# Jossart v. Secretary of Health and Human Services

> United States Court of Federal Claims · September 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10734299

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** September 5, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Christian J. Moran
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- reversing special master’s decision that petitioners were not entitled to compensation

## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS

**********************
TYLER JOSSART, *
* No. 15-1377V
Petitioner, * Special Master Christian J. Moran
*
v. *
*
SECRETARY OF HEALTH * Filed: May 22, 2024
AND HUMAN SERVICES, *
*
Respondent. *
*********************

Danielle Strait, Maglio Christopher & Toale, Seattle, WA, for petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC for
respondent.
PUBLISHED DECISION DENYING COMPENSATION 1

Tyler Jossart suffered from a variety of health problems, such as diarrhea,
nausea, headaches, and syncope, before he received a dose of the human
papillomavirus vaccine in November 2012. About one month after the
vaccination, one of his treating doctors, Grace Chelimsky, said he suffered from
“borderline” postural orthostatic tachycardia syndrome (“POTS”).
In the pending case, an expert in neurology whom Mr. Jossart retained,
Lawrence Steinman, has contended that Mr. Jossart not only had POTS in

1
Because this Decision contains a reasoned explanation for the action taken in this case,
it must be made publicly accessible and will be posted on the United States Court of Federal
Claims’ website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the
parties have 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. Any changes will appear in the
document posted on the website.
December 2012, but also the myriad of symptoms Mr. Jossart experienced for
about one year were also manifestations of an undiagnosed case of POTS. Dr.
Steinman further opines that Mr. Jossart’s POTS worsened, and the HPV
vaccination significantly aggravated his disease. Dr. Steinman proposed that the
mechanism by which HPV vaccination harmed Mr. Jossart was molecular
mimicry.

The Secretary denies that Mr. Jossart is entitled to compensation through the
Vaccine Program and relies upon two experts. An expert in POTS, Christopher
Gibbons, maintains that Mr. Jossart did not suffer from POTS in 2012 or 2013. A
second witness, Lindsay Whitton, an expert in immunology, opines that the
evidence does not support a finding the HPV vaccination can aggravate POTS.

On both the question of whether Mr. Jossart suffered from POTS in 2012-
2013 and the question of whether the HPV vaccination can aggravate POTS, the
Secretary’s positions are persuasive. As to the first issue (diagnosis), the evidence
is admittedly close. However, Dr. Gibbons has well explained that Mr. Jossart did
not meet the diagnostic criteria for POTS, regardless of Dr. G. Chelimsky’s
designation of him as suffering “borderline POTS.” Dr. Gibbons demonstrated
that Mr. Jossart symptoms in 2012 and 2013 were generally not consistent with
how POTS manifests. This evidence outweighs the report from Dr. G. Chelimsky.

Even if Dr. G. Chelimsky’s report about “borderline POTS” were credited as
persuasive, Mr. Jossart’s case would still falter. On the issue of whether the HPV
vaccine can cause or aggravate POTS, the record, taken as a whole, heavily weighs
against petitioner. One strong piece of evidence on this topic is a statement from
the American Autonomic Society. This group of experts, which includes Dr.
Gibbons and Dr. G. Chelimsky, concluded the evidence does not support a causal
connection between HPV vaccination and POTS. Against this evidence, Dr.
Steinman’s theory about molecular mimicry is unpersuasive.
Accordingly, Mr. Jossart’s claim in the Vaccine Program is denied. A full
explanation follows. This explanation begins with a discussion of POTS. (Section
I). This discussion provides a context for the summary of events in Mr. Jossart’s
life. (Section II). After that summary, Section III outlines the procedural history
and Section IV sets forth the standards for adjudication. The reasons for denying
compensation are found in two parts. Section V finds that Mr. Jossart did not
establish with preponderant evidence that he suffered from POTS in 2012-2013.
Section VI finds that Mr. Jossart did not persuasively show that the HPV vaccine
significantly aggravated his hypothetical POTS.

2
I. POTS2

An understanding of medical terminology will assist in evaluating whether
Mr. Jossart suffered from POTS and whether an HPV vaccine can worsen POTS.
For this introduction, the undersigned tends to rely upon Dr. Gibbons because he is
the testifying expert who specializes in POTS and because his testimony was not
rebutted.

The autonomic nervous system regulates aspects of life that happen
unconsciously. For example, the autonomic nervous system controls a person’s
digestion and heart rate. Dorland’s Illustrated Medical Dictionary, 1365 (33rd ed.
2019) at 1829; Tr. 347. A person’s heart rate can be measured in beats per minute,
which is often abbreviated “bpm.” The heart rate (or pulse) can be easily
measured. A rapid heart rate is called “tachycardia.” Dorland’s at 1838.

When a person has a problem in his (or her) autonomic nervous system, the
person suffers from “dysautonomia.” Dorland’s at 569, Tr. 347. In Dr. Gibbons’s
view, “dysautonomia” is a broad and a vague term. Tr. 347. He contrasted
“dysautonomia” with “autonomic dysfunction.” Id. However, Dorland’s defines
“autonomic dysfunction” as “dysautonomia.” Dorland’s at 570.

A person can have dysautonomia because he (or she) has had a disruption to
the nerves of the autonomic nervous system. In such a case, the person has
suffered “autonomic damage.” Tr. 348. However, dysautonomia can be caused by
problems other than damage to the nerves, such as when a medication causes
dysfunction in the autonomic nervous system. Id. Thus, dysautonomia and
autonomic damage are not synonyms.

“Orthostatic” refers to a person’s condition when standing erect. Dorland’s
at 1329. “Orthostatic intolerance” is not feeling well when a person stands up.
“Orthostatic intolerance” is a symptom, not a disease itself. Tr. 349.
“Postural orthostatic tachycardia syndrome” is a condition in which a person
does not feel well when standing up and these symptoms are linked to an elevated
heart rate. Dorland’s at 1815, Tr. 350; see also Yalacki v. Sec’y of Health & Hum.
Servs., No. 14-278V, 2019 WL 1061429, at *16 (Fed. Cl. Spec. Mstr. Jan. 31,
2019), mot. for rev. denied, 146 Fed. Cl. 80 (2019). The way a person does not
feel well can vary but may include problems such as dizziness. The variability in

2
For additional information about POTS, see Pet’r’s Prehear’g Br., filed Aug. 31, 2020,
at 4-6; Resp’t’s Prehear’g Br., filed Jan. 13, 2021, at 30-34.

3
presentation is reflected in the term “syndrome,” because a syndrome means “a set
of symptoms that occur together; the sum of signs of any morbid state; a symptom
complex.” Dorland’s at 1789, Tr. 312.

The medical community has attempted to define POTS by establishing
diagnostic criteria. A criterion cannot be that the person’s heart rate goes up when
standing because an increase in heart rate when standing is normal. Tr. 350. In
other words, a simple elevation in heart rate on standing would not differentiate
people with an abnormal condition from people who are normal. To determine
who suffers from an excessive degree of tachycardia, the medical community has
determined that in adolescents, the increase in heart rate must be at least 40 beats
per minute. Exhibit A-1 (Freeman et al, Consensus statement on the definition of
orthostatic hypotension neurally mediated syncope and the postural tachycardia
syndrome), Exhibit 36 (Bennarroch, Postural Tachycardia Syndrome: A
Heterogenous and Multifactorial Disorder); Tr. 350-51, 356.3 The primary way to
determine how much a person’s heart rate increases on standing is through a tilt
table test. Tr. 354. A person whose heart rate does not meet the minimal criterion
might have “orthostatic intolerance.” Exhibit 36 at 1; Tr. 234-35.

Similarly, researchers have looked at the symptoms that sometimes occur
with the increase in heart rate while standing. According to research performed by
Dr. G. Chelimsky and others, adolescents with POTS can have symptoms that
adolescents without POTS also have. Exhibit 50 (Chelimsky et al., Comorbid
Conditions Do Not Differ in Children and Young Adults with Functional Disorders
with or without Postural Tachycardia Syndrome); Tr. 353. This overlap, in turn,
means that testing is needed to diagnose a person properly. Tr. 353-54.
A person with POTS may be further classified as suffering from one of three
subtypes of POTS. Dr. Gibbons explained the separation of POTS into subtypes
represents a “cognitive construct.” Exhibit A at 1; accord Tr. 320. However, the
subtypes overlap. Exhibit A-5 at 7; see also Tr. 293 (Dr. Steinman’s testimony that
the subtypes of POTS do not make sense to him).

The subtypes of POTS correspond to different suspected etiologies, at least
in part. It might be possible that more than one pathologic process needs to happen
(even in the same individual) for POTS to develop. Tr. 418. Among the three
subtypes of POTS, the easiest to understand is hypovolemia. In that subtype,

3
As discussed in section VI.B. below, Dr. Steinman questions the authoritativeness of the
consensus statement.

4
dehydration causes postural tachycardia, and the doctors treat it by giving fluids.
Tr. 251. The distinction between neuropathic POTS and hyperadrenergic POTS is
less clear. Exhibit A-5 (Arnold et al., Postural tachycardia syndrome – Diagnosis,
physiology and prognosis) at 5 (“In our experience, these ‘subtype’ labels are not
clinically helpful”).

While Dr. Steinman stated that the subtype of POTS was not important to
his opinion, Tr. 225, 286, Dr. Steinman has proposed an autoimmune etiology.
Exhibit 51 (Dr. Steinman’s report) at 17; see also Exhibit A-5 at 6 (discussing
immune-mediated POTS). However, most cases of POTS have not been
recognized as autoimmune in origin. Tr. 338 (Dr. Gibbons).

In any type of POTS, the person suffering from POTS might experience
anxiety. But, anxiety can cause postural tachycardia as well. Exhibit A (Dr.
Gibbons’s report) at 10; Tr. 251, 426. Similarly, a person can have somatization
and POTS.4 Tr. 433, 447.

Treatments for POTS have been difficult to identify. In general, doctors try
to minimize medications and to maximize exercise. Tr. 392. According to a recent
article Dr. Gibbons wrote, at least six months of rigorous exercise are needed to
resolve POTS. Exhibit A-7 (Gibbons et al., The recommendations of a consensus
panel for the screening diagnosis, and treatment of neurogenic orthostatic
hypotension and associated supine tension), Tr. 467.

II. Events in Mr. Jossart’s Life
Mr. Jossart experienced health problems for many years before he received
the HPV vaccine that allegedly caused his health to deteriorate in November 2012.
Thus, this recitation of evidence is necessarily lengthy. The length, however, does
not reflect a significant dispute between the parties in the sense that the parties
generally agree that the medical records accurately describe events that happened
contemporaneously with the creation of the medical records. 5 Thus, the medical
records are the primary source and the testimony of Mr. Jossart and his mother
providing supplemental information. This recitation of evidence also notes the

4
“Somatization” means “the conversion of mental experiences or states into bodily
symptoms.” Dorland’s at 1705.
5
The recitation of evidence, at times, draws from the parties’ presentation of facts. See
Pet’r’s Prehear’g Br. at 3-6, 10-23; Resp’t’s Prehear’g Br. at 1-21.

5
opinions from Dr. Steinman and Dr. Gibbons, the two experts who testified about
Mr. Jossart’s diagnosis.

Because some evidence refers to events in Mr. Jossart’s life that correspond
to his grade level, the following chart helps to translate grades into years.

Grade Fall Spring
7 2008 2009
8 2009 2010
9 2010 2011
10 2011 2012
11 2012 (vaccine) 2013
12 2013 2014

The presentation of events in Mr. Jossart’s life is divided into three periods.
The first is his health before the vaccination. The second is his health during his
junior and senior year of high school during which he received the allegedly causal
vaccination. The third period concerns medical history more distant from the
vaccination.
A. Before Vaccination

1. Early Life, including Middle School

While Mr. Jossart was in middle school, Ms. Jossart was concerned that her
son was missing too many days of school. Exhibit 5 at 126. Specific problems
included ongoing left foot pain, a recent event during which Mr. Jossart could not
breathe while in school, and “asthma.”6

6
The Secretary questioned whether Mr. Jossart suffered from asthma. As the Secretary
noted: “In November 2006, he was evaluated for possible laryngeal spasms, which might explain
his shortness of breath that occurred with exercise or when he was ‘upset or crying.’” Resp't's
Prehear’g Br. at 2, n.1, quoting Exhibit 31 at 46. A breathing test to assess whether a person
suffers from asthma, spirometry, was performed on May 19, 2006, and was normal. Exhibit 31
at 18-19. Mr. Jossart was later tested for possible sports-induced asthma and this testing
revealed that a paradoxical vocal cord movement at the height of exercise affected Mr. Jossart's
breathing. Id. at 32.

6
According to the medical history created in 2013, Mr. Jossart experienced a
syncopal event when he was in seventh grade. Exhibit 4 at 127 (Feb. 5, 2013). In
the second half of Mr. Jossart’s seventh grade year, he complained about problems
with coughing, wheezing, abdominal pain, headaches, and symptoms reported as
asthma. See Exhibit 4 at 84-119, Exhibit 7 at 460-61.

Similar problems continued into 2011. Some of these medical records
indicate that Mr. Jossart was diagnosed as having migraines. Exhibit 5 at 3-8, 52-
53. But, in his oral testimony, Mr. Jossart did not specifically recall who
diagnosed him as having migraines but believed it was Dr. Wendy Barton who
diagnosed him. Tr. 24.

Although not documented in any records created while Mr. Jossart was in
middle school, Mr. Jossart later stated he was bullied during middle school.
Exhibit 14 at 6 (April 22, 2013); Exhibit 31.12 at 1416 (Apr. 11, 2013); Tr. 31,
128.

Dr. Steinman opined that the various health problems Mr. Jossart
experienced in middle school were manifestations of POTS. Tr. 269-72.
However, no doctor treating Mr. Jossart during middle school suggested he was
suffering from POTS.

2. First Year, Second Year, and the Start of the Third Year of
High School

In anticipation of beginning high school, Mr. Jossart had a 15-year-old well-
child examination with his pediatrician, Dr. Barton. The record reports a history
of, among other problems, reflux, vocal cord dysfunction, allergic rhinitis, contact
dermatitis, abdominal pain, malabsorption, and mild persistent asthma. Exhibit 5
at 64 (July 26, 2011). Ms. Jossart again expressed concern that abdominal issues
were causing her son to miss school. Id. at 65. Mr. Jossart informed Dr. Barton
that he “has had a couple of times where he felt tremulous. A couple of the
episodes were before he [had] eaten and one was after.” Id. at 66. Dr. Barton
stated that the tremulousness was likely due to mild anxiety or possibly low blood
sugar. Id. at 68; see also Tr. 26.
According to a therapist’s record created in 2013, 2012 was a stressful time
for Mr. Jossart and his family as his mother was ill. Exhibit 14 at 5-6 (detailing his
mother’s illness), Tr. 96.

