Deplush v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-085V

(to be published)

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*

MYKELLE JIVON D’TIOLE, * Special Master Corcoran

*

*

Petitioner, * Filed: November 28, 2016

*

v. *

* Decision Without

SECRETARY OF HEALTH AND * Hearing; Dismissal; Influenza

HUMAN SERVICES, * (“Flu”) Vaccine; Narcolepsy;

* Cataplexy.

Respondent. *

*

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Marvin Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for Petitioner.

Lara Ann Englund, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING MOTION TO DISMISS CASE1

On January 27, 2015, Mykelle Jivon D’Tiole’s parents filed a petition2 seeking

compensation under the National Vaccine Injury Compensation Program (the “Vaccine

1

Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States

Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As

provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published decision’s inclusion of

certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days

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

commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar

files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).

Otherwise, the whole decision will be available to the public. Id.

2

The matter was originally filed by Petitioner’s parents on his behalf, due to his minor status. After Mr. D’Tiole

attained majority while the case was pending, I ordered that he be identified as the petitioner in the caption. ECF No.

27.

Program”).3 In it, Petitioner alleged that the influenza (“flu”) vaccine he received on December

13, 2011, caused him to develop narcolepsy with cataplexy.

After the parties filed expert reports, and based upon my initial review of the case record,

I proposed that the matter be decided without holding an evidentiary hearing and invited briefing

on the substantive merits of Petitioner’s claim. Having completed my review of the evidentiary

record and the parties’ filings, I hereby GRANT Respondent’s Motion for a Ruling on the

Record Dismissing the Case, and therefore DENY Petitioner’s request for compensation, for the

reasons stated below.

I. FACTUAL BACKGROUND

Mr. D’Tiole was born on February 8, 1997. Pet’r’s Ex. 3 at 1. His early pediatric history

is not in contention in this case and therefore requires no discussion. On December 13, 2011,

when he was 14 years old, he went to his pediatrician for a well teen visit. Pet’r’s Ex. 4 at 10. At

that time, Petitioner received FluMist,4 a live attenuated influenza vaccine (“LAIV”). Pet’r’s Ex.

9 at 1-2; Ex. 1 at 2; and Ex. 4 at 10. His parents had not given their consent for Mr. D’Tiole to

receive the vaccine at that visit, and, after learning it had occurred, they were upset that it was

administered without their advance approval. Pet’r’s Ex. 1 at 2 ¶ 8. There are no records in the

subsequent six weeks setting forth any reaction to this vaccine.

On February 1, 2012, Mr. D’Tiole hurt his wrist after a fall suffered while playing

basketball and was taken for treatment at the John Muir Medical Center Emergency Department

in Walnut Creek, California. Pet’r’s Ex. 53 at 3-5. He was diagnosed with a wrist fracture and

underwent a closed reduction with percutaneous pinning under general anesthesia. Id. at 18-22.

He was otherwise deemed healthy at the time, with no mention in the relevant records of any

sleep-related problems. Id. at 4, 16.

3

The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-

660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or

“the Act”]. Individual section references hereafter will be to § 300aa of the Act.

4

As noted in Agnew v. Sec’y of Health & Human Servs., No. 12-551V, 2016 WL 1612853, at *3 (Fed. Cl. Spec.

Mstr. Mar. 30, 2016), FluMist is a cold-adapted vaccine received intranasally. It contains live, but attenuated

(meaning reduced in virulence), strains of the wild flu virus. See FluMist Package Insert, filed on June 20, 2016, as

Resp’t’s Ex. G (ECF No. 36-1), at 13-14. To achieve an immune response from the body’s adaptive immune system,

the viral strains contained in the vaccine replicate at a temperature consistent with that found in the nasal cavity, but

not at the higher temperatures found elsewhere in the body. Agnew, 2016 WL 1612853, at *3. As a result, the flu

strain can replicate sufficiently to produce the antibodies necessary to fight a wild infection, without itself

replicating enough to cause infection if transmitted to others. See Resp’t’s Ex. G at 13 (“the attenuated vaccine virus

replicates to induce protective immunity”). In this case, Petitioner received a trivalent version of the vaccine.

2

On February 10, 2012, Petitioner saw his pediatrician for a follow-up examination of his

wrist fracture, and was referred to an orthopedist. Pet’r’s Ex. 4 at 11. There was still no record of

any sleep problems. Petitioner, however, has offered witness statements suggesting that his

sleep-related symptoms began around this time. Thus, his mother, Ms. Sevela DePlush, states

that she noticed Mr. D’Tiole behaving “differently” and “began noticing him exhibiting severe

drowsiness” by February 2012, after his surgery. Pet’r’s Ex. 1 at 2 ¶ 10. However, she attributed

his symptoms to a normal post-surgery reaction or the medication he was taking for pain. Id. at 2

¶¶ 10-11.

Over a month later, on March 26, 2012, Petitioner saw his pediatrician again, now

complaining of ear pain and feeling tired all of the time, and the notes from the visit specifically

state that he was falling asleep again at 11 a.m. after waking at 6 a.m. Pet’r’s Ex. 54 at 18. This is

the first medical record statement about the injury alleged in this case, but it is Ms. DePlush’s

assertion that Petitioner’s symptoms continued to be evident in the period prior to this visit. See,

e.g., Pet’r’s Ex. 1 at ¶ 11. Mr. D’Tiole was prescribed antibiotics for his ear pain and was

instructed to engage in better sleeping hygiene (e.g., limiting television time before sleep). Id.

There is subsequently a nearly four-month gap in the records, and thus no

contemporaneous recording of any other sleep-related problems for Petitioner. But on July 18,

2012, Mr. D’Tiole was seen again by his pediatrician with complaints of “problem with

equilibrium x three months/hard time focusing.” Pet’r’s Ex. 54 at 17.5 The notes from this visit,

however, are somewhat contradictory, and do not support the contention that Petitioner’s sleep

problems were progressing. Thus, this record includes statements by Mr. D’Tiole that he was

playing videogames late into the night, sleeping until noon thereafter, and having trouble

focusing (presumably in connection with his vision, since the record also mentions an eye doctor

visit) – but also that he was not experiencing dizziness or balance problems, and otherwise was

doing “great in school.” Id.6 Petitioner’s treater assessed him with a dysfunctional sleep pattern

that could be treated in the same manner recommended in March. Id.

On September 6, 2012, Petitioner saw his pediatrician again, reiterating prior complaints

about focus problems and sleepiness. Pet’r’s Ex. 54 at 16. The note in the medical record states,

“feels tired a lot, trouble focusing – twice a day x 6 mo.” Id. He also reported experiencing short

“tremors” lasting a few seconds, involving his eyelids drooping and his eyes wandering. The

impression was possible seizure activity, and he was referred to a neurologist at Children’s

Hospital in Oakland, California.

5

The three-month onset reference in this July 2012 medical record would place onset in April – two months later

than Ms. DePlush’s recollection.

6

Ms. DePlush’s declaration directly contradicts this statement, and Petitioner has not offered any explanation for

why she should be believed rather than the record itself. See Pet’r’s Ex. 1 at 3 ¶ 12 (“[h]e was doing poorly in

school”).

3

There, on October 5, 2012, Mr. D’Tiole underwent an initial neurologic evaluation, at

which time an electroencephalogram (“EEG”) was performed. Pet’r’s Ex. 5 at 1. The results

were interpreted as normal, with no evidence of epileptiform discharges or focal abnormalities.

Id. at 2. Nevertheless, Petitioner also obtained a consultation thereafter with Ali Mostajelean,

M.D., of the hospital’s epilepsy department. Id. at 3-5. Dr. Mostajelean concluded, based on the

examination and EEG results, that there was no evidence that Petitioner was suffering from

epilepsy. The notes from this examination reiterate concerns about Petitioner’s dizzy spells and

eye-fluttering episodes, but characterized them as only “recently experienced.” Id. at 3. Some

reference was also made in these notes to Mr. D’Tiole’s sleep problems, but they were not

identified as persistent; it was noted only that Petitioner often slept late on weekends, and poor

sleep hygiene was again identified as the likely cause of such problems. Id. at 5.

In the months after, Mr. D’Tiole and his parents continued to investigate the source of his

sleep problems, which were becoming more pronounced. On December 16, 2012, Petitioner was

seen in the Emergency Department at John Muir Medical Center in Walnut Creek, CA, where he

reported “he had 2 or 3 episodes at home where he felt weak and could not stand up and had

some shaking of his extremities.” Pet’r’s Ex. 6 at 1. The chief complaint listed on the record was

possible seizure. Id. The assessment section noted: “shaking episodes of uncertain cause,” and a

diagnosis of “altered consciousness” was given by Dan Buhler, M.D. Id. at 3; see also Pet’r’s Ex.

1 at 3.

On February 1, 2013, Petitioner saw his pediatrician again, at which time concerns about

both his purported seizure activity and previously-experienced sleep issues were reported. Pet’r’s

Ex. 4 at 14. Later that year, in August 2013, Mr. D’Tiole’s parents took him for examination by

the Stanford Hospital’s Sleep Medicine Clinic in Redwood City, California. Pet’r’s Ex. 7 at 1-12.

Diagnoses provided after an initial examination were “hypersomnia due to medical condition

classified elsewhere and narcolepsy with cataplexy7.” Id. at 1. Notes contained in the record from

the August 21, 2013, visit reflect statements by Ms. DePlush that “everything seemed to start

after [Petitioner] broke his wrist and required anesthesia.” Id. at 2. They also recorded

progression in his symptoms over that year, with greater and greater daytime sleepiness. Id. at 3.

The treater who examined Petitioner prescribed a trial of modafinil,8 but also proposed

consideration of medication aimed at addressing narcolepsy or cataplexy after more data on

Petitioner (including a sleep study) had been obtained. Id. at 6.

7

Cataplexy is a condition characterized by abrupt attacks of muscular weakness and hypotonia triggered by an

emotional stimulus such as mirth, anger, fear, or surprise. Dorland’s Illustrated Medical Dictionary (32d ed. 2012)

at 303 (hereinafter, “Dorland’s”).

8

Modafinil is a central nervous system stimulant, administered orally, used in the treatment of narcolepsy,

obstructive sleep apnea, and sleep disorders associated with shift work. Dorland’s at 1171.

4

By 2014 and thereafter, Petitioner received further treatment for his symptoms, and

narcolepsy and cataplexy were no longer merely suspected but confirmed as the proper

diagnoses for his condition. See generally Petitioner’s Response to Respondent’s Motion for

Ruling on the Record, dated July 20, 2016 (ECF No. 37) (“Opp.”) at 5-8. The confirmation was

strengthened through tests (performed at Stanford Hospital’s Sleep Medicine Clinic on January

15, 2014) revealing that Petitioner likely possessed the HLA allele associated with narcolepsy

(HLA DQB1*0602). See Pet’r’s Ex. 7 at 27-31. It was during treatment at the Sleep Medicine

Clinic that Petitioner was seen by Dr. Emmanuel Mignot, a noted expert on the topic of

narcolepsy. Id. In a follow up visit on April 16, 2014, it was confirmed that Mr. D’Tiole’s test

was positive for this HLA allele. Id. at 60. But Petitioner’s parents were not made aware that he

had received FluMist until the spring of 2014, and therefore did not bring this to the attention of

the Sleep Clinic treaters. See Pet’r’s Ex. 1 at 4; Pet’r’s Ex. 9 at 1-2.

II. EXPERT REPORTS

A. Petitioner’s Expert – Dr. Steinman

Dr. Lawrence Steinman is Petitioner’s sole expert, although he submitted multiple reports

in the case. He has opined that a viral component of the FluMist vaccine that Mr. D’Tiole

received was causally responsible for his subsequent narcolepsy with cataplexy.

First Report

Dr. Steinman is a professor in Stanford University’s Departments of Neurology,

Pediatrics, and Genetics, and the chair of Stanford’s Immunology Program. Pet’r’s Ex. 62 at 1

(Dr. Steinman’s curriculum vitae). He has been elected to the Institute of Medicine (“IOM”) and

has published more than 400 articles, including articles related to his research on autoimmune

disease and molecular mimicry. Id. Dr. Steinman’s primary focus is on multiple sclerosis, but he

has conducted research, and authored papers, relevant to narcolepsy. See id. at 10, 35, 40. The

core of Dr. Steinman’s opinion is found in his first expert report, filed not long after the case’s

initiation. See January 30, 2015 Report, filed on February 19, 2015, as Pet’r’s Ex. 11 (ECF No.

9-2) (“First Steinman Rep.”). In it, Dr. Steinman reviews Mr. D’Tiole’s medical history before

turning to Petitioner’s causal theory.

As Dr. Steinman’s first report notes, scientific and medical research in the past 20 to 30

years has resulted in a number of discoveries highly relevant herein. Narcolepsy (which Dr.

Steinman characterized as “a chronic sleep disorder presenting with excessive day-time

sleepiness and often cataplexy”) (First Steinman Rep. at 13)) has been associated (based upon

tests of cerebral spinal fluid) with a deficiency in the protein hypocretin (also called orexin) – a

neuropeptide that regulates arousal, wakefulness, and appetite. See Dorland’s at 901, 1333; C.

