VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01960
Package ID: USCOURTS-cofc-1_21-vv-01960
Petitioner: ERIC and KIMBERLY MONTE, as natural parents and legal guardians of D.M., a minor
Filed: 2021-10-04
Decided: 2024-01-31
Vaccine: influenza
Vaccination date: 2018-10-08
Condition: autoimmune encephalitis, encephalopathy, and/or some unspecified autoimmune-mediated neurologic disorder
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On October 4, 2021, Eric and Kimberly Monte, as the natural parents and legal guardians of D.M., a minor, filed a petition for compensation under the National Vaccine Injury Compensation Program. They alleged that their son, D.M., developed autoimmune encephalitis, encephalopathy, and/or an unspecified autoimmune-mediated neurologic disorder after receiving an influenza vaccine on October 8, 2018. D.M. was thirteen years old at the time of vaccination. The respondent, the Secretary of Health and Human Services, moved to dismiss the claim, arguing that the alleged injuries were not established by the record and that the flu vaccine could not have caused them. 

Three days after the vaccination, on October 11, 2018, D.M. was taken to an emergency department after experiencing a headache following a football game the previous night where he was reportedly punched in the chin. He was described as "dazed and breathing heavily" at the end of the game and later "wandering around the house dazed and confused." An initial CT scan was normal, and he was diagnosed with a concussion. A subsequent visit to his primary care provider noted the injury as a "hard hit" and that D.M. seemed "out of it" with short-term memory loss and uncharacteristic behaviors. He was again diagnosed with a concussion and advised to avoid sports. 

Further evaluations included a visit to a neurologist who noted confusion and memory loss, assessing D.M. with "encephalopathy, unspecified." An EEG was normal. A neuropsychological evaluation noted an atypical gait and severe cognitive impairment, with the evaluator suggesting a significant "somatization" component and recommending further neurological assessment. 

D.M. was hospitalized from November 12 to November 21, 2018. During this hospitalization, psychiatric evaluations were performed, and while infectious or autoimmune illness was considered, treaters proposed conversion disorder or a somatization-associated functional neurologic disorder as the most likely diagnoses. A rheumatologic consultation noted improvement with intravenous steroid therapy, speculating on encephalopathy of unknown origin, but also stating the condition was "not caused by the flu vaccination." 

Subsequent evaluations by other neurologists and treaters continued to lean towards conversion disorder or functional neurologic disorder, with extensive testing for infectious or autoimmune causes yielding negative results. Some treaters noted that D.M.'s response to steroids and Ativan was more consistent with a psychosomatic illness or conversion disorder rather than true autoimmune disease. Repeated testing for autoimmune encephalitis or associated diseases produced negative results. 

Petitioners presented expert testimony from Dr. Justin Willer, a neurologist, who opined that D.M. suffered from vaccine-induced autoimmune encephalitis, arguing that the football injury was not the primary cause and that D.M.'s symptoms were consistent with this diagnosis. Dr. Willer referenced studies involving the Hepatitis B vaccine and autoimmune encephalitis and suggested that D.M.'s responsiveness to steroids supported his autoimmune encephalitis diagnosis. He also downplayed the significance of the football injury, stating D.M. did not likely have a concussion because symptoms were not noted until after the game, he did not lose consciousness, and no adults observed strange behavior. He also suggested that any conversion disorder was a secondary consequence of the encephalitis. 

Petitioners also submitted a neuropsychological evaluation by Kit W. Harrison, Ph.D., which diagnosed "unspecified neurocognitive disorder; adjustment disorder with mixed anxiety and depressed mood." This evaluation did not address vaccine causation, the relationship to the football injury, or opine on conversion disorder. 

Respondent argued that the weight of evidence supported conversion disorder over autoimmune encephalitis, and that Dr. Willer's opinion was not well-rooted in the record, particularly regarding the steroid response and the dismissal of the football injury. Respondent also contended that Petitioners failed to establish the three prongs of the Althen test for causation-in-fact. 

Chief Special Master Brian H. Corcoran granted Respondent's motion to dismiss. The Special Master found that the evidence did not preponderantly support an autoimmune encephalitis diagnosis. He noted that no testing confirmed such an injury, and no treating physicians settled on that diagnosis. The Special Master found Dr. Willer's opinion unpersuasive, stating it was not sufficiently rooted in record proof and appeared to be "post hoc ergo propter hoc" reasoning. The Special Master gave greater weight to the contemporaneous views of treating physicians who rejected the association with steroids and noted D.M.'s response to Ativan was more indicative of conversion disorder. The Special Master found the evidence of D.M.'s football injury to be a credible explanation for his symptoms, and Dr. Willer's efforts to dismiss it unconvincing. The Special Master concluded that the medical record better supported explanations of concussion from the football game or conversion disorder, and that Petitioners failed to meet their burden of proof to establish a vaccine-related injury. The claim was dismissed.

Theory of causation field:
Petitioners alleged that D.M., age 13, developed autoimmune encephalitis and/or encephalopathy after receiving an influenza vaccine on October 8, 2018. Petitioners' expert, Dr. Justin Willer, opined that the flu vaccine caused autoimmune encephalitis, which subsequently led to conversion disorder. Dr. Willer cited D.M.'s response to steroids and a temporal association between vaccination and symptom onset (three days) as support, while downplaying a reported football injury sustained shortly before symptom onset. Respondent argued that the weight of medical records and treating physician opinions pointed to concussion or conversion disorder, not vaccine-induced autoimmune encephalitis. Chief Special Master Brian H. Corcoran dismissed the claim, finding Dr. Willer's opinion unpersuasive and not sufficiently rooted in the record. The Special Master concluded that the evidence preponderantly supported a concussion from the football injury or conversion disorder as explanations for D.M.'s symptoms, rather than a vaccine-related autoimmune injury. The claim was dismissed for failure to meet the burden of proof under the Althen standard, specifically failing to establish a logical sequence of cause and effect and a medically acceptable temporal relationship for autoimmune encephalitis. The theory of causation was deemed "Off-Table."

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-01960-0
Date issued/filed: 2024-01-31
Pages: 22
Docket text: PUBLIC DECISION (Originally filed: 01/05/2024) regarding 30 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-01960-UNJ Document 31 Filed 01/31/24 Page 1 of 22
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1960V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
ERIC and KIMBERLY * Chief Special Master Corcoran
MONTE, as natural parents and *
legal guardians of D.M., a minor, *
* Filed: January 5, 2024
Petitioners, *
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioners.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent.
ENTITLEMENT DECISION1
On October 4, 2021, Eric and Kimberly Monte filed a petition for compensation under the
National Vaccine Injury Compensation Program (the “Program”).2 Petition (ECF No. 1) at 1.
Petitioners allege that their son, D.M., developed autoimmune encephalitis, encephalopathy, and/or
some unspecified autoimmune-mediated neurologic disorder after receipt of an influenza (“flu”) vaccine
administered on October 8, 2018. Id.
Respondent has moved to dismiss the claim, arguing both that the alleged injuries are not
established by the record, and that the flu vaccine could not have caused them in any case, and the
matter is now fully briefed for resolution by ruling on the record. See Respondent’s Brief, dated July
10, 2023 (ECF No. 27) (“Br.”); Petitioner’s Opposition, dated August 17, 2023 (ECF No. 28) (“Opp.”);
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information furnished
by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public in its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat.
3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the Act”]. Individual
section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:21-vv-01960-UNJ Document 31 Filed 01/31/24 Page 2 of 22
Respondent’s Reply, dated August 31, 2023 (ECF No. 29). After review of the record and the parties’
filings, and for the reasons set forth below, I grant Respondent’s motion.
I. Factual Background
D.M. was thirteen when he received the flu vaccine on October 8, 2018, at Family First
Pediatrics (“FFP”), his primary care provider, in Spring, TX. Ex. 1 at 9. The exam from this visit
resulted in no concerning findings, and the record contains no evidence of any immediate reaction to
the vaccination. Id. at 10; see also Declaration of Eric Monte, dated August 4, 2021, filed as Ex. 2 (ECF
No. 6-2) (“Monte Decl.”) at 2.
Football Injury and Subsequent Neurologic Symptoms
Three days later, on October 11, 2018, D.M. was taken to the emergency department (“ED”) of
Memorial Hermann Tomball Hospital (“MHTH”) in Tomball, TX. Ex. 1 at 37–40. As this record
reveals, it was reported at this time that D.M. had experienced a headache after being punched in the
chin during a football game the night before (October 10th). Id. at 40. Although Mr. Monte has alleged
that coaches and teammates at the game did not perceive anything that would have been consistent with
D.M. experiencing a head injury, treaters were informed that D.M. had looked “dazed and was breathing
heavily” when encountered at the end of the game, and later that same night “started wandering around
the house dazed and confused.” Monte Decl. at 2.
ED treating physicians performed a CT scan that produced normal results, with no evidence of
underlying abnormalities or developmental concerns. Ex. 1 at 39. They diagnosed D.M. with a
concussion, discharging him before eight p.m. that evening. Id. at 38. Later that same day, D.M. went
to FFP and was examined by Dr. Tad Shirley. Id. at 8–9. The record from this visit provides more
details about the football injury, characterizing it as the product of a “hard hit,” and noting that even
though “no one noticed anything during the game,” afterward D.M. seemed “out of it” and displayed
some short-term memory loss, along with other uncharacteristic behaviors. Id. at 8. Indeed, Dr. Shirley
was told (presumably by Mrs. Monte, based on the context of the record) that D.M. that very morning
could not remember where the bathroom in his home was, and seemed confused about getting dressed
when handed a shirt. Id. D.M.’s injury was again characterized as concussion, and he was advised to
see a specialist and otherwise avoid sports for a period of time. Id. at 9.
A week later, D.M. went to the Houston Institute of Neurology for Kids (“THINK”) on October
16, 2018, for an appointment with neurologist Asra Akbar, M.D. Ex. 1 at 41–45. Mrs. Monte informed
Dr. Akbar that D.M. had “sustained several concussions” at the October 10th football game, and
subsequently displayed confusion and memory loss, with these symptoms continuing. Id. at 41. This
record also references a visit to a different treater in the intervening period, and that an MRI of D.M.’s
brain had been performed but revealed normal results. Id.3 D.M.’s exam at this time was otherwise
3 I have not been able to locate the underlying MRI record itself in the filed records, although it may well exist. Reference to
it is made elsewhere in the filed records. See, e.g., Ex. 1 at 120.
2