7
On February 3, 2012, Mr. Jossart sought care at Dr. Barton’s office because
he was vomiting and experiencing chest pain. Exhibit 5 at 58.7 With Dr. Barton,
Mr. Jossart “[d]enie[d] tachypnea, shortness of breath and labored breathing.
Denie[d] palpitations, tachycardia, bradycardia or irregular heart beats.” Id. Dr.
Barton assured Mr. Jossart and his mother that “these symptoms do not appear to
represent a serious or threatening condition.” Id. at 59. She recommended that if
the symptoms did not improve as anticipated, then Mr. Jossart should seek
additional care. Id.

On his way home from Dr. Barton’s office, he was in the car feeling anxious
and short of breath. His mother brought him to the Theda Clark emergency room.
Exhibit 7 at 425. A CT scan suggested an esophageal rupture and free air in Mr.
Jossart’s mediastinum. Id. at 427-28. “Mediastinum” refers to the area between
the lungs. Dorland’s at 1103. (The medical term for air in the mediastinum is
“pneumomediastinum.” Dorland’s at 1449.) The doctor at Theda Clark arranged
for Mr. Jossart’s transfer to Children’s Hospital of Wisconsin, Milwaukee
(“CHOW”). Exhibit 7 at 426.

An ambulance transported Mr. Jossart from Theda Clark to CHOW. The
record notes Mr. Jossart was “feeling like he was going to pass out.” Exhibit 31.2
at 109.

The doctor in CHOW’s emergency room, Casey Calkins, obtained a history
consistent with what is stated above. Dr. Calkins stated it “sounds like
hyperventilation.” Exhibit 31.01 at 57; see also Tr. 92, 192. An esophagram did
not detect a pneumomediastinum. Exhibit 31.01 at 6. Mr. Jossart was admitted for
a 23-hour observation with an expectation that he would “return to the GI clinic for
further workup of his retching episodes.” Id. at 59.

After discharge, Mr. Jossart followed up with Dr. Barton. Exhibit 5 at 55
(Feb. 6, 2012). He “hasn’t felt anxious with all of this.” Id. Dr. Barton ordered an
echocardiogram to rule out Marfan’s syndrome. Id. at 56. It was normal. Id. at
31. Dr. Barton was also waiting the results of his upcoming GI evaluation. Id. at
56.

7
The episode in February might have started with throwing up at McDonald’s. Tr. 44.
But, this testimony was vague about when the incident at McDonald’s happened.

8
On February 7, 2012, Mr. Jossart returned to CHOW, more specifically to
the Pediatric Surgery Clinic. Exhibit 31.02 at 111. “Throughout the last several
months, he has had increasing episodes of retching and emesis in which he
[typically] expresses mucus only.” Id. This doctor, Amy Wagner, determined that
Mr. Jossart has “chronic emesis and retching, which has resulted in
pneumomediastinum.” Id. at 112. Dr. Wagner contacted her gastrointestinal
colleagues, including Dr. Goday, and they agreed to admit him at CHOW.
While in the hospital, Mr. Jossart sought care for his “lifelong” issues with
vomiting and retching, recent chest pain, and frequent coughing. Exhibit 31.02 at
132, 154. Dr. Goday performed a fluoroscopic esophagram, which could detect
problems in the esophagus that might contribute to vomiting. The results were
normal. Exhibit 31.02 at 175 (February 8, 2012). He was discharged on February
8, 2012. Exhibit 31.02 at 155.
A sinus CT showed chronic sinusitis. Exhibit 7 at 410 (Feb. 16, 2012). He
eventually underwent an operation for his sinuses. Exhibit 2 at 9, 16 (June 5,
2012).

In the ninth and tenth grades, which correspond to August 2010 to June
2012, Mr. Jossart was fine at school. He earned mostly A’s and liked his teachers.
Tr. 34, 136, 139. He participated in physical education classes without any
restrictions. Tr. 37, 140. Besides playing sports in physical education classes, Mr.
Jossart played soccer. Tr. 37-38, 138. But, by summer of his tenth grade, he was
not feeling well with running. Id.

While he played soccer, he seems to have enjoyed playing music more. He
played the mellophone in marching band. Tr. 36. His school’s marching band was
famous and competed to play in parades before New Year’s Day college football
games. Tr. 35. He performed the choreographed routines while carrying his
instrument, which weighed 4-5 pounds. Tr. 36, 137. He also received private
tutoring for a different instrument, the French horn. Tr. 137.

Mr. Jossart attended school dances. He had friends and a girlfriend. Tr. 32,
136, 138.

As he was starting his junior year, his school life was about the same. He
was taking Advanced Placement classes as well as physical education. Tr. 145-46.
His extracurriculars included playing in the marching band and playing French
horn in the concert band. Id.

9
Mr. Jossart had numerous visits between February 2012 and late October
2012 for seemingly normal illnesses and evaluation for his longstanding
gastrointestinal issues. Exhibit 5 at 33-50 (records of Dr. Barton).

Dr. Barton directed Mr. Jossart to consult a gastroenterologist and,
accordingly, Mr. Jossart saw Jeffrey Goldman on July 31, 2012. Exhibit 6 at 14-
17, Tr. 194. The chief complaint was “Postprandial nausea and recent diarrhea.”
(“Prandial” refers to a meal. Dorland’s at 1484). Dr. Goldman’s history recounted
in detail the events of February in which Mr. Jossart was evaluated for a
pneumomediastinum and underwent various tests at CHOW. Dr. Goldman
recommended seeking testing from an allergist for food allergies. Exhibit 6 at 17.

Upon the referral from Dr. Goldman, Mr. Jossart sought treatment with an
allergist, Anita Gheller-Rigoni, to evaluate possible eosinophilic esophagitis versus
a food allergy. Exhibit 6 at 3 (August 7, 2012). As part of that consultation, Ms.
Jossart, on behalf of her son, completed a new patient questionnaire. Id. at 26-29,
Tr. 42-43, 152. Ms. Jossart informed Dr. Gheller-Rigoni that Mr. Jossart had
nausea, vomiting, and chest pressure for many years, but “worse for the past year.”
Exhibit 6 at 29. On a review of symptoms, Ms. Jossart circled or underlined
various items including cough, shortness of breath, exercise-induced symptoms,
chest pain, stress, anxiety, and muscle pain. Id. at 26.

Another item circled was “fainting spells.” Id. When questioned about this
entry, Mr. Jossart testified that he did not recall fainting before August 2012. Tr.
43. Ms. Jossart explained that perhaps Mr. Jossart had passed out in the shower
from having a gastrointestinal issue. But, fainting did not happen on a “regular
basis.” Tr. 152-53; see also Tr. 196 (Ms. Jossart describing Mr. Jossart falling over
in the shower on an unspecified date). The testimony that Mr. Jossart did not faint
frequently is consistent with another portion of the new patient questionnaire in
which Ms. Jossart indicated that Mr. Jossart had not lost consciousness. Exhibit 6
at 28.

The new patient questionnaire suggested that Mr. Jossart might have asthma.
See id. (several checkmarks for asthma symptoms); see also Tr. 42 (Mr. Jossart
discussing his belief that his asthma was worsening in early 2012), 192 (Ms.
Jossart associating breathing issues with exercised-induced asthma). But, during
the August 7, 2012 appointment, Mr. Jossart underwent another spirometry. The
results were, again, normal. Exhibit 6 at 24.

10
In addition to the spirometry, Dr. Gheller-Rigoni tested him for various skin
and food allergies. These results were negative. Exhibit 6 at 5, 25; Tr. 42
(describing the allergist’s work up as unremarkable).

October 29, 2012 Incident 8

Shortly before lunch, Mr. Jossart had trouble breathing, he was feeling
shaky, he was experiencing chest pain, and he was experiencing shortness of
breath. A friend took him to the friend’s car, where Mr. Jossart passed out for less
than one minute.9

Mr. Jossart did not seek treatment on that day. Instead, the next day, Ms.
Jossart brought him to the emergency department at Theda Care. Exhibit 7 at 316-
17 (consent form); see also Tr. 79. Mr. Jossart told the doctor about his condition
the day before as well as “similar symptoms this past February . . . [and] states that
he was diagnosed with pneumomediastinum at that time but had been forcefully
vomiting prior to that finding.” Exhibit 7 at 319. In the emergency department,
Mr. Jossart denied fever, nausea, vomiting, cough, numbness, tingling, or
weakness. Id. A chest X-ray did not detect a pneumomediastinum. Id. at 323.
The doctor discharged him from the emergency room to home with a diagnosis of
“chest pain” and instructions to follow up with Dr. Barton. Id. at 323-24.
The appointment with Dr. Barton happened on November 1, 2012. Dr.
Barton wrote that “Tyler’s complex past history including pneumomediastinum is
well known to me.” Exhibit 5 at 30. The history Dr. Barton obtained is consistent
with information presented above. Mr. Jossart also told Dr. Barton that he “has
also been having joint pain all day most days for as long as he can remember [and]
mostly notices hip/knee and ankle pain with ankles being the worst.” Id. 10 Dr.

8
Evidence about Mr. Jossart’s health on October 29, 2012 comes from a report he gave at
Theda Care emergency room on October 30, 2012 (Exhibit 7 at 318-28), a report he gave to Dr.
Barton on November 1, 2012 (Exhibit 5 at 30-31), his testimony (Tr. 79-82), and his mother’s
testimony (Tr. 191-98).
9
The source of information about the duration of Mr. Jossart’s loss of consciousness is
the November 1, 2012 report to Dr. Barton. Exhibit 5 at 30.
10
This report of frequent joint pain seems unusual. See Exhibit 5 at 67 (July 26, 2011
report: “range of motion of joints are normal except stiffness and tenderness with range of
motion of the left ankle"); Id. at 70 (July 13, 2011 report: “No joint pains or weakness”); Id. at
127 (June 24, 2008 report: “Gait and range of motion of joints are normal.”).

11
Barton was informed that Mr. Jossart had an appointment with a gastrointestinal
specialist at CHOW set for December. Id. at 31.

Dr. Barton’s November 1, 2012 plan consisted of multiple items:

-we will get a forty-eight hour Holter monitor

-I would like to refer him to cardiology for an evaluation
-Discussed with the family including Tyler that we need
to consider if anxiety is playing some role in his chest
pain symptoms
-Continue to pursue the GI workup as is already in place
through his specialist.

-I suggested to Tyler that he not use his inhaler when he
developed chest pain if he does not feel shortness of
breath as this will just increase his heart rate and make
him more shaky.

Id.

With respect to Dr. Barton’s suggestion that anxiety might be playing a role,
Mr. Jossart and his mother testified that they did not remember. Tr. 85, 201-02.

The first step of Dr. Barton’s plan was implemented through a visit to Theda
Clark hospital. Mr. Jossart received a Holter monitor. See Exhibit 7 at 277-81; see
also Tr. 40. A Holter monitor detects the frequency and duration of cardiac rhythm
disturbances. Dorland’s at 1158. According to Dr. Steinman, a Holter monitor
could be useful in determining whether a person suffers from POTS in the sense
that it gives information about “the heart rate while you’re living your life.” Tr.
268. But, a Holter monitor is not as specific as a tilt table test. Id.

For Mr. Jossart, his average heart rate was 96. Exhibit 7 at 281. The
minimum heart rate was 45 and the maximum heart rate was 187. The maximum
heart rate occurred while he was sitting watching a movie. Id. 11 The follow-up,
which occurred after the allegedly causal vaccination, is discussed below.

11
Dr. Gibbons stated that the Holter monitor indicated that Mr. Jossart had episodes of
bradycardia. Tr. 367, 391. However, the basis for this assertion is not readily apparent.

12
Around this time, Mr. Jossart started a part-time job at a local department
store as a cashier. Tr. 85, 146; see also Exhibit 70 at 4 (job application, dated Nov.
3, 2012).12 He worked about 20 to 30 hours per week through the holiday season.
Exhibit 70 at 10 (payroll records).

Before the first vaccination, Mr. Jossart missed two days of school in
September, three plus a partial day of school in October, and two days of school in
November 2012. Exhibit 72 at 1-3, Id. at 32-33.

Although the next critical event for Mr. Jossart’s claim is his vaccination, a
pause in his story is worthwhile. By November 2012, Mr. Jossart had seen
numerous doctors for a multitude of complaints, primarily gastrointestinal. None
of the doctors had suggested that he suffered from POTS. However, the expert
retained for this litigation, Dr. Steinman, has opined that he suffered from POTS.
B. Vaccination through Completion of High School

1. November 2012 through March 2013, which includes the HPV
Vaccination

On November 26, 2012, Mr. Jossart received his first of two HPV
vaccinations and received an influenza trivalent vaccination from Dr. Barton’s
office. See, e.g., Exhibit 52 at 2 (showing Mr. Jossart’s vaccination history prior to
December 15, 2016); Exhibit 24 at 1; see also Tr. 47-48. It appears that the reason
Mr. Jossart visited Dr. Barton was to receive the vaccines. Tr. 154.

Four days later, Mr. Jossart was seen at CHOW in, apparently, a pediatric
cardiology clinic. A registered nurse, Amy Marks, reviewed his systems and
recorded that he had “a syncopal episode in his [friend’s] car. Felt dizzy while
eating lunch, friend took him outside for air, went to his [friend’s] car and sat down
and then passed out.” 31.02 at 184 (Nov. 30, 2012). He was later seen by an
advanced practice nurse in pediatric cardiology, Mary Butler. Exhibit 31.02 at 182
(Nov. 30, 2012). 13 The purpose of the appointment was to evaluate his chest pain,
which started eight months ago. Ms. Butler noted that the 48-hour Holter was
within normal range. Ms. Butler’s assessment was that he had “Chest pain” and an
“Isolated episode of syncope, probable vasovagal in nature.” Id. at 183. Ms.
12
Mr. Jossart had testified that he had begun working during the summer. Tr. 46. That
testimony reflects an inaccurate memory as the payroll records indicate that he started working
around November 10, 2012. Exhibit 70 at 10.
13
Mr. Jossart’s attorney referred to Ms. Butler as a “cardiologist.” Tr. 40.

13
Butler concluded that Mr. Jossart had a “non-cardiac cause of chest pain.” Id. She
did not recommend any follow-up.

Around December 2, 2012, Mr. Jossart attended a professional football game
and sat outside for an extended time. Exhibit 5 at 27. He developed a cough,
shortness of breath, and tightness in his chest. Id. Then on December 3, 2012, he
was sitting in a hallway and developed trouble breathing. Id. He “went out” for
about 10 seconds. Id. After he woke, he was still having trouble breathing. Id.
The report about Mr. Jossart’s health on December 2-3, 2012 comes from
information Mr. Jossart and his father delivered to Dr. Barton on December 5,
2012. Exhibit 5 at 26-27; see also Tr. 88. Dr. Barton explained that “the episode
where he was having difficulty breathing,” but exhibited normal breathing while
passed out, was “highly suggestive of anxiety. . . . [Dr. Barton] would like him to
see a therapist to review some anxiety coping techniques.” Exhibit 5 at 27.

