Labounty v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-325V

Filed: December 28, 2020

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

*

SHARON LABOUNTY, *

*

* TO BE PUBLISHED

Petitioner, *

*

v. *

* Special Master Katherine E. Oler

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, * Chronic Regional Pain Syndrome

*

* (CRPS); Flu Vaccine; Needle Stick

Respondent. *

*

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

Howard Gold, Gold Law Firm, LLC, Wellesley Hills, MA for Petitioner

Christine Becer, U.S. Department of Justice, Washington, DC, for Respondent

RULING ON ENTITLEMENT1

On March 9, 2017, Sharon LaBounty (“Ms. LaBounty” or “Petitioner”) filed a petition

pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10.2 (“Vaccine

Act” or “the Program”) alleging that the flu vaccination she received on September 18, 2015

caused her to suffer a reaction which was diagnosed as brachial plexopathy and brachial neuritis.

Petition at 1, ECF No. 1. Petitioner filed an amended petition (“Amended Pet. 1”) on August 15,

2018 alleging her flu vaccination caused her to develop a shoulder injury related to vaccine

administration (“SIRVA”). Amended Pet. 1 at 1, ECF No. 23. On September 15, 2018, Petitioner

filed a second amended petition (“Amended Pet. 2”) alleging that the flu vaccination caused her

to develop Chronic Regional Pain Syndrome (“CRPS”). Amended Pet. 2 at 1, ECF No. 24.

1

This Ruling will be posted on the United States Court of Federal Claims’ website, in accordance with the

E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Ruling will be available to anyone

with access to the internet. As provided in 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may

object to the Ruling’s inclusion of certain kinds of confidential information. To do so, each party may,

within 14 days, 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, this Ruling will be available to the public in its present form. Id.

2

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,

for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.

§ 300aa (2012).

1

Upon review of the evidence submitted in this case, I find that Petitioner has met her burden

in showing that the flu vaccination she received on September 18, 2015 caused her to develop

CRPS. She is therefore entitled to compensation under the Vaccine Act.

I. Procedural History

Petitioner filed her petition on March 9, 2017; she alleged the flu vaccination she received

on September 18, 2015 caused her to suffer from brachial plexopathy and brachial neuritis.3 Pet.

at 1, ECF No. 1. On October 1, 2017, Respondent filed a Rule 4(c) Report stating that

compensation should be denied and the case should be dismissed. Resp’t’s Rep. at 1, ECF No. 11.

After multiple extensions of time, Petitioner filed a status report on July 31, 2018 indicating she

was “unable to offer an expert report in support of causation for the diagnosis of brachial plexus,”

and requested additional time to confer with her counsel on how she wished to proceed. Status

Rep. on 7/31/18, ECF No. 21.

On August 13, 2018, Petitioner filed a status report stating that her Petition alleging the flu

vaccination caused her to develop brachial plexus was based on her treating physician’s initial

diagnosis, however, “[h]e is unable to provide an expert report in support of this diagnosis.” Status

Rep. on 8/13/2018, ECF No. 22. Petitioner stated her medical records are consistent with a SIRVA

injury and requested time to file an amended petition and an expert report. See id.

Petitioner filed an amended petition on August 20, 2018 alleging the flu vaccine caused

her to suffer from “a table-injury, SIRVA”. Amended Pet. 1 at 1, ECF No. 23. On September 15,

2018, Petitioner filed another amended petition alleging the flu vaccine caused her to suffer from

CRPS. Amended Pet. 2 at 1, ECF No. 24. Petitioner filed an expert report written by Dr. Marcel

Kinsbourne on the same day. Ex. 11, ECF No. 25.

On November 16, 2018, I held a status conference with the parties. See Minute Entry on

11/19/2018; Scheduling Order on 11/19/2018, ECF No. 28. I informed the parties that Dr.

Kinsbourne did not utilize the Budapest Criteria in diagnosing Ms. LaBounty with CRPS and that

I understood the Budapest Criteria to be the current diagnostic standard. See Scheduling Order on

11/19/2018. I ordered both parties to file expert reports addressing the applicability of the

Budapest Criteria in the context of Petitioner’s symptoms. See id.

On December 17, 2018, Respondent filed an expert report from Brian Callaghan, M.D.,

M.S. Ex. A, ECF No. 29. In this report, Dr. Callaghan stated Petitioner had many pre-existing

conditions and the symptoms, which dated back to 2008 and that she experienced shortly after the

September 18, 2015 flu vaccination were more likely to be a “central sensitization syndrome.” Ex.

A at 2.

On January 15, 2019, Petitioner submitted a supplemental affidavit. Ex. 13, ECF No. 30.

On January 16, 2019, Petitioner submitted a supplemental expert report from Dr. Marcel

3

This case was initially assigned to Special Master Roth (ECF No. 4) and re-assigned to my docket on June

8, 2018 (ECF No. 19).

2

Kinsbourne. Ex. 14, ECF No. 31. On April 29, 2019, Respondent filed a supplemental expert

report from Dr. Callaghan. Ex. C, ECF No. 33.

On August 6, 2019, I held a status conference with the parties. See Minute Entry on

8/7/2019; Scheduling Order on 8/7/2019, ECF No. 34. Both parties agreed to a ruling on the record

after it was confirmed that all evidentiary materials were submitted. Scheduling Order on

8/7/2019, ECF No. 34. On September 6, 2019, the parties filed a joint status report stating they

had no additional evidentiary materials to submit. Status Rep. on 9/6/2019, ECF No. 35.

On October 18, 2019, Petitioner filed a Motion for a Ruling on the Record. Pet’r’s Mot.

on 10/18/2019, ECF No. 37. On the same day, Petitioner also filed additional medical literature.

Ex. 15a-f, ECF No. 38. On December 17, 2019, Respondent filed a Response to Petitioner’s

Motion for a Ruling on the Record. ECF No. 40. Petitioner filed a Reply brief on December 21,

2019. ECF No. 41.

On January 10, 2020, I held a status conference with the parties. See Minute Entry on

1/10/2020; Scheduling Order on 1/10/2020, ECF No. 42. I informed the parties that I had

additional questions for their experts with regards to CRPS and whether Petitioner met the

Budapest Criteria for a CRPS diagnosis. Scheduling Order on 1/10/2020, ECF No. 42. Petitioner

filed an expert report from Dr. Kinsbourne on March 29, 2020. Ex. 16, ECF No. 44. Respondent

filed an expert report from Dr. Callaghan on March 31, 2020. Ex. D, ECF No. 45.

I held another status conference on April 6, 2020 with the parties to discuss the parties’

recent filings. See Minute Entry on 4/6/2020; Scheduling Order on 4/6/2020, ECF No. 46. Dr.

Kinsbourne repeatedly referred to the IASP criteria but did not answer my questions concerning

Petitioner’s diagnosis based on the Budapest criteria, furthermore, inconsistencies with the font

and of the absence of a response to my third question caused me to question whether the report

was complete. See Scheduling Order on 4/6/2020, ECF No. 46. I ordered Petitioner to file a status

report on the completeness of Dr. Kinsbourne’s report. I also ordered Respondent to file a status

report regarding Dr. Callaghan’s position as to whether the Budapest criteria were the prevailing

criteria for a CRPS diagnosis. See id.

On April 7, 2020, Respondent filed a status report stating Dr. Callaghan concurred that the

Budapest Criteria were “the most accepted diagnostic criteria for the diagnosis of CRPS.” Resp’t’s

Status Rep., ECF No. 47. On April 25, 2020, Petitioner filed a supplemental report from Dr.

Kinsbourne. Ex. 17 at 2, ECF No. 48.

On May 24, 2020, the parties filed a joint status report indicating the record was complete

for a ruling on the record. Pet’r’s Status Rep., ECF No. 50.

II. Medical Records

A. Petitioner’s Health Prior to the Allegedly Causal Vaccination

3

Petitioner had a history of prediabetes, allergies, gastroesophageal reflux disease

(“GERD”), hiatal hernia, thyroid cancer, deep vein thromboses (“DVT”), irritable bowel syndrome

with constipation, anxiety, migraines, hypothyroidism, and appendicitis. Ex. 44 at 46; Ex. 7 at 4.

Petitioner saw Dr. Ingrid Fuller on March 26, 2014 for a medication follow-up. Ex. 4 at

92. During this appointment, Petitioner complained of cold and numb feet, migraines, fibroid pain,

and pain in her hands, wrists, and lower back. Id. Dr. Fuller noted Petitioner had joint pain but

stated it was unclear whether it was osteoarthritis or an autoimmune problem but referred

Petitioner to a rheumatologist to examine possible Raynaud’s phenomenon. Id.

On April 18, 2014, Petitioner saw Dr. Raymond Pertusi, a rheumatologist. Ex. 4 at 80. Dr.

Pertusi noted that since 2008 Petitioner has experienced pain and an aching sensation located in

her ankles, knees, hands, neck, lower back, and hips. Id. Dr. Pertusi also noted that Petitioner has

“1-3 fingers turn white on cold exposure” and she experienced fatigue, cramping, and numbness

in her fingers and toes. Id. Dr. Pertusi’s impression was that Petitioner’s “pain generator is likely

a central sensitization syndrome that could be related to remote trauma (Abuse x 3) and likely

PTSD.” Id. at 82.

On June 4, 2015, Petitioner visited an emergency room for chest pain and followed-up with

Dr. Fuller on June 9, 2015. Ex. 4 at 63. Petitioner also informed Dr. Fuller she was having

cramping in her legs, especially in her left leg, and was concerned of a blood clot or deep vein

thrombosis. Id. Petitioner obtained a CAT scan, which was negative for any pulmonary

embolisms. Id.

On July 27, 2015, Petitioner saw Dr. Susan Shih for five years of joint pain in her mid-

lower back, hips, ankles, wrists, and “pain in her right hand associated with swelling in the right

fourth and fifth PIP (“proximal interphalangeal”) joints.” Ex. 4 at 55.

Petitioner received a flu vaccination in her left deltoid at a CVS Pharmacy on September

18, 2015. Ex. 3.

