VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01350
Package ID: USCOURTS-cofc-1_22-vv-01350
Petitioner: David Hunter
Filed: 2022-09-22
Decided: 2025-09-17
Vaccine: influenza
Vaccination date: 2019-09-24
Condition: right-sided sudden sensorineural hearing loss and tinnitus
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On September 22, 2022, David Hunter filed a petition alleging that an influenza vaccination he received from his primary care provider on September 24, 2019, caused right-sided sudden sensorineural hearing loss and tinnitus. He was 59 years old at vaccination.

The medical records placed the first hearing complaints in early October 2019. Around October 1, Mr. Hunter saw an ear, nose, and throat physician with right-sided hearing loss that had begun several days earlier. He also had a history of a minor head injury in the weeks before vaccination. The ENT diagnosed right subjective tinnitus and unilateral sudden sensorineural hearing loss, prescribed prednisone, and later obtained an MRI that did not show an acute intracranial cause. Mr. Hunter reported dizziness and persistent hearing difficulty, and he received several right ear steroid injections in November 2019. By late November, he reported some return of hearing, though tinnitus remained.

The case did not proceed on the Vaccine Injury Table because sudden sensorineural hearing loss is not a Table injury for influenza vaccine. Chief Special Master Corcoran ordered Mr. Hunter to show cause why the case should not be dismissed, noting that similar SSNHL vaccine claims had generally failed without persuasive expert proof. Mr. Hunter referenced a COVID-vaccine hearing-loss article and asked for more time to obtain expert support, but he did not file an expert report or literature establishing a reliable medical theory for flu vaccine causation.

On September 17, 2025, the Chief Special Master dismissed the petition. He found that the record did not satisfy Althen's first prong because no reliable medical theory connected the influenza vaccine to Mr. Hunter's hearing loss. The dismissal left no injury compensation award. Mr. Hunter was represented by Howard Gold.

Theory of causation field:
Influenza vaccine, September 24, 2019, age 59, alleged right-sided sudden sensorineural hearing loss and tinnitus with onset described in records about one week after vaccination. DISMISSED. Theory was an off-Table vaccine-caused SSNHL claim, but petitioner filed no expert report and no reliable medical theory connecting influenza vaccine to his hearing loss; a COVID-vaccine hearing-loss article was not relevant because COVID vaccines are not covered by the VICP and did not establish causation for this claim. Key evidence: October 2019 ENT visits, prednisone, MRI without acute explanation, ear steroid injections, partial hearing improvement, and later records largely silent for ongoing vaccine-related hearing impairment. Chief Special Master Corcoran found Althen prong one not met and dismissed. Attorney Howard Gold.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_22-vv-01350-0
Date issued/filed: 2025-10-20
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 09/17/2025) regarding 30 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (mva) Service on parties made.
--------------------------------------------------------------------------------
Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-1350V
* * * * * * * * * * * * * * * * * * * * * * * * *
*
DAVID HUNTER, * Chief Special Master Corcoran
*
Petitioner, * Filed: September 17, 2025
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Howard Gold, Gold Law Firm, LLC, Wellesley, MA, for Petitioner
Mary Holmes, U.S. Department of Justice, Washington, DC, for Respondent.
ENTITLEMENT DECISION1
On September 22, 2022, David Hunter filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program).2 Petitioner alleges that
he developed sudden sensorineural hearing loss (“SSNHL”) due to an influenza (“flu”) vaccine
received on September 24, 2019. Petition (ECF No. 1) at 1.
After the claim’s initiation, I held a status conference with the parties, informing the
Petitioner that claims that covered vaccines can cause SSNHL are far more often than not
unsuccessful. See Order, dated February 4, 2025 (ECF No. 27) (the “Show Cause Order”). But I
invited him to marshal whatever more recent scientific or medical independent evidence might
exist in support of such a claim that had not been previously considered by me or any other special
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 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).