Mr. Jossart did not remember Dr. Barton suggesting a therapist. To him,
the originator of the idea to see a therapist was his mother. Tr. 50. Ms. Jossart,
however, stated that in December 2012, she did not think Tyler had anxiety. In her
view, her other son had anxiety but Tyler did not. Nevertheless, if just to rule out
anxiety, Ms. Jossart planned to take Tyler to a therapist. Tr. 144, 150, 156.

Mr. Jossart’s involvement with a therapist around this time appears limited
to two visits. Ms. Jossart brought him to see Frank Cummings, a psychologist.
Ms. Jossart knew Dr. Cummings because other family members were seeing him.
Tr. 51, 150. Mr. Jossart’s first appointment with Dr. Cummings was on December
15, 2012. Exhibit 71 at 2-3. The reason for the referral was “to redress anxiety
symptoms.” Id. at 2. Dr. Cummings’s history refers to Mr. Jossart’s “struggl [ing]
with multiple medical issues over the last several months.” Id. Dr. Cummings
wrote that Mr. Jossart “appeared somewhat nervous throughout the interview and
seemed to relate well to this examiner.” Id. During the December 15, 2012
session, Mr. Jossart completed a standardized test, the Behavior Assessment
System for Children, Second Edition. Id. at 5-34; see also Tr. 97. Dr. Cummings’s
“Axis I” diagnosis was “Generalized Anxiety Disorder.” Exhibit 71 at 3. Dr.
Cummings scheduled another visit with him.

The second (and final) visit with Dr. Cummings was a few weeks later. The
results of the psychological testing suggested “co-morbid medical (somatization)
and attention/concentration problems.” Exhibit 71 at 4. Dr. Cummings carried
forward the diagnosis of “Generalized Anxiety Disorder” and anticipated another

14
outpatient therapy session “to enhance Tyler’s emotional, social, and self-control
competencies.” Id. 14

Another therapy session with Dr. Cummings did not happen. Mr. Jossart
testified that their personalities did not click, and he felt uncomfortable talking to
Dr. Cummings. Tr. 51, 97-98.

Around the time that Mr. Jossart was seeing Dr. Cummings, he was also
seeing a pediatric gastroenterologist, Gisela Chelimsky.15 As discussed below, her
records greatly contribute to the outcome of Mr. Jossart’s claim that the HPV
vaccine caused his pre-existing POTS to worsen.

The first visit occurred on December 6, 2012. The history portion states that
Dr. Barton has referred him “for follow up of nausea with every meal and daily.”
Exhibit 31.03 at 232. The purpose of this visit was not for fainting or dizziness.
Tr. 52; see also Tr. 157 (Ms. Jossart: the purpose of the visit was for “GI and
headache”). Dr. G. Chelimsky’s history focused on his gastrointestinal problems:
“He started with vomiting 2 years ago. . . . He vomits about 1-2/every 2 weeks.”
Exhibit 31.03 at 232. “He gets chest pain feels like pressure or heavy aching.” Id.
“He fainted twice in the past year. The episodes happened sitting. . . . He does not
get dizzy routinely.” Id., Tr. 87. “There is a history of headache for 12 months or
more.” Id. at 233. “There is history of hypermobile joints associated with more
than 3 painful joints for over 3 months. He has seen somebody about his ankle.”
Id. Overall, Dr. G. Chelimsky spent 80 minutes with Mr. Jossart of which more
than 50 percent was counseling for possible cause and evaluation. Id. at 235.
Dr. G. Chelimsky’s assessment was that Mr. Jossart had “chronic nausea and
vomiting. He also has headaches and hypermobility. Probably due to migraine
and POTS. Need to rule out delayed gastric emptying and malrotation.” Id. at
235.

Dr. G. Chelimsky’s plan included nine points. She prescribed a medication,
cyproheptadine. Exhibit 31.03 at 235. Dr. Steinman stated that cyproheptadine is
a medicine for allergies and inhibits neuroinflammation. Tr. 318; see also

14
When Dr. Steinman was asked about Dr. Cummings’s diagnosis of “Generalized
Anxiety Disorder,” Dr. Steinman did not persuasively refute the appropriateness of the diagnosis.
Tr. 324-28.
15
Because Mr. Jossart saw Dr. Grace Chelimsky and Dr. Thomas Chelimsky, this
decision includes the first initial of the first name.

15
Dorland’s at 452. It may not have required a prescription. Tr. 324. Dr. Gibbons
agreed that cyproheptadine is used for a variety of reasons, such as allergies,
chronic nausea, migraines, and cyclic vomiting. Tr. 382. However, Dr. Gibbons
cautioned that cyproheptadine is contraindicated for POTS. Id.

Dr. G. Chelimsky also ordered two tests: a brain MRI and a test for gastric
emptying. Exhibit 31.03 at 235. These were both negative. Id. at 262-63.

In the December 6, 2012 appointment, Dr. G. Chelimsky advised that Ms.
Jossart could call with any questions or concerns. Exhibit 31.03 at 235. Ms.
Jossart did just that on December 14, 2012. She called to inform Dr. G. Chelimsky
that “Tyler's symptoms (blacking out and breathing difficulty) are getting worse.”
Id. at 261. Dr. G. Chelimsky relayed that Mr. Jossart “should take 2 grams of salt
twice daily for the black outs and [minimum] of 3 qts of fluid.” Id. at 264.

In the third week of December, Mr. Jossart missed four days of school.
Exhibit 72 at 4. He also went to the emergency room at Theda Clark due to
abdominal pain and headache. Exhibit 7 at 187-88. In the emergency room, Mr.
Jossart’s orthostatic vitals were measured. His pulse while lying down was 89,
while sitting was 104, and while standing was 105. Id. at 190. His evaluation
included laboratory work and X-rays, which were normal. The doctor discharged
him home with a plan to see Dr. Barton. Id. at 195.

The follow-up with Dr. Barton did not change Mr. Jossart’s course as Dr.
Barton generally continued the plans set in place by other doctors. See Exhibit 5 at
20-21 (Dec. 19, 2012). For example, Dr. Barton endorsed the plan for an
autonomic evaluation, which Dr. G. Chelimsky had included in her nine-point
plan.

Autonomic Testing, including Tilt Table Test
The results of the autonomic testing, which occurred on January 3, 2013, are
perhaps the most critical pieces of evidence regarding Mr. Jossart’s claim that the
HPV vaccination worsened pre-existing POTS. The parties and their experts
primarily focused on the tilt table test, although Mr. Jossart underwent other types
of testing as well.

Dr. Gibbons explained how a tilt table testing is usually conducted. In
advance of the test date, patients are advised to stop certain medications. They
should also fast the day of the tilt table test. Tr. 358. When patients arrive, they lie
down on a table for a long time to get comfortable. During this acclimation to the
environment, the doctor obtains baseline information. Tr. 359-60. After this, the
16
table is tilted 70 degrees for a heads-up test. Tr. 360. Patients are monitored
essentially second-by-second. Id. Tests usually last for either 10 minutes (when
doctors are looking for POTS) or 50 minutes (when doctors are looking for
syncope). Id. at 361.

Mr. Jossart’s appointment took approximately 2.5 hours. See Tr. 417, citing
Exhibit 62 at 2 and 4. Dr. Steinman did not note any concerns about how the test
was conducted. Tr. 235.

At baseline, Mr. Jossart’s heart rate was 97 bpm. After 10 minutes of tilt,
his heart rate rose to 109 beats per minute. After 50 minutes, the maximum heart
rate was 130 beats per minute, which was at 36-38 minutes. Exhibit 62 at 36;
Exhibit 31.03 at 229-31; Tr 372-74. The maximum amount of increase was 33
bpm (130-97). Dr. G. Chelimsky stated that the tilt portion “did not meet the
criteria for [POTS].” Exhibit 62 at 38. Instead, she characterized it as a
“borderline normal study.” Id.

During the tilt table test, Mr. Jossart displayed a hypertensive response. Id.
(“Hypertensive” means high blood pressure. Dorland’s at 885-86, Tr 361.) Dr. G.
Chelimsky stated that this elevation in blood pressure reflected an anxiety,
migraine or pain. Exhibit 62 at 38.
As discussed extensively below, Dr. Steinman and Dr. Gibbons interpret the
results of the tilt table test differently. In short, Dr. Steinman views the results as
consistent with a diagnosis of POTS. Dr. Gibbons opines that the results are
incompatible with a diagnosis of POTS.

In addition to the tilt table test, Mr. Jossart underwent two other tests. A
quantitative sudomotor axon reflex test (“QSART”) measures the amount of sweat
at four different locations. Tr. 369. A purpose is to detect whether the peripheral
autonomic nervous system is damaged. Id. For Mr. Jossart, the “QSART
responses were exaggerated at all sites but the forearm with hung up responses at
the distal and proximal leg.” Exhibit 31.03 at 231. Dr. G. Chelimsky interpreted
this aspect as suggesting a “very early mild autonomic neuropathy vs. normal
variant.” Id.

The last test was a Valsalva maneuver, which measures breathing under
different conditions to assess changes in heart rate. Tr. 370; see also Dorland’s at
1087. For Mr. Jossart, the results of the Valsalva maneuver were normal. Exhibit
31.03 at 229, 231; Tr. 375.

17
In addition to what is mentioned above, Dr. G. Chelimsky’s interpretation
suggested that rare endocrine causes should be excluded and a thermoregulatory
sweat test could be considered. Exhibit 31.03 at 231.

On January 6, 2013, Mr. Jossart developed chest pain at around 10:00 AM.
While sitting on a chair at around 11:40 AM, he passed out and experienced
shortness of breath. Exhibit 7 at 162; see also Tr. 161. His parents brought him to
the emergency room where a nurse obtained that history at 12:54 PM. Exhibit 7 at
162. The nurse observed that Mr. Jossart was anxious and breathing rapidly. Id.
When a doctor saw him at approximately 1:00 PM, Mr. Jossart relayed the onset of
chest pain, shortness of breath, and a slight headache. Id. at 151-52. The doctor’s
history does not mention passing out. Id. As part of the physical examination, the
doctor noted that Mr. Jossart was hyperventilating. Id. at 155. After additional
evaluations, the treating doctor stated, “the anxiety reaction hyperventilation are
considered the most likely etiology for his symptoms today.” Id. at 160. The ER
doctor also recommended a follow-up care with Mr. Jossart’s regular doctor.

The next day, before Dr. Barton saw Mr. Jossart, his mother telephoned Dr.
G. Chelimsky’s office. Dr. G. Chelimsky increased the amount of cyproheptadine
and salt that Mr. Jossart should be taking. Exhibit 31.03 at 311-13.

Mr. Jossart’s father brought him to Dr. Barton’s office on January 8, 2013.
Exhibit 5 at 16; see also Tr. 162. Dr. Barton recorded that “Tyler still describes
that he does not feel anxious, but the emergency room personnel did comment that
he seemed anxious in the ER setting.” Id. at 17. Dr. Barton also memorialized that
Mr. Jossart “had the autonomic testing done last week with the result not discussed
yet.” Id. As part of Dr. Barton’s examination, she observed that Mr. Jossart
“currently does not appear anxious.” Id. Dr. Barton stated that “there is still some
concern that anxiety is playing a factor in this even if it is secondary to his
underlying health problems. I think we need to consider treatment for this
depending on how the upcoming appointments go.” Id. at 18.

In this January 8, 2013 appointment, Mr. Jossart received a second dose of
the HPV vaccine. Id.; see also Exhibit 52 at 2; Exhibit 66. Mr. Jossart testified
that when he received the second dose of the vaccine, he had a cold. Tr. 57.
Likewise, Ms. Jossart recalled that because he was not feeling well, she thought a
second dose of the vaccination was not appropriate. Tr. 162-63.

Around this date, the number of hours that Mr. Jossart was working in the
department store decreased. Exhibit 70 at 10. The decrease in hours may have

18
been due to the end of the holiday shopping season and/or Mr. Jossart’s illness.
See Tr. 110.

Mr. Jossart followed up with Dr. G. Chelimsky on January 17, 2013.
Exhibit 31.04 at 361-64. Dr. G. Chelimsky’s history included: “With the
cyproheptadine he is able to eat a little better, and headaches are slightly better.
Tried salt twice, tolerated the p.m. dose and then in a.m. vomited saliva with salt
after the second dose.” Id. at 362. “He gets headaches, palpitations, shaky
lightheaded when getting up to switch classes or when sitting. Sometimes he gets
chest pain (he had seen cardiologist in the past and per Tyler he had random
increase in [heart rate]).” Id.

Dr. G. Chelimsky spent “70 minutes… counseling on symptoms, possible
diagnosis and treatment options.” Id. at 364. She assessed Mr. Jossart with
“borderline POTS, significant orthostatic symptoms, migraines, and nausea.” Id.;
see also Tr. 164-65 (Ms. Jossart’s reaction to discussion with Dr. G. Chelimsky).
Mr. Jossart testified that in this conversation, he did not know much about POTS,
but he was happy to have some reason for his symptoms. Tr. 59.
Dr. G. Chelimsky adjusted the amount of salt and increased the amount of
cyproheptadine. Exhibit 31.04 at 365. She recommended water jogging and
recumbent bicycling. Id.

Mr. Jossart returned to Dr. Barton’s office on January 20, 2013. Exhibit 5 at
13-14. He tested positive for influenza B and was prescribed Tamiflu. Id.

Upon a referral from Dr. Barton, Mr. Jossart saw two neurologists on
February 5, 2013. Exhibit 31.04 at 461-65, see also Tr. 60-61. The primary
neurologist was Asima Husain and the reviewing neurologist was Thomas
Chelimsky, who is the husband to Dr. Gisela Chelimsky.16

Like other medical records, Dr. Husain’s history notes that Mr. Jossart has
had nausea and headaches for several years. Exhibit 31.04 at 461. Dr. Husain also
wrote about a series of episodes when Mr. Jossart lost consciousness. One episode
occurred in October 2012 during school lunch. Another episode occurred during a

16
The Secretary asserted that Mr. Jossart's record included the diagnosis of POTS when
he saw Dr. Husain. Resp't's Prehear’g Br. at 16. Although the results of the autonomic testing
appear a few pages before Dr. Husain's report (Exhibit 31.04 at 458-60), whether Dr. Husain was
aware of Dr. G. Chelimsky's conclusions is difficult to say.

