Greene v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 11-631V

(to be published)

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

ROY GREENE, *

*

Petitioner, * Filed: August 2, 2019

*

v. *

*

SECRETARY OF HEALTH * Tetanus-Diphtheria (“Td”)

AND HUMAN SERVICES, * Vaccine; Evidentiary Support

* for Onset Timeframe; Expert

Respondent. * Opinions; Vaccine Trial

* Risk Intervals

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

Richard Gage, Law Offices of Richard Gage, Cheyenne, WY, for Petitioner.

Brittany Ditto, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION DENYING ENTITLEMENT1

On September 29, 2011, Roy Greene filed a petition for compensation in the National

Vaccine Injury Compensation Program (the “Vaccine Program”),2 alleging that he developed

brachial neuritis as a result of his receipt of the tetanus-diphtheria (“Td”) vaccine on July 22, 2009.

Pet. (ECF No. 1). Mr. Greene originally asserted both a Table injury claim and a “non-Table”

causation-in-fact claim (id. at 2), but I dismissed the Table claim after a March 2015 fact hearing,

at which time I determined that Petitioner’s symptoms arose forty-one days after the vaccination,

1

This Decision has been designated “to be published,” and will therefore be posted on the United States Court of

Federal Claims website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat.

2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). 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 in its present form

will be available to the public. Id.

2

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.

and thus outside of the twenty-eight-day limit for a brachial neuritis Table claim. 42 C.F.R. §

100.3(a)(I)(B)).

This case has had a tortuous procedural history, but at long last the parties participated in

an entitlement hearing on May 9, 2019, at which time both sides offered expert testimony—

primarily addressing whether Mr. Greene’s brachial neuritis began in a medically acceptable

timeframe as measured from the date of vaccination. After listening to that expert testimony, and

considering the expert reports and literature offered, I find that Petitioner has not met his burden

of establishing by a preponderance that a six-week timeframe for onset of brachial neuritis after

receipt of the tetanus vaccine is medically reasonable—or that the vaccine “more likely than not”

did injure him given the undisputed facts.

Factual History

The facts relevant to the present decision are set forth in my earlier onset fact ruling. See

Greene v. Sec’y of Health & Human Servs., No. 11-631V, 2015 WL 9056034, at *1 - 4 (Fed. Cl.

Spec. Mstr. July 31, 2015) (“Fact Ruling”). They are incorporated by reference herein. The Fact

Ruling was issued after a 2015 hearing at which several witnesses testified, including Petitioner.

For present purposes, the most important of the Fact Ruling’s findings are as follows:

(a) Petitioner received the Td vaccine on July 22, 2009, in his right arm after experiencing

a significant construction-related injury to his hand at his workplace;

(b) Petitioner saw no healthcare providers in connection with his injury until September 7,

2009 (Labor Day of that year), when he went to a hospital emergency room in Houston,

Texas, complaining of sharp pain in his right upper arm that he stated had begun only a

few days before—not any time in the month of July or August;

(c) after hearing witness testimony and comparing it to the medical records filed in the

case, I determined that onset of Petitioner’s subsequently-diagnosed brachial neuritis3 had

occurred no earlier than September 1, 2009 (or 41 days post-vaccination); and

(d) based on this fact determination, I dismissed the Table claim, since Petitioner’s onset

had not been established preponderantly to have occurred within 28 days of administration

of the tetanus vaccine.

See generally Fact Ruling at *1–4, *17.

3

As recognized by the parties and their experts, the term “brachial neuritis” is medically synonymous with the terms

“Parsonage Turner Syndrome” or neuralgic amyotrophy. See, e.g., Tr. at 10, 69. I shall use the former as an overall

descriptor of Mr. Greene’s injury herein, although certain items of literature filed in this case use the other terms in

discussing the condition’s nature and etiology.

2

Brief Summary of Relevant Procedural History

Between the date of the Fact Ruling and the fall of 2016, the parties could not settle the

non-Table claim. In that period, Petitioner submitted two expert reports from an orthopedist,

Thomas W. Wright, M.D. See Report dated Dec. 18, 2015, filed as Ex. 22 (ECF No. 62); Report

dated Apr. 25, 2016, filed as Ex. 29 (ECF No. 66). But Respondent took issue with the adequacy

of the opinions expressed therein—arguing in particular that more was needed on the third Althen

prong because of the conclusory nature of Dr. Wright’s opinion, which relied heavily on the fact

that a 41-day onset was only about two weeks longer than what the Table contemplates, rendering

the extra time a de minimis difference.

In light of Respondent’s objections, I proposed that Petitioner obtain an additional expert

report addressing the Althen prong three issue. See Status Conference Order, dated Sept. 29, 2016

(ECF No. 72). Mr. Greene thereafter filed an expert report from Dr. Marcel Kinsbourne on January

6, 2017. Respondent, however, deemed this report similarly inadequate and conclusory. In

response (and mindful that the case was now nearly six years old) I proposed that Respondent

either file his own expert report or move for a ruling on the record as it stood. See Status

Conference Order, dated Jan. 26, 2017 (ECF No. 86).

Respondent took the second option, filing a motion to dismiss in March 2017. See Motion

to Dismiss, dated Mar. 31, 2017 (ECF No. 90) (“Mot.”). Respondent argued that the record itself

(which at that time included only the two Wright expert reports plus the supplemental Kinsbourne

report, as well as my fact determination on onset) established “legally insufficient proof” for a

favorable entitlement decision and should therefore be dismissed. Id. at 1. In particular,

Respondent challenged Dr. Wright’s attempt to “piggyback” on the Table timeframes for

appropriate onset, despite clear Program law establishing that non-Table claims could not do so.

Id. at 5–6; (citing Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1147–48 (Fed. Cir.

1992) (“[s]imple similarity to conditions or time periods listed in the Table is not sufficient

evidence of causation”)). Respondent also maintained that Dr. Kinsbourne’s report set forth a

scientifically unreliable opinion, and was just as conclusory as Dr. Wright’s reports in assuming

that a 41-day onset period was within what is “generally recognized” as medically reasonable for

other autoimmune illnesses, without providing reliable scientific or medical substantiation for that

proposition. Id. at 8–9.

After the Motion was fully briefed, I granted it, but Petitioner subsequently filed a motion

for reconsideration on June 16, 2017, along with two new, supplemental expert reports (one from

Dr. Kinsbourne and an additional report from Dr. Vera Byers4) as well as several items of

previously-unfiled medical literature. ECF Nos. 94–97. I subsequently withdrew my initial

dismissal decision in order to evaluate the merits of the reconsideration request, but then denied

4

The Byers report (which was accompanied by five items of literature) was mistakenly filed twice. See Ex. 59. Its

contents were not referenced during the May 2019 hearing, and Dr. Byers did not testify there.

3

entitlement a second time. Greene v. Sec’y of Health & Human Servs., No. 11-631V, 2017 WL

5382856 (Fed. Cl. Spec. Mstr. Sept. 26, 2017) (“Second Dismissal Decision”). The Second

Dismissal Decision arose from my determination that Petitioner’s experts were improperly relying

on the Table timeframes to defend the medical sufficiency of the timeframe for onset of his brachial

neuritis. Second Dismissal Decision at *6–7.

In dismissing Mr. Greene’s claim, I erroneously conflated the standards applied to

evaluating a reconsideration request with the legal standards applicable to entitlement claims

generally. Petitioner thus sought review of the Second Dismissal Decision, and the Court of

Federal Claims granted his motion on February 27, 2018, remanding this matter back to me for a

new disposition of Respondent’s original motion, based on all evidence Petitioner had submitted

and applying the proper legal standards. Greene v. Sec’y of Health & Human Servs., No. 11-631V,

2018 WL 1514440 (Fed. Cl. Feb. 27, 2018). I thereafter determined that, because Petitioner had

now offered sufficient evidence to meet his preponderant burden of proof if unrebutted, I could

not grant Respondent’s request to dismiss the case. Remand Ruling, dated May 7, 2018 (ECF No.

116) (“Remand Ruling”). However, I also found that fairness required that I permit Respondent

(based on a prior request) the chance to submit his own expert report on the timeframe question,

and that I would hold a hearing thereafter. Id. at 11, 16.5

Respondent subsequently filed an expert report from Dr. Eric Lancaster on June 14, 2018

(ECF No. 121-1), with Petitioner filing a report from Dr. Laurence Steinman on November 13,

2018 (ECF No. 128-1). This prompted a supplemental expert report filing from Dr. Lancaster on

April 9, 2019 (ECF No. 133-1), and then a third expert report from Dr. Kinsbourne on April 29,

2019 (ECF No. 134-1). The hearing was held as scheduled on May 9, 2019, with no post-hearing

briefing. The matter is now fully ripe for resolution.

Summary of Expert Testimony

1. Dr. Marcel Kinsbourne

Dr. Kinsbourne filed three written reports and testified at hearing. See Report, dated Jan.

6, 2017, filed as Ex. 38 (ECF No. 82-1) (“Kinsbourne Rep.”); Report, dated June 13, 2017, filed

as Ex. 45 (ECF No. 94-1); Report, dated Apr. 26, 2019, filed as Ex. 73 (ECF No. 134-1); Tr. at 5–

38. Dr. Kinsbourne opined that onset of Mr. Greene’s brachial neuritis occurred in a medically

acceptable timeframe, based upon his characterization of brachial neuritis as a vaccine-caused,

neuropathic autoimmune injury comparable to Guillain-Barré syndrome (“GBS”). Tr. at 8.