Case 1:21-vv-01960-UNJ Document 31 Filed 01/31/24 Page 3 of 22
normal, and he was assessed with “[e]ncephalopathy, unspecified,” and directed to undergo an
electroencephalogram (“EEG”) to check for seizure activity as well as other testing and follow-up. Id.
at 42. The EEG testing ultimately resulted in normal findings, and did not identify evidence of seizure
activity either. Ex. 6 at 5–7.
On November 1, 2018, D.M. obtained a neuropsychological evaluation from Kenneth Podell,
Ph.D. Ex. 10 at 3–6. Dr. Podell observed that D.M. was experiencing an atypical gait and severe
cognitive impairment. Id. at 3. In addition, he displayed a flat affect, was unable to interact, and could
not open his mouth to answer questions. Id. at 4. Dr. Podell deemed D.M.’s presentation to be highly
atypical, and he revealed severe dysfunction on neuropsychological measures inconsistent with what
would be expected for someone with only a mildly traumatic brain injury, like a concussion. Id. at 5.
Dr. Podell opined, however, that D.M.’s presentation (coupled with comments Mrs. Monte had made
during the evaluation about stress in their home) suggested a significant “somatization”4 component
(meaning the expression of psychological or emotional factors as physical (somatic) symptoms). Id. Dr.
Podell nevertheless recommended that (in addition to follow-up psychological and psychiatric
treatment) “a more extensive neurological assessment to rule out an acute infectious or inflammatory
process may be prudent.” Id. Mrs. Monte did subsequently inform Dr. Shirley via phone call about this
evaluation, and that a psychologist visit had been recommended. Ex. 1 at 8.
Hospitalization and Suspicion of Vaccine Causation
D.M. subsequently returned to MHTH on November 12, 2018, and was treated by Christine
Koerner, M.D. Ex. 7 at 102–08. Petitioners now reported that over the prior twenty-four hours, D.M.
had displayed increasing weakness and worsened cognitive issues, along with movement issues and an
inability to speak above a whisper. Id. His physical exam was normal, however, and a review of prior
blood testing and CT/MRI results had similarly discerned nothing abnormal. Id. Dr. Koerner
nevertheless decided to admit him for observation and further neurological work-up. Id.
D.M. was thereafter admitted to Memorial Hermann Children’s Hospital (“MHCH”), remaining
hospitalized until November 21, 2018. Ex. 1 at 51–119. During this timeframe, he underwent
psychiatric evaluations, and although it was again thought wise for D.M. to be tested for the possibility
of some infectious/autoimmune illness, treaters nevertheless proposed he more likely was suffering
from conversion disorder. Id. at 62–67. Other treaters similarly concluded that D.M. was most properly
diagnosed with a somatization-associated functional neurologic disorder and/or concussion. Id. at 54–
56, 60.
At the same time, however, D.M. had a rheumatologic consultation with Ankur Kamdar, M.D.
Ex. 1 at 84–85. Dr. Kamdar observed that in the overall course of his hospitalization, D.M. had received
intravenous steroid therapy that appeared to have arrested or improved many of his symptoms. Id. at
4 “Somatization” is defined as “the conversion of mental experiences or states into bodily symptoms.” Somatization, Dorland’s
Medical Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=46196&searchterm=somatization (last
visited on Jan. 5, 2024).
3

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84. Dr. Kamdar speculated that D.M. had encephalopathy of unknown origin, which was now improved,
and took special note of the unusual nature of the improvement this treatment had produced. Id. at 85.
Dr. Kamdar also stated that “[Mr. Monte] was concerned about the flu vaccination prior to [D.M.’s]
development of symptoms,” but added his own view that “this was not caused by the flu vaccination.”
Id.
After discharge, D.M. returned to FFP for a visit with Dr. Shirley at the end of November 2018.
Ex. 1 at 7–8. The history section from this visit includes a statement provided to Dr. Shirley by Mrs.
Monte reporting that during D.M.’s hospitalization, “one doctor said they thought [his condition] could
be vaccine assoc encephalopathy or auto immune.” Id. at 7. The record also sets forth Mrs. Monte’s
intent to proceed with a VAERS5 report—although Dr. Shirley noted that he could not find
documentation in the medical records he had seen “of anyone saying [D.M.’s condition] could be
vaccine related from flu vaccine.” Id. Dr. Shirley’s diagnosis was encephalitis, and he directed D.M. to
return to school fulltime with no physical activities for three months. Id.
Another pediatric neurologist, Dr. Ian Butler, evaluated D.M. in December 2018. See Ex. 1 at
120–21. He reviewed D.M.’s overall treatment course to that point, noting his initial, post-football game
presentation and subsequent hospitalization. Id. at 120. He also reported that “significant improvement”
in D.M.’s condition had been observed after a five-day steroid course administered during the
November hospitalization. Id. But Dr. Butler (consistent with prior contemporaneous treaters) did not
conclude from the overall record (including physical exams and various testing and imaging results)
that D.M. had likely experienced any autoimmune-caused encephalopathic injury. Rather, he opined
that D.M. had experienced “a postconcussive episode with a relative amnesia for the event,” adding
that he recommended certain calcium channel testing to evaluate the presence of “significant
neurological problems following relatively minor head trauma.” Id. at 121.
Subsequent Treatment
Since the fall of 2018, Petitioners have continued to seek treatment for D.M.’s condition—but
the record does not reveal treater acceptance of a vaccine association, let alone agreement that his
symptoms are the results of some autoimmune or infectious process.
For example, D.M. was hospitalized from late February to mid-March 2019 in connection with
the same kinds of altered mental status and associated symptoms he had displayed before. Ex. 7 at 57–
5 The Vaccine Adverse Event Reporting System (“VAERS”) is a national warning system designed to detect safety problems
in U.S. licensed vaccines. See About VAERS, VAERS, https://vaers.hhs.gov/about.html (last visited Nov. 28, 2023). It is
managed by both the CDC and the FDA. VAERS monitors and analyzes reports of vaccine related injuries and side effects
from both healthcare professionals and individuals. But it has been observed in the Program that VAERS data is not
particularly probative of causation unless supplemented with other reliable evidence—since a VAERS report only establishes
a temporal, post-vaccination occurrence, and thus shines no light on causation itself. See also Vig v. Sec’y of Health & Human
Servs., No. 01-198V, 2013 WL 6596683, at *17 (Fed. Cl. Spec. Mstr. Nov. 14, 2013) (“VAERS is a stocked pond, containing
only reports of adverse events after vaccinations but no data about the number of vaccines administered or the occurrence of
the same adverse event in individuals who have not been vaccinations”).
4

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62, Ex. 11 at 66–70. But comprehensive lab testing—including a metabolic panel, complete blood
count, urine toxicology screen, and urinalysis—all produced normal or negative results. Ex. 11 at 89–
91. While hospitalized, treaters took note of D.M.’s history—and although they considered diagnoses
of encephalitis due to infection or autoimmune infection, they deemed psychiatric disorder with
catatonic states and flat affect versus conversion disorder “[h]ighest on the differential,” especially in
light of the extensive testing D.M. had already experienced. Id. at 115.
Neurology consults with D.M. in February 2019 (during his hospitalization) reached the same
general conclusions. See, e.g., Ex. 11 at 30–33. Based on exam, one treater (Dr. Stuart Fraser) expressed
doubt that D.M.’s symptoms had a neurological etiology, but were instead more consistent with a
conversion disorder. Id. at 33. Dr. Fraser also opined that D.M.’s response to steroids during his prior
hospitalization “occurred within a few hours of the initial dose, which is too rapid to be attributable to
the steroids themselves, as the cellular effect of steroids do not happen immediately with administration
of the medication.” Id. (Although Dr. Fraser was at this time only a resident, his opinions and treatment
recommendations were endorsed by another neurologist, Dr. Michael Watkins). Id. Evaluation by a
pediatric hospitalist in early March produced consistent diagnostic and treatment views. See, e.g., Ex.
11 at 933–36 (noting that an infectious or autoimmune neurologic disease etiology for D.M.’s
symptoms was not corroborated by the extensive work-up he had received, that a conversion disorder
diagnosis seemed appropriate, and that additional steroidal treatment was not called for).
There is some evidence from the end of D.M.’s 2019 hospitalization (in March 2019
specifically) that D.M. responded well to use of a sedative, Ativan. Ex. 11 at 978, 981. In particular, he
was observed to sit up appropriately and speak in full sentences not long after its administration. Id. at
978. However, he had not responded to this medication in the same manner when it had been first
administered to him on a trial basis, leading treaters to conclude that a conversion disorder diagnosis
remained likely. Id. at 964–65 (“[m]ost suspicious for conversion disorder still given response to
Ativan”), 978 (noting D.M.’s “marked change in his mental status” after receipt of Ativan, but
contrasting it to earlier lack of response, and concluding that partial responsiveness only supported a
catatonia diagnosis—whereas the same evidence meant a conversion disorder diagnosis “may still be
likely”). Other treaters at this time expressed the opinion that D.M.’s apparent prompt response to
steroid treatment earlier in the course of his presentation, when considered against the ongoing nature
of his “nonspecific memory impairments,” were “very suggestive” of a psychosomatic illness—and felt
the similar positive response to Ativan was consistent. Id. at 53. On discharge, D.M.’s differential
diagnosis included conversion disorder, functional quadriplegia, functional aphasia, and resolved
constipation and dehydration. Id. at 66. But his symptoms and responses as observed during the
hospitalization itself were “much more consistent with a psychosomatic conversion disorder rather than
true catatonia.” Id. at 67.
Thereafter, however, other treaters continued to propose conversion disorder as a reasonable
diagnosis. On March 15, 2019, for example, D.M. reported to MHCH’s emergency department again.
Ex. 7 at 49–53. Supervising physician Moira Black, M.D., prepared an addendum to D.M.’s medical
record from that day. Id. at 52–53. In it, Dr. Black offered the view that D.M. had conversion disorder,
5

