Sherril K. Stillwell v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 11-77V

Filed: June 17, 2013

*********************************** PUBLISHED

SHERRIL K. STILLWELL, *

* Influenza (Flu) Vaccine; Acute

Petitioner, * Demyelinating Encephalomyelitis

* (ADEM); Record Evidence Does Not

v. * Support Alleged Injury

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

Sol Ajalat, Ajalat & Ajalat, North Hollywood, CA, for petitioner.

Alexis Babcock, U.S. Dep’t of Justice, Washington, DC, for respondent.

DECISION1

I. Introduction

On February 7, 2011, Sherril Stillwell (petitioner) filed a petition for

compensation under the National Vaccine Injury Compensation Program (the Program),2

1

Because this published decision contains a reasoned explanation for the action in this

case, the undersigned intends to post this decision on the website of the United States

Court of Federal Claims, in accordance with the E-Government Act of 2002 § 205, 44

U.S.C. § 3501 (2006). In accordance with the Vaccine Rules, each party has 14 days

within which to request redaction “of any information furnished by that party: (1) that is a

trade secret or commercial or financial in substance and is privileged or confidential; or

(2) that includes medical files or similar files, the disclosure of which would constitute a

clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Further, consistent with

the rule requirement, a motion for redaction must include a proposed redacted decision.

If, upon review, the undersigned agrees that the identified material fits within the

requirements of that provision, such material will be deleted from public access.

2

The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986,

42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter,

individual section references will be to 42 U.S.C. § 300aa of the Act.

alleging that she suffered from acute demyelinating encephalomyelitis (ADEM) as a

result of an influenza vaccination she received on February 22, 2008.3

Respondent recommended against compensation. Respondent challenged

petitioner’s claim that she developed ADEM. Resp’t’s Report at 7. Respondent further

challenged the vaccine-relatedness of petitioner’s injury. Id.

The parties presented expert opinions in support of their respective positions. Dr.

Marcel Kinsbourne testified for petitioner. Dr. Jeffrey Cohen testified for respondent.

An entitlement hearing was conducted in Washington, D.C., on March 30, 2012.

Thereafter, the parties filed post-hearing briefing. The matter is now ripe for a ruling.

The question here is whether petitioner’s condition can be characterized as

ADEM. The parties and their respective experts focused on this issue in their written

submissions and at hearing. Simply stated, petitioner asserts that she suffers from an

atypical case of ADEM. Respondent disputes that. Although respondent agrees with

petitioner that ADEM can have wide variability in its presentation, respondent contends

that numerous aspects of petitioner’s clinical course are too unusual to merit an ADEM

diagnosis.

As discussed in detail below, the weight of the evidence does not preponderate in

favor of a finding that petitioner suffers from vaccine-related ADEM. Accordingly,

petitioner is not entitled to Program compensation.

II. Factual Background

Petitioner was born on October 25, 1954. Pet’r’s Ex. 1 at ¶1. As a child, she had

rheumatic fever, but fully recovered. Pet’r’s Ex. 4 at 69.4 Her subsequent medical

history was remarkable for smoking, hypothyroidism, gastroesophageal reflux disease,

panic and anxiety disorders, and osteoarthritis of the knees. Pet’r’s Ex. 3 at 165.

Petitioner also suffered from insomnia. Pet’r’s Ex. 5 at 25.

3

In her petition, petitioner alleged she developed encephalomyelitis as a result of an

influenza vaccination. Petition (Pet.) at 3. However, as discussed below, she

subsequently defined her injury as acute demyelinating encephalomyelitis (ADEM).

4

All citations to Exhibits 1-7 refer to the pagination adopted by petitioner at the bottom

right hand corner of each page.

2

On February 22, 2008, petitioner was evaluated for recurrent pain in her right

knee, a discomfort that was attributed to degenerative joint disease. Pet’r’s Ex. 3 at 165.

During this office visit, petitioner was treated with injections of steroids and lidocaine in

each knee. Id. at 168. She also received the subject influenza vaccination. Pet’r’s Ex. 2

at 2.

Petitioner next sought medical treatment two months later, on April 28, 2008.

Pet’r’s Ex. 4 at 161. At that time, she presented with dizziness and unsteadiness. Id. She

reported that she had suffered for one week with vertigo and nausea, for two weeks with

weakness that had worsened, and for three weeks with right ear pain. Id. She further

reported that she had “no energy” and that it had been “very difficult to get out of bed in

[the morning].” Id. Her treating physician, Chierry Anderson Poyotte, M.D., an

internist, diagnosed her with an ear infection (otitis media) and vertigo. Id. at 163.

Two days later, on April 30, 2008, petitioner again presented to Dr. Poyotte

complaining of ongoing vertigo, malaise, and fatigue. Id. at 154. She also complained of

“buzzing [in her] right ear while [lying] on [her] right side.” Id. Dr. Poyotte advised

petitioner “to follow up with her [p]sychiatrist for reevaluation.” Id. at 155.

Six days later, on May 6, 2008, petitioner saw Natalie Ting, a doctor of

osteopathic medicine, with complaints of continuing fatigue and dizziness. Id. at 147.

She reported that she felt dizzy “every moment of every day” for the previous three

weeks and that her dizziness worsened with movement. Id. She also reported “feeling

numb on the right side of her body” during the three week period preceding her office

visit. Id. Observing a “[d]epressed mood and affect[,]” Dr. Ting suspected that

petitioner’s symptoms “[might] have a psych[iatric] origin” because her “[e]xam [was]

not [consistent] with her complaints.” Id. at 148-49.

Three days thereafter, on May 9, 2008, petitioner presented to Kijung Paul Sung,

M.D., an internist, again complaining of ongoing vertigo, dizziness, and fatigue. Id. at

139-40. Petitioner further complained of “partial numbness [on the] right side of her

body.” Id. at 140. Petitioner indicated that she felt “drunk when [she] walk[ed].” Id.

She also demonstrated “decreased sensation to light touch over [the] right [side of her]

face, right upper extremities, and right lower extremities.” Id. at 141. During this visit,

petitioner had a computer tomography (CT) scan and magnetic resonance imaging (MRI)

taken of her brain, the results of which were normal. Id. at 142-43.

At the end of May, petitioner presented to the emergency room complaining of

vertigo, taste disturbance, ataxia, numbness and weakness on her right side, and an

3

inability to find words. Pet’r’s Ex. 4 at 127. She was hospitalized for three days, from

May 27 to May 29, 2008. Id. at 127. She showed “no sign of otitis media.” Id. at 128.

She had a brain and a cervical spine MRI (with and without contrast), the results of which

were normal. Id. at 127. The “etiology of her symptoms [was] unclear,” and she was

advised to see a neurologist on June 9, 2008, and to follow up with her psychiatrist. Id. at

129.

Petitioner presented to David Shaw, M.D., a neurologist, on June 9, 2008. Id. at

114. She related that she had continuing dizzy spells accompanied by a spinning

sensation. Id. She also related that almost two weeks after her hospitalization, she had

developed numbness on the right side of her body, fatigue, general weakness, an unsteady

gait, nausea, blurred vision, decreased taste sensation, and intermittent neck pain. Id. at

114-15. Dr. Shaw’s diagnostic impression was “[p]ossible or probable multiple sclerosis

[(MS)],” but he noted that petitioner’s MRI did not show the “obvious evidence” of the

characteristic lesions that are associated with that condition. Id. at 116. Nonetheless, Dr.

Shaw prescribed copaxone to treat petitioner’s perceived MS. Id.

The next day, on June 10, 2008, petitioner underwent an EEG and a visual evoked

response test, the results of which were normal. Id. at 111, 120. Ten days later, on June

20, 2008, she reported no improvement in her symptoms after a ten-day course of

copaxone. Id. at 104.

Later in the day, petitioner presented to William Miller, M.D., another neurologist.

Pet’r’s Ex. 3 at 155. She complained of “progressive dizziness, imbalance, numbness,

and weakness” that had lasted several weeks. Id. Petitioner indicated her symptoms had

worsened, she had begun to slur her speech, and her legs felt “extremely heavy.” Id.

During this office visit, she commented that on further reflection, “she [had] noticed

several weeks of feeling that [her] socks seemed too tight on [her] legs . . . prior to the

onset of her vertigo.” Id. at 159. Dr. Miller saw “no lesion on [her] MRI to explain [her]

symptoms” and noted that it would be “hard to localize [a] lesion that would explain all

of her symptoms.” Id. at 158. Among the diagnoses Dr. Miller considered were

“neuronitis or other vestibular dysfunction”5 and MS. Id. at 161. Dr. Miller discussed

with petitioner’s family the possibility that petitioner was exhibiting the first

demyelinating event of MS, but he observed that it would be unusual “for symptoms to

5

Neuronitis is “inflammation of one or more neurons.” Dorland’s Illustrated Medical

Dictionary (32d ed. 2012) at 1268 (Dorland’s). Vestibular dysfunction consists of “a

single attack of severe vertigo, usually accompanied by nausea and vomiting . . . [which]

usually improves within a few days.” Id.

4

be so severe without seeing [a] change on [petitioner’s] MRI.” Id. Although the testing

of petitioner’s cerebrospinal fluid (CSF) protein levels showed oligoclonal bands, such

findings were “nonspecific and [could] be seen with viral infections and other etiologies.”

Id. Dr. Miller did not recommend treatment for MS, but he did recommend “following

up with her psychiatrist to make sure treatment of her anxiety [was] maximized as well.”

Id.

On July 8, 2008, petitioner returned to Dr. Shaw. Pet’r’s Ex. 4 at 90. Dr. Shaw

noted that a scheduled MRI of her thoratic spine could potentially confirm a diagnosis of

MS, but opined that because some of her “symptoms . . . [could not] be totally explained

by” the findings on her MRI, “[s]tress and anxiety . . . [could not] be ruled out.” Id. He

also noted that petitioner’s “[m]uscle strength [was] probably normal on all 4 limbs,

although she [could not] stand well and she need[ed] assistance to walk.” Id. at 89.

Petitioner complained of intermittent dizziness, balance problems, and slurred speech.

Id. In addition, she reported numbness on the right side of her face, arm, and leg that had

lasted for over a month. Id.

A second test of petitioner’s CSF was conducted on July 17, 2008, three months

after petitioner first sought treatment for her symptoms. Pet’r’s Ex. 7 at 14-15. That test

revealed five oligoclonal bands, which were suggestive of MS. Id. Subsequently, on

August 2, 2008, an MRI (without contrast) of petitioner’s brain was performed; it showed

“[i]ncreased FLAIR and T2 signal intensity . . . of unclear etiology.” Pet’r’s Ex. 3 at 123.