B. Petitioner’s Health after the Allegedly Causal Vaccination

On September 29, 2015, Petitioner saw her primary care physician (“PCP”), Dr. Ingrid

Fuller for pain she experienced in her upper left arm “fifteen minutes after she received the flu

injection.” Ex. 4 at 44. Dr. Fuller noted that it was Ms. LaBounty’s first flu shot and Petitioner

had trouble lifting her left arm because of the pain, but there was no swelling. Id. The pain in her

left arm began improving after a week and her right arm began to hurt. See id. Petitioner did not

have a fever but felt feverish. Petitioner had seen a rheumatologist for finger and wrist joint

swelling but the finger swelling appeared before she received the flu vaccine. See id.

On September 30, 2015, Petitioner visited Dr. Susan Shih a rheumatologist, for an “urgent

evaluation”. Ex. 4 at 43. Dr. Shih noted that Petitioner received a flu shot on September 18, 2015

and

4

Exhibit 4 and Exhibit 9 are identical. Therefore, only Exhibit 4 will be cited for the sake of clarity.

4

almost immediately developed severe pain in the left upper arm. This then spread

down into the left lower arm and hand, subsequently across her neck and down into

the right arm as well. She describes pain and swelling in the left and right second

fingers, diffusely through the finger, but with the pain mostly localized near the

MCP (metacarpophalangeal) joint. The patient also noted some numbness and

tingling as well as some burning in the hands. She has had some similar sensation

in the feet as well. The patient has never had a flu shot in the past and this may have

caused this pain…. She does have Volargen gel, but has not been using this

regularly. She did see Dr. Fuller yesterday who feels that the myalgias are likely

related to the flu vaccine and will likely resolve with time.

Ex. 4 at 43. Petitioner returned to Dr. Shih for a follow-up on October 14, 2015 complaining of

worse pain in her hands and left arm. Id. at 42. Dr. Shih noted Petitioner was experiencing some

pain in her wrists and there was swelling in her fifth finger in her right hand and had possible

swelling in her wrists. Id. The pain in her hands was described as a “burning, numbness or tingling

kind of sensation” and were so weak that she required two hands to lift a teapot. Id.

On November 6, 2015, Petitioner presented to Dr. Shih complaining of worse pain in her

hands and left shoulder. Id. at 41. Dr. Shih noted there was some swelling in the “second and fifth

digits of the right hand.” Id. Petitioner also had difficulty making a fist that morning. Id. Dr.

Shih stated that Petitioner’s symptoms suggested inflammatory arthritis but paresthesia was

suggestive of carpal tunnel syndrome. Id.

Petitioner saw Dr. Donny Chang, who specializes in endocrinology, on November 16, 2015

for a follow-up regarding her prediabetes. Ex. 4 at 38-40; Ex. 8 at 4-5. Dr. Chang did not note

anything regarding Petitioner’s pain.

On December 3, 2015, Petitioner saw her PCP, Dr. Fuller, for an urgent visit. Ex. 4 at 32.

Petitioner reported

an 11 week history of problems with both arms and rotator cuff tendinitis/tear. She

reports that her problems began when she got a flu shot at CVS on November [sic]

18th. She is in a great deal of pain. At night, she cannot sleep. Her symptoms are

getting worse. She has decreased sensation in her right hand and left hand also as

well as the arm. Her rheumatologist has ordered an MRI of her shoulder and this

showed a low-grade partial intrasubstance tear of the infraspinatus and mild

supraspinatus tendinopathy. An EMG showed carpal tunnel, but she is feeling

frustrated because she was expecting to have an EMG of both arms and it was just

the wrist and hand area that was evaluated. I had diagnosed her with tennis elbow,

but she does not feel that this is an issue at this time. Her right hand has been

swollen for two months. Her neck has locked up, and this began around October or

November. She has been seeing the chiropractor every week.5 She has been there

about three times. The neck is better, but both arms are terrible, she reports.

5

No chiropractic records have been filed.

5

Id. Dr. Fuller noted that the differential diagnosis was not clear, but that Petitioner’s pain was

inconsistent with the MRI. Id. Petitioner was prescribed an increase dosage of Vicodin and

referred for an MRI and x-ray. Id. Petitioner was to follow-up with Dr. Michael Brown, who

specializes in orthopedics, “for her left shoulder rotator cuff and neurology to evaluate her pain

issue, question vaccine related myelopathy.” Id.

On December 11, 2015, Petitioner saw Dr. Jordan Eisenstock at Community Neuroscience

Services with complaints of “arm pain/ s/p [status post] flu shot”. Ex. 4 at 29; Ex. 7 at 9. Dr.

Eisenstock noted that

The patient states that her current problem started when she received a flu shot on

November 18.6 Since that time she’s been in great pain, initially involving just the

left upper extremity but then spreading to the right upper extremity as well. She did

have an MRI of her left shoulder which showed partial tear of the infraspinatus and

supraspinatus tendinopathy. An EMG later showed bilateral carpal tunnel

syndrome but no other significant findings. Her pain is now greatly debilitation and

very limiting… she has continued to have migraines for many years and states that

the frequency is actually increased recently because of all of the stress.

Ex. 4 at 29; Ex. 7 at 9. Dr. Eisenstock reviewed a C-spine MRI and noticed “some disc bulging

and some CSF (cerebrospinal fluid) changes but I suspect only reminiscent of DJD [degenerative

joint disease] and not a larger problem.” Ex. 4 at 30; Ex. 7 at 10. Dr. Eisenstock assessed Petitioner

as having “nerve root and plexus disorder, unspecified” and migraines. Ex. 4 at 30, Ex. 7 at 10.

Dr. Eisenstock also noted that “Patient’s a picture [sic] many symptoms appear to be temporarily

correlated with flu vaccine. I wonder if there was an underlying vulnerability or predisposition but

blood work and examination have largely been unrevealing. Well underlying etiology is uncertain

treatment for a possible comp which regional pain syndrome or simply neuropathic pain, NOS [not

otherwise specified], is most likely indicated.” Ex. 4 at 30; Ex. 7 at 10. Dr. Eisenstock started

Petitioner on Topiramate. Ex. 4 at 30; Ex. 7 at 11.

On December 14, 2015, Petitioner presented to Drs. Hanbing Zhou and Michael Brown

with bilateral shoulder pain, left worse than right. Ex. 4 at 24. The records note that

she had a flu shot on September 18, 2015 on the left shoulder, she has significant

should pain on both sides started on the left side since the flu shot, but now the right

side is bothering her as well. The patient does report a numbness as well tingling

as well as burning sensation in the C5-C6 distribution on occasions. The patient

reports significant amount of pain 9-10/10 with any sort of overheard activities

since flu shot. The patient reports the weakness she experiences secondary to pain.

The patient also reports cervical radiculopathy symptoms where there is shooting

pain coming from her neck and it travels to the posterior scapula and along the

posterior aspect of the both of her arms.

6

The vaccine was administered on September 18, 2015.

6

Id. Drs. Zhou and Brown reviewed Petitioner’s MRIs and found that she had bilateral shoulder

inflammation on the left side and a very low-grade partial tear of the infraspinatus and a herniated

disk at the C5-C6 level. Id. at 25. Petitioner was injected with Marcaine with Depo-Medrol for

“rotator cuff inflammation of both shoulders”. Id. Drs. Zhou and Brown also recommended that

Petitioner begin physical therapy. Id.

Petitioner saw Dr. Michael Stauff on January 4, 2016. Ex. 4 at 18-19. Dr. Stauff, an

orthopedist, reviewed her cervical MRI and observed disc degeneration and spondylosis at C5-C6

with mild central and bilateral foraminal stenosis. Id. at 19. Dr. Stauff also noted that “I have no

explanation for why her symptoms cropped up after her flu shot. She has no radicular or

myelopathy symptoms. She has neck pain associated with disk [sic] degeneration. I recommend

activity based treatment and nonnarcotic pain medication. I have given her a prescription for

therapy.” Id.

On January 12, 2016, Petitioner saw Alixis Vanhorn, A.R.N.P., for arm, shoulder, and back

pain. Ex. 4 at 14; Ex. 7 at 4. N.P. Vanhorn noted the same symptoms as documented in Petitioner’s

other medical records. N.P. Vanhorn gave Petitioner a prescription for OT/PT and advised her to

get regular neck and back massages, use ice, and avoid positions which exacerbate pain. Petitioner

returned to N.P. Vanhorn on February 12, 2016. Ex. 4 at 12; Ex. 7 at 14. The reason for

appointment was “arm and hand pain” and “paresthesia of UE’s”. Ex. 4 at 12; Ex. 7 at 14. N.P.

Vanhorn noted

paresthesia and numbness and weakness in UE’s bilat, R>L. Referred to and seen

in OT/PT, got splints to wear at night that help with pain; pain in back persistent….

Has been biking at gym, doing PT exercises on her own. Continues with significant

pain in hands bilat, especially thumb and pointer finger.

Ex. 4 at 12; Ex. 7 at 14.

Petitioner returned to Community Neuroscience Services on February 24, 2016 to see Dr.

Eisenstock. Ex. 4 at 7; Ex. 7 at 17. Petitioner noticed that the injections she received in December

2015 “significantly improved her pain for a period of time. Unfortunately the pain has since

returned and she is not in the same excruciating pain is only [sic] first met but still very

uncomfortable at this moment.” Ex. 4 at 7; Ex. 7 at 17. Dr. Eisenstock increased the dosage of

Petitioner’s Topiramate prescription for neuropathic pain management and migraines. Ex. 4 at 8;

Ex. 7 at 18.

On March 7, 2016, Petitioner had a follow-up appointment with Dr. Fuller for her

medication. Ex. 4 at 6. Petitioner’s symptoms remained consistent, with notes of some relief after

cortisone injections in both shoulders. Petitioner indicated she needed another round of injections.

Id. Petitioner reported she has hand pain all day and “feels like her fingers get swollen, but no one

can see it.” Id. Dr. Fuller assessed Petitioner with cervical radiculopathy, temporomandibular

joint pain and migraines. Id.

