Lamona Dodd, Parent of S.S., a Minor v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 09-585 V

(Filed December 19, 2013)1

* * * * * * * * * * * * * * *

LAMONA DODD, parent of S.S., *

a minor, *

*

Petitioner, * Vaccine Injury; National

* Childhood Vaccine Injury Act of

v. * 1986, 42 U.S.C. §§ 300aa-1 to -

* 34 (2006); Proof

SECRETARY OF HEALTH AND * of Causation; Whether Petitioner

HUMAN SERVICES, * Established a Logical Sequence

* of Cause and Effect.

Respondent. *

* * * * * * * * * * * * * * *

Ronald C. Homer, Boston, MA, for petitioner.

Voris E. Johnson, Jr., United States Department of Justice, with whom were

Stuart F. Delery, Assistant Attorney General, Rupa Bhattacharyya, Director,

Vincent J. Matanoski, Deputy Director, Catharine E. Reeves, Assistant Director,

Washington, DC, for respondent.

________________________________

OPINION AND ORDER

________________________________

Bush, Senior Judge.

1

/ Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of

Federal Claims, this Opinion and Order was initially filed under seal on November 25, 2013.

Pursuant to ¶ 4 of the ordering language, the parties were to propose redactions of the

information contained therein on or before December 13, 2013. No proposed redactions were

submitted to the court.

Now pending before the court is petitioner’s motion for review of the Chief

Special Master’s June 5, 2013 final decision (Dec.) denying Ms. Lamona Dodd’s

petition for compensation under the National Childhood Vaccine Injury Act of

1986, 42 U.S.C. §§ 300aa-1 to -34 (2006) (the Vaccine Act).2 The court relies on

the record of underlying proceedings in this matter,3 as well as petitioner’s motion

for review (Pet.’s Mot.) and respondent’s response to that motion (Resp.’s Resp.).4

For the reasons stated below, the court denies petitioner’s motion for review and

affirms the decision of the Chief Special Master.

BACKGROUND

I. Factual History5

Lamona Dodd’s son S.S. was healthy at birth, suffered common childhood

ailments and received normal childhood immunizations. Dec. at 4-5. At age four,

he received three vaccinations on October 1, 2007: measles-mumps-

rubella (MMR), Diphtheria-Tetanus-acellular-Pertussis (DTaP) and Polio. Ex. 11

at 6. Only the MMR vaccine, and, in particular, its measles vaccine component,

2

/ The re-captioned, redacted public version of the Chief Special Master’s decision,

issued on June 21, 2013, is the one cited to in this opinion. The page references are to the

version found on this court’s website; the decision is also available at Dodd v. Sec’y of Health &

Human Servs., No. 09-585V, 2013 WL 3233210 (Fed. Cl. Chief Spec. Mstr. June 5, 2013); Dodd

v. Sec’y of Sec’y of Health & Human Servs., No. 09-585V, 2013 U.S. Claims LEXIS 701 (Fed.

Cl. Chief Spec. Mstr. June 5, 2013). The Chief Special Master’s decision provides a more

detailed examination of the circumstances of the vaccine injury alleged in the petition and an

explanation of medical terms relevant to this case.

3

/ Petitioner’s exhibits in this case are numbered (Exs. 1-18, 18-A through 18-I, 19-20,

20-A through 20-E, 21-24), whereas respondent’s exhibits are marked alphabetically (Exs. A,

A-1 through A-3, B).

4

/ Petitioner’s memorandum in support of her motion for review was first filed on July 5,

2013, as an attachment to a motion to exceed page limits, and again on July 10, 2013 as a

separate docket entry. All citations to petitioner’s motion for review are to the memorandum of

law filed on July 10, 2013.

5

/ The chronology recounted here is largely undisputed, although the parties dispute the

significance of certain well-established facts.

2

are at issue in petitioner’s theory of vaccine injury causation.

According to his mother, about a week after the vaccination S.S. experienced

coughing accompanied by fever, but continued to attend preschool. Ex. 12 at 1.

On October 15, 2007, however, S.S. was brought to the emergency room where he

presented, without a fever, as follows:

This is a 4-year-old African American male who was

brought to the emergency room by his mom with history

that the child became sick this evening, complained of a

headache, abdominal pain, and probably had total of

about 6 episodes of vomiting. Had one episode of

diarrhea and urinary incontinence. [He] was thought

beginning about 8 p.m. to be having some seizure

activity. No prior history of seizures and child has some

history of chronic illness. The mom said that the seizures

would start, last [a] few minutes and go away, and he

would be able to talk between the episodes but was not

himself.

Ex. 3 at 169. The hospital staff noted at the time that there was some family

history of seizures.6 Id.

S.S. was discharged the next day on anti-seizure medication. The parties

dispute the severity of the seizures experienced by S.S. on October 15, 2007,

although certain facts are undisputed. As noted by petitioner’s expert, on October

15, 2007 S.S. exhibited several episodes of “staring spells,” a “left focal

tonic-clonic seizure” that lasted a couple of minutes, “left-sided postictal

paralysis,” and his EEG showed “subtle slowing intermittently throughout the right

6

/ The medical records of S.S. as a whole reflect that a maternal great-aunt or aunt had

an onset of seizures in her childhood and suffered from epilepsy. See Ex. 3 at 169; Ex. 7 at 4,

94; Ex. 8 at 10; Ex. 14 at 4, 17; see also Ex. 18 at 1 (petitioner’s expert report noting that S.S.’s

“family history was void of neurological disorders except for a maternal great-aunt with

epilepsy”). But see Ex. 3 at 177 (hospital physician notes stating that S.S. had “no family history

of seizures”).

3

hemisphere.”7 Ex. 18 at 1. The etiology of these “[n]ew onset seizures” was

unclear to his treating physicians. See, e.g., Ex. 3 at 169-70; Ex. 7 at 93; Ex. 14 at

11. None of the medical personnel treating S.S. hypothesized a causal link

between the vaccinations that took place on October 1, 2007 and his subsequent

diagnosis of epilepsy, although petitioner raised this issue in various treatment

settings.

Unfortunately, two elements of the discharge plan developed on October 16,

2007 were not accomplished. S.S. stopped taking his anti-seizure medications and

he was not seen for a neurological follow-up. Instead, S.S. was seen again in the

emergency room, on December 9, 2007, for seizure activity of far greater severity

than the seizure activity experienced on October 15, 2007. Hearing Transcript

(Tr.) at 13, 66, 83-84, 95-96, 98, 110.

S.S. was kept in the hospital for two days to bring his seizures under control.

Upon follow-up, he was diagnosed with secondary general epilepsy. Further

doctor visits followed, both scheduled and emergent in nature. Several changes to

his seizure medications were made. During the next few months, S.S. was noted to

have developmental delays and hyperactivity problems. Although S.S. eventually

controlled his seizures through medication, he has been placed in a special

education program.