Peyron et al., A Mutation in a Case of Early Onset Narcolepsy and a Generalized Absence of

5

Hypocretin Peptides in Human Narcoleptic Brains, 6 Nature Medicine 9:991 (2000) (Pet’r’s Ex.

26) (“Peyron”). This deficiency, in turn, has been shown to be the result of the loss of

hypothalamic cells in the brain. See, e.g., S. Nishino et al., Hypocretin (Orexin) Deficiency in

Human Narcolepsy, Lancet 355, at 39 (2000) (Pet’r’s Ex. 25) (ECF No. 10-7); Peyron at 5.

Although the precise mechanism responsible for impairment of hypocretin-mediated

neurotransmission is not yet fully understood, Dr. Steinman has proposed (for purposes of the

present claim) an autoimmune process triggered by viral components of flu vaccines such as

FluMist. His reports opine that components from the wild flu virus contained in FluMist cross-

react with certain self-proteins in the brain responsible for sleep regulation, via the mechanism of

molecular mimicry (a topic upon which Dr. Steinman possesses considerable expertise, and one

he has opined upon in numerous other Program cases).9 Specifically, nucleoproteins contained in

the H1N1 strains found in FluMist would share “molecular similarities” with certain amino acid

peptides on the surface of the hypocretin receptors in the brain. First Steinman Rep. at 13-14.

After receipt of the vaccine, in the course of the human body’s adaptive immune response the

host’s immune system is “tricked” into attacking the receptors, thereby interfering with the

hypocretin-mediated neurotransmission process that would, if functioning properly, prevent

daytime sleepiness. Id. at 16-17.

Besides his expertise in studying the causes of other autoimmune illnesses, Dr.

Steinman’s opinion in this case is rooted in studies involving the relationship between narcolepsy

and a different version of the flu vaccine than FluMist. Thus, he noted that Pandemrix – an

inactivated10 form of the flu vaccine containing the H1N1 viral strain also found in FluMist – had

been determined by several reputable studies to be closely associated with the development of

narcolepsy in European children, after a 2010 outbreak of narcolepsy in Finland. First Steinman

Rep. at 20-21; M. Partinen et al., Increased Incidence and Clinical Picture of Childhood

Narcolepsy Following the 2009 H1N1 Pandemic Vaccination Campaign in Finland, 7 PLoSone

3:1-8 (2012) (Pet’r’s Ex. 44) (“Partinen”). Much of the literature that focused on the outbreak,

such as Partinen, had speculated as to whether the cause of the narcolepsy was attributable to

adjuvants in the vaccine, or some genetic predisposition unique to Finns. Partinen at 7-8. Such

9

See generally First Steinman Rep. at 7-13. Molecular mimicry has been defined to be a “sequence and/or

conformational homology between an exogenous agent (foreign antigen) and self-antigen leading to the

development of tissue damage and clinical disease from antibodies and T cells directed initially against the

exogenous agent that also react against self-antigen.” Institute of Medicine, Adverse Effects of Vaccines: Evidence

and Causality at 70 (K. Stratton et al., eds. 2011) [hereinafter “Adverse Effects of Vaccines”]; see also L. Steinman,

Autoimmune Disease, 269 Scientific American 106-14 (Sept. 1993) (Pet’r’s Ex. 13). In essence, in the course of the

immunologic process begun after vaccination, antigens comprised of protein sequences from the H1N1 strain

erroneously interact with the hypocretin receptors in the brain, targeting them because of shared structural

homologies between the components of the antigen and the receptors. First Steinman Rep. at 13.

10

A vaccine is rendered inactive through the process of destroying the biological activity of the virus in the vaccine,

by the action of heat or other physical or chemical means. Dorland’s at 925.

6

literature also stressed the fact that the Pandemrix flu vaccine was the only form of the vaccine

associated with an increased incidence of narcolepsy. Id. at 7 (“there is no evidence of an

increased risk of narcolepsy with any other vaccine than the As03 adjuvanted Pandemrix”).

Two pieces of literature co-authored by Dr. Steinman took steps toward explaining why

Pandemrix may have caused narcolepsy, and they play a key role in the opinion he offers herein.

See S. Ahmed et al., Narcolepsy, 2009 A(H1N1) Pandemic Influenza, and Pandemic Influenza

Vaccinations: What is Known and Unknown About the Neurological Disorder, the Role for

Autoimmunity, and Vaccine Adjuvants, 50 J. of Autoimmunity 1-11 (2014) (Pet’r’s Ex. 12)

(“Ahmed I”); S. Ahmed et al., Antibodies to Influenza Nucleoprotein Cross-React with Human

Hypocretin Receptor 2, 7 Sci. Translational Med. 294 (S2015) (Pet’r’s Ex. 63) (“Ahmed II”).

Although they were not both addressed in Dr. Steinman’s first report,11 they have since been

filed in the action. They are important to understanding the foundation of Petitioner’s theory, and

so I am addressing them together.

Ahmed I was a review article proposing that the relationship between Pandemrix and

narcolepsy was most likely attributable to “how the specific influenza antigen component” in

Pandemrix was prepared. Ahmed I at 1. The article considered Partinen and other epidemiologic

or laboratory studies involving Pandemrix. It specifically suggested that narcolepsy was properly

considered an autoimmune disease, and detailed the process by which antibodies (produced as a

result of molecular mimicry) would attack the hypocretin receptors. Id. at 3-4. Ahmed I

evaluated the possibility (previewed in literature such as Partinen) that adjuvants specific to

Pandemrix might have played a role in causing narcolepsy, but noted that “no similar association

has been reported to date with the [similarly-adjuvanted] pandemic vaccine made using the

Canadian inactivation/purification protocol,” suggesting that the adjuvant itself may not have

played a causal role. Id. at 8. Indeed, Ahmed I acknowledged that the fact that the Canadian

version of Pandemrix was not associated with narcolepsy suggested that the vaccine’s flu virus

component (which was the same for both) was not itself to blame for the causal association with

the disease. Id. at 6.

In a section titled “Vaccine types and related immune responses” (Ahmed I at 4), there

appears a discussion about the difference between the formulation of the Pandemrix vaccine and

an LAIV like FluMist, a portion of which warrants complete reproduction herein:

While it may be possible for the live vaccine virus or bacteria to rarely revert to its

disease-causing form and thus be transmitted to other non-immune subjects, most live

vaccines do not. Due to their similarity in structure with the natural virus or bacteria, live

11

At the time Dr. Steinman’s first expert report was filed in this case, Ahmed II had not yet been published, and thus

Dr. Steinman could only tangentially refer to its findings. First Steinman Rep. at 16. His subsequent reports

specifically relied upon it, however.

7

vaccines could induce molecular mimicry similar to that associated with the natural

infection. However, during development of a live vaccine, this concern for molecular

mimicry is carefully considered and vaccine candidates demonstrating these

attributes are screened for and excluded.

Ahmed I at 5 (emphasis added).

In Ahmed II, Dr. Steinman and his co-authors conducted a series of tests aimed at

answering some of the many questions raised in Ahmed I. This study examined the sera of 20

Pandemrix-vaccinated narcoleptic patients. Ahmed II at 10. The article began by observing that

another adjuvanted inactive pandemic flu vaccine similar to Pandemrix containing the same

H1N1 viral strain – Focetria – was not associated with an increased risk for narcolepsy, further

suggesting that there was something unique to Pandemrix that made it more pathologic. Id. at 1.

Ahmed II’s authors performed a study aimed at identifying the specific mimic between protein

sequences from the flu strain contained in Pandemrix and the hypocretin receptors, finding that

there was a homologous flu nucleoprotein peptide. Id. at 2-3. Based on this determination, they

next identified hypocretin receptor antibodies produced from the cross-reaction between the

mimic and the receptors, thereby interfering with the orexin production and resulting in

narcolepsy. Id. at 3. Those antibodies were detected in the blood sera of higher numbers of

Pandemrix-vaccinated individuals with narcolepsy than individuals who did not have the disease.

Id.

After that step, Ahmed II’s authors reached the heart of their discovery with respect to

Pandemrix. They compared the nucleoprotein antibody content found in individuals who had

received eight different inactivated flu vaccines plus three monovalent A(H1N1) pdm09 vaccines

(a group that included Pandemrix). Ahmed II at 4.12 Of the latter three, Focetria had 72.7 percent

fewer nucleoproteins than Pandemrix – “suggesting the possibility that lower [nucleoproteins]

concentrations in Focetria could have attenuated both the immune response . . . and the

subsequent generation of [nucleoprotein] antibodies capable of cross-reactivity.” Id. Ahmed II’s

authors do not formally propose an explanation for this difference, but they did note that Focetria

was “differently manufactured” (Ahmed II at 1). For its part, Ahmed I contained a longer

discussion of the different manufacturing processes for these Pandemrix-like vaccines

(specifically, the purification procedures for the viral antigens they contained). Ahmed I at 7.

Dr. Steinman’s first report went on to opine that (in addition to his causation theory) the

other prongs of the Federal Circuit’s test for vaccine causation claims in Althen v. Sec’y of

Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005) had been met. With respect to the

second, “did cause” prong, he proposed that, consistent with the science of immunology and the

12

FluMist was not included in any of the Ahmed II tests.

8

theory of molecular mimicry, Mr. D’Tiole’s medical records evidenced a response to the flu

vaccine. First Steinman Rep. at 22. Regarding the third prong, Dr. Steinman maintained that the

timing of onset of Petitioner’s first symptoms, in February 2012, was consistent with his

understanding of how long the process for an immunologic response of this sort would take,

based on scientific studies like Schonberger et al., Guillain-Barre Syndrome Following

Vaccination in the National Influenza Immunization Program, United States, 1976-1977, 110

Am. J. of Epidemiology 2:105 (1979) (Pet’r’s Ex. 38); First Steinman Rep. at 17-18.

Supplemental Reports

Dr. Steinman also filed two supplemental expert reports, responding at length to points

made by both of Respondent’s experts. See September 28, 2015 Report, filed on September 28,

2015, as Pet’r’s Ex. 61 (ECF No. 25-2) (“Second Steinman Rep.”); January 10, 2016 Report,

filed on January 19, 2016, as Pet’r’s Ex. 66 (ECF No. 31-2) (“Third Steinman Rep.”).

Dr. Steinman’s second report attempted to rebut the assertion of Respondent’s first

expert, Dr. Michael Kohrman, that there is no demonstrated link between FluMist and

narcolepsy. Dr. Steinman insisted that there is in fact a link, as the promotional materials for

FluMist reveal that it contains the same nucleoprotein that Dr. Steinman’s research demonstrated

cross-reacts with hypocretin receptors in the brain. Second Steinman Rep. at 2, 7. While he

admitted that the research he had participated in (as reflected by Ahmed I and II) did not involve

FluMist specifically (or even a comparable LAIV), it had studied the nucleoproteins derived

from the same viral strain as that contained in FluMist. Id. at 7. He further acknowledged the

absence of epidemiologic studies connecting narcolepsy with FluMist, but disagreed that the

primary epidemiologic evidence cited by Dr. Kohrman (Duffy et al., Narcolepsy and Influenza A

(H1N1) Pandemic 2009 Vaccination in the United States, 83 Neurology 1827 (Oct. 15, 2014)

(Resp’t’s Ex. D-13) (“Duffy”)) was persuasive or reliable evidence disproving his theory. Id. at

3. Dr. Steinman asserted that the Duffy results (which are discussed in greater detail below) were

not relevant to Mr. D’Tiole’s case, because the study did not cover the form of flu vaccine from

the 2011-12 season in which Mr. D’Tiole was vaccinated, and thus did not involve the same viral

strain. Id.

Additionally, Dr. Steinman reiterated his view that there was a strong correlation between

the wild H1N1 virus and narcolepsy – something addressed in Ahmed I and II. Second Steinman

Rep. at 5; Ahmed I at 7-8; Ahmed II at 6. In so arguing, he relied on F. Han et al., Narcolepsy

Onset is Seasonal and Increased Following the 2009 H1N1 Pandemic in China, 70 Am.

Neurological Ass’n 410 (2011) (Resp’t’s Ex. A-3) (“Han”). Han was a retrospective study of

narcolepsy onset in patients diagnosed in Beijing, China from 1998-2010. Id. at 1. In Dr.

Steinman’s reading, Han showed that the occurrence of narcolepsy onset was seasonal, based

upon a reported increase in the condition’s onset following the 2009 H1N1 winter influenza

9

pandemic. Second Steinman Rep. at 5-6; Han at 5-6. Dr. Steinman noted that Han could be

interpreted to mean that the wild H1N1 influenza virus itself, along with other upper airway

infections, was highly correlated to narcolepsy. Second Steinman Rep. at 6. However,

weaknesses in these arguments were anticipated in some of Dr. Steinman’s own earlier work.

Thus, as Ahmed II notes, studies outside China have not shown an increase in narcolepsy cases

in unvaccinated patients, and Beijing’s dense population (coupled with low vaccination numbers)

was deemed to have possibly contributed to the increased narcolepsy cases rather than the

prevalence of the wild virus. Ahmed II at 6.