On March 11, 2016, Petitioner followed up with Dr. Eisenstock. Ex. 4 at 3; Ex. 7 at 19.

Petitioner relayed to Dr. Eisenstock that she was experiencing increased shortness of breath and

7

possible over-sedation. Ex. 4 at 3; Ex. 7 at 19. Dr. Eisenstock decreased Petitioner’s Topiramate

dosage and started her on Lamictal for pain. Ex. 4 at 4; Ex. 7 at 20.

Petitioner met with Dr. Ross to follow up on her thyroid cancer. Ex. 5 at 8. In an “other

problems” section, Dr. Ross noted “Brachial neuritis after a flu shot, but bilateral (the second

started a couple of weeks later)”. Id. at 9. No other notations were made about Petitioner’s pain.

On March 17, 2016, Petitioner met with Mary Seguin, N.P., for bilateral shoulder pain.

Ex. 4 at 1. Petitioner requested and received two corticosteroid injections in her shoulders with

Dr. Brown’s permission. Id.

On May 11, 2016, Petitioner met with Dr. Eisenstock for a follow-up appointment. Ex. 7

at 22. There were no adjustments made to her medication because she was unable to tolerate a

higher dose, but the records indicate the medications were “otherwise helping”. Id. at 22-23.

Petitioner returned to Dr. Eisenstock on October 5, 2016 to review her medications. Ex.

10 at 8. Petitioner informed Dr. Eisenstock of increased numbness and tingling in both of her

hands and fifth digits of both hands. Id. Petitioner also said injections have had “up-and-down

benefits” but help with the pain. Id. On physical examination, Petitioner “did have positive

Tinel’s7 and both medial epicondyles8 of the elbows…. She had negative Tinel’s though at both

wrists. There was no obvious thenar or hyperthenar atrophy.” Id. at 9.

On February 6, 2017, Petitioner saw Dr. Eisenstock to discuss obtaining another EMG.

Ex. 10 at 3. Petitioner’s symptoms remained largely unchanged, but she had questions regarding

ulnar neuropathies. Id. Petitioner informed Dr. Eisenstock that she could probably tolerate an

increase in dosage of Lamictal but was in the process of obtaining a GI workup for elevated liver

enzymes. Id. Dr. Eisenstock did not recommend an increased dose until her GI workup returned.

Id. at 3-4.

On March 3, 2017, Petitioner saw Breta Boots, D.O., with complaints of “tingling and pain

in the upper extremities bilaterally, left greater than right, extending from elbow to forearm and

involving all 5 fingers, also left greater than right.” Ex. 10 at 11. Dr. Boots reviewed Petitioner’s

EMG and opined it was “mildly abnormal”. Id. The EMG showed

There is electrophysiological evidence of median nerve mononeuropathy (as can

be seen in carpal tunnel syndrome) at the wrists bilaterally which is mild in severity

on the left and minimal on the right. There is no evidence of any other superimposed

7

Tinel’s is “a tingling sensation in the distal end of a limb when percussion is made over the site of a

divided nerve. It indicates a partial lesion or the beginning regeneration of the nerve.” Tinel sign,

DORLAND'S MEDICAL DICTIONARY ONLINE (hereinafter “DORLAND’S”), https://www.dorlandsonline.com/

dorland/definition?id=106510 (last visited on December 14, 2020).

8

An epicondyle is “an eminence on a bone above its condyle.” Epicondyle, DORLAND'S,

https://www.dorlandsonline.com/dorland/definition?id=16789 (last visited on December 16, 2020). A

condyle is “a rounded projection on a bone, usually for articulation with another.” Condyle, DORLAND'S,

https://www.dorlandsonline.com/dorland/definition?id=10794 (last visited on December 16, 2020).

8

mononeuropathies (i.e. ulnar nerve, radial nerve) in either upper extremity. Needle

examination reveals some mild, likely chronic, changes in a few muscles in the left

upper extremity which could raise the possibility of a very mild left-sided cervical

radiculopathy at the level of C7-8.

Id. at 11-12.

Petitioner followed up with Dr. Eisenstock on March 6, 2017. Ex. 10 at 1. Dr. Eisenstock

reviewed Petitioner’s EMG and found it showed some chronic innervation changes in the lower

cervical area, mild carpal tunnel bilaterally and no findings of ulnar neuropathy. Id. He informed

Petitioner that “no additional intervention is required other than neuropathic pain management.”

Id. at 2.

III. Affidavit

Petitioner filed an affidavit on April 10, 2017, which she signed on October 18, 2016. Ex.

2. Petitioner stated she felt immediate pain after the flu vaccine which spread down her arm all

the way to her hand. Ex. 2 at 1. The pain was so severe that she “was unable to lift [her] arm to

take [her] clothes off.” Id. Petitioner added that, “[t]he pain then spread across my back and into

my right shoulder and arm.” Id. Petitioner stated that she required assistance from her husband

with normal activities like dressing and pulling the covers off to get out of bed. Id. Mr. LaBounty

also drove Petitioner to medical appointments and to work when she was unable to because of the

pain. Id.

Petitioner stated she was diagnosed with brachial neuritis and underwent two rounds of

physical therapy with minimal improvement. Ex. 2 at 2. Petitioner indicated that she was fully

employed but had to take time off for her symptoms and took medication that made her very

forgetful. Id. Petitioner stated that “[m]any aspects of [her] life have been negatively affected by

this injury.” Id.

On January 15, 2019, Petitioner submitted a supplemental affidavit. Ex. 13. Petitioner

stated that since the vaccination, her feet and hands get very cold and her hands “get so cold that

they actually hurt.” Id. at 1. These were not symptoms she experienced prior to the vaccination.

See id. Additionally, Petitioner stated “[t]hese specific symptoms occurred during the time of my

severe back and neck pain.” Id. Petitioner described these symptoms to her doctors as a

“decreased sensation, because they feel numb when cold.” Id.

IV. Expert Opinions

A. Dr. Marcel Kinsbourne

Petitioner filed an expert report and three supplemental reports from Dr. Kinsbourne. Exs.

11 (“First Kinsbourne Rep.”), 15 (“Second Kinsbourne Rep.”), 16a (“Third Kinsbourne Rep.”), 17

(“Fourth Kinsbourne Rep.”).

9

Although no curriculum vitae was submitted for Dr. Kinsbourne, I am aware from previous

cases that Dr. Kinsbourne received his medical degree from Oxford University in 1955. See Bryan

v. Sec’y of Health & Hum. Servs., No. 14-898, 2020 WL 7089841, at *12 (Fed. Cl. Spec. Mstr.

Oct. 9, 2020). Dr. Kinsbourne completed post-doctoral training in neurology and pediatrics and

is Board Certified in Pediatrics. See id. Dr. Kinsbourne has had a number of hospital and academic

appointments and has been a research professor at the Center for Cognitive Studies at Tufts

University since 1992 and a Professor of Psychology at New School University since 1995. Id.

Dr. Kinsbourne serves on numerous editorial boards, including Brain Research, Cognitive

Neuropsychiatry, Journal of Psycholinguistic Research, and many others. Id. Dr. Kinsbourne has

published over 400 articles regarding pediatrics and neurology. Id.

1. Dr. Kinsbourne’s First Report

In Dr. Kinsbourne’s first report, he summarized Petitioner’s symptoms as “severe

neuropathic pain in the absence of focal neurological signs and without clear etiology.” First

Kinsbourne Rep. at 2. Based on Petitioner’s initial symptom of severe pain around the injection

site, the immediate onset suggested a SIRVA. Id. at 3. However, according to Dr. Kinsbourne,

her pain became more widespread, leading to a possible diagnosis of brachial neuritis. Id., see

also Pet. However, Petitioner’s symptomology did not follow the typical disease trajectory

because Petitioner did not develop muscle weakness. First Kinsbourne Rep. at 3.

Dr. Kinsbourne noted that Dr. Eisenstock entertained a CRPS diagnosis. First Kinsbourne

Rep. at 3; see also Ex. 4 at 30; Ex. 7 at 10. Dr. Kinsbourne provided an overview of the signs and

symptoms of CRPS and cited the International Association for the Study of Pain’s (“IASP”)

criteria for a CRPS diagnosis. See generally First Kinsbourne Rep. at 3-4. Dr. Kinsbourne

“confirmed” a CRPS diagnosis by stating:

Presence of an initiating noxious event or a cause of immobilization. Sharon

LaBounty received an intramuscular injection of influenza vaccine.

Continuing pain, allodynia or hypalgesia [sic] with which pain is disproportionate

to any inciting event. Her influenza vaccination triggered disproportionate pain.

Evidence at some time of edema, changes in skin blood flow or abnormal

sudomotor activity in the region of the pain. She had swelling of her fingers.

Diagnosis is excluded by existence of other conditions that would otherwise

account for the degree of pain and dysfunction. No such conditions (brachial

neuritis, cervical spondylosis) could be corroborated.

Id. at 4. Dr. Kinsbourne also noted that the temporary help of corticosteroid injections

corroborated the CRPS diagnosis. See generally id. at 4-5. Dr. Kinsbourne cited a 2003 case study

in which four patients developed CRPS after receiving hepatitis B vaccinations. Id. at 5. In

explaining how Petitioner’s vaccination caused her disease, Dr. Kinsbourne stated, “CRPS can be

caused by vaccination with diverse vaccines, consistent with the view that it was mechanical

10

trauma due to the injection rather than a chemical effect due to a particular vaccine that caused the

disorder.” Id.

2. Dr. Kinsbourne’s Second Report

Dr. Kinsbourne opined that the “Budapest criteria are an elaboration of the IASP format

that subdivides the questionnaire items into those that are subjective and those that are

observative.” Second Kinsbourne Rep. at 1. The IASP criteria “maximize sensitivity at the

expensive of specificity” while the Budapest criteria are “far more conservative”. Id. Dr.