II. Procedural History

Ms. Dodd filed a petition under the Vaccine Act on September 4, 2009

alleging that the vaccinations S.S. received on October 1, 2007 caused S.S. to

develop epilepsy and developmental delays. Pet.’s Mot. at 1-2. Petitioner retained

Dr. Marcel Kinsbourne as an expert while respondent retained Dr. John T.

MacDonald; both physicians filed expert reports regarding the petition. Upon

request, the Chief Special Master allowed petitioner to file a supplemental expert

report from Dr. Kinsbourne.

A hearing was scheduled to be held in Boston, Massachusetts on March 18,

2011. Petitioner had thus far relied upon fourteen medical articles; respondent had

7

/ The left-sided postictal paralysis was not complete – his condition was also described

as left-sided hemiparesis or weakness, which resolved before S.S. was discharged. See Ex. 3 at

167, 178. The term “postictal” refers to the post-seizure state.

4

relied upon three medical articles. In her pre-hearing order, the Chief Special

Master required that each party denote the significance of any medical articles

relied upon by that party:

Any party wishing to rely upon a medical article is

directed to file simultaneously a short explanation of the

proposition that the article is intended to support. . . .

This explanation may be encompassed in a pre-hearing

memorandum, or may appear in a separate document.

Order of January 18, 2011. Respondent provided the required explanation;

petitioner did not:

Dr. Kinsbourne, as S.S.’s medical expert, is more

qualified than petitioner’s counsel to explain the medical

articles that support his medical theory. As such, Dr.

Kinsbourne will address the proposition that the medical

articles intend to support at the hearing.

Pet.’s February 28, 2011 Resp. to January 18, 2011 Order, at 4 n.4.

The hearing transcript shows that each party had ample opportunity to elicit

testimony from the experts. A post-hearing briefing schedule was established.

Petitioner filed her brief first (Pet.’s Post-Hr’g Br.), respondent filed the next brief

(Resp.’s Post-Hr’g Br.), and petitioner concluded the briefing (Pet.’s Post-Hr’g

Reply). The Chief Special Master’s decision was filed on June 5, 2013, and was

later redacted to remove the child’s name and birth date and re-captioned to reflect

the name change of petitioner. See supra note 2.

The Chief Special Master held that petitioner had failed to establish a prima

facie case of vaccine injury causation. In her motion for review, petitioner has

raised four specific objections to the decision denying her compensation under the

Vaccine Act. The holdings of the Chief Special Master denying petitioner

entitlement to compensation, and the objections thereto, will be addressed in the

Analysis section of this opinion. The court turns now to the standard of review

applicable here.

DISCUSSION

5

I. Standard of Review

This court has jurisdiction to review the decision of a special master in a

Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court

of Federal Claims reviews the decision of the special master to determine if it is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.

Cir. 2008) (quoting 42 U.S.C. § 300aa-12(e)(2)(B) and citing Althen v. Sec’y of

Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir. 2005)); see also Hanlon v.

Sec’y of Health & Human Servs., 191 F.3d 1344, 1348 (Fed. Cir. 1999) (“Under

the Vaccine Act, the Court of Federal Claims may not disturb the factual findings

of the special master unless they are ‘arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.’” (quoting 42 U.S.C.

§ 300aa-12(e)(2)(B))). This court uses three distinct standards of review in

Vaccine Act cases, depending upon which aspect of a special master’s judgment is

under scrutiny:

These standards vary in application as well as degree of

deference. Each standard applies to a different aspect of

the judgment. Fact findings are reviewed . . . under the

arbitrary and capricious standard; legal questions under

the “not in accordance with law” standard; and

discretionary rulings under the abuse of discretion

standard.

Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed.

Cir. 1992).

The arbitrary and capricious standard of review is used to consider factual

findings by the special master. Id. The scope of this review is limited, and highly

deferential. Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed.

Cir. 2000); Burns by Burns v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d

415, 416 (Fed. Cir. 1993). “If the special master has considered the relevant

evidence of record, drawn plausible inferences and articulated a rational basis for

the decision, reversible error will be extremely difficult to demonstrate.” Hines ex

rel. Sevier v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 1518, 1528 (Fed.

Cir. 1991); see also Burns, 3 F.3d at 416. This court’s review of the fact findings

6

of a special master under the arbitrary and capricious standard is “well understood

to be the most deferential possible.” Munn, 970 F.2d at 870 (citations omitted).

When the court’s review of a special master’s decision involves statutory

construction or other legal issues, the “not in accordance with law” standard is

applied. Hines, 940 F.2d at 1527. The third standard of review, abuse of

discretion, is applicable when a special master excludes evidence or otherwise

limits the record upon which she relies. See Munn, 970 F.2d at 870 n.10.

II. Burden of Proof in an Off-Table Vaccine Injury Case

There are two distinct avenues for recovery under the Vaccine Act. See 42

U.S.C. § 300aa-11(c). First, a petitioner who has received a vaccination listed on

the Act’s Vaccine Injury Table (Vaccine Injury Table or Table) may recover for

any resulting illness, disability, injury or condition that is also listed on the Table,

or a significant aggravation thereof. Id. § 300aa-11(c)(1)(C)(i); see also id.

§ 300aa-14(a); 42 C.F.R. § 100.3 (2012) (current version of the Vaccine Injury

Table). Second, a petitioner who has received a vaccination listed on the Table,

but whose vaccine-related injuries do not meet Table requirements, may recover

under the “off-Table” theory of recovery. 42 U.S.C. §§ 300aa-11(c)(1)(C)(ii),

300aa-13(a)(1)(A). Under this theory, a petitioner may make out a prima facie

case of entitlement to compensation by showing, by a preponderance of the

evidence, that a Table vaccine actually caused the petitioner to sustain an illness,

disability, injury or condition which is not listed on the Table, or that first appeared

outside the time limits set by the Table. 42 U.S.C. § 300aa-11(c)(1)(C)(ii); Pafford

v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006).

A petitioner such as Ms. Dodd who hopes to recover for an off-Table claim

must establish causation-in-fact. See 42 U.S.C. §§ 300aa-11(c)(1)(C)(ii), 300aa-

13(a)(1); Pafford, 451 F.3d at 1355. This requires “preponderant evidence both

that [the] vaccination[] [was] a substantial factor in causing the illness, disability,

injury or condition and that the harm would not have occurred in the absence of the

vaccination.” Pafford, 451 F.3d at 1355 (citing Shyface v. Sec’y of Health &

Human Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)). The vaccination “must be a

‘substantial factor’” in bringing about the injury, but “it need not be the sole factor

or even the predominant factor.” Id. at 1357 (quoting Shyface, 165 F.3d at 1352-

53).