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 2 of 12
masters. Show Cause Order at 2. If he did so, and established that there was some previously-
unconsidered basis for finding causation, then the claim could proceed.
The parties complied with my Order and have filed briefs in support of their positions. See
Petitioner’s Response, dated April 29, 2025 (ECF No. 28) (“Br.”); Respondent’s Rule 4(c) Report
and Response, dated May 29, 2025 (ECF No. 29) (“Opp.”). Now, and based on my review of the
record and the parties’ arguments, I find that Petitioner has not established sufficient evidence to
go forward with this case, on the basis of a theory so often rejected. As a result, entitlement cannot
be determined in his favor, and this matter is appropriately dismissed.
I. Brief Fact Summary
Petitioner was 59 years old when he received a flu vaccine from his primary care provider
on September 24, 2019. Ex. 1 at 1. Approximately one week later (October 1st), he went to South
Florida Ear-Nose-Throat (“ENT”) Associates reporting a three-day history of right-sided hearing
loss. Ex. 4 at 81. He noted at this time, however, that he had suffered a minor head injury three
weeks before (meaning pre-vaccination), and that he awoke several days before his ENT visit with
the reported hearing loss symptoms. Id. at 80, 85.
Mr. Hunter subsequently underwent otoscopic audiometry exams, and was assessed with
acquired nasal deformity, subjective tinnitus of the right ear, and unilateral SSNHL. Ex. 4 at 83.
He was prescribed prednisone, and directed to follow up if his hearing did not improve. Id. at 83–
84.
In mid-October 2019, Petitioner underwent a brain MRI that was unremarkable apart from
evidence of bilateral chronic sinusitis. Ex. 4 at 52, 56. He later returned to the ENT with complaints
of dizziness, adding that his hearing loss had not improved despite the prednisone. Id. at 52. He
also now noted that he had received the flu vaccine three days prior to the start of his symptoms.
Id. He was prescribed an antibiotic and directed to return for a course of three ear canal steroid
injections. Id. at 54–55.
Petitioner returned to his ENT for his first right ear canal steroid injection on November
13, 2019. Ex. 4 at 28. His right ear hearing loss was now deemed stable, and he was started on a
second course of antibiotics for chronic sinusitis. Id. He received several additional right ear canal
steroid injections that same month. Id. at 17, 20. By the time of a November 25, 2019, visit, Mr.
Hunter noted that some hearing had returned to his right ear. Id. at 17.
Petitioner had a follow-up with his ENT on December 19, 2019 (now slightly less than
three months post-vaccination) and reported improvement with hearing in his right ear but some
2

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 3 of 12
ongoing tinnitus. Ex. 4 at 6. He was now assessed with unilateral SSNHL, nasal deformity, and
subjective tinnitus of the right ear. Id.
In the winter of 2020, Petitioner was admitted to the hospital for a bronchoscopy. Ex. 5 at
2086. Although Petitioner claimed in a medical history provided to treaters that he had some form
of allergy to flu vaccines that had caused him to “become [sic] deaf in right ear,” a physical exam
was negative for hearing loss. Id. at 2086, 2088. Treatment records from subsequent doctor’s visits
are silent on the claimed SSNHL vaccine injury.
II. Parties’ Arguments
Petitioner
Regarding the mandate of my Show Cause order—to provide whatever new evidence
might exist that would support a claim that the flu vaccine can cause SSNHL—Petitioner
references an article that he purports to evaluate “studies from the COVID-19 vaccines and their
impact on hearing loss and SNHL.” Br. at 1. However (and putting aside the fact that this case
involves a flu vaccine—and that COVID vaccines are not covered by the Vaccine Program in any
event), Petitioner did not file this item of literature.
Otherwise, Petitioner maintains that fairness requires that he be given the opportunity to
have an expert review his medical history and to identify literature and/or a theory in support of
the claim. Br. at 1–2. (Of course, my Show Cause Order expressly invited Petitioner to consult
with an expert for purposes of responding to it (see Show Cause Order at 2)—but he apparently
did not do so). His attorney also contends that he is himself unable to “issue a medical theory of
causation,” heightening the need for expert assistance. Br. at 3.
Respondent
Respondent makes two arguments against entitlement. First, he contends that the Act’s
“severity requirement” (Section 11(c)(1)) is not met. Opp. at 4–5. Although Petitioner has
maintained in witness statements that his hearing loss was permanent, medical records filed in this
case support the conclusion that it did not persist beyond three months of vaccination. Id. at 5. In
fact, Petitioner long sought additional record substantiation for this element of his claim but was
unable to do so. Id.
Second, Respondent observes that despite the opportunity provided by my Show Cause
Order, Petitioner has not identified any more-recent medical or scientific support for the contention
that the flu vaccine (or any other covered vaccine) can cause SSNHL. Opp at 5–6. Although
Petitioner demands the opportunity to obtain an expert’s assistance for the claim, the Show Cause
3