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but that his parents “refused to understand and believe the diagnosis.” Id. at 53. Dr. Black added that
Petitioners believed that D.M. had “some kind of inflammation of the brain,” even though his medical
history revealed that past MRIs were normal, and an extensive rheumatological work-up was negative.
Id. An April 2019 pediatric evaluation with a new treater also resulted in an impression of conversion
disorder, emphasizing again the degree to which prior work-ups for the existence of some
infectious/autoimmune disease had produced negative results. Ex. 13 at 60–69. It was also noted at this
time that a positive response to Ativan was “not consistent with autoimmune disease.” Id. at 68; see
also Ex. 8 at 20 (late April neurology appointment, at which time treater noted no “obvious information”
that D.M. had an autoimmune-type encephalopathy, despite his reported “rather dramatic response to
intravenous steroids” during a previous hospitalization).
Subsequent repeated testing for autoimmune encephalitis or some associated autoimmune
disease have produced negative results. See, e.g., Ex. 4 at 64 (panel performed by Mayo Clinic), 53–58
(July 2019 lab testing, including endocrine studies and an autoimmune neurology antibody
comprehensive panel, which produced negative results). Accordingly, at a follow-up neurology
appointment, the relevant treater noted that D.M. had been tentatively diagnosed in the past with a
possible autoimmune disorder, but that tests for autoimmune encephalitis “were not revealing of that
diagnosis.” Ex. 8 at 5–6. No other records past this point in time (beyond what is discussed below) have
been filed.
II. Expert Reports and Treater Evidence Offered by Petitioners
A. Expert Report – Justin Willer, M.D.
Dr. Willer, a neurologist, prepared two written reports in this case. See Report, dated November
30, 2022, filed as Ex. 15 (ECF No. 20-1) (“First Willer Rep.”); Report, dated May 10, 2023, filed as Ex.
19 (ECF No. 26-1) (“Second Willer Rep.”). Dr. Willer opines that D.M. experienced an autoimmune
encephalitis attributable to the flu vaccine administered to him in November 2018.
Dr. Willer received his undergraduate degree from Columbia College of Columbia University
and his medical degree from the University of Health Sciences/The Chicago Medical School. See
Curriculum Vitae, filed as Ex. 16 (ECF No. 20-2) (“Willer CV”) at 1. Beginning in 1995, he has held
hospital appointments at University Hospital, Long Island College Hospital, Maimonides Hospital
Medical Center, and Kings County Medical Center, but he has not treated pediatric patients since 2000.
Willer CV at 1. He has also held academic appointments as a Neuromuscular Consultant and Assistant
Professor of Clinical Neurology at the State University of New York, HSC at Brooklyn. Id. He is licensed
to practice medicine in New York, New Jersey, and Florida, and is board certified by the American Board
of Psychiatry and Neurology, with added qualifications in clinical neurophysiology, and American Board
of Electrodiagnostic Medicine. Id. at 2.
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Case 1:21-vv-01960-UNJ Document 31 Filed 01/31/24 Page 7 of 22
First Report
Dr. Willer began his first report with a summary of materials he had reviewed, plus a recap of
D.M.’s medical history (which he repeated later in the same report). First Willer Rep. at 2–10, 17–22.
He then provided an overview of autoimmune encephalitis, deeming it “an immune-related disease
affecting the central nervous system with a broad range of presentations.” Id. at 11. He also noted that
while it includes “closely related disease processes,” with common neuroimaging findings and clinical
features, the precise version of encephalitis depends on the relevant, disease-driving autoantibodies,
providing three overall subclasses (Group I, Group II, and “systemic autoimmunity with
encephalopathy”). Id. Dr. Willer noted generally the kinds of treatments deemed effective for it. Id. at
13–14.
EEG6 scanning can aid in diagnosis when the form of encephalopathy presents with seizures.
First Willer Rep. at 12. By contrast, early MRI testing did not always confirm its presence. Id. at 12–13.
Testing of the cerebrospinal fluid also was not often confirmatory. Id. at 13. A number of different
immune-mediated mechanisms likely propagate autoimmune encephalitis, including molecular mimicry,
B cell activation, or inhibition of existing immunoregulatory cells. Id.; A. Schattner, Consequence or
Coincidence? The Occurrence, Pathogenesis and Significance of Autoimmune Manifestations after Viral
Vaccines, 23 Vaccine 3876 (2005), filed as Ex. 17(d) (ECF No. 20-6) (“Schattner”). At the same time,
however, half of all autoimmune encephalitis cases yield negative antibody-testing results. First Willer
Rep. at 13.
Autoimmune encephalitis can be caused by cancer (and hence, Dr. Willer noted, cancer
screenings are called for when encephalitic symptoms are clinically evident). First Willer Rep. at 12. But
he also maintained that it could be vaccine-induced. For initial support, Dr. Willer referenced a number
of studies or case reports associating the Hepatitis B vaccine (which is not at issue in this case) and
autoimmune encephalitis, with onset occurring within days to three months of vaccination. Id. at 12. Dr.
Willer provided no explanation as to why such studies involving a distinguishable vaccine had bearing
on this case, however.
Turning to the claim at issue, Dr. Willer maintained the flu vaccine had likely caused D.M.’s
injury. Autoimmune encephalitis best explained that injury, given D.M.’s responsiveness to steroids.
First Willer Rep. at 25. His injury also likely had a monophasic course, even if that was uncommon for
individuals suffering from some form of encephalitis. Id.; A. Tourbah et al., Encephalitis after Hepatitis
B Vaccination - Recurrent Disseminated Encephalitis or MS?, 53 Neurology 1, 5 (1999), filed as Ex.
17(e) (ECF No. 20-7) (“Tourbah”) (reporting a monophasic presentation in one of the study’s eight
patients). Many negative findings from D.M.’s history that seemed facially inconsistent with autoimmune
6 “Electroencephalogram” is defined as “a recording of the potentials on the skull generated by currents emanating
spontaneously from nerve cells in the brain. The normal dominant frequency of these potentials is about 8 to 10 cycles per
second and the amplitude about 10 to 100 microvolts. Fluctuations in potential are seen in the form of waves, which correlate
well with different neurologic conditions and so are used as diagnostic criteria.” Electroencephalogram, Dorland’s Medical
Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=15813 (last visited Jan. 5, 2024).
7