The United States Court of Appeals for the Federal Circuit has summarized

7

the evidentiary burden associated with causation-in-fact in off-Table cases. The

Federal Circuit explained that a petitioner who wishes to demonstrate that a

vaccination brought about an injury must present:

(1) a medical theory causally connecting the vaccination

and the injury; (2) a logical sequence of cause and effect

showing that the vaccination was the reason for the

injury; and (3) a showing of a proximate temporal

relationship between vaccination and injury.

Althen, 418 F.3d at 1278. These three factors required to prove causation-in-fact in

Vaccine Act cases are now commonly referred to as the three Althen prongs.

As to the evidence related to the three factors, “these [Althen] prongs must

cumulatively show that the vaccination was a ‘but-for’ cause of the harm, rather

than just an insubstantial contributor in, or one among several possible causes of,

the harm.” Pafford, 451 F.3d at 1355. Further, “[a]lthough probative, neither a

mere showing of a proximate temporal relationship between vaccination and

injury, nor a simplistic elimination of other potential causes of the injury suffices,

without more, to meet the burden of showing actual causation.” Althen, 418 F.3d

at 1278 (citing Grant v. Sec’y of Dep’t of Health & Human Servs., 956 F.2d 1144,

1149 (Fed. Cir. 1992)). It is likewise critical to recognize that the special master

may not make a finding of causation that is based on the claims of a petitioner

alone, which are not substantiated by medical records or by medical opinion. See

42 U.S.C. § 300aa-13(a)(1). Thus, the presentation of medical records or medical

opinion supporting a claim is a prerequisite to recovery. Id. Only if a petitioner

presents adequate evidence on the three essential aspects of causation, and thus

makes a prima facie case for liability, does the burden shift to the Secretary to

prove, also by a preponderance of the evidence, an alternate cause of the alleged

injury. Althen, 418 F.3d at 1278; de Bazan, 539 F.3d at 1352 (citations omitted).

When a petitioner seeks to demonstrate causation-in-fact by meeting the three

Althen requirements, each of those requirements must be proven by a

preponderance of the evidence. See de Bazan, 539 F.3d at 1351-52.

III. Causation of S.S.’s Epilepsy and Developmental Delays

A. Petitioner Met Her Burden for Althen Prongs One and Three

8

1. Althen Prong One

Althen Prong One requires that “a claimant’s theory of causation . . . be

supported by a reputable medical or scientific explanation.” Broekelschen v. Sec’y

of Health & Human Servs., 618 F.3d 1339, 1351 (Fed. Cir. 2010) (internal

quotations and citations omitted). Here, petitioner proposed a medical theory

based on Dr. Kinsbourne’s expert reports and his testimony at the hearing. Pet.’s

Post-Hr’g Br. at 18-23. Petitioner also asserted that Dr. MacDonald conceded that

certain key elements of that theory were indeed valid. Id. at 23-24.

Simply put, petitioner’s medical theory rests on the assumption that “the

measles component of the MMR vaccine is essentially the same as the wild virus

that leads to . . . measles.” Id. at 19. According to Dr. Kinsbourne, “it would be

logical to conclude that the measles vaccine, a weakened version of the natural

disease, can cause the same types of symptoms and adverse events as the natural

disease,” including seizures and encephalopathies. Id. In turn, seizures and anti-

seizure medication regimens can cause developmental delays and behavior

problems such as hyperactivity, according to petitioner’s expert. Id. at 21-22.

Thus, the measles component of the MMR vaccine, according to this theory, can

cause epilepsy and subsequent developmental delays, even though a precise

biological mechanism has not been identified.

Based on a preponderance of the evidence, the Chief Special Master found

that petitioner had met her burden under Althen Prong One to establish a

“reputable, reliable and biologically plausible” medical theory of causation for

epilepsy and developmental delays. Dec. at 29-30. The analysis of Althen Prong

One provided in the Chief Special Master’s decision is thorough, logical and

detailed. The court reviews this factual finding with great deference. See, e.g.,

Munn, 970 F.2d at 870. Under the standard of review required here, the Chief

Special Master’s holding as to Althen Prong One must be affirmed.8

8

/ The court notes that the government mounted a vigorous challenge to the medical

theory proposed by Dr. Kinsbourne in the Secretary’s post-hearing brief. Resp.’s Post-Hr’g Br.

at 10-18. Nothing in the record before the court establishes that the Chief Special Master’s

ruling on Althen Prong One was arbitrary or capricious. In its brief opposing petitioner’s motion

for review, the government does not renew its attack against Dr. Kinsbourne’s medical theory or

challenge the Chief Special Master’s finding as to Althen Prong One.

9

2. Althen Prong Three

a. Petitioner Met Her Burden of Proof to Establish a

Proximate, Medically-Acceptable Temporal

Relationship

Althen Prong Three “requires preponderant proof that the onset of symptoms

occurred within a timeframe for which, given the medical understanding of the

disorder’s etiology, it is medically acceptable to infer causation-in-fact.” de Bazan,

539 F.3d at 1352. Here, two weeks elapsed between the date of the MMR

vaccination and the onset of S.S.’s seizures. According to petitioner, “two weeks

is an appropriate temporal relationship between the MMR vaccine and a seizure

disorder to occur.” Pet.’s Post-Hr’g Br. at 30. In Dr. Kinsbourne’s first expert

report, he asserted that “[s]eizure onset within two weeks after MMR vaccination is

a well-recognized adverse reaction to this vaccination.” Kinsbourne Report at 2.

As support for this assertion, Dr. Kinsbourne testified that certain medical

articles noted adverse events such as seizures that have occurred in this time-frame

after MMR vaccination. Tr. at 15-16. He also testified that the presence of the

wild measles virus in the blood peaks (peak viremia) during the second week

following exposure. Id. at 25-26, 60-61. Petitioner noted, too, that a five to fifteen

day onset of encephalitis or encephalopathy after MMR vaccination is the time-

frame specified in the Vaccine Injury Table. Pet.’s Post-Hr’g Br. at 31. For all of

these reasons, petitioner asserted that Ms. Dodd had established a “proximate

temporal relationship between the vaccine and the injury” so as to satisfy Althen

Prong Three. Id. at 29.

