VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00414
Package ID: USCOURTS-cofc-1_19-vv-00414
Petitioner: Johnny Matthews
Filed: 2019-03-19
Decided: 2022-01-31
Vaccine: influenza
Vaccination date: 
Condition: Guillain-Barre Syndrome (GBS)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Johnny Matthews filed a petition alleging Guillain-Barre Syndrome (GBS) caused by an influenza vaccination received around November 10, 2013. The case proceeded with the central issue being whether Mr. Matthews had actually received the vaccination. Despite his claims and some medical record notations suggesting a possible vaccination or an allergy to the flu vaccine, the court found a lack of preponderant evidence. Numerous inconsistencies existed in his reported vaccination dates and status across various medical encounters. Furthermore, his own account of receiving the vaccine during a hospitalization was contradicted by surgical reports and billing records, which indicated no vaccination was administered and that he had declined it. Efforts to confirm the vaccination with the hospital where it was allegedly administered were unsuccessful, with records showing no such vaccination. The Special Master dismissed the petition, finding that the evidence did not establish by a preponderance of the evidence that Mr. Matthews received a vaccination covered by the program. This decision was affirmed on review by the Court of Federal Claims, which found the Special Master's ruling was not arbitrary or capricious, upholding the dismissal.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00414-0
Date issued/filed: 2021-09-15
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 08/19/2021) regarding 53 DECISION of Special Master Signed by Special Master Daniel T. Horner. (mly) Service on parties made.
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Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-414V
Filed: August 19, 2021
PUBLISHED
Special Master Horner
JOHNNY MATTHEWS,
Petitioner,
Dismissal; Evidence of
v.
Vaccination; Influenza Vaccine;
Guillain-Barre Syndrome (GBS)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Renee J. Gentry, Vaccine Injury Clinic, George Washington University Law School,
Washington, DC, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On March 19, 2019, petitioner, Johnny Matthews, filed a petition under the
National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that he
suffered Guillain-Barre Syndrome (“GBS”) caused by his receipt of an influenza (“flu”)
vaccination “on or around” November 10, 2013. (ECF No. 1, p. 1.) Petitioner now
moves for a finding of fact that he did receive a flu vaccination on or about November
10, 2013, as alleged, despite not being able to produce a vaccine administration record.
(ECF No. 50.) Respondent opposes petitioner’s motion and cross-moves for dismissal
of this case due to petitioner’s failure to establish that he received a vaccination. (ECF
No. 51.) For the reasons discussed below, I find that there is not preponderant
evidence that petitioner received a vaccination covered by this program and therefore
dismiss this petition.
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
1

Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 2 of 12
I. Procedural History
This case was initially filed by petitioner as a pro se petitioner and was originally
assigned to Special Master Sanders. His current counsel, Ms. Gentry, was substituted
as counsel on April 29, 2019. (ECF No. 14.) The case was subsequently reassigned to
me on August 28, 2019. (ECF No. 28.)
Petitioner’s initial filings are inconsistent with respect to the date of petitioner’s
alleged vaccination. His petition at turns references a date of either November 1, 2013,
or November 10, 2013. (ECF No. 1, p. 1.) A separate filing, also captioned as a
petition, indicates the vaccination occurred on an unspecified date in October 2013.
(ECF No. 7, p. 1.) Petitioner later filed medical records and an affidavit on October 14,
2019. (ECF No. 30; Exs. 1-5). His affidavit describes the circumstances of his
vaccination and indicates it was administered in connection with a surgery that occurred
on November 18, 2013. (Ex. 5, p. 1.)
After investigating whether additional records exist, petitioner ultimately filed a
Statement of Completion on February 7, 2020. (ECF No. 36.) However, respondent
filed a status report on March 3, 2020, indicating that the records filed to that point
lacked a record of the vaccination alleged to be at issue and that certain other records
appeared incomplete. (ECF No. 37.)
Petitioner subsequently filed further medical records. (ECF Nos. 38-39, 44; Exs.
4, 6-9.) Respondent then filed his Rule 4(c) Report on December 16, 2020, principally
raising the issue that petitioner’s vaccination was still not adequately documented. (ECF
No. 48.) In response, petitioner filed a status report indicating that “[t]here are no other
outstanding records. Petitioner believes a determination by the Special Master will be
necessary as to whether the evidence, as a whole, supports the receipt of an influenza
vaccination.” (ECF No. 49.)
On February 23, 2021, petitioner filed a motion for a finding of fact. (ECF No. 50.)
Petitioner contends that the weight of the circumstantial evidence supports a finding that
petitioner received a flu vaccination on or about November 10, 2013. (Id. at p. 5.) On
March 9, 2021, respondent filed a response opposing petitioner’s motion and also
asserting a cross-motion for dismissal of the case for failure to establish receipt of a
vaccination. (ECF No. 51.) Petitioner filed a reply on March 16, 2021. (ECF No. 52.)
I have determined that the parties have had a full and fair opportunity to present
their cases and that it is appropriate to resolve this issue without a hearing. See Vaccine
Rule 8(d); Vaccine Rule 3(b)(2); Kreizenbeck v. Secretary of Health & Human Services,
945 F.3d 1362, 1366 (Fed. Cir. 2020) (noting that “special masters must determine that
the record is comprehensive and fully developed before ruling on the record.”).
Accordingly, this issue is now ripe for resolution.
2

Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 3 of 12
II. Factual History
I have reviewed the entirety of petitioner’s medical records as filed in this case;
however, it is not necessary to discuss these records in full detail. The only question at
issue is whether petitioner received a flu vaccination prior to onset of his GBS. The fact
of his GBS diagnosis and the subsequent course of his illness are not in dispute on this
motion. This factual summary will focus exclusively on points bearing on whether
petitioner received a flu vaccination as alleged.
Petitioner presented to the Carolinas Hospital System emergency department on
October 13, 2013, for lower back pain assessed as an acute lumbar strain. (Ex. 1, p.
11.) A screening assessment indicated “no” in response to the prompt “flu vaccine this
season.” (Id. at 13.) Petitioner returned to the same emergency department on October
28, 2013, for scabies. (Id. at 26-27.) The same screening question was again marked
“no” regarding whether petitioner had a vaccine for the current flu season. (Id. at 29.)
On November 10, 2013, petitioner again returned to the Carolinas Hospital
emergency department. (Id. at 40.) He presented with a swollen painful toe. (Id.) This
time the screening question reportedly elicited a “yes” as to whether petitioner had
received his flu vaccine for the year. (Id. at 43.)
On November 13, 2013, petitioner presented to the McLeod Regional Medical
Center (“MRMC”) emergency department for cough, congestion, and right-side pain.2
(Ex. 4, pp. 1903-11.) He was negative for influenza and diagnosed with a “cough” with
instructions to follow up with a primary care provider. (Id.) There is no indication of any
screening for vaccination status.
On November 18, 2013, petitioner returned to the Carolinas Hospital emergency
department with a severe right forearm wound sustained from a knife attack. (Ex. 1, p.
98.) The wound was approximately 10cm x 4 cm in area, 4 cm deep, and there was a
chip in the bone. (Id. at 117.) Petitioner was admitted for a surgical repair. (Id. at 117-
18.) As with his prior November 10, 2013 encounter, the Carolinas Hospital screening
questions again reportedly elicited a “yes” in response to whether petitioner had his
seasonal flu vaccination. (Id. at 111.) Significantly, however, petitioner avers that he
later received his flu vaccination in the course of this hospitalization. (Ex. 5, p. 1.)
Petitioner describes his flu vaccination has having been administered by a nurse
in the emergency room in his left arm while another nurse was sewing up his right arm
after his surgery.3 (Ex. 5, p. 1.) However, petitioner’s operative report indicates that his
2 Some of petitioner’s medical records from this provider reflect an alias. (Ex. 6, p. 3.)
3 Of note, respondent observes that in the specific context petitioner describes a tetanus vaccination
would have been more likely to be administered than a flu vaccination. (ECF No. 51, n. 4.) However, this
petition was filed more than five years after November 18, 2013. As respondent explained in this Rule 4
Report, the petition was timely filed relative to petitioner’s allegation of a flu vaccine having been
administered because GBS following flu vaccination was added to the Vaccine Injury Table in 2017. (ECF
3

Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 4 of 12
surgery occurred in the operating room rather than the emergency room. He was under
anesthesia and intubated during the surgery and the wound was stapled, splinted,
dressed, and wrapped in the operating room while petitioner remained under
anesthesia. (Ex. 1, pp. 117-18.) After the surgery he was transferred to the post-
anesthesia care unit (“PACU”) not the emergency room. (Id.)
Petitioner’s November 18, 2013 emergency department record does not reflect
that a flu vaccine was administered. Moreover, itemized billing records have been filed
for the hospital stay at which petitioner avers his vaccination occurred and these
records likewise reflect no charge for a flu vaccine. (Ex. 7.) In fact, the discharge
summary for petitioner’s November 18, 2013 admission to Carolinas Hospital
specifically indicates that no flu vaccine was administered during his admission. (Ex. 1,
p. 139.) Additionally, a November 21, 2013 form hand signed by a nurse check marked
that petitioner declined to receive the flu vaccination. (Ex. 1, p. 107.)
Petitioner returned to the Carolinas Hospital emergency department on
November 25, 2013, complaining of numbness and tingling in his legs. (Ex. 1, p. 53.)
The screening assessment indicated “no” in response to the prompt “flu vaccine this
season.” (Id. at 170.) Petitioner was discharged with a diagnosis of “hyperventilation
syndrome.” (Id. at 167.) Two days later, petitioner sought care from MRMC. (Ex. 4, p.