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encephalitis were waived aside by Dr. Willer. For example, an “absence of white matter abnormalities”
on MRI was not found in even half of encephalitis patients, meaning the lack of such evidence in this
case did not matter. First Willer Rep. at 25; S.K. Lee et al., The Laboratory Diagnosis of Autoimmune
Encephalitis, 6 J. Epilepsy Rsch. 45, 49 (2016), filed as Ex. 17(g) (ECF No. 20-9) (“Lee”); L. Solnes et
al., Diagnostic Value of 18F-FDG PET/CT Versus MRI in the Setting of Antibody-Specific Autoimmune
Encephalitis, 58 J. Nuclear Med. 1307, 1311 (2017), filed as Ex. 17(h) (ECF No. 20-10) (“Solnes”)
(finding that 56.5% of the studied patients had no abnormal finding on MRI). The same was true for no
positive findings for putatively-causal auto-antibodies. Lee at 49.
Dr. Willer found support for his proposed diagnosis of autoimmune encephalitis from the record
evidence of D.M.’s medication response—noting several medical records suggesting a significant
improvement in D.M.’s symptoms following receipt of steroidal treatments. First Willer Rep. at 25; Ex.
15 at 23; Ex. 11 at 1146 (documenting that approximately three hours after first steroid, D.M.’s speech
returned to normal, and his memory had gradually improved). However, as discussed above, several
contemporaneous treaters were reluctant to attribute D.M.’s initial improvement to the intravenous
steroids, as “the cellular effect of steroids do not happen immediately with administration of the
medication.” Ex. 11 at 32. Dr. Willer deemed such contemporaneous treater statements to be lacking in
probative value, since the amount of time that elapsed between administration of the intravenous steroids
and the initial improvement had not been documented. First Willer Rep. at 7. (In fact, this is not true).
Regarding timeframe for onset, Dr. Willer pointed to the three-day span from vaccination to
D.M.’s difficulty waking up on the morning of October 11, 2018, deeming it “shorter than the median
interval” but “within the realm of possibility.” First Willer Rep. at 22. It was also consistent with study
findings he had referenced elsewhere in the report. One item of literature he offered noted a median time
from vaccination to onset of four days, within a range of immediate onset to 730 days. First Willer Rep.
at 14; S. Martin et al., Anti-NMDA Receptor Encephalitis and Vaccination: A Disproportionality
Analysis, 13 Frontiers Pharmacology 1, 3 (2022), filed as Ex. 17(i) (ECF No. 21-1). Other case reports
observed onsets within a few days to almost three months. D. Endres et al., Psychiatric Presentation of
Anti-NMDA Receptor Encephalitis, 10 Frontiers Neurology 1, 2 (2019), filed as Ex. 17(j) (ECF No. 21-
2) (reporting a time from vaccination to onset of symptoms of less than three days post-vaccination);
Tourbah at 2.7
In offering this aspect of his opinion, however, Dr. Willer leaped right over the fact of D.M.’s
football injury that most-immediately preceded his display of concerning behaviors. He referenced some
record discussing the injury, in connection with the symptoms D.M. later experienced. First Willer Rep.
at 22–23. But he went right into opining about the timeframe association. See, e.g., Id. at 23.
At best, Dr. Willer (incredibly, given the medical record) denied D.M. was harmed during the
football game at all. He maintained instead that D.M. had not likely had a concussion, because (a) no
7 Dr. Willer has also referenced some case reports of encephalitis-like conditions reported after receipt of the COVID-19
vaccine, but the formulation for that vaccine, as well as the wholly-distinguishable mechanism by which it functions, is so
completely different from the inactivated flu vaccine at issue in this case that these items of literature do not merit discussion.
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behavior changes were noted until after the game’s completion, (b) D.M. never lost consciousness, and
(c) no adults present at the game observed any strange behavior. First Willer Rep. at 24. In addition, Dr.
Willer noted that the neuropsychologic assessment that D.M. underwent in early November 2018 did not
produce results thought to reflect the presence of a traumatic brain injury (although that same finding is
consistent with Respondent’s contention that D.M.’s overall presentation was partially attributable to a
conversion disorder rather than significant neurologic injury). Id.
Dr. Willer (at the time of preparation of this first report) did allow for the possibility of a
conversion disorder as explanatory, pending a neuropsychological evaluation not then performed. First
Willer Rep. at 24. He even noted evidence in the record supportive of this. Id. at 24–25. But he expressed
doubt about its validity, noting that treaters who had embraced the diagnosis had failed to take into
account the lack of risk factors specific to D.M. (whose pre-vaccination history did not reveal reasons
for concern about mental health or the kinds of stressors that might cause a conversion disorder). Id. at
25. He also maintained that, to the extent D.M. had suffered a conversion disorder, the purported
autoimmune encephalitis likely had caused it in the first place. Id. Dr. Willer explained that the severity
of conversion disorder symptoms typically correlates with more frequent early and later adverse life
events—none of which appear to exist in the present matter. Id. at 15; V. Voon et al., Emotional Stimuli
and Motor Conversion Disorder, 133 Brain 1526 (2010), filed as Ex. 17(n) (ECF No. 21-6); D.L. Perez
& C.W. LaFrance, Nonepileptic Seizures: An Updated Review, 21 CNS Spectr. 239 (2016), filed as Ex.
17(o) (ECF No. 21-7).
Second Report
Dr. Willer’s second report relied in part on the contents of the neuropsychologic evaluation
Petitioners obtained for D.M. in May 2023, and he reiterates its findings. Second Willer Rep. at 1–3. Dr.
Willer noted that D.M. had refused to cooperate on a prior assessment, conducted within a month of
vaccination, but that it appeared from the record that this “represented a poor effort on the part of [D.M.]
and not malingering,” so he deemed the more recent evaluation consistent with that finding. Id. at 3. The
kinds of deficits D.M. displayed were in fact consistent with the findings of some case reports involving
patients with NMDAR encephalitis. Id. at 4; A.R. Loughan et al., Anti-N-Methyl-D-Aspartate Receptor
Encephalitis: A Review and Neuropsychological Case Study, 30 Clin Neuropsychol. 150 (2016); E.
Cainelli et al., Neuropsychological and Psychopathological Profile of Anti-NMDAR Encephalitis: A
Possible Pathophysiological Model for Pediatric Neuropsychiatric Disorders, 34 Neuropsychol. 1309
(2019).8 Of course, D.M. has never been so diagnosed—and certainly never displayed the other
symptoms associated with this Anti-NMDAR encephalitis—a very severe autoimmune disease typically
leading to hospitalization, and often featuring severe developmental regression as well.9 Nevertheless,
Dr. Willer contended that the 2023 neuropsychologic findings were consistent with “the presence of an
8 In reviewing the docket, I note that Petitioner referenced, but did not file several items of literature cited in Dr. Willer’s
second report.
9 See Lehner v. Sec'y of Health & Hum. Servs., No. 08-554V, 2015 WL 5443461, at *17-18 (Fed. Cl. Spec. Mstr. July 22,
2015)
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organic mental syndrome,” while excluding the possibility of a “primary psychiatric etiology.” Second
Willer Rep. at 4.
Otherwise, Dr. Willer repeated his prior opinion—that D.M. had experienced an autoimmune-
mediated encephalitis. Second Willer Rep. at 4. In support, he emphasized again D.M.’s purported
response to steroids as corroborating the nature of his illness, along with his assertion that any conversion
disorder displayed by D.M. was the secondary consequence of his encephalitis, rather than an
overarching explanation for his symptoms. Id. He also reiterated the contention that a concussion suffered
during a football game could not explain D.M.’s behavior, since he had not displayed noticeable
symptoms at the game, and that his “executive function” had not been impacted, as would be expected
with a concussion. Id. Dr. Willer concluded that the timeframe for onset was medically acceptable, noting
again that since literature like Martin allowed for the possibility of vaccine-induced onset from one day
to up to almost two years post-vaccination, two days was reasonable as well. Id. at 5.
B. Neuropsychological Evaluation
To support their contention that D.M.’s condition is not best understood (at least primarily) as
conversion disorder, Petitioners had D.M. evaluated in May 2023 by Kit W. Harrison, Ph.D. See
Neuropsychological Evaluation, dated May 4, 2023, filed as Ex. 18 (ECF No. 25-1) (“Harrison
Evaluation”).
The Harrison Evaluation itself does not include a CV or resume establishing Dr. Harrison’s
qualifications, and such a document was never filed. However, the letterhead for the Harrison Evaluation
sets forth Dr. Harrison’s professional business entity (“Kit W. Harrison Ph.D. & Associates”), and that
entity has a website that includes some details regarding Dr. Harrison’s background. Kit W. Harrison,
Ph.D. & Associates, http://www.kitharrisonphd.com/home.html (last visited Jan. 5, 2024). It states that
Dr. Harrison is a psychologist licensed in the State of Texas since April 1983, and that he performs
forensic psychological evaluations (mostly “within the parent-child relationship which can be ordered by
family district and county courts as well as hired as an expert witness by counsel in said cases”). He was
previously a faculty member in the Department of Neurology at Baylor College of Medicine, and was a
co-director and founder of the first clinic in Texas devoted to the problems of concussions and mild
traumatic brain injury. He also performs training and workshops for doctors, lawyers, and members of
the judiciary including speaking annually at the Conference for the Center for the Judiciary. Dr.
Harrison’s evaluation expressly sets forth, in a disclaimer, that “[t]he evaluation reflects the patient’s
status at the time of the assessment and may not be applicable to her past or future functioning in all
instances.”
The Harrison Evaluation indicates that D.M. was seen in May 2023—not only in the course of
the litigation of the claim, but over four years after the purported vaccine event. At that time, a personal
medical history was taken, which included the Petitioners’ allegations of a “severe adverse reaction” to
the vaccination at issue (despite an absence of record support for that contention, as noted above).
Harrison Evaluation at 1. The history also states that autoimmune testing performed in 2017 or 2018
“possibly indicated features of Guillain-Barre,” plus some suggestion of conversion disorder. Id. And the
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history noted family problems as well that seemed to have been thought to possibly be impacting D.M.’s
well-being. Id.
Dr. Harrison reports having performed a number of tests to assess D.M.’s neuropsychological
status. Harrison Evaluation at 2, 4–8. He provides specific results from the testing therein. Based on the
results, Dr. Harrison deemed D.M. to be average in cognitive and intellectual function, with “no
suggestion of impairment of psychopathology.” Id. He also saw no evidence of developmental delay or
unusual behaviors or motor function. Id. at 3. Nevertheless, Dr. Harrison also noted the existence of some
“Adjustment Disorder with Mixed Anxiety and Depressed Mood” symptoms from the “period of
disability” (meaning prior to the evaluation), adding that this likely had set D.M. back, causing “lost
developmental successes.” Id. at 3.
The Harrison Evaluation ultimately settled on a proposed diagnosis for D.M. of “unspecified
neurocognitive disorder; adjustment disorder with mixed anxiety and depressed mood.” Harrison
Evaluation at 7. Dr. Harrison emphasized learning deficiencies (and in particular speed in processing),
and proposed more outpatient neurocognitive rehabilitation to remedy such deficits. Id. at 8. He also
recommended counseling for the “persisting emotional features” of the illness. Id. The Harrison
Evaluation does not, however, address the issue of vaccine causation, does not mention the football injury
D.M. experienced or its potential relationship to his subsequent symptoms, and also does not opine at all
on whether D.M. had experienced a conversion disorder—whether due to vaccination or some other
cause.
III. Procedural History
The claim was initiated a little more than two years ago, in October 2021. After going through
“pre-assignment review” (a process used by the Office of Special Masters to ensure that the most
important documents and records relating to the claim have been filed), the Petition was activated and
assigned to my docket. Respondent filed his Rule 4(c) Report in March 2022, and then I ordered
Petitioners to obtain an expert report in support of the claim, which occurred in the fall of 2022 (with
the Harrison Evaluation filed in the spring of 2023). In lieu of offering an expert report in reaction,
Respondent moved for dismissal of the claim in July 2023. The matter is now fully briefed and ripe for
resolution.
IV. Parties’ Arguments
A. Respondent
Respondent contends that Petitioners cannot meet the foundational requirement of establishing a
cognizable vaccine injury. While Respondent admits that there is some record support for an encephalitis
diagnosis (although it stems from evaluations or tests performed more than six months from the date of
vaccination), he maintains that the weight of evidence is unsupportive of that proposed injury. Br. at 14.
Rather, numerous treaters who saw and evaluated D.M. did not conclude that any form of autoimmune
encephalitis was present—and they did so on the basis of in-person exams and observations plus testing
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and other clinical evaluations. Id. at 14. Such evidence persuasively favors conversion disorder over
Petitioner’s favored injury. Id.
Petitioners’ experts, however, have not (in Respondent’s estimation) rebutted in any persuasive
form those treater findings. Dr. Willer’s opinion, Respondent argues, is “confounding at best.” Br. at 17.
Dr. Willer’s embrace of autoimmune encephalitis is based in part on D.M.’s alleged responsiveness to
steroids—even though “multiple treating physicians” rejected any such association. Id. at 17–18. The
time it took to show this improvement was simply too fast. Id. at 18. Dr. Willer’s view that any conversion
disorder D.M. displayed was likely attributable to his underlying autoimmune injury did not rely on the
Harrison Evaluation (since it did not embrace the conversion disorder interpretation of D.M.’s conduct),
and otherwise was poorly-substantiated as well as rejected by numerous treaters—who did not accept an
encephalitis diagnosis, and otherwise did not embrace conversion disorder to be explained by some
vaccine-caused injury. Id. at 18–19.
Other than disputing the favored diagnosis, Respondent argued in his brief that Petitioners had
not met the three prongs applicable to a causation-in-fact claim as established by the Federal Circuit in
in Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (2005). Br. at 19. The “can cause”
prong had not been preponderantly established—or even spelled out in detail, with Dr. Willer mostly
seeming to base his opinion on the temporal association between vaccine and onset, or studies involving
the hepatitis B vaccine. Id. at 20. Petitioners also did not establish the flu vaccine was to blame for D.M.’s
presentation. And their timeframe arguments for Althen prong three were also inadequately supported.
Id. at 21. Dr. Willer had relied for this part of his opinion on literature involving a specific kind of
autoimmune encephalitis (anti-NMDA receptor encephalitis) that involved onsets longer than the two to
three days at issue here, but it has not been shown that this is the kind of encephalitis D.M. had, and his
course was otherwise inconsistent with the Endres case report referenced for this argument. Id. at 22.
Nothing had been offered to show a likely onset timeframe specific to the flu vaccine.
B. Petitioners’
Petitioners admittedly note a dispute in the medical records regarding D.M.’s diagnosis—some
treating physicians opined that D.M. suffered from a concussion, while others discussed autoimmune
encephalitis as a possibility. Opp. at 19. Despite some of the discrepancies in diagnosis, Petitioners
maintain that Dr. Willer has provided sufficient testimony to support a diagnosis of autoimmune
encephalitis, subsequently leading to the development of conversion disorder. Id. Dr. Willer opined that
autoimmune encephalitis was the trigger for D.M.’s conversion disorder—further explaining why risk
factors, such as physical or sexual abuse, were absent. Id. at 19–20. Moreover, Dr. Willer argued that
D.M.’s symptoms are inconsistent with a concussion, given that many symptoms associated with
concussion are immediate and not as delayed as in the present case. Id. at 20. Dr. Willer further opined
that with many traumatic brain injuries the executive function of an individual is affected, but not in
D.M.’s case. Thus, D.M.’s presentation was more likely a result of autoimmune encephalitis according
to Dr. Willer. Id.
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Petitioners further contend that ample medical literature establishes a medical mechanism by
which vaccination can and does trigger autoimmune encephalitis. Opp. at 20; see also Schattner,
Tourbah, Lee, and Solnes. Moreover, Dr. Willer opined that the onset of D.M.’s symptoms occurred no
sooner than two days post-vaccination—a plausible timeframe for onset of an autoimmune disease to
present following receipt of vaccination. Opp. at 21. Accordingly, Petitioners argue that there is sufficient
evidence to support their burden of proof. Id. at 25.
V. Applicable Law
A. Standards for Vaccine Claims
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that he
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to one
of the vaccinations in question within a statutorily prescribed period of time or, in the alternative, (2) that
his illnesses were actually caused by a vaccine (a “Non-Table Injury”). See Sections 13(a)(1)(A),
11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; § 11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of
Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010); Capizzano v. Sec’y of Health & Hum.
Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006).10 Petitioners allege a causation-in-fact claim (and could
not otherwise allege a Table claim of encephalopathy or encephalitis after receipt of the flu vaccine: there
is no such claim).
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance of the
evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that leads the “trier
of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find
in favor of the party who has the burden to persuade the judge of the fact’s existence.” Moberly, 592 F.3d
at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct. 476, 486 (1984) (mere conjecture or
speculation is insufficient under a preponderance standard). Proof of medical certainty is not required.
Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). In particular, a petitioner
must demonstrate that the vaccine was “not only [the] but-for cause of the injury but also a substantial
factor in bringing about the injury.” Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health &
Hum. Servs., 165 F.3d 1344, 1352–53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Hum. Servs., 451
F.3d 1352, 1355 (Fed. Cir. 2006). A petitioner may not receive a Vaccine Program award based solely
on his assertions; rather, the petition must be supported by either medical records or by the opinion of a
competent physician. Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a Non-
Table claim, a petitioner must satisfy all three of the elements established by the Federal Circuit in Althen,
418 F.3d at 1278: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
10 Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding authority.
Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings concerning legal
issues are binding on special masters. Guillory v. Sec’y of Health & Hum. Servs., 59 Fed. Cl. 121, 124 (2003), aff’d 104 F.
Appx. 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Hum. Servs., No. 13-159V, 2014 WL 504728, at *7 n.12
(Fed. Cl. Spec. Mstr. Jan. 16, 2014).
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sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing
of proximate temporal relationship between vaccination and injury.”
Each of the Althen prongs requires a different showing. Under Althen prong one, petitioners must
provide a “reputable medical theory,” demonstrating that the vaccine received can cause the type of
injury alleged. Pafford, 451 F.3d at 1355–56 (citations omitted). To satisfy this prong, a petitioner’s
theory must be based on a “sound and reliable medical or scientific explanation.” Knudsen v. Sec’y of
Health & Hum. Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). Such a theory must only be “legally probable,
not medically or scientifically certain.” Knudsen, 35 F.3d at 549.
Petitioners may satisfy the first Althen prong without resort to medical literature, epidemiological
studies, demonstration of a specific mechanism, or a generally accepted medical theory. Andreu v. Sec’y
of Health & Hum. Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009) (citing Capizzano, 440 F.3d at 1325–
26). Special masters, despite their expertise, are not empowered by statute to conclusively resolve what
are essentially thorny scientific and medical questions, and thus scientific evidence offered to establish
Althen prong one is viewed “not through the lens of the laboratorian, but instead from the vantage point
of the Vaccine Act’s preponderant evidence standard.” Id. at 1380. Accordingly, special masters must
take care not to increase the burden placed on petitioners in offering a scientific theory linking vaccine
to injury. Contreras, 121 Fed. Cl. at 245.
In discussing the evidentiary standard applicable to the first Althen prong, the Federal Circuit has
consistently rejected the contention that it can be satisfied merely by establishing the proposed causal
theory’s scientific or medical plausibility. See Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351,
1359 (Fed. Cir. 2019); LaLonde v. Sec’y of Health & Hum. Servs., 746 F.3d 1334, 1339 (Fed. Cir. 2014)
(“[h]owever, in the past we have made clear that simply identifying a ‘plausible’ theory of causation is
insufficient for a petitioner to meet her burden of proof” (citing Moberly, 592 F.3d at 1322)); see also
Howard v. Sec'y of Health & Hum. Servs., 2023 WL 4117370, at *4 (Fed. Cl. May 18, 2023) (“[t]he
standard has been preponderance for nearly four decades”), appeal docketed, No. 23-1816 (Fed. Cir. Apr.
28, 2023). And petitioners always have the ultimate burden of establishing their overall Vaccine Act
claim with preponderant evidence. W.C. v. Sec’y of Health & Hum. Servs., 704 F.3d 1352, 1356 (Fed.
Cir. 2013) (citations omitted); Tarsell v. United States, 133 Fed. Cl. 782, 793 (2017) (noting that Moberly
“addresses the petitioner’s overall burden of proving causation-in-fact under the Vaccine Act” by a
preponderance standard).
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu, 569
F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Hum. Servs., 956 F.2d 1144,
1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions and views of the
injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d at 1367; Capizzano,
440 F.3d at 1326 (“medical records and medical opinion testimony are favored in vaccine cases, as
treating physicians are likely to be in the best position to determine whether a ‘logical sequence of cause
and effect show[s] that the vaccination was the reason for the injury’”) (quoting Althen, 418 F.3d at
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1280). Medical records are generally viewed as particularly trustworthy evidence, since they are created
contemporaneously with the treatment of the patient. Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Medical records and statements of a treating physician, however, do not per se bind the special
master to adopt the conclusions of such an individual, even if they must be considered and carefully
evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment, test result,
report, or summary shall not be binding on the special master or court”); Snyder v. Sec’y of Health &
Hum. Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is nothing . . . that mandates that the testimony of
a treating physician is sacrosanct—that it must be accepted in its entirety and cannot be rebutted”). As
with expert testimony offered to establish a theory of causation, the opinions or diagnoses of treating
physicians are only as trustworthy as the reasonableness of their suppositions or bases. The views of
treating physicians should be weighed against other, contrary evidence also present in the record—
including conflicting opinions among such individuals. Hibbard v. Sec’y of Health & Hum. Servs., 100
Fed. Cl. 742, 749 (2011) (not arbitrary or capricious for special master to weigh competing treating
physicians’ conclusions against each other), aff’d, 698 F.3d 1355 (Fed. Cir. 2012); Veryzer v. Sec’y of
Dept. of Health & Hum. Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29,
2011), mot. for review denied, 100 Fed. Cl. 344, 356 (2011), aff’d without opinion, 475 F. Appx. 765
(Fed. Cir. 2012).
The third Althen prong requires establishing a “proximate temporal relationship” between the
vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to the phrase
“medically-acceptable temporal relationship.” Id. A petitioner must offer “preponderant proof that the
onset of symptoms occurred within a timeframe which, given the medical understanding of the disorder’s
etiology, it is medically acceptable to infer causation.” de Bazan v. Sec’y of Health & Hum. Servs., 539
F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what is a medically acceptable timeframe must
align with the theory of how the relevant vaccine can cause an injury (Althen prong one’s requirement).
Id. at 1352; Shapiro v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons. denied after
remand, 105 Fed. Cl. 353 (2012), aff’d mem., 503 F. Appx. 952 (Fed. Cir. 2013); Koehn v. Sec’y of
Health & Hum. Servs., No. 11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for
review denied, (Fed. Cl. Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
B. Law Governing Analysis of Fact Evidence
The process for making determinations in Vaccine Program cases regarding factual issues begins
with consideration of the medical records. Section 11(c)(2). The special master is required to consider
“all [] relevant medical and scientific evidence contained in the record,” including “any diagnosis,
conclusion, medical judgment, or autopsy or coroner's report which is contained in the record regarding
the nature, causation, and aggravation of the petitioner's illness, disability, injury, condition, or death,”
as well as the “results of any diagnostic or evaluative test which are contained in the record and the
summaries and conclusions.” Section 13(b)(1)(A). The special master is then required to weigh the
evidence presented, including contemporaneous medical records and testimony. See Burns v. Sec'y of
Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (determining that it is within the special master's
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discretion to determine whether to afford greater weight to contemporaneous medical records than to
other evidence, such as oral testimony surrounding the events in question that was given at a later date,
provided that such determination is evidenced by a rational determination).
As noted by the Federal Circuit, “[m]edical records, in general, warrant consideration as
trustworthy evidence.” Cucuras, 993 F.2d at 1528; Doe/70 v. Sec'y of Health & Hum. Servs., 95 Fed. Cl.
598, 608 (2010) (“[g]iven the inconsistencies between petitioner's testimony and his contemporaneous
medical records, the special master's decision to rely on petitioner's medical records was rational and
consistent with applicable law”), aff'd, Rickett v. Sec'y of Health & Hum. Servs., 468 F. App’x 952 (Fed.
Cir. 2011) (non-precedential opinion). A series of linked propositions explains why such records deserve
some weight: (i) sick people visit medical professionals; (ii) sick people attempt to honestly report their
health problems to those professionals; and (iii) medical professionals record what they are told or
observe when examining their patients in as accurate a manner as possible, so that they are aware of
enough relevant facts to make appropriate treatment decisions. Sanchez v. Sec'y of Health & Hum. Servs.,
No. 11–685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr. Apr. 10, 2013); Cucuras v. Sec'y of Health
& Hum. Servs., 26 Cl. Ct. 537, 543 (1992), aff'd, 993 F.2d 1525 (Fed. Cir. 1993) (“[i]t strains reason to
conclude that petitioners would fail to accurately report the onset of their daughter's symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should be
afforded substantial weight. Lowrie v. Sec'y of Health & Hum. Servs., No. 03–1585V, 2005 WL 6117475,
at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records are often found
to be deserving of greater evidentiary weight than oral testimony—especially where such testimony
conflicts with the record evidence. Cucuras, 993 F.2d at 1528; see also Murphy v. Sec'y of Health &
Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed. Cir. 1992), cert. denied,
Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States v. United States Gypsum Co., 333 U.S.
364, 396 (1947) (“[i]t has generally been held that oral testimony which is in conflict with
contemporaneous documents is entitled to little evidentiary weight.”)).
However, the Federal Circuit has also noted that there is no formal “presumption” that records
are accurate or superior on their face to other forms of evidence. Kirby v. Sec’y of Health & Hum. Servs.,
997 F.3d 1378, 1383 (Fed. Cir. 2021). There are certainly situations in which compelling oral testimony
may be more persuasive than written records, such as where records are deemed to be incomplete or
inaccurate. Campbell v. Sec'y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“like any norm
based upon common sense and experience, this rule should not be treated as an absolute and must yield
where the factual predicates for its application are weak or lacking”); Lowrie, 2005 WL 6117475, at *19
(“[w]ritten records which are, themselves, inconsistent, should be accorded less deference than those
which are internally consistent”) (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a determination
regarding a witness's credibility is needed when determining the weight that such testimony should be
afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec'y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed.
Cir. 1993).
When witness testimony is offered to overcome the presumption of accuracy afforded to
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contemporaneous medical records, such testimony must be “consistent, clear, cogent, and compelling.”
Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the accuracy and
completeness of medical records, the Court of Federal Claims has listed four possible explanations for
inconsistencies between contemporaneously created medical records and later testimony: (1) a person's
failure to recount to the medical professional everything that happened during the relevant time period;
(2) the medical professional's failure to document everything reported to her or him; (3) a person's faulty
recollection of the events when presenting testimony; or (4) a person's purposeful recounting of
symptoms that did not exist. La Londe v. Sec'y of Health & Hum. Servs., 110 Fed. Cl. 184, 203–04 (2013),
aff'd, 746 F.3d 1334 (Fed. Cir. 2014). In making a determination regarding whether to afford greater
weight to contemporaneous medical records or other evidence, such as testimony at hearing, there must
be evidence that this decision was the result of a rational determination. Burns, 3 F.3d at 417.
C. Analysis of Expert Testimony
Establishing a sound and reliable medical theory often requires a petitioner to present expert
testimony in support of his claim. Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357, 1361 (Fed.
Cir. 2000). Vaccine Program expert testimony is usually evaluated according to the factors for analyzing
scientific reliability set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594–96
(1993). See Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1339 (Fed. Cir. 2010) (citing
Terran v. Sec’y of Health & Hum. Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999)). “The Daubert factors
for analyzing the reliability of testimony are: (1) whether a theory or technique can be (and has been)
tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether
there is a known or potential rate of error and whether there are standards for controlling the error; and
(4) whether the theory or technique enjoys general acceptance within a relevant scientific community.”
Terran, 195 F.3d at 1316 n.2 (citing Daubert, 509 U.S. at 592–95).
The Daubert factors play a slightly different role in Vaccine Program cases than they do when
applied in other federal judicial fora (such as the district courts). Daubert factors are usually employed
by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence that is unreliable
and/or could confuse a jury. In Vaccine Program cases, by contrast, these factors are used in the weighing
of the reliability of scientific evidence proffered. Davis v. Sec’y of Health & Hum. Servs., 94 Fed. Cl. 53,
66–67 (2010) (“uniquely in this Circuit, the Daubert factors have been employed also as an acceptable
evidentiary-gauging tool with respect to persuasiveness of expert testimony already admitted”). The
flexible use of the Daubert factors to evaluate the persuasiveness and reliability of expert testimony has
routinely been upheld. See e.g., Snyder, 88 Fed. Cl. at 742–45. In this matter (as in numerous other
Vaccine Program cases), Daubert has not been employed at the threshold, to determine what evidence
should be admitted, but instead to determine whether expert testimony offered is reliable and/or
persuasive.
Respondent frequently offers one or more experts of his own in order to rebut a petitioner’s case.
Where both sides offer expert testimony, a special master’s decision may be “based on the credibility of
17