The Chief Special Master agreed. See Dec. at 32-33 (stating that “petitioner

relied primarily on a proximate temporal relationship which she proved and . . . the

undersigned is persuaded that petitioner has satisfied the . . . third prong[] of the

Althen test”). The Chief Special Master considered the opinion of Dr. Kinsbourne

as to the timing of onset of the alleged vaccine injury and concluded that Ms. Dodd

had proved by a preponderance of the evidence that there was the required

proximate temporal relationship between the MMR vaccination and S.S.’s epilepsy

and developmental delays. See id. at 4, 11-13, 21-22, 24, 32-33. The Chief

Special Master also noted that respondent had not mounted any challenge to

petitioner’s evidence regarding Althen Prong Three. See id. at 28 (“Respondent

does not dispute that petitioner has established a temporal relationship between the

10

administered MMR vaccine and thus, has satisfied the third Althen prong.”). The

court sees no reason, under the deferential standard of review applicable here, to

disturb the Chief Special Master’s finding as to Althen Prong Three.

b. Petitioner Criticizes the Chief Special Master’s

“Failure to Address” the Temporal Relationship

One of petitioner’s four challenges to the Chief Special Master’s denial of

her petition is a critique of the Chief Special Master’s consideration of the

temporal relationship between the MMR vaccination and S.S.’s alleged vaccine

injuries. In petitioner’s view, the Chief Special Master committed reversible error

by not adequately addressing Althen Prong Three, the proximate temporal

relationship prong of the causation analysis. Pet.’s Mot. at 27. It is obvious that

petitioner does not seek to overturn the Chief Special Master’s favorable ruling on

Althen Prong Three; instead, Ms. Dodd appears to attack the weight accorded to

the proximate temporal relationship in the Chief Special Master’s overall causation

analysis.

Perhaps recognizing that her petition depends largely on the proximate

temporal relationship between the MMR vaccination and S.S.’s seizures, Ms. Dodd

has repeatedly emphasized that evidence relevant to one Althen prong can be

applied to the analysis of another Althen prong. See, e.g., Petition at 20 (stating

that “evidence used to satisfy one prong of the test may overlap to satisfy another

prong” (citing Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1326

(Fed. Cir. 2006)); Pet.’s Post-Hr’g Br. at 26 (asserting that Althen Prong Two is

satisfied because, among other reasons, “the symptoms of [S.S.’s] injury occurred

within a medically appropriate time after the MMR vaccine”); Pet.’s Post-Hr’g

Reply at 11 (stating that because petitioner has proven a “scientifically appropriate

temporal relationship between [S.S.’s] MMR vaccine and the onset of his

symptoms [and other elements, she] has satisfied Althen prong 2”); Pet.’s Mot. at

18 (describing the fact “that the onset of symptoms was within an appropriate time

period” as a critical factor in the Althen Prong Two analysis). Petitioner would

have preferred, it appears, that the Chief Special Master had given more weight to

the proximate temporal relationship between the MMR vaccination and the onset

of S.S.’s seizures in her analysis of Althen Prong Two. See Pet.’s Mot. at 18

(asserting that the Chief Special Master “apparently gave no probative value” to

factors such as the proximate temporal relationship between the vaccination and

the alleged injury in her Althen Prong Two analysis), 28 (stating that “the Chief

11

Special Master trivialized the probative significance of . . . an appropriate temporal

relationship between the MMR vaccine and the onset of S.S.’s symptoms”), 29

(alleging that “the existence of an appropriate temporal relationship – not too soon

or too late – is highly probative” for the causation analysis). Although petitioner

concedes that “the existence of a strong

temporal relationship between a vaccine and an injury, by itself, is not proof of

causation,” she apparently disagrees with the significance accorded the proximate

temporal relationship issue by the Chief Special Master in this case. Id. at 29.

Respondent argues that the Chief Special Master afforded adequate attention

to Althen Prong Three, Resp.’s Resp. at 13, and the court must agree. The decision

evinces adequate attention to the chronology of relevant events and to Dr.

Kinsbourne’s arguments regarding the appropriate timing of the onset of symptoms

in this case. See Dec. at 4-6, 11-13, 21-22, 24, 32-33. Petitioner has not cited to

any authority that specifies the degree to which a special master must elaborate

upon the subject of an appropriate temporal relationship when the government has

not contested Althen Prong Three. As for Capizzano, 440 F.3d at 1326, which is

cited by petitioner for the proposition that evidence may overlap between the

Althen prongs, the court finds in that decision no standard which requires a more

exhaustive review of Althen Prong Three and the proximate temporal relationship

issue than that provided by the Chief Special Master in her decision in this case.

Indeed, the Federal Circuit expressly approved a truncated discussion of this prong

when a petitioner had shown a proximate temporal relationship between a

vaccination and an alleged vaccine injury. See Hibbard v. Sec’y of Health &

Human Servs., 698 F.3d 1355, 1364 (Fed. Cir. 2012) (“The special master

acknowledged that the temporal requirement (the third Althen factor) was satisfied

in this case. He therefore had no need to discuss that factor in any detail.”). For

these reasons, the court must reject this particular challenge to the Chief Special

Master’s ruling on entitlement.

B. Althen Prong Two

The court now addresses two separate but intertwined challenges to the

Chief Special Master’s ruling on Althen Prong Two, i.e., that the petitioner failed

to provide “a logical sequence of cause and effect showing that the vaccination was

the reason for the injury.” 418 F.3d at 1278. First, petitioner argues that the new

onset seizures on October 15, 2007 were severe enough to lower S.S.’s seizure

threshold, giving rise to more severe seizures on December 9, 2007, and that the

12

Chief Special Master’s holding to the contrary, in light of “overwhelming”

evidence, was arbitrary, capricious, an abuse of discretion and contrary to law.

Pet.’s Mot. at 15, 23. Second, petitioner attacks the Chief Special Master’s

conclusion that “‘[o]ther than [the] temporal relationship, there is nothing to

suggest that the seizures S.S. suffered on October 15, 2007[] were caused by the

measles vaccine.’” Id. at 23 (quoting Dec. at 32). This conclusion, according to

petitioner, is illogical in the face of the evidence relevant to Althen Prong Two that

should have been weighed differently by the Chief Special Master. Id. at 26-27.

1. Ruling Regarding the Alleged Lowering of S.S.’s Seizure

Threshold

a. The Chief Special Master’s Finding of Fact

Several portions of the Chief Special Master’s decision address petitioner’s

contention that the October 15, 2007 seizures lowered S.S.’s seizure threshold and

made him more susceptible to the severe seizures he experienced on December 9,

2007.9 First, the Chief Special Master summarized the divergent views of the

experts on this topic. Dr. Kinsbourne, for example, described the new onset

seizures as brief and less serious than those that followed in December of that year.

Dec. at 14-15 (citing Tr. at 22-23, 37). Dr. Kinsbourne nonetheless insisted that

during the October 15, 2007 episode S.S. was in an acute and abnormal

neurological state, a condition which caused lasting damage and which lowered

S.S.’s seizure threshold. Id. at 21 (citing Ex. 20 at 1; Tr. at 65-66, 83-84).