1986-90.) His vaccinations were noted to be “current” without specificity. (Id. at 1987.)
Petitioner left against medical advice. (Id. at 1988.) Petitioner returned to Carolinas
Hospital on November 28, 2013. (Ex. 1, p. 185.) Carolinas Hospital again recorded that
petitioner had not received his annual flu vaccination. (Id. at 192.) The assessment was
neuropathy and petitioner was to follow up with a neurologist. (Id. at 188-89.)
Petitioner was subsequently admitted to MRMC on November 29, 2013, for what
was later diagnosed as GBS. His flu vaccination status upon admission was confirmed
as indicating no flu vaccine for the current flu season. (Ex. 4, pp. 633, 636.) An order
was entered to administer a flu vaccination at discharge. (Ex. 4, p. 2084.) Petitioner
subsequently had a neurology consultation on December 6, 2013. (Ex. 9, pp. 215-16.)
At that time, petitioner was intubated and sedated and his girlfriend provided a history
that noted an upper respiratory infection preceding petitioner’s condition, but included
no mention of a flu vaccination. (Id.) Petitioner was given a diagnosis of probable GBS
to be confirmed later with further diagnostic tests. (Id.) This assessment was made
without reference to any vaccination history.
Subsequently, a notation appears in petitioner’s medical records dated
December 12, 2013 instructing a nurse to call the Carolinas Hospital to determine
whether a flu shot had been administered during petitioner’s prior admission. (Ex. 9, p.
307.) A separate notation includes a checkmark and the word “done.” (Id.) Clinical
notes from the same date indicate: “contacted John Pennstrom, pharmacist at Carolinas
Health System per MD order to find out if pt received flu shot prior to discharge. Stated
there are no records of pt receiving the vaccination.” (Ex. 4, p. 298.)
No. 48, n. 1.) Accordingly, even if petitioner amended his petition to allege administration of a tetanus
vaccination, he still would not be able to pursue his claim.
4

Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 5 of 12
No further notation is made regarding petitioner’s vaccination status until
December 21, 2013, when a handwritten note indicates “recent shot followed by
Guillain-Barre Syndrome” and instructs that the flu vaccine should be added to
petitioner’s allergy list. (Ex. 9, p. 294.) The basis for this notation is not clear. Though
intubated and previously sedated, as of December 21, 2013, petitioner was awake and
communicating by answering yes or no questions by nodding or shaking his head. He
also had a communication board. (E.g. Ex. 4, p. 279.) However, petitioner’s detailed
clinic notes contain no indication that petitioner provided this information. It is not until
his date of discharge, January 18, 2014, that petitioner is recorded as having reported
that he was previously vaccinated.4 (Ex. 4, p. 253.)
Following the December 21, 2013 notation that petitioner’s GBS followed
vaccination, his record was updated to include the flu vaccine among his allergies on
the basis that his GBS was a reaction to the flu vaccine. (Ex. 4, p. 533.) At that time,
Dr. Duncan also discontinued the instruction that petitioner receive the flu vaccine upon
discharge. (Ex. 9, p. 538.) A follow up consultation for pain management on January 7,
2014 indicated under allergies that petitioner “is now no longer a candidate for the flu
shot,” but did not discuss petitioner’s prior vaccination history or the etiology of his GBS.
(Ex. 4, p. 525.)
Petitioner subsequently reported to other providers that his GBS was secondary
to a flu vaccination (Ex. 3, p. 18) and the flu vaccine continued to be listed as an allergy
(e.g. Ex. 9, p. 7).
III. Legal Standard
Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines. In
general, to gain an award, a petitioner must make a number of factual demonstrations,
including showing that an individual received a vaccination covered by the statute;
received it in the United States; suffered a serious, long-standing injury; and has
received no previous award or settlement on account of the injury. Petitioner has the
burden of demonstrating the facts necessary for entitlement to an award by a
“preponderance of the evidence.” § 300aa-12(a)(1)(A). Under that standard, the
existence of a fact must be shown to be “more probable than its nonexistence.” In re
Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring).
The Vaccine Act states that “[t]he special master or court may not make such a
finding [of eligibility and compensation] based on the claims of a petitioner alone,
unsubstantiated by medical records or by medical opinion.” § 300aa-13(a)(1).
Nonetheless, special masters are not bound by the reports, summaries, or conclusions
contained in the medical records. § 300aa-13(b)(1). Rather, the special master must
consider the entire record. Id. Importantly, the fact of a vaccination need not itself be
proven by medical records or medical opinion. See, e.g. Wonish v. Sec’y of Health &
4 Petitioner likewise indicated in one of his initial pleadings that he first informed the physicians at MRMC
of his prior flu vaccination in January of 2014. (ECF No. 7, p. 1.)
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Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 6 of 12
Human Servs., No. 90-667V, 1991 WL 83959, at *4 (Cl. Ct. Spec. Mstr. May 6,
1991)(stating with regard to § 300aa-13(a)(1) that “it seems obvious then that not all
elements must be established by medical evidence” and that “vaccination is an event
that in ordinary litigation could be established by lay testimony. Medical expertise is not
typically required.”) Nor, for that matter, does it necessarily have to be evidenced by
contemporaneous documentation. See, e.g. Centmehaiey v. Sec’y of Health & Human
Servs., 32 Fed. Cl. 612, 621 (1995), (noting that “the lack of contemporaneous
documentary proof of vaccination, however, does not necessarily bar recovery.”), aff’d
73 F. 3d 381 (Fed. Cir. 1995); see also Woodson v. Sec’y of Health & Human Servs.,
No. 91-263V, 1992 WL 59707, at *2 (Fed. Cl. Spec. Mstr. Mar. 5, 1992)(noting that
“[t]he petition should not be dismissed as a matter of law, merely because there is no
documentary evidence that the vaccination took place and [petitioner] is the only
witness claiming personal knowledge of the vaccination. Her testimony on this point
must be weighed in the context of the entire record.”).
However, medical records do ordinarily “warrant consideration as trustworthy
evidence.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528
(Fed.Cir.1993). Where subsequent testimony conflicts with contemporaneous medical
records, special masters frequently accord more weight to the medical records. See,
e.g., Reusser v. Sec’y of Health & Human Servs., 28 Fed. Cl. 516, 523 (1993)
(“[W]ritten documentation recorded by a disinterested person at or soon after the event
at issue is generally more reliable than the recollection of a party to a lawsuit many
years later.”); see also Vergara v. Sec’y of Health & Human Servs., 08-882V, 2014 WL
2795491, *4 (Fed. Cl. Spec. Mstr. July 17, 2014) (“Special Masters frequently accord
more weight to contemporaneously-recorded medical symptoms than those recorded
later in medical histories, affidavits, or trial testimony.”).
Special masters are cautioned against favoring contemporaneous records
“reflexively” and must not overemphasize individual records at the expense of a
comprehensive evaluation of the entire record. Shapiro v. Sec’y of Health & Human
Servs., 101 Fed. Cl. 532, 539-40 (2011). “Medical records are only as accurate as the
person providing the information.” Parcells v. Sec’y of Health & Human Servs., No. 03-
1192V, 2006 WL 2252749, at *2 (Fed. Cl. Spec. Mstr. July 18, 2006). However, “the
absence of a reference to a condition or circumstance is much less significant than a
reference which negates the existence of the condition or circumstance.” Murphy v.
Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (Fed. Cl. 1991), aff’d 968 F.2d
1226 (Fed. Cir. 1992), cert. den’d, Murphy v. Sullivan, 506 U.S. 974 (1992).
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 & Human Servs., 69 Fed.Cl. 775, 779 (2006) (“like any
norm based upon common sense and experience, this rule should not be treated as an
absolute and must yield where the factual predicates for its application are weak or
lacking”); Lowrie v. Sec'y of Health & Human Servs., No. 03–1585V, 2005 WL 6117475,
at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005) (“[w]ritten records which are, themselves,
inconsistent, should be accorded less deference than those which are internally
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consistent”) (quoting Murphy, 23 Cl.Ct. at 733). However, when witness testimony is
offered to overcome the weight of contemporaneous medical records, such testimony
must be “consistent, clear, cogent, and compelling.” Camery v. Sec'y of Health &
Human Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec'y of Health & Human
Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
IV. Party Contentions
The parties largely agree on the applicable legal standard, but differ significantly
in their interpretations of the record evidence. Petitioner concedes that proof of
vaccination is a requirement of the Vaccine Act, but stresses that a specific record of
vaccination is not required. (ECF No. 52, p. 1.) Respondent agrees that
contemporaneous documentation of vaccination “is not absolutely required in all cases,”
but stresses that contemporaneous documentation from a healthcare provider “is the
best evidence that a vaccination occurred.” (ECF No. 51, p. 8 (quoting Gambo v. Sec’y
of Health & Human Servs., No. 13-691V, 2014 WL 7739572, at *3 (Fed. Cl. Spec. Mstr.
Dec. 18, 2014)).)
In suggesting the record evidence as a whole preponderates in favor of a
vaccination having been administered, petitioner focuses principally on the fact that the
flu vaccine was documented in petitioner’s medical records as an allergy or
contraindication during his hospitalization for GBS and within two months after the
vaccination is alleged to have occurred. (ECF No. 52, p. 2.) In spite of other
inconsistent records, petitioner asserts in effect that this evidences an understanding by
the treating physicians that petitioner’s GBS was vaccine-caused, thereby evidencing
the fact of the vaccination. (Id.) Petitioner asserts that the notation of an allergy in the
medical records should carry greater weight than prior “checkbox” notations regarding
the fact of vaccination because the determination that an allergy is present is a more
medically significant determination that “can have deadly ramifications if missed.” (Id.)
