M. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: July 9, 2021

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

E.M., * No. 14-753V

*

Petitioner, * Special Master Sanders

*

v. *

* Ruling on Entitlement; Influenza

SECRETARY OF HEALTH * (“Flu”) Vaccine; Small Fiber

AND HUMAN SERVICES, * Neuropathy; Small Vessel Vasculitis;

* Molecular Mimicry.

Respondent. *

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

Scott B. Taylor, Urban & Taylor, S.C., Milwaukee, WI, for Petitioner.

Voris E. Johnson, United States Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT 1

On August 19, 2014, E.M. (“Petitioner”) filed a petition for compensation pursuant to the

National Vaccine Injury Compensation Program. 2 Pet. at 1, ECF No. 1; 42 U.S.C. §§ 300aa-1 to

-34 (2012). Petitioner alleges that the influenza (“flu”) vaccine she received on August 23, 2011,

caused her to suffer from small fiber neuropathy 3 and small vessel vasculitis. 4 Pet. at 1; see also

Pet’r’s Br. at 1, ECF No. 70.

1

This Ruling shall 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 note (2012) (Federal Management and Promotion of

Electronic Government Services). In accordance with Vaccine Rule 18(b), a party has 14 days to identify

and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further,

consistent with the rule requirement, a motion for redaction must include a proposed redacted ruling. If,

upon review, I agree that the identified material fits within the requirements of that provision, such material

will be deleted from public access.

2

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

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa

(2012).

3

Small fiber neuropathy is “a type of neuropathy in which only the small sensory cutaneous nerves are

affected.” Dorland’s Illustrated Medical Dictionary 1263, 1268 (32nd ed. 2012) [hereinafter “Dorland’s”].

Neuropathy is “a functional disturbance or pathologic change in the peripheral nervous system, sometimes

limited to noninflammatory lesions as opposed to those of neuritis; the etiology may be known or

unknown.” Id.

4

Small vessel vasculitis is “any of a group of vascular diseases of the small vessels, including microscopic

polyangiitis, Wegener granulomatosis, Churg-Strauss syndrome, and pauci-immune crescentic

glomerulonephritis.” Dorland’s at 2026. Vasculitis is “inflammation of a blood or lymph vessel.” Id.

After carefully analyzing and weighing all the evidence and testimony presented in this

case in accordance with the applicable legal standards, 5 I find that Petitioner has met her legal

burden with respect to her small fiber neuropathy. Petitioner has provided preponderant evidence

that the flu vaccine she received on August 23, 2011, was the cause-in-fact of her small fiber

neuropathy. Accordingly, Petitioner is entitled to compensation.

I. Procedural History

Petitioner filed her petition for compensation on August 19, 2014, including proof of

vaccination and nine medical record exhibits. Pet. at 1; Pet’r’s Exs. 1–9, ECF Nos. 1-2–1-18.

Petitioner filed an affidavit from her treating physician Dr. Traci Purath on September 16, 2014.

Pet’r’s Ex. 10, ECF No. 7-1. The parties appeared for a status conference the same day. See Min.

Entry, docketed Sept. 16, 2014. Following the conference, the presiding special master ordered

Petitioner to file an affidavit regarding damages. Sched. Order, ECF No. 8. Petitioner filed her

affidavit regarding damages on October 16, 2014. Pet’r’s Ex. 11, ECF No. 9-1.

Respondent filed his Rule 4(c) report on November 14, 2014, recommending that

compensation be denied. Resp’t’s Report, ECF No. 10. A status conference was held on November

25, 2014, to discuss Petitioner’s damages affidavit. Sched. Order, ECF No. 11; see also Min. Entry,

docketed Nov. 25, 2014. Following the conference, the presiding special master ordered Petitioner

to decide whether she wanted to pursue an expert report or present a settlement demand to

Respondent by the next status conference. Sched. Order at 1. Another status conference was held

on January 8, 2015. Min. Entry, docketed Jan. 8, 2015. The case was subsequently referred to

alternative dispute resolution (“ADR”). Order, ECF No. 12. The parties were unable to come to an

agreement, and the case was removed from ADR on April 16, 2015. Order, ECF No. 15.

On April 24, 2015, Petitioner filed three additional medical record exhibits. Pet’r’s Exs.

11 6–13, ECF Nos. 19-1–19-3. The presiding special master ordered Petitioner to submit an expert

report by June 8, 2015. Sched. Order, ECF No. 22. After one extension of time, Petitioner filed an

expert report from Dr. David S. Younger on July 7, 2015, along with supporting medical literature

and a supplemental affidavit authored by Petitioner. Pet’r’s Exs. 14–20, ECF Nos. 25-1–25-7.

Respondent filed his responsive expert report from Dr. Peter D. Donofrio on October 16, 2015,

along with supporting medical literature. Resp’t’s Exs. A–H, ECF Nos. 29-1–29-8.

5

While I have reviewed all of the information filed in this case, only those filings and records that are most

relevant to the decision will be discussed. Moriarty v. Sec'y of Health & Hum. 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

Paterek v. Sec'y of Health & Hum. 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.”).