In the reviewing physician’s assessment, petitioner’s MRI exhibited an “unusual lesion.”

Id. The lesion was indicative of a demyelinating disease that was “[p]robably

inflammatory, [and] atypical.” Id. Petitioner was noted to have non-specific dizziness,

gait disorder, anxiety disorder, mild lymphocytic pleocytosis, and oligoclonal bands. Id.

at 121-24. Dr. Miller did not find a clear etiology for petitioner’s symptoms. Pet’r’s Ex.

4 at 72.

On August 20, 2008, petitioner presented to Christopher Di Stasio, M.D., another

neurologist. Id. at 69. Petitioner was referred to Dr. Di Stasio for an additional opinion

regarding her suspected MS. Id. at 73. She reported that the general weakness in her legs

persisted, but her symptoms of vertigo and numbness on the right side of her body were

improving. Id. She also described a “cold/tingly feeling of the right lower face [and] jaw

with a pulling sensation that radiate[d] down [the] right side of [her] neck into [her]

shoulder . . . [with] episodes of her entire body feeling heavy, difficulty speaking, [and]

feeling as though she [might] faint.” Id. She related that she was using a wheelchair

“for in-home mobility.” Id. Dr. Di Stasio observed that the result of petitioner’s previous

MRIs of the thoracic spinal cord and cervical spine revealed no abnormalities. Id. at 71.

5

He also noted the abnormalities Dr. Miller noted in the results of petitioner’s August 2,

2008 MRI of her brain. Id.

Dr. Miller appears to have consulted with Dr. Di Stasio about the unclear etiology

of petitioner’s condition. Id. at 74. In Dr. Di Stasio’s view, petitioner was suffering from

ataxia. Id. at 71. He “suspect[ed]” her symptoms “[might] represent a post-infectious

immune process.” Id. at 71. He noted that her symptoms had begun around April of

2008, but that she seemed to be getting better slowly. Id.

Petitioner continued to see Dr. Miller for her neurologic problems. On September

8, 2008, Dr. Miller diagnosed her with demyelinating disease that was “prob[ably]

postinfectious,” but was “improving slowly.” Pet’r’s Ex. 3 at 102.

Nearly eighteen months later,6 on March 20, 2010, petitioner had another brain

MRI. Id. at 61. Compared to her August 2, 2008 brain MRI, this image showed

improvement. Id. Dr. Miller reiterated his earlier diagnostic impression that petitioner

was suffering from a demyelinating disease, a probable “monophasic demyelinating

event.” Pet’r’s Ex. 7 at 7. Dr. Miller noted that although petitioner was reporting

“increased weakness now with multiple symptoms,” her “MRI actually look[ed] better.”

Pet’r’s Ex. 3 at 65. He stated that the appearance of new lesions would have been

consistent with a diagnosis of MS, but he did not find any. See id.; see also Pet’r’s Ex. 7

at 6-7.

On April 14, 2010, petitioner presented again to Dr. Sung, who noted that she was

“alert and oriented,” and had “normal sensation and normal strength,” but exhibited

abnormal coordination and an abnormal gait with noticeable shuffling. Pet’r’s Ex. 4 at

56-57.

An MRI of petitioner’s cervical spine (without contrast) was performed on May

23, 2010, to help evaluate petitioner’s worsening gait, as well as the weakness in her arm

and left lower extremity. Pet’r’s Ex. 7 at 4. Petitioner’s problems with speech continued

until June 2010. See Pet’r’s Ex. 3 at 12. Her problems with coordination, balance, and

walking continued through July 2010. See id. at 1.

On July 30, 2010, petitioner returned to Dr. Sung complaining of body pain that

lasted nearly six months. Pet’r’s Ex. 4 at 22-24. Dr. Sung diagnosed petitioner with,

6

Petitioner did not submit any medical records from the year 2009, presumably because

“[s]he lost her job and then lost her . . . insurance [with Kaiser] for one year,” Pet’r’s Ex.

4 at 53, and thus, had no appointments with doctors during that time.

6

among other things, a demyelinating disease of the central nervous system and

fibromyalgia. Id. at 25. The pain associated with her apparent fibromyalgia persisted

over the next three months, through November 2010. See id. at 4.

A few months later, on February 7, 2011, petitioner filed a vaccine claim.

Petitioner did not submit any records thereafter that speak to her current condition.

As reflected in the opinions of the parties’ experts, the parties disagree about the

nature of petitioner’s condition and its vaccine-relatedness. Before evaluating

petitioner’s claim, the undersigned turns first to summarize the opinions of the experts.

A. Dr. Marcel Kinsbourne, Petitioner’s Offered Expert

Petitioner filed an expert report from Dr. Marcel Kinsbourne, a neurologist, to

support her claim.7 Pet’r’s Ex. 8. Dr. Kinsbourne holds medical licenses in the United

Kingdom, Canada, North Carolina, the Commonwealth of Massachusetts, and the

Commonwealth of Virginia. ECF Doc. No. 26, filed Mar. 28, 2012, at 1. He has held

numerous teaching positions and hospital appointments in various capacities at

universities in each of the aforementioned locations. Id. at 1-2. Additionally, he has

authored and edited many medical articles, books, and medically-related literature over

his lengthy career as a neurologist. Id. at 5-34.

Dr. Kinsbourne is not a currently practicing clinician; he has not had an active

clinical neurology practice since 1980. Tr. 61-62. Because his work since 1981 has

focused on behavioral disorders, he has not treated a patient with ADEM since 1980. Tr.

62. Before then, he saw “quite a few cases of ADEM.” Tr. 62.

Dr. Kinsbourne describes ADEM as “an immune-mediated demyelinating disorder

of the central nervous system [(CNS)]” that “commonly presents acutely, with multifocal

neurological findings, including motor deficits.” Pet’r’s Ex. 8 at 6. Dr. Kinsbourne

7

Petitioner filed the medical literature on which Dr. Kinsbourne relied as attachments to

his initial expert report, Pet’r’s Ex. 8, on a compact disc. See ECF Doc. No. 12, filed

May 10, 2011. The 602 pages of the medical literature were divided into eight separate

PDF files, seven of which contained more than one medical article. See id. at 2.

Petitioner did not provide exhibit numbers for the PDF files or the separate articles.

Thus, all citations to the medical literature referenced in Dr. Kinsbourne’s initial expert

report correspond to petitioner’s “Index of References” found in her “Notice of Filing of

CD,” see id., and the pinpoint page cites refer to the page numbers adopted by petitioner.

7

opined that as a result of receiving the influenza vaccine, petitioner developed “a variant

of ADEM,” marked by “[a] subacute onset.” Id.

Dr. Kinsbourne acknowledged that in 2011, the Institute of Medicine (IOM) found

the evidence insufficient to establish a causal relationship between receipt of a flu

vaccine and the onset of ADEM.8 Tr. 78. But, he pointed to the findings of the 2009

Lapphra report,9 which were suggestive of a causal relationship between the administered

flu vaccine and the onset of neurologic injuries. Tr. 80-81. Dr. Kinsbourne also pointed

to a chapter from the well-regarded textbook of Merritt’s Neurology,10 stating that

vaccine-induced ADEM may be a possbility when neurologic signs develop within four

to twenty-one days after vaccination. Tr. 86.

Adverting to the mention of a causal association between various vaccinations

(including flu) and ADEM in the medical literature, Dr. Kinsbourne insisted that,

“although rare, [this causal link] is well recognized.” Pet’r’s Ex. 8 at 7 (citing Pet’r’s Ex.

8-6 at 500, Hiroshi Shoji & Mashahide Kaji, The Influenza Vaccination and Neurological

Complications, 42:2 The Japanese Soc’y of Internal Med. 1 (2003)).

He posited that the flu vaccine can cause ADEM by inducing an autoimmune

response through molecular mimicry. Id. at 9. He explained that ADEM occurs when

“autoreactive cells enter the [central nervous system] during immune surveillance and . . .

encounter homologous myelin protein [to] culminat[e] in a destructive autoimmune

process in the [central nervous system].” Id. at 10. He added that the flu vaccine can

cause ADEM through another immunologic mechanism of “bystander activation of

autoreactive immune T cells.” Id. This process can occur together with and augment the

8

Institute of Medicine, Adverse Effects of Vaccines: Evidence and Causality 308

(Kathleen R. Stratton et al. eds., 2011). Dr. Kinsbourne cited this report in his

supplemental expert report, see Pet’r’s Ex. 9 at 6, but petitioner did not file it as an

exhibit.

9

Pet’r’s Ex. 8-4 at 383, Keswadee Lapphra et al., Adverse Neurologic Reactions After

Both Doses of Pandemic H1N1 Influenza Vaccine With Optic Neuritis and

Demyelination, 30:1 The Pediatric Infectious Disease J. 84 (2009).

10

The chapter, Viral Infections, in the textbook Merritt’s Neurology (L.P. Rowland ed.,

2005), was authored by Burk Jubelt and James R. Miller. See Pet’r’s Ex. 8-3 at 310.

The parties interchangeably referred to the textbook chapter as either “Jubelt” or

“Merritt’s.”

8

effect of molecular mimicry. Id. Because there was no evidence of an “event[] . . .

capable of causing or triggering ADEM”11 that occurred within the same time frame, id.

at 12, Dr. Kinsbourne opined that petitioner’s “ADEM variant was caused by an immune-

mediated reaction to [her] influenza vaccine.” Id. at 13.

Dr. Kinsbourne averred that the onset of petitioner’s ADEM began

“[a]pproximately four weeks after” her February 22, 2008 influenza vaccination, and

“progressed for several months before it stabilized.” Id. at 5. He stated that petitioner’s

medical records “showed changes compatible with immune activation” in her

cerebrospinal fluid and her “[t]reating physicians considered her illness to be

inflammatory and postinfectious in nature, but atypical.” Id. Dr. Kinsbourne conceded

that none of petitioner’s physicians treated her specifically for ADEM, but he claimed

that their treatment of petitioner nonetheless “implied [that her inflammatory condition]

was immune[-]mediated” and would respond to the administration of cortical steroids, a

prescriptive course that would have been consistent with a finding of ADEM. Tr. 92.