Dr. MacDonald, on the other hand, relied on his current clinical experience

and his understanding of relevant literature to testify that the brief seizures

experienced on October 15, 2007 did not lower S.S.’s seizure threshold, trigger an

acute encephalopathy, cause encephalitis, or result in lasting brain damage. Dec. at

16-18 (citing Tr. at 95-96, 99, 134). Dr. MacDonald noted that the medical records

of this event showed no signs that S.S. experienced anything more than a transient

episode of brief seizures. Id. Although Dr. MacDonald conceded that repetitive

9

/ The court notes that neither petitioner’s post-hearing brief nor petitioner’s post-hearing

reply brief contained any mention of Dr. Kinsbourne’s testimony or opinion that the October 15,

2007 seizures lowered S.S.’s seizure threshold. It is somewhat incongruous that petitioner now

seeks review of the Chief Special Master’s finding of fact regarding an aspect of petitioner’s

case that was presented only indirectly for her consideration.

13

seizures may lower a patient’s seizure threshold, he saw no evidence that S.S.

experienced seizure activity of such a damaging nature on October 15-16, 2007.

Id. at 18 (citing Tr. at 117-18, 134).

The Chief Special Master agreed with the clinical assessment of Dr.

MacDonald and rejected Dr. Kinsbourne’s assertion that S.S.’s seizure threshold

was lowered by the October 15, 2007 seizures. Dec. at 32 (citing Tr. at 113). She

relied on concessions made by Dr. Kinsbourne on cross-examination and on the

testimony of Dr. MacDonald. Id. at 31-32. In addition, the Chief Special Master

stated that Dr. Kinsbourne used circular logic to demonstrate that S.S.’s seizure

threshold was lowered, and that his circular logic was unconvincing. See id. at 22

(“In support of his assertion that the seizures S.S. experienced on October 15,

2007[] led to a lowering of his seizure threshold and caused him to suffer seizure

events on December 9, 2007 (and thereafter), Dr. Kinsbourne relies heavily on the

fact that the later seizures occurred.” (citing Tr. at 83-84)).

The Chief Special Master also discussed the sole medical article (Holmes

article) relevant to this issue that was proffered by petitioner and that was

discussed by the experts during the hearing.10 Dec. at 27-28. She quoted various

statements in the Holmes article that were relevant to the question of whether

S.S.’s seizure threshold could have been lowered by the October 15, 2007 seizures.

Id. at 27. Her analysis of the Holmes article, and of Dr. MacDonald’s testimony

regarding its content, is more thorough than the brief discussion of this article

presented in Dr. Kinsbourne’s report. Compare Dec. at 27-28, with Ex. 18 at 4. In

her pre-hearing submissions, petitioner neglected to explain the significance of the

Holmes article, see Pet.’s February 28, 2011 Response to January 18, 2011 Order,

10

/ Dr. Kinsbourne did not address any specific statements in this article during the

hearing, or reference the article by title or author’s name, but may have alluded to the Holmes

article obliquely in this statement: “And from any number of studies, scientific studies,

including animal models, would show that seizures are capable of lowering seizure thresholds,

which is how many epilepsies get set up.” Tr. at 84. Dr. MacDonald was extensively cross-

examined about the Holmes article. Id. at 115-22. Petitioner’s counsel also cross-examined Dr.

MacDonald about an article (Crino article) that he had attached to his expert report that might

have had some tangential relevance to Dr. Kinsbourne’s lowered seizure threshold hypothesis.

Id. at 113-15. The Chief Special Master did not discuss the Crino article, as this article was not

one of those primarily relied upon by the parties. See Dec. at 22 n.23 (“The parties submitted a

total of 17 articles and studies; only those articles on which the parties appeared to rely most

heavily are discussed in detail . . . .”).

14

at 4 n.4., and in her post-hearing briefing, petitioner failed to cite any testimony

from Dr. Kinsbourne on the general topic of the lowering of seizure thresholds and

failed to cite the Holmes article for any purpose. The Chief Special Master

concluded that the Holmes article, and other articles proffered by petitioner,

provided “little or no evidentiary support for [petitioner’s] theory of causation as

applied to S.S.’s circumstances.” Dec. at 28.

The Chief Special Master therefore made the following finding of fact:

Dr. Kinsbourne admitted that the seizure event S.S.

experienced on October 15, 2007[] consisted of several

“staring spells, each lasting for less than a minute” and a

seizure that lasted a few minutes. Tr. at 37. Moreover,

Dr. Kinsbourne acknowledged that S.S. was “behaving

normally and had no neurological symptoms the day after

his hospital admission, and that this EEG was consistent

with a postictal state and showed no evidence of seizure

activity or brain damage. Tr. at 37-39, 41-42. As Dr.

M[a]cDonald testified, and the undersigned similarly

finds, S.S.’s brief seizure and staring spells on October

15, 2007[] were not of the prolonged and repetitive

nature needed to lower S.S.’s seizure threshold. Tr. at

113.

Id. at 31-32.

b. The Parties’ Arguments Regarding the Chief Special

Master’s Finding of Fact

Petitioner’s first contention is that the Chief Special Master

“mischaracteriz[ed]” and “minimize[d]” the severity of the October 15, 2007

seizures experienced by S.S. Pet.’s Mot. at 18, 21. Citing various portions of the

record, petitioner asserts that the “seizure period . . . extend[ed] over 3 hours.” Id.

at 19-20. Petitioner also cites to Dr. Kinsbourne’s testimony, the Holmes article,

the Sutula article (not discussed during the hearing), and certain alleged

“concessions” of Dr. MacDonald. Id. at 21-23. Describing this cited evidence as

“overwhelming,” Ms. Dodd asserts that the Chief Special Master’s finding that the

October 15, 2007 seizures did not lower S.S.’s seizure threshold cannot withstand

15

review.

Respondent counters that there was ample evidence in the record to support

the Chief Special Master’s finding of fact regarding the duration of the October 15,

2007 seizures and the improbability that these new onset seizures lowered S.S.’s

seizure threshold. Resp.’s Resp. at 10-11. The government notes, in particular,

that there is no real dispute as to the events of October 15, 2007 and the brief

duration of each seizure experienced by S.S. that evening. Id. at 11-12.

Respondent also notes that the Sutula article was not discussed by either expert

during the hearing, and that the Holmes article was not discussed by Dr.

Kinsbourne at the hearing; for these reasons respondent argues that petitioner has

no reason to complain that the Chief Special Master agreed with Dr. MacDonald,

the only expert who testified about specific statements in the relevant scientific

literature in the record. Id. at 12. Finally, the government argues, the so-called

“concessions” of Dr. MacDonald are better described as testimony taken out of

context. Id.

The issue of the Chief Special Master allegedly ignoring Dr. MacDonald’s

alleged concessions, Pet.’s Mot. at 23, is quickly resolved. The court agrees with

respondent that “Dr. MacDonald was unequivocal in his testimony that S.S.’s brief

seizures on October 15, 2007[] were not sufficient to lower his seizure threshold.”