6

Petitioner filed Exhibit 11 as her affidavit regarding damages on October 16, 2014. ECF No. 9-1. Petitioner

also filed a medical records exhibit from Medical College of Wisconsin Plank Road Clinic as Exhibit 11

on April 24, 2015. ECF No. 19-1. For clarification, I will hereinafter refer to Petitioner’s affidavit regarding

damages as Petitioner’s Exhibit 11a. I will refer to her medical records exhibit as Petitioner’s Exhibit 11b.

2

The parties convened for a status conference on October 26, 2015, at which time the

presiding special master ordered Petitioner to file a supplemental expert report from Dr. Younger.

Sched. Order, ECF No. 30; see also Min. Entry, docketed Oct. 26, 2015. The presiding special

master ordered Dr. Younger to address issues relating to diagnosis, medical theory, and timing.

Sched. Order at 1. Petitioner filed a supplemental expert report and supporting medical literature

on January 11, 2016. Pet’r’s Exs. 21–38, ECF Nos. 35-1–35-18. Respondent filed a responsive

supplemental expert report and supporting medical literature on March 21, 2016. Resp’t’s Exs. I–

K, ECF Nos. 41-1–41-3.

On May 13, 2016, the presiding special master scheduled this matter for an entitlement

hearing to take place on January 12–13, 2017. Sched. Order, ECF No. 47. However, on September

2, 2016, Petitioner filed a motion for relief to name a new expert neurologist, file new expert

reports, and to adjourn the upcoming entitlement hearing in this matter. ECF No. 54. Petitioner

indicated that the basis for her request was Dr. Younger’s recent felony conviction involving a

crime of dishonesty. Id. at 1. Petitioner “believe[d] that this conviction . . . may serve to seriously

undermine Dr. Younger’s credibility at the entitlement hearing and, as such, prejudice Petitioner’s

right to a fair hearing.” Id. Petitioner’s counsel submitted a personal declaration in support of

Petitioner’s motion. See ECF No. 55. The presiding special master granted Petitioner’s motion and

postponed the entitlement hearing “indefinitely.” Order, ECF No. 56. The presiding special master

ordered Petitioner to submit a status report on the progress of obtaining a new expert. Id.

On October 11, 2016, Petitioner filed a status report indicating she had retained Dr.

Lawrence Steinman to opine in this matter and requested until January 31, 2017, to file a report.

ECF No. 57. Prior to filing her expert report, on January 16, 2017, Petitioner submitted medical

records from University Health Services at the University of Wisconsin Madison. Pet’r’s Ex. 39,

ECF No. 59-1. On January 31, 2017, Petitioner filed an expert report from Dr. Lawrence Steinman

along with thirty-one pieces of medical literature. Pet’r’s Exs. 40–72, ECF Nos. 60-1–60-33. Due

to an error in filing, Petitioner re-filed her expert report from Dr. Steinman on June 3, 2019. Pet’r’s

Ex. 40, ECF No. 77-1; see also Pet’r’s Mot. to Strike, ECF No. 76; Order, ECF No. 78. Respondent

filed his responsive supplemental expert report from Dr. Donofrio along with supporting medical

literature on April 20, 2017. Resp’t’s Exs. L–M, ECF No. 63-1–63-2.

This case was reassigned to me on October 10, 2017. ECF No. 65. On May 8, 2018, I

contacted the parties regarding availability of dates for scheduling an entitlement hearing. Informal

Comms., docketed May 8–15, 2018. This matter was subsequently set for an entitlement hearing

on July 18–19, 2019. ECF No. 68. Petitioner filed her pre-hearing brief and pre-hearing reply brief

with supporting medical literature on March 25, 2019 and June 3, 2019, respectively. Pet’r’s Br.,

ECF No. 70; Pet’r’s Reply Br., ECF No. 75; Pet’r’s Exs. 73–77, ECF Nos. 74-1–74-5. Respondent

filed his pre-hearing response brief on April 23, 2019. ECF No. 71. The entitlement hearing was

held as scheduled on July 18–19, 2019. See Notice, ECF No. 80.

Following the entitlement hearing, I ordered Petitioner to file a supplemental expert report,

supporting medical literature, and an opening post-hearing brief regarding the potential effect of

steroid treatments on testing for antibodies by October 15, 2019. Sched. Order, ECF No. 84; see

also Tr. 260:17–261:6. Petitioner filed a supplemental expert report and medical literature on

October 14, 2019. Pet’r’s Exs. 78–83, ECF Nos. 85-1–85-6. The same day, Petitioner filed her

opening post-hearing brief. ECF No. 86. On November 15, 2019, Respondent filed his responsive

3

supplemental expert report along with his post-hearing response brief. Resp’t’s Ex. N, ECF Nos.

88–89. Petitioner submitted a rebuttal expert report and a post-hearing reply brief on January 6,

2020. Pet’r’s Ex. 84, ECF Nos. 91–92.

This matter is now ripe for consideration.

II. Factual Background

A. Medical Records

Petitioner’s pre-vaccination medical history is significant for Von Willebrand’s disease, 7

dysmenorrhea, 8 asthma, 9 eosinophilic esophagitis, 10 and migraine headaches. 11 See Pet’r’s Ex. 1

at 24–25. Petitioner’s migraines began after she sustained a concussion in 2003. Pet’r’s Ex. 2 at

49–62. In June 2010, Petitioner presented to neurologist Traci Purath, M.D., at the Comprehensive

Headache Center to establish care and for treatment of occipital neuralgia 12 with underlying

migraines. Id.

