VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00545
Package ID: USCOURTS-cofc-1_20-vv-00545
Petitioner: Eddie Dean Benenhaley
Filed: 2020-05-01
Decided: 2022-12-28
Vaccine: influenza
Vaccination date: 2018-09-03
Condition: Guillain-Barré syndrome (GBS)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Eddie Dean Benenhaley filed a petition alleging Guillain-Barré syndrome (GBS) caused by an influenza vaccine received on September 3, 2018. He was 57 years old at the time. The petition alleged a non-Table claim, and the respondent noted that the onset of symptoms, occurring approximately 14 weeks after vaccination, was too late for either a Table or a non-Table claim. The petitioner presented to the emergency room on December 21, 2018, with numbness and weakness in his lower extremities, which had begun the previous day. He was diagnosed with GBS and treated with IVIG. His medical history included an upper respiratory infection two weeks prior to symptom onset and a shingles vaccination in November 2018. The court noted that the petitioner's alleged onset of 108 or 109 days after vaccination was significantly outside the 3-42 day window for a Table claim and also beyond the generally accepted medically reasonable timeframe of six to eight weeks for non-Table flu vaccine-GBS claims. The petitioner argued for a nexus based on his prior good health, but the court found this to be post hoc ergo propter hoc reasoning. Petitioner's attempt to support a prolonged onset with medical literature was unconvincing, as the cited study did not support his argument and noted a stronger association between GBS and influenza illness than vaccination. Furthermore, his medical providers suggested alternative causes like the shingles vaccine or the upper respiratory infection. Ultimately, the court found that the petitioner failed to establish by a preponderance of the evidence that the flu vaccine caused his GBS, particularly regarding the proximate temporal relationship required for an Off-Table claim. The case was dismissed.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00545-0
Date issued/filed: 2022-12-28
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 11/28/2022) regarding 41 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0545V
UNPUBLISHED
EDDIE DEAN BENENHALEY, Chief Special Master Corcoran
Petitioner, Filed: November 28, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Guillain-Barré
Syndrome (GBS)
Respondent.
Vasiliki D. Koutsogiannis, Law Office of James Snell, Jr., Lexington, SC, for Petitioner.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for respondent.
DECISION DISMISSING CASE1
On May 1, 2020, Eddie Dean Benenhaley filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered from Guillain-Barré syndrome (“GBS”)
as a result of an influenza (“flu”) vaccine he received on September 3, 2018. Petition at
1. This case was assigned to the Special Processing Unit of the Office of Special Masters.
On January 12, 2022, Petitioner was ordered to show cause why this case should
not be dismissed. ECF No. 35. Petitioner filed a response on March 15, 2022. ECF No.
36 (“Opp.”). For the reasons discussed below, this claim is hereby DISMISSED.
1 Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, in accordance with the E-Government Act of 2002. 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, 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 2 of 10
I. Procedural History
The Petition specifically alleges a “non-Table” or causation-in-fact claim, even
though a Table claim exists for GBS occurring after receipt of the flu vaccine. Petition at
¶23. An initial status conference was held on June 29, 2021, during which two significant
issues were discussed. First, Respondent noted that Petitioner had not yet filed a record
of the vaccination (see ECF No. 23), although that omission has since been rectified. ECF
No. 33. Second, Respondent noted that the record seemed to establish onset of
Petitioner’s GBS 14 weeks after his vaccination – not only too long for a Table claim, but
far in excess of what the Program has recognized as medically reasonable for non-Table
flu vaccine-GBS claims - and indicated that he would defend the case on that ground.
ECF No. 23.
On August 30, 2021, Respondent filed his Rule 4(c) Report specifying in greater
detail the basis for his objection. Rule 4(c) Report at 6. Specifically, Respondent argued
that Petitioner “has not offered any evidence to show a logical sequence of cause and
effect showing that the vaccination caused his GBS, or that the fourteen-week period
between vaccination and the onset of his GBS is a timeframe within which vaccine
causation could be ascribed.” Id. at 7. In light of this argument, I Ordered Petitioner in
January 2022 to show cause why this claim should not be dismissed.3 ECF No. 35.
Petitioner filed his brief (“Br.”) in opposition (ECF No. 36), Respondent filed a
memorandum of his own (“Resp Br.”) on April 28, 2022 (ECF No. 37), and Petitioner filed
a reply (“Repl.”) on May 13, 2022. ECF No. 39. The matter is ripe for resolution.