5

Petitioner contested my determination to permit Respondent the opportunity to file his own expert report, rather than

simply decide the case based on the existing record, but the Court of Federal Claims ruled that these objections had

no legal merit. See Order, dated May 30, 2018 (ECF No. 119).

4

As his curriculum vitae (“CV”) indicates, Dr. Kinsbourne is a pediatric neurologist. CV,

filed as Ex. 39 (ECF No. 82-2) (“Kinsbourne CV”). He received his medical degree in England,

and he has been licensed to practice medicine in North Carolina since 1967. Id. at 1. From 1967 to

1974, Dr. Kinsbourne served as an associate professor in pediatrics and neurology and a senior

research associate at Duke University Medical Center before holding a series of academic

positions, including professorships in pediatrics, neurology, and psychology. Id. at 2. His clinical

experience includes serving as a senior staff physician in Ontario from 1974–80, and as a clinical

associate in neurology at Massachusetts General Hospital from 1981–91. Id. at 2–3.

Dr. Kinsbourne has published several articles examining neurological diseases (though

none directly addressing brachial neuritis), and he is on the editorial board of several journals, such

as Brain and Cognition and Archives of Clinical Neuropsychology. Kinsbourne CV at 4, 7–40. His

focus has been on teaching cognitive and behavioral neuroscience for twenty years, retiring from

his teaching position at the New School a few years ago. Tr. at 28–29. Although a neurologist, and

although he claims to see patients occasionally, Dr. Kinsbourne has not had a regular clinical

practice for over twenty-five years, and has no specialized expertise in studying or treating

peripheral neuropathies like brachial neuritis (although he asserts that he has encountered it in his

patients). Id. at 6, 28, 36. Accordingly, the opinion Dr. Kinsbourne offered in this case was rooted

not in his personal experience (whether from clinical or research exposure) with brachial neuritis,

but arose from his own knowledge of neurology generally plus research performed specifically for

the purpose of offering an expert opinion for Petitioner.

Dr. Kinsbourne began with a general discussion of what brachial neuritis is, noting that it

usually presents abruptly in the shoulder and upper arm, with pain that can last for days or weeks,

and which can be accompanied by limb weakness and muscle atrophy. Tr. at 10. Because it is

heterogeneous in nature, its etiology can include both mechanical and immunologic causes,

although in either situation its symptoms follow a similar course. Id. at 11. When immunologic in

origin, brachial neuritis occurs because of an attack by autoantibodies, generated in response to

some external signal (i.e., infection), against either the outer myelin sheath of peripheral nerves in

the arms or the nerve axons (although Dr. Kinsbourne acknowledged that attack on the axon was

the main feature of brachial neuritis). Id.

In so maintaining, Dr. Kinsbourne analogized brachial neuritis to a different autoimmune-

in-origin peripheral neuropathy, GBS. Tr. at 12–15. He deemed GBS the most common

autoimmune peripheral neuropathy, stating that it “comes in two variants,” with one primarily

featuring demyelination of the nerve sheath, while the other, acute motor axonal neuropathy

(AMAN)6 involves attack on the nerve axon itself. Id. at 12, 14. He noted in particular that,

regardless of the variant and situs of nerve attack, medical literature supports the conclusion that

6

AMAN is a GBS subtype commonly seen in China, generally caused by the campylobacter virus. Dorland’s

Illustrated Medical Dictionary 1268 (32nd ed. 2012) [hereinafter “Dorland’s”]. It features motor axonal degeneration

with little inflammation or demyelination. P. Dyck & P.K. Thomas, 2 Peripheral Neuropathy 2200 (4th ed. 2005)

[hereinafter “Dyck & Thomas”].

5

the same antiganglioside autoantibodies are involved in the pathologic process leading to GBS

(thus allowing the inference that these autoantibodies might also be part of the process leading to

brachial neuritis). See R. Yu, et al., Ganglioside Molecular Mimicry and its Pathological Roles in

GBS and Related Diseases, 74 Infection & Immunity 6517 (2006), filed as Ex. 54 (ECF No. 95-1)

(AMAN and acute motor and sensory axonal neuropathy both associated with antibodies against

the ganglioside component of nerve membrane). GBS variants otherwise present with the same

symptoms and course, proceeding in a monophasic manner and peaking within thirty days at most

from onset (although the timeframe from instigation to onset can be longer). Id. at 13.7

To support his contention that GBS was sufficiently comparable to brachial neuritis to

apply the former’s timeframe for onset, Dr. Kinsbourne referenced several pieces of medical or

scientific literature. E.g., R. Verma, et al., Neuralgic Amyotrophy Associated with Dengue Fever:

Case Studies of Three Patients, 57 J. Postgraduate Med. 329 (2011), filed as Ex. 52 (ECF No. 94-

8) (“Verma”). Verma considered three patients who presented with brachial neuritis associated

with dengue infection (as opposed to vaccination). Verma at 329; Tr. at 51. All three developed

brachial neuritis in days to a week after experiencing an acute fever and/or rash brought on by the

instigating infection, suggesting to Verma’s authors that immune-mediated mechanisms explained

each case. Verma at 331. Dr. Kinsbourne felt Verma supported the possibility that brachial neuritis

could have a similar mechanism as GBS, such as molecular mimicry. Tr. at 19–20.

Other literature was offered to establish the existence of certain autoantibodies common to

both GBS and brachial neuritis – thus strengthening the idea that they have a common

pathogenesis. See, e.g., N. Van Alfen, The Clinical Spectrum of Neuralgic Amyotrophy in 246

Cases, 129 Brain 438, 448 (2006), filed as Ex. 51 (ECF No. 94-7) (“Van Alfen I”). Van Alfen I

observed that a certain percentage of individuals with brachial neuritis tested positive for

antiganglioside antibodies comparable to those associated with GBS. Tr. at 20–21; Van Alfen I at

444 (nine of thirty-four patients tested, or 26 percent). Van Alfen I itself, however, acknowledges

(consistent with what is understood about brachial neuritis generally in the medical community)

that “motor symptoms are said to predominate” in the condition, with sensory symptoms (which

would reflect impact on sensory nerves) secondary. Van Alfen I at 447–48.

To further support the contention that GBS and brachial neuritis are analogous autoimmune

conditions (making it reasonable to use the same timeframes for onset in both), Dr. Kinsbourne

also offered three Japanese case studies. Tr. at 22–23, 24–27, 33–34 (discussing K. Naito, et al.,

Intravenous Immunoglobulin (IVIg) Therapy with Methylprednisolone Pulse Therapy for Motor

Impairment of Neuralgic Amyotrophy: Clinical Observation in 10 Cases, 51 Internal Med. 1493

7

Dr. Kinsbourne also endeavored to identify record evidence suggesting that Mr. Greene had experienced

demyelination rather than simply an axonal attack. See, e.g., Tr. at 9–10 (citing Ex. 4 at 15 (notes from October 5,

2009 testing indicated presence of “a focal demyelinating process”)). However, Dr. Lancaster forcefully disputed that

this particular evidence established the presence of demyelination, allowing at best that the interpreting physician’s

comment “was an extremely indirect inference based upon very limited data,” and opining instead, based upon his

own reading of the same test results, that they did not establish demyelination. Id. at 96–97.

6

(2012), filed as Ex. 74 (ECF No. 134-2) (“Naito”); R. Morishima, et al., Chronic Brachial Plexus

Neuritis that Developed into Typical Neuralgic Amyotrophy and Positively Responded to

Immunotherapy, 57 Internal Med. 1021, filed as Ex. 75 (ECF No. 134-3) (“Morishima”); K.

Moriguchi, et al., Four Cases of Anti-Ganglioside Antibody-Positive Neuralgic Amyotrophy with

Good Response to Intravenous Immunoglobulin Infusion Therapy, 238 J. Neuroimmunology 107

(2011), filed as Ex. 76 (ECF No. 135-1) (“Moriguchi”)).

Naito and Morishima both examined the efficacy of immunotherapy treatments (common

to the treatment of GBS) such as intravenous immunoglobulin (“IVIG”)8 for brachial neuritis. In

Naito, for example, nine of ten brachial neuritis patients who received a form of IVIG treatment

showed improvement in motor impairment. Naito at 1499; Tr. at 22–23. Dr. Kinsbourne felt Naito

therefore supported his overall contention about GBS and brachial neuritis’s similarities—

although Naito’s authors were careful to limit their conclusions to the concept that only those

experiencing a severe form of brachial neuritis characterized by a prolonged autoimmune response

might benefit from immunosuppressive treatments like IVIG, adding that the overall efficacy of

such treatments for brachial neuritis as a whole remained unresolved—similar to the contention

(central to Petitioner’s theory herein) that antiganglioside antibodies are commonly a component

of brachial neuritis’s pathogenesis. Naito at 1499.

Morishima is a single-patient case study involving a fifty-five-year-old man who developed

brachial neuritis after a marine sports accident that caused direct injury to his arm and shoulder.