Petitioner indicates that he “is not asking the Special Master to rely on his testimony
alone, rather to look at the record as a whole. Is Mr. Matthews’s receipt of an influenza
vaccination on or before November 10, 2013 ‘more probable than its nonexistence’?
Petitioner asserts that it is.” (Id. at 3.)
Respondent contends that petitioner’s interpretation of the allergy notation is both
speculative and not the best explanation for the contraindication. (ECF No. 51, pp. 9-
10.) Respondent also challenges the credibility of petitioner’s own description of his
vaccination as contained in his affidavit and further stresses that in his various filings
petitioner has alleged inconsistent dates of vaccination. (Id. at pp. 8-10.) In any event,
respondent disputes that petitioner’s own affidavit is sufficient to carry petitioner’s
burden of proof. (Id. at pp. 10-11.) Respondent contends that petitioner’s allegations
are lacking sufficient context and particularity to constitute evidence that any vaccination
occurred and concludes that there is not preponderant evidence of any vaccination. (Id.
at pp. 8, 10.)
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Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 8 of 12
V. Analysis
As explained above, petitioner must demonstrate that a vaccine was
administered but need not necessarily file a vaccine administration record so long as
there is preponderant evidence that the vaccination occurred. Considering the record
as a whole, several aspects of petitioner’s medical history warrant discussion, namely:
inconsistent references to petitioner’s vaccination status prior to onset of his GBS; the
implausibility of the more detailed account of vaccination provided by petitioner;
references to efforts made to ascertain petitioner’s vaccination status during his
hospitalization for his GBS; and the undisclosed basis for the references to petitioner
becoming ineligible for future flu vaccinations. Considering the record as a whole, there
is not preponderant evidence that petitioner received a flu vaccination at any point in the
days, weeks, or months preceding onset of his GBS.
Petitioner’s contemporaneous medical records reflect that he was inconsistent
during the relevant period in reporting whether he received a flu vaccine for the 2013-14
flu season. (Compare Ex. 1, p. 13 (no on 10/13/13); Ex. 1, p. 29 (no on 10/28/13); Ex. 1,
p. 43 (yes on 11/10/13); Ex. 1, p. 111 (yes on 11/18/13); Ex. 1, p. 170 (no on 11/25/13);
Ex. 4, p. 1988 (vaccinations “current”); Ex. 1, p. 192 (no on 11/28/13); Ex. 4, pp. 633,
636 (no on 11/29/13); Ex. 4, p. 253 (yes on 1/18/14).) Petitioner argues that these
types of screening questions regarding vaccination history “may or may not” constitute
the type of medical record entry that warrants special weight based on the common
understanding that, with proper treatment hanging in the balance, “accuracy has an
extra premium.” (ECF No. 52, p. 2 (citing Andreu v. Sec’y of Health & Human Servs.,
569 F.3d 1367, 1383 (Fed. Cir. 2009).) Importantly, however, even if these records are
not entitled to added weight, petitioner has not provided any specific reason for
supposing that the inaccuracy and inconsistency of these reports originates with the
medical providers in taking petitioner’s history rather than with petitioner in providing it.
Significant to that point, petitioner is separately noted in his medical records as being a
“difficult historian.” (Ex. 1, p. 185.) Moreover, in his filings in this case petitioner
continues to be inconsistent in identifying the time by which he alleges that he was
vaccinated for the 2013-14 flu season, leaving it impossible to even conclude which
reports would have been in error. (Compare ECF No. 1, p. 1. (alleging vaccination on or
about November 10, 2013); ECF No. 7, p. 1 (alleging vaccination in October 2013); Ex.
5, p. 1 (alleging vaccination after surgery on November 18, 2013).)
Additionally, these inconsistent notations were generated at two different facilities
on nine different occasions and both confirm and deny that petitioner was vaccinated.
Many of these notations would have to be incorrect to allow for the record to support
any of petitioner’s various allegations. For example, assuming arguendo petitioner’s
affidavit accurately placed his vaccination post-surgery on November 18, 2013, five
separate notations regarding his vaccination status would necessarily be incorrectly
recorded. (Ex 1, p. 43 (yes on 11/10/13); Ex. 1, p. 111 (yes on 11/18/13); Ex. 1, p. 170
(no on 11/25/13); Ex 1, p. 192 (no on 11/28/13); Ex. 4, pp. 633, 636 (no on 11/29/13).)
Moreover, these notations would not all reflect the same error – in some instances
incorrectly affirming vaccination while in others later incorrectly disclaiming vaccination.
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Accordingly, petitioner’s inconsistency is not easily explained by recordkeeping error.
Nor are his various reports readily harmonized to any of his allegations. Thus, without
more, these notations cannot serve as evidence that any vaccination occurred.
As discussed above, petitioner recalls that he was vaccinated at Carolinas
Hospital following his right forearm surgery. (Ex. 5, p. 1.) Petitioner describes his flu
vaccination as having been administered by a nurse in the emergency room in his left
arm while another nurse was sewing up his right arm after his surgery. (Id.) However,
petitioner’s operative report indicates that his surgery occurred in the operating room
rather than the emergency room. He was under anesthesia and intubated during the
surgery and the wound was stapled, splinted, dressed, and wrapped in the operating
room while petitioner remained under anesthesia. (Ex. 1, pp. 117-18.) After the surgery
he was transferred to the post-anesthesia care unit (“PACU”) not the emergency room.
(Id.) Moreover, in the course of his subsequent medical history, his wound was later
assessed at MRMC. (Ex. 4, pp. 1980-81.) These records further confirm petitioner’s
wound was stapled, not sutured. (Id.) The circumstances petitioner describes simply
do not appear to be possible in light of what his hospitalization records show to have
been his course of care.5
Additionally, while petitioner has been consistent in alleging that he was
vaccinated at Carolinas Hospital, the contemporaneous medical records filed from this
provider are not, on the whole, consistent with that allegation.6 Apart from lacking a
specific vaccine administration record, the records generated during petitioner’s
November 18, 2013 hospitalization at Carolinas Hospital (or any of his other emergency
department encounters around that time) are completely lacking for any notation by any
of the treating doctors or nurses discussing, contemplating, ordering, or administering a
flu vaccination to petitioner during the course of his care. Further to this point, itemized
billing records have been filed for the hospital stay at which petitioner avers his
vaccination occurred and these records reflect no charge for a flu vaccine. (Ex. 7.)
In fact, petitioner’s recollection is flatly contradicted by the specific confirmation
contained in the hospital records that petitioner declined to be vaccinated during this
hospitalization and that no flu vaccination was administered. (Ex. 1, pp. 107, 139.)
Thus, it is not merely the case that petitioner’s vaccine administration record is absent.
Rather, the contemporaneous medical records explicitly deny any vaccination
5 In his recitation of the facts of this case, respondent also stresses several points which he intimates
should weigh against petitioner’s credibility as a witness. (ECF No. 51, pp. 2-8.) In response, petitioner
stresses that this case should not turn on whether petitioner is a sympathetic victim. (ECF No. 52, p. 3.)
In the interest of completeness, I note that due to the facial unreliability of petitioner’s account it is not
necessary to reach the question of petitioner’s credibility with regard to the specific points raised by
respondent.
6 Of note, although petitioner could theoretically have received a vaccination from a pharmacy or in some
other context, he has consistently maintained that his vaccination was administered at Carolinas Hospital.
(ECF No. 1, p. 1; ECF No. 7 p. 1; Ex. 5, p. 1.) Moreover, petitioner has been given ample opportunity to
produce records from any and all relevant care providers and has not filed any vaccination record from
any other provider.
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consistent with petitioner’s recollection. That is, there is not merely absence of
evidence; there is evidence of absence. Accord Murphy, 23 Cl. Ct. at 733 (explaining
that “the absence of a reference to a condition or circumstance is much less significant
than a reference which negates the existence of the condition or circumstance.”) Even
if petitioner is not required to prove the fact of his vaccination with an administration
record, this must necessarily weigh against his allegation.
As noted above, petitioner seeks to rely primarily on the fact that his treaters at
MRMC subsequently recorded that he was allergic to the flu vaccination as evidence
that they concluded his GBS was vaccine-caused and that he had therefore been
previously vaccinated. However, this conclusion is only as valuable as the information
underlying it. 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. §300aa-13(b)(1); Snyder v. Sec'y of
Health & Human Servs., 88 Fed.Cl. 706, 746 n.67 (2009) (“there is nothing ... that
mandates that the testimony of a treating physician is sacrosanct—that it must be
accepted in its entirety and cannot be rebutted”). The views of treating physicians
should also be weighed against other, contrary evidence also present in the record.
Hibbard v. Sec'y of Health & Human Servs., 100 Fed.Cl. 742, 749 (2011) (not arbitrary
or capricious for special master to weigh competing treating physicians' conclusions
against each other), aff'd, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec'y of Health &
Human Servs., 100 Fed.Cl. 119, 136 (2011), aff'd, 463 Fed.Appx. 932 (Fed. Cir. 2012);
Veryzer v. Sec'y of Health & Human 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.Appx. 765 (Fed. Cir. 2012).
In the context of the record of this case, the fact that the physicians at MRMC
recorded petitioner as allergic to the flu vaccine is not persuasive evidence that he
received such a vaccine. As explained above, petitioner’s initial neurology appointment
generated a GBS diagnosis without any reported history of flu vaccination. (Ex. 9, pp.