Dr. Steinman also rejected the significance of points made by Dr. Kohrman that none of

Mr. D’Tiole’s treating doctors linked the vaccination to the narcolepsy in the records, observing

that the science linking narcolepsy and influenza vaccines is currently the subject of advanced

research of which they were likely unaware. Second Steinman Rep. at 7-8. He also noted that

Mr. D’Tiole’s vaccination history had not been made clear to all of his treaters – but that if it

had, and if they had been aware that he had received the flu vaccine before his narcolepsy

symptoms began, they would likely have considered it a potential causal factor. Id. at 8.

Dr. Steinman’s third report addressed both Dr. Kohrman and the arguments of

Respondent’s other expert, Dr. Andrew MacGinnitie. This final report was much longer than the

second, and nearly as long as the first, given the number of topics Dr. Steinman chose to address

and points he hoped to rebut. In it, Dr. Steinman asserted that Ahmed II was far more important

than Respondent allowed, given its scope and the large number of scientists involved in all

aspects of the studies it conducted. Third Steinman Rep. at 6. However, he did candidly discuss

its limitations, noting that neither he nor Ahmed II’s other authors denied their existence. Third

Steinman Rep. at 12-14. Thus, while Dr. Steinman would have liked to test more than 20 clinical

sera samples from patients with post-vaccination narcolepsy to lend more certainty to the results,

additional samples were not available due to local health authorities’ regulations regarding

ethical informed consent. Id. at 13. He echoed this sentiment regarding the inability to obtain

more appropriate controls. Id. at 17. However, Dr. Steinman asserted that Ahmed II’s findings

were still reliable and sufficient to form the basis of a medically plausible theory. Id.

Dr. Steinman also repeated his arguments about the reliability of the Duffy epidemiologic

evidence (showing zero cases of narcolepsy associated with FluMist vaccination), asserting that

its findings were not meaningful because the incidence rate (the expected cases of narcolepsy

absent vaccination) was too low in the first place. Third Steinman Rep. at 9. If, he reasoned, the

background incidence rate is less than one case in the investigated groups, there is no way to

actually draw any meaningful conclusions from the study. Id. He also noted that the Duffy

authors were unsure of the expected incidence rate of narcolepsy by a factor of 10, which Dr.

Steinman understood to mean that the authors did not even know the true baseline rate. Id.

Because of these limitations, Dr. Steinman argued that Duffy should not be given much weight.

10

Dr. Steinman next addressed the various scientific evidence showing that the cross-

reactive nucleoprotein antibodies were present in patients without narcolepsy (a matter Ahmed II

explicitly acknowledged). Third Steinman Rep. at 14; Ahmed II at 8-9. He offered a possible

explanation, proposing that the presence of the autoantibodies could simply reflect a subacute

infection, and thus signal the first steps of disease development – especially when found in

individuals that also likely carry the narcolepsy susceptibility allele (HLA DQB1*0602). Third

Steinman Rep. at 15. He noted that several studies show that up to 20 percent or more of

otherwise healthy individuals could have antinuclear antibodies associated with other

autoimmune diseases, such as systemic lupus erythematosus, Hashimoto’s thyroiditis, and

multiple sclerosis. Id. at 15 (citing Ahmed II at 8-9). Dr. Steinman thus did not find this a

significant detracting point from his theory relating the nucleoprotein antibodies to narcolepsy.

Dr. Steinman also reacted to Dr. Kohrman’s reliance on an article written in response to

Ahmed II. See A. Vassalli et al., Comment on “Antibodies to Influenza Nucleoprotein Cross-

React with Human Hypocretin Receptor 2, 7 Science Translational Medicine 314 (2015), filed as

Resp’t’s Ex. C-1 (“Vassalli”); Third Steinman Rep. at 19. Vassalli included data from narcolepsy

studies involving dogs and mice, and argued that although the mechanism causing destruction of

the hypocretin receptors in narcoleptic patients remained unclear, there was no evidence in these

studies that antibodies against the hypocretin receptors were the cause of narcolepsy. Vassalli at

1. In Dr. Steinman’s own rebuttal article13 to the Vassalli comment, he had discussed the study’s

failure to provide additional data regarding the influenza virus. Third Steinman Rep. at 19. Dr.

Steinman concluded that because the Vassalli data contained no studies related to influenza or

cross-reactivity specifically, the conclusions reached in the study were preliminary, and it would

be premature to determine the relevancy of such conclusions. Id.

Finally, Dr. Steinman reiterated his prior assertion (set forth in his first report) that the

nucleoprotein in FluMist has the same protein sequence as the hypocretin receptors in the brain,

and hence sufficient homology for an autoimmune cross-reactive process to occur, at least in

theory. Third Steinman Rep. at 20-21. Because of this matching sequence, Dr. Steinman

expressed confidence that molecular mimicry was the mechanism linking the FluMist vaccine to

Petitioner’s narcolepsy, especially given the relevant legal causation standard applicable in

Vaccine Program cases. See id. at 21-22.

B. Respondent’s Experts

1. Dr. Michael Kohrman

13

L. Steinman et al., Response to Comment on “Antibodies to Influenza Nucleoprotein Cross-React with Human

Hypocretin Receptor 2, 7 Sci. Translational Med. 314 (Nov. 2015), filed as Pet’r’s Ex. 74 (ECF No. 31-10).

11

Respondent’s first expert report was authored by Dr. Michael Kohrman, who primarily

opined that the relevant medical and scientific literature reveals no evidence that a live H1N1-

containing influenza vaccination is associated with narcolepsy. See June 29, 2015 Report, filed

on July 13, 2015, as Resp’t’s Ex. A (ECF No. 22-1) (“First Kohrman Rep.”). Further, he

interpreted Mr. D’Tiole’s history of delayed sleep phase, poor sleep hygiene, and obstructive

sleep apnea as making it highly difficult to pinpoint an onset date for Mr. D’Tiole’s narcolepsy.

First Kohrman Rep. at 2-8.

As of the date of his first expert report,14 Dr. Kohrman was a Professor of Pediatrics,

Neurology, and Surgery at the University of Chicago. First Kohrman Rep. at 1; Resp’t’s Ex. B at

1. The majority of his practice is clinical work, while approximately 20 percent of his time is

devoted to research. First Kohrman Rep. at 1. He is board certified in Child Neurology and

Psychiatry, with a special focus in Child Neurology. Id. Additionally, he has qualifications in

clinical neurophysiology, sleep medicine, and epilepsy, and is board certified by the American

Board of Sleep Medicine, among other certifications. Resp’t’s Ex. B at 2-4. His clinical practice

focuses on treating refractory epilepsy, with an underlying interest in sleep medicine. Id. at 1. He

treats child patients with epilepsy and sleep problems on a daily basis. Id. at 2. His opinion arose

from review of Mr. D’Tiole’s medical records and his medical history. Id.

Dr. Kohrman first addressed Dr. Steinman’s theory that FluMist could be linked to

narcolepsy. He began by noting that Dr. Steinman’s own research had nothing to do with

FluMist, but rather had proposed (at least before the publication of Ahmed II)15 that the adjuvant

in the Pandemrix vaccine (a different form of flu vaccine, moreover) could be the possible cause

of narcolepsy in the European studies. First Kohrman Rep. at 9. FluMist is a non-adjuvanted

vaccine, meaning that the adjuvant suggested to cause narcolepsy would not have been present in

Mr. D’Tiole’s vaccine. Ahmed I also hypothesized that the antigens in the various vaccines

studied were possibly different, leading Dr. Kohrman to conclude that Dr. Steinman’s research

was not supportive of cross-reactivity between FluMist and the hypocretin receptors. Id. At

bottom, all of the reported vaccine-related cases of narcolepsy were linked to vaccines produced

in a single antigen extraction method, and then administered with an adjuvant. Id. at 11. There

was thus no evidence that a live influenza vaccine is also associated with narcolepsy.

Dr. Kohrman relied on the Duffy epidemiologic study to bulwark his opinion. Duffy’s

authors studied the association between narcolepsy and the H1N1 vaccine in its various

14

Dr. Kohrman is now the Director of Pediatric Neurology at Akron Children’s Hospital in Akron, Ohio. See Akron

Children’s Hospital, https://www.akronchildrens.org/cms/doctors/michael-kohrman-md (last visited Nov. 21, 2016).

15

As noted above, Dr. Steinman’s first report did not include specific reference to Ahmed II, which had not yet been

published, and therefore Dr. Kohrman’s response to the initial report in this respect addressed an issue (the

adjuvant’s role in causing narcolepsy) that Ahmed II ruled out. Respondent’s experts thereafter modified their

responses to Petitioner’s expert’s opinion in light of Ahmed II’s findings.

12

permutations, surveying 650,995 individuals in the United States vaccinated with the 2009

pandemic vaccine. Duffy at 1823. Both the inactivated form of the vaccine and LAIVs were

included. Of the patients included in the observed sample, zero developed symptoms during the

180 days following receipt, despite an expected incidence of 6.52. Id. In the 2010-11 seasonal flu

vaccine study, 870,530 individuals received some form of the vaccine, but only two had onset of

narcolepsy symptoms during the defined time period, compared to 8.83 expected. Id. at 1827.

Out of the 45,246 individuals between the ages of 10 and 19 who received an LAIV, none

developed narcolepsy despite an incidence rate of 3.84 per 100,000 individuals (meaning .83

cases of narcolepsy would have been expected). Id. The authors concluded that the forms of

influenza vaccines in the United States containing the A(H1N1) virus strain could not be

associated with an increased risk of narcolepsy. Id. at 1823. Further, the Duffy authors

hypothesized that the antigens in this particular H1N1 vaccine strain were themselves not

sufficient to increase narcolepsy incidences. Id.

Dr. Kohrman also presented literature to support his assertion that the flu wild virus is not

linked to narcolepsy. He cited an article by Partinen – the same scientist whose research on the

Pandemrix vaccine’s link to narcolepsy in Finland was discussed by Dr. Steinman in his various

reports. M. Partinen et al., No Serological Evidence of Influenza A H1N1pdm09 Virus Infection

as a Contributing Factor in Childhood Narcolepsy after Pandemrix Vaccination Campaign in

Finland, 8 PLOSone 1:7 (2013) (filed as Resp’t’s Ex. A-2) (“Partinen II”). Partinen II found that

it was unlikely the wild H1N1 virus had contributed to the increase in childhood narcolepsy in

Finland after receipt of the adjuvanted Pandemrix vaccine. Partinen II at 7. Even the Han article

relied on by Dr. Steinman did not support a link between the wild H1N1 virus and narcolepsy,

Dr. Kohrman maintained. First Kohrman Rep. at 10. Han’s authors had acknowledged that the

sample of patients in the study was not representative of China as a whole. Han at 7. Thus, Dr.

Kohrman argued, because the article did not constitute a reliable epidemiological study of

narcolepsy in China, no direct link between the wild H1N1 virus and narcolepsy could be

inferred. First Kohrman Rep. at 10.

Dr. Kohrman further proposed that Petitioner’s own medical history did not support his

claim about the causal role of the FluMist vaccine. Mr. D’Tiole had a documented history of

poor sleep habits and obstructive sleep apnea months before the diagnosis of narcolepsy was

confirmed, making it difficult to identify when the actual onset of his symptoms might have

occurred. Id. at 11. Dr. Kohrman also noted that no acute symptoms were reported after Mr.

D’Tiole’s FluMist vaccination. Id. at 8.

Respondent filed a supplemental report from Dr. Kohrman as well, reacting to Dr.

Steinman’s second report. See December 23, 2015 Report, filed on January 8, 2016, as Resp’t’s

Ex. C (ECF No. 28-1) (“Second Kohrman Rep.”). In it, Dr. Kohrman examined Dr. Steinman’s

hypothesis (supported now by Ahmed II) that the nucleoprotein antigens in FluMist cross-react

13

with hypocretin receptors, causing narcolepsy. Second Kohrman Rep. at 2. Although such

nucleoproteins might be present in killed vaccines like Pandemrix, Dr. Kohrman pointed out that

the vaccine at issue here, FluMist, is a live attenuated vaccine that involves a different master

donor virus as well. Id. He further examined the development process for FluMist, finding that

the nucleoprotein present in FluMist is derived from the Master Donor Virus A/AA/6/60, rather

than the Influenza A(H1N1) 2009 virus. Id. at 3-5; B. Zhou et al., Engineering Temperature

Sensitive Live Attenuated Influenza Vaccines From Emerging Viruses, 30 Vaccine 3691:3691-92

(2012) (Resp’t’s Ex. C-2) (ECF No. 28-3). Thus, it could not be assumed that the nucleoproteins

derived from H1N1 and present in Pandemrix were equally present in FluMist. Id. at 5. Dr.

Steinman’s third report, however, attempted to diminish the strength of this point by observing

that the protein sequences for the nucleoproteins that he alleged were cross-reacting with the

hypocretin receptors were the same for FluMist and Pandemrix. Third Steinman Rep. at 19-21.