II. Factual Background
Petitioner was 57 years old when he received the flu vaccine at a Walgreens in
Sumter, South Carolina, on September 3, 2018. Ex. 10 at 2-3; Petition at ¶1. Petitioner’s
medical history prior to his vaccination included shoulder surgery, prostate cancer,
diverticulitis, coronary artery disease, and renal insufficiency. Ex. 9 at 3. At the time of his
vaccination, Petitioner was employed part-time, was an umpire on his local baseball team,
and cared for his disabled wife. Affidavit at ¶3, 20.
Petitioner has stated that in November 2018, between his influenza vaccination in
September and the onset of his symptoms in December, he received a shingles
vaccination. Affidavit at ¶7; Petition at ¶3.4 There are otherwise no medical records in the
3 I also cautioned Petitioner’s counsel that if the response to the show cause order relied primarily on
witness testimony aimed at establishing that Petitioner’s symptoms began sooner than the medical records
establish, reasonable basis issues would be raised that could imperil some of the fees to which counsel
would otherwise be entitled. ECF No. 35 at 2.
4 Petitioner did not file the record of his shingles vaccination.
2

Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 3 of 10
intervening timeframe establishing any adverse effects of the early September
vaccination.
On December 21, 2018 (109 days after the relevant vaccination), Petitioner
presented to the emergency room with numbness and weakness in his lower extremities.
Ex. 5 at 357. Petitioner reported that his symptoms began the previous day, and
progressively worsened to include his upper extremities.5 Id. He also mentioned that he
had an upper respiratory infection two weeks earlier, from which he continued to have a
cough and shortness of breath. Id.
Petitioner was admitted to the hospital, diagnosed with GBS, and began IVIG
treatment. Ex. 5 at 358-59. While hospitalized, Petitioner experienced respiratory distress
and spent two days in the intensive care unit. Id. at 369-73. The treating neurologist noted
on December 27, 2018, that Petitioner had a shingles vaccine two weeks prior. Id. at 374.
On December 28, 2018, Petitioner was discharged to an inpatient rehabilitation facility.
Id. at 361. He continued to have lower extremity weakness and was unable to walk on his
own. Id. at 361. Petitioner remained at the facility through January 17, 2019, when he was
discharged home. Ex. 6 at 13-34.
On January 24, 2019, Petitioner presented to his primary care physician (“PCP”).
Ex. 8 at 31-32. The doctor noted that Petitioner had been hospitalized after “acute onset
of bilateral lower extremity weakness and numbness,” after an “upper respiratory infection
two weeks prior.” Id. at 32. Petitioner’s legs were swollen at the visit and a venous study
revealed deep vein thrombosis in both legs. Id.
On January 28, 2019, Petitioner presented to the emergency room complaining of
shortness of breath and chest pain. Ex. 7 at 4. He was hospitalized for treatment of
bilateral pulmonary embolism through February 5, 2019, when he was transferred to an
inpatient rehab facility for physical and occupational therapy. Id. at 4-5. Petitioner was
discharged from rehab to home on March 1, 2019. Affidavit at ¶9.6
From April 12, 2019 through September 3, 2019, Petitioner received outpatient
physical therapy for his GBS related symptoms, including his ability to walk and care for
himself. Ex. 4. During the initial evaluation, the physical therapist noted that Petitioner’s
“symptoms began after getting shingles shot.” Id. at 5. By the time of his discharge,
Petitioner was independent with activities of daily living. Id. at 203.
5 Petitioner stated in both his Petition and Affidavit that his symptoms began the day of his hospitalization,
rather than the day prior. Petition at ¶4; Affidavit, dated April 7, 2020, at ¶1, 8.
6 Petitioner did not file the records of his second stay in inpatient rehab.
3

Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 4 of 10
On December 3, 2019, Petitioner returned to his PCP for a follow-up appointment.
Ex. 8 at 17. The doctor noted that Petitioner made a “dramatic recovery” and that “his
only symptom at present is some tingling in the posterior calves.” Id. On January 7, 2020,
Petitioner returned for a sick visit and reported no ongoing neurological symptoms. Id. at
15.
In addition to the medical records, Petitioner submitted an affidavit signed on April
7, 2020. Petitioner states that he has “regained partial mobility” and “was able to walk
short distances.” Affidavit at ¶13. He notes that he has not fully recovered and still
experiences fatigue, weakness, and numbness and tingling in his feet. Id. at ¶13-14.