On August 23, 2011, Petitioner presented to her primary care physician (“PCP”) Amy D.

Cvengros, M.D., for her yearly physical examination. Pet’r’s Ex. 1 at 27. During this visit,

Petitioner reported that her migraines had worsened over the prior two weeks. Id. at 28. In

response, Dr. Cvengros advised Petitioner to call Dr. Purath’s office. Id. at 31. Petitioner received

the flu vaccination during this visit. Id. At the time of vaccination, Petitioner was twenty-four years

old. Pet. at 1.

Two days later, on August 25, 2011, Petitioner presented to Dr. Purath. Pet’r’s Ex. 2 at 46.

During this visit, Petitioner reported “that her headaches had been under great control until [two]

weeks ago.” Id. Dr. Purath noted that Petitioner indicated at that time, she “awoke with a severe

7

Von Willebrand’s disease is “a congenital bleeding disorder caused by mutation in the VWF gene (locus:

12p13.3), resulting in deficiency of von Willebrand factor, with prolonged bleeding time and often

impairment of adhesion of platelets on glass beads, associated with epistaxis and increased bleeding after

trauma or surgery, menorrhagia, and postpartum bleeding. Several different types have been distinguished,

ranging from mild to severe.” Dorland’s at 544, 2072.

8

Dysmenorrhea is “painful menstruation.” Dorland’s at 578.

9

Asthma is “recurrent attacks of paroxysmal dyspnea, with airway inflammation and wheezing due to

spasmodic contraction of the bronchi. Some cases are allergic manifestations in sensitized persons []; others

are provoked by factors such as vigorous exercise, irritant particles, psychological stresses, and others.”

Dorland’s at 168.

10

Eosinophilic esophagitis is “inflammation caused by eosinophilic infiltration of the esophageal mucosa;

the etiology is unknown, although it sometimes accompanies gastroesophageal reflux disease and

sometimes may be an allergic reaction.” Dorland’s at 629.

11

Migraine headaches are “often familial symptom complex of periodic attacks of vascular headache,

usually temporal and unilateral in onset, commonly associated with irritability, nausea, vomiting,

constipation or diarrhea, and often photophobia. Attacks are preceded by constriction of the cranial arteries,

often with resultant prodromal sensory (especially ocular) symptoms and the spreading depression of Leão;

the migraines themselves commence with the vasodilation that follows.” Dorland’s at 1166.

12

Occipital neuralgia is “pain in the distribution of the occipital nerves, due to pressure or trauma to the

nerve. Called also occipital headache.” Dorland’s at 1262.

4

headache, and had this sporadic tingling in her face.” Id. Petitioner stated this had been going on

and off for the past two weeks, but “there was no inciting event, no trauma, no medication

changes[.]” Id. However, Dr. Purath noted that the only change was that Petitioner had recently

finished law school and was back at home with her parents. Id. Dr. Purath opined that “much of

this may be just what we call the letdown headache where your body actually can start to rest.” Id.

Nonetheless, Dr. Purath noted that Petitioner stated “she ha[d] been having tingling in the left side

of her face, both sides of her face, and into her hands. She feels that she feels off.” Id. Petitioner

also reported that she had a brief episode of sudden urinary incontinence, but it was not preceded

by a loss of consciousness or any confusion. Id. Petitioner also reported feeling “somewhat

nauseous.” Id. Dr. Purath noted Petitioner was not on any medications for her headaches at that

time. Id. Dr. Purath ordered an electroencephalogram (“EEG”) and MRI “to rule out any possible

seizure because of this episode of urinary incontinence and these vague feelings of being ‘a bit off’

and having trouble processing information.” Id.

The next day, on August 26, 2011, Petitioner returned to Dr. Purath. Id. at 43. Upon further

questioning regarding Petitioner’s condition, Petitioner reported that “the dysesthesias 13 all started

after Tuesday night [August 23, 2011] after she had a flu shot.” Id. Dr. Purath noted Petitioner

maintained “[t]hey did not occur before this.” Id. Dr. Purath further indicated “[t]hey progressed

to the point that today, Friday[,] August 26, 2011, she complain[ed] of complete numbness of the

left face, dysesthesias in the left arm, swelling in the left leg, with weakness in the left hand.” Id.

Petitioner reported that the symptoms became progressively worse. Id. Dr. Purath wrote she was

“concerned that this may all be related to the flu shot.” Id. However, Dr. Purath noted she “d[id]

not feel that [Petitioner] has encephalitis 14 symptoms but transverse myelitis 15 may be a possibility

given the issues with the left side of the body.” Id. Upon examination, Dr. Purath noted decreased

sensation to pinprick in Petitioner’s left arm and increased deep tendon reflexes (“DTRs”) 16 in her

left upper and lower extremities. Id. The MRI of Petitioner’s brain and spine were normal. Id.