215-16.) Accordingly, the fact of a vaccination was not a factor in initially arriving at the
GBS diagnosis. MRMC subsequently sought to confirm whether petitioner had been
vaccinated at Carolinas Hospital and specifically confirmed there was no record of
vaccination. (Ex. 4, p. 298.) And, indeed, as noted above, the Carolinas Hospital
records filed in this case explicitly indicate that no flu vaccine was administered during
petitioner’s hospitalization. (Ex. 1, pp. 107, 139.)
The source of information ultimately relied upon in subsequently noting to the
contrary that petitioner’s GBS followed a flu vaccine is not documented (Ex. 9, p. 294);
however, to the extent that source of information would have been petitioner himself, his
contemporaneous medical records document, as explained above, that he already had
an established pattern of inconsistently reporting whether he had received a flu vaccine
that year. Accordingly, reliance on a single, additional instance of this unreliable
reporting by the MRMC treaters does not provide any meaningful evidence buttressing
petitioner’s claim, especially where the treaters initially arrived at their diagnosis without
that information and then tried and failed to confirm the vaccination. Moreover, given
10

Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 11 of 12
that MRMC confirmed that Carolinas Hospital had no record of vaccination, the later
notation that petitioner’s GBS was preceded by a flu vaccine is conspicuous for the lack
of any additional detail or indication of when petitioner purportedly received the
vaccination. Absent that information, it is impossible to glean whether the report
provided to the MRMC staff matched what petitioner now avers in this case or assess
whether the resulting conclusion of a cause-and-effect relationship was reliably
reached.7
It is also worth noting, as petitioner stresses, that the act of marking something
as an allergy or as contraindicated is a precaution against future harm. In that regard,
petitioner’s GBS need not necessarily have been vaccine-caused to warrant the
precaution. The CDC recognizes that the flu vaccine broadly carries “a very small
increased risk” of GBS post-vaccination.8 Accord National Vaccine Injury Compensation
Program: Revisions to the Vaccine Injury Table, 82 Fed. Reg. 6294-01, 6295 (Jan. 19,
2017) (explaining that “the Secretary found that there was compelling, reliable, and valid
medical and scientific evidence of an association between the 2009 H1N1 vaccine and
GBS . . . To date, the H1N1 antigen has been included in all seasonal influenza
vaccines beginning with the 2010-2011 flu season.”) Thus, individuals who have
7 See Gerard v. Sec’y of Health & Human Servs., No. 08-786V, 2013 WL 6916045 (Fed. Cl. Spec. Mstr.
Dec. 16, 2013), reconsideration granted 2014 WL 4293342 (Fed. Cl. Spec. Mstr. Aug. 8, 2014). Like this
case, the Gerard petitioner sought to prove in the absence of a vaccine administration record that he had
received a flu vaccine prior to onset of his GBS based on circumstantial medical record notations. Initially
the special master observed that there were inconsistent entries in the medical records insofar as a nurse
had recorded one entry listing the flu vaccine under petitioner’s allergies and another documenting that
petitioner had a “reaction” to his flu vaccine while also documenting that the petitioner had not received a
flu vaccine. 2013 WL 6916045 at *2-3. The special master reasoned that the contradiction was
explained by the fact that the flu vaccine is contraindicated for individuals who have previously had GBS.
Id. at n. 4. Reviewing the medical records as a whole, the special master concluded that there was not
preponderant evidence of any flu vaccine having been administered despite, inter alia, the notation that
the petitioner was allergic to the flu vaccine. However, the petitioner subsequently moved for
reconsideration and was provided an opportunity to file additional medical records. On reconsideration,
the special master observed that multiple of petitioner’s medical records indicated not merely that
petitioner was “allergic” to the flu vaccine, but that petitioner had in fact “had an ‘allergic reaction to the flu
shot in the form of GBS.’” Id. at *4. The special master also reconsidered fact witness testimony and
ultimately concluded that there was preponderant evidence of a vaccine having been administered. 2014
WL 4293342. Accordingly, even though the special master ultimately concluded that there was
preponderant evidence of a vaccination having been administered, that conclusion was based on medical
record notations explicitly indicating that the physicians felt the specific prior episode of GBS at issue had
been a reaction to a flu vaccine. Even after reconsideration the Gerard case suggests that in the context
of GBS a contraindication for future flu vaccinations, or identification of the flu vaccine as an allergy, does
not in itself evidence the fact of a prior vaccination having occurred. Here, like Gerard, there is a notation
indicating that petitioner’s prior GBS was a reaction to his vaccination. (Ex. 4, p. 544; Ex. 9, p. 294.)
However, when considering the record as a whole, this case is distinguishable from Gerard in that for all
the reasons discussed above there is not adequate evidence that the treater’s conclusion was reliability
reached in this case or that any flu vaccine was administered at all.
8 See, e.g. “Vaccine Information Statement” for Inactivated Influenza vaccine, current edition date
8/6/2019, Centers for Disease Control and Prevention, available at www.cdc.gov/vaccines/hcp/vis/vis-
statements/flu.html, last accessed on 8/6/2021.
11

Case 1:19-vv-00414-MBH Document 54 Filed 09/15/21 Page 12 of 12
previously suffered GBS are generally cautioned against receipt of the flu vaccine
without specific respect to the underlying trigger of their prior GBS.9
VI. Conclusion
Petitioner does have my sympathy for what he endured during what was clearly a
severe course of GBS. However, for all of reasons discussed above, neither petitioner’s
medical records nor his affidavit, alone or in combination, provide preponderant
evidence that any flu vaccination was administered to petitioner in the days, weeks, or
months prior to the onset of his GBS. Accordingly, this petition is DISMISSED.10
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
9 See, e.g. “Who Should and Who Should NOT get a Flu Vaccine,” Centers for Disease Control and
Prevention, www.cdc.gov/flu/prevent/whoshoudvax.htm, last accessed 8/18/2021. In response to the
prompt “People who should talk to their health care provider before getting a flu shot,” the CDC indicates
“[i]f you ever had Guillain-Barre Syndrome (a severe paralyzing illness, also called GBS). Some people
with a history of GBS should not get the flu vaccine. Talk to your doctor about your GBS history.”
10 In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall enter
judgment accordingly.
12

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_19-vv-00414-1
Date issued/filed: 2022-01-31
Pages: 15
Docket text: JUDGE VACCINE REPORTED OPINION re: 58 Order on Motion for Review, Judge Vaccine Order/Opinion Signed by Senior Judge Marian Blank Horn. (tjk) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 1 of 15
In the United States Court of Federal Claims
No. 19-414V
Filed: December 9, 2021
Reissued for Publication: January 31, 20221
* * * * * * * * * * * * * * * * * * *
*
JOHNNY MATTHEWS,
*
*
Petitioner,
*
v. *
*
SECRETARY OF HEALTH AND
*
HUMAN SERVICES,
*
*
Respondent.
*
*
* * * * * * * * * * * * * * * * * * *
Renée J. Gentry, Vaccine Injury Clinic, George Washington University Law
School, Washington, DC, for petitioner.
Ryan D. Pyles, Senior Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, Washington, DC, for respondent. With him were Heather L.
Pearlman, Deputy Director, Torts Branch, Civil Division, C. Salvatore D’Alessio, Acting
Director, Torts Branch, Civil Division, and Brian M. Boynton, Acting Assistant Attorney
General, Civil Division.
O P I N I O N
HORN, J.
On March 19, 2019, petitioner Johnny Matthews filed a pro se petition in this court
under the National Childhood Vaccine Injury Act 42 U.S.C. § 300aa-10 (2018). Petitioner
claimed he “received the Influenza Vaccine on or around November 10, 2013, at the
emergency room, Carolinas Hospital System in Florence, South Carolina,” and that “[his]
GBS [Guillain-Barré Syndrome] was caused-in-fact by the Influenza Vaccine
administered on November 10, 2013.” As a result, “[p]etitioner respectfully seeks an
award in accordance with the [National Childhood Vaccine Injury] Act, including but not
limited to an award of pain and suffering, out-of-pocket medical expenses, and costs.”
1 This Opinion was issued under seal on December 9, 2021. The parties did not propose
any redactions to the December 9, 2021 Opinion, and the court, therefore, issues the
Opinion without redactions for public distribution.

Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 2 of 15
Initially, petitioner attempted to proceed in forma pauperis. He subsequently obtained
counsel. From October 14, 2019 to September 29, 2020, petitioner filed numerous
medical records pertaining to his hospital visits from 2013 and 2014. On February 23,
2021, petitioner moved for a finding of fact to prove that “he received an influenza
vaccination on or about November 10, 2013.”2 Respondent opposed the motion and
cross-moved for dismissal, arguing that petitioner had failed to produce a record of
vaccine administration.
On August 19, 2021, after reviewing the extensive medical records that petitioner
submitted, Special Master Horner dismissed the petition stating there was “not
preponderant evidence that petitioner received a vaccination covered by this program.”
Matthews v. Sec’y of Health & Human Servs., No 19-414V, 2021 WL 4190265, at *1 (Fed.
Cl. Aug. 19, 2021). On September 17, 2021, after the public version of the Special
Master’s decision was released, petitioner filed a motion for review in this court, claiming
that “[t]he Special Master abused his discretion by characterizing Petitioner’s medical
records in such a way as to give them dispositive weight against petitioner as to the issue
of vaccination.” The motion for review was assigned to the undersigned.