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the experts and the relative persuasiveness of their competing theories.” Broekelschen v. Sec’y of Health
& Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing Lampe, 219 F.3d at 1362). However, nothing
requires the acceptance of an expert’s conclusion “connected to existing data only by the ipse dixit of the
expert,” especially if “there is simply too great an analytical gap between the data and the opinion
proffered.” Snyder, 88 Fed. Cl. at 743 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)); see
also Isaac v. Sec’y of Health & Hum. Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec.
Mstr. July 30, 2012), mot. for rev. denied, 108 Fed. Cl. 743 (2013), aff’d, 540 F. Appx. 999 (Fed. Cir.
2013) (citing Cedillo, 617 F.3d at 1339). Weighing the relative persuasiveness of competing expert
testimony, based on a particular expert’s credibility, is part of the overall reliability analysis to which
special masters must subject expert testimony in Vaccine Program cases. Moberly, 592 F.3d at 1325–26
(“[a]ssessments as to the reliability of expert testimony often turn on credibility determinations”); see
also Porter v. Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1250 (Fed. Cir. 2011) (“this court has
unambiguously explained that special masters are expected to consider the credibility of expert witnesses
in evaluating petitions for compensation under the Vaccine Act”).
Expert opinions based on unsupported facts may be given relatively little weight. See Dobrydnev
v. Sec’y of Health & Hum. Servs., 556 F. Appx. 976, 992–93 (Fed. Cir. 2014) (“[a] doctor’s conclusion
is only as good as the facts upon which it is based”) (citing Brooke Group Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209, 242 (1993) (“[w]hen an expert assumes facts that are not supported by a
preponderance of the evidence, a finder of fact may properly reject the expert’s opinion”)). Expert
opinions that fail to address or are at odds with contemporaneous medical records may therefore be less
persuasive than those which correspond to such records. See Gerami v. Sec’y of Health & Hum. Servs.,
No. 12-442V, 2013 WL 5998109, at *4 (Fed. Cl. Spec. Mstr. Oct. 11, 2013), aff’d, 127 Fed. Cl. 299
(2014).
D. Consideration of Medical Literature
Both parties filed numerous items of medical and scientific literature in this case, but not every
filed item factors into the outcome of this Decision. While I have reviewed all the medical literature
submitted in this case, I discuss only those articles that are most relevant to my determination and/or are
central to Petitioner’s case—just as I have not exhaustively discussed every individual medical record
filed. Moriarty v. Sec’y of Health & Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“[w]e generally
presume that a special master considered the relevant record evidence even though he does not explicitly
reference such evidence in his decision”) (citation omitted); see also Paterek v. Sec’y of Health & Hum.
Servs., 527 F. Appx. 875, 884 (Fed. Cir. 2013) (“[f]inding certain information not relevant does not lead
to—and likely undermines—the conclusion that it was not considered”).
E. Standards for Ruling on the Record
I am resolving Petitioners’ claim on the filed record. The Vaccine Act and Rules not only
contemplate but encourage special masters to decide petitions on the papers where (in the exercise of
their discretion) they conclude that doing so will properly and fairly resolve the case. Section 12(d)(2)(D);
Vaccine Rule 8(d). The decision to rule on the record in lieu of hearing has been affirmed on appeal.
18