Morishima at 1021. After an initial acute response, the man’s pain and related symptoms subsided

for three months, but reappeared thereafter, proving resistant to treatment even a year later. Id. at

1021–22; Tr. at 24, 37. Lab tests revealed the man possessed the kind of antiganglioside antibodies

discussed above (suggesting to treaters that he was experiencing an ongoing autoimmune process),

leading them to employ IVIG effectively. Morishima at 1023. Morishima’s authors thus proposed

that this kind of treatment might also be of use in cases of chronic brachial neuritis. Id. at 1024–

25. Dr. Kinsbourne acknowledged that the lengthy, approximately twelve-week onset for the

patient’s brachial neuritis was an outlier, but maintained nonetheless that Morishima’s authors

appeared to have accepted it as reasonable. Tr. at 33–34.

Moriguchi considered four brachial neuritis patients, three of whom were believed to have

developed it from an antecedent infection (while the fourth had a history of symptom complaints

in connection with arm surgery). Moriguchi at 107; Tr. at 26. All of the studied individuals tested

positive for increased levels of antiganglioside antibodies, and two of the three patients whose

condition was associated with infection showed improvement after IVIG treatment—more

support, Dr. Kinsbourne maintained, for the similarities between GBS and brachial neuritis as

common autoimmune conditions with a similar pathogenesis. Moriguchi at 107–08; Tr. at 26–27.

8

IVIG is a blood product used to treat patients with antibody deficiencies. Caruso v. Sec’y of Health & Human Servs.,

No. 15-200V, 2017 WL 5381154, at *4 n.11 (Fed. Cl. Spec. Mstr. Oct. 18, 2017) (citing Clinical Uses of Intravenous

Immunoglobulin, NCBI (2005), https://www ncbi.nlm.nih.gov/pmc/articles/PMC1809480). Because it increases the

effectiveness of a patient’s immune response, IVIG is commonly employed to treat autoimmune conditions. Id.

7

Significantly, however, the individuals believed to have developed brachial neuritis after infection

(and hence those most analogous to a person, like Mr. Greene, whose brachial neuritis is posited

to have been vaccine-caused) experienced onset between one day and two weeks after infection—

not six weeks, as alleged is reasonable herein. Moriguchi at 107–08.

Dr. Kinsbourne subsequently addressed in more direct form the timeframe issue central to

Petitioner’s claim. Because of GBS’s “prototypical” nature as an autoimmune peripheral

neuropathy, Dr. Kinsbourne reasoned that the timeframe “risk intervals” that the scientific and

medical community uses for evaluating when GBS onset might properly be associated with a

vaccination could also be applied to a similar neuropathy like brachial neuritis. Tr. at 15. He thus

considered a number of items of literature he felt supported a longer timeframe—some, but not all,

of which involved brachial neuritis. E.g., H. Tseng, et al., Safety of a Tetanus-Diphtheria-Acellular

Pertussis Vaccine When Used Off-Label in an Elderly Population, 53 Clinical Infectious Diseases

315 (2012), filed as Ex. 49 (ECF No. 94-5) (“Tseng”).

Tseng, for example, considered 119,573 adults over the age of sixty-five who received the

tetanus-diphtheria-aceullar pertussis (“TDaP”) vaccine, following them over a four-year period to

evaluate the risk of adverse events (including GBS and brachial neuritis) after vaccination, in

comparison to the whole-cell form of vaccine that was previously in wide use. Tseng at 315; Tr.

at 30. Tseng’s authors noted that there was reliable evidence (derived from Institute of Medicine

(“IOM”) publications) supporting a possible causal relationship between TDaP and brachial

neuritis, thus justifying consideration of it as a possible adverse event. Tseng at 316 (citing K.R.

Stratton, et al., Adverse Events Associated with Childhood Vaccines Other Than Pertussis and

Rubella, 271 J. Am. Med. Ass’n 1602 (1994), filed as Ex. A (ECF No. 91-1) (“Stratton”)). They

found that brachial neuritis was no more common after Tdap vaccination than after Td. Id. at 316,

319; Tr. at 15–16, 30–31. In so doing, however, Tseng’s authors utilized a one to forty-two day

risk interval to look for brachial neuritis or GBS, although they did not explain why this interval

was used. Id. at 4.9

Van Alfen I included in its studied subject group individuals whose brachial neuritis was

considered hereditary or idiopathic, observing that a little over half (53.2 percent) reported an

antecedent event, with less than 5 percent of that subgroup reporting having been vaccinated before

symptoms arose. Van Alfen I at 440, 443. Although the time between vaccine administration and

onset was not reported, other onset times (after infection, exercise, or surgery) were measured as

under twenty-four hours, one to seven days, one to two weeks, and over two weeks, with most

9

In prior filings in this action, Respondent has observed the incongruity of Petitioner’s reliance on the IOM

determination of a causal association between tetanus-containing vaccines and brachial neuritis (see, e.g., Kinsbourne

Rep. at 3) and the fact that the IOM—which Tseng also relied upon as a basis for including it as a possible adverse

event—goes only to three or four weeks in proposing what a reasonable timeframe under such circumstances might

be. Mot. at 5–6, 8.

8

cases seeing onset within a week (although 10 percent of post-infection cases occurred more than

two weeks later). Id. at 443.

Other articles offered on the risk interval period said nothing about brachial neuritis

specifically. W. Yih, et al., An Assessment of the Safety of Adolescent and Adult Tetanus-

Diphtheria-Acellular Pertussis (Tdap) Vaccine, Using Active Surveillance for Adverse Events in

the Vaccine Safety Datalink, 27 Vaccine 4257 (2009), filed as Ex. 53 (ECF No. 94-9) “(Yih”); Tr.

at 30. Yih considered five categories of potential adverse events after TDaP vaccination:

encephalopathy-encephalitis-meningitis; paralytic syndromes, seizure, cranial nerve disorders, and

GBS. Yih at 4258. Nearly 700,000 TDaP recipients ten to sixty-four years old were followed for

145 weeks, relying on a forty-two-day risk interval for all potential adverse outcomes save seizure.

Id. at 4259, 4261. In doing so, Yih’s authors explained that, “not knowing the true window of risk

and not wanting to miss late events,” they relied on the same six-week period known to be

applicable to GBS, in a desire to be intentionally over-inclusive. Id. at 4259. Dr. Kinsbourne

deemed Yih significant despite its failure to include brachial neuritis as an adverse event because

it demonstrated the range of possible adverse outcomes involving possible autoimmune-mediated

conditions. Tr. at 17.

Another article discussed by Dr. Kinsbourne at hearing explored the larger question of what

kind of risk intervals should be used as a general matter in vaccine safety studies. See generally A.

Rowhani-Rahbar, et al., Biologically Plausible and Evidence–Based Risk Intervals in

Immunization Safety Research, 31 Vaccine 271 (2012), filed as Ex. 48 (ECF No. 94-4) (“Rowhani-

Rahbar”); Tr. at 17–18. Rowhani-Rahbar discussed the process for identifying and defining

biologically plausible and evidence-based risk intervals (the period of time after vaccination) for

adverse events following vaccination. Rowhani-Rahbar at 272. Risk intervals allow researchers to

study the incidence of a potential adverse effect by following risk and control intervals, and should

be determined by considering features of the adverse event, presumed or known pathologic

mechanism, and the vaccine itself. Id. at 272–73. The researchers cautioned against a too-long

interval, noting that the risk of adverse events is likely concentrated in a short period of time, and

that applying a long interval could dilute results pointing to the actual period of highest risk

(although a too-short period could also underestimate risk). Id. at 275. For these reasons, the

researchers emphasized the need to identify the most biologically-plausible timeframes possible.

Id.

Rowhani-Rahbar specifically proposed risk intervals for only two adverse events following

vaccine administration—febrile seizures and acute disseminated encephalomyelitis (“ADEM”).

Rowhani-Rahbar at 273. For ADEM (which, like brachial neuritis, is neurologic in nature, but is a

central nervous system disease rather than peripheral), Rowhani-Rahbar concluded that the most

trustworthy time period from vaccination to onset “best substantiated by available biological and

epidemiologic data” was five to twenty-eight days. Rowhani-Rahbar at 274. A secondary, longer

9

interval of two to forty-two days was also deemed “biologically plausible,”10 and therefore worthy

of consideration in order to fully assess a potential safety problem, but was more uncertain, since

“there might be reason to suspect that most of the excess risk, if any, is concentrated in a much

shorter period of time.” Id. at 275; Tr. at 18–19.

Based on the above, Dr. Kinsbourne opined that onset of Petitioner’s brachial neuritis forty-

one days after vaccination was medically reasonable. He noted that he would actually support a

similar six-week period for virtually any autoimmune disease with “no hesitation,” adding that

although he was aware of reliable scientific support for even longer onsets in the case of other

autoimmune conditions like GBS, he was not comfortable proposing a timeframe beyond forty-

two days. Tr. at 31–33. He admitted, however, that even if such a six-week period was reliable,

the probability of developing brachial neuritis diminished as the tail end of the temporal “curve”

was reached. Id. at 38. He also acknowledged that none of the evidence offered for the timeframe

question directly involved cases measuring onset from vaccination, as opposed to a different cause

(although he emphasized that some evidence, like Van Alfen I, did support the more general

proposition that vaccines could cause brachial neuritis). Id. at 37; Van Alfen I at 443.

2. Dr. Laurence Steinman

Dr. Steinman prepared one brief written report for this case and testified at hearing. Tr. at

39–71, 135–43; Report, dated Nov. 12, 2018, filed as Ex. 68 (ECF No. 128-1). He offered an

opinion that largely overlapped with what Dr. Kinsbourne presented.