Dr. Kinsbourne relied, in part, on the 2007 Sejvar article12 to support his opinion

that petitioner suffered from ADEM. See Tr. 30, 50-55, 156. This article set forth “firm

guidelines for the diagnosis of ADEM for the specific purpose of assisting in the

evaluation of questions of vaccine injury.” Tr. 30. It outlined a number of diagnostic

criteria for ADEM that Dr. Kinsbourne posited were applicable in this case, including:

(1) a single brain lesion; (2) trouble finding words; (3) cranial nerve abnormalities; (4)

motor weakness; (5) sensory abnormalities; (6) ataxia and gait dysfunction; and (7) arm

tremors. Tr. 53 (citing Pet’r’s Ex. 9-1 at 8, the 2007 Sejvar article). He asserted that

petitioner had exhibited five of the nine criteria discussed in the article—“decreased

arousability, aphasia, motor weakness, sensory abnormalities, and ataxia,” Pet’r’s Ex. 9 at

1-2, and he observed that a proper diagnosis of ADEM requires only one of the listed

criteria. Tr. 53.

The 2007 Sejvar article also identified MRI findings of diffuse or multifocal white

matter lesions as necessary criteria for an ADEM diagnosis. Tr. 75-76. Dr. Kinsbourne

11

Dr. Kinsbourne opined that petitioner’s ear infection had no relation to her vertigo or

any of her other symptoms. Tr. 94-95.

12

Pet’r’s Ex. 9-1, James J. Sejvar et al., Encephalitis, myelitis, and acute disseminated

encephalomyelitis (ADEM): Case definitions and guidelines for collection, analysis, and

presentation of immunization safety data, 25 Vaccine 5771 (2007). The parties

interchangeably referred to this article as the “Sejvar article” and the “Brighton Group”

article.

9

acknowledged that petitioner’s lesion was not multifocal, Tr. 75-76, but he asserted that

the description of petitioner’s MRI findings was consistent with a diffused lesion. Tr. 76.

As further evidence of the vaccine-relatedness of petitioner’s injury, Dr.

Kinsbourne pointed to: (1) the lesion detected on her brain stem; (2) the subacute onset of

her disorder; (3) the presence of oligoclonal bands in her cerebrospinal fluid (CSF) test

results; and (4) the medically acceptable four-week interval between her vaccination and

the onset of her ADEM. Pet’r’s Ex. 8 at 10-11; see also Tr. 22-25. Although Dr.

Kinsbourne admitted that “some features of [petitioner’s] case are . . . not typical” for

ADEM, he urged that “her condition nonetheless fits within the bounds of [an] ADEM

diagnosis.” Pet’r’s Ex. 9 at 1; see also Tr. 38-39 (Dr. Kinsbourne describing petitioner’s

subacute onset as “unusual”).

Dr. Kinsbourne averred that ADEM “‘usually occur[s] a few days or weeks

following vaccine administration or virus-like disease.’” Pet’r’s Ex. 8 at 6 (quoting

Pet’r’s Ex. 8-6 at 511, Institute of Medicine, Influenza Vaccines and Neurological

Complications 36 (Kathleen R. Stratton et al. eds., 1994)). It “is preceded by an

infectious event within a medically reasonable timeframe . . . in the majority of cases.”

Tr. 33. But he denied any such infectious event in this case.

Based on the documented first appearance of petitioner’s symptoms, and her later

recollection that she had “experienced some tightness and numbness around both ankles

and began to have an unaccustomed weakness,” Dr. Kinsbourne posited that the onset of

petitioner’s demyelinating disorder occurred in the third week of March 2008. Tr. 9; see

also Tr. 25. Dr. Kinsbourne described petitioner’s disorder as “monophasic” and non-

progressive; he asserted that her condition was marked by “a rise time, a plateau, and

then a decline of symptoms.” Tr. 21. In his view, petitioner reached her plateau during

her hospitalization at the end of May 2008. Tr. 25.

Citing two articles—the 1999 Singh article and the 2004 Leake article13—Dr.

Kinsbourne insisted that ADEM can have a subacute onset, such as occurred in this case.

Pet’r’s Ex. 9 at 4. Quoting an excerpt from the 1994 IOM report stating that “the

latencies for . . . ADEM [may extend] . . . from 5 days to 6 weeks,” Dr. Kinsbourne took

the position that the onset of ADEM can take up to forty-two days, even though the most

common time frame for the onset of ADEM is one or two weeks. Tr. 34. Although he

13

Pet’r’s Ex. 8-6 at 503, Surendra Singh et al., Acute Disseminated Encephalomyelitis:

MR Imaging Features, 173 AJR 1101 (1999); Pet’r’s Ex. 8-4 at 387, John A.D. Leake et

al., Acute Disseminated Encephalomyelitis in Childhood: Epidemiologic, Clincal and

Laboratory Features, 23:8 Pediatric Infectious Disease J. 756 (2004).

10

recognized that cases with delayed symptom onset were not typical for ADEM, Dr.

Kinsbourne noted that such cases were “clearly mentioned in the literature.” Tr. 38. He

confessed, however, that he was unaware of any reports in the literature involving the

progression of ADEM—as in this case—over the course of multiple months. Tr. 72.

B. Dr. Jeffrey Allen Cohen, Respondent’s Offered Expert

Respondent filed an expert report from Jeffrey Allen Cohen, M.D., a clinical

neurologist, challenging petitioner’s claim. Resp’t’s Ex. A. Dr. Cohen is board certified

in neurology, neuromuscular diseases, and clinical neurophysiology. Tr. 104. He has

treated patients with ADEM, among other disorders. Tr. 104-05. He is a professor of

neurology at Dartmouth Medical School and the chief of the neurology section at

Dartmouth Hitchcock Medical Center. Tr. 102. He treats patients and supervises

neurology students and fellows about four-and-a-half days per week. Tr. 103.

Based on his review of petitioner’s medical records, Dr. Cohen disagreed with Dr.

Kinsbourne’s opinion that petitioner developed ADEM as a result of the flu vaccine she

received. Resp’t’s Ex. A at 1. Although he agreed that petitioner had “an acquired

demyelinating syndrome,” he indicated that—like petitioner’s own treating doctors—he

could not affix a more specific diagnostic label to her condition. Tr. 169-70. He was

clear, however, that petitioner’s “clinical picture was not consistent with a diagnosis of

ADEM.” Resp’t’s Ex. A at 6. He asserted that the medical literature is bereft of “reliable

evidence” showing that the flu vaccine can cause ADEM,” 14 id.; see also Tr. 111, but he

allowed that a vaccination could cause a demyelinating disorder. Tr. 141.

Dr. Cohen outlined the “clinical features of ADEM” with which most subjects

present:

[an] [a]brupt onset; [s]omnolence, confusion, seizures, headache, meningeal

signs,15 fever; [and] 97% [of cases occur in] children and adolescents. Id. [Onset

occurs, at most,] four weeks . . . between [the] inciting event and [the] evolution of

the neurological picture. Id. [Imaging reveals] confluent diffuse areas of

demyelination; a single lesion is not considered to be consistent with the diagnosis

of ADEM. Id. [Typically, an afflicted subject is responsive] to steroid therapy.

14

Dr. Cohen described the causation evidence as “very, very scant.” Tr. 111.

15

Meningeal signs are those exhibited when the meninges have been irritated. See

Dorland’s at 1132. The meninges are the “three membranes that envelop the brain and

spinal cord.” Id.

11

Resp’t’s Ex. A at 2.

Dr. Cohen explained that there is no “specific marker” for ADEM; rather, the

condition requires “a clinical diagnosis . . . supplemented . . . [by] laboratory

examinations.” Tr. 107. Magnetic resonance imaging can assist in making an ADEM

diagnosis because such imaging will show the “predominantly white matter lesions . . .

[and] the . . . diffused multifocal white matter changes” that are characteristic of the

condition. Tr. 108. Dr. Cohen explained that “it would be very unusual” for a patient

with ADEM to show no evidence of diffused, multifocal white matter changes on

imaging. Tr. 108.

Dr. Cohen observed that ADEM is “a disease that is severe and swift in its onset,

reaches a nadir, and then . . . gets better . . . to a great degree . . . . [T]he total course

[between] illness . . . [and] recovery is measured in months, not years.” Tr. 178. In his

clinical experience, the symptoms of ADEM fully manifest, at most, four weeks after the

inciting event. Tr. 155-56.

Dr. Cohen discussed the aspects of petitioner’s medical history that he believed

militated against a finding that she suffered from ADEM. Tr. 152-53, 155; see also

Resp’t’s Ex. A at 2-3, 5. He argued that Ms. Stillwell’s symptoms of “decreased

arousability, aphasia, motor weakness, sensory abnormalities and ataxia;” are not

dispositive of an ADEM diagnosis because they are not “diagnosis-specific neurologic

findings;” such symptoms could occur in patients suffering from, among other injuries,

either a stroke, a traumatic brain injury, or MS. Resp’t’s Ex. C at 1. In Dr. Cohen’s

view, the primary factor that most disfavors a diagnosis of ADEM is the lack of “a

markedly depressed level of consciousness” during the course of petitioner’s illness. Id.

Dr. Cohen noted that other common indicators of ADEM were absent in

petitioner’s case. In particular, he did not see any record of petitioner suffering from

facial weakness, a symptom of ADEM readily noticeable to evaluating medical

personnel. Tr. 113-14. Nor did he see any evidence of lesions on either petitioner’s May

15, 2008 or May 28, 2008 MRIs. Tr. 114. Dr. Cohen observed that the presence of

oligoclonal bands on petitioner’s imaging were features that “can occur in any

demyelinati[ng] disease.” Resp’t’s Ex. A at 5. But “they are more representative of MS

than ADEM.” Id. Dr. Cohen added that the results of petitioner’s June 10, 2008 EEG

were normal. Tr. 114. He testified that if petitioner had the symptoms of impaired

speech or a depressed level of consciousness, corroborative evidence would have

appeared on her MRI or EEG, to confirm an ADEM diagnosis. Tr. 115.

12

Dr. Cohen elaborated that “the area of demyelination [visible on petitioner’s

imaging] was limited to the brainstem which is not the usual location for ADEM.”

Resp’t’s Ex. A at 2. “[N]or was the area of [detected] demyelination as extensive as

[typically occurs] in ADEM.” Id.

Petitioner’s protracted “course [of illness] is [also] very atypical for ADEM—

[which generally] progresses over weeks, not months.” Id. at 2. Dr. Cohen asserted that

a subacute onset “of over four weeks is very unusual.” Id. at 5.

Dr. Cohen explained that as anomalous as petitioner’s symptom onset was, so was

her lack of any appreciable recovery. Id. at 2, 5. These features of petitioner’s

condition—when considered together—were strikingly uncharacteristic of ADEM. Id.