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Kreizenbeck v. Sec’y of Health & Hum. Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020); see also Hooker v.
Sec’y of Health & Hum. Servs., No. 02-472V, 2016 WL 3456435, at *21 n.19 (Fed. Cl. Spec. Mstr. May
19, 2016) (citing numerous cases where special masters decided case on the papers in lieu of hearing and
that decision was upheld). I am simply not required to hold a hearing in every matter, no matter the
preferences of the parties. Hovey v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 397, 402–03 (1997)
(determining that special master acted within his discretion in denying evidentiary hearing); Burns, 3
F.3d at 417; Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 71500, at *2 (Fed. Cl.
Spec. Mstr. Apr. 19, 1991).
ANALYSIS
Here, as in many Program cases, determination of the relevant injury is critical to the claim’s
success. Broekelschen, 618 F.3d at 1346. Petitioners seek to characterize D.M.’s post-vaccination
condition as some form or autoimmune-caused encephalitis (which, if established, would provide the
entry to determining that it could be vaccine-associated). No other version of injury is alleged, and thus
the first matter for determination (and potentially the sole matter) is to evaluate if the evidence
preponderantly supports an autoimmune encephalitis as the best explanation for D.M.’s condition.11
Here, there is clinical evidence of D.M.’s post-football game behavioral changes, and that they
were alarming enough to Petitioners and treaters to result in his hospitalization in November 2018. But
evidence of an autoimmune injury that might be vaccine-related is scant. No testing at all is
confirmatory of the existence of this kind of injury, and no treaters ever settled on such a diagnosis.
There is also no evidence of any close-in-time (meaning the first hours to days post-vaccination)
reaction to the vaccine, with D.M.’s symptoms only manifesting after his football injury, which treaters
at the time deemed a concussion.
Petitioners’ expert input does not at all aid their argument that D.M. experienced a vaccine-
related injury. The essence of Dr. Willer’s opinion seems to be that because D.M.’s symptoms
11 Although this is a non-Table case, the Table definition of “encephalopathy” provides some insights into the factors deemed
sufficient by Respondent to establish a claim in which causation is presumed—and thus what would be particularly strong
evidence of a vaccine injury in this context. See 42 C.F.R. § 100.3(a)(II)(B)(2018). Petitioner herein is not obligated to meet
these requirements, but some brief review of them helps illuminate the kinds of symptoms that would be associated with an
encephalopathy resulting in developmental deficits.
Table claimants seeking to prove a vaccine-caused encephalopathy must establish both that the injured party experienced an
“acute” encephalopathy—typically evidenced by a decreased change in consciousness (as that term is defined in the
Qualifications and Aids to Interpretation, 42 C.F.R. § 100.3(c)(2)(2018)) of sufficient severity to warrant hospitalization—
and that the encephalopathy subsequently became “chronic” (that is, it lasted for at least six months). Thompson v. Sec’y of
Health & Hum. Servs., No. 15-1498V, 2017 WL 2926614, at *7–8 (Fed. Cl. Spec. Mstr. May 16, 2017). The acute
encephalopathy must manifest within three days/seventy-two hours, and if alleged to have been experienced by a child less
than eighteen months old, must be “indicated by a significantly decreased level of consciousness that lasts at least 24 hours.”
42 C.F.R. § 100.3 (2017).
A causation-in-fact claim alleging encephalopathy, by contrast, is not subject to the Table’s stringent defined requirements.
But where encephalopathy as the injury is alleged, it must be supported by preponderant proof, and that evidence must
establish more than simply a subsequent neurologically-derived symptom (since virtually any injury impacting the brain could
credibly be deemed some form of encephalopathy)..
19