Dr. Steinman obtained his medical degree from Harvard Medical School, where he

completed a fellowship in chemical neurobiology. Tr. at 39; see also CV at 1, filed as Ex. 77

(ECF No. 136-1) (“Steinman CV”). After medical school, Dr. Steinman went on to complete both

a pediatrics and neurology residency at Stanford University. Tr. at 39; Steinman CV at 1. He then

joined the faculty at Stanford in 1980, where he presently serves as the George A. Zimmerman

Professor of Neurological Sciences, Neurology, Genetics and Pediatrics. Tr. at 39; Steinman CV

at 1. Dr. Steinman claimed to have encountered brachial neuritis at least one hundred times in his

career (although he did not specify when he most recently encountered it—or whether his

encounters came via his role as professor overseeing the work of medical residents, as opposed

to his own treatment of patients). Tr. at 136. Dr. Steinman has also published extensively in peer-

reviewed journals on topics including neuroimmunology and GBS. Steinman CV at 5–45. He has

demonstrated expertise in both a wide variety of central nervous system diseases (multiple

sclerosis in particular) and immunologic issues, and claimed great familiarity in treating brachial

neuritis, although he does not appear to have focused on it over other central nervous system

10

The only support for this timeframe offered in Rowhani-Rahbar is the statement that “[b]ased on prior reports of

the onset of ADEM following immunization, the occurrence of such events appears to decrease substantially beyond

6 weeks.” Rowhani-Rahbar at 274. This statement is footnoted in turn by nine items of literature—all involving

ADEM, however, and some of which appear to discuss passive surveillance reports of post-vaccine cases rather than

to weigh actual biologic risk.

10

diseases (such as multiple sclerosis).

Dr. Steinman characterized brachial neuritis as a kind of neuropathic autoimmune disease.

Although his testimony on this point was mostly indistinguishable from Dr. Kinsbourne’s, he did

attempt to refine some of Dr. Kinsbourne’s earlier assertions. Thus, Dr. Steinman emphasized that

brachial neuritis is in his opinion likely an inflammatory autoimmune condition, similar to GBS in

pathophysiology, although more focal (i.e., restricted to an arm and shoulder as opposed to having

an impact bilaterally/symmetrically). Tr. at 43–44. He allowed that it has different triggers than

GBS, although Dr. Steinman emphasized its immunologic character, based on his experience as

well as existing literature. Tr. at 135–36 (referencing Van Alfen I in support of his contention that

the most common cause for brachial neuritis is not trauma but an immunologic trigger, such as

vaccination or infection), 138 (noting that based upon his experience “at grand rounds or some

teaching conference,” the etiology of brachial neuritis can be identified half of the time).

Consistent with Dr. Kinsbourne’s testimony, Dr. Steinman asserted that brachial neuritis

involves attacks on myelin and nerve axon equally. Tr. at 56–57. He admitted, however, that

brachial neuritis is not exclusively immunologic in origin, but can also be the result of some direct

trauma (like the case study discussed in Morishima), although the subsequent pathogenesis in all

cases would be “autoimmune or at least inflammatory,” concepts he contradictorily claimed were

the same but also distinguishable. Id. at 70–71.

Also consistent with Dr. Kinsbourne’s prior testimony was Dr. Steinman’s overarching

presumption that GBS, and what is known about it in terms of vaccine causation, provides an

analog to brachial neuritis for purposes of determining timeframe in this case. Thus, he deemed

significant the fact that brachial neuritis has been shown (in case reports like Naito and Moriguchi)

to respond to immune-modulating treatments like IVIG,11 and that the specific antiganglioside

antibodies allegedly associated with GBS were observed to be present for the patients considered

by these case studies, thereby confirming its autoimmune character and/or similarity to GBS—

along with the fact that (reflecting the role the immune system writ large plays in its pathogenesis)

brachial neuritis does not always occur in the same arm that receives trauma. Tr. at 57–64. He also

maintained, like Dr. Kinsbourne, that “host factor” variations in how an individual reacts to an

event triggering an autoimmune response would impact that individual’s course. Id. at 44–45.

Based upon the foregoing, Dr. Steinman echoed Dr. Kinsbourne’s conclusion that

timeframes viewed as medically reasonable for onset of GBS were equally applicable to brachial

neuritis. In so maintaining, he relied on the fact that both illnesses are directed at the peripheral

nerves and (in his view) likely involve similar mechanistic paths. Tr. at 45. He also invoked a

seminal item of medical literature (not directly relevant to brachial neuritis) from the swine flu

11

Dr. Steinman went so far as to assert that IVIG is used at his own hospital at Stanford to treat brachial neuritis,

although he did not substantiate this assertion with any independent evidence. Tr. at 138.

11

epidemic in the 1970s. L. Schonberger, et al., Guillain-Barré Syndrome Following Vaccination in

the National Influenza Immunization Program, 110 Amer. J. Epidemiology 105 (1979), filed as

Ex. 69 (ECF No. 128-2) (“Schonberger”). Schonberger, Dr. Steinman observed, supported up to a

ten-week timeframe for onset of GBS, but suggested risk was highest in the shorter, six to seven-

week interval (although Schonberger itself expressly states that GBS risk “was concentrated

primarily within the 5-week period after vaccination”). Schonberger at 105; Tr. at 47, 49. Because

Schonberger was “based on an enormous data set of surveillance,” he felt it was a particularly

reliable epidemiologic study that had applicability herein. Id. at 47, 55.12

As a result, Dr. Steinman (like Dr. Kinsbourne) endorsed a six-week timeframe for onset

of brachial neuritis after vaccination as medically reasonable. Tr. at 53. He claimed that, in his

own clinical experience, he had seen a variety of onsets ranging throughout the proposed six-week

period, but that onset toward the end of that period “would not worry me.” Id. at 141. In explaining

this conclusion, Dr. Steinman repeated many of the same points made by Dr. Kinsbourne,

commenting on the same items of literature reviewed during Dr. Kinsbourne’s testimony. He was

thus asked about Verma (Tr. at 50–51), Yih (id. at 52–53), Rowhani-Rahbar (id. at 54–56), Naito

(id. at 58–59), Morishima (id. at 60–61), and Moriguchi (id. at 62–63). He acknowledged,

however, when asked generally about the utility of risk intervals, that they were often primarily

the product of what a particular study’s authors wanted to achieve in a particular study, rather than

a reflection of biological plausibility for a given potentially adverse event. See, e.g., Tr. at 52–53,

55 (“where you set the dial is in the hands of the person or teams turning the dial”).

On cross examination, Dr. Steinman admitted some limitations to the bases for his

conclusions regarding timeframe for onset herein. He allowed that case studies like Naito

equivocated as to the efficacy of immunotherapies for brachial neuritis, although he maintained

nonetheless that such evidence pointed in the direction of the utility of such treatments, even if

more formal scientific corroboration was still absent. Tr. at 67–68. He agreed that such treatments

were not uniformly called for either, especially since certain individuals suffering from brachial

neuritis might see improvement absent IVIG treatment (although he stressed the medical

importance of doing whatever possible to aid patients). Id. at 68. And he conceded that one of the

articles referenced in his own expert report only supported a three-week timeframe for post-

vaccination onset of brachial neuritis. Id. at 65–66 (discussing P. Tsairis, et al., Natural History of

Brachial Plexus Neuropathy, 27 Arch. Neurol. 109, 111–12 (1972), filed as Ex. 58 (ECF No. 95-

5) (“Tsairis”)).

12

Dr. Steinman also noted that the tetanus vaccine package insert indicates that individuals with GBS are advised

against getting a second vaccine within six weeks of the disease’s appearance as further bulwarking the reliability of

the six-week timeframe. Tr. at 49–50. Petitioner did not, however, file this document—and even if he had, the fact

that it applies to GBS (coupled with existing sound Vaccine Program caselaw suggesting that package inserts deserve

little evidentiary weight) greatly reduces the value of this argument (especially given the existence of several more

reliable items of evidence that were filed in this action and which support the timeframe argument (e.g., Rowhani-

Rahbar)).

12

3. Dr. Eric Lancaster

Dr. Eric Lancaster provided two expert reports in this action on Respondent’s behalf, and

also testified at hearing. See Report, dated May 25, 2018, filed as Ex. B (ECF No. 121-1)

(“Lancaster Rep.”); Report, dated Mar. 28, 2019, filed as Ex. D (ECF No. 133-1) (“Supp. Lancaster

Rep.”). Dr. Lancaster opined that the tetanus vaccine did not likely cause Petitioner’s brachial

neuritis, and that the timeframe in which Petitioner’s injury began was not a medically acceptable

period for post-vaccination causation. In so proposing, he disputed the assumption of Petitioner’s

experts that what is known about GBS onset and timeframe can be applied equally to brachial

neuritis.

Dr. Lancaster is a clinical physician at the Center for Autoimmune Neurology at the

University of Pennsylvania, as well as an assistant professor of neurology at the University of

Pennsylvania. Ex. C at 1 (ECF No. 121-11) (“Lancaster CV”). He completed a neurology

residency at the University of Pennsylvania from 2004–07, and is board certified in neurology,

with subspecialties in neuromuscular medicine and electrodiagnostic medicine. Id.; Tr. at 73–74.

