“Vaccine Rules”) 5(a)(1)–(3). 3 Nadir is defined as “the lowest point.” Nadir, MERRIAM-WEBSTER, https://www.merriam- webster.com/dictionary/nadir (last visited September 3, 2025). For Mr. Eloyan’s condition, “nadir means the time to [his] worst point.” (Entitlement Hr’g Tr., Callaghan, 73:23–24). 4 “Oligoclonal bands [are] a marker of neuroinflammation or active inflammation happening in the spinal cord.” (Entitlement Hr’g Tr., Napoli, 18:9–11). 3 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 4 of 10 Importantly, Mr. Eloyan did not seek review of the dismissal. Judgment was entered on December 21, 2023, the same day Mr. Eloyan elected to file a civil action.5 (ECF Nos. 79, 80). On July 9, 2024, Ms. Muldowney moved to withdraw from this case at Mr. Eloyan’s request. (Mot. to Withdraw, ECF No. 89). At this point, Mr. Eloyan’s post-dismissal filings began. (Pet’r’s 60(b) Mot., ECF No. 100). C. Denial of Post-Dismissal Relief Mr. Eloyan sought relief from dismissal, and the case was reassigned to Special Master Jennifer Shah.6 (Pet’r’s 60(b) Mot.; see ECF No. 95). In support of his Motion for Relief from Judgment, Mr. Eloyan challenged the adequacy of his legal representation, as well as the factual and legal conclusions reached in his case. (See Pet’r’s 60(b) Mot.). More specifically, Mr. Eloyan alleged that throughout representation, Ms. Muldowney had minimal communication with him and his designated point of contact, failed to grasp key aspects of his medical condition, and advised against testimony that he believed could have altered the outcome of Special Master Oler’s decision. (Id. at 3–4). Mr. Eloyan further claimed that his expert was ill-informed— evidenced by repeated mischaracterizations of his condition—and unable to support his opinion effectively. (Id. at 4). Mr. Eloyan also took issue with the veracity of the Secretary’s expert reports, particularly claims regarding a history of substance abuse, and the interpretation of pre- vaccination records. (Id. at 11). Finally, Mr. Eloyan contested Special Master Oler’s determination that he failed to meet the diagnostic criteria for TM, arguing that a compressive etiology was reasonably excluded and that the timing of symptom progression was less significant than other diagnostic factors. (Id. at 12–17). As discussed in more detail below, Special Master Shah determined that Mr. Eloyan did not meet the burden required to obtain relief pursuant to RCFC 60(b). See Eloyan v. Sec’y of Health & Hum. Servs., No. 18-1450V, 2025 WL 1291260 (Fed. Cl. Mar. 25, 2025) (“Eloyan 60(b) Decision”). Special Master Shah analyzed Mr. Eloyan’s motion under RCFC 60(b)(1) and 60(b)(6). Id. at *1. Regarding Ms. Muldowney’s purported neglect, she found that Mr. Eloyan’s criticisms were “not supported by the record and, even if they were proven, they likely would not have affected the outcome of the case.” Id. at *6. As to the purported mistakes made by Special Master Oler, Special Master Shah held that Mr. Eloyan’s motion was based on how the evidence was weighed rather than a factual misunderstanding or an error of law or fact. Id. at *9 (internal citations omitted). Finally, Special Master Shah found that Mr. Eloyan “failed to demonstrate Ms. Muldowney committed misfeasance equating to virtual abandonment” that may warrant relief under RCFC 60(b)(6). Id. at 10. After that decision, Mr. Eloyan filed a Motion for Review, (Pet’r’s Mot.). 5 An election to file a civil action rejects the Vaccine Program’s judgment and, if timely filed, preserves whatever rights the petitioner may have to file a civil action in another court. Vaccine Rule 12. 6 After Special Master Oler’s nomination and confirmation to the Superior Court of the District of Columbia, Special Master Shah was appointed to oversee this case. District of Columbia Courts, Oler, Katherine E., https://www.dccourts.gov/node/26523 (last visited Sept. 8, 2025). 4 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 5 of 10 II. Analysis Mr. Eloyan’s case is procedurally remarkable in two respects: his status as a pro se litigant and the limited scope of the Court’s review. The Court acknowledges that while Mr. Eloyan was represented by Ms. Muldowney in his underlying action, he now represents himself. (Mot. to Withdraw; Order Granting Withdrawal, ECF No. 90). Accordingly, a degree of latitude is warranted in interpreting his arguments. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding that a court reads pro se pleadings more liberally than those prepared by a lawyer.) Further, at this stage, the Court’s level of review is from a bird’s-eye view. As stated, Mr. Eloyan did not seek review of Special Master Oler’s dismissal. Eloyan 60(b) Decision at *2 (“Petitioner did not file a motion for review of the Dismissal Decision.”). The only question properly before the Court now is whether Mr. Eloyan was entitled to post-dismissal relief. Stated differently, the Court’s function is not to revisit Special Master Oler’s dismissal, but to assess whether Special Master Shah’s denial of relief—under a more demanding standard—was unreasonable. Mr. Eloyan’s request is aimed at reconsidering the merits of the original dismissal, rather than seeking relief from judgment. His conclusory assertions that the prior decision was incorrect provide no meaningful basis for judicial review. Due to the degree of leniency afforded to pro se litigants, the Court attempts to construe Mr. Eloyan’s arguments as directed toward Special Master Shah’s findings and conclusions. Even so, the Court finds that Special Master Shah’s analysis was sound. A. Motion for Review Under the Vaccine Act, the Court of Federal Claims reviews a decision of the Special Master upon the timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)–(2) (2018). The Court reviews such a decision to determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 42 U.S.C. § 300aa-12(e)(2)(B); see also Patton v. Sec’y of Dep’t of Health & Hum. Servs., 25 F.3d 1021, 1029 (Fed. Cir. 1994) (holding that RCFC 60(b) rulings should be reviewed on an abuse of discretion basis). Specifically, the Court applies the arbitrary and capricious standard to factual findings and reviews all legal conclusions de novo. Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). Importantly, “the standard of review for a mixed question [of law and fact] all depends [ ] on whether answering it entails primarily legal or factual work.” Echols v. Sec’y of Health & Hum. Servs., 165 Fed. Cl. 9, 16 (2023) (alteration in original) (quoting U.S. Bank Nat. Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 583 U.S. 387, 396 (2018)). On review, the Court’s role is not to “reweigh the factual evidence” or “assess whether the special master correctly evaluated the evidence.” Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (quoting Munn, 970 F.2d at 871). Neither does the Court “examine the probative value of the evidence or the credibility of the witnesses.” Id. The “arbitrary and capricious [standard] is a highly deferential standard of review. If the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.” Hines ex rel. Sevier v. Sec’y of Dep’t of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991) (holding that “reversible error [is] extremely difficult to demonstrate”) (cleaned up); see Cucuras v. Sec’y of Dep’t of Health & Hum. Servs., 26 Cl. Ct. 537, 541 (1992), aff’d, 993 F.2d 5 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 6 of 10 1525 (Fed. Cir. 1993). Critically, the Court cannot “substitute its judgment for that of the special master merely because it might have reached a different conclusion.” Snyder v. Sec’y of Dep’t of Health & Hum. Servs., 88 Fed. Cl. 706, 718 (2009). B. RCFC 60(b) Standard RCFC 60 mirrors Rule 60 of the Federal Rules of Civil Procedure (“FRCP”), and the Court applies the same evaluative standards. See Dobyns v. United States, 915 F.3d 733, 737 n.1 (Fed. Cir. 2019) (citing Info. Sys. & Networks Corp. v. United States, 994 F.2d 792, 794–97, 794 n.3 (Fed. Cir. 1993)). RCFC 60(b) is a remedial provision that should be liberally construed in the interest of effecting substantial justice. Patton, 25 F.3d at 1030 (citations omitted). RCFC 60(b) provides that a party may seek relief from a final judgment, order, or proceeding based on any of six enumerated factors. At its core, the rule “allows a party to seek relief from final judgment and reopen a case based on mistake or excusable neglect, newly discovered evidence, fraud, the void or prospectively inequitable status of a judgment[,]” or any other reason that justifies relief. See BLOM Bank Sal v. Honickman, 145 S. Ct. 1612, 1618 (2025) (citing FRCP counterpart to RCFC 60(b)(1)–(5)); RCFC 60(b)(6). “The court has discretion regarding whether to grant relief under [RCFC] 60(b), ‘and the court may weigh equitable considerations in the exercise of its discretion.’” Curtis v. United States, 61 Fed. Cl. 511, 512 (2004) (quoting Dynacs Eng’g Co. v. United States, 48 Fed. Cl. 240, 241–42 (2000)). It is incumbent upon the party invoking RCFC 60(b) to substantiate its claim to relief. See Kennedy v. Sec’y of Health & Hum. Servs., 99 Fed. Cl. 535, 550 (2011). A motion under RCFC 60(b) is not treated as a pleading—such