Kinsbourne listed the four criteria (sensory, vasomotor, sudomotor, motor/trophic) and referenced

the correlating records that satisfied these criteria:

1. Sensory: Pain from things that are not normally painful

Ms. LaBounty had pain from joint movement; raising left arm above shoulder

level. Also burning pain waking her at night. She was unable to dress herself,

pull covers off the bed or drive, due to excessive pain (Affidavit, October 18,

2016)

2. Vasomotor

Abnormally cold feeling in both hands (Affidavit, January 10, 2019)

Fingers blanch (Exhibit 4, p. 32).

3. Sudomotor

Edema; swelling dorsum of hands (Exhibit 4, p. 3, Exhibit 9, pp. 32, 43)

4. Motor/trophic

Inability to move left arm

Weakness both arms (Exhibit 4, pp. 10, 12, 32) weak right hand intrinsic

muscles, weak abduction of fingers (Exhibit 4, p 11).

Id. at 2. Based on his interpretation of Petitioner’s records, Dr. Kinsbourne opined that she had

CRPS pursuant to the Budapest criteria. Id. Regarding my question whether Petitioner showed

symptoms of hyperesthesia and allodynia, Dr. Kinsbourne stated that Petitioner’s behavior

“indicated” hyperesthesia of the affected limb and “allodynia is consistent with Ms. LaBounty’s

actions, such as guarding her arm from perturbations”. Id. at 3.

Dr. Kinsbourne also responded to Dr. Callaghan’s first expert report. Dr. Kinsbourne did

not address Petitioner’s previous diagnosis of central sensitization syndrome but cited medical

literature regarding the relationship between CRPS and migraines. See Second Kinsbourne Rep.

at 2-3. Dr. Kinsbourne added that Petitioner’s history of migraines and dysmenorrhea were risk

factors for CRPS. Id. at 3. Dr. Kinsbourne maintained that the type of vaccine is irrelevant to the

development of CRPS but that a needle-induced soft tissue injury could cause CRPS. Id.

3. Dr. Kinsbourne’s Third Report

11

Dr. Kinsbourne filed a third report to answer additional questions that I posed. Dr.

Kinsbourne opined that Petitioner’s CRPS began 15 minutes after the “needle-stick for the

influenza vaccination” and that there was no medically appropriate onset interval for CRPS after

needle stick but cited medical literature that showed that onset was “’immediate after the injury’”.

Third Kinsbourne Rep. at 1. Dr. Kinsbourne restated his position that Petitioner met both the IASP

and the Budapest criteria. He further clarified that Petitioner’s finger blanching did not constitute

a color change for purposes of the criteria but “is secondary to vasomotor dysregulation”. Id. at 2.

Finally, Dr. Kinsbourne stated that the symptoms of CRPS do wax and wane over time. Id. at 3-

4.

4. Dr. Kinsbourne’s Fourth Report

Dr. Kinsbourne copied his assessment of the Budapest criteria from his first supplemental

report and restated his opinion that Petitioner met the four categories of the criteria. Fourth

Kinsbourne Rep. at 1-2.

B. Dr. Brian Callaghan

Respondent filed an expert report and two supplemental reports from Dr. Callaghan. Exs.

A (“First Callaghan Rep.”), C (“Second Callaghan Rep.”), D (“Third Callaghan Rep.”).

Dr. Callaghan received his medical degree from the University of Pennsylvania in 2004.

Ex. B (hereinafter “Callaghan CV”) at 1. Dr. Callaghan completed his residency in neurology at

the University of Pennsylvania and completed two fellowships at the University of Michigan. Id.

Dr. Callaghan is board certified in neurology and electrodiagnostic medicine. Id. He is a professor

at the University of Michigan, Ann Arbor and VA Ann Arbor Healthcare system. Id. Dr.

Callaghan is the director of the ALS Clinic and a Staff Physician in the Department of Neurology

at the VA Ann Arbor Health System. Id. at 1-2. Dr. Callaghan is actively involved in research, is

on the editorial board of Innovations in Care Delivery (Neurology) and is a journal reviewer for

an extensive number of publications including but not limited to Annals of Neurology, Brain, Brain

and Behavior, Diabetes, Lancet, Neurology. Id. at 3-5. Dr. Callaghan has published over 70 peer

reviewed papers and book chapters. He has presented at many conferences and institutions, both

nationally and internationally. Id. at 6-15.

1. Dr. Callaghan’s First Report

Dr. Callaghan opined that the Budapest Criteria are “the most accepted diagnostic criteria

for the diagnosis of CRPS.” Resp’t’s Status Rep. on 4/7/2020, ECF No. 47. The Budapest Criteria

require that a patient have three of four categories of symptoms (sensory, vasomotor,

sudomotor/edema, and motor/trophic) and two of four signs (sensory, vasomotor,

sudomotor/edema, motor/trophic). First Callaghan Rep. at 2. Dr. Callaghan stated that CRPS

should only be considered when there is no better alternative diagnosis available. Id. Dr.

Callaghan indicated that Petitioner’s diagnosis of central sensitization syndrome, or chronic

overlapping pain conditions, was correct and that Petitioner’s symptoms correlate best with this

diagnosis. Id. at 2-3. Petitioner’s extensive history of migraines, temporal mandibular joint pain,

12

low back pain, and irritable bowel syndrome indicate that she has central sensitization syndrome

and Petitioner’s post-vaccination arm pain qualifies as a chronic overlapping pain condition. Id.

Additionally, Dr. Callaghan stated that there has not been any epidemiological support to

show that a flu vaccination can cause CRPS. The few case studies filed by Petitioner provide a

small sample size and do not apply to this case because different vaccines were involved in the

case studies. First Callaghan Rep. at 3.

2. Dr. Callaghan’s Second Report

Dr. Callaghan reiterated that Petitioner does not meet the criteria for CRPS because she

has experienced pain since 2008 and was diagnosed with central sensitization syndrome which

“better explains her signs and symptoms”. Second Callaghan Rep. at 2. Petitioner’s extensive

pain history which included fibromyalgia, migraines, low back pain, temporal mandibular joint

pain, and irritable bowel syndrome, is consistent with central sensitization syndrome. Id. While

Petitioner had migraines and dysmenorrhea, which are risk factors for CRPS, she had other chronic

pain conditions. Id. Dr. Callaghan also stated that Dr. Kinsbourne provided no evidence to support

his theory of causation other than case reports, however “these are the lowest form of

epidemiologic support.” Id. at 1-2.

3. Dr Callaghan’s Third Report

Dr. Callaghan submitted his third and final report answering additional questions that I

posed. Dr. Callaghan stated that Petitioner did not meet the Budapest Criteria for CRPS because

she exhibited neither vasomotor nor sudomotor/edema symptoms. Third Callaghan Rep. at 1. The

Budapest criteria require a patient to meet three out of four categories of symptoms and two out of

four categories of signs. Dr. Callaghan disputed Dr. Kinsbourne’s assessment of coldness in

Petitioner’s hands as a vasomotor symptom. Id. Dr. Callaghan also noted that Petitioner

experienced a mild edema, which was “not a symptom”. Id. Important in the Budapest criteria

are the asymmetry of symptoms. Petitioner did not exhibit temperature asymmetry, skin color

asymmetries, or trophic changes (skin, hair, nails). Id.

Regarding needle stick, Dr. Callaghan opined that he did not believe needle sticks are

sufficient to cause CRPS. Id. He cited medical literature that noted triggers for CRPS included

“fractures, sprains, contusions, crush injuries and surgeries” with fractures (42%), blunt traumatic

injuries (21%), and surgery (12%) the most common causes of CRPS. Id. With regards to the

case reports that Dr. Kinsbourne cited, Dr. Callaghan noted none were after a seasonal flu

vaccination and in one of the articles, it found no increase in the observed and expected numbers

of CRPS after HPV vaccination. Id. It is Dr. Callaghan’s opinion that CRPS cannot be caused by

needle stick and even if it could, Petitioner did not have CRPS. Id. at 2.

Dr. Callaghan next opined that the symptoms of CRPS do not wax and wane, as Petitioner’s

symptoms did. Third Callaghan Rep. at 2. CRPS can worsen and improve over time but would

not have dramatic changes month to month. Id. Furthermore, CRPS is unlikely to respond to

treatments for shoulder pain (steroid shots) or carpal tunnel syndrome (splints), which Petitioner

received. Id.

13

V. Applicable Law

A. Petitioner’s Burden in Vaccine Program Cases

Under the Vaccine Act, a petitioner may prevail in one of two ways. First, a petitioner may

demonstrate that she suffered a “Table” injury—i.e., an injury listed on the Vaccine Injury Table

that occurred within the time period provided in the Table. § 11(c)(1)(C)(i). “In such a case,

causation is presumed.” Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1320 (Fed.

Cir. 2006); see § 13(a)(1)(B). Second, where the alleged injury is not listed in the Vaccine Injury

Table, a petitioner may demonstrate that he suffered an “off-Table” injury. § 11(c)(1)(C)(ii).

For both Table and non-Table claims, Vaccine Program petitioners bear a “preponderance

of the evidence” burden of proof. § 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

[she] may find in favor of the party who has the burden to persuade the judge of the fact’s

existence.” Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1324 (Fed. Cir. 2010); 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 & Hum. 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 & Hum. Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)); Pafford v. Sec’y of Health

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

Program award based solely on her assertions; rather, the petition must be supported by either

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

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

non-Table claim, a petitioner must satisfy all three of the elements established by the Federal

Circuit in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005). Althen requires

that petitioner establish by preponderant evidence that the vaccination he received caused his

injury “by providing: (1) a medical theory causally connecting the vaccination and the injury; (2)

a logical sequence of cause and effect showing that the vaccination was the reason for the injury;

and (3) a showing of a proximate temporal relationship between vaccination and injury.” Id. at

1278.

Under the first prong of Althen, 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, a petitioner’s theory must be based on a “sound

and reliable medical or scientific explanation.” Knudsen v. Sec’y of Health & Hum. Servs., 35

F.3d 543, 548 (Fed. Cir. 1994). Proof that the proffered medical theory is reasonable, plausible,

or possible does not satisfy a petitioner’s burden. Boatmon v. Sec’y of Health & Hum. Servs., 941

F.3d 1351, 1359-60 (Fed. Cir. Nov. 7, 2019).