19
hot shower. Another episode occurred two nights ago, when he was awakened
from sleep at 4:30 AM. His breathing was fast, and he passed out for about 45
seconds. Id.

Dr. Husain got additional information about dizziness. Id. at 462. Dr.
Husain recorded that Mr. Jossart has dizziness “lasting for 20-30 min on average
and at most 2 hours . . . . With the longer spells [dizziness] can occur standing or
sitting, more with prolonged standing. Usually notices [symptoms] when walking
between classes, lightheaded and ‘shaky’ and [headache].” Id.

Dr. Husain’s diagnoses included “Complex and Atypical Migraine,”
“Postural Tachycardia Syndrome,” “Syncope,” and nausea. Id. at 464. Dr.
Husain’s assessment stated that Mr. Jossart has “multiple complex dysautonomias
including migraines. He also has POTS. In this case, migraine has a larger role in
his dizzy spells rather than the POTS.” Id. Dr. Husain’s plan included 14 points.
Dr. Husain ordered a EEG. She also changed his medications, adding Elavil,
Florinef, and gabapentin, but discontinuing cyproheptadine. Id.17

Ms. Jossart called Dr. G. Chelimsky’s office on February 13, 2013 and on
February 15, 2013. She reported an instance of passing out and dizziness both
times. Exhibit 31.05 at 528, 550. In response to the second call, the office
suggested that Mr. Jossart seek a counselor or therapist for support. Id.

An in-person visit with Dr. G. Chelimsky occurred on February 22, 2013.
Exhibit 31.05 at 602. Although in the previous week, Ms. Jossart had reported
problems, Dr. G. Chelimsky now documented an improvement: “He has been
doing much better [from] the POTS side since he is on fludrocortisone and salt. No
more fainting and less dizzy. Started exercising.” Id. Apparently, Dr. G.
Chelimsky ordered an upper endoscopy, which was normal. Id. at 603.
For the remainder of February 2013 and into March 2013, Mr. Jossart
periodically saw Dr. G. Chelimsky and his mother called her office. A
predominant problem was worsening migraine headaches. See, e.g. Exhibit 31.06
at 667 (Dr. G. Chelimsky prescribing a medication for migraines on February 27,
2013), Exhibit 31.07 at 895 (visit to the hospital for migraine on March 1, 2013);
Exhibit 31.08 at 987 (a telephone call describing his excruciating headaches on

17
Elavil is a brand name form of amitriptyline. Dorland’s at 592. Amitriptyline, in turn,
is an antidepressant used for chronic pain. Dorland’s at 63. Flurinef is a brand name form of
fludrocortisone acetate. Dorland’s at 711. Fludrocortisone acetate is a type of salt. Id. at 712.
Gabapentin treats seizures. Id. at 745.

20
March 20, 2013), Tr. 89 (Mr. Jossart’s testimony that he was experiencing “pretty
regular headaches, maybe a little more often than normal”), 167 (Ms. Jossart’s
testimony about his increased migraines).

During March 2013, Mr. Jossart also sought treatment from a
rheumatologist, David Klein, at Dr. Barton’s request. Exhibit 1 at 5. Mr. Jossart
reported that “he has joint pain everywhere.” Id. Mr. Jossart also informed Dr.
Klein that “He exercises 3 times a week. Part of the time is in a pool, where he
does aerobics. He has a history of POTS syndrome that has moved his exercise to
either stationary bike, rowing, or aerobics in the pool.” Id. at 5-6. Dr. Klein
memorialized that Mr. Jossart had missed school and has a 504 plan in place.
(More details about Mr. Jossart’s academic performance in the first quarter of 2013
are provided below.) Dr. Klein summarized a great deal of information, including
results of various laboratory tests, which the family brought with them to the
appointment. Dr. Klein’s discussion begins: “This young man presents with a
variety of issues and complaints which he again seems to be hyperfocused on. I
believe that his correct diagnosis is fibromyalgia and myofascial pain.” Id. at 10.
Dr. Klein recommended continuing amitriptyline and gabapentin and expanding
his exercise. Id. Dr. Klein “encouraged [Mr. Jossart] to continue to address his
issue but to remain active in school and socially.” Id. at 11.
In the beginning of 2013, Mr. Jossart was not attending school often due to
his illness. See Exhibit 72 at 4, 32. In February 2013, Mr. Jossart was being
considered for an IEP. Id. at 11-15. At Ms. Jossart’s request, Dr. G. Chelimsky
supported the family’s request for an IEP by writing a letter to explain POTS. Tr.
170, 213; Exhibit 72 at 27-28 (Dr. G. Chelimsky’s letter, dated March 8, 2013).
Some of the accommodations included an opportunity to make up missed
homework or quizzes. Tr. 169.
At the end of March 2013, Mr. Jossart told Dr. G. Chelimsky that his
dizziness had improved as it now occurred only when he stood up and he was
exercising more. Exhibit 31.09 at 1055. He also said that his last severe “POTS
attack” was two weeks ago. Id. On the other hand, his headaches were worse,
lasting up to 4-5 hours per day each day. Id. Dr. G. Chelimsky was considering
admitting him to the hospital for pain management of his headaches via “DHE.”
Id. at 1057. “DHE,” in this context, probably stands for “dihydroergotamine.” See
Dorland’s at 511.

21
2. April 2013: Hospitalizations

On April 3, 2013, Ms. Jossart brought Mr. Jossart to the emergency
department at Theda Clark shortly before noon. Exhibit 7 at 97 (nurse’s triage
note). Ms. Jossart informed the emergency room doctor that Mr. Jossart’s
medications changed on March 28, 2013 and he “has experienced an increase in
episodes of syncope since.” Id. at 86. The doctor was informed that Mr. Jossart
has a “history significant to postural orthostatic tachycardia syndrome.” Id. Other
recent history included: “Today at 0645 he was standing and fell face down onto
the floor (unwitnessed). He did not go to school and states at 0945 that he
developed tachypnea with cramping in his hands. At 1100 today he developed left
sided chest pain with palpations.” Id. at 87. Mr. Jossart also reported headaches.
While Mr. Jossart was waiting treatment in the emergency department, his mother
informed a nurse that she thought he passed out. Id. at 97.

A doctor in Theda Clark examined Mr. Jossart. As part of this process, his
orthostatic vital signs were taken:
Lying: blood pressure 126/58 and pulse 121;
Sitting: blood pressure 125/60 and pulse 131;
Standing: blood pressure 142/74 and pulse 122.

Exhibit 7 at 89 (April 3, 2013). Mr. Jossart was also determined to be
hyperventilating. Id. at 96. He was treated with IV fluids. Id.

The doctor from Theda Clark arranged for Mr. Jossart to be transferred to
CHOW. Id. at 95-96. He departed at approximately 4:30 PM. Id. at 96.

At around 6:30 PM, Mr. Jossart provided a history to Dr. Li at CHOW.
Exhibit 31.10 at 1206. “In regards to POTS symptoms, he typically faints twice a
week related to change in positions, however he can go up to 1-2 weeks without
fainting. He has noticed increased frequency of fainting over past 1 week.” Id.
“Also fainted yesterday and again today while in Theta Clark ED (while laying in
bed).” Id.

Dr. Li recorded that during the March 27, 2013 visit with Dr. G. Chelimsky,
she changed Mr. Jossart’s medications: “Started nadolol, increased gabapentin to
600 mg QHS (from 300 mg) and restarted cyproheptadine 4 mg BID. He stopped
nadolol due to SOB after trying for 1-2 days. 3 weeks prior he stopped

22
amitriptyline due to palpitations.”18 Exhibit 31.10 at 1206. Ms. Jossart informed
Dr. Li that Dr. G. Chelimsky “has plans to have Tyler established with Pain
Service to help with his chronic [headaches] and fibromyalgia. He has not used
DHE in the past.” Id.

Based upon this information and an examination, Dr. Li stated that Mr.
Jossart’s increased “symptoms may be secondary to recent changes in medications
and he would likely benefit from adjusting his home medication regimen. Joint
pain most likely secondary to fibromyalgia …. Headache may be secondary to
POTS or migraine given positive family history.” Id. at 15.

Mr. Jossart was admitted to the hospital. He remained from April 3, 2013
to April 8, 2013. Exhibit 31.10 at 1203-06 (discharge summary); Tr. 173. He saw
multiple doctors.

A pain management specialist, Stacy Peterson, was consulted for headaches
and generalized pain. Exhibit 31.10 at 1232-36. Dr. Peterson obtained a history
going back approximately 3-4 years, when Mr. Jossart had developed nausea and
some vomiting. “For his headaches, he had no history of headaches until
approximately 1.5 years ago following a concussion.” Id. at 1232. “His headaches
are constant although [they] vary in intensity.” Id. “In terms of medical therapy[,]
he has tried amitriptyline for his pain and headaches which improved his
headaches in the 4-5 weeks he was on it however he was unable to tolerate it due to
side effects. He is currently on gabapentin that has been minimal benefit.” Id. at
1233. “He also has a history of POTS with syncope which is well detailed in his
primary notes. This has improved with the addition of florinef to his medications.”
Id.

Dr. Peterson recommended four steps. Id. at 1236. She wanted to
discontinue gabapentin and to start Cymbalta. She suggested that Mr. Jossart
begin to see a “therapist for CBT [presumably cognitive behavioral therapy].”
Last, Dr. Peterson recommended consultation with “our multidisciplinary team
including Psychology and [physical therapy].” Id.

A child psychiatrist, Beth Long, was consulted. Exhibit 31.10 at 1213. Mr.
Jossart and Ms. Jossart stated that Mr. Jossart was “recently diagnosed with POTS
in early February. However, he and his mother report symptoms for several years.
Tyler states he was beginning to think he was ‘crazy’ because none of the doctors
he met with could diagnose or identify a specific medical concern until he met with
18
“Nadolol” is a medication for high blood pressure. Dorland’s at 1212.

23
Dr Chelimsky.” Id. Dr. Long hoped to address Mr. Jossart’s “difficulty adjusting
to [this] new diagnosis and psychosocial issues impacting medical condition.” Id.
With respect to past mental health services, Mr. Jossart reported that he
“attended 2 therapy sessions but stopped when he was told his symptoms were all
psychological. However, he does appear open to intervention and meeting with
someone locally.” Id. at 1215. For academics, Mr. Jossart reported that formerly,
he was “a straight A student. Now receiving A's, C's, D's based on tests not being
completed.” Dr. Long noted the 504B plan and that Mr. Jossart “no longer has to
complete homework.” Id. at 1216. Dr. Long’s impression was that “Tyler appears
to be an excellent candidate for outpatient intervention and support in the context
of coping with chronic illness.” Id.
The discharge report, which is dated April 8, 2014, recounted that the
neurology team concluded that Mr. Jossart did not meet the criteria for
fibromyalgia. Exhibit 31.10 at 1204. Similarly, the respiratory service determined
that Mr. Jossart’s tachypnea was “probably secondary to nadolol.” Id. The
discharge plan was for Mr. Jossart to see a doctor in the pain management unit on
April 30, 2014. Id. at 1205.

Before Mr. Jossart could attend that appointment, he had other health
problems. On April 10, 2013, he experienced shortness of breath while sitting and
sought care in the emergency department of Theda Clark about 30-60 minutes
later. Exhibit 7 at 60 (doctor’s record), 68 (triage nurse’s record). His respiratory
rate was 52 and the triage nurse advised him to slow his breathing and as he was
hyperventilating. Id. at 68. Approximately 20 minutes after Mr. Jossart’s arrival,
Ms. Jossart reported that Mr. Jossart “passed out while [i]n [h]er car[] for approx.
30 seconds.” Id. at 69. A coworker in the emergency department gave Mr. Jossart
“a sternal rub and [he] became wide awake when being done.” Id.

The doctor in Theda Clark discussed Mr. Jossart’s case with Dr. G.
Chelimsky. She recommended a transfer to CHOW. Id. at 67. After a discussion
among the doctors and Ms. Jossart, they planned for Ms. Jossart to stop at home to
pack a few things before driving her son to CHOW in her car. Id. at 69.
Mr. Jossart was again hospitalized at CHOW. This second hospitalization
lasted from April 10, 2013 to April 13, 2013. Exhibit 31.11 at 1406-11 (discharge
summary).

24
At CHOW on August 10, 2013, Mr. Jossart and his mother discussed his
history and current symptoms with a doctor at approximately 6:30 PM. Exhibit
31.11 at 1403. This note recounts three episodes of syncope occurring on this date:

The [patient] woke today 7am, took 16oz water prior to
getting up and felt dizzy upon standing. He proceeded to
the bathroom and sat down on bathroom floor b/c of
lightheadedness. He got into the shower and ‘fainted’ in
shower. He woke up on floor of shower without evidence
of trauma, then continued getting ready for his day. He
then went outside after breakfast to scrape his car due to
ice for about 15min then after returning inside ‘passed
out’ in the kitchen hitting his left elbow and left knee.
Both falls he felt light headed prior with tunnel vision,
rapid heart rate, difficulty breathing in prior to losing
consciousness. Neither episode was witnessed. He stayed
home from school and mother returned home to take care
of him. At approximately 1030am he suddenly felt
himself breathing fast, had difficulty getting air in so
mom took him to the ER at theda clark.
In the ED, he had one episode while lying on a gurnee at
approx 45 degrees where he felt like he was ‘blacking
out’ noticing it hard to hear mom, who thought he
appeared ‘semi-conscious’ before he was completely
unresponsive. This was noted in ED tech notes saying pt
pox[19] levels dropped to 80%, opens eyes with sternal
rub. [They] say this is different from other episodes
which usually occur with position change. He has also
never had 3 episodes in 1 day.

Otherwise no[] change in health.

Exhibit 31.11 at 1403. The emergency department also recorded information about
Mr. Jossart’s history of syncope:

19
“Pox” probably refers to “pulse oximetry,” meaning a measurement of oxygen in the
patient’s arterial blood. See Dorland’s at 1336.

25
Syncope began 2-3 yrs ago with increased to multiple
times per week since 2/12

Typically occur mid-day, while changing positions from
sitting to standing, at home and school

He has usually close to 10 minutes of warning he might
faint with symptoms of light headedness, weakness,
shaking, trouble breathing in, heart racing; no
diaphoresis, chest pain prior

He never drops straight to the floor but is able to lower
himself down so has never hit his head severely

Id. at 1404.
The doctor placed Mr. Jossart on “continuous pox” and discussed the case
with the gastrointestinal service. Id. at 1406. The gastrointestinal service agreed
to admit Mr. Jossart. Id.