Dr. Cohen disagreed with petitioner’s assertion that her symptoms plateaued

during her hospitalization at the end of May 2008. Tr. 116. He pointed to the decision

by petitioner’s treating physicians to begin a course of steroid therapy as an indication

“that they thought . . . she was getting worse.” Tr. 117. He observed that the steroids had

“no clear benefit” to petitioner. See Pet’r’s Ex. 4 at 73. As further evidence of her

worsening condition, Dr. Cohen noted that petitioner required a wheelchair in August

2008, but she had not needed one previously. Tr. 117. Dr. Cohen explained that the

record evidence of petitioner’s ongoing and unrelenting problems did not support a

finding that she suffered from ADEM because symptoms in “the majority of [ADEM]

patients . . . tend[] to resolve over a period of . . . two, three, four months. [This] doesn’t

mean that they get totally back, but they don’t have [a negative] progression” of their

symptoms. Tr. 119.

Dr. Cohen took notice that none of petitioner’s treating physicians, including Dr.

Miller, the neurologist who treated petitioner for months, considered her demyelination to

be vaccine-related. Resp’t’s Ex. A at 3. He took further notice that “[n]one of

[petitioner’s] treating neurologists ever suggested a possible diagnosis of ADEM nor did

they specifically treat her for ADEM.” Id. at 1; see Tr. 119.

Dr. Cohen remarked that “ADEM is a disease [that appears] almost exclusively . .

. [in] children and adolescents.” Resp’t’s Ex. A at 3. Petitioner was an adult at the time

of her onset, and her records indicate that two months after receiving the flu vaccine, she

was diagnosed with an ear infection. Tr. 135. According to Dr. Cohen, that ear infection

could have caused her early symptom of vertigo. Tr. 135.

Dr. Cohen criticized Dr. Kinsbourne’s reliance on certain medical articles and the

conclusions he drew from them, Resp’t’s Ex. A at 4, principally because the subjects

13

presented with a different clinical picture than did petitioner. Id. at 3 (citing the 2003

Shoji article16; see also Resp’t’s Ex. C at 1 (challenging Dr. Kinsbourne’s reliance on the

2007 Sejvar article).

Dr. Cohen allowed that the clinical manifestations of ADEM may vary, but

insisted that the condition’s onset is almost always acute, involving the “sudden

fulminant” appearance of certain symptoms that were notably absent during petitioner’s

course of illness.17 Tr. 141-42; see also Pet’r’s Ex. 9 at 2 (defining ADEM “as a first

acute fulminant demyelinating episode without any previous neurologic history.”). In his

experience, the claim that petitioner experienced a “sub-acute” onset of neurologic

symptoms at nearly four weeks (or longer) after vaccination exceeded “the spectrum of

[presentation for] ADEM,” particularly when the other distinguishing features of ADEM

were missing. Tr. 145. Dr. Cohen opined that petitioner improperly sought to

characterize her case as one of atypical ADEM. Tr. 122, 160, 164.

III. Discussion

A. The Applicable Legal Standard

To prevail on a non-Table vaccine claim such as petitioner has asserted here,18

petitioner must show that the vaccine was “‘not only a but-for cause of the injury but also

a substantial factor in bringing about the injury.’” Moberly v. Sec’y of Health & Human

Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010) (quoting Shyface v. Sec’y of Health &

Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)). Petitioner must prove her

16

Pet’r’s Ex. 8-6 at 500.

17

Pet’r’s Ex. 9-1 at 2 (“histological confirmation of inflammation of the brain,

encephalopathy, decreased or absent response to the environment, decreased or absent

eye contact, inconsistent or absent response to external stimuli, decreased arousability,

seizure associated with loss of consciousness, visual field defects, fever, EEG findings

consistent with encephalitis, neuroimaging consistent with encephalitis.”).

18

If petitioner alleges an injury listed on the Vaccine Injury Table (Table) that occurred

within the correlative time frame set forth in the Table, petitioner’s vaccine claim is

deemed a Table claim, and a presumption of causation attaches. See § 300aa-14; see also

42 C.F.R. § 100.3. If petitioner alleges an injury that is not listed on the Table, such as

the ADEM injury alleged in this case, the vaccine claim is deemed a non-Table case and

no presumption of causation attaches. Id. Petitioner must therefore satisfy her burden of

proof by proving that her injuries were caused-in-fact by her vaccination. See § 300aa-

13(a)(1)(A).

14

vaccine claim by a preponderance of the evidence. Althen v. Sec’y of Health & Human

Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005).

The preponderant evidence standard under the Vaccine Act requires proof that a

vaccine more likely than not caused the vaccinee’s injury. Id. at 1279; see also In re

Winship, 397 U.S. 358, 371–72 (1970) (Harlan, J., concurring) (quoting F. James, Civil

Procedure, 250–51 (1965)) (a preponderance of the evidence standard requires the trier of

fact to “believe that the existence of a fact is more probable than its nonexistence before

the [special master] may find in favor of the party who has the burden to persuade the

[special master] of the fact’s existence.”). But, this evidentiary standard “allows a

finding of causation in a field bereft of complete and direct proof of how vaccines affect

the human body.” Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1324

(Fed. Cir. 2006). Mere conjecture or speculation will not establish a probability. See

Snowbank Enter., Inc. v. United States, 6 Cl. Ct. 476, 486 (1984).

Petitioner satisfies her burden of showing that the received vaccination brought

about her injury by providing (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 proximate temporal relationship between

vaccination and injury. Althen, 418 F.3d at 1278.

Proof of vaccine causation must be supported by a sound and reliable “medical or

scientific explanation that pertains specifically to the petitioner’s case, although the

explanation need only be ‘legally probable, not medically or scientifically certain.’”

Moberly, 592 F.3d at 1322 (quoting Knudsen v. Sec’y of Health & Human Servs., 35

F.3d 543, 548-49 (Fed. Cir. 1994)); see also Grant v. Sec’y of Health & Human Servs.,

956 F.2d 1144, 1148 (Fed. Cir. 1992) (requiring that the medical theory must support

actual cause).

Petitioner may use circumstantial evidence to prove her case, and “close calls”

regarding causation may be resolved in favor of petitioner. Althen, 418 F.3d at 1280.

Causation can be supported by a treating physician’s opinion that a vaccination was

causally linked to the vaccinee’s injury if the special master finds the opinion to be both

reliable and persuasive. Moberly, 592 F.3d at 1324-25; see also Capizzano, 440 F.3d at

1326. Mere temporal association is not sufficient to prove causation. Grant, 956 F.2d at

1148.

Because the parties dispute the nature of petitioner’s injury here, the undersigned

first applies the analytical framework endorsed in Broekelschen v. Sec’y of Health &

15

Human Servs., 618 F.3d 1339 (Fed. Cir. 2010) and Lombardi v. Sec’y of Health &

Human Servs., 656 F.3d 1343 (Fed. Cir. 2011).

B. The Weight of the Record Evidence Does Not Preponderate in Favor of

a Finding that Petitioner Suffers From ADEM

Petitioner alleges that she suffers from ADEM. See Pet’r’s Ex. 8 at 6. Petitioner’s

own expert, Dr. Kinsbourne, concedes that this case is an “unusual” and “atypical” one

for ADEM. The parties do not dispute that petitioner does suffer from some sort of

neurologic illness, but they disagree on what her illness is. Respondent contends that

petitioner’s condition cannot be characterized as ADEM—or an atypical variant thereof,

as petitioner and Dr. Kinsbourne propose. See Resp’t’s Exs. A, C.

Special masters are required to evaluate the record as a whole. 42 U.S.C. § 300aa-

13. The record here reveals many extraordinary characteristics of petitioner’s

presentation that call into question the appropriateness of a diagnosis of an atypical

ADEM variant. The undersigned is persuaded, on this record, that petitioner’s onset,

symptoms, and the course of her illness diverge in too many respects and by too great a

degree from the presentation of ADEM to even be deemed an atypical form of ADEM.

Yet, petitioner does appear to suffer from another, unspecified illness that has bewildered

her physicians.

Six factors, in particular, weigh against a finding that petitioner has ADEM. The

factors are: (1) the statistical improbability that petitioner has ADEM; (2) the absence of

an ADEM diagnosis from her treaters; (3) the appearance of her brain lesion; (4) the

timing of her symptom onset; (5) the nature and severity of her symptoms; and (6) the

protracted course of her illness and her limited recovery. The undersigned addresses

these factors in turn.

i. The Statistical Improbability That Petitioner Suffers From ADEM

Both Dr. Kinsbourne and Dr. Cohen testified that ADEM primarily afflicts

children and adolescents. See Tr. 29; see also Tr. 38 (Dr. Kinsbourne explaining that

“most of the cases [of ADEM]” occur in children and adolescents); Tr. 175 (Dr. Cohen

agreeing that the vast majority of ADEM cases occur in adolescents or children). The

condition is much less common in adults, but “has been reported in young and elderly

adults.” Pet’r’s Ex. 8-4 at 410.

The statistical likelihood that children, rather than adults, would be afflicted by

ADEM is well-supported by the literature the experts cited. See, e.g., Pet’r’s Ex. 8-2 at

16

195; Pet’r’s Ex. 8-4 at 410; Pet’r’s Ex. 8-3 at 301; Resp’t’s Ex. A-619; Resp’t’s Ex. A-9 at

6. At the time petitioner developed her symptoms, she was nearly 54 years old. This

statistical factor merits consideration, although it is not dispositive. The undersigned

turns now to consider the other factors that inform the likelihood of petitioner’s alleged

ADEM diagnosis.

ii. The Absence of an ADEM Diagnosis From Petitioner’s Treaters

The parties do not dispute, and a review of petitioner’s medical records confirms,

that none of petitioner’s treating physicians diagnosed her with ADEM. See Tr. 69, 177.

Dr. Miller, petitioner’s treating neurologist over the course of several months, did not

once suggest ADEM as a possible diagnosis for her various neurologic symptoms in his

differential diagnoses. Instead, petitioner’s various treating physicians considered MS as

a possible diagnosis, but apparently concluded she did not suffer from it. See Pet’r’s Ex.

3 at 16 (petitioner advised during an office visit dated June 15, 2010, that she had been

“told her symptoms are not [MS] but a demyelinating brain disorder”).

The parties’ experts also considered the treatment petitioner received from her

attending doctors during the course of her emerging illness. Dr. Kinsbourne and Dr.

Cohen agreed that the three days of steroid treatment she received was strongly

suggestive of her physicians’ suspicion that she had MS. Dr. Kinsbourne testified,

however, that three days of administered steroids was not long enough to treat MS. See

Tr. 74-75, 177-78. He maintained that the treatment “is classically used for ADEM” as

well, but confessed that he was “not sure what the [treating physicians’] thought process

was” because they never documented a diagnosis of ADEM for petitioner. Tr. 74. Dr.