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

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

14

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

Capizzano, 440 F.3d at 1325-26). However, special masters are “entitled to require some indicia

of reliability to support the assertion of the expert witness.” Boatmon, 941 F.3d at 1360, quoting

Moberly, 592 F.3d at 1324. Special Masters, despite their expertise, are not empowered by statute

to conclusively resolve what are complex 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 & Hum.

Servs., 121 Fed. Cl. 230, 245 (2015), vacated on other grounds, 844 F.3d 1363 (Fed. Cir. 2017);

see also Hock v. Sec’y of Health & Hum. Servs., No. 17-168V, 2020 U.S. Claims LEXIS 2202 at

*52 (Fed. Cl. Spec. Mstr. Sept. 30, 2020).

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 (“medical records and medical opinion

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

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

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

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

of the patient. Cucuras v. Sec’y of Health & Hum. 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 & Hum. 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 & Hum. 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 &

Hum. Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot.

for review den’d, 100 Fed. Cl. 344, 356 (2011), aff’d without opinion, 475 Fed. App’x 765 (Fed.

Cir. 2012).

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

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

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

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

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

Bazan v. Sec’y of Health & Hum. 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

15

vaccine can cause an injury (Althen prong one’s requirement). Id. at 1352; Shapiro v. Sec’y of

Health & Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons. den’d after remand, 105 Fed. Cl. 353

(2012), aff’d mem., 503 F. App’x 952 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Hum. Servs.,

No. 11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for review den’d (Fed.

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

B. Law Governing Analysis of Fact Evidence

The process for making factual determinations in Vaccine Program cases begins with

analyzing the medical records, which are required to be filed with the petition. Section 11(c)(2).

The special master is required to consider “all [] relevant medical and scientific evidence contained

in the record,” including “any diagnosis, conclusion, medical judgment, or autopsy or coroner’s

report which is contained in the record regarding the nature, causation, and aggravation of the

petitioner’s illness, disability, injury, condition, or death,” as well as the “results of any diagnostic

or evaluative test which are contained in the record and the summaries and conclusions.” Section

13(b)(1)(A). The special master is then required to weigh the evidence presented, including

contemporaneous medical records and testimony. See Burns v. Sec’y of Health & Hum. Servs., 3

F.3d 413, 417 (Fed. Cir. 1993) (it is within the special master’s discretion to determine whether to

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

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

determination is evidenced by a rational determination).

Medical records created contemporaneously with the events they describe are presumed to

be accurate and “complete” such that they present all relevant information on a patient’s health

problems. Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Hum. Servs., 95 Fed. Cl. 598,

608 (2010) (“[g]iven the inconsistencies between petitioner’s testimony and his contemporaneous

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

and consistent with applicable law”), aff’d, Rickett v. Sec’y of Health & Hum. Servs., 468 F. App’x

952 (Fed. Cir. 2011) (non-precedential opinion). This presumption is based on the linked

proposition that (i) sick people visit medical professionals; (ii) sick people honestly report their

health problems to those professionals; and (iii) medical professionals record what they are told or

observe when examining their patients in as accurate a manner as possible, so that they are aware

of enough relevant facts to make appropriate treatment decisions. Sanchez v. Sec’y of Health &

Hum. Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr. Apr. 10, 2013), mot.

for review den’d (Fed. Cl. Feb. 11, 2019), vacated on other grounds, 809 Fed. Appx. 843 (Fed.

Cir. 2020); Cucuras v. Sec’y of Health & Hum. Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d

at 1525 (Fed. Cir. 1993) (“[i]t strains reason to conclude that petitioners would fail to accurately

report the onset of their daughter’s symptoms.”).

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

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

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

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

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

see also Murphy v. Sec’y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff’d per curiam,

968 F.2d 1226 (Fed. Cir. 1992), (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 396

16

(1947) (“[i]t has generally been held that oral testimony which is in conflict with contemporaneous

documents is entitled to little evidentiary weight.”)).

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

than written records, such as where records are deemed to be incomplete or inaccurate. Campbell

v. Sec’y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“like any norm based upon common

sense and experience, this rule should not be treated as an absolute and must yield where the factual

predicates for its application are weak or lacking”); Lowrie, 2005 WL 6117475, at *19 (“[w]ritten

records which are, themselves, inconsistent, should be accorded less deference than those which

are internally consistent”) (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a determination

regarding a witness’s credibility is needed when determining the weight that such testimony should

be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570,

1575 (Fed. Cir. 1993).

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

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

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

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

accuracy and completeness of medical records, the Court of Federal Claims has listed four possible

explanations for inconsistencies between contemporaneously created medical records and later

testimony: (1) a person’s failure to recount to the medical professional everything that happened

during the relevant time period; (2) the medical professional’s failure to document everything

reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony;

or (4) a person’s purposeful recounting of symptoms that did not exist. LaLonde v. Sec’y of Health

& Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014). In making

a determination regarding whether to afford greater weight to contemporaneous medical records

or other evidence, such as testimony at hearing, there must be evidence that this decision was the

result of a rational determination. Burns, 3 F.3d at 417.

C. Analysis of Expert Testimony

Establishing a sound and reliable medical theory connecting the vaccine to the injury often

requires a petitioner to present expert testimony in support of her claim. Lampe v. Sec’y of Health

& Hum. Servs., 219 F.3d 1357, 1361 (Fed. Cir. 2000). Vaccine Program expert testimony is

usually evaluated according to the factors for analyzing scientific reliability set forth in Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-96 (1993). See Cedillo v. Sec’y of Health & Hum.

Servs., 617 F.3d 1328, 1339 (Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Hum. 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. Daubert factors are employed by judges to exclude

17

evidence that is unreliable and potentially confusing to a jury. In Vaccine Program cases, these

factors are used in the weighing of the reliability of scientific evidence. Davis v. Sec’y of Health

& Hum. 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

persuasiveness and reliability of expert testimony has routinely been upheld. See, e.g., Snyder, 88

Fed. Cl. at 743. 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.

Respondent frequently offers one or more experts of his own in order to rebut a petitioner’s

case. Where both sides offer expert testimony, a special master’s decision may be “based on the

credibility of the experts and the relative persuasiveness of their competing theories.”

Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing

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

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

great an analytical gap between the data and the opinion proffered.” Snyder, 88 Fed. Cl. at 743

(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). A “special master is entitled to

require some indicia of reliability to support the assertion of the expert witness.” Moberly, 592

F.3d at 1324. Weighing the relative persuasiveness of competing expert testimony, based on a

particular expert’s credibility, is part of the overall reliability analysis to which special masters

must subject expert testimony in Vaccine Program cases. Id. at 1325-26 (“[a]ssessments as to the

reliability of expert testimony often turn on credibility determinations”); see also Porter v. Sec’y

of Health & Hum. Servs., 663 F.3d 1242, 1250 (Fed. Cir. 2011) (“this court has unambiguously

explained that special masters are expected to consider the credibility of expert witnesses in

evaluating petitions for compensation under the Vaccine Act”).

D. Consideration of Medical Literature

Although this decision discusses some but not all of the medical literature in detail, I

reviewed and considered all of the medical records and literature submitted in this matter. See

Moriarty v. Sec’y of Health & Hum. Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“We generally

presume that a special master considered the relevant record evidence even though [s]he does not

explicitly reference such evidence in h[er] decision.”); Simanski v. Sec’y of Health & Hum. Servs.,

115 Fed. Cl. 407, 436 (2014) (“[A] Special Master is ‘not required to discuss every piece of

evidence or testimony in her decision.’” (citation omitted)), aff’d, 601 F. App’x 982 (Fed. Cir.

2015).

VI. Analysis

Because Petitioner does not allege an injury listed on the Vaccine Injury Table, her claim

is classified as “off-Table.” As noted above, to prevail on an “off-Table” claim, Petitioner must

prove by preponderant evidence that she suffered an injury and that this injury was caused by the

vaccination at issue. See Capizzano, 440 F.3d at 1320.

18

A. CRPS Generally

CRPS is a chronic pain condition “characterized by spontaneous and evoked regional

pain”. S. Bruehl, Complex regional pain syndrome, BMJ at 1 (2015) (filed as Ex. E). CRPS

generally begins in an extremity and the pain experienced is disproportionate to the injury. Id.

The typical characteristics of CRPS include continuous pain, sensory, vasomotor,

sudomotor/edema, and motor/trophic signs and symptoms. Ott & Maihöfner, Signs and Symptoms

in 1,043 Patients with Complex Regional Pain Syndrome, 19 THE JOURNAL OF PAIN 6, 599-611

(2018) (filed as Ex. F) (hereinafter “Ott & Maihöfner”). CRPS pain has been described as

“’burning,’ ‘pins and needles’ sensation, or as if someone were squeezing the affected limb.”

Complex Regional Pain Syndrome Fact Sheet, National Institutes of Neurological Disorders and

Stroke, National Institutes of Health (filed as Ex. 11c) (hereinafter “NIH Fact Sheet”). CRPS can

also travel to the opposite extremity. Id. at 1. In the initial acute stage of CRPS, “inflammation is

common and can be targeted with corticosteroid therapy.” See M. Ferguson, Steroids for Complex

Regional Pain Syndrome?9

The cause of CRPS is unknown. The NIH Fact Sheet estimates that 90% of CRPS cases

are triggered by trauma or an injury. NIH Fact Sheet at 2. The severity of trauma is not linked to

the development of CRPS. Marinus et al., Clinical features and pathophysiology of complex

regional pain syndrome, THE LANCET NEUROLOGY, vol. 10, 637-648 (2011) (filed as Ex. 15d)

(hereinafter “Marinus”). It is generally understood that CRPS is a disorder associated with “an

aberrant host response to tissue injury.” Id. at 1.