Resp.’s Resp. at 12. Dr. MacDonald’s testimony was accurately summarized by

the Chief Special Master in this regard. Dec. at 32 (citing Tr. at 113). The alleged

“concessions” of Dr. MacDonald cited by petitioner concern his testimony that

seizures can, in some instances, lower seizure thresholds, and that S.S.’s October

15, 2007 and December 9, 2007 seizure episodes might have been related. Tr. at

110-12. The Chief Special Master’s decision adequately takes this testimony into

account in her analysis of Althen Prong Two. Dec. at 27, 31-32.

c. The Chief Special Master’s Finding of Fact Survives

Review

The Chief Special Master thoroughly analyzed petitioner’s causation

arguments as they could be applied to S.S.’s alleged injury, as well as the evidence

of record. At one point, she described Dr. Kinsbourne’s theory of causation as

“cobbled” together. Dec. at 22. At another point, she described the evidentiary

record as “not close” to meeting petitioner’s burden regarding Althen Prong Two.

Id. at 33. Here, as to whether the October 15, 2007 seizures experienced by S.S.

16

lowered his seizure threshold, the court finds nothing in petitioner’s motion for

review, or in the underlying record in this case, to disturb the Chief Special

Master’s finding of fact. The court defers, as it must, to the Chief Special Master’s

rational weighing of the evidence. E.g., Munn, 970 F.2d at 870. It was not, on

this record, arbitrary or capricious to find that “S.S.’s brief seizure and staring

spells on October 15, 2007[] were not of the prolonged and repetitive nature

needed to lower S.S.’s seizure threshold.” Dec. at 32.

Finally, tucked away in a footnote at the end of the argument section of her

brief devoted to petitioner’s challenge to this aspect of the Chief Special Master’s

decision, Ms. Dodd contends that the Chief Special Master inappropriately

required petitioner to “prove the precise mechanism of [S.S.’s] injury, [and thus]

elevated [her] proof requirement and violated established Federal Circuit

precedent.” Pet.’s Mot. at 23 n.14 (citing Knudsen by Knudsen v. Sec’y of Dep’t of

Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)). Petitioner’s argument

fails because the Chief Special Master did not deny the petition based on

petitioner’s failure to identify a precise mechanism of causation.11 Instead, the

Chief Special Master tested the proposed mechanism of causation identified by

petitioner’s expert and found that the proposed mechanism, as applied to the facts

of S.S.’s seizures on October 15, 2007 and December 9, 2007, failed to provide a

logical sequence of cause and effect. See Dec. at 31 & n.28 (holding that “the

theory advanced by Dr. Kinsbourne is not supported by the facts of this case . . .

[because] the evidence of record is insufficient to show” a lowering of S.S.’s

seizure threshold). The court finds that the Chief Special Master neither

impermissibly heightened petitioner’s burden of proof nor violated established

Federal Circuit precedent. See, e.g., Hibbard, 698 F.3d at 1364 & n.2 (noting that

a failure to substantiate a critical step in the logical sequence of cause and effect

proposed by the petitioner’s expert is equivalent to a failure to prove Althen Prong

Two by a preponderance of the evidence); Moberly v. Sec’y of Health & Human

Servs., 592 F.3d 1315, 1324 (Fed. Cir. 2010) (rejecting a “proposed mechanism” of

causation because the petitioner’s expert “conceded that there was no evidence in

the record suggesting that the proposed mechanism was at work in [that] case”).

11

/ Indeed, the Chief Special Master cited Knudsen for the rule of law relied upon by

petitioner for her argument. See Dec. at 30 (citing Knudsen, 35 F.3d at 549). This binding

precedent holds that “to require identification and proof of specific biological mechanisms [of

causation] would be inconsistent with the purpose and nature of the vaccine compensation

program.” Knudsen, 35 F.3d at 549.

17

Ms. Dodd has shown no error of law in the Chief Special Master’s analysis of

Althen Prong Two in this case.

2. Ruling Regarding a Logical Sequence of Cause and Effect

Linking the Alleged Injury to the MMR Vaccination

a. The Chief Special Master’s Finding of Fact

The court now turns to another link in the logical sequence of the cause and

effect argument proffered by petitioner, i.e., the proposition that the measles

vaccine caused S.S.’s October 15, 2007 new onset seizures. The Chief Special

Master conducted a painstaking review of the record and engaged in a thorough

analysis of the parties’ arguments in this regard. Her decision on entitlement

includes a detailed chronology of relevant events, including a discussion of S.S.’s

childhood illnesses, his vaccinations on October 1, 2007, his symptoms a week

later, his symptoms on October 15-16, 2007, and medical records pertinent to the

onset of seizures and subsequent treatment. Dec. at 5-10 & nn.6-7, 10-11. The

opinion of each expert as to a causal link between the vaccination and alleged

injury is explained in detail, and the differences in expert opinions are presented in

an objective, balanced, and well-organized analysis. Id. at 11-18. The Chief

Special Master correctly cites the governing law regarding petitioner’s burden of

proof on causation and applies this precedent to the facts in the record.

In her decision, the Chief Special Master correctly concludes that the logical

sequence of cause and effect asserted by petitioner depends on two critical links:

first, the measles vaccine caused the October 15, 2007 seizures; second, the

October 15, 2007 seizures lowered S.S.’s seizure threshold which led to his

epilepsy and developmental delays, as discussed supra. Dec. at 21-22, 31-32. In

addition to medical records, expert reports and expert testimony, the Chief Special

Master reviewed the medical literature most heavily relied upon by the parties. Id.

at 22-27. These articles, for the most part, provide little support for the causation

theory presented by Ms. Dodd, because, in the words of the Chief Special Master,

“the literature petitioner filed does not pertain to the factual circumstances of S.S.’s

case.” Id. at 28.

The court will not reproduce every finding relevant to this controversy, but

provides here the most persuasive and determinative findings of the Chief Special

Master in that regard. “S.S.’s treating physicians did not know the cause of S.S.’s

18

epilepsy.” Dec. at 31 (citing Ex. 14 at 17). Additionally, an alternative

explanation for S.S.’s epilepsy was a “likely genetic predisposition to have a

seizure condition” because of a family history of epilepsy.12 Id. at 32. Much of the

evidence of a causal link between the measles vaccine and seizures in the literature

relied upon by petitioner was specific to seizures accompanied by fever, not

afebrile seizures, as was the case here. Id. at 24, 27-28, 32. Furthermore, Dr.

Kinsbourne’s theory of causation relied upon a connection between peak viremia

and seizures, although the typical symptoms of peak viremia were not present at

the time of S.S.’s new onset seizures. Id. at 22, 32.