Cohen countered Dr. Kinsbourne’s testimony, insisting that a three-day course of steroids

was insufficient to treat the onset of ADEM, Tr. 109, but was appropriate for the

treatment of an acute MS attack. Tr. 109. In Dr. Cohen’s view, petitioner’s symptom

presentation—that is, the onset, type, duration, severity, and course of her symptoms—

was too atypical for a diagnosis of, and treatment for, ADEM. Tr. 154. That none of the

physicians who regularly examined and treated her contemplated the illness that

petitioner now claims she has does not support a finding in her favor.

19

Respondent did not file the medical articles on which Dr. Cohen relied as separate

exhibits. Rather, she filed nine separate PDF files as part of an “Appendix” to his expert

opinion. See ECF Dkt. No. 14, July 19, 2011. All citations to the medical literature

referenced in Dr. Cohen’s report refer to these filings.

17

iii. The Appearance of Petitioner’s Brain Lesion

The parties agree that petitioner’s brain imaging shows demyelination has

occurred in her brainstem and has created a single lesion in the area of her pons. The

lesion was first detected on an MRI conducted in August 2008. See Pet’r’s Ex. 3 at 123-

24; Tr. 72, 117, 164-165.

What the parties dispute is the nature of the lesion. The parties disagree on

whether the lesion is diffuse or focal and whether the appearance of the lesion is

supportive of a finding of ADEM. See Resp’t’s Ex. A at 2.

Dr. Kinsbourne argued that diffuse or multifocal lesions are a necessary criterion

to diagnose ADEM. Tr. 75. He described the lesion detected in petitioner as “single”

and “diffused,” Tr. 22, which—he asserts—would comport with the “classical

descriptions of ADEM” lesions. Pet’r’s Ex. 8 at 10. Dr. Kinsbourne cited six sources to

support this proposition,20 three of which described “ADEM [lesions that were] confined

to the brainstem” only.21 But, he acknowledged that multiple lesions throughout the

central nervous system are a much more common finding in cases of ADEM than is a

solitary lesion located in the brainstem, such as presented in petitioner’s case. Tr. 69.

Nonetheless, Dr. Kinsbourne asserted that petitioner’s presenting symptoms and the

finding of a single diffused lesion in petitioner’s brainstem were sufficient to support a

diagnosis of ADEM. See Tr. 21, 23-24, 37-38, 53-58, 71, 75, 89.

20

Pet’r’s Ex. 8-1 at 1, Helga Almeida Silva et al., Magnetic resonance imaging in five

patients with a tumefactive demyelinating lesion in the central nervous system, 57 Arq.

Neuropsychiatric 921 (1999); Pet’r’s Ex. 8-2 at 194, Jin Hwan Cheong et al., Acute

disseminated encephalomyelitis associated with influenza vaccination, 35 J. Korean

Neurosurgical Soc’y 223 (2004); Pet’r’s Ex. 8-5 at 442, J. I. O’Riordan et al., Long term

MRI follow-up of patients with post infectious encephalomyelitis: evidence for a

monophasic disease, 167 J. Neurological Sciences 132 (1999); Singh et al., supra note 13;

Pet’r’s Ex. 8-2 at 594, A.J. Barkovich, Pediatric Neuroimaging (4th ed. 2005); Pet’r’s Ex.

8-8 at 592, Recai Turkoglu & Erdem Tuzun, Brainstem encephalitis following influenza

vaccination: Favorable response to steroid treatment, 27 Vaccine 7252 (2009).

21

K. Tateishi et al., Acute disseminated Encephalomyelitis Confined to Brainstem, 12 J.

Neuroimaging 67 (2002); Zhengqi Lu et al., Comparative Brain Stem Lesions on MRI of

Acute Disseminated Encephalomyelitis, Neuromyelitis Optica, and Multiple Sclerosis,

PLoS ONE 6(8) (2011); Singh et al., supra note 13.

18

Dr. Cohen cited the 2009 Callen article22 to support his claim that the confinement

of petitioner’s demyelination to the brainstem was notably unusual for ADEM subjects,

who more generally present with extensive lesions on brain imaging. Resp’t’s Ex. A at 2;

see also Tr. 117-118, 161, 164-165 (Dr. Cohen testifying that a solitary lesion located in

the brainstem was atypical for an ADEM subject). The 2009 Callen article provided MRI

“diagnostic criteria . . . that [might] be useful in differentiating children experiencing the

first attack of [MS] from those with monophasic [ADEM].” Resp’t’s Ex. A-2 at 1. The

authors compared and analyzed MRI data from subjects suffering from MS with those

suffering from ADEM and found that the “[d]iffuse, bilateral lesions [more prevalent in

ADEM subjects]. . . emerged as an important differentiating feature between the . . .

groups.” Id. at 6.

Dr. Cohen also cited the 2006 Wingerchuk article,23 id. at 5, which described the

MRI results in ADEM subjects as “typically reveal[ing] multifocal, bilateral, often large

white matter lesions.” But, the article’s authors did recognize the reporting of “[a] wide

spectrum of exceptional findings . . . including [the detection of a] normal initial brain

scan, lesion development only during the clinical recovery stage, [and] a solitary lesion

restricted to an area such as the brain stem.” Id.

In the 2000 Dale article,24 the authors discussed the MRI findings performed in

thirty-five individuals with ADEM. The imaging uniformly showed “disseminated

[central nervous system] lesions,” the majority of which were large. Pet’r’s Ex. 8-2 at

205. In another study of forty-two ADEM patients, the imaging showed demyelination,

with “[l]esions typically number[ing] 3-8,” but only “rarely” did a “solitary” lesion

appear. Pet’r’s Ex. 8-4 at 391. Although ADEM can present with a solitary diffused

lesion, see Pet’r’s Ex. 8-8 at 596, the medical literature on which the parties relied

consistently reported that individuals suffering from ADEM generally have multiple

lesions in their CNS. See, e.g., Pet’r’s Ex. 8-3 at 305 (“Cerebral lesions are usually

disseminated but solitary lesions [do] occur in about 10% and 30% of cases. Lesion

22

Resp’t’s Ex. A-2 at 1, D.J.A. Callen et al., Role of MRI in the differentiation of ADEM

from MS in children, 72:11 Neurology 968 (2009).

23

Resp’t’s Ex. A-9 at 2, Dean M. Wingerchuk, The clinical course of acute disseminated

encephalomyelitis, 28 Neurological Research 341 (2006).

24

Pet’r’s Ex. 8-2 at 198, R.C. Dale et al., Acute disseminated encephalomyelitis,

multiphasic disseminated encephalomyelitis and multiple sclerosis in children, 123 Brain

2407 (2000).

19

patterns often seen in ADEM includ[e] widespread, multifocal or extensive white matter

lesions . . . [that] may evolve over several weeks.”); Pet’r’s Ex. 8-8 at 596 (“ADEM is

characterized [by] multiple lesions distributed all over the CNS.”); see also Resp’t’s Ex.

A-1 (“[W]idespread MRI lesion pattern[s] [are] characteristic of ADEM.”).

The parties’ experts admitted that interpreting petitioner’s MRIs here was difficult

because neither expert had the opportunity to review the imaging results personally. See

Tr. 76, 117. Instead, they relied on the description of the imaging results documented in

the notes of petitioner’s treating neurologist, Dr. Miller. See Pet’r’s Ex. 3 at 123. Dr.

Kinsbourne construed Dr. Miller’s notations to describe a diffused lesion because Dr.

Miller wrote that it “cover[ed] a fair amount of territory” in petitioner’s brain. Tr. 76

(discussing Pet’r’s Ex. 3 at 123-24). Dr. Cohen disagreed with Dr. Kinsbourne’s

interpretation, pointing out Dr. Miller did not describe the lesion using either of the terms

“diffuse” or “multifocal.” Tr. 117-18.

Whether petitioner’s brain lesion bore the appearance of the type of lesion usually

seen in ADEM subjects is not clear from the record. The medical records do not indicate

whether her detected lesion was either diffuse or multifocal, the characteristic

presentations for ADEM lesions. None of her treating physicians—who did have the

opportunity to review the results of her MRIs—described her discovered lesion using

those terms. But her treating neurologist, Dr. Miller, did describe her lesion in plain

language that indicated that the lesion was spread over a moderate space in her brain.

Notwithstanding this recorded description, the undersigned is not persuaded by Dr.

Kinsbourne’s assertions that petitioner’s lesion was sufficiently diffuse to be suggestive

of an ADEM lesion because petitioner’s own treating physicians were not persuaded of

an ADEM diagnosis based on her radiologic evidence. See Perreira v. Sec’y of Health &

Human Servs., 33 F.3d 1375, 1376 n. 6 (Fed. Cir. 1993) (“An expert opinion is no better

than the soundness of the reasons supporting it.”); Burns v. Sec’y of Health & Human

Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (“The special master concluded that the expert

based his opinion on facts not substantiated by the record. As a result, the special master

properly rejected the testimony of petitioner's medical expert.”). Moreover, the weight of

the medical literature on which the parties’ respective experts relied supports a finding

that the pattern of petitioner’s observed demyelination was not representative of ADEM

cases.

Petitioner’s presenting symptoms also militate against a finding that she suffered

from ADEM. Her symptom onset was too protracted, she did not present with the kind of

symptoms that are characteristic of ADEM, and the duration of her clinical course and

the lack of improvement of her neurologic condition would be unusual for ADEM.

20

iv. The Timing of Her Symptom Onset

Petitioner received the subject flu vaccine on February 22, 2008. Pet’r’s Ex. 2 at

1. Dr. Kinsbourne opines petitioner’s symptom onset began “[a]pproximately four weeks

after [her] influenza vaccination.” Pet’r’s Ex. 8 at 5. Dr. Kinsbourne based this

calculation on petitioner’s comment to Dr. Miller on June 20, 2008, that “on reflection . .

. she [had] noticed several weeks of feeling that socks seemed too tight on [her] legs or

that [there] was numbness in her leg prior to the onset of her vertigo.” Pet’r’s Ex. 3 at

159; see also Pet’r’s Ex. 4 at 73 (petitioner reported to Dr. Di Stasio on August 20, 2008,

that her initial symptoms included a “feeling that socks or underwear were too tight

(mainly on left side)”).

Petitioner first complained of her vertigo during an office visit in April 2008,

nearly eight weeks after she received the flu vaccine. She reported during that office visit

in the third week of April that she had developed vertigo “several weeks” earlier, had

begun to feel abnormally fatigued, and had developed numbness in her lower legs

(primarily around her ankles) that ascended over the ensuing weeks. Pet’r’s Ex. 3 at 159-

60. By the end of April 2008, petitioner was afflicted by increasingly worsening vertigo,

which significantly affected her performance at work. Id. at 118-19; Pet’r’s Ex. 1 at 2.