B. Petitioner Has Carried Her Burden of Proof

1. There is Preponderant Evidence that Petitioner Suffers from CRPS

The first step in an “off-Table” claim is to “determine what injury, if any, was supported

by the evidence presented in the record.” Lombardi v. Sec’y of Health & Human Servs., 656 F.3d

1343, 1353 (Fed. Cir. 2011). The Vaccine Act “places the burden on the petitioner to make a

showing of at least one defined and recognized injury,” and “[i]n the absence of a showing of the

very existence of any specific injury[,] . . . the question of causation is not reached.” Id.; see

Broekelschen, 618 F.3d at 1346 (explaining that “identifying the injury is a prerequisite to the

[causation] analysis”). In this case, there is a dispute as to whether Petitioner suffered from CRPS.

In order to be diagnosed with CRPS, a patient must have continuing pain disproportionate

to any inciting event, display the signs and symptoms enumerated in the Budapest Criteria, and

establish that no other diagnosis better explains the patient’s signs and symptoms.

a. Diagnostic Criteria

Both experts agree that the Budapest Criteria are an appropriate diagnostic standard for

9

https://www.practicalpainmanagement.com/treatments/pharmacological/non-opioids/steroids-complex-

regional-pain-syndrome#fieldset; (filed as Ex. 11f) (last accessed December 15, 2020).

19

CRPS. See Second Kinsbourne Rep. at 1-2; Resp’t’s Status Rep. dated April 7, 2020, ECF No.

47. The Budapest Criteria were discussed in a 2007 article by Harden et al..”10 The criteria

include:

1) Continuing pain, which is disproportionate to any inciting event

2) Must report at least one symptom11 in three of the four following categories:

- Sensory: reports of hyperesthesia and/or allodynia

- Vasomotor: reports of temperature asymmetry and/or skin color changes and/or

skin color asymmetry

- Sudomotor/edema: reports of edema and/or sweating changes and/or sweating

asymmetry

- Motor/trophic: reports of decreased range of motion and/or motor dysfunction

(weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin)

(3) Must display at least one sign at time of evaluation in two or more of the following

categories:

- Sensory: evidence of hyperalgesia (to pinprick) and/or allodynia (to light touch

and/or deep somatic pressure and/or joint movement)

- Vasomotor: evidence of temperature asymmetry and/or skin color changes and/or

asymmetry

- Sudomotor/edema: evidence of edema and/or sweating changes and/or sweating

asymmetry

- Motor/trophic: evidence of decreased range of motion and/or motor dysfunction

(weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin)

(4) There is no other diagnosis that better explains the signs and symptoms

i. Continuing Pain Disproportionate to any Inciting Event

The experts generally agree that Petitioner meets the first three criteria. First, Petitioner

does have continuing pain, documented throughout her medical records which is disproportionate

to the needle stick on September 18, 2015. In fact, Dr. Fuller described her pain as an “[e]xtreme

increase in her arm and shoulder pain out of proportion to what is seen on MRI of the left shoulder.”

Ex. 4 at 32.

ii. Reported Symptoms

Petitioner also described symptoms in three of the four categories as required by the second

criterion. Dr. Kinsbourne opined and Dr. Callaghan conceded that Petitioner does have the sensory

symptom of allodynia. See Second Kinsbourne Rep. at 2; Third Kinsbourne Rep. at 3; Fourth

Kinsbourne Rep. at 1; Third Callaghan Rep. at 1.

10

Harden et al., Proposed New Diagnostic Criteria for Complex Regional Pain Syndrome, 8 PAIN

MEDICINE 4 (2007) (filed as Ex. 15c).

11

A sign is defined as “an indication of the existence of something; any objective evidence of a disease,

i.e., such evidence as is perceptible to the examining physician, as opposed to the subjective sensations

(symptoms) of the patient.” Sign, DORLAND’S, https://www.dorlandsonline.com/dorland/

definition?id=45805 (last visited on December 16, 2020).

20

In addition, Petitioner satisfied the sudomotor category based on the report of edema in her

medical records. Dr. Callaghan disagreed with this point indicating that Petitioner’s medical

record describes signs and not symptoms of edema. See Third Callaghan Rep. at 1. While true

for the particular record that he referenced (Ex. 4 at 32), there are other medical records where

Petitioner discussed swelling of her hands that was not observed by her doctor. For example,

during her visit with Dr. Eisenstock on March 11, 2016, the HPI states, “After her injections [s]he

states that there was a significant relief of symptoms involving her left upper extremity and that

she also notices some swelling in her hands had been improved.” Ex. 4 at 3. There was no swelling

documented on exam during this visit. On October 14, 2015, Petitioner described swelling in her

right fifth finger and her wrists. Id. at 42. Additionally, during a September 30, 2015 visit with

Dr. Shih, the subjective section of the record states, “She describes pain and swelling in the left

and right second fingers, diffusely through the finger…” Ex. 9 at 43. The physical exam portion

of the record indicates Petitioner had “[g]ood range of motion of elbows, wrists, fingers with no

active synovitis.” Id. Based on the foregoing, I find that Petitioner has experienced symptoms of

edema.

I agree with Dr. Callaghan that there is not evidence Petitioner experienced vasomotor

symptoms consistent with the Budapest Criteria (reports of temperature asymmetry and/or skin

color changes and/or skin color asymmetry). Dr. Kinsbourne initially opined that Petitioner met

this criterion due to her “abnormal[] cold feeling in both hands” and the fact that her “fingers

blanch”. See Second Kinsbourne Rep. at 2. While Petitioner did describe that her hands were

cold, she did not describe temperature asymmetry. In addition, I specifically asked Dr. Kinsbourne

whether blanching of the fingers due to swelling constitutes a color change. He responded, “Not

in the sense called for by diagnostic criteria. A color change should characterize the skin of the

affected limb independent of swelling. Blanching is secondary to vasomotor dysregulation…” Id.

Finally, I find that Petitioner also experienced motor symptoms. Petitioner made several

reports of pain with overhead movement throughout her medical records. For example, Petitioner

visited Dr. Zhou on December 14, 2015. This record notes that she reported “significant amount

of pain 9-10/10 with any sort of overhead activities since the flu shot.” Ex. 4 at 24. On September

30, 2015, Dr. Shih noted that Petitioner “has pain with full abduction of both shoulders, as well as

external and internal rotation…” Id. at 43. Further, Dr. Callaghan agreed that Petitioner did

experience motor symptoms which included pain with movement and pain limiting movement.

Third Callaghan Rep. at 1.

The Budapest criteria require that Petitioner experience at least one symptom in three of

the four categories. The above analysis demonstrates that Petitioner has met the requirements of

the second criterion.

iii. Documented Signs

I find that the medical records document that Petitioner displayed signs in two of the four

categories of the Budapest Criteria: sudomotor/edema and motor/trophic.

21

On December 3, 2015, Petitioner visited Dr. Fuller. Dr. Fuller conducted a physical

examination and noted that “[t]here is mild swelling of the dorsum of the right hand and fingers

compared with the left side.” Ex. 4 at 32. Both Dr. Kinsbourne and Dr. Callaghan agree that this

documented instance of edema constitutes a sudomotor sign. See First Kinsbourne Rep. at 4;

Second Kinsbourne Rep. at 2; Fourth Kinsbourne Rep. at 1; Third Callaghan Rep. at 1.

On February 12, 2016, Petitioner visited N.P. Vanhorn. On physical examination, N.P.

Vanhorn noted “some discomfort on PROM at shoulder and with abduction of fingers.” Ex. 4 at

11. She also noted “Normal strength except some slight (5-/5) in right hand intrinsics and in finger

abduction, R>L.” Id. On December 3, 2015, Dr. Fuller noted the following on physical exam:

There is discomfort around the deltoid muscle of the right shoulder. There is

decreased sensation to light touch over the left upper extremity laterally and a mild

decreased sensation in the left hand and numbness in the right hand. DTRs 1 +

bilaterally in the arms. There is decreased power, about 4/5 bilaterally. There is

some mild discomfort to palpation in the cervical paravertebral areas.

Id. at 32. Dr. Kinsbourne opined that each of these examples from the medical records constitute

examples of motor signs. See Second Kinsbourne Rep. at 2; Fourth Kinsbourne Rep. at 1. Dr.

Callaghan also agreed that Petitioner experienced motor signs which included pain with movement

and pain limiting movement. Third Callaghan Rep. at 1.

The Budapest criteria require that Petitioner experience at least one sign in two of the four

categories. The above analysis demonstrates that Petitioner has met the requirements of the third

criterion.

iv. There is No Other Diagnosis that Better Explains the Signs

and Symptoms

The only question that remains is whether Petitioner has another diagnosis that better

explains her signs and symptoms. Dr. Callaghan has opined that Petitioner’s diagnosis of central

sensitization syndrome explains her signs and symptoms and precludes a diagnosis of CRPS. In

describing central sensitization syndrome, he stated:

Another term used for this disorder is chronic overlapping pain conditions, which

includes fibromyalgia, migraines, low back pain, temporal mandibular joint pain,

and irritable bowel syndrome. She had all of these conditions as documented above.

Therefore, by far the most likely cause of her unexplained bilateral arm pain is a

chronic overlapping pain condition such as fibromyalgia or myofascial pain

syndrome.12

12

Dr. Kinsbourne responded by stating there is not evidence in the medical records that Petitioner met the

diagnostic criteria for either fibromyalgia or myofascial pain syndrome. Second Kinsbourne Rep. at 3. In

response, Dr Callaghan wrote as follows: “Dr. Kinsbourne notes that she does not meet formal criteria for

fibromyalgia or myofascial pain syndrome. While correct that no one formally investigated whether she

22

First Callaghan Rep. at 1-2.

Dr. Callaghan cited to the April 18, 2014, visit with Raymond Pertusi, D.O. as support for

his opinion that Petitioner’s central sensitization syndrome explained her signs and symptoms. In

the HPI section of this record, Dr. Pertusi noted that:

This 49 YO F, a patient of Dr. I. Fuller, saw her on 3/26/14 and was noted to have

joint pains. Question OA vs. autoimmune?13 if she has Raynaud's. Does she have a

rheumatologic issue?