However, Petitioner’s antinuclear antibody (“ANA”) 17 was elevated at 1.33 (range 0–0.89), and

her creatinine kinase 18 was also elevated at 157 (range 26–140). Id. at 77–78. Petitioner also

13

Dysesthesias is “1. distortion of any sense, especially of that of touch . . . 2. an unpleasant abnormal

sensation produced by normal stimuli.” Dorland’s at 577.

14

Encephalitis is “inflammation of the brain.” Dorland’s at 612.

15

Transverse myelitis is “myelitis in which the functional effect of the lesions spans the width of the entire

cord at a given level.” Dorland’s at 1218. Myelitis is “1. inflammation of the spinal cord, often part of a

more specifically defined disease process. One group of diseases is named according to whether primarily

white matter or gray matter is affected . . . ; another group is defined by whether there is coexistent disease

of the meninges [] or the brain . . . . In practice, the term is also used to denote noninflammatory lesions of

the spinal cord; [] 2. inflammation of the bone marrow[.]” Id.

16

Deep tendon reflexes (“DTRs”) are “involuntary contraction[s] of a muscle after brief stretching caused

by percussion of its tendon; tendon reflexes include the biceps reflex, triceps reflex, quadriceps reflex, and

others.” Dorland’s at 1881.

17

Antinuclear antibodies (“ANA”) are “directed against nuclear antigens; ones against a variety of different

antigens are almost invariably found in systemic lupus erythematosus and are frequently found in

rheumatoid arthritis, scleroderma (systemic sclerosis), Sjögren syndrome, and mixed connective tissue

disease. Antinuclear antibodies may be detected by immunofluorescent staining. Serologic tests are also

used to determine antibody titers against specific antigens.” Dorland’s at 101.

18

Creatinine kinase is “an Mg2+-activated enzyme of the transferase class that catalyzes the phosphorylation

of creatine by ATP to form phosphocreatine. The reaction effectively stores the energy of ATP as

5

underwent a spinal tap which revealed negative oligoclonal bands, 19 negative Lyme disease DNA,

negative myelin basic protein, 20 and an overall negative culture. Id. at 63–64. Dr. Purath prescribed

a seven-day course of steroid treatment with Decadron, 21 two milligrams three times a day. Id. at

43.

On August 29, 2011, Petitioner returned to Dr. Purath for her complaints of paresthesias,

weakness, and occipital headaches. Id. at 40. During this visit, Dr. Purath noted that Petitioner was

experiencing different types of migraines compared to normal and that she had never experienced

a migraine with aura before. Id. Upon examination, Dr. Purath indicated Petitioner’s “[DTRs] were

slightly brisk in the left upper extremity when compared to the right . . . there [we]re patchy sensory

changes in the right face and arm when compared to the left[.]” Id. Dr. Purath reviewed Petitioner’s

recent lab work and noted that her basic chemistry was “essentially negative.” Id. Dr. Purath noted

that the positive ANA was likely a false positive. Id.

Three days later, on September 1, 2011, Petitioner returned to Dr. Purath with complaints

of shooting back pain radiating down to the bilateral buttocks. Id. at 37. Dr. Purath had previously

prescribed Percocet for this pain. See id. at 37, 40, 43–44. She also noted Petitioner “was to finish

her course of Decadron.” Id. at 37. Dr. Purath reiterated that the results of Petitioner’s EEG

conducted on August 25, 2011, were normal. Id. at 37. She also noted that Petitioner’s dysesthesias

and tingling “[we]re much improved.” Id. Yet, “[i]t d[id] still have various locations, but it [wa]s

overall not as severe or bilateral as it had been.” Id. Dr. Purath again noted that “[a]ll these issues

stem from having the flu shot . . . and this [wa]s certainly not a migraine.” Id.

On September 16, 2011, Petitioner returned to Dr. Purath and reported an increase in

numbness on the right side of her face and in her right upper and lower extremities. Id. at 34. At

this time, Petitioner reported “no weakness in [her] right arm.” Id. However, Petitioner indicated

“[s]he d[id] feel that the right hand [wa]s weak, and she fe[lt] that there are some tremors to the

right hand which [wa]s very sporadic.” Id. Dr. Purath noted that Petitioner’s complaints regarding

phosphocreatine in muscle and brain tissue and holds the muscle concentration of ATP nearly constant

during the initiation of exercise. It occurs as three isoenzymes, each having two components composed of

M (muscle) and of B (brain) subunits. CK1 (BB) is found primarily in brain, CK2 (MB) primarily in cardiac

muscle, and CK3 (MM) primarily in skeletal muscle. Differential determination of isoenzymes is useful for

clinical diagnoses.” Dorland’s at 429.

19

Oligoclonal bands are “discrete bands of immunoglobulins with decreased electrophoretic mobility; their

appearance in electrophoretograms of cerebrospinal fluid when absent in the serum is a sign of possible

multiple sclerosis or other diseases of the central nervous system.” Dorland’s at 197.

20

Myelin basic protein is “a basic protein (MW 18,000) that constitutes about 30 per cent of myelin proteins;

elevated levels of MBP occur in acute exacerbation of multiple sclerosis and acute cerebral infarction.