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manifested post-vaccination, and because in other contexts vaccines are associated with autoimmune
injury, it can be reasonably concluded this happened to D.M. But this opinion is not sufficiently rooted
in record proof to find it persuasive. Rather, it seems to epitomize the kind of “post hoc ergo propter
hoc” reasoning that numerous decisions have rejected. See Galindo v. Sec’y of Health & Hum. Servs.,
No. 16-203V, 2019 WL 2419552 (Fed. Cl. Spec. Mstr. May 14, 2019) (citing U.S. Steel Group v. United
States, 96 F. 3d 1352, 1358 (Fed. Cir. 1996) (“[b]ut to claim that the temporal link between these events
proves that they are casually related is simply to repeat the ancient fallacy: post hoc ergo propter hoc”).
Dr. Willer also proposes that the record reveals D.M. responded to steroid treatments, thus
indirectly supporting the conclusion that the injury he was experiencing was autoimmune in nature. But
numerous treaters expressly rejected that conclusion, and placed no significance in the seeming benefit
of the administration of such medication. Ex. 1 at 121; Ex. 11 at 33, 53, 933–36. I deem their
contemporary views to be deserving of greater weight than Dr. Willer’s after-the-fact opinion.
Moreover, there is record evidence that later on, when D.M. received Ativan, a sedative, he also
immediately experienced improvement—something contemporaneous treaters viewed as supportive of
a conversion disorder diagnosis, but not otherwise proof of any other particular underlying explanation
for his clinical symptoms. See, e.g., Ex. 1 at 68 (“[t]emporal improvement with Ativan more likely
coincidental”). And Ativan is not a treatment associated with an autoimmune injury in any event.12
The Harrison Evaluation is of even less help. It takes no position at all on the primary disputed
questions. Arguably, it could be construed to undermine a conversion disorder diagnosis, in favor of a
milder depressive reaction to D.M.’s personal circumstances at home. But even if D.M.’s post-
vaccination difficulties are not wholly reflective of a conversion disorder, this does not mean the
vaccine was more likely to blame simply because it predates onset. And the Harrison Evaluation was
performed too long after the vaccination to read it as persuasively ruling out a conversion disorder that
would have occurred four years before—let alone behavior changes initially attributable to a physical
injury.
And this raises a final, significant fact: the undisputed evidence of D.M.’s football injury. The
record proof that this occurred—and that it was what first prompted Petitioners to seek treatment for
D.M.—shines forth above all else in this case, and stands as a completely credible explanation for what
sadly befell D.M. thereafter (at least close-in-time to it). Indeed, the first post-vaccination treatment of
any kind that D.M. received came in response to the injury—and at that time, D.M. was reported to
display the kinds of symptoms he is now alleged to have experienced due to vaccination, but just after
the game. Ex. 1 at 37–40.
12 In fact, some treaters considered D.M.’s seemingly-fast response to both steroids and Ativan to support the conclusion that
he was suffering from a conversion disorder, given their disparate natures. See, e.g., Ex. 11 at 54 (March 2019 pediatric
psychiatry consultation, stating that “[p]resentation is similar to his last admission, which responded well to Ativan and
steroids. However, his immediate response to treatment with continued nonspecific memory impairments were very
suggestive of a psychosomatic illness. Given the way that the pt responded to the Ativan over the weekend, this is again c/w
Conversion d/o, and despite the fact that he is insistent that he does not have psychiatric issues, the pt would likely benefit
from the PATH program. We do not recommend sending the pt home with Ativan”).
20

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Dr. Willer’s efforts to explain away the football injury are wholly unconvincing. The fact, for
example, that D.M.’s injury was not immediately understood to be a concussion by bystanders present
at the football game does not mean it is not a reasonable explanation for what occurred. Initial treaters
largely concluded that this is what had transpired in D.M.’s case. Ex. 1 at 8–9. And while later brain
scans did not reveal either any underlying abnormality or harm, this fact does not remove the possibility
of some form of transient concussive harm as the most likely proximate explanation for D.M.’s
immediate, post-football game behaviors. (Indeed, as Dr. Butler opined in December 2018, “relatively
minor head trauma” could produce brain injury even in the absence of strong evidence from imaging.
See Ex. 1 at 121). Later on, continuation of those same behaviors may have been the product of the
conversion disorder D.M. was thought to be experiencing—a secondary explanation for his symptoms
more consistent with the record than Dr. Willer’s contention that conversion disorder was the product
of an autoimmune illness.
The medical record thus better supports two independent, temporally-overlapping explanations
for D.M.’s post-vaccination symptoms—effects of a concussion immediately after the October 2018
football game, or conversion disorder manifesting later on. Such evidence greatly outweighs the far
more limited evidence suggesting the presence of an autoimmune process as explanatory. This is of
course not to say that the evidence establishes an explanation for D.M.’s condition (and I am not
qualified to diagnose him in performing my duties as special master in any event). But the balance of
proof does not preponderantly support the conclusion that any form of autoimmune injury occurred in
this case attributable to the flu vaccine. That determination prevents Petitioners from succeeding in
proving the alleged injury (as well as the second Althen prong—they cannot on this record prove the
flu vaccine likely “did cause” D.M.’s symptoms, which are not likely reflective of an autoimmune
encephalitis).
It is well-accepted in the Program that not all injuries are attributable to a prior vaccination, no
matter how close-in-time the relationship. Capizzano, 440 F.3d at 1327. This is so even when there is
no other competing explanatory evidence. Here, there is ample such evidence, and it cannot be evaded
by providing the opinion of a practicing neurologist (Dr. Willer) willing to gainsay the clear and
uncontroverted record. In the end, and as noted above, this is a case attempting to prove solely that
symptoms that followed a vaccine were caused by it, mostly due to the temporal association, while
disregarding, or unpersuasively dismissing, fairly obvious other record evidence deserving of
substantial weight that goes to the nature of the injury. The matter is properly dismissed.
CONCLUSION
While I have sympathy for the Petitioners’ efforts to ascertain the nature of D.M.’s condition
and provide him treatment for it, this case relies on a diagnosis that is wholly rebutted by the record
alone. D.M.’s onset of behavior symptoms had no more than a mere temporal relationship with
vaccination—and have more compellingly been linked to a sports accident or other personal issues in
his life. Having reviewed the medical records, expert reports, medical literature, and the parties’
21

Case 1:21-vv-01960-UNJ Document 31 Filed 01/31/24 Page 22 of 22
respective arguments, I do not find that Petitioners have met their preponderant burden of proof.
Accordingly, they have not established entitlement to an award of damages, and I must DISMISS the
claim.13
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
13 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right
to seek review.
22

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_21-vv-01960-cl-extra-10735596
Date issued/filed: 2024-04-16
Pages: 1
Docket text: Supplementary opinion from CourtListener cluster 10269006
--------------------------------------------------------------------------------
                 In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 21-1960V

*************************
                                          *
ERIC MONTE and KIMBERLY MONTE, *
as natural parents and legal guardians of *
D.M., a minor,                            *                    Chief Special Master Corcoran
                                          *
                      Petitioners,        *                    Filed: March 21, 2024
                                          *
               v.                         *
                                          *
SECRETARY OF HEALTH                       *
AND HUMAN SERVICES,                       *
                                          *
                      Respondent.         *
                                          *
*************************

David J. Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Benjamin P. Warder, U.S. Dep’t of Justice, Washington, DC, for Respondent.