When she presented to the hospital on April 28, 2008, she reported a one-week history of

vertigo and a two-week history of progressive weakness and loss of energy. Pet’r’s Ex. 4

at 162.

Petitioner’s own accounts of her symptom onset were inconsistent. Based on her

related complaints to her doctors, her symptom onset appears to have begun between the

end of March 2008 and the second week of April 2008. 25 As discussed in further detail

below, even assuming petitioner’s neurologic symptoms did, in fact, begin around the

third week of March of 2008, such a symptom onset is toward the tail end of the

recognized time frame for the onset of post-vaccinal ADEM.

In the months after her symptom onset, petitioner’s neurologic problems persisted

and appeared to worsen. Pet’r’s Ex. 3 at 112. In August 2008, she reported some

25

Petitioner saw her treating physicians on numerous occasions between April and June

of 2008, and did not mention the sensations she apparently felt in her legs in March of

2008 until she did so “on reflection” during her June 20, 2008 visit to Dr. Miller. The

undersigned finds it unlikely that petitioner would have failed to mention these

noteworthy symptoms during her late April and early May visits to her treating

physicians during which she reported numerous other neurologic complications she had

been experiencing in the weeks prior.

21

improvement in her symptoms, although her gait and balance problems were ongoing.

Id.

Dr. Kinsbourne conceded that the subacute presentation of petitioner’s symptoms

(that is, over the course of a number of weeks after her vaccination—without overt

expression) was “unusual” for ADEM. See Tr. 38. He described ADEM as a

“monophasic [condition] in almost every case.” Tr. 40. He explained “that it came[,] . . .

reached a peak[,] . . . reached a plateau, and then . . . got to some extent better.” Tr. 39.

Yet, he added that “ADEM has an unusually wide variability of presentation,” Tr. 28, and

there is “a subacute variant [of ADEM],” which has a “more gradual beginning . . . [with]

a more prolonged course,” Tr. 39. But neither Dr. Kinsbourne nor the literature he filed

specifically addressed how subacute the presentation of ADEM could be. Tr. 38.

Dr. Cohen provided important perspective on this issue. Observing that

petitioner’s symptom onset—as described in her contemporaneous medical records—

reflected an irregular case of ADEM, Tr. 164, he explained that, in his experience,

ADEM is “a sudden fulminant . . . illness” that presents with “an abrupt onset,” Tr. 141,

and the entire course of the illness “progresses over [a period of] weeks, not months”--as

in petitioner’s case. Resp’t’s Ex. A at 2. Although he agreed that cases of ADEM do

occur where the symptom presentation might be described as “subacute,” he explained

that onset in such cases would occur over--“at most[--]weeks, [but] not months.” Tr. 145.

Here, he asserted, the onset of petitioner’s symptoms after vaccination was beyond the

“spectrum” of onset for ADEM. Id.

A review of the parties’ submitted medical literature also indicates that petitioner’s

course was, in the best but unlikely case, an atypical form of ADEM.

In the 2004 Cheong article,26 the authors explained that “[p]atients with ADEM

usually have a monophasic clinical course [that is marked by an] abrupt onset, [and that]

last[s] . . . 2 to 4 weeks.” Pet’r’s Ex. 8-2 at 195. Similarly, in the 2000 Dale article, the

authors reported in their study of twenty-eight children with ADEM that the “presentation

[of symptoms] varied from an acute explosive onset, with a maximum neurological

deficit attained within 1 day, to a more indolent progression with maximum deficit at 31

days (mean 7.1 days).” Id. at 202. “The mean latency between predemyelinating illness

26

Pet’r’s Ex. 8-2 at 195, Jin Hwan Cheong et al., Acute disseminated encephalomyelitis

associated with influenza vaccination, 35 J. Korean Neurosurgical Soc’y 223 (2004).

22

and the onset of neurological signs [for the children] was 13.0 days (range 2-31 days).”

Id. at 201.

Dr. Kinsbourne referred to a case report of four individuals with ADEM,27 in

which the authors found that “[a] common feature for all the patients . . . was a rapid

deterioration in their condition within a few days after being admitted to the hospital.”

Pet’r’s Ex. 8-3 at 293. “During the . . . weeks [following their admission], the conditions

of [three of the individuals] gradually improved,” and the fourth patient died seven weeks

later. Id. at 292.

Dr. Kinsbourne pointed to the 2008 Huynh study28 to support his theory that

vaccines—and not just illnesses—can cause ADEM. Pet’r’s Ex. 8 at 8. The authors of

the Huynh study found that in cases of alleged vaccine-related ADEM, “the onset of

symptoms may vary slightly: from 1 to 14 days . . . less than one week . . . [or] 1 to 3

weeks . . . after vaccination . . . [with] [s]ymptom onset [that] is usually rapid with

progression over hours to a peak in days . . . .” Pet’r’s 8-3 at 305 (emphasis added).

Then citing the 1994 IOM report—apparently for its comment on the timing of

ADEM onset—Dr. Kinsbourne drew attention to the statement that “ADEM is

characterized by acute depression of consciousness and multifocal neurological findings

that usually occur a few days or weeks following vaccine administration . . . .” Pet’r’s

Ex. 8-6 at 511;29 see also Pet’r’s Ex. 8-8 at 575, Olafa Stuv & Scott Zamvil,

Pathogenesis, diagnosis, and treatment of acute disseminated encephalomyelitis, 12:4

Current Opinion in Neurology 395 (1999) (“Neurologic symptoms [of ADEM] usually

follow between 1 and 20 days [after the inciting event]”); Pet’r’s Ex. 8-5 at 474, Louis

Reik, Immune-Mediated Central Nervous System Disorders in Childhood Viral

Infections, 2:2 Seminars in Neurology 106 (1982) (“Symptoms [of ADEM] usually begin

4 to 21 days after the inciting event”).

27

Pet’r’s Ex. 8-3 at 291, Jari Honkaniemi et al., Delayed MR Imaging Changes in Acute

Disseminated Encephalomyelitis, 22 Am. J. Neuroradiology 1117 (2001).

28

Pet’r’s 8-3 at 301, William Huynh et al., Post-vaccination encephalomyelitis: Literature

review and illustrative case, 15 J. Clinical Neuroscience 1315 (2008).

29

Institute of Medicine, Adverse Events Associated with Childhood Vaccines: Evidence

Bearing on Causality (Kathleen R. Stratton et al. eds., 1994).

23

Respondent filed the 1985 Murphy article30 in which the authors found that

ADEM manifests abruptly. Resp’t’s Ex. A-6 at 1. As reported in the article, the authors

studied 805 vaccinated subjects and found that the probability of developing post-

vaccinal ADEM in 28 days (or more) was less than one percent (0.6%). Id. at 5-6.

The medical literature the parties’ referenced makes clear that ADEM most

commonly manifests abruptly, although several of the articles Dr. Kinsbourne cited

furnished the barest of support for his proposition that petitioner’s subacute onset was an

appropriate—even if aberrant—presentation for ADEM. Pet’r’s Ex. 8 at 11 (citing

Pet’r’s Ex. 8-4 at 374). In the 2005 Khurana study, the authors reported that of the 13

individuals they studied, “7 . . . evolved subacutely over 5 to 10 days,” but “[s]ix of 13 . .

. had rapid progression of symptoms that required prolonged care in the ICU.” Pet’r’s

Ex. 8-4 at 376. Similarly, in the 2007 Menge study,31 the authors described reports of

ADEM where the afflicted patients “developed [symptoms] subacutely over a period of

days, . . . [that] led to hospitalization within a week.” Pet’r’s Ex. 8-4 at 412; see also

Pet’r’s Ex. 8-4 at 419 (“Neurologic manifestations [of ADEM] begin 3 days to 4 weeks

(mean 12 days) following a precipitating event”); Pet’r’s Ex. 8-5 at 474 (“Symptoms [of

ADEM] usually begin 4 to 21 days after the inciting event.”). In the 2001 Schwarz

article,32 the authors studied forty individuals with ADEM and found that “[t]he duration

of symptoms before admission was shorter in patients with ADEM [than those with MS

and they exhibited] . . . a more abrupt onset of symptoms.” Pet’r’s Ex. 8-5 at 490. In

addition, a number of the case studies Dr. Kinsbourne cited reported an onset of

neurologic symptoms in subjects with ADEM within two days to one week of the

precipitating event. Id. at 479 (subjects’ neurologic injuries manifested five and seven

days after a flu vaccine); Pet’r’s Ex. 8-5 at 484 (subject’s neurologic symptoms

manifested four days after a flu vaccine); Pet’r’s Ex. 8-8 at 600 (symptom onset five days

after a flu vaccine); Pet’r’s Ex. 8-2 at 194 (injury manifested two days after a flu

vaccine).

30

Resp’t’s Ex. A-6 at 1, James Murphy & James Austin, Spontaneous Infection or

Vaccination as Cause of Acute Disseminated Encephlomyelitis, 4 Neuroepidemiology

138 (1985).

31

Til Menge et al., Acute disseminated encephalomyelitis: an acute hit against the brain,

20 Current Opinion of Neurology 247 (2007).

32

Pet’r’s Ex. 8-5 at 487, S. Schwarz et al., Acute disseminated encephalomyelitis: A

follow-up study of 40 adult patients, 56 Neurology 1314 (2001).

24

The weight of the record evidence before the undersigned establishes that the

symptoms of ADEM appear abruptly—that is, between one and two weeks after the

triggering event—in the overwhelming majority of cases. The timing of petitioner’s

symptom onset was unusually protracted. Petitioner’s symptom onset occurred slowly

and well beyond the typical time frame for the vast majority of subjects afflicted with

ADEM. Petitioner’s symptom onset—even if it occurred approximately four weeks after

her flu vaccine, as she and Dr. Kinsbourne assert—does not fit within the recognized time

frame for most cases of ADEM. At best, petitioner’s symptom onset occurred at the

outer reaches of the recognized time frame for the onset of post-vaccinal ADEM. This

factor provides only meager support for petitioner’s claim.

v. The Nature and Severity of Petitioner’s Symptoms

The parties’ experts agreed that certain symptoms are characteristic of ADEM, and

petitioner’s expert conceded that petitioner’s presentation “deviated” from the usual

presentation of most cases of ADEM. Pet’r’s Ex. 9 at 1. Nonetheless, Dr. Kinsbourne

asserted that petitioner’s condition could be regarded as an atypical variant of ADEM

because the condition “has . . . unusually wide variability . . . [in] presentation.” Tr. 28.