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 4 of 12
Order permitted him at least the chance to consult with an expert. Id. at 6. And it is otherwise
reasonable for a special master to rely on prior determinations in assessing a claim’s strength. Id.
at 6–7. Accordingly, entitlement is properly denied.
III. Applicable Law
A. Petitioner’s Overall Burden in Vaccine Program Cases
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
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 ex rel. 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).3 There is no Table claim for the injury of SSNHL.
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 Health & Hum. Servs., 165 F.3d 1344, 1352–53
(Fed.Cir.1999)); Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006).
A petitioner may not receive a Vaccine Program award based solely on his assertions; rather, the
petition must be supported by either medical records or by the opinion of a competent physician.
Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen v. Sec’y Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005): “(1) a
medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause
3 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).
4

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 5 of 12
and effect showing that the vaccination was the reason for the injury; and (3) a showing of
proximate temporal relationship between vaccination and injury.”
Each of the Althen prongs requires a different showing. Under Althen prong one, petitioners
must provide a “reputable medical theory,” demonstrating that the vaccine received can cause the
type of injury alleged. Pafford, 451 F.3d at 1355–56 (citations omitted). To satisfy this prong, a
petitioner’s theory must be based on a “sound and reliable medical or scientific explanation.”
Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). Such a theory must
only be “legally probable, not medically or scientifically certain.” Id. at 549.
Petitioners may satisfy the first Althen prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or even 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 v.
Sec'y of Health & Hum. Servs, 121 Fed. Cl. 230, 245 (2015), vacated and remanded, 844 F.3d
1363 (Fed. Cir. 2017).
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 Cerrone v. Sec'y of Health & Hum.
Servs., 146 F.4th 1113, 1122 (Fed. Cir. 2025); Kalajdzic v. Sec’y of Health & Hum. Servs., No.
2023-1321, 2024 WL 3064398, at *2 (Fed. Cir. June 20, 2024) (arguments “for a less than
preponderance standard” deemed “plainly inconsistent with our precedent” (citing Moberly, 592
F.3d at 1322)); Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019);
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”), aff’d, 2024 WL 2873301
(Fed. Cir. June 7, 2024) (unpublished). 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
5

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 6 of 12
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec’y Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 2023).
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 den’d, 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. den’d after remand, 105 Fed. Cl. 353 (2012), aff’d mem.,
503 F. Appx. 952 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Hum. Servs., No. 11-355V, 2013
WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for rev. den’d (Fed. Cl. Dec. 3, 2013),
aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
6

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 7 of 12
B. Legal Standards Governing Factual Determinations
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [ ] relevant medical and scientific evidence contained in the record,” including
“any diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained
in the record regarding the nature, causation, and aggravation of the petitioner's illness, disability,
injury, condition, or death,” as well as the “results of any diagnostic or evaluative test which are
contained in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special
master is then required to weigh the evidence presented, including contemporaneous medical
records and testimony. See Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (determining that it is within the special master's discretion to determine whether to afford
greater weight to contemporaneous medical records than to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such determination
is evidenced by a rational determination).
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 at 1525 (Fed. Cir. 1993) (“[i]t strains reason to
conclude that petitioners would fail to accurately report the onset of their daughter's symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec'y of Health & Hum. Servs., No. 03–1585V, 2005 WL
6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records
are 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. den'd, 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
7