A consultation with a gastroenterologist, Adrian Miranda, occurred late in
the evening on April 10, 2013. Exhibit 31.11 at 1411. This history reported here
is generally consistent with the history provided in the emergency department. Dr.
Miranda assessed Mr. Jossart as having different conditions. Dr. Miranda wrote
that Mr. Jossart has

multiple problems including POTS, asthma, [nausea/vomiting],
hypermobility syndrome and migraines who is having increased
syncope and tachypnea. Also with episodes of hypoxia with syncope
and syncope without posture changes which does not go along with
diagnosis of POTS. Tachypnea and hyperventilation could be related
to the episode of desaturations during ED visit.

Exhibit 31.12 at 1415. Dr. Miranda suggested a consultation with neurology.

The neurologist, Christopher M. Inglese, saw Mr. Jossart on April 11, 2013
at approximately noon. Dr. Inglese recorded that Mr. Jossart was “officially
[diagnosed] [with POTS] on 2/2012, tilt table/qsart.” Exhibit 31.12 at 1424. Dr.
Inglese recorded the information he was provided about the context for syncopal
episodes:

26
Started to have syncopal episodes 4 yrs ago (once a
month) with increased frequency since October 2012,
currently 2x / month. These events are usually position
dependent with lightheadedness, also occasionally
palpitation and tachypnea. He usually is able to lower
himself and remembers the events. Most of these events
are associated with peak of [his] migraine which he has
daily as per [patient].

Id.
The impressions and recommendations reflect how Mr. Jossart was
experiencing multiple problems:
A) Syncopal episodes. Etiology most likely due to POTS
but also "Syncopal Migraine" could be a contributing
factor given his history of migraine, which is still
uncontrolled

-1) POTS:
— Pt has been previously been treated with volume
expansion (salt tablet + florinef + hydration) as well as
Beta blocker for POTS. Continue with current
management. Mestinon has not been tried, and this can
be started as outpatient if the primary physician
following the POTS management agrees.
--2) Syncopal Migraine:

--This could be a contributing factor to his syncope, he is
usually at peak of his migraine intensity prior to pre-
syncopal episodes. Depakote or Topamax could be
considered for migraine prevention as he would currently
quality for it. Depakote could also improve his mood.
The headache unlikely to be due to rebound headache
(NSAID <2d per week, no opiate use)

***
—4) ? Panic attack/anxiety/stress-related etiologies: as
per psychiatry

27
Id. at 1430.

During this hospitalization, Mr. Jossart was seen by two psychiatrists in
appointments separated by approximately 90 minutes. The reason for the
successive consultations is not readily apparent.

The earlier appointment was with Dr. Long, who had seen Mr. Jossart during
the previous hospitalization. Exhibit 31.12 at 1416 (April 11, 2013 at 2:55 P.M.).
“Concerns remain for the role of psychosocial stressors, psychological factors and
stress/anxiety in his presenting physical symptoms.” Id.

To Dr. Long, “Tyler explained the events leading to this hospitalization
including multiple episodes of ‘fainting.’ He acknowledged that his last episode
was likely caused by hyperventilating but he states his attempt to slow his
breathing are often unsuccessful.” Id.

Dr. Long’s assessment included that: “Although Tyler does not appear
overly anxious or stressed, many of his symptoms do appear consistent with
anxiety.” Id. at 1417. Dr. Long described some of the challenges for a “17 year
old with or without a disease.” Id. She was hopeful that an outside psychologist
could assist.

The second psychiatrist to consult on Mr. Jossart’s situation was Ryan
Byrne. Exhibit 31.12 at 1417 (April 11, 2013 at 4:18 PM). Dr. Byrne
memorialized a history in which Mr. Jossart “has been dealing with POTS
consistently over the last 2-3 years” and that over the last “‘few months’” his
symptoms have been worsening. Id. For Mr. Jossart’s social history, Dr. Bryne
wrote that Mr. Jossart “is looking forward to prom and is somewhat nervous about
his upcoming ACT.” Id. at 1421. 20
Dr. Byrne’s impression again illustrates the complexity of Mr. Jossart’s
case:

We were asked to consult for evaluation of possible
psych symptoms that could be contributing to the pt's
presentation. Our findings are as follows: While writer
gets the sense that the pt is downplaying his emotional

20
Additional information about Mr. Jossart’s attempts to take the ACT is discussed
below. See Tr. 95 (Mr. Jossart’s testimony that he missed the ACT test in April due to
symptoms associated with fainting).

28
struggles, he also does a good job of saying the “right
things.” In other words, he does not provide writer with a
history that is consistent with anxiety or panic. However,
when you look at the evolution of his symptoms, the
temporal patterns (symptoms typically when preparing to
go to school or early in the school day), his genetic
loading (anxiety in family hx, mother dx'd with anxiety
[too]) and the way he presents himself it seems that panic
(and resulting avoidance) could be a major factor here.
This does not imply that writer does not think the pt has
POTS. Instead, this issue will be left mainly for the
primary team as we work in parallel with their efforts. A
search for a medically defined cause should still continue
with an eye on his psychiatric symptomatology.

Id. at 1422. Dr. Byrne recommended continuing working with psychology, inside
and outside the hospital. Id.
Mr. Jossart’s course in the hospital was summarized in the discharging
paperwork. He was advised not to drive a car due to the potential for a syncopal
episode. Exhibit 31.11 at 1408.

As Dr. Byrne and others recommended, Mr. Jossart started to see a
counselor. His first appointment was on April 22, 2013. Exhibit 14 at 3-7. The
initial plan concluded that Mr. Jossart “struggles with a medical syndrome that
affects his daily life. He will be helped to work with his thinking about how this
affects him. He will also be helped to learn and practice anxiety management
skills.” Id. at 7. Mr. Jossart saw this counselor roughly one time per month or two
times per month until September 22, 2014. Exhibit 14, passim. Topics included
Mr. Jossart’s health, how he was doing in school, problems with a girlfriend, and
his applications for college.

Mr. Jossart saw two different doctors on April 30, 2013. First, he saw Dr.
G. Chelimsky. Exhibit 31.13 at 1651-52. The subjective account begins: “Since
he was last seen he had 2 admits to the hospital. He has a cardiac monitor and he
reports he had 2 episodes of fainting time . . . One was in the shower a week after
discharge, and was not wearing the monitor. Then he had another episode with the

29
monitor.” Id. at 1651. 21 Dr. G. Chelimsky recorded that: “The pain is overall
better, the dizziness is still there when getting up and when standing and bending.”
Id. Ms. Jossart stated that Mr. Jossart “started fainting more since gardisol
immunization. Mom wonder is it was the immunization vs. Cyproheptadine.” Id.
(This reference to the HPV vaccination seems to be the first time a concern about
the vaccination as causing adverse health consequences appears in a medical
record). Dr. G. Chelimsky’s assessment was that Mr. Jossart had “POTS, fatigue
and migraines. He gets side effects from many medications. Not doing physical
activity.” Id. at 1652. Among other points, she recommended physical activity
each day, provided a prescription for physical therapy, and encouraged
rehabilitation at the Mayo Clinic program. Id.
The second appointment on April 30, 2013 was with the pain management
specialists who had seen Mr. Jossart during his first hospitalization, Doctors Stacy
Peterson and Jaya Varadarajan. Exhibit 31.14 at 1683-90. The purpose was to
evaluate and to manage Mr. Jossart’s headaches and chronic generalized pain. Id.
at 1683. “We started him on Cymbalta earlier this month when he was seen as an
inpatient. Since this time he reports improvement in his headache frequency which
had been 7 days per week to 5 days per week and also in the intensity of his
headaches.” Id. at 1684.

Doctors Peterson and Varadarajan commented on the POTS diagnosis:
He also carries a diagnosis of POTS with syncope which
is well detailed in his primary notes. His history of POTS
is somewhat unusual in the fact that his autonomic testing
was not consistent with POTS. However, given the
severity of his symptoms and inability to attend school on
account of his symptoms he is currently being treated for
POTS by Dr. Gisela Chelimsky. Since being home he has
had 2 episodes of syncope (none witnessed) and many
episodes of near syncope.

Id. at 1684. This discrepancy is repeated in their assessment:
We spoke with Dr. Chelimsky today and she feels that
based on his tilt table test he does not meet the criteria for
POTS, however given the severity of his symptoms by

21
The basis for the notation that Mr. Jossart experienced a syncopal episode while
wearing a cardiac monitor is not readily apparent.

30
report it is best to treat him with the florinef and salt
tablets. As mentioned above she thinks that he needs to
be more active and gave him a script for PT which we
agree with.

Id. at 1687. Doctors Peterson and Varadarajan wrote: “As a group we elected to
increase his Cymbalta dose today and agreed that he could wean the florinef and
cyproheptadine over the next few weeks if he continues to improve, given the
uncertainty of his POTS diagnosis.” Id.

By the end of his junior year, Mr. Jossart was missing more school. Exhibit
72 at 8-10; see also Exhibit 14 at 14. He stopped participating in marching band.
Exhibit 14 at 5.
3. May 2013 – September 2014: Completion of High School

On June 7, 2013, Mr. Jossart arrived at the Theda Clark emergency
department at 11:34 P.M. Exhibit 7 at 43. June 7, 2013 was a Friday. The chief
complaint was “Difficulty breathing.” Id. at 47. In the history of present illness,
the emergency room doctor, Christopher Hugo, recounted: “Of note the patient
carries a diagnosis of POTS; however, on a consultation dated May 1st of this year,
it actually states that he does not meet criteria for this.” Id.

It appears that … when he gets under stress [he] develops tachycardia,
near syncope or syncopal episodes, and hyperventilation. He had an
episode of these when he was scheduled to take the ACT test in April
and was hospitalized. He is actually scheduled to take the ACT exam
again tomorrow, has missed both attempts.

Id. Today, Mr. Jossart reported feeling short of breath at around 10:20 P.M when
he stood up. Mr. Jossart’s father informed Dr. Hugo that his wife and he “tried
talking him through the hyperventilation at home but could not get him to calm
down and thus he was brought to the Emergency Department for further
evaluation.” Id. As part of Dr. Hugo’s examination, Dr. Hugo recorded under
“PSYCHOLOGIC:” “He exaggerates the Emergency Department evaluation.
When asked to slow down his breathing, he actually breathes more shallowly and
rapidly and then gets worsening carpopedal spasm. . . . He is inappropriate and
dramatic.” Id. at 48. Mr. Jossart received lorazepam and he no longer
hyperventilated. Mr. Jossart was discharged at approximately 1:30 AM on
Saturday, June 8, 2013, with a plan to follow up with Dr. G. Chelimsky if his
symptoms worsened.

31
Mr. Jossart did not take the ACT on Saturday, June 8, 2013. Tr. 95, 180. It
appears that Mr. Jossart was given an accommodation for alternative testing in
September 2013. See Exhibit 31.21 at 2708. Another fainting episode prevented
him from completing the writing portion of the test. Tr. 95.

The medical records created after June 2013 tend to be less relevant in
determining whether Mr. Jossart suffered from POTS and whether the HPV
vaccine significantly worsened any condition. While these records have been
reviewed, a detailed description is not required. For additional information, see
Pet’r’s Prehear’g Br. at 21 and Resp’t’s Prehear’g Br. at 18-21.22

In summer 2013, Mr. Jossart continued to see people at the dysautonomia
clinic supervised by Dr. G. Chelimsky, such as Julie Banda, an advanced pediatric
nurse practitioner. He also continued his counseling. Around this time, Ms.
Jossart raised questions about whether the HPV vaccine might have caused POTS.
Exhibit 14 at 18 (July 18, 2013 visit with counselor), Exhibit 31.16 at 2018, 2020.
The professionals seem not to have affirmed Ms. Jossart’s idea. Although Dr. G.
Chelimsky had recommended a rehabilitation program at Mayo Clinic, Exhibit
31.08 at 918 (Mar. 25, 2013), Exhibit 31.09 at 1153 (April 1, 2013), Exhibit 31.13
at 1692 (April 30, 2013), Mr. Jossart did not attend. Tr. 61, 172.

Mr. Jossart started his senior year in high school in fall 2013. In his senior
year, his health affected him academically and socially. He reduced his load of
classes and did not take any Advanced Placement courses. Tr. 70, 178. He was
not scheduled for any morning classes. Tr. 70. In part because he was less present
at school, he drifted apart from friends. Tr. 70. His teachers focused on making
sure he graduated on time. Tr. 179. As noted above, Mr. Jossart’s attempts to
complete a college entrance exam were mostly unsuccessful. See Tr. 95, 180.

He attended school only approximately 60 days. Tr. 180. He felt sad that
his illness was causing him to miss activities like pep rallies. Tr. 70. His
participation in band was limited. Tr. 71. Nevertheless, his bandmates recognized
his efforts by giving him an award at graduation. Tr. 182.

In the fall of senior year, Ms. Jossart called Dr. G’s Chelimsky’s office to
ask about “kids with POTS getting flu shots?” Ms. Jossart was “afraid to give him
any vaccinations/chemicals with his system being so messed up.” Exhibit 31.18 at
2323. In an exchange of telephone messages, Ms. Jossart was informed that Dr. G.

22
The counseling records narrate events in Mr. Jossart’s life well. See Exhibit 14,
passim.

32
Chelimsky “strongly recommends that Tyler get the flu shot.” Id. at 2346 (Sep. 16,
2013).

On Thursday, October 10, 2013, Ms. Jossart telephoned Dr. G. Chelimsky’s
office and said that Mr. Jossart got a flu shot on Wednesday. Exhibit 31.19 at
2462; see also Exhibit 14 at 35 (Oct. 10, 2013 report to counselor that Mr. Jossart
had “increased POTS symptoms since receiving flu shot”).23 Ms. Jossart also told
Dr. G. Chelimsky’s office that he fainted on Thursday and Monday, and he was
missing significant school. Exhibit 31.19 at 2461. She stated his symptoms were
so severe, he needs help “walking down the hall.” Id. Ms. Jossart stated that he is
“completely non-functioning and home from school again today,” and he was also
having trouble breathing. Id. at 2484. In another email, she stated that Mr. Jossart
fainted twice during the first week of school, and she suspected those events could
be due to his schedule change. Id. at 2460.

Mr. Jossart returned to the dysautonomia clinic “for dizziness and syncope
after a 4 month interval.” Exhibit 31.19 at 2509. He saw Ms. Banda. As part of
the history, Ms. Banda recorded: “His autonomic testing showed orthostatic
intolerance, but did not meet heart rate criteria for POTS, and he is thought to have
syncopal migraines.” Id. Ms. Banda’s successive reports repeat that Mr. Jossart
did not meet the heart rate criteria for POTS. See, e.g., Exhibit 31.25 at 3399
(Mar. 4, 2014), Exhibit 31.29 at 3939 (Apr. 15, 2014), Exhibit 31.29 at 4050 (May
13, 2014), Exhibit 31.38 at 5302 (Aug. 11, 2015).
For colleges, Mr. Jossart applied to eight schools. Tr. 72, 181. Ms. Jossart
asked Dr. G. Chelimsky to write a letter regarding the challenges / difficulties her
son experienced while attempting to take the ACT. Exhibit 31.21 at 2708; Tr. 178.
Dr. G. Chelimsky explained his health problem in a letter for Mr. Jossart to send to
schools with his application. Exhibit 100; see also Tr. 214. He chose to attend the
University of Wisconsin, Madison. Tr. 72.