III. Authority
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his/her claim. Section
13(a)(1)(A). In making this determination, the special master or court should consider the
record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical
records or by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence
presented, which may include contemporaneous medical records and testimony. See
Burns v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining
that a special master must decide what weight to give evidence including oral testimony
and contemporaneous medical records). Contemporaneous medical records are
presumed to be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d
1525, 1528 (Fed. Cir. 1993). To overcome the presumptive accuracy of medical records
testimony, a petitioner may present testimony which is “consistent, clear, cogent, and
compelling.” Sanchez v. Sec'y of Health & Human Servs., No. 11–685V, 2013 WL
1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health
& Human Servs., No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30,
1998)). However, although later oral testimony that conflicts with medical records is less
reliable, it is appropriate for a special master to credit a petitioner’s lay testimony where
is does not conflict with contemporaneous records. Kirby v. Sec’y of Health & Human
Servs., 997 F.3d 1378, 1382-84 (Fed. Cir. 2021).
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Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 5 of 10
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,7 a petitioner must
establish that she suffered an injury meeting the Table criteria, in which case causation
is presumed, or an injury shown to be caused-in-fact by the vaccination he received.
Section 11(c)(1)(C). For both Table and Non–Table claims, Vaccine Program petitioners
bear a “preponderance of the evidence” burden of proof. Section 13(1)(a). That is, a
petitioner must offer evidence that leads the “trier of fact to believe that the existence of
a fact is more probable than its nonexistence before [he] may find in favor of the party
who has the burden to persuade the judge of the fact's existence.” Moberly, 592 F.3d at
1322 n.2; see also Snowbank Enter., Inc. v. United States, 6 Cl. Ct. 476, 486 (1984)
(explaining that mere conjecture or speculation is insufficient under a preponderance
standard).
In attempting to establish entitlement to a Vaccine Program award of
compensation for a Non–Table claim, a petitioner must satisfy all three of the elements
established by the Federal Circuit in Althen v. Sec’y of Health and Hum. Servs., 418 F.3d
1274, 1278 (Fed. Cir. 2005): “(1) a medical theory causally connecting the vaccination
and the injury; (2) a logical sequence of cause and effect showing that the vaccination
was the reason for the injury; and (3) a showing of proximate temporal relationship
between vaccination and injury.” Each Althen prong requires a different showing and is
discussed in turn along with the parties’ arguments and my findings.
Under Althen prong one, petitioners must provide a “reputable medical theory,”
demonstrating that the vaccine received can cause the type of injury alleged. Pafford, 451
F.3d at 1355–56 (citations omitted). To satisfy this prong, a petitioner's theory must be
based on a “sound and reliable medical or scientific explanation.” Knudsen v. Sec'y of
Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). Such a theory must only be
“legally probable, not medically or scientifically certain.” Id. at 549.
The second Althen prong requires proof of a logical sequence of cause and effect,
usually supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d
at 1278; Andreu, 569 F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec'y of
Health & Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a
vaccine “did cause” injury, the opinions and views of the injured party's treating physicians
are entitled to some weight. Andreu, 569 F.3d at 1367; Capizzano, 440 F.3d at 1326
(“medical records and medical opinion testimony are favored in vaccine cases, as treating
physicians are likely to be in the best position to determine whether a ‘logical sequence
7 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
5

Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 6 of 10
of cause and effect show[s] that the vaccination was the reason for the injury’”) (quoting
Althen, 418 F.3d at 1280).
The third Althen prong requires establishing a “proximate temporal relationship”
between the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has
been equated to the phrase “medically-acceptable temporal relationship.” Id. A petitioner
must offer “preponderant proof that the onset of symptoms occurred within a timeframe
which, given the medical understanding of the disorder's etiology, it is medically
acceptable to infer causation.” de Bazan v. Sec'y of Health & Human Servs., 539 F.3d
1347, 1352 (Fed. Cir. 2008). The explanation for what is a medically acceptable
timeframe must 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 & Human
Servs., 101 Fed. Cl. 532, 542 (2011), recons. den'd after remand, 105 Fed. Cl. 353
(2012), aff'd mem., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v. Sec'y of Health & Human
Servs., No. 11–355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for
review den'd (Fed. Cl. Dec. 3, 2013), aff'd, 773 F.3d 1239 (Fed. Cir. 2014).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, GBS is compensable if it manifests within 3-42 days
(not less than three days and not more than 42 days) of the administration of an influenza
vaccination. 42 C.F.R. § 100.3(a)(XIV)(D). (Further criteria for establishing a GBS Table
Injury case be found under the accompanying qualifications and aids to interpretation. 42
C.F.R. § 100.3(c)(15)). Any onset outside that timeframe prevents the matter from
succeeding as a Table claim, although it can often still be maintained as a non-Table,
causation-in-fact claim.
Cases alleging a Table GBS/flu vaccine claim are often dismissed for failure to
establish the proper onset. See, e.g., Randolph v. Sec'y of Health & Human Servs., No.