Immunization of laboratory animals with MBP produces encephalomyelitis by inducing T-cell activity that

leads to demyelination and lymphoid infiltration.” Dorland’s at 1533. Myelin is “the substance of the cell

membrane of Schwann cells that coils to form the myelin sheath []; it has a high proportion of lipid to

protein and serves as an electrical insulator.” Dorland’s at 1218.

21

Decadron is “trademark for preparations of dexamethasone.” Dorland’s at 474. Dexamethasone is “a

synthetic glucocorticoid, 25 times as potent as cortisol; used topically on the skin and conjunctiva as an

anti-inflammatory and administered orally in replacement therapy for adrenocortical insufficiency, as an

anti-inflammatory and immunosuppressant in a wide variety of disorders, and as an antiemetic in cancer

chemotherapy.” Id. at 504.

6

her left side had completely resolved, her back pain had improved, and she was not having

headaches. Id. During this visit, Dr. Purath noted that Petitioner “has been on Decadron, currently

[two milligrams] daily[.]” Id. at 35. However, Dr. Purath was “weaning her off because [she was]

concerned that it may be causing some [] jitteriness[.]” Id. Following this appointment, Dr. Purath

wrote that she “still believe[d] that [Petitioner] has had a reaction to the flu shot, which [she] fe[lt

wa]s slowly improving.” Id. at 34.

Petitioner followed up with Dr. Purath on September 29, 2011. Id. at 32. During this visit,

Petitioner reported that she felt that her symptoms were improving even though she was still

experiencing some decreased sensation in her face and right arm. Id. She noted Petitioner was off

Decadron completely as of September 17, 2011. Id. Dr. Purath characterized Petitioner’s

headaches as occipital neuralgia with episodic migraines. Id. Dr. Purath instructed Petitioner to

follow-up in one month. Id.

Prior to her next appointment with Dr. Purath, Petitioner underwent a repeat brain MRI,

which was normal. Id. at 83. During Petitioner’s follow up visit with Dr. Purath on October 28,

2011, Dr. Purath noted Petitioner’s lower back pain had completely resolved. Id. at 29. However,

Petitioner reported having blurred vision in her right eye, 22 bilateral hand tremors, and numbness

in various locations in her arms, legs, and face. Id. Dr. Purath noted Petitioner “fe[lt] that at times

her right upper extremity feels heavy, and sometimes, her fingers ‘droop.’” Id. Upon examination,

Dr. Purath noted patchy, decreased sensation in Petitioner’s arms and legs. Id. She again wrote her

opinion that Petitioner’s symptoms started after the flu injection. Id. However, Dr. Purath did not

“find anything that [wa]s jumping out at [her] neurologically as a deficit[,]” so she referred

Petitioner to another neurologist for further evaluation. Id.

On November 4, 2011, Petitioner presented to neurologist Jorge Marquez de Leon, M.D.,

for a second opinion. Pet’r’s Ex. 4 at 535–43. Petitioner recited her medical history to Dr. Marquez

de Leon and told him that her symptoms began after receiving the flu vaccine on August 23, 2011.

Id. at 535. Petitioner reported that during the evening of August 23, 2011, she began experiencing

“the onset of paresthesias 23 over the left side of [her] face with no true numbness or motor

abnormalities.” Id. However, Petitioner reported that her symptoms progressed to “the right side

of [her] face and the whole left side ([f]ace, arm[,] and leg).” Id. Dr. Marquez de Leon noted

Petitioner described her symptoms as “shooting pain and painful paresthesias” over the hands and

feet. Id. Petitioner also reported a worsening of her vision. Id. Upon examination, Dr. Marquez de

Leon noted Petitioner’s sensation to light touch was decreased in her right forearm and shoulder

blade. Id. at 538–39. Dr. Marquez de Leon conducted Quantitative Sudomotor Axon Reflex Tests

(“QSARTs”), 24 which revealed decreased responses in the right foot, distal leg, and forearm. Id.

22

On October 28, 2011, Petitioner presented to ophthalmologist John Conto, O.D., for an examination.

Pet’r’s Ex. 3 at 13–23. Petitioner reported a change in her vision within the previous two weeks. Id. at 19.

Dr. Conto noted that his impression was that Petitioner experienced “sudden vision loss[.]” Id. at 20.

However, the rest of Dr. Conto’s notes are illegible and difficult to decipher. See id.

23

Paresthesias is “an abnormal touch sensation, such as burning, prickling, or formication, often in the

absence of an external stimulus.” Dorland’s at 1383.

24

Quantitative Sudomotor Axon Reflex Tests (“QSARTs”) also known as “quantitative sensory testing”

involve “various tactile stimuli [] applied to the skin, such as light touch, heat, cold, and vibrations, and the

7

at 542, see also Pet’r’s Ex. 9 at 46. The QSARTs also revealed normal sensation in Petitioner’s

right proximal leg. See id. Based on these results and Petitioner’s medical history, Dr. Marquez de

Leon opined that Petitioner’s paresthesias and limb pain were “most likely secondary to a small

fiber neuropathy.” Pet’r’s Ex. 4 at 542. He further noted that “[t]he possibility of a reaction to her

vaccination appears to be the most likely etiology.” Id. Dr. Marquez de Leon ordered Petitioner to

undergo additional laboratory tests and an autonomic evaluation. Id.