In relevant part, the facts in the record depict the following: On October 13, 2013,
petitioner presented himself to the Carolinas Hospital System emergency department in
Florence, South Carolina for chronic lower back pain. Petitioner was diagnosed with acute
lumbar strain. A screening assessment from this visit indicated “no” under the prompt “flu
vaccine this season.” When petitioner returned to the Carolinas Hospital System
emergency department on October 28, 2013, for scabies, his screening assessment listed
the same response of “no” to the prompt “flu vaccine this season.” Less than two weeks
later, on November 10, 2013, petitioner returned to the Carolinas Hospital System
emergency department for a swollen painful toe assessed as a right-toe contusion. This
time, the prompt “flu vaccine this season” on the screening assessment elicited a printed
“yes,” without any additional details such as when or where the vaccine was administered.
The billing statement for services provided during this visit did not include a charge for an
influenza vaccination.
On November 13, 2013, petitioner presented to the McLeod Regional Medical
Center emergency department in Florence, South Carolina for cough, congestion, and
pain on his right side. A laboratory report dated November 14, 2013, showed petitioner
tested negative for both the Influenza A and B antigen tests. A billing statement from the
November 13, 2013, visit to the McLeod Regional Medical Center showed the petitioner
was billed for antigen tests, but not for an influenza vaccination.
On November 18, 2013, petitioner returned to the Carolinas Hospital System
emergency department for a severe right forearm laceration sustained from a knife attack.
Petitioner was admitted for surgery to repair his forearm. A screening assessment from
2 Petitioner states he received the influenza vaccination at issue “on or around November
10, 2013” in his petition. In his motion for finding of fact, however, petitioner states he
received the influenza vaccination “on or about November 10, 2013.”
2

Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 3 of 15
this visit listed “yes” as the response to the prompt “flu vaccine this season,” again with
no elaboration of when or where an influenza vaccine had been administered. The billing
statement from this stay reflected no billing for an influenza vaccination.
Petitioner alleges that a nurse administered an influenza vaccination in the
emergency room at Carolinas Hospital System emergency department during his
hospitalization starting on November 18, 2013. Petitioner claims a nurse administered the
influenza vaccination in his left arm while another nurse sewed up his right arm after the
surgery to repair his laceration. He claims the influenza vaccination occurred in the
Carolinas Hospital System emergency department. This is inconsistent with the report
from petitioner’s surgery, which states that the surgery, along with the subsequent
stapling, splintering, dressing, and wrapping of his wound, were performed in an operating
room while he was under anesthesia and intubated. The report further states that, after
his surgery, petitioner was transferred to a Carolinas Hospital System post-anesthesia
care unit, not to the emergency department.
Petitioner was discharged from the Carolinas Hospital System on November 21,
2013. Petitioner’s Patient Discharge Summary had “No” printed next to the prompt
“Influenza Admin.” A form in petitioner’s medical records signed by a nurse and dated
November 21, 2013, marked that petitioner refused vaccination. The form also included
an unchecked box next to the prompt “Previously immunized this flu season.” The billing
statement from petitioner’s November 18-21, 2013, hospital stay did not include a charge
for an influenza vaccination.
On November 25, 2013, petitioner returned to the Carolinas Hospital System
emergency department for moderate numbness and tingling in his hands and legs. He
was assessed with hyperventilation syndrome. The screening assessment from this visit
indicated “no” in response to the prompt “flu vaccine this season.” As with the previous
visits to the Carolinas Hospital System, the billing statement for services during this visit
reflected no charge for a vaccination. On November 27, 2013, petitioner returned to the
McLeod Regional Medical Center emergency department for anxiety, chest pain,
shortness of breath, and numbness. His immunizations were noted as “current” without
any specification. Petitioner was diagnosed with numbness of the arms and legs, after
which he left the hospital against medical advice.
On November 28, 2013, petitioner returned to the Carolinas Hospital System
emergency department, at which time he presented with difficulty standing and walking.
Petitioner was assessed with neuropathy, after which he agreed to follow up with a
neurologist. Once again, the screening prompt “flu vaccine this season” elicited a “no.”
Similar to the other billing statements, the billing statement from this visit showed no
charge for a vaccination. On November 29, 2013, petitioner returned to the McLeod
Regional Medical Center for what was diagnosed as GBS. Upon admission, medical
records again indicated he had not received an influenza vaccine for the 2013-2014 flu
season. An order was entered to administer an influenza vaccination at discharge.
Petitioner then consulted with a neurologist on December 6, 2013. While making no
3

Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 4 of 15
reference to any vaccination history, the neurologist diagnosed petitioner with probable
GBS, which was later confirmed.
A notation in petitioner’s medical records dated December 12, 2013, instructed a
nurse at McLeod Regional Medical Center to call the Carolinas Hospital System to
confirm whether petitioner had received an influenza shot during his prior admission. This
notation was followed by the word “done,” with no date shown. Clinical notes from that
same date state a pharmacist at the Carolinas Hospital System confirmed “there are no
records of pt [patient] receiving the vaccination.”
On December 21, 2013, a notation in the petitioner’s medical record from the
McLeod Regional Medical Center indicated the influenza vaccine should be added to
petitioner’s list of allergies. This notation was followed by another stating petitioner had a
“recent shot followed by Guillain-Barre Syndrome.” The basis for these notations is
unknown as the clinic notes from December 21, 2013, did not indicate who or which
record provided this information. Following the notations regarding an allergy to the
Influenza vaccine, petitioner’s medical record was updated to include the vaccine among
his allergies. The order for vaccination issued on November 29, 2013, was then
discontinued.
On January 7, 2014, a consultation for pain management indicated no known drug
allergies. Petitioner’s medical records further indicated that he “is now no longer a
candidate for the flu shot.” From this consultation on, petitioner reported to other health
providers that his GBS was caused by an influenza vaccination and the vaccine continued
to be listed as an allergy. On January 18, 2014, before his discharge from the McLeod
Regional Medical Center, petitioner was recorded as having reported to a nurse that he
was previously vaccinated. On January 19, 2014, petitioner’s medical records reflected a
severe allergy to the influenza vaccine. On February 24, 2014, petitioner’s medical record
indicated that “he got GBS from getting a flu shot.”
As noted above, petitioner filed his original petition in this case on March 19, 2019,
initially pro se. On March 20, 2019, a notice of the entry of appearance by Heather
Pearlman as attorney of record for respondent was filed. On March 21, 2019, the case
was assigned to Special Master Herbrina Sanders. On August 30, 2019, the case was
reassigned to Special Master Daniel Horner. On March 25, 2019, petitioner filed a motion
to proceed in forma pauperis, which, according to the docket, was terminated on March
26, 2019. Petitioner appealed and, on March 28, 2019, Special Master Herbrina granted
the motion to proceed in forma pauperis. After Ryan Pyles filed a notice of appearance
for respondent, Renée Gentry filed a motion to substitute as petitioner’s attorney on April
29, 2019, which the Special Master granted. Currently, Ms. Gentry, as part of the George
Washington University Law School Vaccine Injury Clinic, remains the attorney of record
for petitioner. On May 8, 2019, an order to vacate the previous order granting petitioner
in forma pauperis status was filed.
On October 14, 2019, petitioner filed his extensive medical records from the
Carolina Hospital, the Carolina Pines Regional Medical Center, the McLeod Regional
4

Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 5 of 15
Medical Center, and HopeHealth, as exhibits before the Special Master. The exhibits also
included an affidavit detailing petitioner’s own account of his vaccination status. In his
affidavit, petitioner claimed “he received the influenza vaccination on or about November
18, 2013.” On March 27, 2020, petitioner filed yet additional medical records from the
McLeod Regional Medical Center. On April 14, 2020, petitioner also filed further medical
records from the McLeod Regional Medical Center. On August 16, 2020, petitioner once
more filed further documents regarding billing at the Carolinas Hospital Center and the
McLeod Regional Medical Center and, on September 29, 2020, petitioner filed additional
medical records from the McLeod Regional Medical Center. After all these medical
records were filed, the parties filed various status reports, and on December 17, 2020,
Special Master Horner gave petitioner another chance to file any “additional evidence of
additional evidence of his alleged injury-causing vaccination.”
On February 23, 2021, petitioner filed a motion for ruling on the record. As noted
above, petitioner again requested that the Special Master issue a finding of fact that he
had “received an influenza vaccination on or about November 10, 2013.” In the motion
for ruling on the record, petitioner noted that one of his many screening assessments did
indicate that he had received an influenza vaccination for the 2013-2014 flu season. Most
of petitioner’s motion focused on the recorded doctors’ notes that associated his GBS
with an influenza vaccination and the adverse health effects he suffers as a result.
Petitioner contended that “the weight of the circumstantial evidence” “supports a finding
that Petitioner received the influenza vaccination on or about November 10, 2013.”
On March 9, 2021, respondent filed a response to the petitioner’s motion.
Respondent did not oppose a finding of fact by the Special Master, but answered that the
record did not establish by a preponderance of the evidence that petitioner had in fact
received the influenza vaccine and, therefore, respondent moved for dismissal of
petitioner’s claim for failure to demonstrate the receipt of an influenza vaccine and when
it was received. Respondent, therefore, cross-moved for dismissal of petitioner’s claim
for failure to establish, as a threshold matter, that petitioner had indeed received an
influenza vaccination for the year in question. Respondent focused on the numerous
inconsistencies in petitioner’s hospital screening assessments prior to the GBS diagnosis,
most of which indicated that petitioner had not received a vaccine for the 2013-2014 flu
season. Respondent argued that the doctors’ notes pertaining to a linkage between
petitioner’s GBS diagnosis and an influenza vaccine administration were not sufficient to
establish petitioner’s claim. Respondent noted that the medical record also indicated that
petitioner was struggling with substance abuse issues. Respondent claimed that due to
the internal inconsistencies in petitioner’s medical records and those between the medical
records and petitioner’s affidavit detailing the vaccine administration, petitioner failed to
provide preponderant evidence that a vaccination had been administered to the petitioner
as alleged.