His research focuses on antibody-mediated neurological disorders, and he sees patients with

complex autoantibody disorders on a regular basis. Lancaster CV at 1; Tr. at 75. He has

considerable expertise performing the tests used to evaluate peripheral neuropathies (e.g., EMGs,

nerve conduction studies)13, and devotes half his time to a clinical practice, although he estimates

only to have treated ten to twenty patients with brachial neuritis over his career. Tr. at 74–75;

Lancaster Rep. at 1.

Dr. Lancaster’s description of brachial neuritis was mostly consistent with that provided

by Petitioner’s experts, although it diverged in a few significant respects. He characterized the

condition as “inflammation in a particular area of the nervous system called the brachial plexus,”

located in the shoulder near the neck. Tr. at 76–77. It has a monophasic course, with a sudden

onset followed by a slow recovery over weeks or months, although patients often recovery fully.

Id. at 77. He was less confident than Petitioner’s experts that brachial neuritis is primarily

autoimmune in nature, however, noting that although “it certainly involves inflammation,” not

enough is known about its pathophysiology and the mechanisms driving it (for example, whether

it is solely antibody-mediated or the result of a T-cell response) to firmly state that it is primarily

an autoimmune condition. Id. at 107. But several items of literature filed by Respondent seem to

accept that autoimmunity plays a role in brachial neuritis’s pathogenesis. See, e.g., N. Van Alfen,

Clinical and Pathophysiological Concepts of Neuralgic Amyotrophy, 7 Nat. Rev. Neurol. 315, 320

13

An EMG, or electromyography test, is a diagnostic procedure used to assess the health of muscles and the nerve

cells that control them (motor neurons). Dorland’s at 602. A nerve conduction study, or “nerve conduction velocity

test,” measures the speed of conduction of an electrical impulse through a nerve, to evaluate the presence of nerve

damage or destruction. Nerve Conduction Studies, Health Library, Johns Hopkins Medicine,

https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/nerve-conduction-velocity-ncv (last visited

July 23, 2019).

13

(2011), filed as Ex. B-1 (ECF No. 121-2) (“Van Alfen II”) (acknowledging that brachial neuritis

“is thought to be autoimmune in origin”).

Dr. Lancaster nevertheless stressed (in contrast to Drs. Kinsbourne and Steinman) that

brachial neuritis is primarily an “axonal” injury to the nerves, readily ascertainable via an EMG

study, rather than one featuring multifocal demyelination—and in fact it is this axonal

characteristic that causes recovery after onset to take time. Tr. at 77, 96–97; Lancaster Rep. at 6;

J. Feinberg, et al., Parsonage-Turner Syndrome, 6 Hosp. for Spec. Surg. 199, 202 (2010), filed as

Ex. B-2 (ECF No. 121-3) (“Feinberg”); see also Van Alfen II at 319 (“[a]s in other [peripheral

nervous system] disorders, the amount of axonal damage provides a fair prediction of the

possibility for nerve recovery,” adding that subsequent reinnervation can take months or years).

He indicated no awareness, based on existing literature or medical community views, that brachial

neuritis should be considered primarily a demyelinating injury, noting that testing (such as nerve

conduction studies) used to diagnose brachial neuritis does not usually reveal “severe conduction

slowing or reversible conduction blocks”—either of which would reflect the existence of

demyelination. Tr. at 79.

Dr. Lancaster similarly took issue with the efforts of Petitioners’ experts to borrow GBS

onset timeframes for this case, stressing the differences in the two conditions: the focal and

localized nature of the inflammation present in brachial neuritis, as opposed to the multifocal,

bilateral character of GBS, and the demyelination featured most often in GBS, as opposed to the

“axonal process” in brachial neuritis. Tr. at 87–88, 89 (“these are very different disorders and it

isn’t that hard to tell them apart”), 94–95 (referencing Van Alfen II). He also disputed the efficacy

of immunosuppressive treatments for brachial neuritis, arguing that although such treatments have

been medically established to be effective for GBS, there is a lack of persuasive and reliable

scientific data establishing their utility for brachial neuritis, and that he had not in his experience

encountered the use of such treatments for this condition (or the testing of brachial neuritis patients

for the presence of autoantibodies). Id. at 88–89, 124–26. And he noted that given what is known

about the two diseases and their differing courses (with brachial neuritis having a higher likelihood

of a fast onset after triggering event than GBS), it made sense to him that the latency period

relevant to one would be inapplicable to the other. Id. at 89–91. In fact, he felt it far more medically

likely that brachial neuritis would have a shorter, post-trigger onset than GBS. Id. at 91–92.

Another distinction between GBS and brachial neuritis that Dr. Lancaster deemed

significant was the fact that the latter can be initiated by “different triggering events” not associated

with the former. Tr. at 77. Brachial neuritis can be caused by injury from exertion or other arm

trauma, infection, or vaccination—although half of the time in his experience no causal factor

could be identified. Id. at 77, 104 (discussing vaccination as possible cause). Regardless, the

presentation and progression of most cases of brachial neuritis was the same. Id. at 78. He also

emphasized that direct injury to the nerve itself was not a requirement for triggering of brachial

14

neuritis. Id. at 78, 83–84. On the contrary, “relatively minor events” could produce brachial

neuritis, from overexertion after exercise to maintaining the same body position on a lengthy

airplane flight. Id. at 99–100, 111–12; Lancaster Rep. at 7. He particularly stressed that unlike

GBS, brachial neuritis could have direct arm trauma as its triggering event. Tr. at 90 (“[t]his has

not, to my knowledge, ever been accepted as the cause of [GBS]”).

Turning to the present record, Dr. Lancaster agreed that Petitioner has brachial neuritis. He

did not, however, see evidence that would suggest Mr. Greene’s immune system was undergoing

an autoimmune process in the forty-one-day period between receipt of the tetanus vaccine and

onset of his symptoms in September 2009. Tr. at 80. Indeed, he disputed that such a long timeframe

was reasonable for onset of brachial neuritis after any inciting event.

Relying on Van Alfen I as well as Tsairis, along with his personal clinical experience, Dr.

Lancaster observed that half of studied cases in those items of literature began within a week of

the putative trigger,14 with 90 percent occurring in two weeks. Tr. at 81, 85–87; Tsairis at 111–12;

Van Alfen I at 443 (nearly 70 percent of all studied cases reporting an antecedent event involved

symptom onset within a week or less). He therefore deemed an onset beyond three to four weeks

of the triggering incident as “increasingly implausible.” Tr. at 81. He also disputed the validity of

employing a single timeframe for all neuroimmune disorders attributable to vaccination, as

Petitioner urges. Id. at 82. He did, however, acknowledge that certain items of literature, like Van

Alfen I, seemed to allow for the possibility that brachial neuritis could still occur at a timeframe

beyond two weeks (even though his reading of the data from that item of literature suggested that

the syndrome was “very heavily concentrated” on the immediate two to three weeks after a trigger).

Id. at 117–19; Van Alfen I at 443 (approximately 10 percent of forty-nine studied cases involved

onset of post-infection brachial neuritis occurring more than two weeks after the infection, with

the remaining 90 percent occurring two weeks or less after infection).

Dr. Lancaster noted several findings in the medical record that he deemed significant to his

opinion. The electrodiagnostic test results for Mr. Greene suggested to him the presence of “severe

axonal injury,” with far less convincing evidence of demyelination, and nothing that would suggest

the presence of GBS either. Tr. at 96–97; Lancaster Rep. at 10–11. Such results were therefore

consistent with brachial neuritis. Tr. at 97. He also observed no treater support for the tetanus

vaccine being causal. Id. at 98. And overall, based on his view of the totality of the record, he

thought it most likely that in Mr. Greene’s specific case physical exertion close in time to onset in

14

Dr. Lancaster acknowledged that it might be difficult in cases of infection-induced brachial neuritis to pin down the

date of the inciting event, but noted that incidents involving arm trauma (whether from exertion, accident, or surgery)

were a different matter—and in such cases latency was often very short. Tr. at 81.

15

early September was the most likely trigger15 —otherwise the cause was idiopathic (although he

did not discount the initial hand injury that Petitioner suffered, which caused him to receive the

tetanus vaccine in the first place, as also possibly causative). Id. at 98–104; Ex. 12 at 19 (September

7, 2009 ER record with handwritten note referencing Petitioner’s exertion in the days prior to onset

as a possible “recent injury” explanation for pain).16

Dr. Lancaster went on to review the literature and evidence offered in the case to support,

or refute, a forty-one-day timeframe for onset of post-vaccination brachial neuritis. While articles

like Tsairis did allow that a vaccine might be causative, they lent support for a timeframe for onset

of no more than four weeks. Tr. at 82–84; Tsairis at 111. Rowhani-Rahbar also did not consider

brachial neuritis in proposing the two risk intervals it discusses, and in fact its authors were in Dr.

Lancaster’s view “extremely careful” to highlight that any selected interval needed “to be

customized to the specific disease in question.” Tr. at 85. Schonberger similarly only involved

GBS, and in Dr. Lancaster’s reading underscored the fact that brachial neuritis and GBS have

distinguishable pathophysiologies. Id. at 92–93.