Dr. Kohrman’s supplemental report also highlighted the uniqueness of Pandemrix and its

antigens. He thus noted that in Ahmed II, 85 percent of patients had antibodies to the hypocretin-

2 receptor, but 35 percent of vaccinated patients who did not develop narcolepsy also exhibited

these antibodies. Second Kohrman Rep. at 2, citing Ahmed II at 7. Meanwhile, those patients

vaccinated with Focetria had no antibodies against this hypocretin receptor. Id. Dr. Kohrman

relied on these findings to conclude that Pandemrix’s formula and make-up made it difficult to

extrapolate conclusions about its association with narcolepsy to other forms of the flu vaccine –

even ones more similar to Pandemrix than FluMist.

Dr. Kohrman ultimately maintained that there is no clear understanding yet for what

causes the lack of hypocretin in narcolepsy patients, and this, plus the lack of scientific evidence

and/or medical literature supporting a link between narcolepsy and FluMist, made him unable to

conclude that Mr. D’Tiole’s narcolepsy was likely vaccine-related. Second Kohrman Rep. at 5.

2. Dr. Andrew MacGinnitie

Dr. MacGinnitie also submitted two expert reports on behalf of Respondent. His first

report set forth the opinion that while there might be reliable epidemiologic evidence linking an

increased rate of narcolepsy to the Pandemrix vaccine, as well as some tentative evidence of a

link to the H1N1 wild type variant, there was no such evidence linking the FluMist vaccine,

given its distinct formulation. See December 21, 2015 Report, filed on January 8, 2016, as

Resp’t’s Ex. D (ECF No. 29-1) (“First MacGinnitie Rep.”).

Dr. MacGinnitie is an attending physician and the clinical director for the Division of

Immunology at Boston Children’s Hospital. First MacGinnitie Rep. at 1; Resp’t’s Ex. E. He is

also an Assistant Professor of Pediatrics at Harvard Medical School. First MacGinnitie Rep. at 1.

He is board certified in Allergy/Immunology and Pediatrics, and has been in practice as an

14

allergist/immunologist for 15 years. Id. Further, he has seen patients with various immunologic

diseases, including reactions to vaccines. Id.

Dr. MacGinnitie explained the differences in production and administration between

Pandemrix and FluMist, as well as the different and distinct mechanistic ways the vaccines

stimulate an immune response. Id. at 9. Subunit inactive vaccines (like Pandemrix) are produced

by growing several influenza strains in chicken egg cells, which are then inactivated to kill the

potentially infectious virus. Id.; R.J. Cox et al., Influenza Virus: Immunity and Vaccination

Strategies, Scandinavian J. of Immunology 59:6 (2004) (Resp’t’s Ex. D-11) (ECF No. 30-2).

Some of these subunit vaccines also include an adjuvant to increase the immune response. Id.

LAIVs such as FluMist, by contrast, are cold-adapted, delivered into the nose where they

replicate in the nasal epithelium, rather than in the lower respiratory tract (i.e., the lungs). Id. at

8-11. FluMist was, by design, intended to result in more limited viral replication in the same

region of the body where the wild flu virus might attack (the mucosal membranes of the

respiratory tract), but would also generate antibody titers lower than that of a subunit vaccine like

Pandemrix. First MacGinnitie Rep. at 9.16 It is those antibodies that would, under Dr. Steinman’s

theory, produce the autoimmune reaction, via molecular mimicry, necessary to inhibit the

hypocretin receptors.

Further, narcolepsy has been linked to only one of these specific vaccine types –

adjuvanted subunit vaccines. First MacGinnitie Rep. at 9. Adjuvanted vaccines were shown in

data to elicit a greater response than non-adjuvanted vaccines. Id.; C. Waddington et al., Safety

and Immunogenicity of ASO3B Adjuvanted Split Virion Versus Non-Adjuvanted Whole Virion

H1N1 Influenza Vaccine in UK Children Aged 6 Months-12 Years, BMJ 340, at *8 (2010)

(Resp’t’s Ex. D-12) (ECF No. 30-3). Pandemrix is an adjuvanted vaccine, while FluMist is an

LAIV and is non-adjuvanted. First MacGinnitie Rep. at 9-10. Looking at the differences in the

production of the two vaccines, the immune responses they cause, and the difference between

adjuvanted and non-adjuvanted vaccines, Dr. MacGinnitie could not conclude that any

demonstrated link between Pandemrix and narcolepsy applied to a non-adjuvanted vaccine like

FluMist.

Dr. MacGinnitie also emphasized that reliable epidemiologic evidence (in particular,

Duffy) demonstrated that there was in fact no connection between FluMist and narcolepsy. First

MacGinnitie Rep. at 10. Duffy observed zero cases of narcolepsy out of thousands of patients

who received FluMist. Duffy at 1. This result was the same for non-adjuvanted subunit vaccines

during the 2009 influenza season. Id. at 5. The study was also extended to the 2010 influenza

season, but again, no cases were found in nearly 130,000 studied individuals. Id. If there were a

16

As previously noted, Dr. Steinman agreed with this proposition in his own literature, such as the Ahmed articles

(although he did not acknowledge the point in the expert reports filed in this case). See, e.g., Ahmed I at 5.

15

link between FluMist and narcolepsy, at least one case would have been seen in such a large test

group of patients, Dr. MacGinnitie proposed.

Dr. MacGinnitie raised another point that he maintained undercut Petitioner’s theory.

Narcolepsy is almost always seen in patients, like Mr. D’Tiole, who have the HLA DQB1*0602

allele. First MacGinnitie Rep. at 3. This HLA protein produces protein fragments on the cells’

surfaces, and T-cells (that would be generated in an immune response, whether brought on by

infection or immunization) recognize this combination. Id. When the T-cells are activated, they

kill infected cells and help B-cells to generate antibodies. Id. Dr. MacGinnitie stressed that

because most patients with narcolepsy carry this allele, T-cells specific to it would be essential to

develop narcolepsy. Id. Yet there is to date insufficient scientific evidence that these T-cells

exist. Indeed, the only literature suggesting T-cell involvement in the development of narcolepsy

was a paper written by Dr. Mignot, one of Petitioner’s treaters at Stanford’s Sleep Center. E.

Mignot et al., CD4+ T Cell AutoImmunity to Hypocretin/Orexin and Cross-Reactivity to a 2009

H1N1 Influenza A Epitope in Narcolepsy, 5 Sci. Translational Med. 216 (2013) (filed as Resp’t’s

Ex. D-4) (“Mignot”). Mignot showed that a fragment of the influenza hemagglutinin protein was

cross-reactive with hypocretin, and activated T-cells were identified in narcolepsy patients that

recognized both hypocretin and the hemagluttinin protein, thus supporting the hypothesis that the

immune response to the hemagluttinin protein could also damage the cells that produce

hypocretin. Mignot at 7, 9. But the Mignot paper was ultimately retracted because its results

could not be replicated, and therefore a critical component needed to confirm Petitioner’s theory

was missing.17

Dr. MacGinnitie devoted some time in his first report to attacking the bases for Dr.

Steinman’s theory about cross-reactivity between proteins in the flu vaccine and hypocretin

receptors. He first noted that the evidence supporting this theory was limited to Ahmed II – a

single report written by Ahmed and Dr. Steinman based on a very small sample of 20 patients.

First MacGinnitie Rep. at 6. He also argued that Ahmed II lacked specific controls, because it

failed to include data on antibodies in individuals who received the Pandemrix vaccine but did

not develop narcolepsy, or in patients who developed narcolepsy unrelated to vaccination. Id. at

7. According to Dr. MacGinnitie, this lack of appropriate controls reduced the reliability of

findings made about the importance of these antibodies. In sum, Dr. MacGinnitie did not believe

that a single peer-reviewed report without appropriate controls was sufficient support for

17

Dr. Steinman also acknowledged that Mignot had been retracted, but emphasized that this was not due merely to

an inability to replicate results, but rather due to fraud in misrepresenting its findings. Third Steinman Rep. at 1-5.

For purposes of the present case, this is a distinction without a difference – the point remains that an element of

proof that would corroborate the more general framework of Petitioner’s theory about the autoimmune nature of

narcolepsy is missing. But, because I find that Petitioner’s theory is deficient for reasons outside of the broader

argument about the causes or nature of narcolepsy, the inability of researchers to date to provide this critical

probative link that would add scientific reliability to the overall theory is somewhat of a tangential matter, for

purposes of determining entitlement.

16

Petitioner’s theory, nor did it constitute evidence that the discussed antibodies are actually

involved in the development of narcolepsy in patients.

Dr. MacGinnitie additionally took issue with Dr. Steinman’s alleged failure to explain

why the nucleoprotein antibodies upon which he relied in his theory were also present in patients

without narcolepsy. More than 50 percent of children in Ahmed II possessed the same cross-

reactive antibodies, but did not suffer from narcolepsy. Id. at 6-7. Because of this, Dr.

MacGinnitie did not believe that these antibodies were as critical to causing narcolepsy as Dr.

Steinman’s theory suggested.

Respondent submitted a supplemental report from Dr. MacGinnitie as well. See January

31, 2016 Report, filed on February 3, 2016, as Resp’t’s Ex. F (ECF No. 33-1) (“Second

MacGinnitie Rep.”). The supplemental report responded to several points made by Dr. Steinman

in his January 2016 third report, but otherwise presented little new argument or evidence. Thus,

Dr. MacGinnitie reaffirmed his view that Duffy was reliable evidence that there was no

connection between FluMist and narcolepsy. Second MacGinnitie Rep. at 2. Though Dr.

Steinman criticized the low baseline rate in the study, Dr. MacGinnitie asserted that a low

background rate is epidemiologically desirable, since it renders even the slightest increase in

observed cases easier to note. Id. at 1-2. He also stressed that, out of over 300,000 individuals

receiving LAIV flu shots in the Duffy study, not a single identified case of narcolepsy occurred.

Id. In Dr. MacGinnitie’s view, there would have to have been some cases of narcolepsy observed

if a link truly existed.

Dr. MacGinnitie objected to Dr. Steinman’s hypothesis that the lack of observed cases of

narcolepsy related to inactivated influenza vaccines in the United States was attributable to the

lack of individuals with the HLA DQB1*0602 allele in the United States (as compared to

Finland and Sweden). Second MacGinnitie Rep. at 2. He admitted that the number of cases

would potentially be affected by the prevalence of the allele in a population, but noted that the

number would also be affected by the population size. Id. The United States is more than 20

times larger than Finland and Sweden combined, meaning that any link between the allele and

narcolepsy would have to be evident – but was not in the sample considered in Duffy. Id.

Finally, Dr. MacGinnitie expressed some additional thoughts about the competing flu

vaccine formulations in this case and their relationship to Petitioner’s theory. Thus, and in

reaction to Dr. Steinman’s assertions that Respondent could not show that Duffy studied the

same formulation of FluMist as that relevant to this case, he stated that the 2010-11 and 2011-12

seasonal influenza vaccine requirements were functionally the same. Second MacGinnitie Rep.

at 3; see FDA News Release July 30, 2010, FDA Approves Vaccines for the 2010-2011 Influenza

Season (Pet’r’s Ex. 72) (ECF No. 31-8); FDA News Release July 18, 2011, FDA Approves

Vaccines for the 2011-2012 Influenza Season (Pet’r’s Ex. 73) (ECF No. 31-9). Thus, according

17

to Dr. MacGinnitie, the flu strain in the vaccine Mr. D’Tiole received was equivalent to the

contents in the vaccine studied in Duffy, even though that study involved different years. Id.

Overall, Dr. MacGinnitie maintained, the most logical interpretation of the data and literature

presented in this case was that any increased risk of narcolepsy was associated only with the

Pandemrix vaccine, and possibly a weaker correlation to the wild type flu infection. Id.

III. PROCEDURAL HISTORY

As noted above, Petitioner’s parents originally filed this action in January 2015, alleging

that his receipt of the flu vaccine in December 2011 caused him to develop narcolepsy with

cataplexy. Petition at 1. About a month later Petitioner filed his first expert report from Dr.

Steinman. ECF No. 9. Petitioner then filed medical records along with the literature offered by

Dr. Steinman in support of his opinion, and then the Statement of Completion on March 31, 2015

(ECF No. 18).

Respondent filed her Rule 4(c) Report on July 13, 2015, asserting that Mr. D’Tiole was

not entitled to compensation because he could not carry his burden of proof under Althen.

Respondent’s Rule 4(c) Report (ECF No. 21). Specifically, Respondent alleged that there was no

evidence connecting Petitioner’s proposed theory to the vaccine he received. ECF No. 21 at 5.

Further, none of Petitioner’s treating doctors had identified the vaccine as a potential cause of

Petitioner’s condition. Id. Respondent at that time also filed her own expert report from Dr.

Kohrman. See generally First Kohrman Rep.

After the Rule 4(c) Report was filed, Petitioner filed a supplemental expert report from

Dr. Steinman on September 28, 2015 (Second Steinman Rep.). This prompted Respondent to file

in January 2016 additional expert reports of her own – a supplemental report from Dr. Kohrman,

plus a new report from Dr. MacGinnitie. See generally Resp’t’s Exs. C and D, filed as ECF Nos.