    DECISION GRANTING IN PART MOTION FOR ATTORNEY’S FEES AND COSTS 1

       On October 4, 2021, Eric and Kimberly Monte filed a petition on behalf of their minor son,
D.M., seeking compensation under the National Vaccine Injury Compensation Program (the
“Vaccine Program”). 2 Petitioners alleged that an influenza vaccine D.M. received on October 8,
2018, caused him to develop autoimmune encephalitis. Petition (ECF No. 1). Respondent moved
to dismiss the claim on July 10, 2023. Respondent’s Brief (ECF No. 27). After additional briefing,
I dismissed the claim, and that determination was not appealed. Decision, dated January 5, 2024
(ECF No. 30).



1
  Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
        Petitioners have now filed a motion attorney’s fees and costs. Motion, dated Feb. 22, 2024
(ECF No. 34) (“Mot.”). It is their sole fees request in this case. Petitioners request a total of
$66,869.53 ($51,633.00 in fees, plus $14,508.78 in costs) for the work of the attorneys and
paralegals at Green & Schafle. Mot. at 3. Respondent reacted to the fees request on March 7, 2024.
See Response, dated March 7, 2024 (ECF No. 35) (“Resp.”). Respondent defers to my discretion
as to whether the statutory requirements for an award of attorney’s fees and costs are met in this
case, and if so, the calculation of the amount to be awarded. Id. at 2–3. Petitioners did not file a
reply.

       For the reasons set forth below, I hereby GRANT IN PART in part Petitioner’s motion,
awarding fees and costs in the total amount of $53,284.08.


                                                     ANALYSIS

I.       Petitioners’ Claim had Reasonable Basis

        Although the Vaccine Act only guarantees a fees award to successful petitioners, a special
master may also award fees and costs in an unsuccessful case if: (1) the “petition was brought in
good faith”; and (2) “there was a reasonable basis for the claim for which the petition was brought.”
Section 15(e)(1). I have in prior decisions set forth at length the criteria to be applied when
determining if a claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Sterling
v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443, at *4 (Fed. Cl. Spec. Mstr. Jan.
3, 2020). Importantly, establishing reasonable basis does not automatically entitle an unsuccessful
claimant to fees, but is instead a threshold obligation; fees can still thereafter be limited, if
unreasonable, or even denied entirely.

        A claim’s reasonable basis 3 must be demonstrated through some objective evidentiary
showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020)
(citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This
objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may
bulwark good faith). Simmons, 875 F.3d at 635. In addition, reasonable basis inquiries are not
static—they evaluate not only what was known at the time the petition was filed, but also take into
account what is learned about the evidentiary support for the claim as the matter progresses.
Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the
finding that a reasonable basis for petitioners’ claims ceased to exist once they had reviewed their
expert's opinion, which consisted entirely of unsupported speculation). As a result, a claim can


3
 Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable to that fees
prong.


                                                            2
“lose” reasonable basis over time.

        The standard for finding the existence of reasonable basis is lesser (and thus inherently
easier to satisfy) than the preponderant standard applied when assessing entitlement, as cases that
fail can still have sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum.
Servs., 144 Fed. Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable
basis is a standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v.
Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted)
(affirming special master). The factual basis and medical support for the claim is among the
evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372,
378 (Fed. Cl. 2017). Under the Vaccine Act, special masters have “maximum discretion” in
applying the reasonable basis standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed.
Cl. 401, 401–02 (Fed. Cl. 2012). 4

        This claim was ultimately unsuccessful, and the theory presented strained against the
fundamental, indisputable fact that some, or even all, of D.M.’s symptoms appeared reasonably
attributable to a sports injury that looks to have been a concussion. Decision at 2, 19-21.
Additionally, D.M. may have manifested conversion disorder later on – and although Petitioners
made some effort to identify this as vaccine-related, those contentions were not persuasive. Id. at
5-6, 10-11, 20-21.

         Nevertheless – and given the very low bar that applies to reasonable basis inquiries - I find
the claim possessed just enough objective support to allow a fees award. The fact that D.M.’s
vaccination occurred close in time to his probable concussion and manifestation of subsequent
neurological issues somewhat opened the door to a theory that both could be vaccine-associated.
But (and consistent with my authority to restrict, limit, or even deny fees that are not “reasonable”
in any Vaccine Act case, successful or not) I will be reducing the award herein, as discussed in
more detail below. Attorneys must take care in accepting cases that rely too heavily on a temporal
nexus between injury and vaccination as suggestive of causation – and must not simply assume
that as long as they can find a willing scientific expert to add heft, they will receive a full measure
of their fees, no matter the claim’s obvious issues. This claim was facially weak at the outset,
gaining no strength as it proceeded, and therefore it is fair to question if all resources devoted to it
were reasonably spent.




4
 See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they
would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is
consistent with the Vaccine Act as a whole).

                                                         3
II.     Calculation of Fees

       Determining the appropriate amount of the fees award is a two-part process. The first part
involves application of the lodestar method—“multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs.,
515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
The second part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in
most cases where a fee award is authorized by federal statute. Hensely v. Eckerhart, 461 U.S. 424,
429–37 (1983).

        An attorney’s reasonable hourly rate is determined by the “forum rule,” which bass the
proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,
for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there
is a substantial difference in rates (the so-called “Davis” exception”). Avera, 515 F.3d at 1348
(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges
for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine
Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at
*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

       Petitioners requests the following rates for their attorneys and support staff, based on the
years work was performed:

                              2019         2020         2021          2022         2023         2024
       David Carney          $325.00      $350.00      $375.00       $400.00      $425.00      $450.00
        (Attorney)
        Evan Baker               --           --       $150.00          --           --            --
         (Attorney,
       Former Law
           Clerk)
        Paralegals           $145.00      $145.00      $145.00       $145.00         --            --
Final Fees Mot. at 2–3.

        Mr. Carney and his colleagues practice in Philadelphia, Pennsylvania—a jurisdiction that
has been deemed “in forum,” and thus entitling them to rates commensurate with what was
established in McCulloch. See Peka v. Sec'y of Health & Hum. Servs., No. 20-1099V, 2023 WL
9288151 (Fed. Cl. Spec. Mstr. Dec. 20, 2023). The rates requested are also consistent with what
has previously been awarded these attorneys, in accordance with the Office of Special Masters’
fee schedule (recently updated for 2024 rates) and relevant decisions. 5 See Bulman v. Sec'y of

5
 OSM Attorneys’ Forum Hourly Rate Fee Schedules, http://www.cofc.uscourts.gov/node/2914 (last visited March 21,
2024).

                                                      4
Health & Hum. Servs., No. 19-1217V, 2023 WL 8230452 (Fed. Cl. Spec. Mstr. Oct. 31, 2023). I
thus find no cause to reduce them in this instance.

        However, given the very thin basis of the claim, the number of hours spent was
unreasonable. The likelihood of concussion (coupled later with a confounding conversion
disorder) as explanatory of Petitioner’s symptoms was never rebutted in any persuasive manner,
and addition of an expert report provided no more than a veneer of acceptability to the claim. The
risk of loss in this case was not high, but highly likely – and in such circumstances counsel must
keep control of time spent on the matter, independent of their otherwise-proper desire to provide
representation.

        Under such circumstances, I am empowered to make modest, across-the-board time
reductions. (“Special masters need not engage in a line-by-line review of fees requests when
making reductions, and in fact are permitted to make fair across-the-board cuts.” Humphries v.
Sec'y of Health & Hum. Servs., No. 17-288V, 2021 WL 5444097, at *5 (Fed. Cl. Spec Mstr. Oct.
26, 2021). That is proper herein. Accordingly, I hereby reduce by twenty percent the total
recoverable fees, based on the determination that the time spent in prosecuting this matter was
overall unwise. This results in a reduction of fees to be awarded by $10,326.60. 6

III.       Calculation of Attorney’s Costs

       Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed.
Cl. 667, 670 (2002): Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).
Reasonable costs include the costs of obtaining medical records and expert time incurred while
working on a case. Fester v. Sec’y of Health & Hum. Servs., No. 10-243V, 2013 WL 5367670, at
*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as
by not providing appropriate documentation to explain the basis for a particular cost, special
masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health
& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

        Petitioners seek $14,508.78 in outstanding costs, including the filing fee, medical record
retrieval costs, and the work of one expert, Dr. Justin Willer. Mot. at 3. Dr. Willer prepared two
reports in this case. He submitted two invoices reflecting a total amount of $12,655.50 (23.01 hours
of work at a rate of $550.00 per hour). 7




6
    20% of $51,633.00 is $10,326.60. Thus, the total award for attorney’s fees is $41,306.40.

7
 Petitioners also obtained for D.M. a neuropsychologic evaluation and offered it as evidence (see Ex. 18 (ECF No.
25-1)), but do not appear to have requested reimbursement for this particular cost.

                                                            5
        I will make no adjustments to the litigation costs requested, except for those specific to Dr.
Willer. The opinion he offered was largely unhelpful, and relied on facially-unpersuasive efforts
to deny the concussion as causal, or to link conversion disorder-like behaviors to vaccination.
Expert input of this kind does not aid a case – and is not accepted at face value simply due to an
expert’s medical credentials. Under such circumstances, an expert should not receive the full
amount of time billed to a matter—and for that reason, I will apply the same 20 percent reduction
I am using for attorney time, reducing the amount to be awarded for Dr. Willer’s work to
$10,124.40 (based on a subtraction of $2,531.10).


                                                 CONCLUSION

        Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of a final fees award, I GRANT in part Petitioner’s Motion for Attorney’s Fees and
Costs, and award a total of $53,284.08, reflecting $41,306.40 in fees, plus $11,977.68 in costs, in
the form of a check made jointly payable to Petitioners and their counsel, Mr. David Carney.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision. 8

         IT IS SO ORDERED.

                                                                 s/ Brian H. Corcoran
                                                                 Brian H. Corcoran
                                                                 Chief Special Master




8
  Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.

                                                           6