Dr. Lancaster also directly questioned the significance of the three Japanese case studies

(Naito, Morishima, and Moriguchi) filed by Petitioner and commented upon by his experts. He

challenged their findings about the efficacy of immunosuppressive treatments for brachial neuritis

(which, Petitioner argues, corroborates the similarity of the condition to more purely autoimmune

neuropathies like GBS), allowing that even if those articles suggested IVIG might be effective in

treating brachial neuritis, “the jury is still out” on the mechanism by which brachial neuritis occurs

(and in particular whether it is mediated by autoantibodies at all, let alone the same ones implicated

in GBS). Tr. at 94, 121–22. He also did not deem significant the fact that some evidence of

autoantibodies also relevant to GBS was identified in tests performed in these case reports, noting

that he could not exclude the possibility that they were merely false positive findings, reflecting

the fact that many people in the population might also possess them (but not establishing that their

presence meant the patient’s brachial neuritis had been mediated by the autoantibody). Id. at 108–

09.

15

See, e.g., Lancaster Rep. at 9. Because this Decision does not turn on identifying an alternative cause, but instead is

the product of my determination that the proposed forty-one-day onset has not been established with sufficient

preponderant evidence, I do not analyze Respondent’s success in establishing such factual contentions.

16

Mr. Greene was called at hearing to testify to rebut this point, and he maintained that he had not in fact overexerted

or otherwise harmed his arm or shoulder in the days immediately prior to his ER visit in September 2009—and that

he did not so inform treaters at the time, despite what the contemporaneous medical document states. Tr. at 127–29,

130–31. Respondent, however, offered a later-in-time medical record, filled out by Petitioner, in October 2009 (a

month after the ER visit) in which he himself again identified “hard work” around Labor Day of that year triggering

a “neuro explosion.” Id. at 132; see also Ex. 2 at 4; Ex. 12 at 19. Petitioner could not credibly explain these medical

record references and their contradiction of his recollection, other than by asserting that the degree of pain he was in

at the time (coupled with his lack of knowledge about what brachial neuritis was) somehow impacted his judgment or

what he told treaters. Tr. at 133–34.

16

On cross examination, Dr. Lancaster granted the medical plausibility of a causation theory

relying on vaccination as initiating brachial neuritis, even if the absence of evidence of the correct

autoantibodies relating to the process resulting in the condition. Tr. at 110. He also acknowledged

(in response to questions that seemed aimed at establishing that Dr. Lancaster’s standard for

medical acceptability was far too high for purposes of a Vaccine Program case) that he personally

would not accept a forty-one-day timeframe for onset of brachial neuritis without some kind of

corroborative scientific or medical study specific to brachial neuritis and vaccination. Id. at 107.

Applicable Legal Standards

A. Claimant’s Burden in Vaccine Program Cases

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

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

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

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

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

§ 11(c)(1)(C)(ii)(I); see also Moberly 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).17 As already noted, Petitioner’s Table claim was dismissed after issuance of the Fact Ruling.

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;

17

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).

17

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 v. Secretary of Health & Human

Services, 418 F.3d 1274 (Fed. Cir. 2005): “(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 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, 956 F.2d at 1148. 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

18

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 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 denied, 100 Fed. Cl. 344, 356 (2011), aff’d without op., 475 F.

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. denied 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 denied (Fed.

Cl. Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).

B. 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

19

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

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), 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.

The fact that a claimant offers an expert opinion does not render the opinion that expert

espouses scientifically reliable or persuasive. 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 denied, 108 Fed. Cl. 743 (2013), aff’d, 540 F. App’x 999 (Fed. Cir. 2013) (citing

Cedillo, 617 F.3d at 1339).

C. Review of Medical and Scientific Literature

Both parties filed medical and scientific literature in this case, but not every filed item

factors into the outcome of this decision. While I have reviewed all of the medical literature

submitted in this case, I discuss only those articles that are most relevant to my determination

and/or are central to Petitioner’s case—just as I have not exhaustively discussed every individual

medical record filed. Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1328 (Fed. Cir.

2016) (“[w]e generally presume that a special master considered the relevant record evidence even

though he does not explicitly reference such evidence in his decision”) (citation omitted); see also

20

Paterek v. Sec’y of Health & Human Servs., 527 F. App’x 875, 884 (Fed. Cir. 2013) (“[f]inding

certain information not relevant does not lead to—and likely undermines—the conclusion that it

was not considered”).

ANALYSIS

As I have previously noted, the first, “can cause” Althen prong has been met in this case,

given the ample prior decisions associating vaccines containing a tetanus component with brachial

neuritis, as well as the showing made by Petitioner’s experts. Remand Ruling at 11 n.7; Devonshire

v. Sec’y of Health & Human Servs., No. 99-031V, 2006 WL 2970418, at *15 (Fed. Cl. Spec. Mstr.

Sept. 28, 2006) (stating that it is well known that brachial neuritis can occur following a tetanus

vaccination), aff’d, 76 Fed. Cl. 452 (2007); DeGrandchamp v. Sec’y of Health & Human Servs.,

No. 01-413V, 2003 WL 21439670, at *7 (Fed. Cl. Spec. Mstr. May 15, 2003) (relying on IOM

publications to find that in theory, the tetanus toxoid in Td vaccine can cause brachial neuritis).

Literature offered in this case also supports this determination. See, e.g., Van Alfen II at 320. This

case instead turns on the remaining Althen prongs, which I address in order of their significance to

my Decision.

I. Petitioner Has Not Established that his Brachial Neuritis Began in a

Medically-Acceptable Post-Vaccination Timeframe (Althen Prong Three)

There is no dispute in this case that Mr. Greene experienced brachial neuritis, but the

medical reasonableness of the timeframe in which his symptoms began, measured from date of

vaccination forty-one days earlier, is very much contested. I have already determined that

Petitioner cannot meet his preponderant burden of proof merely by relying on the approximately

thirteen-day differential between the end date for a viable Table claim and his own onset. Grant,

956 F.2d at 1147–48.18 Petitioner was thus tasked with establishing the medical reasonableness of

the timeframe herein through resort to expert testimony and whatever other evidence bears on that

question.

Petitioner has offered some literature addressing the amount of time medical science

expects brachial neuritis will occur after an instigating trigger—but it largely does not support a

18

The reasonableness of not allowing a petitioner to rely on the Table claim timeframe for a non-Table claim is

underscored by considering how this is fair to both sides. In this case, for example, Dr. Lancaster has opined that the

defined Table period for a tetanus/brachial neuritis claim is based on the most persuasive medical and scientific

evidence available—thus suggesting to him that anything beyond it would by definition not be medically reasonable.

Tr. at 91 (mentioning that the twenty-eight-day range reflects the “consensus of experts”). If petitioners are permitted

to rely on how close onset in a given case is to the defined Table period in support of a non-Table claim, then

Respondent should be similarly entitled to wield the Table period offensively, as proof that science does not

preponderantly support a longer timeframe. Program law instead requires petitioners (and Respondents in seeking to

rebut a Vaccine Act non-Table claim) to rely on evidence to bulwark the reasonableness of the proposed period—

independent of the Table timeframe (although evidence used to establish that timeframe may still be relevant).

21

six-week onset for the illness, instead suggesting more persuasively that the maximum time from

trigger to onset would be no more than two or three weeks. See, e.g., Van Alfen I19, Tsairis. Indeed,

and as Respondent previously argued, one of the same pieces of evidence that supports Petitioner’s

Althen prong one showing—the IOM review of tetanus-caused brachial neuritis—supports at most

a four-week onset risk period. Stratton at 55 (noting that latency period for brachial neuritis after

vaccination “ranges from a few days to 3 or at most 4 weeks”) (emphasis added). And Dr. Lancaster

convincingly explained why a shorter onset timeframe made more sense for brachial neuritis—

and conversely, why a timeframe exceeding four weeks was far less medically acceptable.

Accordingly, what direct proof exists on the topic does not preponderate in Petitioner’s

favor. Of course, petitioners may establish their Vaccine Act claim with circumstantial evidence,

so the absence of sufficient direct proof does not end the analysis. Mr. Greene sought to meet his

preponderant burden through (a) invocation of risk intervals applied to other autoimmune diseases,

and (b) a comparison of the timeframes that reliable scientific evidence establishes for onset of

GBS. Neither argument was ultimately persuasive, however (although both were supported by

some reliable scientific/medical evidence).

A. Risk Intervals for Other Autoimmune Diseases Are Not

Preponderant Evidence Alone of A Reasonable Timeframe

Petitioner relied on some literature involving risk intervals generally, best explained in

Rowhani-Rahbar. This evidence unquestionably has probative value. See generally Rowhani-

Rahbar. The fact that longer risk intervals are often utilized in measuring vaccine safety is

circumstantial evidence supporting the conclusion that it would be medically reasonable to expect

some analogous vaccine-caused neurologic injuries to occur within a similar timeframe. It is for

this reason that the longer risk interval that Petitioner’s experts propose to apply in this case has

also been found persuasive by other special masters in cases alleging autoimmune injuries

comparable to those evaluated in Rowhani-Rahbar. See, e.g., Day v. Sec’y of Health & Human

Servs., No. 12-630V, 2015 WL 8028393, at *22 (Fed. Cl. Nov. 13, 2015) (applying Rowhani-

Rahbar secondary risk interval for ADEM to case alleging that petitioner’s multiple sclerosis

(“MS”) was vaccine-caused).