28 and 29. The expert report filing continued, with Petitioner filing a third report from Dr.

Steinman on January 19, 2016 (Third Steinman Rep.). Respondent for her part filed a

supplemental report thereafter from Dr. MacGinnitie on February 3, 2016. Second MacGinnitie

Rep.

I thereafter held a status conference with the parties to discuss the case’s progress and

possible resolution. I proposed that Respondent consider moving for a decision on the papers in

lieu of hearing, since the case’s history to date, plus my assessment of the nature of the disputed

issues – issues that both side’s experts had addressed in great detail – suggested to me that this

would be the most expeditious approach to resolving the case. See Order, dated February 16,

2016. Respondent accepted my proposal, and after an extension of time so moved, on June 20,

2016 (ECF No. 36) (“Motion”). Petitioner opposed the motion on July 20, 2016 (ECF No. 37)

(“Opp.”), and then Respondent filed a reply on August 3, 2016 (ECF No. 38) (“Reply”). The

matter is now ripe for resolution.

18

IV. PARTIES’ RESPECTIVE ARGUMENTS

Respondent’s motion argues in the main that Petitioner has not met the first Althen prong

because he cannot offer a reliable scientific theory linking FluMist to narcolepsy. Motion at 7. In

so arguing, Respondent particularly emphasized the findings from Duffy, while attempting to

rebut Dr. Steinman’s criticisms of the study’s reliability. Id. at 7-9. Respondent also proposed

that Dr. Steinman’s own theory as to cross-reactivity between nucleoproteins from the flu

vaccine and the hypocretin receptors was flawed and unreliable, for the reasons discussed above.

Id. at 9-10. And she posited that Petitioner had only conclusorily alleged that the second two

Althen prongs were met, without demonstrating real record support that reflected the theory

working in real time. Id. at 10-12.

In reaction to the motion, Petitioner asserted that in fact he has met his burden for a non-

Table claim under Althen. The theory proposed for causation is reliable (and was even deemed

“superficially plausible” by Respondent’s expert) and supported by evidence such as Han, which

suggests an association between even the wild flu virus and narcolepsy. Opp. at 24-27. Duffy, he

maintained, is too empirically flawed as a study, given Dr. Steinman’s points about its

methodologic weaknesses. Id. at 28-30. Otherwise, Petitioner argued that he had met the other

Althen prongs; witness statements place onset in February 2012, which is a reasonable timeframe

from the date of vaccination for the immunologic process proposed by Dr. Steinman to have

occurred. Id. at 33-35. And Petitioner asserted that his parents’ lack of knowledge about his

receipt of FluMist, coupled with their laymen’s unawareness of the possible causal relationship

of the vaccine to his narcolepsy, explained why treaters had not linked his vaccination to his

narcolepsy. Id. at 31-32.

Petitioner also strenuously objected to resolving this matter without a hearing, arguing

that (i) disputed fact issues among the experts required they be allowed to testify live, (ii)

testimony from Mr. D’Tiole and his family was also required in order to establish onset (as well

as corroborate the fact that treaters were not informed of Petitioner’s vaccination because his

parents mistakenly deemed it unimportant), and (iii) resolving the matter without a hearing

would violate his rights under Vaccine Rule 3(b). Id. at 13-18.

Respondent’s succinct reply repeated her earlier points for dismissal. Reply at 3-6.

Respondent also again proposed that there was no need for a hearing, citing the fact that Vaccine

Rule 8(d) allows special masters to determine when a hearing is necessary. Id. at 2.

V. APPLICABLE LEGAL STANDARDS

A. Claimant’s Burden in Vaccine Program Cases

19

To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that

he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –

corresponding to one of the vaccinations in question within a statutorily prescribed period of

time or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table

Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §

11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321

(Fed. Cir. 2010); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320 (Fed. Cir.

2006).18 In this case, Petitioner does not assert a Table claim.

For both Table and Non-Table claims, Vaccine Program petitioners bear a

“preponderance of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must

offer evidence that leads the “trier of fact to believe that the existence of a fact is more probable

than its nonexistence before [he] may find in favor of the party who has the burden to persuade

the judge of the fact’s existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v.

United States, 6 Cl. Ct. 476, 486 (1984) (mere conjecture or speculation is insufficient under a

preponderance standard). Proof of medical certainty is not required. Bunting v. Sec’y of Health &

Human Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate

that the vaccine was “not only [the] but-for cause of the injury but also a substantial factor in

bringing about the injury.” Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health &

Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human

Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). A petitioner may not receive a Vaccine Program

award based solely on his assertions; rather, the petition must be supported by either medical

records or by the opinion of a competent physician. Section 13(a)(1).

In attempting to establish entitlement to a Vaccine Program award of compensation for a

Non-Table claim (which is the kind of claim asserted in this matter), a petitioner must satisfy all

three of the elements established by the Federal Circuit in Althen: “(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.

Each of the Althen prongs requires a different showing. Under Althen prong one,

petitioners must provide a “reputable medical theory,” demonstrating that the vaccine received

can cause the type of injury alleged. Pafford, 451 F.3d at 1355-56 (citations omitted). To satisfy

18

Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding

authority. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit

rulings concerning legal issues are binding on special masters. Guillory v. Sec’y of Health & Human Servs., 59 Fed.

Cl. 121, 124 (2003), aff’d, 104 F. App’x 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Human Servs.,

No. 13-159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).

20

this prong, the petitioner’s theory must be based on a “sound and reliable medical or scientific

explanation.” Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994).

Such a theory must only be “legally probable, not medically or scientifically certain.” Id. at 549.

Petitioners may satisfy the first Althen prong without resort to medical literature,

epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical

theory. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1378-79 (Fed. Cir. 2009)

(citing Capizzano, 440 F.3d at 1325-26). Special masters, despite their expertise, are not

empowered by statute to conclusively resolve what are essentially thorny scientific and medical

questions, and thus scientific evidence offered to establish Althen prong one is viewed “not

through the lens of the laboratorian, but instead from the vantage point of the Vaccine Act’s

preponderant evidence standard.” Id. at 1380. Accordingly, special masters must take care not to

increase the burden placed on petitioners in offering a scientific theory linking vaccine to injury.

Contreras v. Sec’y of Health & Human Servs., 121 Fed. Cl. 230, 245 (2015) (“[p]lausibility . . .

in many cases may be enough to satisfy Althen prong one” (emphasis in original)). But this does

not negate or reduce a petitioner’s ultimate burden to establish his overall entitlement to damages

by preponderant evidence. W.C. v. Sec’y of Health & Human Servs., 704 F.3d 1352, 1356 (Fed.

Cir. 2013) (citations omitted).

The second Althen prong requires proof of a logical sequence of cause and effect, usually

supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,

569 F.3d at 1375-77; Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Human Servs.,

956 F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the

opinions and views of the injured party’s treating physicians are entitled to some weight. Andreu,

569 F.3d at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony

are favored in vaccine cases, as treating physicians are likely to be in the best position to

determine whether a ‘logical sequence of cause and effect show[s] that the vaccination was the

reason for the injury’”) (quoting Althen, 418 F.3d at 1280). Medical records are generally viewed

as particularly trustworthy evidence, since they are created contemporaneously with the

treatment of the patient. Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.

Cir. 1993).

However, medical records and/or statements of a treating physician’s views do not per se

bind the special master to adopt the conclusions of such an individual, even if they must be

considered and carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis,

conclusion, judgment, test result, report, or summary shall not be binding on the special master

or court”); Snyder v. Sec’y of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there

is nothing . . . that mandates that the testimony of a treating physician is sacrosanct—that it must

be accepted in its entirety and cannot be rebutted”). As with expert testimony offered to establish

a theory of causation, the opinions or diagnoses of treating physicians are only as trustworthy as

21

the reasonableness of their suppositions or bases. The views of treating physicians should also be

weighed against other, contrary evidence also present in the record – including conflicting

opinions among such individuals. Hibbard v. Sec’y of Health & Human Servs., 100 Fed. Cl. 742,

749 (2011) (not arbitrary or capricious for special master to weigh competing treating

physicians’ conclusions against each other), aff'd, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec’y

of Health & Human Servs., 100 Fed. Cl. 119, 136 (2011), aff'd, 463 F. App’x 932 (Fed. Cir.

2012); Veryzer v. Sec’y of Health & Human Servs., No. 06-522V, 2011 WL 1935813, at *17

(Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review den’d, 100 Fed. Cl. 344, 356 (2011), aff’d

without opinion, 475 Fed. App’x 765 (Fed. Cir. 2012).

The third Althen prong requires establishing a “proximate temporal relationship” between

the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to

the phrase “medically-acceptable temporal relationship.” Id. A petitioner must offer

“preponderant proof that the onset of symptoms occurred within a timeframe which, given the

medical understanding of the disorder’s etiology, it is medically acceptable to infer causation.”

Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The

explanation for what is a medically acceptable timeframe must also coincide with the theory of

how the relevant vaccine can cause an injury (Althen prong one’s requirement). Id. at 1352;

Shapiro v. Sec’y of Health & Human Servs., 101 Fed. Cl. 532, 542 (2011), recons. den’d after

remand, 105 Fed. Cl. 353 (2012), aff’d mem., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v.

Sec’y of Health & Human Servs., No. 11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May

30, 2013), mot. for review den’d (Fed. Cl. Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).

B. Law Governing Factual Determinations

The process for making determinations in Vaccine Program cases regarding factual issues

begins with consideration of the medical records. Section 11(c)(2). The special master is required

to consider “all [] relevant medical and scientific evidence contained in the record,” including

“any diagnosis, conclusion, medical judgment, or autopsy or coroner’s report which is contained

in the record regarding the nature, causation, and aggravation of the petitioner’s illness,

disability, injury, condition, or death,” as well as “the results of any diagnostic or evaluative test

which are contained in the record and the summaries and conclusions.” Section 13(b)(1)(A). The

special master is then required to weigh the evidence presented, including contemporaneous

medical records and testimony. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417

(Fed. Cir. 1993) (it is within the special master’s discretion to determine whether to afford

greater weight to contemporaneous medical records than to other evidence, such as oral

testimony surrounding the events in question that was given at a later date, provided that such a

determination is evidenced by a rational determination).

Medical records that are created contemporaneously with the events they describe are

presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient’s

22

health problems). Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Human Servs., 95

Fed. Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner’s testimony and his

contemporaneous medical records, the special master’s decision to rely on petitioner’s medical

records was rational and consistent with applicable law”), aff’d, Rickett v. Sec’y of Health &

Human Servs., 468 F. App’x 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption

is based on the linked propositions that (i) sick people visit medical professionals; (ii) sick

people honestly report their health problems to those professionals; and (iii) medical

professionals record what they are told or observe when examining their patients in as accurate a

manner as possible, so that they are aware of enough relevant facts to make appropriate treatment

decisions. Sanchez v. Sec’y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *2

(Fed. Cl. Spec. Mstr. Apr. 10, 2013); Cucuras v. Sec'y of Health & Human Servs., 26 Cl. Ct. 537,

543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993) (“[i]t strains reason to conclude that petitioners

would fail to accurately report the onset of their daughter’s symptoms. It is equally unlikely that

pediatric neurologists, who are trained in taking medical histories concerning the onset of

neurologically significant symptoms, would consistently but erroneously report the onset of

seizures a week after they in fact occurred”).

Accordingly, if the medical records are clear, consistent, and complete, then they should

be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V, 2005

WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneously medical

records are generally found to be deserving of greater evidentiary weight than oral testimony –

especially where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528;

see also Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991), aff'd, 968 F.2d

1226 (Fed. Cir.), cert. den’d, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States v.

United States Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral

testimony which is in conflict with contemporaneous documents is entitled to little evidentiary

weight.”)).

However, there are situations in which compelling oral testimony may be more

persuasive than written records, such as where records are deemed to be incomplete or

inaccurate. Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“like any

norm based upon common sense and experience, this rule should not be treated as an absolute

and must yield where the factual predicates for its application are weak or lacking”); Lowrie,

2005 WL 6117475, at *19 (“[w]ritten records which are, themselves, inconsistent, should be

accorded less deference than those which are internally consistent”) (quoting Murphy v. Sec’y of

Health & Human Servs., 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed. Cir.

1992)). Ultimately, a determination regarding a witness’s credibility is needed when determining

the weight that such testimony should be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec’y of

Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

23

When witness testimony is offered to overcome the presumption of accuracy afforded to

contemporaneous medical records, such testimony must be “consistent, clear, cogent, and

compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec’y of Health & Human

Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In

determining the accuracy and completeness of medical records, the Court of Federal Claims has

listed four possible explanations for inconsistencies between contemporaneously created medical

records and later testimony: (1) a person’s failure to recount to the medical professional

everything that happened during the relevant time period; (2) the medical professional’s failure

to document everything reported to her or him; (3) a person’s faulty recollection of the events

when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did not

exist. La Londe v. Sec’y Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746

F.3d 1334 (Fed. Cir. 2014). In making a determination regarding whether to afford greater

weight to contemporaneous medical records over contrary testimony, there must be evidence that

this decision was the result of a rational determination. Burns, 3 F.3d at 417.