Based on these findings, and others related to the literature relied upon by

the parties, the Chief Special Master concluded that although “the measles vaccine

can cause seizures in rare circumstances involving fever o[r] gastrointestinal illness

. . . , petitioner has failed to prove, and the evidence of record is insufficient to

show, that [such an] event occurred in this case.” Dec. at 31. The Chief Special

Master summarized her analysis by stating that “[o]ther than the temporal

relationship, there is nothing to suggest that the seizures S.S. suffered on October

15, 2007[] were caused by the measles vaccine.” Id. at 32. According to the Chief

Special Master, a proximate temporal relationship and a “dubious claim that no

other potential cause for S.S.’s injuries existed” are not sufficient to meet Ms.

Dodd’s burden to show a logical causal sequence so as to satisfy Althen Prong

Two. Id. at 32-33.

b. The Parties’ Arguments Regarding the Chief Special

Master’s Finding of Fact

As a threshold issue, the court must identify the type of attack petitioner has

mounted against the Chief Special Master’s finding of fact on causation. Although

petitioner’s argument as a whole must properly be characterized as an assertion

that the Chief Special Master’s finding of fact was arbitrary and capricious, see

Pet.’s Mot. at 27 (asserting that the ruling on causation was “illogical”), Ms. Dodd

also asserts that “[t]he Chief Special Master abused her discretion by ignoring

relevant evidence,” id. Petitioner has failed, however, to identify a specific

discretionary ruling of the Chief Special Master, evidentiary or otherwise, which

12

/ Dr. MacDonald opined, both in his expert report and at the hearing, that it was more

likely than not that S.S.’s epilepsy had a genetic basis, not a vaccine-related cause. See Ex. A at

4; Tr. at 101-04, 134.

19

this court could review for abuse of discretion. See, e.g., Munn, 970 F.2d at 870

n.10 (stating that “discretionary rulings [are reviewed] under the abuse of

discretion standard . . . [and this standard] will rarely come into play”).

Having determined that the arbitrary and capricious standard, not the abuse

of discretion standard, applies here, the court notes, at the outset, that any

invitation to re-weigh the evidence is improper:

Clearly it is not then the role of this court to reweigh the

factual evidence, or to assess whether the special master

correctly evaluated the evidence. And of course we do

not examine the probative value of the evidence or the

credibility of the witnesses. These are all matters within

the purview of the fact finder.

Id. at 871. Regrettably, petitioner’s challenge to the Chief Special Master’s fact

finding is indeed a fruitless invitation to this court to re-weigh the evidence

evaluated by the Chief Special Master. Ms. Dodd’s challenge to the Chief Special

Master’s analysis of the link between the MMR vaccination and S.S.’s new onset

seizures offers a catalog of the evidence that, in Ms. Dodd’s view, compels a ruling

in petitioner’s favor.

First, Ms. Dodd emphasizes the “highly probative” nature of the proximate

temporal relationship between S.S.’s MMR vaccination and his new onset seizures,

and cites to testimony of Dr. Kinsbourne in this regard. Pet.’s Mot. at 24-25.

Second, she references the medical literature relied upon by Dr. Kinsbourne as

support for his testimony that the measles vaccine caused S.S.’s October 15, 2007

seizures. Id. at 25-26 (citing Tr. at 15-17, Exs. 18-A, 18-D at 1461, 18-I). Third,

petitioner asserts that the record shows the “absence of an alternative cause” for

S.S.’s seizures. Id. at 26-27. She concludes her invitation to re-weigh the evidence

with a list of the evidence that the Chief Special Master is alleged to have ignored

or evaluated illogically:

[S.S.’s] medical records, the strong temporal relationship

between the vaccine and the symptoms, the absence of an

alternative cause, the medical theory provided by

Dr. Kinsbourne, the scientific literature upon which Dr.

Kinsbourne relies, [and] the concessions made by Dr.

20

MacDonald all demonstrate that it is logical to conclude

that the MMR vaccine caused S.S.’s epilepsy and

developmental delays.

Id. at 27.

Respondent argues that the Chief Special Master’s rulings on causation are

not arbitrary or capricious:

In her Decision, the Chief Special Master properly and

thoroughly considered the record evidence as a whole,

and correctly found that petitioner failed to satisfy her

burden of proving that the measles-mumps-rubella

(“MMR”) vaccine caused her son S.S. to suffer epilepsy,

developmental delay and hyperactivity.

Resp.’s Resp. at 1-2. Respondent asserts, further, that the motion for review

“amounts to nothing more than a disagreement with the Chief Special Master’s

well-supported factual findings.” Id. at 2. The governments notes, in particular,

that Dr. Kinsbourne did not establish that S.S.’s seizures were accompanied by

fever, and did not address the issue of whether or not S.S. was experiencing

gastrointestinal illness at the time of his new onset seizures; thus, Dr. Kinsbourne’s

theory of causation, which relied in part on studies of febrile seizures or seizures

that accompanied gastrointestinal illness, was not persuasive. Id. at 9-10.

Respondent also notes that no treating physician opined that S.S.’s epilepsy or

developmental delays were caused by the measles vaccine. Id. at 11. Thus, in

respondent’s view, the evidentiary record fully supports the Chief Special Master’s

finding of fact on causation.

c. The Chief Special Master’s Finding of Fact Survives

Review

The court has considered the parties’ arguments, the evidence of record and

the thorough evaluation of that evidence that is set forth in the Chief Special

Master’s decision on entitlement. The court finds that the Chief Special Master

“considered the relevant evidence of record, dr[ew] plausible inferences and

articulated a rational basis for [her] decision.” Hines, 940 F.2d at 1528. She

neither ignored relevant evidence nor arrived at illogical conclusions. There is no

21

reversible error in her conclusion that

petitioner has failed to establish a logical sequence of

cause and effect–consistent with her proposed

theory–proving that the measles vaccine S.S. received on

October 1, 2007 did cause his injuries. Thus, petitioner

has failed to satisfy the second prong of the Althen test.

Dec. at 32. Under the deferential standard applicable here, the Chief Special

Master’s ruling on causation is unassailable. Specifically, her analysis with respect

to the second prong of the Althen test demonstrates that the Chief Special Master’s

ruling was neither arbitrary or capricious.

First, the court must agree with respondent that the Chief Special Master

undertook a “thorough evaluation of the medical literature submitted by the

parties.” Resp.’s Resp. at 10. Her analysis of these articles was the foundation for

her reasonable conclusion that while the theory advanced by Dr. Kinsbourne might

support vaccine injury causation in other cases, that theory, and the medical

literature underpinning that theory, did not fit the facts of the onset of S.S.’s

epilepsy. Dec. at 31 & n.28 (citing Hibbard, 698 F.3d at 1362-63). In other

words, the medical literature cited by petitioner did not provide the Chief Special

Master with enough evidentiary support to carry petitioner’s burden on Althen

Prong Two. Id. at 28. The court sees no flaw in this aspect of the Chief Special

Master’s ruling.