On March 16, 2021, petitioner filed a reply brief and once again maintained that he
had “received the influenza vaccination on or about November 10, 2013.” Petitioner
argued that direct medical documentation of the vaccination is not required to meet the
preponderance of the evidence standard. He claimed the records reflecting that his GBS
5

Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 6 of 15
followed an influenza vaccination, and those indicating he was allergic to the influenza
vaccine, were more important than the earlier inconsistent screening assessments.
Petitioner also noted that medical staff had been critical of him due to what the staff
viewed as “drug-seeking behavior.” He acknowledged that he was not a sympathetic
victim, but argued that this was irrelevant to his case. Petitioner again asserted that, when
viewing the record as a whole, there was preponderant evidence that he had received an
influenza vaccination.
On August 19, 2021, Special Master Horner issued an appropriately reasoned
decision dismissing the petition. See generally Matthews v. Sec’y of Health & Human
Servs., 2021 WL 4190265. The Special Master wrote:
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. §300aa-13(b)(1);
Snyder v. Sec’y of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009)
(“there is nothing . . . that mandates that the testimony of a treating physician
is sacrosanct—that it must be accepted in its entirety and cannot be
rebutted”). The views of treating physicians should also be weighed against
other, contrary evidence also present in the record. Hibbard v. Sec’y of
Health & Human Servs., 100 Fed. Cl. 742, 749 (2011) (not arbitrary or
capricious for special master to weigh competing treating physicians’
conclusions against each other), aff’d, 698 F.3d 1355 (Fed. Cir. 2012);
Caves v. Sec’y of Health & Human Servs., 100 Fed. Cl. 119, 136 (2011),
aff’d, 463 Fed. Appx. 932 (Fed. Cir. 2012); Veryzer v. Sec’y of Health &
Human Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec.
Mstr. Apr. 29, 2011), mot. for review denied, 100 Fed. Cl. 344, 356 (2011),
aff’d without opinion, 475 Fed. Appx. 765 (Fed. Cir. 2012).
Matthews v. Sec’y of Health & Human Servs., 2021 WL 4190265, at *7. When addressing
the medical notation that petitioner’s GBS occurred after receiving an influenza shot, the
Special Master wrote further:
The source of information ultimately relied upon in subsequently noting to
the contrary that petitioner’s GBS followed a flu vaccine is not documented
(Ex. 9, p. 294); however, to the extent that source of information would have
been petitioner himself, his contemporaneous medical records document,
as explained above, that he already had an established pattern of
inconsistently reporting whether he had received a flu vaccine that year.
Accordingly, reliance on a single, additional instance of this unreliable
reporting by the MRMC treaters does not provide any meaningful evidence
buttressing petitioner’s claim, especially where the treaters initially arrived
at their diagnosis [of GBS] without that information and then tried and failed
to confirm the vaccination. Moreover, given that MRMC [McLeod Regional
Medical Center] confirmed that Carolinas Hospital had no record of
vaccination, the later notation that petitioner’s GBS was preceded by a flu
6

Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 7 of 15
vaccine is conspicuous for the lack of any additional detail or indication of
when petitioner purportedly received the vaccination.
Id. at *8 (capitalization in original; brackets added). Special Master Horner cited the
various inconsistencies in the record, stating: “Additionally, these inconsistent notations
were generated at two different facilities on nine different occasions, and both confirm
and deny that petitioner was vaccinated. Many of these notations would have to be
incorrect to allow for the record to support any of petitioner’s various allegations.” Id. at
*6. Due to these inconsistencies, the Special Master stated that “neither petitioner’s
medical records nor his affidavit, alone or in combination, provide preponderant evidence
that any flu vaccination was administered to petitioner in the days, weeks, or months prior
to the onset of his GBS.” Id. at *9.
Special Master Horner determined: “I find that there is not preponderant evidence
that petitioner received a vaccination covered by this program and therefore dismiss this
petition.” Id. at *1. As noted above, on September 17, 2021, petitioner filed a motion for
review in this court. The motion for review was assigned to the undersigned. On October
18, 2021, respondent filed a response to petitioner’s motion for review.
DISCUSSION
When reviewing a Special Master’s decision, the assigned Judge of the United
States Court of Federal Claims shall:
(A) uphold the findings of fact and conclusions of law of the special master
and sustain the special master's decision,
(B) set aside any findings of fact or conclusions of law of the special
master found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law and issue its own findings of fact and conclusions
of law, or
(C) remand the petition to the special master for further action in
accordance with the court's direction.
Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 867 (Fed. Cir. 1992); see also
42 U.S.C. § 300aa-12(e)(2) (2018). The legislative history of the Vaccine Act states: “The
conferees have provided for a limited standard for appeal from the [special] master’s
decision and do not intend that this procedure be used frequently, but rather in those
cases in which a truly arbitrary decision has been made.” H.R. Conf. Rep. No. 101-386,
at 516–17, reprinted in 1989 U.S.C.C.A.N. 3018, 3120.
In Markovich v. Secretary of Health & Human Services, the United States Court of
Appeals for the Federal Circuit wrote, “[u]nder the Vaccine Act, the Court of Federal
Claims reviews the Chief Special Master's decision to determine if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.’ 42 U.S.C.
§ 300aa-12(e)(2)(B).” Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353,
7

Case 1:19-vv-00414-MBH Document 61 Filed 01/31/22 Page 8 of 15
1355-56 (Fed. Cir.), cert. denied, 552 U.S. 816 (2007); see also K.G. v. Sec’y of Health
& Human Servs., 951 F.3d 1374, 1379 (Fed. Cir. 2020); Oliver v. Sec’y of Health & Human
Servs., 900 F.3d 1357, 1360 (Fed. Cir. 2018) (citing Milik v. Sec’y of Health & Human
Servs., 822 F.3d 1367, 1375-76 (Fed. Cir. 2016)); Deribeaux ex rel. Deribeaux v. Sec’y
of Health & Human Servs., 717 F.3d 1363, 1366 (Fed. Cir.), reh’g and reh’g en banc
denied (Fed. Cir. 2013) (The United States Court of Appeals for the Federal Circuit stated
that “we ‘perform[ ] the same task as the Court of Federal Claims and determine[ ] anew
whether the special master’s findings were arbitrary or capricious.’” (brackets in original)
(quoting Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.
2000))); W.C. v. Sec’y of Health & Human Servs., 704 F.3d 1352, 1355 (Fed. Cir. 2013);
Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355, 1363 (Fed. Cir. 2012); de
Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed. Cir. 2008); Avera
v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir.) (“Under
the Vaccine Act, we review a decision of the special master under the same standard as
the Court of Federal Claims and determine if it is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” (quoting 42 U.S.C. § 300aa-
12(e)(2)(B))), rehearing and rehearing en banc denied (Fed. Cir. 2008); Althen v. Sec’y
of Health & Human Servs., 418 F.3d at 1277; Faup v. Sec’y of Health & Human Servs.,
147 Fed. Cl. 445, 458 (2019); Dodd v. Sec’y of Health & Human Servs., 114 Fed. Cl. 43,
47 (2013); Taylor v. Sec'y of Health & Human Servs., 108 Fed. Cl. 807, 817 (2013). The
abuse of discretion standard is applicable when the special master excludes evidence or
limits the record upon which he or she relies. See Munn v. Sec’y of Health & Human
Servs., 970 F.2d at 870. The United States Court of Appeals for the Federal Circuit has
indicated that:
These standards vary in application as well as degree of deference. Each
standard applies to a different aspect of the judgment. Fact findings are
reviewed by us, as by the Claims Court judge, under the arbitrary and
capricious standard; legal questions under the “not in accordance with law”
standard; and discretionary rulings under the abuse of discretion standard.
The latter will rarely come into play except where the special master
excludes evidence.
Id. at 871 n.10; see also Carson ex rel. Carson v. Sec’y of Health & Human Servs., 727
F.3d 1365, 1369 (Fed. Cir. 2013); Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human
Servs., 717 F.3d at 1366; W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1355;
Griglock v. Sec’y of Health & Human Servs., 687 F.3d 1371, 1374 (Fed. Cir. 2012); Porter
v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011) (citing
Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1345) (explaining that the
reviewing court “do[es] not reweigh the factual evidence, assess whether the special
master correctly evaluated the evidence, or examine the probative value of the evidence
or the credibility of the witnesses—these are all matters within the purview of the fact
finder”) reh’g and reh’g en banc denied (Fed. Cir. 2012); Dodd v. Sec’y of Health & Human
Servs., 114 Fed. Cl. at 56. “[T]he special masters have broad discretion to weigh evidence
and make factual determinations.” Dougherty v. Sec'y of Health & Human Servs., 141
Fed. Cl. 223, 229 (2018). As explained by the federal circuit:
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With regard to both fact-findings and fact-based conclusions, the key
decision maker in the first instance is the special master. The Claims Court
owes these findings and conclusions by the special master great deference
– no change may be made absent first a determination that the special
master was “arbitrary and capricious.”