C. Analysis of Expert Testimony

Establishing a sound and reliable medical theory often requires a petitioner to present

expert testimony in support of his claim. Lampe v. Sec’y of Health & Human Servs., 219 F.3d

1357, 1361 (Fed. Cir. 2000). Vaccine Program expert testimony is usually evaluated according to

the factors for analyzing scientific reliability set forth in Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 594-96 (1993). See Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328,

1339 (Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316

(Fed. Cir. 1999)). “The Daubert factors for analyzing the reliability of testimony are: (1) whether

a theory or technique can be (and has been) tested; (2) whether the theory or technique has been

subjected to peer review and publication; (3) whether there is a known or potential rate of error

and whether there are standards for controlling the error; and (4) whether the theory or technique

enjoys general acceptance within a relevant scientific community.” Terran, 195 F.3d at 1316 n.2

(citing Daubert, 509 U.S. at 592-95).

The Daubert factors play a slightly different role in Vaccine Program cases than they do

when applied in other federal judicial fora (such as the district courts). Daubert factors are

usually employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude

evidence that is unreliable and/or could confuse a jury. In Vaccine Program cases, by contrast,

these factors are used in the weighing of the reliability of scientific evidence proffered. Davis v.

Sec’y of Health & Human Servs., 94 Fed. Cl. 53, 66-67 (2010) (“uniquely in this Circuit, the

Daubert factors have been employed also as an acceptable evidentiary-gauging tool with respect

to persuasiveness of expert testimony already admitted”). The flexible use of the Daubert factors

to evaluate the persuasiveness and reliability of expert testimony has routinely been upheld. See,

e.g., Snyder, 88 Fed. Cl. at 742-45. In this matter (as in numerous other Vaccine Program cases),

24

Daubert has not been employed at the threshold, to determine what evidence should be admitted,

but instead to determine whether expert testimony offered is reliable and/or persuasive.

Respondent frequently offers one or more experts of her own in order to rebut a

petitioner’s case. Where both sides offer expert testimony, a special master’s decision may be

“based on the credibility of the experts and the relative persuasiveness of their competing

theories.” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1347 (Fed. Cir.

2010) (citing Lampe, 219 F.3d at 1362). However, nothing requires the acceptance of an expert’s

conclusion “connected to existing data only by the ipse dixit of the expert,” especially if “there is

simply too great an analytical gap between the data and the opinion proffered.” Snyder, 88 Fed.

Cl. at 743 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 146 (1997)); see also Isaac v. Sec’y of

Health & Human Servs., No. 08-601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec. Mstr. July 30,

2012), mot. for review den’d, 108 Fed. Cl. 743 (2013), aff’d, 540 Fed. App’x 999 (Fed. Cir.

2013) (citing Cedillo, 617 F.3d at 1339).

D. Consideration of Medical Literature

Petitioner’s expert filed some medical and scientific literature in this case, including

articles offered in support of his causation theories. See generally Pet’r’s Exs. 21 and 24-30. I

have reviewed all of the medical literature submitted in this case, although my decision does not

discuss each filed article in detail. Moriarty v. Sec’y of Health & Human Servs., No. 2015-5072,

2016 WL 1358616, at *5 (Fed. Cir. Apr. 6, 2016) (“[w]e generally presume that a special master

considered the relevant record evidence even though he does not explicitly reference such

evidence in his decision”) (citation omitted). Petitioner in fact filed 55 articles, making a detailed

written examination of every single one an arduous task. A write-up or summary of each within

the body of this decision is not called for, however, in explaining my disposition of Petitioner’s

claim, although the items most significant to my determination, or to Petitioner’s case, are

discussed.

E. Determination to Resolve Case Without Hearing

Here, I have opted to decide entitlement based on written submissions and evidentiary

filings, including the seven expert reports collectively filed by the parties. The Vaccine Act and

Rules not only contemplate but encourage special masters to decide petitions on the papers rather

than via evidentiary hearing, where (in the exercise of their discretion) they conclude that the

former means of adjudication will properly and fairly resolve the case. Section 12(d)(2)(D);

Vaccine Rule 8(d). The choice to do so has been affirmed on appeal. See Hooker v. Sec’y of

Health & Human Servs., No. 02-472V, 2016 WL 3456435, at *21 n.19 (Fed. Cl. Spec. Mstr.

May 19, 2016) (citing numerous cases where special masters decided on the papers in lieu of

hearing and that decision was upheld). I am simply not required to hold a hearing in every

matter, no matter the preferences of the parties. Hovey v. Sec’y of Health & Human Servs., 38

25

Fed. Cl. 397, 402-03 (1997) (special master acted within his discretion in denying evidentiary

hearing); Burns, 3 F.3d at 417; Murphy v. Sec’y of Health & Human Servs., No. 90-882V, 1991

WL 71500, at *2 (Ct. Cl. Spec. Mstr. Apr. 19, 1991).

ANALYSIS

After careful review of the expert reports, medical records, and the arguments of both

sides, I conclude that Petitioner has not established preponderant evidence in favor of his claim.

A. Petitioner Has Not Established a Reliable Causation Theory.

The central weakness in Petitioner’s case is his causation theory, offered in support of the

first Althen prong. This determination does not turn on insufficiencies in expert credentials or

credibility, but rather on fundamental holes in the theory itself, as evidenced by the reports and

responsive statements made therein by each side’s experts, as well as key literature offered to

bulwark the theory. Petitioner has, in effect, attempted to leverage a theory that is reliable with

respect to one form of the flu vaccine into a case involving a different form, but without showing

that the theory is similarly reliable in the different setting.

Petitioner relies on Dr. Steinman’s opinion that the H1N1 component in the FluMist form

of the flu vaccine has the potential to interact (via the mechanism of molecular mimicry) with the

hypocretin receptors in the brain. Important aspects of the theory are scientifically reliable. Thus,

deficiencies in the hypocretin-mediated neurotransmission process have been persuasively linked

to narcolepsy. See, e.g., Nishino at 1; Peyron at 1; Ahmed II at 2. Similarly, there is plausible

research (although, by Dr. Steinman’s admission, it remains incomplete) suggesting that

narcolepsy is likely an autoimmune-mediated condition. There is also reliable epidemiologic

evidence linking Pandemrix in Europe to narcolepsy, and studies offered by Petitioner – in

particular, the Ahmed articles co-authored by Dr. Steinman – refine the nature of the linkage

further, concluding that the adjuvant contained in Pandemrix can probably be eliminated as a

primary causal factor. This places the focus on the nucleoproteins in the H1N1 component, and

the evidence that nucleoprotein antibodies are found in higher amounts in patients with

narcolepsy who also received Pandemrix or a similar inactive flu vaccine.19

I do not dispute Dr. Steinman’s qualifications or credibility on these matters. Dr.

Steinman is often called upon in Program cases to testify about molecular mimicry as the agent

for autoimmune and other conditions – and for good reason, given his ample expertise in

studying the topic as it pertains to multiple sclerosis. See Pet’r’s Ex. 62 at 2-3, 8-42 (listing all of

19

I acknowledge Respondent’s arguments about limits to the reliability of Ahmed II – given, for example, its limited

sample size – but I need not evaluate whether it is sufficiently scientifically reliable in the first instance to find as I

do, given the larger problem of extrapolating Ahmed II’s results to a different form of the vaccine that has never

been reliably associated with narcolepsy.

26

the literature Dr. Steinman has published on multiple sclerosis). Here, Dr. Steinman has co-

authored two articles that directly pertain to the illness in dispute. He is a particularly apt expert

for this case.

Nevertheless, Petitioner’s theory has a central reliability problem. Petitioner proposes that

because Pandemrix has been credibly associated with narcolepsy, it is equally plausible that the

FluMist formulation – an LAIV – of the vaccine would do the same, merely because it also

contains the H1N1 wild virus strain. By Petitioner’s admission, there is no direct evidence of this

contention (although that fact does not mean the claim could not succeed, given the acceptance

in the Program of the notion that vaccine injuries are rare and otherwise need not be proven with

scientific certainty). See, e.g., First Steinman Rep. at 21 (“I want to emphasize that there is no

epidemiologic information linking FluMist to narcolepsy”). But the indirect evidence Petitioner

relies upon does not adequately fill the gap. On the contrary – the Ahmed articles themselves

undercut Petitioner’s attempts to apply their findings to the present circumstances.

Both Ahmed articles explicitly acknowledge that the form of manufacture of the inactive

flu vaccines (and specifically how manufacture caused a higher production of the nucleoprotein

antigens believed to give rise to the antibodies that interfere with the hypocretin receptors) likely

had something to do with the narcolepsy association. Thus, Pandemrix (strongly associated with

narcolepsy) was not manufactured in the same manner as Focetria. Ahmed II at 1. At the same

time, individuals whose antibody levels were tested in Ahmed II who had received Focetria had

close to zero nucleoprotein antibodies – and Focetria was thus not associated with narcolepsy,

likely because the cross-reactivity necessary to interfere with the hypocretin receptors could not

occur. Ahmed II at 5 (“the trace amounts of [nucleoprotein] in Focetria would not elicit durable

NP antibody responses necessary for subsequent cross-reactivity to HCRT receptor 2”), 7.

Ahmed I and II thus stand for the proposition that something about the process of inactivating the

viral strain in manufacturing that form of the flu vaccine is associated with increasing the

number of nucleotide antibodies – not that the mere presence of H1N1 proteins in any form, and

in any version of the flu vaccine, will inevitably result in sufficient levels of the antibodies to

produce the same cross-reactive autoimmune process. The research explicitly does not state that,

given its findings regarding concentrations of nucleoprotein antibodies in individuals who

received Focetria.

This case, by contrast, involves a different form of the vaccine, subject to a wholly

different manufacturing process in which the flu strain is live but attenuated. Other than also

being an H1N1 strain, Petitioner has not shown why, or how, the LAIV version would be

comparable to Pandemrix – or even Focetria, for that matter – in increasing the nucleoprotein

antibodies.20 Ahmed I for its part recognizes this as well – and, in particular, that an LAIV’s viral

20

Indeed, Respondent’s experts, such as Dr. Kohrman, have persuasively demonstrated that the H1N1 strain used to

manufacture FluMist may also be too different from the form studied in Ahmed II. Second Kohrman Rep. at 2-5.

27

elements are less likely to cross-react via the process of molecular mimicry (the mechanism

proposed in this case for the autoimmune reaction) in comparison to how Pandemrix would,

given its production of the nucleoprotein antibodies identified in Dr. Steinman’s research at

sufficient levels to interfere with the body’s hypocretin receptors. Ahmed I at 5, Ahmed II at 4-5.

Indeed, Dr. Steinman’s research acknowledges that even forms of the flu vaccine (Focetria) more

comparable to the version studied (Pandemrix) were not associated with narcolepsy. Ahmed II at

1 (“[c]urrently, no increased risk has been reported for the MF59-adjuvanted A(H1N1)pdm09

vaccine (Focetria), for which an estimated 6.5 million doses were distributed in EU/EEA, and 25

million doses were used in Europe and Latin America”). Accordingly, even if Dr. Steinman’s

research as reflected in Ahmed I and II is reliable, it has not been shown to be similarly reliable

when applied to FluMist.

Another reliability deficiency with Petitioner’s theory stems from the molecular mimicry

mechanism that Petitioner proposes would cause the production of the nucleoprotein antibodies.

It is well understood in the Vaccine Program that petitioners are not obligated to prove the

mechanism posited as a component of their causation theory. Knudsen v. Sec'y of Dep't of Health

& Human Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994). Yet here, the proposed mechanism – that

the fact that FluMist includes an H1NI viral strain from which the cross-reactivity necessary to

produce the hypocretin receptor-interfering antibodies would emanate – is directly undercut by

Dr. Steinman’s own literature. FluMist, because it is an LAIV, may inherently be less likely to

generate the cross-reactive molecular mimicry that Dr. Steinman posits would be the mechanism

causing the autoimmune interference with the hypocretin receptors. See Ahmed I at 5.

Petitioner attempted to close such gaps in his causation theory, but failed to do so

persuasively, with his arguments consistently rebutted by evidence Respondent offered. First, Dr.

Steinman argued in his reports that the wild H1N1 virus was in fact associated with narcolepsy

(thus allowing for the conclusion that any vaccine containing the strain would also have the

potential to cause narcolepsy). In support of this argument, he pointed to Han, which as noted

above observed an association between the wild H1N1 virus in China and narcolepsy. As

Respondent countered, however, there are facial difficulties with giving this particular study too

much weight. First Kohrman Rep. at 10. Indeed, the Ahmed articles themselves noted the

potential limitations of Han. See, e.g., Ahmed II at 6 (observing that “studies outside China have

not reported an increase in narcolepsy cases in unvaccinated subjects,” and proposing that the

high residential density of Beijing might simply have made the studied residents more

susceptible to the flu generally). Thus, as recognized in Ahmed II, research regarding the

Pandemrix-associated narcolepsy outbreak in Europe did not associate the wild virus with the

condition either. Partinen II at 7. While it has not been shown herein that Han’s findings are

unreliable, its findings are too inconclusive generally to give them the weight urged by

Petitioner.