Her pain began about 2008. It's all day every day but worse in the morning. Less

dietary gluten helps. It's aching. No radiation. It's moderately severe. Joints/areas

affected include all 4 quadrants: ankles, knees, hands, shoulders, neck, LB, and

hips. She has fatigue, cramping, and numbness in fingers and toes. Her 1-3 fingers

do turn white on cold exposure.

Ex. 4 at 80. After an examination, Dr. Pertusi’s impression was “Her pain generator is likely a

central sensitization syndrome that could be related to remote trauma (Abuse X 3) and likely

PTSD.” Ex. 4 at 82.

I will note that aside from the description in Dr. Callaghan’s expert report cited above,

there is no further information that explains central sensitization syndrome (or chronic overlapping

pain conditions). There is no discussion of the syndrome’s diagnostic criteria. No medical

literature has been filed in this case which addresses the condition. As a result, it is difficult to

assess whether Dr. Pertusi’s impression in 2014 that Petitioner’s “pain generator is likely a central

sensitization syndrome” precludes a CRPS diagnosis.

Further, the opinions of Petitioner’s treating neurologist help to inform this issue. After

examining Petitioner on December 11, 2015, Dr. Eisenstock, found that her “many symptoms

appear to be temporarily correlated with flu vaccine.” Ex. 4 at 30. Dr. Eisenstock further found

that treatment for “regional pain syndrome”14 was indicated. Id. He prescribed Topiramate for

met criteria, she still has a central sensitization syndrome as clearly documented in her medical record many

years prior to her shoulder/arm pain (Exhibit 4, page 80).” Second Callaghan Rep. at 1.

13

The fact that Dr. Pertusi questioned whether Petitioner’s joint pain was from osteoarthritis or from an

autoimmune disease raises a question as to whether a diagnosis of osteoarthritis and/or autoimmune disease

is consistent with the impression of central sensitization syndrome. It is difficult to put this notation in

context as no additional information on central sensitization syndrome has been filed.

14

In his first expert report, Dr. Kinsbourne stated that regional pain syndrome was CRPS. First Kinsbourne

Rep. at 2. As Dr. Callaghan did not contradict this statement, I presume it is true.

23

Petitioner’s neuropathic pain. Id. Topiramate is a drug generally used to treat seizures.15 The

NIH Fact Sheet indicates that treatment for CRPS can include, among other medications, drugs

initially developed to treat seizures which have now been demonstrated as effective in treating

neuropathic pain. NIH Fact Sheet at 4. Dr. Eisenstock did not diagnose Petitioner with central

sensitization syndrome or mention anything about a prior central sensitization syndrome diagnosis.

Although Dr. Eisenstock did not formally diagnose Petitioner with CRPS, his belief that is was

appropriate to treat her for this condition constitutes strong support that this is in fact her correct

diagnosis.

Further, in a letter dated September 21, 2018, Dr. Eisenstock wrote, “Given a correlation

in time with receiving the flu shot, I would entertain the possibility of a related complex regional

pain syndrome….” Ex. 12. Again, Dr. Eisenstock did not conclusively diagnose Petitioner with

CRPS. However, he did state that he would entertain a connection between Petitioner’s condition

and her flu vaccine. Implicit in this statement is that Dr. Eisenstock believes CRPS to be a

reasonable diagnosis. Also implicit in both Dr. Eisenstock’s treatment of Petitioner in 2015 and

in his letter from 2018 is that he does not entertain a diagnosis of central sensitization syndrome.

Presumably Dr. Eisenstock, a neurologist, is aware of the diagnostic criteria for CRPS, and that

there can be no other diagnoses that better explain a patient’s signs or symptoms. The fact that

Dr. Eisenstock considers CRPS to be a reasonable diagnosis suggests he does not believe Petitioner

has another diagnosis which explains her pain.

For the reasons discussed above, I find by preponderant evidence that Petitioner did not

have another diagnosis which better explained her signs and symptoms.

b. Two of Petitioner’s Pre-existing Conditions are a Risk Factors for

CRPS

In addition to meeting the diagnostic criteria, Petitioner has a well-documented history of

pre-existing migraine headaches and dysmenorrhea, which provides further support that she

suffers from CRPS. See Ex. 4 at 46; Id. at 55. Several pieces of medical literature filed in this

case articulate a connection between migraines and CRPS. For example, Peterlin et al. reported

that

(i) migraine occurs in a greater percentage of CRPS sufferers than expected in the

general population; (ii) the onset of CRPS is reported earlier in those with migraine

than in those without; and (iii) CRPS symptoms are present in more extremities in

those CRPS sufferers with migraine compared with those without.

Migraine may be a risk factor for the development of complex regional pain syndrome,

Cephalalgia; 30(2): 214–223 (2010) (filed as Ex. 15e). Additionally, de Mos et al., found that “a

15

Topiramate is “a substituted monosaccharide used as an anticonvulsant in the treatment of partial

seizures.” Topiramate, DORLAND’S, https://www.dorlandsonline.com/dorland/definition?id=50310 (last

accessed December 16, 2020).

24

medical history of migraine was associated with CRPS.” Medical history and the onset of complex

regional pain syndrome (CRPS), PAIN (2008), doi:10.1016/j.pain.2008.07.002 (filed as Ex. 16c)

(hereinafter “de Mos”). de Mos also noted an association between CRPS and menstrual cycle

abnormalities. Id. As Petitioner had both migraines and dysmenorrhea documented in her medical

records, Dr. Kinsbourne noted that “Mrs. LaBounty’s migraine and dysmenorrhea were risk factors

for CRPS.” Second Kinsbourne Rep. at 3. This point, when considered in conjunction with the

other evidence presented in this case, including Dr. Eisenstock’s letter and treatment of Petitioner,

and Dr. Kinsbourne’s opinion, preponderantly establish that CRPS is Petitioner’s correct

diagnosis.

C. Althen Prongs

I will address the Althen prongs in their order of significance based on the facts of this case.

1. Althen Prong 1

In the context of the Program, “to establish causation, the standard of proof is

preponderance of evidence, not scientific certainty.” Langland v. Sec’y of Health & Hum. Servs.,

109 Fed. Cl. 421, 441 (2013). Petitioner’s burden under Althen’s first prong is to provide a medical

theory causally connecting the vaccination and the injury. Id. This theory must be sound and

reliable. Boatmon, 941 F.3d at 1359. Petitioners need not precisely identify a causative

mechanism to prove causation in fact as the “identification and proof of specific biological

mechanisms would be inconsistent with the purpose and nature of the vaccine compensation

program.” Knudsen, 35 F.3d at 543.

As described by extensive literature and confirmed by both experts, the exact mechanism

for onset of CRPS is yet unknown. “CRPS represents an abnormal response that magnifies the

effects of the injury.” NIH Fact Sheet at 2. Minor trauma can amplify cytokine signaling;

“cytokines and nerve growth factor can excite nociceptors and induce long-term peripheral

sensitisation.” Marinus at 640. Generally, CRPS can develop after a surgery, traumatic event, or

even a non-traumatic minor injury. Dr. Kinsbourne has stated that CRPS can occur following

needle stick.

Dr. Kinsbourne’s opinion is generally supported by the literature filed in this case.16

According to the Complex Regional Pain Syndrome Fact Sheet, published by the National

Institutes of Neurological Disorders and Stroke17, in more than 90% of cases, CRPS is triggered

by “a clear history of trauma or injury.” NIH Fact Sheet at 2. The fact sheet goes on to state that

“the most common triggers are fractures, sprains/strains, soft tissue injury (such as burns, cuts, or

16

I also note that in a prior CRPS case that I adjudicated, I mentioned the opinion of Respondent’s expert,

Dr. Phillip Low that “CRPS is well-documented after needle.” Dixon Jones v. Sec’y of Health & Hum.

Servs., No. 14-934V, 2019 WL 7556374, at *26 (Fed. Cl. Spec. Mstr. Sept. 4, 2019). The testimony from

that published decision is consistent with the medical literature referenced in this Ruling.

17

The National Institutes of Neurological Disorders and Stroke is an institute within the National Institutes

of Health. See https://www.ninds.nih.gov/About-NINDS. (Last accessed December 14, 2020).

25

bruises), limb immobilization (such as being in a cast), surgery, or even minor medical procedures

such as needle stick.” Id. An additional piece of medical literature notes that “[t]he onset of CRPS

is usually linked to a history of trauma, immobilization, or a procedure such as venipuncture,

intramuscular injection, or surgery.” Raja and Grabow, Complex Regional Pain Syndrome I

(Reflex Sympathetic Dystrophy), 96 ANESTHESIOLOGY 1254-60 (2002) (filed as Ex. 11a).

In addition to the above, Dr. Kinsbourne cited three case reports in support of his

theory.18,19,20 While case reports are not robust evidence, they do constitute some evidence with

which petitioners can meet their burden in the Vaccine Program. See Contreras v. Sec’y of Health

& Hum. Servs., 107 Fed. C. 280 (Fed. Cl. 2012); see also Capizzano 440 F.3d at 1325-26.

Kwun et al. reported the case of a 17-year-old girl who received the H1N1 vaccine.

Approximately seven hours later, she reported tingling, as well as pain and edema from the arm to

the fingers. Kwun at 1. She also developed weakness of her left upper arm such that she was not

able to lift her arm over her shoulder. Id. Her doctor diagnosed her with CRPS. Id. Kwun

concluded that “injection trauma and stress or psychological factors were associated with the onset

and maintenance of symptoms of CRPS.” Id. at 3.

Richards et al. discussed five cases of CRPS temporally associated with vaccination. The

authors proposed that “intramuscular immunisation is sufficient painful stimulus to trigger the

development of CRPS-1, and that it is the process of a needle penetrating the skin that is the trigger,

rather than a particular vaccine antigen or adjuvant being causally related.” Richards at 3. The

article concluded by noting, “this case series of CRPS type 1 in adolescents temporally associated

with immunisation reflect a known complex pain response to a painful stimulus.” Id.