In spring 2014, Mr. Jossart had appointments with cardiologists at Appleton
Cardiology Thedacare, starting with James Mariano. In the first letter addressed to
Dr. Barton, Dr. Mariano began by writing that Mr. Jossart “carries a diagnosis of
postural orthostatic tachycardia syndrome. He was hoping I might be able to enroll

23
Although the Secretary requested documentation regarding the flu vaccination, Mr.
Jossart did not produce any. Whether Mr. Jossart actually received the flu vaccination is an
academic point because he has not argued that any 2013 flu vaccination harmed him.

33
him in cardiac rehab.” Exhibit 13 at 14 (May 13, 2014). 24 Dr. Mariano
memorialized that he (Dr. Mariano) had reviewed the results of some tests but Dr.
Mariano did not “have the results of his tilt table test or his sweat test. According
to the notes that [Dr. Mariano had] available though, the findings were all
consistent with postural orthostatic tachycardia syndrome.” Id. On examination,
“Blood pressure is 112/64 supine with heart rate of 72. Standing blood pressure is
110/80 with a heart rate of 104.” Id. at 15. Dr. Mariano’s impression was that Mr.
Jossart “has a constellation of symptoms which could be related to postural
orthostatic tachycardia syndrome.” Id. at 15. Dr. Mariano stated that he was
sending Dr. G. Chelimsky a copy of this letter and was willing to implement any
exercise program that she recommended. Id. at 16.
Dr. G Chelimsky advised that she “did not have a ‘model’ for an exercise
program.” Exhibit 13 at 10. Dr. Mariano recommended that Mr. Jossart see a
general cardiologist.
Robert Wilson, another doctor in this practice, saw Mr. Jossart on June 2,
2014. As part of the examination, Dr. Wilson recorded the following data about
Mr. Jossart’s heart rate and blood pressure:

HR/BP supine: 102,116/68
HR/BP sitting: 104,102/70
HR/BP standing 110,112/76

Exhibit 13 at 7. Dr. Wilson interpreted these results: “Today in clinic his
orthostatic vital signs were normal.” Id. at 8. Dr. Wilson’s impression included a
comment about the POTS diagnosis:

History of postural orthostatic tachycardia syndrome
(POTS). The patient had autonomic testing done at
Froedtert on 01/03/2013 that showed “orthostatic
intolerance, not meeting heart rate criteria for POTS, did
not replicate syncopal episodes, mildly impaired cardiac
sympathetic adrenergic function, intact parasympathetic
function, pseudomotor function was normal variant
versus mild early neuropathy, elevated blood pressure
during tilt.”

24
Cites to the pagination within exhibit 13 refer to the red numbers in the upper right
corner.

34
Id. at 5. Ultimately, Dr. Wilson concluded that regular follow-up in cardiology
was not required, in part, because Mr. Jossart was seeing consultants with greater
expertise. Id. at 8.

He graduated on time from high school. Tr. 70, 182. Again, Mr. Jossart
considered whether he should participate in a rehabilitation program at the Mayo
Clinic but he declined. See Exhibit 14 at 61 (counselor’s record dated June 23,
2014). Following his graduation, Mr. Jossart and his mother started an exercise
routine to improve his conditioning. Tr. 182-83. Mr. Jossart and his mother
attended a conference about POTS in Washington, DC over the summer. Exhibit
14 at 50. After participating in the National Dysautonomia Conference, Mr.
Jossart informed his counselor that the conference was “‘really good.’” Exhibit 14
at 66. Mr. Jossart “[c]onnected with many young people [who] also have
dysautonomia. Learned more about Ehlers Danlos Syndrome. Thinks he may have
this.” Id.; see also Tr. 438-39.

C. More Recent Health Status

1. College
In his first three years of college, Mr. Jossart took fewer classes. Tr. 104 He
received accommodations, like extra time to complete assignments. Tr. 73, 183.
He attempted to join activities like the school newspaper and a fraternity but found
that he could not keep up. Tr. 74. He watched Netflix. Tr. 104. For the spring
semester in 2019, he studied in Japan. Tr. 18, 215.
Mr. Jossart spent six years in college, which is longer than he planned. Tr.
77, 103. In his last year, his health was better. Tr. 74, 103, 186.

While in college, his medical care transitioned from Dr. G. Chelimsky, who
treats children and adolescents, to Dr. Tom Chelimsky, who treats adults. Tr. 75,
187. As part of this process, Mr. Jossart was required to undergo more testing. Tr.
76, 187, 423. At the time of the testing, Mr. Jossart was taking medications, about
which doctors ordering the tests should have known. Tr. 423, 434.

Much like the testing that was conducted in January 2013, Mr. Jossart
underwent a series of tests, including a tilt table test. QSART testing of the axon
reflex and Valsalva maneuver were normal, and a deep breathing assessment was
borderline normal. Exhibit 74 at 13.
The tilt table test showed an increase in his heartbeat of 40 to 50 beats per
minute. Exhibit 74 at 13 (January 3, 2017). The doctor interpreting the results,
35
Juan Figueroa, stated that: “Tilt was positive for excessive postural tachycardia
with orthostatic symptoms.” Id. Dr. Tom Chelimsky, according to Mr. Jossart,
stated that the increase in heart rate was consistent with POTS. Tr. 76. While Dr.
Gibbons agreed that the tilt table test showed postural tachycardia, Tr. 435, he
challenged the usefulness of the test due to the medications Mr. Jossart was taking.
For example, Mr. Jossart had been taking fludrocortisone. According to Dr.
Gibbons, fludrocortisone has a long half-life and when a person stops taking it, the
person might become dehydrated. Tr. 422-23. Dehydration, in turn, can lead to
tachycardia. However, it appears that Mr. Jossart did, in fact, stop taking
fludrocortisone for five days. Exhibit 74 at 11.

2. Health in 2022 (Japan)

After graduating from college, Mr. Jossart moved to Japan where he is
teaching English to students attending an international school. Tr. 16, 98. He is
covered by Japan’s national health insurance. Tr. 101.

Whether Mr. Jossart still suffers from symptoms associated with POTS is
not clear. He does not see any doctors in Japan for POTS. Tr. 22. He suffers from
gastrointestinal problems, but he has experienced those problems throughout his
life. Tr. 19. He testified that perhaps twice per week he might experience
dizziness. He associated dizziness with standing in a long line or running. Tr. 19-
20, 105. He has not missed work or canceled plans to go hiking due to any of
these symptoms. Tr. 19-20. His last episode of syncope was in the summer 2020,
which was more than a year before he testified. Tr. 101.

Mr. Jossart has reduced his medication use. While in Japan, he stopped
taking cyproheptadine on his own initiative without consulting a doctor. Tr. 106.
He takes another medication, midodrine, only as needed, which is about once per
year. Tr. 20, 102.

After learning about Mr. Jossart’s current health through his oral testimony,
Dr. Gibbons stated that this improvement is not consistent to damage to the
autonomic nervous system. Tr. 493. To Dr. Gibbons, improvements in POTS
among adults can take place after at least six months of regimented exercise. Tr.
466; exhibit A-5 (Arnold et al., Postural tachycardia syndrome – Diagnosis,
physiology and prognosis). In his rebuttal testimony, Dr. Steinman did not
comment on whether the improvement in Mr. Jossart’s health is consistent with
POTS.

36
III. Procedural History

Mr. Jossart initiated his claim for compensation in the Vaccine Program by
filing a petition on November 13, 2015. He initially alleged that his POTS was
caused-in-fact by a flu and HPV vaccine. Over the next few months, Mr. Jossart
filed medical records and affidavits.

The Secretary evaluated this material and recommended that compensation
be denied. Resp’t’s Rep., filed pursuant to Vaccine Rule 4, on April 22, 2016.
The Secretary requested missing medical records, questioned the diagnosis, and
argued that neither a treating doctor nor a retained expert opined that a vaccine
harmed Mr. Jossart.

To facilitate the submission of meaningful reports from experts, the
undersigned proposed a set of draft instructions on April 28, 2016. After neither
party interposed any objection, the draft instructions became final on May 18,
2016. These instructions alerted the parties that the reports from any experts might
serve as direct testimony at any hearing.

Mr. Jossart presented Dr. Steinman’s first report on August 12, 2016.
Exhibit 32. Consistent with the Instructions, Dr. Steinman began his report by
describing his qualifications. Dr. Steinman, who often testifies in the Vaccine
Program, is board-certified in neurology. He has experience in immunology and
has written articles published in peer-reviewed journals on the topic of molecular
mimicry. Exhibit 32 at 2; see also Exhibit 33 (curriculum vitae). In the last two
decades, Dr. Steinman has cared for approximately a dozen patients with POTS.
Id.

After this discussion of his qualifications, Dr. Steinman turned to Mr.
Jossart’s case. He stated, “there is a long history of anteceded illnesses pre-dating
the Gardasil immunizations.” Exhibit 32 at 4. Dr. Steinman emphasized that Dr.
G. Chelimsky stated on January 17, 2013 that Mr. Jossart has “borderline POTS.”
Id. at 5. Dr. Steinman maintained that: “Though episodes of syncope antedated the
Gardasil vaccinations, the record indicates that the frequency of these episodes
intensified following the two Gardasil immunizations.” Id. at 8.
Dr. Steinman proposed molecular mimicry as a theory to explain how the
HPV vaccination can aggravate POTS. Id. at 12-15. Using a computer program,
Dr. Steinman looked for sequences of amino acids in the HPV vaccination
resembling (or mimicking) stretches of amino acids within adrenergic receptors.

37
Dr. Steinman indicated that when 7 out of 12 amino acids are the same, an
immunologic cross reaction could occur. Id. at 14-15.

Finally, Dr. Steinman stated that the frequency of syncopal episodes
increased in the first 4 months of 2013. Id. at 16. However, Dr. Steinman did not
explain the temporal interval during which a cross reaction might be expected to
occur.

Dr. Steinman’s first report was discussed in an August 22, 2016 status
conference. The parties agreed that Dr. Steinman’s opinion shifted the case from a
causation-in-fact claim to a significant aggravation claim. Accordingly, a new set
of instructions were issued on August 25, 2016 and became final on September 9,
2016.

Dr. Steinman’s second report is very similar to his first report. Compare
Exhibit 32 with Exhibit 51. In his second report, Dr. Steinman disclosed that he
discussed the case with Mr. Jossart’s treating doctor, Dr. Chelimsky. Exhibit 51 at
5. Dr. Steinman added some details to his molecular mimicry. Id. at 16-18. The
section on timing remained unchanged.
In response to an order, Dr. Steinman clarified he was not basing any
opinion upon a tetanus-diphtheria-acellular pertussis vaccine, which was also given
to Mr. Jossart in conjunction with a dose of the HPV vaccine. Dr. Steinman did
not expand his discussion of timing. Exhibit 58.
The parties discussed Dr. Steinman’s reports in an April 5, 2017 status
conference. Mr. Jossart was again directed to obtain more information from Dr.
Steinman about timing. He was also given an opportunity to discuss how his
symptoms worsened in early 2013. Order, issued April 7, 2017.

Mr. Jossart filed some additional medical records on May 3, 2017. Exhibit
61-62. He also filed another affidavit from himself as well as affidavits from his
mother and father. These affidavits generally describe Mr. Jossart’s health in late
2012 and early 2013. Exhibits 63-65.

Another report from Dr. Steinman was filed on June 5, 2017, as Exhibit 67.
In this report, Dr. Steinman disclosed his opinion about timing. Dr. Steinman
stated that: “It should be understood as an initial matter that POTS does not have a
sudden, acute onset that one can note on one day on a calendar.” Exhibit 67 at 1.
Based upon a history created on April 3, 2013, Dr. Steinman asserted that doctors
prescribed different medications to Mr. Jossart because of worsening symptoms
“between December 3, 2012 (or approximately seven days post-November 26,
38
2012, Gardasil vaccine) and January 3, 2013 (or about 38 days post vaccine).” Id.
at 3. Dr. Steinman further argued that because the “immune response to Gardasil
is persistent and prolonged,” “one could potentially see an onset window extending
out as many as 18 or 24 months.” Id. at 4.

Mr. Jossart continued to submit factual material. For example, on July 14,
2017, he submitted employment records, records from a psychologist, and his high
school records. Exhibits 70-72. On August 14, 2017, he filed updated records
from Froedtert Hospital, which contained results of testing conducted on January 3,
2017. Exhibit 74.

The Secretary consistently asked for additional records, especially
documents to confirm that Mr. Jossart received a second dose of the HPV
vaccination on January 8, 2013. See, order issued Jan. 16, 2018; Resp’t’s Status
Rep., filed Feb. 13, 2018. Eventually, the Secretary offered to proceed with reports
from experts who would assume that Mr. Jossart received two doses of the HPV
vaccination. Order, issued June 8, 2018.

The Secretary filed the first set of reports from Dr. Gibbons and Dr. Whitton
on October 22, 2018. Like Dr. Steinman, Dr. Gibbons began with a recitation of
his qualifications. Dr. Gibbons is board certified in neurology with a subspecialty
in autonomic disorders. Exhibit A at 1; see also exhibit B (curriculum vitae). He
served as the president of the American Autonomic Society. Id. He has written
articles about autonomic disorders published in peer-reviewed journals and
lectured other medical professionals on this topic. Id. Dr. Gibbons has treated
hundreds of patients with POTS. Id.

After summarizing events in Mr. Jossart’s life, Dr. Gibbons quoted an article
defining the diagnostic criteria for POTS. A basic aspect of POTS is that the
person’s heart rate increases when the person stands. According to Dr. Gibbons,
“For individuals age 12-19 years, the requirement is at least 40 beats/minute.”
Exhibit A at 7, quoting exhibit A-1 (Freeman et al., Consensus statement on the
definition of orthostatic hypotension, neurally mediated syncope and the postural
tachycardia syndrome). 25 Based largely upon this definition, Dr. Gibbons stated
that Mr. Jossart’s “autonomic testing from 2013 has a normal heart rate response to
tilt table testing, with no evidence of POTS.” Id. at 10, citing Exhibit 62 at 9-12.
Dr. Gibbons continued: “The notes in the medical records of ‘borderline POTS’ do
not represent a true diagnosis. The term ‘borderline’ is used to describe a vague

25
The full citations to the medical articles are found in the bibliography in the appendix.

39
problem where a patient may report symptoms with a condition, but testing does
not necessarily support a particular diagnosis.” Id.