28

Second, as Respondent pointed out, the Duffy epidemiologic study stood as very strong

evidence rebutting an association between an LAIV containing the H1N1 strain and narcolepsy.

As a general matter, it is true that Program petitioners need not offer epidemiologic evidence to

establish their causation burden under Althen. Indeed, because vaccine injuries are rare events,

the fact that a particular epidemiologic study suggests a vaccine is generally safe should not

prevent a claimant from prevailing (assuming the other Althen factors are met). See Harris v.

Sec’y of Health & Human Servs., No. 10-322V, 2014 WL 3159377, at *11 (Fed. Cl. Spec. Mstr.

June 10, 2014) (epidemiologic studies cannot absolutely refute causal connections, because it is

possible that a larger study could always detect an increased risk).

But this does not mean that epidemiologic evidence relevant to a vaccine at issue in a

case has no place in evaluating a claim – especially when the evidence is particularly on point

and persuasive. See, e.g., Godfrey v. Sec’y of Health & Human Servs., No. 10-565V, 2014 WL

3058353, at *19 (Fed. Cl. Spec. Mstr. June 11, 2014) (“this is not a case where epidemiologic

evidence is lacking. The epidemiology exists, and is not supportive of the theory”), mot. for

review den’d, No. 10-565V, slip op. (Apr. 29, 2016). To the contrary – in a case like the present,

where a vaccine’s formulation bears heavily on Petitioner’s causation claim, and where

Petitioner wants to leverage findings about a different vaccine formulation, epidemiologic

evidence relevant to the version of the vaccine in dispute ought to be weighed against

Petitioner’s proof in evaluating whether he has carried his overall burden. See W.C., 704 F.3d at

1361 (special master was not arbitrary in denying compensation, and noting that the special

master properly relied on several epidemiological studies in reaching his decision); Lampe, 219

F.3d at 1365 (stating “[a]n epidemiological study may be probative medical evidence relevant to

a causation determination”); see also C.K. v. Sec’y of Health & Human Servs., 113 Fed. Cl. 757,

770 (2013) (a special master may evaluate contradictory evidence offered by Respondent).

Duffy involved a study of 650,995 vaccinated individuals in the 2009-10 flu season, but

found no instances in which a child receiving the LAIV formulation of the flu vaccine developed

narcolepsy in 180 days from vaccination – far fewer instances than the incidence rate would

predict. Duffy at 2. In the 2010-11 season, only two cases were reported out of 870,530

individuals. Id. at 2-3. And of the 45,246 individuals between the ages of 10 and 19 who

received an LAIV, none developed narcolepsy despite an incidence rate of 3.84 per 100,000

individuals (meaning .83 cases of narcolepsy would have been expected). Petitioner

unconvincingly quibbles with aspects of Duffy. He argues that it has not been shown that the

form of FluMist administered to him in 2011 was the same as that in the study, which involved

the 2010-11 version – even though in fact it appears, based on the available unrebutted evidence,

that the formulation was the same. Pet’r’s Exs. 72 and 73; Third Steinman Rep. at 18 (stating that

the 2010-11 and 2011-12 influenza vaccine requirements were the same).

29

Dr. Steinman also proposes that the incidence rate is unreliable and/or underpowered

given how low it was. Yet (as Dr. MacGinnitie observed) the Duffy authors specifically took this

fact into account, noting that even if it were increased ten-fold the result would be the same, with

far fewer cases of actual narcolepsy occurring than what would be reasonably expected in the

studied population.21 An incidence rate is defined as the number of cases of a disease that

develop during a specified period of time divided by the number of subjects in a study. Michael

D. Green et al., Reference Guide on Epidemiology, in Reference Manual on Scientific Evidence

549, 567 (Federal Judicial Center, 3d ed. 2011) (“Green”). Epidemiologic studies can be limited

in their ability to detect increased incidence rates of rare diseases, such as narcolepsy. Harris,

2014 WL 3159377, at *10. However, the predictive strength of an incidence rate is directly tied

to the “power” of an epidemiologic study, which is in turn dependent on the sample size. See

Green at 576, 582 (defining power as “the probability of finding a statistically significant

association… (if it exists) in light of the sample sizes used”) (citing Proctor & Gamble Pharms.,

Inc. v. Hoffmann-LaRoche Inc., No. 06 Civ. 0034(PAC), 2006 WL 2588002, at *6 n.16

(S.D.N.Y. Sept. 6, 2006) (“the sample size of a well-designed randomized clinical is large

enough to ensure a high . . . power of detecting a clinically important overall difference between

two treatment groups”)). A study with a greater sample size, and therefore sufficient statistical

power, can more persuasively support a determination as to whether a causal link exists. See

Green at 582.

Here, Duffy’s sample size was generally large enough to render its incidence rate

projections reliable, despite Dr. Steinman’s claims to the contrary.22 Thus, from a scientific

standpoint – and from applying the Daubert criteria that govern reliability determinations in

Program cases – I find that Duffy contradicts Petitioner’s argument about the likelihood that the

FluMist form of the vaccine could cause narcolepsy, given the failure of observed, real-world

instances to rise anywhere close to the expected incidence rate. Daubert, 43 F.3d at 1321 (citing

DeLuca v. Merrell Dow Pharm., Inc., 911 F.2d 941, 958 (3rd Cir. 1990)) (“[f]or an

epidemiological study to show causation under a preponderance standard, ‘the relative risk of ...

[the defect or injury] arising from the epidemiological data . . . will, at a minimum, have to

exceed ‘2’”).

21

Dr. Steinman further argues that the low incidence rate could be attributable to the fact that those with the genetic

defect giving them a propensity to develop narcolepsy, like Mr. D’Tiole, are less common in the United States than

abroad, where the Pandemrix/inactivated form of vaccine has been shown to be linked to the condition. Third

Steinman Rep. at 9-10. But Dr. MacGinnitie persuasively established that incidence would also be affected by

population size, rather than just the prevalence of the genetic allele. Second MacGinnitie Rep. at 2. Because the

United States’ population is much larger than both Finland and Sweden, the study would have likely shown more

cases of narcolepsy if a link did in fact exist.

22

There is also some irony in Dr. Steinman’s objection that Duffy was underpowered, and hence unreliable – since

his own research from Ahmed II, so heavily relied upon by Petitioner to establish a relationship between the flu

vaccine and narcolepsy based upon the presence of nucleoprotein autoantibodies, involved only 20 individuals.

30

The basis for my determination herein to give Duffy more weight than Petitioner urges

can also be understood by reiteration of a prior point. In this case, to the extent any flu vaccine

has been associated with narcolepsy, that association is the result of epidemiologic evidence

involving Pandemrix only. Dr. Steinman’s own literature, especially Ahmed I and II, only

underscored the extent to which questions about formulation likely matter. And Petitioner has

heavily relied on other epidemiologic evidence involving the wild virus, like Han. Given the

backdrop, epidemiologic evidence involving the specific vaccine formulation at issue in this case

becomes especially relevant – and the conclusions of such evidence therefore become more

probative.23

I again acknowledge that components of Petitioner’s theory in this case have reliable

foundations, even if some of the research relied upon remains preliminary, as Dr. Steinman has

admitted. Petitioner’s theory could well become more reliable once there is stronger proof

linking the LAIV form of the H1N1 flu vaccine, or better and more consistent evidence linking

the H1N1 wild virus alone, to narcolepsy. Studies measuring the nucleoprotein antibody levels in

individuals vaccinated with FluMist would also be useful in supporting the theory. See Ahmed II

at 8 (noting that these kind of findings would constitute a step toward understanding vaccine-

associated narcolepsy, and therefore future studies would be beneficial to further understand the

mechanism linking narcolepsy and the flu vaccine). At present, however, Dr. Steinman’s own

research suggests that the theory he proposes applies only to a form of the flu vaccine not at issue

in this case. It therefore lacks sufficient reliability in this context to carry Petitioner’s Althen

prong one burden.

Petitioner and his expert protest that the Vaccine Act’s evidentiary requirements do not

demand scientific exactitude, and thus for me to find the first prong has not been satisfied is to

unfairly increase his burden of proof. See, e.g., Opp. at 24-25, Second Steinman Rep. at 8. But I

have not done so in my analysis. For, even if a petitioner need only demonstrate a “plausible”

theory, the scientific evidence offered to meet that standard must itself be reliable, based on the

same standards that would apply to it outside the courtroom. Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 152 (1999) (Daubert factors exist “to make certain that an expert,

whether basing testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an expert in the

relevant field”).

Thus, although the Vaccine Act does not require a petitioner to prove with scientific

certainty that his theory is plausible (and special masters make legal determinations about

23

Indeed, in this case Petitioner has arguably put epidemiologic evidence directly into contention. Where a

petitioner relies on such evidence to suggest a vaccine likely could cause a particular disease or condition, then he

must also persuasively explain or rebut contrary evidence – he cannot simply take refuge behind the general

proposition that Vaccine Act claimants need not usually offer such evidence.

31

evidentiary weight – not scientific determinations), it does require a chain of reliable

propositions supporting petitioner’s theory – and here important links in the chain are missing. It

is simply too great of a leap for me to conclude that, because one form of the flu vaccine may

plausibly cause narcolepsy due to manufacturing differences that promote an excess of certain

antigens that could theoretically provoke an autoimmune reaction, a significantly different form

of the vaccine would necessarily have the same effect in the United States – especially given

reliable epidemiologic evidence to the contrary, as well as admissions found in Petitioner’s own

scientific evidence.

B. The Other Althen Elements Have Not Been Met

Although my decision turns on Petitioner’s inability to offer a persuasive and reliable

theory of causation, I also find that the other Althen prongs have not been met, for reasons

somewhat independent of the above analysis.

First, the “did cause,” second Althen prong has not been met with preponderant evidence.

Mr. D’Tiole cannot establish that he in fact experienced an autoimmune process, in the manner

outlined by Dr. Steinman’s theory, culminating in his narcolepsy. The record lacks direct24 or

indirect evidence of the existence of an autoimmune post-vaccination reaction, reflected by some

other test result or symptom. What is left is the fact that (crediting Ms. DePlush’s statements)

Petitioner began to experience some narcolepsy symptoms after his February 2012 surgical

procedure, and then additional symptoms several months later, with nothing in the intervening

period to suggest any progression or continuation of symptoms. This does not constitute a

coherent, logical sequence of cause and effect that could persuasively be related to his December

2011 vaccination. Dr. Steinman largely appears to assume that the fact that narcolepsy followed

vaccination is proof enough of a relationship – an assumption the Program soundly rejects. See,

e.g., Moberly, 592 F.3d at 1323 (“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”); Grant, 956 F.2d

at 1148.

Second (and with respect to the third Althen prong), Petitioner has not adequately

demonstrated that the proposed timeframe in which he would be expected to experience the

autoimmune process interfering with his hypocretin production, and resulting in narcolepsy, was

medically reasonable. It is true that Dr. Steinman’s theory proposes a timeframe that is fairly

long, and which has some reliable basis. Working from the Pandemrix literature, plus Han, Dr.

24

Thus, there is no evidence that Petitioner had any of the H1N1-derived nucleoprotein antibodies that would

theoretically interact with his hypocretin production – although I acknowledge that this evidentiary omission does

not deserve significant weight, since it is not likely any of Mr. D’Tiole’s treaters would have even thought to look

for the presence of these antibodies in the first place.

32

Steinman posits that the autoimmune reaction could take several months to develop, since

narcolepsy is itself usually diagnosed in such a time lag after vaccination or likely infection date.

First Steinman Rep. at 17, 19. Given that Petitioner experienced his symptoms no sooner than

about seven to eight weeks from his receipt of FluMist, and no later than April 2012 (which the

medical records suggest, based on the first time he mentioned his symptoms to a treater),

Petitioner’s reported onset is well within that timeframe.25

However, the medical records are inconsistent on the scope or progression of these

symptoms in the ten months after Mr. D’Tiole received the vaccine. Thus, although there is

evidence of onset in the late winter of 2012, the records from Petitioner’s neurologic and

epilepsy consult in October 2012 make little mention of sleep problems as Petitioner’s primary

concern, and do not themselves corroborate the earlier records. And, as noted above, there is zero

record evidence that evinces the existence of an autoimmune process occurring in the seven

months after vaccine administration. It is therefore impossible to conclude that the proposed

timeframe actually played out as would be expected. Dr. Steinman has also not offered an

explanation for why an individual’s narcolepsy would take such a stuttering, up and down course

under his theory, with the molecular mimicry mechanism he posits beginning at the time of

vaccination but thereafter taking over nine months to develop, with many subsequent lulls.26

C. A Hearing Was Not Necessary to Resolve this Case

In deciding as I do, I am declining Petitioner’s request that I conduct a hearing. The

choice of how best to resolve this case is a matter that lies generally with my discretion, but

given Petitioner’s protestations I shall explain my reasoning.