A review of the medical literature filed by the parties, however, persuades the

undersigned that petitioner did not exhibit symptoms that were suggestive of ADEM—

even an atypical variant—either in nature or in severity.

ADEM “is an uncommon inflammatory demyelinating disease of the central

nervous system.” Pet’r’s Ex. 8-2 at 192. The disease “is believed to be a manifestation

of an autoimmune attack on the myelin of the [CNS].” Dorland’s at 613. Because the

“symptoms and signs of [the condition] . . . are related to the portion of the nervous

system that is most severely damaged[,] . . . variable clinical syndromes may occur.”

Resp’t’s Ex. A-4 at 4. Thus, “ADEM has no [defined] diagnostic criteria.” Pet’r’s Ex. 8-

2 at 209. But, the main symptom of ADEM is a noticeably decreased level of

consciousness, “varying from lethargy to coma.” Pet’r’s Ex. 8-3 at 291; see also Pet’r’s

Ex. 8-2 at 202 (69% of subjects with ADEM in one study experienced an “[a]lteration in

mental state and level of consciousness”); Pet’r’s Ex. 8-4 at 375 (“The typical

presentation is that of multifocal neurologic disturbance accompanied by change in

mental status.”). Symptoms suggestive of meningeal involvement, such as headaches and

neck stiffness, also “are common early in the course of all types [of ADEM].” Resp’t’s

Ex. A-4 at 4.

Both Dr. Kinsbourne and Dr. Cohen agreed that individuals afflicted with ADEM

typically suffer from a significantly lowered level of consciousness and, in some cases,

25

coma. See Tr. 28, 52. The parties also agree that petitioner did not exhibit any clear

signs of impaired consciousness.33

Other symptoms of ADEM include “fever . . . and vomiting; sometimes tremor,

seizures, and paralysis.” Dorland’s at 613; see also Pet’r’s Ex. 8-2 at 209 (signs of

meningism, which include headache, fever, stiff neck, light sensitivity, disorientation,

and—occasionally seizures—are common in ADEM patients). Other neurologic signs or

symptoms typically associated with ADEM are “weakness, sensory changes, [and]

ataxia.” Resp’t’s Ex. A-9 at 5; see also Pet’r’s Ex. 8-2 at 209 (ADEM subjects usually

present “with multifocal neurologic disturbance such as ataxia, hemiparesis, cranial nerve

palsies, and altered conscious state.”); Pet’r’s Ex. 8-8 at 578 (The “neurologic signs and

symptoms [of ADEM] include parathesias, pain, motor weakness, spasticity,

incoordination, dysarthia and dysphagia.”). Individuals with ADEM also typically

develop complications with their vision. See Pet’r’s Ex. 8-2 at 202. Moreover,

“[s]ystemic symptoms [of ADEM] including fever, malaise . . . headache, [and] nausea

[with] vomiting often precede neurological symptoms.” Pet’r’s Ex. 8-8 at 578.

The parties disputed whether petitioner’s symptoms were sufficiently “severe” to

merit an ADEM diagnosis. See, e.g., Tr. 146, 153. The views of the parties’ experts are

inconclusive on this issue because neither had the opportunity to observe petitioner and

thus, to properly evaluate the severity of her symptoms. The undersigned is informed,

however, by the silence of petitioner’s treaters—who did observe her—on the matter of

her symptom severity. Although they noted a worsening of her symptoms of discomfort,

the symptoms did not appear to have been sufficiently severe to provoke any concern that

petitioner might have ADEM.

In the view of the undersigned, petitioner did not present with the most

characteristic of ADEM symptoms. Nor did her symptoms appear with the type of

severity and abruptness that generally occurs in cases of ADEM. Although petitioner

exhibited some symptoms associated with ADEM, she did not exhibit the particular

33

Dr. Kinsbourne stated that petitioner’s feelings of confusion when she awakened could

have been a sign of depressed consciousness, but he acknowledged that this was not a

clear sign of diminished consciousness. See Tr. 52, 70. Dr. Kinsbourne further asserted

that symptoms involving consciousness were more common in children afflicted with

ADEM whereas adults afflicted with ADEM more commonly exhibited symptoms

involving sensory and motor problems. Tr. 28. However, none of the medical literature

either party submitted speaks to this proposition.

26

symptoms that the parties agreed are most commonly associated with ADEM, such as a

markedly decreased state of consciousness, fever, and headache. This factor does not

militate in petitioner’s favor.

vi. The Protracted Course of Petitioner’s Illness and Her Limited Recovery

The extended duration of petitioner’s clinical course would be unusual for a case

of ADEM, further suggesting that petitioner did not suffer from that condition. As Dr.

Cohen explained, a typical clinical course of ADEM includes a “severe and swift . . .

onset,” a “nadir,” and then improvement over the course of a period of months. Tr. 178.

Dr. Kinsbourne agreed that the onset of ADEM generally does not present over the

course of multiple months, Tr. 72, although the course of recovery might require a period

of months.

A review of the medical literature submitted by the parties corroborates Dr.

Cohen’s description of the clinical course of ADEM. The disease manifests in an abrupt,

fulminant manner; the symptoms are severe, and then reach a plateau. Shortly thereafter,

the individual begins a gradual recovery. See Pet’r’s Ex. 9-1 at 3 (a study of seventeen

ADEM patients finding the range of disease duration to fall between one and ten months,

with an average length of disease duration of four months); Pet’r’s Ex. 8-4 at 378 (“All 4

patients in [an] adult [case] series . . . ha[d] rapid deterioration followed by gradual

improvement.”); Pet’r’s Ex. 8-2 at 195 (“Recent studies suggest a more favorable

prognosis with rapid recovery.”). Moreover, “[r]ecovery is often . . . complete among

those who survive,” Pet’r’s Ex. 8-5 at 474, and individuals afflicted with ADEM

generally recover within months of onset. Pet’r’s Ex. 8-2 at 198 (“The outcome in the

ADEM patients was mixed; 57% of patients made a complete recovery.”); Pet’r’s Ex. 8-4

at 377 (“Seven of 13 children [with ADEM] had complete recovery.”); see also Pet’r’s

Ex 8-2 at 207 (“Despite the often dramatic presentation [of subjects with ADEM], the[ir]

outcome was surprisingly good, with recovery completed between 0.25 and 6 months[.]

57% had no impairments on follow-up . . . [while 17%] had motor disability.”).

The parties agree that petitioner’s clinical course did not follow the expected

clinical course for subjects afflicted with ADEM. Tr. 98, 130. In July of 2008, more

than four months after her symptom onset, petitioner reported that her symptoms had

worsened; she reported again one month later, in August of 2008, that her symptoms had

continued to worsen. Pet’r’s Ex. 3 at 121. Petitioner’s physical therapist noted that her

symptoms—particularly her feelings of weakness—had continued on a downward slope

for a four-month period. Pet’r’s Ex. 3 at 115. Toward the end of August 2008—nearly

five months after her symptoms first appeared—petitioner reported that she was

27

beginning to feel better with some slow improvement in her condition. Pet’r’s Ex. 3 at

109-10. While some of her symptoms began to abate over the ensuing months, her

symptoms of dizziness, imbalance, numbness, and weakness persisted through March of

2009—seven months after she first showed signs that her symptoms were improving.

Pet’r’s Ex. 3 at 81, 86-87; see also id. at 63 (Petitioner “last seen on 3/09, at that time

[she had] . . . some improvement . . . [but] over last 2-3 months has had worsening of

gait, feels weak all over, feels like knees will give out. Feels more fatigued.”) In April of

2010, petitioner returned to her neurologist, Dr. Miller, and reported a “significant[ly]

worsening gait and [left extremity] weakness, [and] arm weakness,” which led Dr. Miller

to evaluate petitioner for a potential cervical cord lesion. Pet’r’s Ex. 7 at 5.

The record indicates that petitioner’s condition did not plateau and then gradually

improve—as would be expected with a case of ADEM. Instead, petitioner struggled—

after the gradual onset of her symptoms—with a protracted clinical course marked by

many periods of exacerbation. The course of petitioner’s illness strongly suggests that

she did not suffer from ADEM. The lack of appreciable recovery within a year after her

symptom onset further suggests that she did not suffer from ADEM.

Petitioner’s overall clinical course was inconsistent with the well-recognized

course of ADEM. Although petitioner and her expert, Dr. Kinsbourne, relied heavily on

case reports discussing the wide variability of symptom presentation in subjects with

ADEM, none of the cases involved subjects with the extraordinary combination of

atypical features present in petitioner’s case. The undersigned cannot credit petitioner’s

position on the assertions of her expert alone, Snyder ex rel. Snyder v. Sec’y of Health &

Human Servs., 88 Fed. Cl. 706, 742-43 (2009) (special masters are not required to accept

the ipse dixit of an expert) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)),

and must decline petitioner’s urging that she do so.

C. Petitioner did not suffer from the injury for which she seeks a Program

award

In conformance with the statute’s direction to evaluate the record as a whole, 42

U.S.C. § 300aa-13, the undersigned finds on the record here—that includes the

contemporaneous medical records, petitioner’s undiagnosed condition, and the testimony

of Drs. Kinsbourne and Cohen—that petitioner has failed to prove by preponderant

evidence that she developed ADEM.

This determination precludes a finding of causation in petitioner’s favor because

the evidence does not support a finding that the vaccinee suffered from the injury for

28

which petitioner she seeks Program compensation. In such a circumstance, an Althen

causation analysis may not be required. See Lombardi, 656 F.3d at 1356 (affirming the

special master’s decision to forego an Althen analysis after determining that petitioner

did not suffer from any of his alleged injuries). Out of an abundance of caution,

however, the undersigned evaluates petitioner’s theory under the Althen standard.

Because petitioner’s injury is yet undefined, it cannot be identified on the Vaccine

Injury Table, see 42 C.F.R. § 100.3. Thus, petitioner cannot establish a Table injury.

Instead, she must establish that the vaccine she received caused her neurologic

complications. See Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1335

(Fed. Cir. 2010). To do so, petitioner must show by preponderant evidence that the

vaccines brought about her injury by providing: (1) a medical theory causally connecting

the vaccination and her injury; (2) a logical sequence of cause and effect showing that the

vaccination was the reason for her injury; and (3) a showing of a proximate temporal

relationship between the vaccination and her injury. Althen, 418 F.3d at 1278.

1. Althen Prong One: Petitioner’s Medical Theory

Under Althen Prong 1, petitioner must put forth a biologically plausible theory

explaining how the received vaccines could have caused the sustained injury. Andreu v.