as a complaint—where factual allegations are assumed to be true. Id. (citing RCFC 7(b); Girard Trust Bank v. Martin, 557 F.2d 386, 389 (3d Cir.), cert. denied, 434 U.S. 985 (1977)). The filing of a Rule 60(b) motion does not, in itself, warrant renewed judicial examination into the merits of potential relief. Id. Given the broad discretion vested in the trial court under Rule 60(b), review is confined to determining whether that discretion was abused. Sioux Tribe of Indians v. United States, 862 F.2d 275, 279 (Fed. Cir. 1988) (quoting United States v. Atkinson, 748 F.2d 659, 660 (Fed. Cir. 1984)). “An abuse of discretion exists ‘when the trial court’s decision is clearly unreasonable, arbitrary or fanciful, or is based on clearly erroneous findings of fact or erroneous conclusions of law.’” Lazare Kaplan Int’l Inc. v. Photoscribe Techs., Inc., 714 F.3d 1289, 1295 (Fed. Cir. 2013) (quoting Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002)). In this case, Special Master Shah analyzed Mr. Eloyan’s motion under the light of RCFC 60(b)(1)—mistake, inadvertence, surprise, or excusable neglect—and the microscope of RCFC 60(b)(6)— extraordinary circumstances. Eloyan 60(b) Decision at *6–11; see also Info. Sys. & Networks Corp., 994 F.2d at 795 (“While subsection (6) requires a showing of ‘extraordinary circumstances,’ subsections (1) and (6) of Rule 60(b) ‘are mutually exclusive,’ and the required showing of extraordinary circumstances under subsection (6) does not apply to . . . subsection 6 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 7 of 10 (1).” (citations omitted)). On review, Mr. Eloyan challenges the findings specific to Rule 60(b)(1).7 C. Mr. Eloyan was not entitled to relief under RCFC 60(b)(1). Under RCFC 60(b)(1), Special Master Shah analyzed Ms. Muldowney’s purported “excusable neglect” and Special Master Oler’s reliance on mistaken facts. Eloyan 60(b) Decision at *6–9. In his Motion for Review, Mr. Eloyan largely revives those allegations. Mr. Eloyan asserts that Ms. Muldowney was generally uncommunicative, failed to substantiate the extent of his impairment, and permitted an inaccurate perception of improvement that was not supported by his actual condition. (Pet’r’s Mot. at 3–4). As to Special Master Oler’s purported mistakes, Mr. Eloyan suggests that she incorrectly assessed when he reached the lowest point of his condition and weighed false improvements against him when he saw no improvement. (Id. at 5– 7). The Secretary asserts that Special Master Shah’s findings and conclusions were not an abuse of discretion. (Resp’t’s Resp. at 6–11, ECF No. 106). The Court defers to Special Master Shah’s determination that Mr. Eloyan’s arguments lacked merit and finds her reasoning to be both thorough and sound. Rule 60(b)(1) allows the Court to grant relief from a final judgment, order, or proceeding based on mistake, inadvertence, surprise, or excusable neglect. Amgen Inc. v. Hoechst Marion Roussel, Inc., 25 Fed. App’x 923, 924 (Fed. Cir. 2001) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)). Mistakes refer to a “factual misconception or misunderstanding” or an “error of law or fact,” whether by a party or by the court. Kemp v. United States, 596 U.S. 528, 534–35 (2022) (cleaned up). “It is implicit in the definition that invocation of this provision is not available for a mere later-regretted choice not infected by such an incorrect understanding.” DiMasi v. Sec’y of Health & Hum. Servs., No. 2022-1854, 2022 WL 20272146, at *3 (Fed. Cir. Dec. 19, 2022) (citing In re Dinsmore, 757 F.3d 7 Special Master Shah analyzed Mr. Eloyan’s Motion for Relief from judgment under RCFC 60(b)(6), not because he invoked it, but because he “alleged misfeasance by his attorney.” Eloyan 60(b) Decision at *10. Rule 60(b)(6) is a catch-all provision providing that the court may relieve a party from a final judgment for “any other reason that justifies relief.” See Odyssey Logistics & Tech. Corp. v. Stewart, 130 F.4th 973, 978 (Fed. Cir. 2025). The Supreme Court has held that Rule 60(b)(6) movants fight an uphill battle and are required “to show extraordinary circumstances justifying the reopening of a final judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (emphasis added) (internal citations and quotations omitted). Rule 60(b)(6) motions “must be supported by a showing of extraordinary circumstances which justify relief.” Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004) (quotation marks omitted). Mr. Eloyan cites only RCFC 60(b)(1) in his Motion for Review. (Pet’r’s Mot. at 7 (citing 60(b)(1) twice under “Applicable Legal Standards”)). The decision not to invoke Rule 60(b)(6) seems to reflect a considered choice rather than oversight. Nevertheless, because the Court does not find Ms. Muldowney’s conduct to constitute excusable neglect, it necessarily falls short of the type of extraordinary or egregious circumstances required to justify relief under RCFC 60(b)(6). See M.D. by Dilascio v. Sec’y of Health & Hum. Servs., 153 Fed. Cl. 544, 562 (2021) (discussing attorney abandonment) (citing Sneed v. McDonald, 819 F.3d 1347 (Fed. Cir. 2016)). 7 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 8 of 10 1343, 1347–48 (Fed. Cir. 2014)). In considering a motion for relief from judgment under 60(b)(1) for reasons of “excusable neglect,” a court should balance three factors: “(1) whether the movant has a meritorious claim or defense; (2) whether the nonmovant would be prejudiced by the granting of relief; and (3) whether the matter sought to be relieved was caused by the movant’s own culpable conduct.” Orient Overseas Container Line (UK) Ltd. v. United States, 52 Fed. Cl. 805, 807 (2002) (citing Info. Sys. & Networks Corp., 994 F.2d at 795). As to Ms. Muldowney’s level of communication with her client, Special Master Shah found that Mr. Eloyan’s allegations were unsupported by the record and unlikely to have affected the outcome of his case. Eloyan 60(b) Decision at *6. She relied on Ms. Muldowney’s billing records showing periodic contact between counsel and Mr. Eloyan or his representative, concluding that Ms. Muldowney did not neglect or abandon her client. Id. Special Master Shah further determined that the absence of in-person meetings did not constitute neglect, given the potential for unreasonable expense. Id. at 7. Without disputing Special Master Shah’s reasoning, Mr. Eloyan repeats the same arguments raised before her. (Pet’r’s Mot. at 3–4). In the absence of any challenge to Special Master Shah’s findings on these issues, her conclusions, which were based on billing records and relevant case law, do not reflect an abuse of discretion. As to how Ms. Muldowney presented Mr. Eloyan’s case at the entitlement hearing, Special Master Shah found that Mr. Eloyan’s grievances fell “squarely in the category of a dispute with counsel’s litigation strategy,” and did not qualify for relief from judgment. Eloyan 60(b) Decision at *7–8. She further concluded that no evidence of the alleged missteps by Ms. Muldowney (i.e., witness presentation, expert rebuttal, or Ms. Muldowney’s understanding of Mr. Eloyan’s condition) would have altered the former special master’s entitlement determination. Id. at *8. The Court agrees with Special Master Shah’s characterization that the decision to deny entitlement was based on Mr. Eloyan’s “failure to exclude a compressive cause of his symptoms and failure to prove that his clinical nadir fell within the appropriate timeframe for TM.” Id. These findings support the conclusion that Special Master Shah acted within the scope of her discretion. Even assuming arguendo that Ms. Muldowney’s conduct amounted to negligence or misrepresentation, the Secretary supports that Special Master Shah properly concluded that such conduct “does not qualify as excusable neglect under Rule 60(b)(1).” (Resp’t’s Resp. at 8); Eloyan 60(b) Decision at *6; Freeman, 35 Fed. Cl. at 283. In cases where a litigant disagrees with counsel’s litigation strategy, such disagreement does not justify relief from judgment; attorney conduct must rise to the level of “gross neglect” or “egregious misconduct” to warrant relief. See Link v. Wabash R. Co., 370 U.S. 626, 633–34 (1962) (“Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.”); Sneed v. McDonald, 819 F.3d 1347, 1351 (Fed. Cir. 2016) (“[T]he client is normally responsible for the malfeasance of the attorney[.]”). Given the elevated threshold applicable to claims of attorney misconduct, Special Master Shah’s findings regarding Ms. Muldowney’s representation fall well within the bounds of reasoned discretion. As to Mr. Eloyan’s arguments related to Special Master Oler’s “mistakes,” his Motion states that his 60(b) Motion was not intended “to suggest that Special Master Oler misapplied the law in concluding [he] did not meet the medical etiology threshold.” (Pet’r’s Mot. at 5). Mr. 8 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 9 of 10 Eloyan’s argument instead rests on his claim that Special Master Oler misjudged the timing of his clinical nadir and mistakenly relied on signs of improvement that, he maintains, were absent. (Id. at 5–6). Such contentions improperly seek to relitigate the evidentiary weight afforded by