Rather than POTS, Dr. Gibbons thought that other conditions might explain
Mr. Jossart’s symptoms. These included anxiety, hyperventilation, and
somatization disorder. Id. at 12.

Finally, Dr. Gibbons challenged the assertion that an HPV vaccination can
cause POTS. In this regard, he relied primarily upon epidemiologic studies. Id. at
11.

The Secretary’s other expert, Dr. Whitton, also discussed epidemiologic
studies in his first report. At the time of his first report, Dr. Whitton was a
professor at the Scripps Research Institute. Exhibit C at 2. Although Dr. Whitton
attended medical school in the United Kingdom, he does not have a license to
practice medicine in the United States. Id. at 3. Thus, when Dr. Whitton was
invited to provide an opinion in this case, he relied on respondent’s other expert to
accurately address Mr. Jossart’s POTS diagnosis. Id. at 3.

As opposed to diagnosis, Dr. Whitton focused on causation. He stated that
he is “not aware of any convincing data to show that POTS can be triggered by any
vaccine.” Id. at 3. To support this assertion, Dr. Whitton cited various
epidemiologic studies. Id. at 3-5.
In addition to relying upon epidemiologic studies, Dr. Whitton critiqued how
Dr. Steinman used molecular mimicry. Dr. Whitton asserted that the homologies
that Dr. Steinman found using computer searches were “predictable” and not
shown to be immunologically relevant. Exhibit C at 7-10. Dr. Whitton also briefly
questioned Dr. Steinman’s opinion with respect to timing. Id. at 10-11.

Because the Secretary had presented reports from two people, Mr. Jossart
was offered the same opportunity. Order, issued Nov. 1, 2018. Mr. Jossart,
however, declined. Pet’r’s Status Rep., filed April 5, 2019.

Accordingly, Dr. Steinman’s next report responded to both Dr. Gibbons and
Dr. Whitton. For diagnosis, Dr. Steinman stood by his earlier assertion that Mr.
Jossart suffered from POTS based upon the diagnosis of “borderline POTS” from
Dr. Chelimsky. Exhibit 83 at 1-2. Otherwise, Dr. Steinman “really [had] nothing
further to add on this matter of whether POTS is an accurate and correct
diagnosis.” Id. at 2.

40
Before causation, Dr. Steinman added additional information about BLAST
searches, including citing a paper by Robert Root-Bernstein. Id. at 4-8. Dr.
Steinman also filtered his result through the immune epitope database. Id. at 6-9.
On November 29, 2019, the Secretary filed responses from Dr. Gibbons and
Dr. Whitton. Dr. Gibbons stated that Mr. Jossart “was not actually diagnosed with
POTS until January 3, 2017 – nearly 4 years after his last HPV vaccination. He
carried notes of ‘POTS’ in his medical records for many years, but actually never
came close to meeting criteria for this until 4 years later.” Exhibit E at 3. Dr.
Gibbons also continued to maintain that epidemiologic studies have not identified
any relationship between the HPV vaccine and POTS. Id. Dr. Gibbons cited the
study from the American Autonomic Society.
Dr. Whitton continued to disagree with Dr. Steinman’s use of molecular
mimicry. Dr. Whitton stated that Dr. Steinman was not using BLAST searches
properly. Exhibit F at 5-9. In this regard, Dr. Whitton said that Dr. Root-Bernstein
made “catastrophic mistakes” in the paper Dr. Steinman cited. Id. at 8. Dr.
Whitton also criticized how Dr. Steinman used the immune epitope database. Id.
at 9-11.

The Secretary’s presentation of these two reports appeared to complete the
expert report stage. Thus, the parties were directed to present briefs and other
materials regarding entitlement to compensation. Order, issued May 28, 2020. 26

Mr. Jossart filed his primary pre-hearing brief on August 31, 2020. In
connection with that brief, he supplied additional articles. Exhibits 95-98. He
filed a pre-hearing reply on February 25, 2021. In between those submissions, the
Secretary filed his pre-hearing brief on January 13, 2021, and filed additional
medical articles.
Upon review of this material, the undersigned determined that a hearing was
appropriate. Due to commitments, a mutually convenient time for a three-day
hearing was delayed until March 2022. Order, issued May 11, 2021. During the
pretrial process, the parties agreed to divide the amount of time available over the
course of three days. To avoid unnecessary duplication, the experts’ reports were
accepted as the experts’ direct testimony.

26
Before the briefing stage, the parties were referred for alternative dispute resolution.
Because the parties could not settle this case, it returned to the litigation track.

41
The hearing began with testimony from Mr. Jossart and then his mother,
Kristeen Jossart. Mr. Jossart, who resides in Japan, explained that the symptoms
he associates with POTS occur very infrequently for him. Mr. Jossart also
recounted his health going back to middle school. Likewise, Ms. Jossart testified
about her son’s health and activities from middle school through college.
Generally, the oral testimony of Mr. Jossart and Ms. Jossart about Mr. Jossart’s
health matched the information presented in the medical records created
contemporaneously with the events the medical records were describing.

After these two percipient witnesses completed their testimony, the parties
called their expert witnesses. Dr. Steinman, Dr. Gibbons, and Dr. Whitton
generally testified in accord with the opinions they had previously disclosed in
their written reports, which are summarized above and further analyzed below.

The experts’ demeanor in testifying varied. Dr. Steinman appeared, at times,
contentious and unnecessarily fenced with the Secretary’s attorney during cross-
examination. During rebuttal, Dr. Steinman argued with the attorney for Mr.
Jossart. At times, Dr. Whitton also engaged with the attorney for Mr. Jossart, who
was cross-examining him. However, Dr. Whitton’s questioning of a question
seemed to be intended to provide specific and accurate information. While the line
separating an overly hostile witness from an exacting witness may be difficult to
discern, Dr. Whitton’s demeanor was more positively received than Dr.
Steinman’s. Finally, the demeanor of Dr. Gibbons was fine. Dr. Gibbons
responded to questions posed to him by the attorney for the Secretary, the attorney
for Mr. Jossart on cross-examination, and the undersigned appropriately.

The parties completed the presentation of oral testimony in approximately
2½ days, meaning that the time restrictions did not prevent either party from
submitting evidence. After the hearing concluded, the evidentiary record closed.
The parties answered specific questions posed after the hearing. With the filing of
Mr. Jossart’s post-hearing reply, the case is ready for adjudication.

IV. Standards for Adjudication

A petitioner is required to establish his case by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “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 v. Sec’y of
Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations

42
omitted). Proof of medical certainty is not required. Bunting v. Sec’y of Health &
Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991).
Distinguishing between “preponderant evidence” and “medical certainty” is
important because a special master should not impose an evidentiary burden that is
too high. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379-80 (Fed.
Cir. 2009) (reversing special master’s decision that petitioners were not entitled to
compensation); see also Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357
(Fed. Cir. 2000); Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed.
Cir. 1993) (disagreeing with dissenting judge’s contention that the special master
confused preponderance of the evidence with medical certainty).

As noted in this decision’s introduction, the outcome derives from two
independent findings. The first reason for denying compensation is that Mr.
Jossart has not established that he suffered from POTS before or shortly after he
was vaccinated. The second reason for denying compensation is that Mr. Jossart
has not established that the HPV vaccination harmed him.

V. Analysis First Reason: Diagnosis
A. Law regarding Diagnosis

In Broekelschen v. Sec’y of Health and Hum. Servs., 618 F.3d 1339, 1346
(Fed. Cir. 2010), the Federal Circuit recognized that in some circumstances, the
special master may “first determine which injury was best supported by the
evidence in the record before applying the Althen test.” This principle also means
that petitioners must establish that the vaccinee suffers the injury allegedly linked
to the vaccination. Lombardi v. Sec’y of Health & Hum. Servs., 656 F.3d 1343,
1353-54 (Fed. Cir. 2011).

B. Whether Mr. Jossart Suffered from POTS
In the present case, Mr. Jossart claims that he suffered from POTS before the
HPV vaccination and that the vaccination worsened his pre-existing POTS. The
Secretary takes a different view. To the Secretary, Mr. Jossart did not suffer from
POTS around the time of the HPV vaccinations. This broad dispute encompasses
several discrete issues. One issue is the value of published diagnostic criteria. A
second issue is how pieces of evidence preponderate. A third issue is the legal
significance of Mr. Jossart’s lack of success on proving POTS.

43
1. Diagnostic Criteria for POTS

The basic criteria for diagnosing POTS are not disputed. They are:

1. Heart rate increase≥30 bpm within 10 min of upright
posture in adults. Heart rate increase of ≥40 bpm within
10 min is required in adolescents age 12–19 years.
2. Absence of orthostatic hypotension defined as a
sustained drop in blood pressure≥20/10mmHg within 3
min of upright posture.

3. Symptoms of orthostatic intolerance for ≥6 months.
4. Absence of overt causes for sinus tachycardia such as
acute physiological stimuli, dietary influences, other
medical conditions and medications.

Exhibit A-5 (Arnold et al., Postural tachycardia syndrome – Diagnosis, physiology
and prognosis) at 2; see also Pet’r’s Prehear’g Br. at 4-6 (setting forth these
criteria).
Mr. Jossart argues that diagnostic criteria cannot replace a clinician’s
judgment. Pet’r’s Posthear’g Br. at 4, citing Singer et al., Postural Tachycardia in
Children and Adolescents – What Is Abnormal, Exhibit A-2, at 6. However, the
Secretary has persuasively shown the value of tilt table tasting in diagnosing POTS
in adolescents. Resp’t’s Posthear’g Br. at 8. A series of articles discuss tilt table
testing:

Articles regarding Tilt Table Testing in POTS

Year Exhibit Author Notes

2011 A-1 Freeman Discussed at Tr. 222-24, 405

Authors established a normative range. No
2012 A-2 Singer
testimony.

2014 44 Kizilbash Need to give teens a diagnosis. Page 19; Tr. 492

2015 E-3 Canadian No testimony.

44
Articles regarding Tilt Table Testing in POTS

Dr. Steinman relied upon this group for sub-
2018 A-5 Arnold types of POTS. Tr. 321. This article lists tilt
table testing disjunctively (“or”).

Mr. Jossart’s and Dr. Steinman’s attempts to lessen the diagnostic rigor were
generally unpersuasive. In his reports, Dr. Steinman portrayed the diagnostic
criteria as “flexible.” Exhibit 32 at 9; accord Exhibit 51 at 12. Likewise, in Dr.
Steinman’s oral testimony, he characterized the consensus criteria as “useful. . .
But they [consensus committee] don’t inform clinical practice.” Tr. 222. When he
was cross-examined about the criteria, Dr. Steinman’s testimony was neither good
nor credible. Tr. 242-46.

Dr. Steinman testified that Dr. G. Chelimsky mentioned that an elevated
heart rate is not required to diagnose an individual with POTS. Tr. 222. The basis
for this statement is not apparent as the Secretary argued. See Resp’t’s Posthear’g
Br. at 11. Given an opportunity to substantiate Dr. Steinman’s testimony, Mr.
Jossart did not. See Pet’r’s Posthear’g Reply. 27

Given this testimony, the August 30, 2022 Order asked: “Is an elevation of
at least 40 beats per minute on a tilt table test required to find, more likely than not,
that an adolescent suffered from POTS?” The parties differed.

Mr. Jossart argued: “The criteria is a consensus criteria for medical
professional and is not strictly required for this Court to find an adolescent suffered
POTS, nor was it required for Dr. Gisela Chelimsky to diagnose and treat
Petitioner for POTS.” Pet’r’s Posthear’g Br. at 4. Mr. Jossart did not cite any
cases supporting his position.
In response, the Secretary argues that a diagnosis of POTS “must” be
supported by a tilt-table test. Resp’t’s Posthear’g Br. at 8. Mr. Jossart did not
directly engage with the Secretary’s argument regarding “must.” Instead, Mr.
Jossart reasserted the position of Dr. G. Chelimsky. Pet’r’s Posthear’g Reply at 3.

27
In his emails with Dr. Chelimsky, Dr. Steinman preferred to communicate through
voiced conversations. Exhibit 59. There is no record of what Dr. Chelimsky spoke. In the
November 28, 2016 status conference, the undersigned explained that better evidence would
come from Dr. Chelimsky directly.

45
Taken as a whole, the evidence does not support a finding that a positive tilt
table test is an absolute requirement to diagnose POTS in all cases. Exhibit A-5
(Arnold et al., Postural tachycardia syndrome – Diagnosis, physiology and
prognosis); Tr. 404. With the caveat that doctors do not always administer tilt
table tests, tilt table testing creates valuable information into determining whether a
person suffers from POTS. Looking at the results of tilt table tests as part of the
process of determining whether a person suffered from POTS is in accord with the
literature and non-binding opinions from special masters. See, e.g., Drummond v.
Sec'y of Health & Hum. Servs., No. 16-702V, 2023 WL 3035072, at * 30 (Fed. Cl.
Spec. Mstr. Apr. 21, 2023); Specks v. Sec'y of Health & Hum. Servs., No. 15-
491V, 2023 WL 2947619, at * 42 (Fed. Cl. Spec. Mstr. Apr. 14, 2023); C.F. v.
Sec'y of Health & Hum. Servs., No. 15-731V, 2023 WL 2198809, at * 38 (Fed. Cl.
Spec. Mstr. Jan. 20, 2023); L.P. v. Sec’y of Health & Hum. Servs., No. 16-1278V,
2021 WL 2373863 at *24 (Fed. Cl. Spec. Mstr. Apr. 26, 2021); Balasco v. Sec’y of
Health & Hum. Servs., No. 17-215V, 2020 WL 1240917 at *19 (Fed. Cl. Spec.
Mstr. Feb. 14, 2020); Yalacki v. Sec’y of Health & Hum. Servs., No. 14-278V,
2019 WL 1061429 at *35 (Fed. Cl. Spec. Mstr. Jan. 31, 2019), mot. for rev.
denied, 146 Fed. Cl. 80 (2019).

2. Evidence regarding Mr. Jossart’s Health in 2012-2013

Multiple pieces of evidence contribute to determining whether, on a more
likely than not basis, Mr. Jossart suffered from POTS in late 2012 through early
2013. These include (a) the results of the tilt table test, (b) orthostatic testing, (c)
Dr. G. Chelimisky’s work as a treating doctor, (d) the opinions of Dr. Steinman
and Dr. Gibbons, (e) the result of tilt table testing in 2017, and (f) potential
alternative explanations for Mr. Jossart’s symptoms. These are taken up in
sequence.

a) Tilt Table Test
When Mr. Jossart underwent a tilt table test, his heart rate increased as
expected. The amount of increase did not exceed the threshold of normal. Exhibit
62 at 36 (Jan. 3, 2013). Dr. Steinman agreed that Mr. Jossart did not qualify for
POTS based upon the tilt table testing. Tr. 235, 246.

b) Orthostatic Testing

Because Arnold et al. proposed orthostatic testing as an alternative to tilt
table testing, exhibit A-5 at 3, the parties were directed to discuss any orthostatic
testing in Mr. Jossart. Order, issued August 19, 2022, ¶ 2.d.