Sec’y of Health & Human Servs., 569 F.3d 1367, 1375 (Fed. Cir. 2009). Under this

prong, petitioner must make a showing that the received vaccines “can” cause the alleged

injury. Pafford, 451 F.3d at 1355-56.

The offered medical theory must be supported by either the vaccinee’s medical

records or the opinion of a competent physician. Grant v. Sec’y of Health & Human

Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992). Support for the offered medical theory

must also include an explanation that “pertains specifically to the [claim made in]

petitioner’s case.” Moberly, 592 F.3d at 1322. See Veryzer v. Sec’y of Health & Human

Servs., No. 06-0522V, 2010 WL 2507791, at * 24 (Fed. Cl. Spec. Mstr. 2010) (noting

that the relevant inquiry is whether, based on facts known to medical science and logical

inferences drawn by a qualified expert, the vaccine at issue is more than likely to have

caused the alleged injury), aff’d, 100 Fed. Cl. 349 (2011), aff’d, 475 F. App’x 765 (Fed.

Cir. 2012).

Petitioner’s theory of causation need not be medically or scientifically certain,

Knudsen, 35 F.3d at 548-49, but it must be informed by “sound and reliable medical or

scientific explanation,” id. at 548; see also Veryzer v. Sec’y of Health & Human Servs.,

98 Fed. Cl. 214, 223 (2011) (noting that special masters are bound by both 42 U.S.C.

29

§ 300aa-13(b)(1) and Vaccine Rule 8(b)(1) to consider only evidence that is both

“relevant” and “reliable”). If petitioner relies upon a medical opinion to support her

theory, the basis for the opinion and the reliability of that basis must be considered in the

determination of how much weight to afford the offered opinion. See Broekelschen, 618

F. 3d at 1347 (“The special master’s decision often times is based on the credibility of the

experts and the relative persuasiveness of their competing theories.”); Perreira v. Sec’y of

Health & Human Servs., 33 F.3d 1375, 1377 n.6 (Fed. Cir. 1994) (citing Fehrs v. United

States, 620 F.2d 255, 265 (Ct. Cl. 1980)) (“An expert opinion is no better than the

soundness of the reasons supporting it.”).

Petitioner’s medical records do not support her theory that the vaccine she

received on February 22, 2008, caused her neurologic condition. There is no indication

from her treating physicians that they considered her problems to be vaccine-related.

Thus, petitioner must rely on Dr. Kinsbourne’s expert opinion to prevail on her claim.

Because Dr. Kinsbourne has failed to persuade the undersigned that petitioner

suffers from an ADEM variant, the undersigned does not evaluate whether petitioner put

forth a biologically plausible theory explaining how the received flu vaccine could have

caused ADEM. Petitioner’s claim that she developed ADEM as a result of the receipt of

a flu vaccine necessarily fails on Prong One.

An Althen analysis for petitioner’s undefined neurologic condition, however, is

attempted. The record establishes that Dr. Sung affirmatively diagnosed petitioner with

fibromyalgia. See Pet’r’s Ex. 4 at 25. But Dr. Kinsbourne did not mention petitioner’s

fibromyalgia in either of his reports. Nor did the parties address the relevance of this

diagnosis,34 and petitioner has not put forth any evidence that the flu vaccine could have

caused her fibromyalgia. To the extent that petitioner claims that the received flu vaccine

caused her fibromyalgia, the claim fails for lack of proof.

The medical professionals who examined petitioner during the course of her

protracted illness have yet to define or diagnose her neurologic condition. Although her

treating neurologist initially considered a diagnosis of MS, no such formal diagnosis was

made, and petitioner does not allege she suffers from MS.

The parties do not dispute that petitioner has a lesion in her brain that appears to

have resulted from a demyelinating process and is responsible for a measure of her

neurologic symptoms. Because the potential spectrum of injuries that petitioner’s

34

Dr. Cohen mentioned this diagnosis once in his testimony, but he declined to discuss

whether it had any relevance to petitioner’s vaccine claim. See Tr. 181.

30

symptoms suggest is too broad to evaluate for a vaccine-related injury, the undersigned

cannot assess Dr. Kinsbourne’s theory of causation adequately.

Petitioner has not satisfied Prong One.

2. Althen Prong Two: Logical Sequence of Cause and Effect

Under Althen Prong Two, petitioner must establish “a logical sequence of cause

and effect showing that the vaccination was the reason for the injury.” Althen, 418 F.3d

at 1278. Under this prong, petitioner must show that the received vaccine “did” cause the

alleged injury. Pafford, 451 F.3d at 1354.

Petitioner need not make a specific type of evidentiary showing. That is,

petitioner is not required to offer “epidemiologic studies, rechallenge, the presence of

pathological markers or genetic disposition, or general acceptance in the scientific or

medical communities to establish a logical sequence of cause and effect.” Capizzano,

440 F.3d at 1325. Instead, petitioner may satisfy her burden by presenting circumstantial

evidence and reliable medical opinion. See id. at 1325-26.

Here, the entirety of Dr. Kinsbourne’s opinion regarding the causal relationship

between petitioner’s flu vaccine and her injuries turned on a finding that petitioner suffers

from ADEM. But the evidence does not preponderate in favor of a finding that petitioner

suffers from ADEM, the undersigned cannot evaluate whether petitioner’s illness is

vaccine-related in the manner proposed by Dr. Kinsbourne.

Petitioner does not prevail on Prong Two.

3. Althen Prong Three: Timing

Under Althen prong three, petitioner must establish that her injury occurred within

a time frame that is medically appropriate for the alleged mechanism of harm. See

Pafford, 451 F.3d at 1358 (“Evidence demonstrating petitioner’s injury occurred within a

medically acceptable time frame bolsters a link between the injury alleged and the

vaccination at issue under the ‘but-for’ prong of the causation analysis.”). Petitioner may

satisfy this prong by producing “preponderant proof that the onset of symptoms occurred

within a time frame 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.

Petitioner may discharge her burden by showing: (1) when the condition for

which she seeks compensation first appeared after vaccination and (2) whether the period

31

of symptom onset is “medically acceptable to infer causation.” Shapiro v. Sec’y of

Health & Human Servs., No. 99-552V, 2011 WL 1897650, at *13 (Fed. Cl. Spec. Mstr.

Apr. 27, 2011), aff’d in relevant part, vacated in non-relevant part, 101 Fed. Cl. 532, 536

(2011), aff’d 503 F. App’x 952 (2013). The appropriate temporal association will vary

according to the particular medical theory advanced in the case. See Pafford, 451 F.3d at

1358.

Dr. Kinsbourne opined that petitioner’s symptoms first appeared approximately

four weeks after her flu vaccine, and he asserted that this timing was appropriate based on

his theory of causation. Pet’r’s Ex. 8 at 11.

In particular, Dr. Kinsbourne advanced the theory that petitioner suffered from

immune-mediated neurologic injuries that were caused by the biological mechanism of

molecular mimicry, and that mechanism was augmented by bystander activation. Pet’r’s

Ex. 8 at 9-10. In his initial report, Dr. Kinsbourne averred that

[t]he accepted temporal relationship between influenza vaccination and the onset

of immune-mediated neurological disorders is generally accepted as extending to

at least 42 days, and there is evidence for even longer latencies between

vaccination and disease onset. So the [four week] temporal interval between Ms.

Stillwell’s vaccination and her first neurological symptoms fits comfortably

into this time frame.

Pet’r’s Ex. 8 at 11. Dr. Kinsbourne provided no medical literature to support this

assertion. None of the articles he referenced in his initial report speak to the timeframe of

symptom onset associated with immune-mediated neurologic injuries induced by

molecular mimicry and/or bystander activation.

To support his postulate that petitioner’s symptom onset occurred within an

appropriate temporal interval, Dr. Kinsbourne quoted the 1994 IOM report in his

supplemental expert report. Pet’r’s Ex. 9 at 4. He claimed that the 1994 IOM report

“summarized the range of latencies as follows ‘a conservative estimate of the limits of the

latencies for both GBS and ADEM is considered to be from 5 days to 6 weeks.’” Id.35

35

Dr. Kinsbourne quotes from Institute of Medicine, Adverse Events Associated with

Childhood Vaccines: Evidence Bearing on Casuality 45 (Kathleen R. Stratton et al. eds.,

1994) (emphasis added). Although petitioner filed another excerpt of this report, see

Pet’r’s Ex. 8-6 at 511, petitioner did not file this quoted portion of this report as an

exhibit. However, it is available in full online at http://www.nap.edu/catalog.php?

record_ id=2138.

32

Dr. Kinsbourne again relied on this excerpted passage during his testimony at hearing.

See Tr. 85. What Dr. Kinsbourne failed to address, however, is the preceding part of the

excerpted paragraph, which states:

. . . the expected latency between an antecedent event . . . and the first symptoms

of [Guillain-Barré Syndrome (GBS)] is mainly between 7 and 21 days.

Occasional cases appear to have latencies of between 22 and 42 days . . . [this]

allow[s] a range of latencies to be stated for GBS, that is, 5 days to 6 weeks.

Similarly, ADEM is widely believed to be the human counterpart of experimental

allergic encephalomyelitis [(EAE)], and EAE has an observed latency of about

10 to 20 days. ADEM has a similar clinical latency.36

The full excerpt from the 1994 IOM report suggests that ADEM has a much

shorter latency period than GBS, and this shorter period of latency undercuts Dr.

Kinsbourne’s assertion that petitioner’s symptom onset was medically appropriate for

ADEM. This IOM reference provides support for the proposition that petitioner’s

neurologic complications occurred within the six-week time frame that may be

appropriate for the onset of immune-mediated condition of GBS. But that is not the

condition that petitioner here has developed.

Petitioner has not offered preponderant evidence that her injuries occurred in a

timeframe consistent with the proposed theory of causation. Snyder, 88 Fed. Cl. at 742-

43 (special masters are not required to accept the ipse dixit of an expert) (citing Gen.

Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

Because petitioner has failed to meet her burden under the Althen prongs, she is

not entitled to compensation, and her petition must be dismissed. de Bazan, 539 F.3d at

1354.

IV. Conclusion

36

Institute of Medicine, Adverse Events Associated with Childhood Vaccines: Evidence

Bearing on Casuality at 45, available at http://www.nap.edu/openbook.php?record_id=

2138&page=45.

33

For the foregoing reasons, petitioner’s claim for Program Compensation fails.

The petition SHALL BE DISMISSED, and the Clerk of Court shall enter judgment

consistent with this decision.37

IT IS SO ORDERED.

s/ Patricia E. Campbell-Smith

Patricia E. Campbell-Smith

Chief Special Master

37

Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint

filing of notice renouncing the right to seek review.

34