Special Master Oler, rather than identifying a legal or factual error. Viewed in context with the rest of the record, this argument leaves little room for the Court to reconsider the prior determinations. To the extent Mr. Eloyan challenges Special Master Oler’s reliance on alleged “improvements,” the record does not support the claim that either Special Master Oler or Shah substantially credited a “miraculous recovery,” as Mr. Eloyan suggests. (Id. at 4). During the entitlement hearing, the United States’ experts confirmed that even though “improvement of some degree is almost universal[,]” this was not so in Mr. Eloyan’s case. (Entitlement Hr’g, Callaghan, 96:15, 18–21 (“What’s shocking in this case, you know, or at least very clear that it’s not transverse myelitis is that there’s no improvement really outside of, you know, maybe supertransiently after steroids.”)). Mr. Eloyan equates “improvements” with “recovery,” overlooking the meaningful distinction between the two. The fatal issue with Mr. Eloyan’s Motion is that reweighing the evidence falls outside the scope of this Court’s review, just as it did for Special Master Shah. See Snyder, 88 Fed. Cl. at 718 (“[S]pecial masters have great leeway in how they conduct proceedings, including what evidence to consider and how to weigh that evidence, and their credibility determinations and fact-intensive conclusions are afforded great deference.”). Special Master Shah iterated that while it is “indisputable that certain pieces of evidence in the record,” including Mr. Eloyan’s expert testimony, supported a TM diagnosis, Mr. Eloyan failed to establish that Special Master Oler’s contrary finding was a result of “factual misconception or misunderstanding” or an “error of law or fact.” Eloyan 60(b) Decision at *8 (citing DiMasi, 2022 WL 20272146, at *3). Special Master Shah’s analysis reflects that Special Master Oler’s decision rested on a comprehensive review of the medical record and a balanced consideration of competing expert opinions. Id. (noting the divergent interpretations of Mr. Eloyan’s cervical MRIs dated May 26 and July 8, 2016, and crediting the Secretary’s expert as more persuasive); id. (evaluating the assessments of Mr. Eloyan’s treating providers and assigning greater weight to the multidisciplinary team at UCSF, which concluded petitioner’s condition was attributable to cord compression rather than TM). By adhering to the standard set forth in RCFC 60(b)(1) and relying on the record, Special Master Shah’s conclusions fall within the bounds of reasoned decision-making. Special Master Shah determined that Mr. Eloyan did not satisfy the criteria under RCFC 60(b)(1), as he failed to demonstrate mistake, inadvertence, surprise, or excusable neglect, and likewise did not point to a clear error of fact or law or submit newly clarified evidence that would justify disturbing the final judgment. Eloyan 60(b) Decision at *6–10. Reconsideration is not a vehicle for reasserting arguments the court has already addressed, nor is it intended to provide a dissatisfied party with an opportunity to relitigate the case. See Nyan v. United States, 154 Fed. Cl. 463, 464 (2021). Mr. Eloyan has not shown, and the record does not support a finding, that Special Master Shah’s decision rejecting reconsideration was an abuse of discretion. See Avera v. Secretary of Health & Human Services, 515 F.3d 1343, 1347 (Fed. Cir. 2008). 9 Case 1:18-vv-01450-DAT Document 116 Filed 10/01/25 Page 10 of 10 III. Conclusion In short, Mr. Eloyan’s claim was dismissed because Special Master Oler found that he did not allege an injury that could be caused by a vaccine. Eloyan Dismissal Decision at *6. Special Master Shah found that Mr. Eloyan did not show entitlement to relief from that judgment. Eloyan 60(b) Decision at *11. On review, the Court finds that Mr. Eloyan has shown no reason to disturb those findings. For the stated reasons, the Court hereby DENIES Mr. Eloyan’s Motion for Review, (ECF No. 102), and AFFIRMS the Special Master’s Order Denying Relief from Judgment, (ECF No. 100). The Clerk is directed to enter judgment accordingly. The Court has filed this Opinion under seal. The parties shall confer to determine proposed redactions to which all parties agree. Per Vaccine Rule 18(b), fourteen (14) days from the date of this decision, the parties shall file a Joint Status Report indicating their agreement with the proposed redactions, attaching a copy of those pages of the Court’s ruling containing proposed redactions, with all proposed redactions clearly indicated. IT IS SO ORDERED. s/ David A. Tapp DAVID A. TAPP, Judge 10