A hearing usually provides a petitioner with the opportunity to put on live testimony,

which aids the special master most in cases where witness credibility is at issue, or where there is

a need to pose questions to a witness in order to obtain information not contained in, or not self-

evident from, the existing filings. See, e.g., Hooker, 2016 WL 3456435, at *21 (discussing a

25

It should be noted that the literature discusses this timeframe in relation to diagnosis of narcolepsy, not onset –

and thus suggests that onset would be sooner. See S. Nevsimalova, Narcolepsy in Childhood, 2009 Sleep Medicine

Reviews 13, at 2 (Pet’r’s Ex. 35) (ECF No. 11-8).

26

For added background in evaluating whether the timing of onset in this case was medically acceptable, it is

instructive to compare this case with the only other reasoned decision of which I am aware addressing the propensity

of some forms of the flu vaccine to cause narcolepsy, Garrison v. Sec’y of Health & Human Servs., No. 14-762V,

2015 WL 7424016 (Fed. Cl. Spec. Mstr. Oct. 29, 2015). The petitioner in Garrison received the flu vaccine in

November 2011, and (as medical records plainly established) began experiencing sleepiness and related symptoms

within a week or two. By May 2012, she was diagnosed with narcolepsy. Garrison, 2015 WL 7424016, at *1-2.

Temporally this onset is far closer to the vaccine’s administration than in the present case, where (even if I accept

Petitioner’s assertions about onset occurring in February 2012) there is a two-month lag, followed by a fluctuating

course of symptoms over the next six months. Moreover, the medical records in this case are inconsistent on onset,

with some suggesting Mr. D’Tiole’s narcolepsy did not begin until March or April 2012.

33

special master’s discretion in holding a hearing and the factors that weighed against holding a

hearing in this matter); Murphy, 1991 WL 71500, at *2 (no justification for a hearing where the

claim is fully developed in the written records and the special master does not need to observe

the fact witnesses for the purpose of assessing credibility). It may also, in certain circumstances,

permit a claimant to expand upon or illuminate points already set forth in paper filings, or

respond to unanticipated questions raised in the matter – but again, only where necessary to

reach a decision.

In this case, live witness testimony was not required in order for me to reach a reasoned

decision, which did not turn on a credibility determination. The largest weakness in Petitioner’s

case is his causation theory as proposed by Dr. Steinman. Dr. Steinman’s credibility on the topic

at hand was established by his reports, burnished by his reputation and credentials (given that he

frequently appears in Program cases as an expert).27 Indeed, it is evident that both sides have

offered expert opinions from individuals with the necessary backgrounds and experience to give

them. Thus, I need not hear Dr. Steinman (or any expert for that matter in this case) “live” to

weigh his theory, since personally evaluating his candor was not required for me to decide the

case.

I further note that Petitioner had sufficient opportunity to present his arguments, along

with supportive expert testimony. Petitioner offered three reports from Dr. Steinman, providing

ample elaboration of his views as well as reacting to the critiques lobbed by Respondent’s

experts in their own reports. The timing of the filing of these reports illuminates the numerous

opportunities Petitioner had to bulwark his theories in light of Respondent’s challenges, and thus

the extent to which he has had a “full and fair” opportunity to make his case. Thus, Dr.

Steinman’s first report was filed less than one month after the case’s initiation in early 2015,

with the second (responding to the points raised by Dr. Kohrman) filed in September of that

same year. The third supplemental report (which, at 23 pages, was nearly as long as the first

report) followed Dr. Kohrman’s supplemental report and Dr. MacGinnitie’s first report, both of

which were filed in early 2016.

In addition, I note that the parties’ experts thoroughly addressed the issues relevant to

causation in their reports, allowing me to discern the problems with Petitioner’s theory that I

have identified above without needing to question any expert directly about a topic that had only

occurred to me. Respondent’s experts squarely challenged in their reports the extent to which the

Ahmed I and II findings about Pandemrix applied to FluMist. See, e.g., First MacGinnitie Rep. at

9 (“Flumist and Pandemrix are very different vaccines administered by different routes and

causing distinct immune responses,” and “narcolepsy has only been associated with a specific

27

I also note that I have personally heard Dr. Steinman testify several times in different Program cases, and thus had

repeated opportunities to observe him and weigh his personal credibility. While I have not always found his opinion

persuasive with respect to a given claim, I have never doubted his competency or expertise.

34

type of subunit vaccine”). In turn, Petitioner and his expert were clearly made aware of

Respondent’s arguments, and Dr. Steinman endeavored in his two supplemental reports to

answer and rebut all of them. I had no additional questions to pose to Dr. Steinman that he had

not already answered, or had been given the opportunity to answer.28

I similarly did not need to hear directly from Petitioner or his family members. There are

many cases where witness testimony about the nature of a symptom or its onset is critical to

determining a fact issue. See, e.g., Rich v. Sec’y of Health & Human Servs., No. 12-742V, 2015

WL 5882324 (Fed. Cl. Spec. Mstr. Sept. 16, 2016) (fact hearing required witness testimony to

determine onset of petitioner’s ADEM symptoms); Reddy v. Sec’y of Health & Human Servs.,

No. 13-208V, 2015 WL 5578610 (Fed. Cl. Spec. Mstr. Aug. 26, 2015) (determining onset of

symptoms through witness testimony at fact hearing to resolve whether claim was timely filed);

Bray v. Sec’y of Health & Human Servs., No. 10-207V, 2014 WL 5025173 (Fed. Cl. Spec. Mstr.

Sept. 16, 2014) (case required witness testimony to determine if petitioner received the flu

vaccine). In such instances, it is necessary to evaluate the witness’s demeanor live in order to

determine how much weight to give a factual allegation. But here, I can dispense with live

testimony – and even credit all of the witness testimony as set forth in written declarations as

true – but still reach the same conclusion.

For example, Petitioner argues that fact witnesses in this case would attempt to establish

that onset of petitioner’s narcolepsy occurred around the time of his operation in February 2012.

Opp. at 18. Some of this testimony would be in opposition to medical records – for example,

those records where Petitioner or his family proposed a somewhat later onset. But even if I

simply accept as true Petitioner’s assertion that onset began around the time of his February 2012

surgical procedure, my finding that Petitioner has not demonstrated that FluMist could cause

narcolepsy remains. Finding in favor of Petitioner on the onset issues after hearing such

testimony would not cause him to prevail.

Petitioner also proposes that some of his narcolepsy treaters might have identified the

FluMist vaccine as a trigger for his narcolepsy had they been aware that he received it, thus

strengthening his call for live testimony about onset. Opp. at 17-18. While treater views are

important in Program cases, however, the assumption that a treater would have offered support

for FluMist’s causal role is speculative. Moreover, the particular treater identified, Dr. Mignot,29

was known to Petitioner and could easily have been contacted (whether in the course of this

28

Importantly, six months passed from the date of Dr. Steinman’s third expert report and Petitioner’s brief filed in

opposition to Respondent’s motion – giving him even more time, had he so chosen, to file additional statements

from Dr. Steinman (or other experts) on the issues in contention.

29

Notably, this is the same Dr. Mignot whose research findings on a component of Dr. Steinman’s overall theory

about autoantibodies blocking hypocretin receptors could not be replicated – a failure that Dr. Steinman opted to

characterize as fraudulent in nature. Third Steinman Rep. at 1-5.

35

matter or in briefing the motion to dismiss) and asked to make a supporting declaration based on

the known fact that Mr. D’Tiole received the FluMist vaccine, but was not.30 Dr. Mignot has

offered opinions about the propensity of the flu vaccine to cause narcolepsy before in other

cases, and his unavailability herein has not been established. See, e.g., Garrison, 2015 WL

7424016, at *7.31 In any event, I need not accept a treater opinion, or give it the weight urged by

a claimant, that itself is not reliable or founded on reliable evidence – and because Dr.

Steinman’s opinion has not been found to be reliable when applied to FluMist, the fact that a

treater might espouse the same theory would not alter my conclusion. Synder, 88 Fed. Cl. at 746

n.67.

This point underscores another reason for forgoing a hearing. As noted above, the

deficiency in Petitioner’s causation theory was discernible from review of the expert reports

alone. Dr. Steinman proposed that the presence of the H1N1 wild virus component in FluMist

would likely have the same impact as that component contained in different form of vaccine. But

the very studies he helped author, and that he cites in support of his theory, themselves point to a

contrary conclusion: that it was the manner in which the H1N1 components were affected by

inactivation, rather than the mere inclusion of the flu virus in any vaccine, that played the

primary role in causing narcolepsy. My conclusions about the deficiencies in Petitioner’s theory

were derived from close consideration of the parties’ competing reports and their supporting

literature, and did not require me to question them (any more than I would be obligated to

question them at hearing).

Petitioner insists that the mere fact that his expert embraces an opinion in opposition to

the Respondent’s experts means that there exist “genuine issues of fact that must be fleshed out

further with witness testimony.” Opp. at 15. But this misconstrues the factors I am to weigh in

deciding when a hearing is required. Prior decisions have recognized that a special master’s

discretion in deciding whether to conduct an evidentiary hearing “is tempered by Vaccine Rule

3(b),” or the duty to “afford[] each party a full and fair opportunity to present its case.” Hovey,

38 Fed. Cl. at 400-01, citing Rule 3(b). But the rule also includes the obligation of creation of a

record “sufficient to allow review of the special master’s decision.” Id. Thus, the fact that a claim

is legitimately disputed, such that the special master must exercise his intellectual faculties in

30

Dr. Mignot began treating Petitioner in 2014. This matter was filed in 2015, but Petitioner only offered expert

support for his claim from Dr. Steinman. I did not indicate my intent to permit Respondent to make a motion for a

ruling on the record until March 2016. Petitioner subsequently filed his opposition to Respondent’s motion on July

20, 2016 (ECF No. 37). No reason has been provided why Dr. Mignot could not have been, or was not, asked to

provide support for Petitioner’s argument herein at any time in 2015 or this year.

31

Garrison was decided in favor of the petitioner, but in circumstances in which Respondent did not offer her own

expert, and opted instead simply to request a ruling on the record based upon the petitioner’s submissions. Garrison,

2015 WL 7424016, at *1 (Respondent filed only a Rule 4(c) Report requesting a ruling on the record). Accordingly,

the special master’s determination was based mainly on whether the petitioner had offered sufficient proof to meet

the Althen prongs, without confronting the issues herein.

36

order to decide a matter, is not itself grounds for a trial (for if it were, trials would be required in

every disputed case).

Rather, the standard is whether Petitioner has had a fair chance to present his case – and

here he has. This is not a case where the diagnosis is in dispute, such that I would benefit from

hearing an expert explain his interpretation of the record. The issue disputed by the experts –

whether research involving Pandemrix applies to FluMist – is self-evident from their reports. As

previously noted, moreover, I have deemed Petitioner’s allegations about onset as true, removing

another disputed fact that under other circumstances might have required an evidentiary hearing

to resolve. The experts all had ample opportunity to review each other’s opinions and respond

accordingly, in keeping with the “full and fair opportunity” duty that informs whether to hold a

hearing. And those reports, plus the ample medical and scientific literature offered in connection

therewith, were all filed – thus providing the record necessary to resolve a motion for review,

should Petitioner choose to exercise that opportunity. Resolution of the primary disputed issue –

the first Althen prong – did not require live testimony simply because it was a contested matter.

The third reason for not holding a hearing is less substantively important, but still

significant. The Vaccine Program is currently inundated with cases, with filings growing at a rate

faster than the existing special masters (whose numbers are limited by the Vaccine Act itself) can

handle. See Hooker, 2016 WL 3456435, at *22 (“[t]he special masters of this court, designated to

decide these cases, now face nearly overwhelming numbers of cases on each of their dockets,

being required to resolve many more cases than in past years, but with the same number of

special masters”). This means that legitimately contested matters cannot possibly be heard

promptly after they are ready, even discounting the need to schedule hearings at times mutually-

convenient to counsel, witnesses, and experts.32 Under such circumstances, special masters must

necessarily reserve trials for matters where live witness testimony is vital to resolution. Other

cases, no matter how hotly contested, can be fairly, and efficiently, resolved on the papers, even

if they call for close review of the file and painstaking evaluation of expert positions. This case

presents such an instance.

32

This case, for example, could not have been heard until the second half of 2017 at the earliest, given my present

calendar schedule for entitlement hearings – which at the moment anticipates conducting ten individual hearings

before Memorial Day 2017. Thus (and taking into account usual post-trial briefing), had I scheduled this case for

hearing, it is unlikely I would have completed a decision in the matter before mid-2018. By contrast, this written

decision is being released in 2016, and less than six months from the date the case was ripe for decision.

37

CONCLUSION

The record does not support Mr. D’Tiole’s contention that the FluMist form of the flu

vaccine could cause his narcolepsy or cataplexy, or did so. There is no more than a temporal

relationship between vaccination and his subsequent symptoms – and, moreover, one that is not

particularly close, and which the proposed theory is somewhat vague in addressing. Petitioner

has not established entitlement to a damages award.33

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

33

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing

their right to seek review.

38