Pursuant to Dr. Marquez de Leon’s orders, Petitioner underwent an EMG, which revealed

normal results, on November 4, 2011. Pet’r’s Ex. 2 at 80. In response, Dr. Marquez de Leon noted

“no significant electrophysiological changes to suggest the presence of a medium to small fiber

polyneuropathy or a mononeuropathy.” Id. Additionally, Dr. Marquez de Leon also ordered an

extensive autoimmune work-up and a paraneoplastic autoantibody panel to rule out a neurological

autoimmunity. Both yielded negative results. Pet’r’s Ex. 4 at 725; see also id. at 521–26. Dr.

Marquez de Leon further ordered a thermoregulatory sweat test, which revealed abnormalities

including Petitioner’s decreased, even absent, sweating from the knees down. Pet’r’s Ex. 9 at 46–

47. As a result, Dr. Marquez de Leon concluded that there were “changes indicative of mild

autonomic neuropathy, which is affecting both the sudomotor and vasomotor sympathetic

pathways. 25 The study suggests mostly a postganglionic 26 condition such as can be seen from

multiple etiologies.” Id. at 47.

On January 12, 2012, Petitioner presented to neuro-ophthalmologist Bernard F. Remler,

M.D., for an evaluation of her intermittent blurred vision and eye pain. Pet’r’s Ex. 6 at 8–11. Upon

examination, Dr. Remler noted that Petitioner’s symptoms occurred “in the context of a neurologic

syndrome that evolved after a flu shot on 8/22/11 [sic].” Id. at 8. He also noted that Petitioner was

previously diagnosed with an autonomic neuropathy. Id. Dr. Remler concluded that Petitioner

showed abnormalities in her near vision including mild convergence insufficiency 27 and signs of

stimulus hypersensitivity. Id. at 10. He saw no overt signs of sympathetic or parasympathetic

denervation of the eyelids or pupils. Id. Dr. Remler also could not find structural abnormalities of

Petitioner’s eye to correlate with her right eye pain. Id. Dr. Remler stated he was “uncertain

whether there is a casual relationship with a flu vaccination. This is only suggested by the temporal

relationship.” Id.

Four days later, on January 16, 2012, Petitioner returned to Dr. Purath for a follow-up of

her small fiber neuropathy. Pet’r’s Ex. 2 at 26. During this visit, Dr. Purath noted Petitioner saw

Dr. Remler, “who felt that he could not find any etiology for these episodes which [Petitioner]

described as blurry vision and retro-orbital eye pain.” Id. Petitioner also reported that the numbness

and pain in her arms had been better in the last three weeks but indicated that the eye exam and

heavy exercise seemed to cause flare-ups of her symptoms. Id. Dr. Purath noted that “[t]his is not

patient's responses are monitored and compared either with stimuli to the opposite side of the body or with

the responses of a control subject known not to have impairment.” Dorland’s at 1903.

25

The sudomotor sympathetic pathway relates to “stimulating the sweat glands.” Dorland’s at 1796. The

vasomotor sympathetic pathway “affect[s] the caliber of a vessel, especially of a blood vessel.” Id. at 2027.

26

Postganglionic means “situated posterior or distal to a ganglion; said especially of autonomic nerve fibers

so located.” Dorland’s at 1502.

27

Mild convergence insufficiency is “in ophthalmic physiology, [is] the coordinated inclination of the two

lines of sight toward their common point of fixation, or the point of fixation itself.” Dorland’s at 411.

8

uncommon with polyneuropathy that stress to the body can flare up the symptoms.” Id. Petitioner

indicated she was also experiencing some palpitations, but Dr. Purath suspected they were caused

by nortriptyline hydrochloride, 28 a medication prescribed to Petitioner by Dr. Marquez de Leon.

Id. Dr. Purath further noted that Petitioner’s headaches had improved. Id. Upon examination,

Petitioner showed some decreased sensation in her face and right-sided extremities. Id. Dr. Purath

planned to monitor Petitioner’s symptoms. Id. at 27.

On April 12, 2012, Petitioner presented to the emergency room with complaints of chest

pain and shortness of breath. Pet’r’s Ex. 4 at 603. Petitioner described her chest pain as “heavy”

and stated that “[t]he pain d[id] not radiate[]” but was “aggravated by deep breathing.” Id.

Petitioner’s past medical history noted small fiber neuropathy, migraines, and “vaccine reaction

with vague neurologic symptoms since August.” Id. Petitioner underwent an examination,

including a chest x-ray and ventilation perfusion (“VQ”) scan, 29 which were normal. Id. at 607,

628–29. Petitioner’s white blood count (“WBC”) was elevated at 29 (range 4.0–10.0), and her C-

reactive protein was high at 12.1 (range 0–0.5). Id. at 622, 656. Petitioner was discharged home

and diagnosed with elevated white blood cells and chest pain. Id. at 610.