Second, the Chief Special Master corrected a misreading of S.S.’s medical

records that was presented in petitioner’s arguments regarding Althen Prong Two.

Petitioner had consistently maintained that S.S.’s treating physicians had observed

a causal connection between his vaccinations and his epilepsy. See, e.g., Pet.’s

Post-Hr’g Br. at 27 (“[S.S.] submits that his treating physicians also associated his

MMR vaccine with his injuries, and provide supporting evidence of causation in

his case.”). The record does not support this contention, and the Chief Special

Master accurately noted that no such causal hypothesis by S.S.’s treating

physicians can be found in his medical records. Dec. at 31. This finding, too, is

sound.

Third, and perhaps most importantly, the Chief Special Master found Dr.

Kinsbourne’s opinion regarding the causation of S.S.’s alleged vaccine injuries to

22

be less than persuasive. She found his causation arguments to lack coherence, to

employ circular logic, and, in the end, to be unsound. Dec. at 21-22. His theory of

causation failed to persuade, at least in part, because of a lack of consistency

between the biological mechanisms he described and the actual onset of S.S.’s

epilepsy. Id. at 31-32. The court defers to the Chief Special Master’s weighing of

the opinion of Dr. Kinsbourne, Munn, 970 F.2d at 870, and finds no error in this or

any other aspect of her ruling regarding Althen Prong Two.

C. Evidence of Alternative Causation

Finally, Ms. Dodd argues that the “Chief Special Master’s determination that

S.S. had ‘a likely genetic predisposition to have a seizure condition’ because

‘S.S. had a maternal great aunt with epilepsy’ is arbitrary, capricious, and not in

accordance with law.” Pet.’s Mot. at 29 (capitalization altered). This challenge to

the ruling on entitlement can be divided into two sub-parts. First, indulging in the

assumption that petitioner has proven her prima facie case of causation, Ms. Dodd

argues that the evidentiary record is insufficient to meet respondent’s burden to

prove alternative causation. See id. at 29 (“Having demonstrated that the petitioner

satisfied the Althen prongs, the burden shifted to the respondent to show S.S.’s

MMR vaccine is unrelated to his seizure disorder and developmental delays.”), 31

(“The respondent clearly failed to prove that an alternative cause of S.S.’s injury

existed.”). Here, however, the Chief Special Master found that petitioner did not

meet her burden to establish a prima facie case of causation, a finding that has been

affirmed by this court, see supra; thus, the burden to prove alternative causation

has not shifted to respondent. E.g., Doe 11 v. Sec’y of Health & Human Servs.,

601 F.3d 1349, 1358 (Fed. Cir. 2010) (citations omitted). Any speculation of

petitioner as to whether on this record the government has proved alternative

causation for S.S.’s epilepsy and developmental delays is irrelevant.

Second, petitioner argues that the Chief Special Master’s evaluation of the

evidence of alternative causation is arbitrary and capricious. See Pet.’s Mot. at 30

(“[T]here is no explained, known, or documented evidence in the record indicating

that S.S. has an underlying genetic disorder that caused his epilepsy.”) (emphasis

removed); 32 (“A thorough review of the evidence in S.S.’s case clearly

demonstrates the [ab]sence of any explained, known, or documented evidence in

the record indicating an alternative cause to S.S.’s seizure disorder and subsequent

developmental delays.”). The court must disagree. A family history of epilepsy

was documented in S.S.’s medical records. See supra note 6. Dr. MacDonald

23

testified that it was his opinion that a genetic disorder was the most likely cause for

S.S.’s seizure disorder and developmental delays. Tr. at 134; see also Ex. A at 4

(opining in his expert report that S.S.’s seizure disorder had a genetic basis). The

Chief Special Master’s consideration of this evidence has not been shown to be

arbitrary or capricious. She “considered the relevant evidence of record [and]

dr[ew] plausible inferences.” Hines, 940 F.2d at 1528.

It is important to note that petitioner, attempting to establish a logical

sequence of cause and effect in order to satisfy Althen Prong Two, relied to a great

extent on a proximate temporal relationship between the MMR vaccination and

S.S.’s new onset seizures, as well as an alleged absence of alternative causes.

Pet.’s Post-Hr’g Br. at 26-29; Pet.’s Post-Hr’g Reply at 9-11. It was therefore

within the Chief Special Master’s purview to review evidence regarding alternative

causation:

As this court explained in Walther, when petitioners

attempt to eliminate other possible causes to buttress

their theory of causation, the special master should

evaluate such evidence in determining whether a prima

facie case has been established.

Doe 11, 601 F.3d at 1358 (citing Walther v. Sec’y of Health & Human Servs., 485

F.3d 1146, 1151 (Fed. Cir. 2007) and Pafford, 451 F.3d at 1359). Here, although

there was limited evidence of alternative causation, the Chief Special Master

rationally concluded that this evidence weakened petitioner’s causation arguments.

Furthermore, there is no indication that the Chief Special Master

impermissibly required petitioner to eliminate alternative causes. See Dec. at 32

(“‘[T]he Vaccine Act does not require [a] petitioner to bear the burden of

eliminating alternative causes where the other evidence on causation is sufficient to

establish a prima facie case[.]’” (quoting Walther, 485 F.3d at 1150)). Nor is there

any sign that the Chief Special Master violated restrictions on the type of evidence

that may be considered in the alternative causation inquiry. See Doe 11, 601 F.3d

at 1358 (noting that a special master may make findings on any evidence which

bears directly on the issue of causation (citing de Bazan, 539 F.3d at 1354)). The

court sees no error of law in the Chief Special Master’s consideration of evidence

of alternative causation. Applying the deferential arbitrary and capricious standard

of review to the fact finding of a special master, this court affirms the Chief Special

Master’s findings on alternative causation and rejects petitioner’s final challenge to

24

the ruling denying entitlement.

CONCLUSION

For all of the above reasons, the court holds that the Chief Special Master’s

decision in this case was not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.

Accordingly, it is hereby ORDERED that

(1) Petitioner’s Motion for Review, filed on July 5, 2013, is DENIED;

(2) The decision of the Chief Special Master, filed on June 5, 2013, is

SUSTAINED;

(3) The Clerk’s Office is directed to ENTER final judgment dismissing

the petition; and,

(4) The parties shall separately FILE any proposed redactions to this

opinion, with the text to be redacted clearly marked out and enclosed

in brackets, on or before December 13, 2013.

/s/ Lynn J. Bush

LYNN J. BUSH

Senior Judge

25