46
Mr. Jossart identified a few instances of orthostatic testing. Pet’r’s
Posthear’g Br. at 8-9. Mr. Jossart did not argue that this testing showed any
abnormality. Instead, Mr. Jossart “maintains Dr. Gisela Chelimsky’s clinical
diagnosis of POTS is sufficient.” Id. at 9.

In contrast, the Secretary asserts that orthostatic vital signs do not “‘support
a diagnosis of POTS.’” Resp’t’s Posthear’g Br. at 19, quoting Tr. 393 (Dr.
Gibbons). The basis for this opinion is a series of tests.

Mr. Jossart’s Orthostatic Tests From Date of Vaccination (November 26, 2012)
through end of 2013

Date Increase in Cite
beats per
minute

12/18/2012 16 Exhibit 7 at 190

2/5/2013 15 Exhibit 31.05 at 489

4/3/2013 1 Exhibit 7 at 89

6/18/2013 22 Exhibit 31.15 at 1962

Exhibit 31.19 at 2514; Exhibit 10 at 29
10/15/2013 36
(duplicate)

Exhibit 31.23 at 3091; Exhibit 10 at 162
12/31/2013 28
(duplicate)

As the Secretary argued, Mr. Jossart “never demonstrated a heart rate
increase of 40 BPM at any point in 2012 or 2013.” Resp’t’s Poshear’g Br. at 19.
These measurements underlie Dr. Gibbon’s assessment that Mr. Jossart’s heart rate
“was not remotely approaching POTS.” Tr. 393.
c) Dr. G. Chelimsky’s Opinion

The opinions of treating doctors can be quite probative. Cappizano v. Sec’y
of Health & Hum. Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006). The views of
treating doctors about the appropriate diagnosis are often persuasive because the
doctors have direct experience with the patient whom they are diagnosing. See
47
McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 3640610, at
*20 (Fed. Cl. Spec. Mstr. May 22, 2015). However, the views of a treating doctor
are not absolute, Snyder v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 706, 745
n.67 (2009), even on the question of diagnosis, R.V. v. Sec’y of Health & Hum.
Servs., 127 Fed. Cl. 136, 141 (2016), appeal dismissed, No. 16-2400 (Fed. Cir.
Oct. 26. 2016).

Dr. G. Chelimsky is a leading authority on POTS. Exhibit 106-08; Tr. 313.
Dr. Gibbons endorsed her work. Tr. 425.

Under these circumstances, shouldn’t her diagnosis of POTS carry the day?
The answer is “no” for two reasons.

First, Dr. G. Chelimsky did not diagnose Mr. Jossart as having POTS. In
early January 2013, Dr. G. Chelimsky recognized that the results of the tilt table
testing did not meet the diagnostic criteria. Exhibit 62 at 38 (Jan. 3, 2013).
Following an evaluation of him, Dr. Chelimsky stated that he had “borderline
POTS.” Exhibit 31.4 at 364 (Jan. 17, 2013).

According to Dr. Gibbons, “borderline POTS is not widely used in the
medical literature.” Tr. 405. Dr. Steinman did not rebut this statement and no
articles have been located in this case’s record with that term.

So, then why did Dr. G. Chelimsky put forward “borderline POTS”? A
direct inquiry to Dr. G. Chelimsky might have been useful. See Tr. 405. But, in
the absence of a statement from Dr. G. Chelimsky about her treatment of Mr.
Jossart, some information can be gained from a 2014 article that she co-wrote. Tr.
492.

Dr. G. Chelimsky and her co-authors wrote a guide to help clinicians treat
adolescents with POTS. They saw a need for this information because, in part,
“[w]ithout accurate and timely diagnosis, education, and motivation to incorporate
new healthy living practices into their lives to remediate their symptoms, affected
adolescents are at heightened risk for academic decline. . . .” Exhibit 44 (Kizilbash
et al., Adolescent Fatigue, POTS, and Recovery: A Guide for Clinicians) at 109.
These authors explained that as part of the recovery process, “[t]eens and families
first need a diagnosis to hold onto to begin learning about how to recover.”

48
Exhibit 44 at 127. Thus, it appears that Dr. G. Chelimsky may have assigned Mr.
Jossart the diagnosis of “borderline POTS” as a way to initiate his recovery. 28

Coincidentally, Mr. Jossart appears to have responded in the way the
Kizilbash article predicted. He informed a child psychiatrist, Dr. Long, that he was
“beginning to think he was ‘crazy’ because none of the doctors he met with could
diagnose or identify a specific medical concern until he met with Dr. Chelimsky.”
Exhibit 31.10 at 1213 (Apr. 4, 2013). Mr. Jossart’s account to Dr. Long tends to
corroborate Dr. G. Chelimsky’s idea that receiving a diagnosis helps the patient.
d) Opinions of Other Doctors in 2013 and 2014

Some medical records memorialize a history in which a treating doctor
wrote that Mr. Jossart suffered from POTS. See, e.g., Exhibit 31.12 at 1424
(neurologist’s record on April 11, 2013: “officially [diagnosed] [with POTS] on
2/2012, tilt table/qsart.”), Exhibit 13 at 14 (cardiologist’s record from March 11,
2014 that Mr. Jossart carries a diagnosis of POTS but noting that the cardiologist
had not reviewed the tilt table test). Whether these doctors were reaching a
diagnosis independently or simply repeating what was told to them appeared
unclear. See J.S. v. Sec’y of Health & Hum. Servs., 164 Fed. Cl. 314, 336-40
(2023) (ruling that the chief special master was not arbitrary in rejecting a
diagnosis from a treater who obtained inaccurate history from the petitioner and
did not have all objective tests), appeal docketed, No. 2023-1644 (Fed. Cir. Mar.
22, 2023); Vaughan v. Sec’y of Health & Hum. Servs., 107 Fed. Cl. 212, 220
(2012) (a history is not the same as a diagnosis); Rothenberger v. Sec’y of Health
& Hum. Servs., No. 15-696V, 2018 WL 2731639, at *16 (Fed. Cl. Spec. Mstr.
Apr. 19, 2018) (distinguishing what a petitioner told a doctor from a diagnosis
reached by the doctor). Given this lack of clarity, the parties were directed to
comment on diagnoses in medical records from doctors other than Dr. G.
Chelimsky. See Order, issued Aug. 19, 2022, ¶ 2.b.

The parties differed. Mr. Jossart argued that except from the February 5,
2013 records from Dr. Husain, evaluating the role of Dr. G. Chelimsky’s diagnosis
would require “speculation.” Pet’r’s Posthear’g Br. at 5. The Secretary contended

28
Mr. Jossart argues that Dr. G. Chelimsky could not have created a diagnosis for Mr.
Jossart because a discrepancy about diagnosing and billing would be unethical. Pet’r’s
Posthear’g Br. at 3. This argument carries little weight because there is a lack of testimony about
the ethics of doctors' diagnosing and billing.

49
that doctors associated Mr. Jossart’s fainting with hyperventilation. Resp’t’s
Posthear’g Br. at 18.

Overall, the collection of medical records created in 2013 and 2014 tends not
to offer persuasive support for the proposition that Mr. Jossart suffered from
POTS. Other doctors stated that his tilt table testing did not meet the criteria for
POTS. See Exhibit 31.14 at 1684 (April 30, 2013 report of pain management
doctors that Mr. Jossart’s “history of POTS is somewhat unusual in the fact that his
autonomic testing was not consistent with POTS”), Exhibit 31.19 at 2509 (October
15, 2013 report from APNP Banda that he did not meet the diagnostic criteria for
POTS), Exhibit 13 at 5 (June 2, 2014 report from a cardiologist that the January 3,
2023 testing did not meet the heart rate criteria for POTS).

e) Positive Tilt Table Test in 2017
Mr. Jossart underwent a second tilt table test when he was transitioning from
the care of doctors who treated children and adolescents to the care of doctors who
treated adults. The result of this second test fulfilled the diagnostic criteria for
objective testing.

This second test does not shed much light on Mr. Jossart’s health
approximately four years earlier. Due to the passage of time, a 2017 test provides
little useful information about a person’s condition in 2013. See J.S. v. Sec’y of
Health & Hum. Servs., No. 16-1083V, 2022 WL 20213038, at *23 (Fed. Cl. Spec.
Mstr. July 15, 2022) (declining to give much weight to tests showing petitioner had
anti-adrenergic antibodies when test was conducted almost five years after
vaccination), mot. for rev. denied, 164 Fed. Cl. 314, 339-41(2023) ; E.M. v. Sec’y
of Health & Hum. Servs., No. 14-753V, 2021 WL 3477837, at *33-34 (Fed. Cl.
Spec. Mstr. July 9, 2021) (declining to give much weight to skin biopsy performed
four years later). But, see, Johnson v. Sec'y of Health & Hum. Servs., No. 14-
254V, 2018 WL 2051760 at *27 (Fed. Cl. Mar. 23, 2018) (finding that several
years of medical records were mostly supportive of a diagnosis but the overall
record did not have preponderant evidence that the HPV vaccine caused
petitioner’s POTS).

In addition to the passage of time, Dr. Gibbons questioned the reliability of
the results of the 2017 test because medications may have affected the accuracy of
the result. Exhibit A at 9; Tr. 422-23, 434-36. Resolution of this discrete issue is
not required.

50
f) Dr. Steinman vs. Dr. Gibbons

The previous four points addresses information largely created during the
doctors’ treatment of Mr. Jossart. Another type of evidence is information
generated in the context of litigation. See 42 U.S.C. § 300aa–13(a) (allowing
special masters to make findings based upon “medical records” or “medical
opinion”). As mentioned earlier, the parties retained doctors to present various
opinions.

The two doctors who opined about whether Mr. Jossart suffered from POTS
in late 2012 through early 2013 are Dr. Steinman and Dr. Gibbons. Dr. Steinman
stated that Mr. Jossart had POTS. Exhibit 51 at 6-11 (summarizing medical
records). Dr. Gibbons disagreed. Exhibit A at 8-9.

Special masters may consider the relative expertise of testifying experts
when weighing the value of their opinion. See Depena v. Sec’y of Health & Hum.
Servs., No. 13-675V, 2017 WL 1075101 (Fed. Cl. Spec. Mstr. Feb. 22, 2017), mot.
for rev. denied, 133 Fed. Cl. 535, 547-48 (2017), aff'd without op., 730 Fed. App'x
938 (Fed. Cir. 2018); Copenhaver v. Sec’y of Health & Hum. Servs., No. 13-
1002V, 2016 WL 3456436 (Fed. Cl. Spec. Mstr. May 31, 2016), mot. for rev.
denied, 129 Fed. Cl. 176 (2016).
On the topic of the diagnosis of POTS, Dr. Gibbons was much more
qualified than Dr. Steinman. Dr. Steinman does not normally treat adolescents
with POTS. Tr. 232. Dr. Gibbons spends most of his time studying the autonomic
nervous system. Tr. 336. He has written articles on the autonomic nervous
system, including POTS. Tr. 340. Dr. Gibbons has seen thousands of patients
with POTS. Tr. 342-43.
Thus, on the question as to whether a person suffers from POTS, Dr.
Gibbon’s opinion is more valuable than the opinion of Dr. Steinman.
g) Other Conditions in 2012-13

A petitioner bears the burden of establishing that he (or she) suffers from the
condition a vaccine allegedly caused. Lombardi, 656 F.3d 1343. For the reasons
explained above, Mr. Jossart has not met his burden.

However, the Secretary put forward other conditions that could have caused
Mr. Jossart to have symptoms in the later part of 2012 and continuing into 2013.
In Dr. Gibbons’s first report, he proposed hyperventilation and anxiety. Exhibit A
at 12. In his second report, Dr. Gibbons suggested a psychological or somatic
51
symptom disorder. Exhibit E at 3. The Secretary argued that a basis for Mr.
Jossart’s health trouble could be vasovagal syncope or hyperventilation. Resp’t’s
Prehear’g Br. at 36-43; see also Pet’r’s Prehear’g Reply at 8-9.

In Dr. Gibbons’s oral testimony, he expanded his opinion, asserting how
various medications could have side effects. For a summary, see Resp’t’s
Posthear’g Br. at 20-24. Although Mr. Jossart might have objected to this
testimony about the side effects of medications (See Simanksi v. Sec’y of Health &
Human Servs., 671 F.3d 1368, 1382 (Fed. Cir. 2012)), Mr. Jossart did not.
Without a pre-hearing disclosure of opinions regarding the side effects of
medications, Mr. Jossart’s ability to respond seems hampered as he has cited
internet searches, rather than evidence. See Pet’r’s Posthear’g Reply at 6-7.

Further evaluation is not required. As discussed, an element of a petitioner’s
case is to prove diagnosis by a preponderance of the evidence. As explained in
paragraphs a-f, Mr. Jossart has not met his burden. Moreover, the presence of
some symptoms such as anxiety is compatible with a diagnosis of POTS because
anxiety can be a co-morbidity with POTS. Tr. 426.
h) Summary

When considered as a whole, the evidence does not preponderate in favor of
finding that Mr. Jossart suffered from POTS within a few months of his November
26, 2012 vaccination. The primary way doctors determine whether a person’s
heart rate increases excessively is a tilt table test and Mr. Jossart’s tilt table test did
not detect any abnormality. An alternative to tilt table testing is the measurement
of orthostatic vital signs. These were consistently within the normal range for Mr.
Jossart. When the objective testing does not meet the diagnostic criteria for the
disease, a statement from a treating doctor that Mr. Jossart had “borderline POTS”
is not persuasive. The more persuasive opinion comes from Dr. Gibbons, who is
also an authority in POTS and who declared that Mr. Jossart did not have POTS in
the relevant time. Exhibit A at 13.

3. Legal Significance for a Lack of Proof of POTS

The next question concerns the consequence of finding that Mr. Jossart did
not suffer POTS in 2012-2013. The parties differ. Mr. Jossart contends: “If the
Court finds he did not suffer from the formal diagnosis of POTS, Petitioner’s
worsening dysautonomia remains and his expert’s Althen evidence remains useful
in elucidating the etiology of Petitioner’s dysautonomia.” Pet’r’s Po

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10734299. Public record. Not legal advice.