Petitioner followed up with Dr. Cvengros on April 17, 2012, regarding her recent

emergency room visit. Pet’r’s Ex. 1 at 19. Petitioner reported that she had “feelings of dyspnea 30

and constant chest ‘pressure[.]’” Id. Dr. Cvengros noted Petitioner described her pain as though

she ‘“[f]eels like someone [wa]s sitting on [her] chest[.]’” Id. Dr. Cvengros noted that she reviewed

Petitioner’s case and elevated WBC findings with a pathologist, and “was told leukocytosis 31

appeared to be ‘reactive’ and there was ‘no morphologic abnormalities.’” Id. Dr. Cvengros ordered

a chest CT, which was notable only for a small pericardial cyst. Id. at 20. Upon evaluation of the

cyst, the results were normal. Id. Petitioner’s WBC also returned to normal. Id. Dr. Cvengros noted

that she “wonder[ed] about possibility of lab error (wrong sample) given how quickly [Petitioner’s]

counts normalized.” Id.; see also Pet’r’s Ex. 4 at 675.

On April 20, 2012, Petitioner returned to Dr. Purath for a complaint of increased right eye

pain and some chest pain. Pet’r’s Ex. 2 at 23. At this time, Petitioner’s DTRs were slightly

increased, and she showed patchy sensation to pinprick in the left arm. Id. Dr. Purath noted that

she found it “interesting” that Petitioner had a significantly elevated WBC but that it was normal

the next day. Id. Dr. Purath indicated that she “wonder[ed] if there [wa]s some underlying

inflammatory process.” Id. During this visit, she again noted her impression was that Petitioner

suffered from small fiber neuropathy. Id.

28

Nortriptyline hydrochloride is “a tricyclic antidepressant . . ., also used to treat panic disorder and to

relieve chronic, severe pain; administered orally.” Dorland’s at 1291.

29

A ventilation perfusion (“VQ”) scan is “a scintigraphic technique for demonstrating perfusion defects in

normally ventilated areas of the lung in the diagnosis of pulmonary embolism, consisting of the imaging of

the distribution of an inhaled radionuclide followed by the imaging of the perfusion of the lungs by an

injected radionuclide.” Dorland’s at 1673.

30

Dyspnea is “breathlessness or shortness of breath; difficult or labored respiration.” Dorland’s at 582.

31

Leukocytosis is “a transient increase in the number of leukocytes in the blood; seen normally with

strenuous exercise and pathologically accompanying hemorrhage, fever, infection, or inflammation.”

Dorland’s at 1028.

9

On April 24, 2012, Petitioner again presented to the emergency room for an abrupt onset

of shortness of breath, fever, chest pain, headache, neck pain, and blurred vision. Pet’r’s Ex. 4 at

714. Petitioner’s main complaint was chest discomfort and she again stated it “[f]e[lt] like someone

[wa]s sitting on her chest.” Id. Petitioner underwent a full work-up, which was unrevealing except

for another elevated WBC. Id. A repeat chest x-ray, ECG, and VQ were negative. Id. at 717.

Petitioner was discharged home. Id.

On May 21, 2012, Petitioner presented for a follow-up with Dr. Marquez de Leon. Pet’r’s

Ex. 7 at 18. Petitioner reported that she continued to have a tingling sensation in both arms and

legs but that it “[was] somewhat different from what it was six months ago.” Id. at 19. Petitioner

complained that “[i]t [was] more a sensation of coldness and numbness” which now only affected

her right side; the “symptoms over the left side [were] almost not there.” Id. Petitioner underwent

a physical examination, which was normal. Id. Dr. Marquez de Leon did not prescribe any new

medications during this visit. Id. at 20.

Petitioner presented to Dr. Purath for a follow-up on May 29, 2012. Pet’r’s Ex. 2 at 20.

During this visit, Petitioner reported that her headaches, tremors, and paresthesias had improved.

Id. However, Petitioner reported she had seen a hematologist, pulmonologist, and cardiologist, all

of whom could not determine a clear etiology for Petitioner’s symptoms. Id. A physical

examination revealed a decreased pinprick sensation in Petitioner’s right upper extremity, right

lower extremity, and left face. Id. Dr. Purath assessed Petitioner with a flare-up of her small fiber

neuropathy. Id. Dr. Purath referred Petitioner to the Chair of Neurology at Froedtert Hospital for

further evaluation. Id.

On June 8, 2012, Petitioner presented to pulmonologist Dr. Rade Tomic, M.D., with

complaints of “shortness of breath and chest pains.” Pet’r’s Ex. 3 at 58. Petitioner described her

chest pain as “very strong in intensity and lasts a few seconds, and it subsides by itself.” Id. A full

workup was normal except for an abnormal ANCA result. Id. at 59. The extensive workup revealed

no indication of pulmonary disease. Id. Dr. Tomic suggested a repeat test in three months. Id. Later

that month, on June 22, 2012, Petitioner presented to Dr. Eric Martin, M.D., a gastroenterologist.

Id. at 73. Petitioner underwent an esophagogram, 32 which was normal. Id. at 82. Dr. Martin

concluded that, because all other tests were normal, the “source of [Petitioner’s] chest pain [wa]s

likely secondary to [Petitioner’s] small fiber neuropathy.” Id. at 83.