Munn v. Sec’y of Health & Human Servs., 970 F.2d at 870; see also 42 U.S.C. § 300aa-
12(e)(2)(B).
Generally, “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.’” Hibbard v. Sec’y of Health & Human
Servs., 698 F.3d at 1363 (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d
1518, 1528 (Fed. Cir. 1991)); see also Porter v. Sec'y of Health & Human Servs., 663
F.3d at 1253-54; Lampe v. Sec'y of Health & Human Servs., 219 F.3d at 1360; Avila ex
rel. Avila v. Sec'y of Health & Human Servs., 90 Fed. Cl. 590, 594 (2009); Dixon v. Sec'y
of Health & Human Servs., 61 Fed. Cl. 1, 8 (2004) (“The court's inquiry in this regard must
therefore focus on whether the Special Master examined the ‘relevant data’ and
articulated a ‘satisfactory explanation for its action including a rational connection
between the facts found and the choice made.’” (quoting Motor Vehicle Mfrs. Association
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (quoting Burlington Truck Lines,
Inc. v. United States, 371 U.S. 156, 168 (1962)))).
As noted by the United States Court of Appeals for the Federal Circuit:
Congress assigned to a group of specialists, the Special Masters within the
Court of Federal Claims, the unenviable job of sorting through these painful
cases and, based upon their accumulated expertise in the field, judging the
merits of the individual claims. The statute makes clear that, on review, the
Court of Federal Claims is not to second guess the Special Masters [sic]
fact-intensive conclusions; the standard of review is uniquely deferential for
what is essentially a judicial process. Our cases make clear that, on our
review of the judgment of the Court of Federal Claims, we remain equally
deferential. That level of deference is especially apt in a case in which the
medical evidence of causation is in dispute.
Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1366-
67 (modification in original) (quoting Hodges v. Sec’y of Health & Human Servs., 9 F.3d
958, 961 (Fed. Cir. 1993)); Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at
1363; Locane v. Sec’y of Health & Human Servs., 685 F.3d 1375, 1380 (Fed. Cir. 2012).
The United States Court of Appeals for the Federal Circuit has explained that the
reviewing courts “‘do not sit to reweigh the evidence. [If] the special master's conclusion
[is] based on evidence in the record that [is] not wholly implausible, we are compelled to
uphold that finding as not being arbitrary and capricious.’” Deribeaux ex rel. Deribeaux v.
Sec’y of Health & Human Servs., 717 F.3d at 1367 (modification in original) (quoting
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Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1363); see also K.G. v. Sec’y of
Health & Human Servs., 951 F.3d at 1379 (“With respect to factual findings, however, we
will uphold the special master's findings of fact unless they are clearly erroneous.”
(citing Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278)); Hibbard v. Sec’y of
Health & Human Servs., 698 F.3d at 1363 (citing Cedillo v. Sec’y of Health & Human
Servs., 617 F.3d at 1338).
The United States Court of Appeals for the Federal Circuit has explained that:
A petitioner can establish causation in one of two ways. Id. [Broekelschen
v. Sec'y of Health & Human Servs., 618 F.3d at 1341] If the petitioner shows
that he or she received a vaccination listed on the Vaccine Injury Table, 42
U.S.C. § 300aa–14, and suffered an injury listed on that table within a
statutorily prescribed time period, then the Act presumes the vaccination
caused the injury. Andreu [ ex rel. Andreu] v. Sec'y of Health & Human
Servs., 569 F.3d 1367, 1374 (Fed. Cir. 2009). Where, as here, the injury is
not on the Vaccine Injury Table, the petitioner may seek compensation by
proving causation-in-fact.
Milik v. Sec’y of Health & Human Servs., 822 F.3d at 1379 (citing Andreu ex rel. Andreu
v. Sec’y of Health & Human Servs., 569 F.3d at 1374); see also W.C. v. Sec’y of Health
& Human Servs., 704 F.3d at 1356; Broekelschen v. Sec’y of Health & Human Servs.,
618 F.3d at 1346; Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1356 (Fed.
Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2006), cert. denied, 551 U.S. 1102 (2007);
Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1147-48 (Fed. Cir. 1992); Faup
v. Sec’y of Health & Human Servs., 147 Fed. Cl. at 458; Dodd v. Sec’y of Health & Human
Servs., 114 Fed. Cl. at 50; Paluck v. Sec’y of Health & Human Servs., 104 Fed. Cl. 457,
467-68 (2012); Fesanco v. Sec’y of Health & Human Servs., 99 Fed. Cl. 28, 31 (2011).
When proving eligibility for compensation for a petition under the Vaccine Act, such
as the one filed by Mr. Matthews, a petitioner must establish by a preponderance of the
evidence that he received a vaccine set forth in the Vaccine Injury Table and that injury
caused by the vaccination occurred within the required amount of time. See Althen v.
Sec’y of Health & Human Servs., 418 F.3d at 1278; see also 42 U.S.C. § 300aa-
11(c)(1)(A). Regarding the preponderance of the evidence standard, the Vaccine Act
requires “‘the trier of fact to believe that the existence of a fact is more probable than its
nonexistence before [he] may find in favor of the party who has the burden to persuade
the [judge] of the fact’s existence.’” Moberly ex rel. Moberly v. Sec’y of Health and Human
Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (quoting Concrete Pipe & Prods. of Cal.,
Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993)). In
demonstrating this preponderance of evidence, petitioner may not rely on his or her
testimony alone to establish preponderant evidence of vaccine administration. According
to the Vaccine Act, “[t]he special master or court may not make such a finding based on
the claims of a petitioner alone, unsubstantiated by medical records or by medical
opinion.” 42 U.S.C. § 300aa-13(a)(1).
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In weighing the evidence pertaining to proof of vaccination, the Special Master has
discretion to determine the relative weight of the evidence presented, including
contemporaneous medical records and oral testimony. See Burns v. Sec’y of Health &
Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (finding that the Special Master had
thoroughly considered evidence in record, had discretion not to hold an additional
evidentiary hearing); see also Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at
1368 (finding it was not arbitrary or capricious for the Special Master to weigh diagnoses
of different treating physicians against one another, including when their opinions
conflict).
“Clearly it is not then the role of this court to reweigh the factual evidence,
or to assess whether the special master correctly evaluated the evidence.
And of course we do not examine the probative value of the evidence or the
credibility of the witnesses. These are all matters within the purview of the
fact finder.”
Dodd v. Sec’y of Health & Human Servs., 114 Fed. Cl. at 56 (quoting Munn v. Sec’y of
Health & Human Servs., 970 F.2d at 870 n.10); see also Rich v. Sec’y of Health & Human
Servs., 129 Fed. Cl. 642, 655 (2016); Paluck v. Sec'y of Health & Human Servs., 104
Fed. Cl. at 467 (“So long as those findings are ‘based on evidence in the record that [is]
not wholly implausible,’ they will be accepted by the court.” (quoting Lampe v. Sec’y of
Health & Human Servs., 219 F.3d at 1363 (alteration in original))). “Determinations
subject to review for abuse of discretion must be sustained unless ‘manifestly erroneous.’”
Heddens v. Sec’y of Health & Human Servs., 143 Fed. Cl. 193 (2019) (quoting Piscopo
v. Sec’y of Health & Human Servs., 66 Fed. Cl. 49, 53 (2005) (citations omitted)).
Additionally, a Special Master is “not required to discuss every piece of evidence
or testimony in [his or] her decision.” Snyder ex rel. Snyder v. Sec’y of Health & Human
Servs., 88 Fed. Cl. 706, 728 (2009) (brackets added). As explained by a Judge of the
United States Court of Federal Claims:
“[W]hile the special master need not address every snippet of evidence
adduced in the case, see id. [Doe v. Sec'y of Health & Human Servs., 601
F.3d 1349, 1355 (Fed. Cir. 2010)], he [or she] cannot dismiss so much
contrary evidence that it appears that he ‘simply failed to consider genuinely
the evidentiary record before him [or her].’” (brackets added)
(quoting Campbell v. Sec’y of Health & Human Servs., 97 Fed. Cl. 650, 668
(2011))).
A Special Master is required to acknowledge that “the purpose of the Vaccine Act’s
preponderance standard is to allow the finding of causation in a field bereft of complete
and direct proof of how vaccines affect the human body,” even if the possible link between
the vaccine and the injury is "hitherto unproven.” Althen v. Sec’y of Health & Human
Servs., 418 F.3d at 1280; see Porter v. Sec’y of Health & Human Servs., 663 F.3d at
1261. In that vein, “close calls regarding causation are resolved in favor of injured
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claimants.” Id. (citing Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548-49
(Fed. Cir. 1994)).
With regard to the Special Master’s weighing of evidence when testimony conflicts
with contemporaneous medical records, a Special Master generally should afford
contemporaneous medical records greater weight than conflicting testimony offered after
the fact. See Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (citing
United States v. United States Gypsum Co., 333 U.S. 364, 396 (1948) (“It has generally
been held that oral testimony which is in conflict with contemporaneous documents is
entitled to little evidentiary weight.”)), aff’d, 968 F.2d 1226 (Fed. Cir.), reh’g denied (Fed.
Cir. 1992). This is because medical records, created contemporaneously with the events
they describe are presumed to be accurate and complete. See Cucuras v. Sec’y of Health
& Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
In his motion for review, petitioner claims that:
It is not Mr. Matthews’ burden to explain the inconsistency in the records,
and it was an abuse of discretion on the part of the Special Master to require
it and specifically, to use Mr. Matthews inability to explain it as the lens
through which he viewed the evidence.