18-1231V, 2020 WL 542735, at *8 (Fed. Cl. Spec. Mstr. Jan. 2, 2020) (finding GBS onset
at the earliest occurred 76 days post-vaccination, “well outside the 3-42-day window set
by the Table for a flu-GBS claim”). Further, in adjudicating non-Table versions of such a
claim, special masters have frequently noted that six to eight weeks is the longest
medically-acceptable timeframe recognized in the Vaccine Program for onset of post-flu
vaccine GBS. See, e.g., Chinea v. Sec'y of Health & Human Servs., No. 15-095V, 2019
WL 1873322, at *33 (Fed. Cl. Mar. 15, 2019), mot. for review den’d, 144 Fed. Cl. 378
(2019) (onset of the petitioner’s GBS occurred eleven to twelve weeks after her
vaccination, well beyond the six- to eight-week medically appropriate timeframe for the
occurrence of vaccine-induced GBS); Barone v. Sec’y of Health & Human Servs., No. 11-
707V, 2014 WL 6834557, at *13 (Fed. Cl. Spec. Mstr. Nov. 12, 2014) (finding eight weeks
6

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(or 56 days) is the longest reasonable timeframe for a flu vaccine/GBS injury).
IV. Finding of Fact
Petitioner alleges that he suffered from GBS that was caused-in-fact by a flu
vaccine administered on September 3, 2018. Petition at 2. As the Petition itself alleges
that the onset of symptoms occurred on December 21, 2018, Petitioner does not
attempt to argue that his onset falls within the Table’s window between 3 and 42 days
after vaccination. Id. at ¶4. In fact he could not – his affidavit and contemporaneous
medical records preponderantly establish that the initial symptoms occurred, at the
earliest, on December 20, 2018, as Petitioner reported at during his first visit to the
emergency room, or on December 21, 2018, as Petitioner reported in his Petition and
Affidavit. Ex. 5 at 357; Petition at ¶4; Affidavit at ¶8. This puts the onset of Petitioner’s
GBS at 108 or 109 days (or approximately 15 weeks) after his influenza vaccination.
There is no dispute that Petitioner’s records consistently suggest an onset of
GBS symptoms on December 20 or 21, 2018. See Br. at 2. This fact not only puts
Petitioner’s claim outside the 42-day limit for a viable Table flu-GBS claim, but at almost
double the length of the longest time accepted for a similar non-Table claim. See, e.g.,
Chinea, 2019 WL 1873322, at *33; Barone, 2014 WL 6834557, at *13. Accordingly,
there is a glaring facial deficiency with Petitioner’s claim – since it appears at the outset
that he cannot preponderantly establish the third Althen prong.
Petitioner makes no argument that the onset of his symptoms was closer to the
time of vaccine administration, or within the six to eight-week timeframe that prior
Program cases have embraced. Instead, he argues he did not “suffer from neurological
issues prior to the vaccine’s administration” and was in “good health” – concluding that
“therefore, a nexus between the vaccine in question (quadrivalent flu vaccine) and
Petitioner’s medical issues which arose after the vaccine was administered exists.” Br. at
4.
Of course, the mere fact that Petitioner was in good health prior to the flu vaccine
and developed GBS 15 weeks after the vaccination does not provide preponderant
evidence that the flu vaccine caused Petitioner’s GBS. This is precisely the kind of post
hoc ergo propter hoc reasoning that the Program rejects. See Galindo v. Sec’y of Health
& Human Servs., No. 16-203V, 2019 WL 2419552, at *20 (Fed. Cl. Spec. Mstr. May 14,
2019). And there are sound reasons for the Program not simply assuming that any post-
vaccination injury is attributable to it. Petitioner’s GBS could certainly be a coincidence,
or have an alternative cause, such as his shingles vaccine or his upper respiratory
7

Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 8 of 10
infection, both of which occurred in closer proximity to his diagnosis than did his flu
vaccination.8
Petitioner further argues that the conclusion that he contracted GBS “after a
delayed onset from the quadrivalent vaccine . . . cannot be excluded with confidence”
based on his medical records. Br. at 2. However, Petitioner misstates his burden in this
case. It is not sufficient that there is a possibility that his flu vaccine caused his GBS;
Petitioner must provide evidence that is it more likely than not that the flu vaccine directly
caused his GBS. And the lengthy timeframe from vaccination to onset greatly reduces the
likelihood that the two events are at all related.