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 8 of 12
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 or written testimony (provided in the form of an affidavit or declaration) may be
more persuasive than written records, such as where records are deemed to be incomplete or
inaccurate. Campbell v. Sec'y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“like any
norm based upon common sense and experience, this rule should not be treated as an absolute and
must yield where the factual predicates for its application are weak or lacking”); Lowrie, 2005 WL
6117475, at *19 (“[w]ritten records which are, themselves, inconsistent, should be accorded less
deference than those which are internally consistent”) (quoting Murphy, 23 Cl. Ct. at 733)).
Ultimately, a determination regarding a witness's credibility is needed when determining the
weight that such testimony should be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec'y of
Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec'y of Health & Hum. Servs.,
No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the
accuracy and completeness of medical records, the Court of Federal Claims has listed four possible
explanations for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person's failure to recount to the medical professional everything that happened
during the relevant time period; (2) the medical professional's failure to document everything
reported to her or him; (3) a person's faulty recollection of the events when presenting testimony;
or (4) a person's purposeful recounting of symptoms that did not exist. 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 Pharm., 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).
Under Daubert, the factors for analyzing the reliability of testimony are:
8

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 9 of 12
(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).
In the Vaccine Program the Daubert factors play a slightly different role than they do when
applied in other federal judicial settings, like the district courts. Typically, Daubert factors are
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable or could confuse a jury. By contrast, in Vaccine Program cases 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 in order to rebut a petitioner’s case.
Where both sides offer expert testimony, a special master's decision may be “based on the
credibility of the experts and the relative persuasiveness of their competing theories.” Broekelschen
v. Sec'y of Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing Lampe, 219 F.3d
at 1362). However, nothing requires the acceptance of an expert's conclusion “connected to
existing data only by the ipse dixit of the expert,” especially if “there is simply too great an
analytical gap between the data and the opinion proffered.” Snyder, 88 Fed. Cl. at 743 (quoting
Gen. Elec. Co. v. Joiner, 522 U.S. 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 review
den'd, 108 Fed. Cl. 743 (2013), aff'd, 540 F. App’x 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”).
9

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 10 of 12
D. Consideration of Medical Literature
Both parties filed numerous items of medical and scientific literature in this case, but not
all such items factor 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., No. 2015–5072,
2016 WL 1358616, at *5 (Fed. Cir. Apr. 6, 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.
App’x 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. Determination to Resolve Case without a Hearing
I have opted to decide entitlement in this case based on written submissions and evidentiary
filings, including the expert reports filed by each side. The Vaccine Act and Rules not only
contemplate but encourage special masters to decide petitions on the papers rather than via
evidentiary hearing, where (in the exercise of their discretion) they conclude that the former means
of adjudication will properly and fairly resolve the case. Section 12(d)(2)(D); Vaccine Rule 8(d).
The choice to do so has been affirmed on appeal. See D'Toile v. Sec'y of Health & Hum. Servs.,
No. 15-85V, 2018 WL 1750619, at *2 (Fed. Cir. Apr. 12, 2018); 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 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. See Hovey v. Sec'y of Health & Hum. Servs., 38 Fed. Cl. 397, 402–03
(1997) (special master acted within his discretion in denying evidentiary hearing); Burns, 3 F.3d
at 417.
ANALYSIS
Program claimants alleging SSNHL after vaccination have consistently been unsuccessful,
since the causation theory has been proven time and again to be scientifically unreliable. See e.g.,
Legault v. Sec'y of Health & Hum. Servs., No. 21-2343V, slip op. at 23–26 (Fed. Cl. Spec. Mstr.
Jan. 2, 2025), mot. for review den’d, 2025 WL 2158693 (Fed. Cl. June 27, 2025); Vanore v. Sec’y
of Health & Hum. Servs., No. 21-0870V, 2024 WL 3200287 (Fed. Cl. Spec. Mstr. May 31, 2024)
(determining flu vaccine not shown to be causal of SNHL); Herms v. Sec’y of Health & Hum.
Servs., No. 19-70V, 2024 WL 1340669 (Fed. Cl. Spec. Mstr. Mar. 4, 2024) (finding Tdap vaccine
10