Petitioner further claims that “[t]he Special Master abused his discretion by
characterizing Petitioner’s medical records in such a way as to give them dispositive
weight against petitioner as to the issue of vaccination.” Petitioner asserted this
characterization led the Special Master to conclude there was not preponderant evidence
that a vaccination occurred. Petitioner maintained that he had demonstrated, by
preponderance of the evidence, that he had received the influenza vaccine, as referenced
in his medical records. The Court notes, however, that from the time Ryan Pyles filed a
notice of appearance to represent respondent, Mr. Matthews was no longer appearing
pro se and, during the majority of the proceedings in this case, he was represented.
As explained above, in this case, petitioner has the burden to demonstrate, by
preponderant evidence, that his medical records establish that he had received the
influenza vaccination at a time that it could be recognized by the Vaccine Compensation
Injury Program as causation for petitioner’s GBS. See 300aa-11(c)(1). The Vaccine Act
indicates that “[t]he special master or court may not make such a finding based on the
claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.”
42 U.S.C. § 300aa-13(a)(1) If the Special Master finds that the petitioner has not met his
burden and this decision was not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law, the reviewing court shall uphold that
decision. See 42 U.S.C. § 300aa-12(e)(2).
The Special Master found that petitioner failed to demonstrate, by preponderant
evidence, that he had received an influenza vaccination in the months before the onset
of his GBS. The Special Master’s decision explained:
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Considering the record as a whole, several aspects of petitioner’s medical
history warrant discussion, namely: inconsistent references to petitioner’s
vaccination status prior to onset of his GBS; the implausibility of the more
detailed account of vaccination provided by petitioner; references to efforts
made to ascertain petitioner’s vaccination status during his hospitalization
for his GBS; and the undisclosed basis for the references to petitioner
becoming ineligible for future flu vaccinations. Considering the record as a
whole, there is not preponderant evidence that petitioner received a flu
vaccination at any point in the days, weeks, or months preceding onset of
his GBS.
Matthews v. Sec’y of Health & Human Servs., 2021 WL 4190265, at *6.
After careful review of the record and the Special Master’s decision to dismiss Mr.
Matthews’ petition, the court finds that Special Master Horner’s decision was not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. See 42 U.S.C.
§ 300aa-12(e)(2). Petitioner failed to meet his burden of demonstrating by a
preponderance of the evidence that he had received an influenza vaccination in the time
leading up to the onset of his GBS. § 300aa-11(c)(1)(A). The unexplained and plentiful
inconsistencies in the record before the Special Master render the evidence petitioner
tried to rely on insufficient to support petitioner’s claim of having received the vaccination
at a time that could have caused petitioner’s GBS. These inconsistencies include the
contradictory responses to the vaccination prompts on the hospital screening
assessments, the differing dates on which petitioner claims he received an influenza
vaccination, and the differing details of what occurred during his November 18-21, 2013,
hospital stay at the Carolinas Hospital System. The remaining indications that an
influenza vaccination occurred was the petitioner’s own account of an influenza vaccine
administered “on or about November 18, 2013,” which was inconsistent with his petition
and subsequent motion practice which asserted he received a vaccination “on or around
November 10, 2013, and which was contradicted by the medical records of his November
18-21, 2013, hospital stay. Petitioner failed to meet the requirement set forth in 42 U.S.C.
§ 300aa-13(a)(1) that he may not establish his case “based on the claims of a petitioner
alone, unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1).
As noted above, in reviewing Vaccine Act decisions, “‘[t]he statute makes clear
that, on review, the United States Court of Federal Claims is not to second guess the
Special Masters [sic] fact-intensive conclusions; the standard of review is uniquely
deferential for what is essentially a judicial process.’” Deribeaux ex rel. Deribeaux v. Sec'y
of Health & Human Servs., 717 F.3d at 1366 (quoting Hodges v. Sec’y of Health & Human
Servs., 9 F.3d at 961). When “‘the special master's conclusion was based on evidence in
the record that was not wholly implausible, we are compelled to uphold that finding as not
being arbitrary and capricious.’” Id. at 1367 (quoting Lampe v. Sec’y of Health & Human
Servs., 219 F.3d at 1363).
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With no explanation for the inconsistencies in petitioner’s medical records
regarding whether he had received an influenza vaccination, or when he received the
influenza vaccination, the Special Master, after comprehensively reviewing the record,
found the inconsistencies were not explainable and, therefore, “five separate notations
regarding his vaccination status would necessarily be incorrectly recorded,” to accept
petitioner’s version. Furthermore, the Special Master noted that petitioner’s own medical
records labeled him a “difficult historian.” According to the Special Master, “[t]hus, without
more, these notations cannot serve as evidence that any vaccination occurred.” Matthews
v. Sec’y of Health & Human Servs., 2021 WL 4190265, at *6.
Petitioner tried to place increased importance on certain medical notations made
after his diagnosis of GBS. As with the multiple inconsistent screening assessments on
whether petitioner had received an influenza vaccination, neither petitioner nor his
medical records provided a basis for the notations indicating that petitioner “got GBS from
getting a flu shot,” or that he was allergic to the influenza vaccine. Before these notations
appeared in petitioner’s medical records, a separate notation instructed a nurse at the
McLeod Regional Medical Center to verify petitioner’s vaccination with the Carolinas
Hospital System. This notation was followed by the word “done,” with no date or location
listed or whether the word “done” referred to a vaccination or a check of petitioner’s
records. Another notation, dated December 12, 2013, stated a pharmacist at the
Carolinas Hospital System confirmed “there are no records of pt [patient] receiving the
vaccination.” Only after the December 12, 2013 notation, did the notations start to appear
in petitioner’s medical records, leaving the source of his vaccination status unknown.
Given that neither the Carolinas Health System, nor petitioner’s billing statements verified
the time or place of petitioner’s vaccination, the Special Master reasonably found that the
evidence did not establish that petitioner had been given an influenza vaccination prior to
contracting GBS. Regarding the allergy notation, the Special Master’s decision noted the
data suggesting that those who suffer from GBS “are generally cautioned against receipt
of the flu vaccine without specific respect to the underlying trigger of their prior GBS.”
As previously stated, “[t]he special master or court may not make such a finding
[of eligibility for compensation] based on the claims of a petitioner alone, unsubstantiated
by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Although Mr.
Matthews’ petition alleges that he “received the Influenza Vaccination on or around
November 10, 2013,” petitioner claimed in the affidavit he submitted to the Special Master
that he received the vaccination during his November 18-21, 2013, stay at the Carolinas
Hospital System after he had surgery for a forearm laceration. In his motion for review
before the undersigned, petitioner alleged that the Special Master had erred when he
concluded that there were no medical records consistent with this account. Petitioner
pointed out that “the initial assessment form filled out on November 18, 2013, is where it
states, ‘Flu Vaccine This Season – Yes.’” The Special Master reasonably listed this
screening assessment as one that was incorrect to be consistent with petitioner’s claims
because the hospital record does not support that petitioner received a vaccination on
November 18, 2013. Given that petitioner stated during his initial screening assessment
on November 18, 2013, that he had already received a flu vaccination, the Special Master
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reasonably concluded that the hospital did not administer the influenza vaccination during
the admission to the Carolinas Hospital System from November 18-21, 2013.
Petitioner further asserts that the Special Master’s analysis of the record was
flawed because, under the vaccine compensation system, “close calls regarding
causation are resolved in favor of injured claimants.” Althen v. Sec’y of Health & Human
Servs., 418 F.3d at 1280 (citing Knudsen v. Sec’y of Health & Human Servs., 35 F.3d at
548-49). Petitioner claims that this rule should apply to facts, as well as to causation. It is
unlikely, however, that as part of the overall statutory National Childhood Vaccine Injury
Act, failure to document vaccination is permissible to allow a petitioner to receive
compensation. Whether or not a petitioner had received a vaccination is a statutory
requirement under the Act. 42 U.S.C. § 300aa-11(c)(1)(A). Respondent correctly states
in its response to petitioner’s motion for review that preponderant proof is the requirement
for proving the establishment of a critical fact necessary to be eligible for compensation.
See Moberly ex rel. Moberly v. Secretary of Health and Human Servs., 592 F.3d at 1322
n.2 (quoting Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers Pension Trust
for S. Cal., 508 U.S. at 622).
As a result of the Special Master’s analysis of the record, he found there was
insufficient evidence to support petitioner’s inconsistent versions of when or if an influenza
vaccination was administered to the petitioner. With no contemporary medical records
establishing a clear date of vaccination and with multiple records indicating that petitioner
had not been vaccinated, the Special Master properly found that there was a lack of proof
in the record before the court presented by petitioner of an influenza vaccine
administration which could have caused his GBS symptoms, as unfortunate as the GBS
diagnosis is for petitioner. See 42 U.S.C. § 300aa-13(a)(1).
CONCLUSION
This court finds that Special Master Horner fully examined the relevant available
evidence and that his conclusions with respect to the significance of the evidence in the
record, as a whole, were not “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 42 U.S.C. § 300aa–12(e)(2)(B). The Special Master’s
decision provided a comprehensive review of the record and came to the proper
conclusion that the record, as a whole, did not constitute preponderant evidence that an
influenza vaccine was administered to petitioner which could have caused his GBS.
Therefore, the Special Master properly denied petitioner’s request for compensation. The
Special Master’s ruling is affirmed. Petitioner’s motion for review is DENIED. The above-
captioned case brought by Mr. Matthews is DISMISSED. The Clerk of the Court shall
enter JUDGMENT consistent with this Opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
15