In order to overcome the Program’s consistent reaction to overly-long post-
vaccination GBS onset, Petitioner has attempted to offer medical literature to support his
argument that “it cannot be argued that onset of GBS following vaccination does not occur
or cannot occur past the time periods set forth in the table (or past the longest accepted
period before this Court).” Repl. at 2. Petitioner further states that “the question of
prolonged onset is hardly settled,” and that “it cannot be concluded that there is no basis
in the scientific literature for accepting an onset period of GBS following a seasonal
influenza vaccine well past the 42-day window, including and especially after 109 days. .
. .” Id. at 3.
A close reading of Petitioner’s medical literature, however, reveals that it does not
support his argument, other than acknowledging that there are occasional instances in
which individuals incur GBS long after receipt of the flu vaccine. See M. Petras, et al., Is
an Increased Risk of Developing Guillain-Barré Syndrome Associated with Seasonal
Influenza Vaccination? A Systematic Review and Meta-Analysis, Vaccines (Basel) 2020
March 27; 8(2):150 (“Petras Article”). First, the Petras Article is limited to the inactivated
trivalent influenza vaccine, not the quadrivalent vaccine that Petitioner received. Petras
Article at 2. Second, the article focused on determining “a risk estimate of influenza
vaccine-associated GBS” and not on any determination of the length of time between
vaccination and symptom onset that is medically reasonable. Id. The article examined a
set of studies, two of which included onset within 180 days, and two of which included
onset within 365 days, along with several others with shorter onset periods. Id. at 4.
Ultimately, the Petras Article’s authors concluded that “even if some studies documented,
in time windows of less than or equal to 42 or 49 days, a vaccine-associated increase in
8 Petitioner did not address the November 2018 shingles vaccine or the upper respiratory infection, other
than to express that it is his view that the GBS caused the upper respiratory infection, rather than the upper
respiratory infection causing the GBS. Repl. at 3. And as already noted, he has not established receipt of
the shingles vaccine (which is not a covered vaccine in any event). Scanlon v. Sec’y of Health & Human
Servs., 114 Fed. Cl. 135, 143 (2013).
8

Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 9 of 10
GBS, the pooled risk estimate within 42 and 43-365 days de facto did not demonstrate
this marginal association.” Id. at 8. This contradicts Petitioner’s argument.9
In addition, there are other reasons to find that this claim is unlikely to be capable
of being preponderantly supported. For example, none of Petitioner’s medical providers
associated his GBS with his flu vaccination. In fact, his providers mentioned his shingles
vaccine, purportedly received sometime in November 2018, and his upper respiratory
infection two weeks prior to the onset of symptoms as possible causes. See, e.g. Ex.5 at
357 (Petitioner reported having an upper respiratory infection, with residual symptoms,
two weeks prior to his emergency room visit on December 21, 2018); Ex. 5 at 374
(hospital neurologist noted on December 27, 2018 that Petitioner had a shingles vaccine
two weeks prior); Ex. 8 at 32 (Petitioner’s PCP noted on January 24, 2019 that Petitioner’s
symptoms began after an upper respiratory infection two weeks prior); Ex. 4 at 5 (physical
therapist noted that Petitioner’s symptoms began after getting a shingles shot).
At bottom, it is reasonable for special masters to reject claims that are not likely to
succeed, even if there is a miniscule possibility of success. The concept that a too-long
onset reduces the probability of vaccine causation is not the product of an arbitrary lark
by special masters past and present; it is instead a wholly-reasonable interpretation of
the third Althen prong – which in turn inherently recognizes that as time passes from a
vaccination event, the likelihood the vaccine was responsible for it (as opposed to
intervening events) diminishes. Pafford v. Sec’y of Health & Human Servs., 451 F.3d
1352, 1358-59 (Fed. Cir. 2006). The medical science that strongly supports post-flu
vaccine causation in the Table period, or somewhat less so a week or two beyond, falls
out entirely when onset is alleged to have been as long as in this case.
CONCLUSION
Despite ample opportunity, Petitioner has failed to offer a persuasive,
preponderantly-supported argument or explanation in response to my Order to Show
Cause, as to why his claim should not be dismissed for failure to establish that onset of
his GBS occurred in a medically acceptable timeframe. Accordingly, I must DISMISS his
claim in its entirety. The Clerk shall enter judgment accordingly.10
9 The Petras Article also reported that there was a “strong association of GBS with influenza, influenza like
illness, or upper respiratory infection,” rather than with vaccination, thus supporting the argument that
Petitioner’s GBS could likely have been caused by his closer-in-time illness. Id. at 8-9.
10 If Petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
9

Case 1:20-vv-00545-UNJ Document 42 Filed 12/28/22 Page 10 of 10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10