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 11 of 12
not causal of tinnitus and left-sided hearing loss) (S.M. Dorsey); M.R. v. Sec’y of Health & Hum.
Servs., No. 16-1024, 2023 WL 4936727 (Fed. Cl. Spec. Mstr. June 30, 2023) (finding that evidence
supported the conclusion that Petitioner’s acoustic neuroma/vestibular schwannoma was the
“factor unrelated” cause of his SSNHL); Henry v. Sec’y of Health of Hum. Servs., No. 17-721V,
2022 WL 2301321 (Fed. Cl. Spec. Mstr. May 2, 2022) (holding that flu vaccine unlikely caused
claimant’s right sided tinnitus) (S.M. Oler); Kelly v. Sec'y of Health & Hum. Servs., No. 16-878V,
2021 WL 5276373, at *23 (Fed. Cl. Spec. Mstr. Oct. 18, 2021), mot. for review den’d, 2022 WL
2314746 (Fed. Cl. Apr. 13, 2022) (petitioner failed to establish any preexisting condition, leading
to hearing loss, that was aggravated by the flu vaccine); Inamdar v. Sec’y of Health & Hum. Servs.,
No. 15-1173V, 2019 WL 1160341, at *16 (Fed. Cl. Spec. Mstr. Feb. 8, 2019) (referencing multiple
prior negative decisions involving SSNHL or hearing loss); Donica v. Sec’y of Health & Hum.
Servs., No. 08-625V, 2010 WL 3735707, at *1, 10 (Fed. Cl. Spec. Mstr. Aug. 31, 2010) (flu
vaccine not demonstrated to cause adult hearing loss); Hopkins v. Sec’y of Health & Hum. Servs.,
Nos. 00-745V & 00-746V, 2007 WL 2454038, at *13 (Fed. Cl. Spec. Mstr. Aug. 10, 2007) (noting
that the specific onset of hearing loss in child siblings after receipt of several vaccines could not
be established).
Because of the above, I expressed reasoned skepticism to Petitioner that this claim would
succeed. I am of course empowered in deciding Vaccine Act cases to rely on my prior exposure to
certain kinds of causation theories when confronted with claims that are similar. Garris v. Sec'y of
Health & Hum. Servs., No. 22-1354V, 2025 WL 2401999, at *30 (Fed. Cl. Spec. Mstr. June 20,
2025) (“where a theory of causation is reasonably doubted—and that doubt stems from the special
master’s prior exposure to the theory in many prior cases—that theory should not be entertained
anew (except where the claimant can point to novel scientific or medical understanding sufficient
to breathe life into a theory previously deemed wanting)”). Only by “triaging” claims that repeat
failed theories from those that are likely to succeed—or that rely on novel contentions not
previously considered (and hence worthy of considered analysis) —can special masters ensure that
the Program’s goal of expedient justice is met. Moreover, the Vaccine Program lacks the resources
to take every claim to trial, or to engage in extensive expert discovery—and it is judicially wasteful
to devote time and energy to claims that a special master has learned from repeated prior exposure
will not likely prove worthwhile.
Despite due opportunity, Petitioner has wholly failed to meet the moment. He has offered
no additional medical or scientific literature in support of the claim—and even failed to file the
one purportedly-helpful item of literature referenced in his brief. He also declined the opportunity
to consult with an expert, to at least outline what his theory of causation would be. Accordingly, I
am presented with no reason to expect that this claim’s outcome would be any different from the
majority of cases involving claims of vaccine-caused SSNHL. Thus, the claim is properly
dismissed for inability to satisfy the first prong of Althen, 418 F.3d at 1278.
11

Case 1:22-vv-01350-UNJ Document 31 Filed 10/20/25 Page 12 of 12
Petitioner’s brief also contends that fairness considerations mandate permitting him the
chance to obtain an expert’s opinion in support of the claim. Admittedly, there are situations where
expert input should be allowed—even when a special master grounds skepticism in a claim’s likely
success in significant prior experience with the theory at issue. See, e.g., Stewart-Robinson v. Sec’y
of Health & Hum. Servs., 173 Fed. Cl. 567, 581 (2024) (permitting expert report on causation
issue). Here, however, Petitioner was provided a chance to bulwark his claim—not only to file
literature bearing on the topic of vaccine-caused SSNHL, but to consult with an expert to that end.
See Show Cause Order at 2 (giving Petitioner nearly 90 days to consult with an expert before
responding). Petitioner did not do so—and he has not otherwise shown why the many prior cases
denying entitlement when SSNHL was alleged to be a vaccine injury are inapposite to the present
circumstances. There is no reason to litigate this claim further.
CONCLUSION
A Program entitlement award is only appropriate for claims supported by preponderant
evidence. Here, Petitioner has not made such a showing. Petitioner is therefore not entitled to
compensation.
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.4
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 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.
12