There are, however, significant countervailing points that weigh against endorsement of a

forty-one-day timeframe herein. First and foremost, not all neurologic injuries with an

autoimmune component are the same, even if they have some common features. Ample Program

authority has noted that, while petitioners may reasonably analogize an injury to other autoimmune

conditions, they cannot prevail solely by doing so. See, e.g., R.V. v. Sec’y of Health & Human

Servs., No. 08-504V, 2016 WL 3882519, at *41 (Fed. Cl. Spec. Mstr. Feb. 19, 2016) (not crediting

19

Although Van Alfen I does allow that 10 percent of studied, infectious-originating cases of brachial neuritis might

have had an onset of greater than two weeks, this finding is too vague to give it significant weight – it does not allow

for the conclusion that an onset of longer than four weeks is acceptable, and it does not involve vaccination directly.

Van Alfen I at 443.

22

petitioner’s reliance on unsupported analogy to other illnesses in proving causation theory), mot.

for review denied, 127 Fed. Cl. 136 (2016); R.K. v. Sec’y of Health & Human Servs., No. 03-

0632V, 2015 WL 10936124, at *105 (Fed. Cl. Spec. Mstr. Sept. 28, 2015) (same), mot. for review

denied, 125 Fed. Cl. 57 (2016), aff’d, 671 F. App’x 792 (Fed. Cir. 2016). And as Dr. Lancaster

noted, brachial neuritis is in fact not congruent with a central nervous system disease like ADEM—

the latter being the basis for the forty-one-day period relied upon in Rowhani-Rahbar (and found

to be analogous to the MS injury considered in Day). It is therefore unpersuasive for Petitioner to

argue that timeframes involving distinguishable neurologic diseases should be applied as a

consistent yardstick to all cases involving nerve-related autoimmune injuries.

A secondary problem posed by Petitioner’s argument is its overreliance on a longer risk

interval as a proxy for preponderant evidence establishing a medically reasonable onset timeframe.

Rowhani-Rahbar addresses the application of risk intervals for epidemiologic studies evaluating

overall vaccine safety. Although they are employed based on some consideration of when an

adverse post-vaccination event might be expected to occur, they are also intentionally “broad nets”

intended to catch as many putative adverse events as possible. Dr. Steinman himself noted that an

adopted interval can mean whatever the study’s author wants it to (although he nevertheless added

that a study would for the most part seek to define an interval based on when a plausible reaction

or illness might occur). Tr. at 52–53, 55.

Thus, a secondary interval explicitly understood to be less specific, and hence medically

accurate, but included nonetheless in a study to avoid missing possible related adverse events is

not particularly robust proof as to the scientific/medical consensus as to when a particular injury

would most likely occur post-vaccination. The fact that a risk interval is selected for a particular

study because its authors deem it to have utility therein does not mean that the same period can be

deemed preponderantly established in the context of a Vaccine Act claim. Thus, while I

acknowledge that Petitioner’s invocation of the risk interval concept generally had some

evidentiary value, it was not by itself enough to preponderantly establish that vaccine-caused

brachial neuritis could reasonably occur within six weeks of vaccination—especially since the

evidence specific to brachial neuritis says otherwise.

B. GBS and Brachial Neuritis Are Not Congruent for Purposes of

Determining Reasonableness of Onset

To bulwark adoption of a six-week timeframe, Petitioner’s experts consistently proposed

that brachial neuritis is analogous to GBS—an autoimmune, peripheral nervous system-affecting

neurologic condition that substantial Program caselaw (based in turn on reliable science) has

determined can reasonably begin in as long as six to eight weeks after vaccination. See, e.g.,

Barone v. Sec’y of Health & Human Servs., No. 11-707V, 2014 WL 6834557, at *13 (Fed. Cl.

Spec. Mstr. Nov. 12, 2014) (eight weeks is the longest reasonable timeframe for a non-Table

23

flu/GBS injury). But this argument was ultimately unpersuasive. Despite some of their common

features, GBS is simply not sufficiently comparable to brachial neuritis to apply the same onset

timeframe to both.

Literature filed in this case relating to brachial neuritis, and the reports and testimony

discussing it, clearly establishes that it is a neurologic injury primarily to the nerve axon—a finding

confirmed by nerve electrophysiologic studies and also consistent with the motor loss associated

with brachial neuritis. Feinberg at 202; see also Lancaster Rep. at 10–11.20 It also can be caused

by direct trauma that would never result in GBS, further suggesting it is highly distinguishable.

And while the same literature also suggests a person with brachial neuritis may have some sensory

symptoms that could reflect secondary nerve demyelination, that is not the fundamental character

of the condition—unlike GBS. See Auch v. Sec’y of Health & Human Servs., No. 12-673V, 2017

WL 1034396, at *9 (Fed. Cl. Spec. Mstr. Jan. 13, 2017) (Dr. Steinman opining that GBS is

characterized by autoimmune attack on nerve myelin sheath, resulting in demyelination).

To establish the contrary, Petitioner’s experts simply asserted that this was not the case—

that brachial neuritis is as characterized by demyelination as GBS. See Tr. at 11 (Dr. Kinsbourne),

56–57 (Dr. Steinman). Alternatively, they attempted to blur the lines between the two conditions

by noting the existence of AMAN, a nerve axon-oriented GBS variant. See, e.g., id. at 21–22.

While this GBS variant clearly exists, Petitioner’s experts did not elaborate on the fact that AMAN

is also (a) uncommon in comparison to other GBS variants, (b) largely confined to a pediatric

population, and (c) mainly occurs outside of the U.S., in eastern Asian countries. Dorland’s

Illustrated Medical Dictionary 1268 (32nd ed. 2012); P. Dyck & P.K. Thomas, 2 Peripheral

Neuropathy 2200–01 (4th ed. 2005). It is also readily distinguishable from brachial neuritis, as Dr.

Lancaster observed. Supp. Lancaster Rep. at 1. The existence of an axonal-impacting GBS variant,

therefore, provides limited assistance to Petitioner’s argument that GBS and brachial neuritis are

comparable for purposes of determining a medically acceptable onset timeframe.

Petitioner also invoked case studies indicating that certain autoantibodies associated with

GBS (antiganglioside antibodies) have been found in testing of brachial neuritis patients. The

significance of the presence of these autoantibodies in individuals with brachial neuritis is far from

determined, however, as more persuasive scientific literature indicates. See, e.g., Van Alfen II at

320 (“some studies have reported antiganglioside [peripheral nervous system] antibodies in

patients, but this finding could well be a consequence of axonal damage rather than its cause”)

(emphasis added). As Dr. Lancaster noted, none of these autoantibodies have been scientifically

demonstrated to drive an autoimmune process resulting in brachial neuritis. And even if it is

assumed that the pathophysiology of brachial neuritis could involve similar autoantibodies, such

20

Well-recognized authorities confirm the same. See, e.g., Dyck & Thomas at 2303 (“most of the currently available

evidence from electrophysiologic studies suggest multifocal or patchy abnormalities consistent with axonal damage

(loss) within the brachial plexus and isolated peripheral nerves of the upper extremities”) (emphasis added).

24

points do not establish, based on existing persuasive science and medical literature about brachial

neuritis specifically, that the timeframes relevant for a different autoimmune disease can simply

be applied wholesale here—that the time in which it would take for brachial neuritis (which Dr.

Lancaster successfully established would usually be an acute process) to manifest would be

consistent with GBS.

The same goes for the Japanese case studies offered to establish that brachial neuritis has

been successfully treated with the kind of immune-modulating treatments long understood to be

effective for GBS. See Naito; Morishima; Moriguchi. It is routinely recognized in the Program that

case reports do not merit significant weight as a class of evidence (see, e.g., Crutchfield v. Sec’y

of Health & Human Servs., No. 09-39V, 2014 WL 1665227, at *19 (Fed. Cl. Spec. Mstr. Apr. 7,

2014), aff’d, 125 Fed. Cl. 251 (2014)), but here the actual reports filed are on their face even less

probative than usual. Indeed, only Morishima involved a lengthy onset (admitted even by Dr.

Kinsbourne to be an outlier under Petitioner’s own theory), with the other case studies observing

post-infectious onset (the most analogous circumstance to vaccine-induced brachial neuritis) in a

timeframe consistent with Respondent’s position of less than four weeks. Accordingly, even if I

give some weight to the suggestion of these case reports that IVIG treatments have been efficacious

for certain cases of brachial neuritis, these articles are greatly outweighed by other evidence

establishing the many accepted differences between GBS and brachial neuritis.

C. Respondent Successfully Rebutted Petitioner’s Timeframe

Evidence, as well as his Expert Reports and Testimony

Reliable evidence offered by Respondent and discussed by Dr. Lancaster persuasively

suggests brachial neuritis is more acute in nature, and will likely begin within two or three weeks

of whatever triggers it—not six weeks, as Petitioner argues here. This is consistent with what is

known about the orientation of the injury (to the axon) and its acute nature, and does not rely on

analogy to distinguishable autoimmune conditions. Dr. Lancaster’s opinion stemmed from a

practice-derived understanding of how brachial neuritis presents and what causes it—not just from

research performed for the purpose of offering an opinion herein. He has knowledge of the

condition and regularly performs the EMG and nerve conduction study tests employed to evaluate

its existence and course.

Dr. Lancaster’s opinion is also consistent with my determinations in other cases involving

similar injuries. See, e.g., Garner v. Sec’y of Health & Human Servs., No. 15-063V, 2017 WL

1713184 (Fed. Cl. Spec. Mstr. Mar. 24, 2017), mot. for review denied, 2017 WL 3483352 (Fed.