Jastaniah et al. examined three instances of CRPS following Hepatitis B vaccination. The

authors noted that “it seems likely that HBVx (either the trauma or the component of a vaccine)

precipitated the clinical syndrome in this predisposed group.” Jastaniah at 804. The authors

further indicated that they could not attribute causation of CRPS to the Hepatitis B vaccinations

“given the low reported case rate and the absence of long-term follow-up.” Id.

Dr. Callaghan disagrees that a needle stick can cause CRPS. In support of this position, he

cited to a retrospective epidemiological analysis of 1,043 CRPS patients. See Ott & Maihöfner.

Dr. Callaghan described the findings of this article: “the largest case series investigating antecedent

events in 1,043 patients with CRPS found that fractures (42%), blunt traumatic injuries (21%) and

surgery (12%) were the most common causes.” Third Callaghan Rep. at 1. Dr. Callaghan further

18

Kwun et al. Complex regional pain syndrome by vaccination: A case of complex regional pain syndrome

after vaccination of influenza A(H1N1), PEDIATR INT 2012; 54: e4-e6 (filed as Ex. 11b) (hereinafter

“Kwun”).

19

Richards et al., Complex regional pain syndrome following immunisation, 97 ARCH DIS CHILD; 913-15

(2012) (filed as Ex. 11d) (hereinafter “Richards”).

20

Jastaniah et al., Complex Regional Pain Syndrome After Hepatitis B Vaccine, 143 J PEDIATR, 802-04

(2003) (filed as Ex. 11e) (hereinafter “Jastaniah”).

26

stated that “[o]nly a single case of vaccination prior to CRPS was reported (0.09%), which is far

below what would be expected based on chance alone.” Id.

Epidemiologic evidence is relevant with respect to Althen prong one. See, e.g., D’Tiole v.

Sec’y of Health & Hum. Servs., 2016 U.S. Claims LEXIS 2003 (Fed. Cl. Spec. Mstr. Nov. 28,

2016), aff’d, 132 Fed. Cl. 421 (2017); Blackburn v. Sec’y of Health & Hum. Servs., No. 10–410V,

2015 WL 425935, at *28–30 (Fed. Cl. Spec. Mstr. Jan. 9, 2015). However, this type of evidence

is not required in order for a petitioner to establish that a vaccine can cause an injury. A vaccine

injury is a rare event that cannot be disproved because a vaccinee did not experience a response

consistent with that of the general population. See Harris v. Sec’y of Health & Hum. Servs., No.

10–322V, 2014 WL 3159377, at *11 (Fed. Cl. Spec. Mstr. June 10, 2014) (finding that

epidemiologic studies cannot absolutely refute causal connections, because it is possible that a

larger study could always detect an increased risk), mot. for review dismissed, 2015 U.S. App.

LEXIS 7921 (Fed. Cir. 2015).

It is settled that “close calls” as to the causal link between a vaccine and the injury asserted

by a Petitioner should be resolved in favor of the petitioner. Knudsen by Knudsen, 35 F.3d at 549.

Although the precise biological mechanism as to how needle stick can cause CRPS is not yet

known, the medical literature and case reports filed in this case, along with the opinion of Dr.

Kinsbourne provide preponderant evidence with respect to the first Althen prong.

2. Althen Prong 3

The timing prong contains two parts. First, a petitioner must establish the “timeframe for

which it is medically acceptable to infer causation” and second, she must demonstrate that the

onset of the disease occurred in this period. Shapiro v. Secʼy of Health & Hum. Servs., 101 Fed.

Cl. 532, 542-43 (2011), recons. denied after remand on other grounds, 105 Fed. Cl. 353 (2012),

aff’d without op., 503 F. App’x 952 (Fed. Cir. 2013).

In this case, Petitioner developed pain in her left upper arm 15 minutes after her flu vaccine.

Ex. 4 at 44. Dr. Kinsbourne opined that this initial arm pain constituted the beginning of her CRPS.

See Third Kinsbourne Rep. at 1. I find that this opinion is supported by the evidence in the case.

Dr. Kinsbourne has further opined that 15 minutes is an appropriate temporal interval

between vaccination and onset of CRPS. See First Kinsbourne Rep. at 5. He based that opinion

primarily on the Maleki article. Maleki et al., Patterns of spread in complex regional pain

syndrome, type I (reflex sympathetic dystrophy), 88 PAIN 259-66 (2000) (filed as Ex. 16e)

(hereinafter “Maleki”). In that article, the authors analyzed the spread of disease in 27 patients

who were previously diagnosed with CRPS. This study documented the interval between the

initial trauma and onset of CRPS. In nine of the 27 patients (33%), onset is documented to have

occurred immediately after the initial trauma/injury. Maleki at 262.

Dr. Kinsbourne also pointed to case reports of CRPS, where the authors describe onset of

symptoms as immediate. See e.g., Richards (describing immediate onset of numbness or severe

pain after vaccination in two of five CRPS subjects, and onset within one hour to “hours” in two

others); Kwun (describing one CRPS patient who developed pain, edema, and color change seven

27

hours after vaccination); Jastaniah (detailing four cases of CRPS which began between 15 minutes

and one hour after vaccination).

Because the precise cause of CRPS is unknown, it is difficult to articulate the rationale

behind an appropriate temporal interval between vaccination and injury. In citing to the Maleki

article as well as the above-mentioned case reports, Dr. Kinsbourne has highlighted that there is

circumstantial evidence that onset of CRPS can occur immediately after vaccination. I find this

evidence is sufficient to meet Petitioner’s burden with respect to the third Althen prong. See Althen

(“the purpose of the Vaccine Act's preponderance standard is to allow the finding of causation in

a field bereft of complete and direct proof of how vaccines affect the human body.”) 418 F.3d at

1280.

3. Althen Prong 2

Under Althen’s second prong, a petitioner must “prove a logical sequence of cause and

effect showing that the vaccination was the reason for the injury.” Althen, 418 F.3d at 1278. The

sequence of cause and effect must be “'logical' and legally probable, not medically or scientifically

certain.” Id. A petitioner is not required to show “epidemiologic studies, rechallenge, the presence

of pathological markers or genetic disposition, or general acceptance in the scientific or medical

communities to establish a logical sequence of cause and effect.” Id. (omitting internal citations).

Capizzano, 440 F.3d at 1325. Instead, circumstantial evidence and reliable medical opinions21

may be sufficient to satisfy the second Althen prong.

a. The Onset of Petitioner’s Arm Pain 15 Minutes after Vaccination Helps

Establish that the Vaccine Was a but-for Cause of her Condition

Petitioner’s upper left arm pain began 15 minutes after she received her flu vaccine in her

left shoulder. This fact was well-documented in her contemporaneous medical records. See Ex.

4 at 24, 29, 32, 43, 44. Prior to the administration of the vaccine, Petitioner was not experiencing

21

Several of Petitioner’s treating physicians have articulated a link between her flu vaccination and her

development of arm pain. Petitioner visited Dr. Fuller, her primary care doctor on September 29, 2015, 11

days after her flu vaccine. Dr. Fuller assessed her with “Myalgias following a flu vaccine. Possibly related

to the flu vaccine.” Ex. 4 at 44. On September 30, 2015, Petitioner was seen by Dr. Shih at UMass

Memorial Hospital. Dr. Shih noted that Petitioner presented with bilateral myalgia that began after her flu

vaccination. In the assessment portion of the record, Dr. Shih noted that Petitioner’s bilateral arm pain

“may be related in some way to the flu shot.” Ex. 4 at 43. Petitioner visited Dr. Eisenstock on December

11, 2015. Dr. Eisnestock noted that Petitioner’s symptoms “appear to be temporarily correlated with flu

vaccine.” Ex. 4 at 30. Further, in a letter dated September 21, 2018, Dr. Eisenstock wrote, “Given a

correlation in time with receiving the flu shot, I would entertain the possibility of a related complex regional

pain syndrome….” Ex. 12.

Dr. Fuller, Dr Shih, and Dr. Eisenstock each noted in the medical records that the onset of Petitioner’s pain

began after her vaccination. Each also expressed their belief that Petitioner’s symptoms of arm pain may

have been caused by her vaccination. While this evidence would certainly be stronger if the treating

physicians had offered a conclusive opinion, it is nonetheless some evidence that I have considered in

reaching my determination in this case.

28

any pain. She was evaluated by Dr. Fuller on September 11, 2015 (seven days before her

vaccination). The medical record from this visit noted that Petitioner had “[g]ood range of motion

of shoulders, elbows, wrists with no active synovitis.” Id. at 45. While it is an often-cited tenet in

the Vaccine Program that a close temporal interval between a vaccination and an injury does not

prove causation, I find it would be inappropriate to ignore what appears to be the obvious cause of

Petitioner’s left arm pain, pain which under Petitioner’s theory marked the beginning of her CRPS.

As Dr. Kinsbourne stated in his report, “for pain of cervical origin so suddenly to arise at the time

of vaccination by coincidence strains credulity.” First Kinsbourne Rep. at 3. I agree with this

assessment based on the specific facts of this case.

The fact that Petitioner has established that vaccination can cause CRPS and that the timing

prong has been met helps establish that she has also demonstrated that vaccination was a but-for

cause of her condition. The Federal Circuit has provided guidance with respect to this issue.

Evidence demonstrating petitioner's injury occurred within a medically acceptable

time frame bolsters a link between the injury alleged and the vaccination at issue

under the “but-for” prong of the causation analysis. See Capizzano, 440 F.3d at

1326 (finding medical opinions that explain how a vaccine can cause the injury

alleged coupled with evidence demonstrating a close temporal relationship “are

quite probative” in proving actual causation).

Pafford, 451 F.3d at 1358. See also Contreras (finding that there is a “logical overlap between the

three Althen prongs, and that evidence that goes to one prong may also be probative for another

prong”). 107 Fed. Cl. at 295. I find that Petitioner has presented preponderant evidence in support

of the second Althen prong.

VII. Conclusion

Based on the foregoing, I conclude that Petitioner has met her burden of proof under Althen.

Accordingly, Petitioner is entitled to compensation. An order regarding damages will issue

shortly.

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler

Special Master

29