Cl. July 31, 2017). In Garner, I considered a claim that the Hepatitis A and B vaccines had caused

brachial neuritis. The earliest onset possible in Garner was forty-five days after vaccination, based

on the first record documentation of any complaints by the petitioner about arm or shoulder pain.

Id. at *1. Respondent, however, persuasively argued (also via Dr. Lancaster’s testimony) that the

25

condition was far more acute in nature (and in terms of the causative mechanism as well), making

twenty-eight days the outer limit for latency. Id. at *8. I found this point to be dispositive, even

though the claimant’s Althen prong one showing was (as here) sufficient, and dismissed the case

on the record. Id. at *16. That decision was upheld on review. 2017 WL 3483352. Nothing about

this case distinguishes it from Garner’s analysis or outcome.

Petitioner’s expert testimony, by contrast, was simply less effective and persuasive.21 Both

experts he relied upon are credentialed and competent to testify generally on neurologic injuries

and the potential immunologic triggers for them—and they do so often in the Vaccine Program.

Also, and as discussed extensively above, they offered some reliable items of evidence to support

many of their contentions. And the opinion they jointly voiced -- that similarities between GBS

and brachial neuritis were enough to allow application of the timeframe for onset of the former to

the latter -- was reasonable, and coherently presented as well.

But this does not mean that Drs. Kinsbourne and Steinman offered persuasive expert

opinions that compel a favorable determination for Petitioner on the third Althen prong. Not only

were their contentions effectively rebutted, but these two experts do not possess demonstrated,

specific experience studying or treating brachial neuritis and its causes, even if they may have

intermittently encountered it in their professional lives.22 As a result, their assertions vouching for

the reasonableness of timing in this case lacked the evidentiary heft of an expert who could credibly

explain how his own experience studying or treating the disease in question informed his opinion.

Overall, Petitioner did not offer sufficient evidence to meet his preponderant burden on

this third Althen prong. As the Federal Circuit has noted, establishing the timeframe prong is

dependent upon “the medical understanding of the disorder’s etiology . . . .” Bazan, 539 F.3d at

21

Although Drs. Wright’s and Byers’s expert reports remain in evidence, Petitioner made no reference to their

contentions at hearing, and I do not find that they appreciably assisted Petitioner’s case with respect to the third Althen

prong.

22

Dr. Kinsbourne was particularly deficient in this regard. By his own admission, he has essentially treated almost

no patients for more than twenty-five years (although he routinely seeks to offer opinions in Vaccine Program cases

on an individual’s diagnosis or symptoms course). Tr. at 28; Holmes v. Sec’y of Health & Human Servs., No. 08-

185V, 2011 WL 2600612, at *2 n.9 (Fed. Cl. Spec. Mstr. April 26, 2011) (noting that Dr. Kinsbourne has not had a

clinical neurology practice for thirty-seven years), aff’d, 115 Fed. Cl. 469 (2014). His neurology background cannot

make up for this lack of personal understanding of the condition in question.

Dr. Steinman, by contrast, appears to see patients more regularly, even if a clinical practice is not his main focus. But

he does not possess specific demonstrated expertise with respect to brachial neuritis. Indeed, although he regularly

testifies for Vaccine Act petitioners, by my count he has only offered an expert opinion in cases involving brachial

neuritis twice before. See, e.g., Winterfeld v. Sec’y of Health & Human Servs., No. 15-933V, 2018 WL 2225178 (Fed.

Cl. Spec. Mstr. Mar. 9, 2018) (awarding attorney’s fees and costs in settled case alleging brachial neuritis after receipt

of influenza vaccine). And tellingly, in that case the petitioner claimed an onset of approximately two weeks after

vaccination—not six. See Petition at 2, Winterfeld, 2018 WL 2225178 (ECF No. 1).

26

1352 (emphasis added). The most compelling and reliable evidence offered herein pertinent to

brachial neuritis (the relevant “disorder”) establishes that it proceeds fairly acutely after a trigger,

and is highly unlikely to occur more than three or four weeks after instigation. The fact that other

autoimmune-mediated and somewhat comparable neurologic diseases might reasonably be

understood to have a longer potential onset timeframe does not compel the conclusion that the

same is true for brachial neuritis.

II. Petitioner Has Not Established that his Brachial Neuritis Was Caused

By the Tetanus Vaccine He Received in July 2009

Even if I had found that a forty-one-day timeframe for onset of brachial neuritis was

medically acceptable, the record in this case fails to support the conclusion that the tetanus vaccine

is the most likely explanation for Mr. Greene’s injury.

The record provides no objective evidence whatsoever—direct, circumstantial, or

otherwise—that Petitioner was experiencing an autoimmune-derived injury attributable to

vaccination. Mr. Greene had no symptoms at all before he presented to the ER in early September

2009, and then only reported he had been feeling pain for a few days before—consistent with the

acutely-presenting nature of brachial neuritis.23 There is nothing from the pre- or post-vaccination

record suggesting that an autoimmune reaction was brewing in a subclinical form. And none of

Mr. Greene’s treaters implicated the tetanus vaccine as causative of his injuries—nor did they ever

propose IVIG treatment to remedy it (something that further undercuts the concept that brachial

neuritis is properly deemed congruent with GBS—or that medical science is increasingly viewing

immunosuppressive treatments as effective for brachial neuritis).

I have similarly found in other cases involving a long, silent post-vaccination period before

onset of injury that the “did cause” prong was not met. See, e.g., Bender v. Sec’y of Health &

Human Servs., No. 11-693V, 2018 WL 3679637, at *34 (Fed. Cl. Spec. Mstr. July 2, 2018) (finding

that petitioner’s transverse myelitis, which began forty-two days after receipt of the meningococcal

and Hepatitis A vaccines, could not have been caused by the vaccines when there was no evidence

of subclinical process occurring over that six-week period), mot. for review denied, 141 Fed. Cl.

262 (2019). No evidence was offered here establishing that brachial neuritis would otherwise be

characterized by a subclinical period that could explain the medical record silence. And Petitioner

did not fully rebut Dr. Lancaster’s point that certain medical records seem to contain statements to

23

Although at the 2015 fact hearing Petitioner attempted to establish that he had been experiencing some initial

symptoms in mid-August 2009, I found that these allegations were not corroborated by the medical record, and that

he did not otherwise establish why the presumption of accuracy that attaches to such records under the law should not

control here as well. Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl. 598, 608

(2010) (crediting special master’s decision to rely on contemporaneous medical records over later-in-time statements

from the petitioner to the contrary).

27

providers by Mr. Greene that at the time of onset, he associated his sudden pain with very recent

hard work at his construction job (something Dr. Lancaster deemed as an intervening, possibly

explanatory occurrence).24

Respondent also raised fair questions about whether the true cause of Petitioner’s brachial

neuritis was the injury to his hand in July 2009 that prompted receipt of the tetanus vaccination in

the first place. Based upon the existing record (and although I do not find the burden ever shifted

to Respondent), I cannot find that an alternative cause has been established by a preponderance,

any more than that the vaccine has been established to be causal. This does, however, raise a

reasonable point further undercutting Petitioner’s claim. For, if the tetanus vaccine could explain

Petitioner’s injury forty-one days later, on a medical record devoid of reference to any symptoms

or signs in the intervening period, why would the injury that occurred immediately prior to its

administration not also potentially be causal? Petitioner did not establish that brachial neuritis due

to vaccine is distinguishable in course or presenting symptoms from that caused by trauma, or why

the record otherwise better supports vaccination as the cause.25

CONCLUSION

This claim should have been resolved far sooner. Although some delay was attributable to

the parties’ good faith efforts to settle, Petitioner’s unwillingness to abandon the legally-untenable

position that the Table timeframe applicable to brachial neuritis could be leveraged in a non-Table

context also interfered with its timely resolution. Petitioner did eventually marshal reliable

evidence to support his claim, thus justifying a hearing. But after considering the expert witnesses

and evidence upon which they relied, it is my reasoned conclusion that Petitioner has failed—

despite abundant opportunity—to preponderantly substantiate his contention that a forty-one-day

onset period for his brachial neuritis was medically acceptable, or that the tetanus vaccine more

likely than not “did cause” his subsequent injury.

24

I do not find in this case, however, that Petitioner’s brachial neuritis was “more likely than not” caused by such

trauma close-in-time to the ER visit, since the record does not support that conclusion preponderantly. But this does

constitute evidence undermining Petitioner’s argument that only the vaccine could be causal, and was ineffectively

rebutted.

25

Of course, the causal interplay of hand injury versus vaccine does not solely cut in Respondent’s favor. If this were

a case where Petitioner’s onset had occurred in a more medically-reasonable timeframe, application of the Shyface

“substantial factor” could compel a finding for Petitioner under the present circumstances despite the possible role of

the hand injury in producing brachial neuritis. Heinzelman v. Sec’y of Health & Human Servs., No. 07–01V, 2008 WL

5479123, at *4 (Fed. Cl. Spec. Mstr. Dec. 11, 2008) (vaccine may still be substantial factor in causing injury sufficient

to justify entitlement award, even where “two forces act in concert”). But this only illuminates the significance of my

finding that the timeframe of onset was too remote from either occurrence to even weigh such competing causative

factors.

28

I accordingly DISMISS Petitioner’s causation claim. In the absence of a timely-filed

motion for review (see Appendix B to the Rules of Court), the Clerk shall enter judgment in accord

with this decision.26

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

26

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their

right to seek review.

29