Petitioner presented for her yearly physical with Dr. Cvengros on August 29, 2012. Pet’r’s

Ex. 1 at 8. Petitioner complained of daily chest discomfort. Id. She also reported that while moving

to Chicago the previous week, she developed significant muscle fatigue in her arms. Id. Petitioner

also reported she experienced “[b]urning of [her] bilateral arms and legs occasionally and most

noticeabl[y] in the mornings when getting out of bed.” Id. at 11. However, Petitioner’s physical

examination revealed normal results. Id. Under “health maintenance” Dr. Cvengros noted that

Petitioner “will not get any further influenza vaccines – several neurologic [symptoms] occurred

after 2011 vaccination.” Id.

On September 4, 2012, Petitioner returned to Dr. Purath for a follow-up. Pet’r’s Ex. 2 at 8.

During this visit, Petitioner reported that her headaches were improving but that she was

32

An esophagogram is “a radiograph of the esophagus.” Dorland’s at 648.

10

experiencing increased numbness and weakness in her extremities. Id. Petitioner further reported

that she has been getting fatigued very easily. Id. Petitioner also complained of continued chest

pain, vision issues in both eyes but more pronounced on the right, and difficulty swallowing. Id.

Petitioner’s physical exam revealed a decreased pinprick sensation in Petitioner’s right arm and

leg. Id. at 9.

On September 17, 2012, Petitioner returned to Dr. Marquez de Leon and reported having

fatigue, chest pressure, and paresthesias of her arms and face. Pet’r’s Ex. 2 at 15. Dr. Marquez de

Leon conducted a physical examination, which yielded normal results. Id. at 16. He assessed

Petitioner with small fiber neuropathy with both somatic 33 and autonomic 34 features. Id. at 17.

Petitioner returned to Dr. Purath for a follow-up on October 4, 2012. Id. at 12. During this

visit, Petitioner indicated “[s]he found out whenever she [wa]s anxious[,] she [had] symptoms of

either weakness, sometimes tremor, sometimes numbness and tingling, but most recently she had

some burning in the bilateral hands.” Id. Dr. Purath noted that “[a]ll of these symptoms are not

uncommon for small fiber neuropathy.” Id. Petitioner also reported that her headaches had

improved. Id. Dr. Purath prescribed 100mg of Gabapentin 35 but noted that Petitioner was “going

to wait to start this until she s[aw] how she [wa]s doing.” Id. at 13.

On February 6, 2014, Petitioner presented to a new neurologist, Dr. Alexandru C. Barboi,

M.D., to establish care. Pet’r’s Ex. 9 at 9. When giving her medical history, Petitioner reported

that “[a]bout [six] hours after the [f]lu shot [Petitioner] was putting makeup on using a brush and

had a transient episode of right cheek pain that resolved.” Id. Petitioner continued that “[a]bout

[two] days later . . . [Petitioner] developed numbness in her left arm then right arm and then both

legs.” Id. Dr. Barboi noted that “[Petitioner] also started to have intermittent blurry vision and pain

in her right eye which d[id] not adjust well to light.” Id. Petitioner also reported that “[w]hen she

g[ot] excited or in cold weather, [her] hands sh[ook] and she los[t] vision in [her] right eye.” Id.

Dr. Barboi conducted a physical examination, which revealed “inconsistent and patchy” sensory

reactions in various areas including Petitioner’s face and right and left extremities. Id. at 12. Dr.

Barboi’s impression was that Petitioner’s “history would fit a small fiber neuropathy diagnosis but

[her] physical examination d[id] not aid in the localization given the inconsistent nature of [her]

sensory exam and non-dermatomal distribution.” Id. at 13. Dr. Barboi indicated that Petitioner’s

“[m]ild hypermobility and [right] sided weakness [is] likely congenital.” Id. Dr. Barboi also noted

that “it is possible that [Petitioner] ha[d] some symptoms before her vaccination but this got worse

after.” Id. Dr. Barboi instructed Petitioner to follow-up in six weeks. Id.

Petitioner returned to Dr. Barboi for a follow-up on April 10, 2014. Id. at 224. During this

visit, Petitioner reported that she no longer had pain in her right leg but did still suffer from bilateral

wrist pain in the morning and shaking/pain in her hands when she got excited. Id. Petitioner also

complained that she experienced pain in her feet at night that she treated with ice packs. Id.

33

Somatic means “1. pertaining to or characteristic of the [] body. 2. pertaining to the body wall in contrast

to the viscera.” Dorland’s at 1734.

34

Autonomic means “self-controlling; functionally independent; [also affecting the] autonomic nervous

system.” Dorland’s at 182.

35

Gabapentin is “an anticonvulsant that is a structural analogue of γ-aminobutyric acid (GABA), used as

adjunctive therapy in the treatment of partial seizures and the management of postherpetic neuralgia;

administered orally.” Dorland’s at 753.

11

Petitioner further reported thigh burning and chest pain with exercise, and an “occasional choking

feeling.” Id. Dr. Barboi’s impression was “1. [a]utonomic neuropathy, worse after flu vaccination

or caused by it; 2. [m]ild hypermobility and r[ight] sided weakness likely congenital; 3. [m]igraine

[headache] associated with vision blurring r[ight] eye; and 4. C[arpal] T[unnel] S[yndrome] 36 mild

bilateral.” Id. at 227.

Petitioner submitted complete medical records from the University of Wisconsin-Madison,

University Health Services, which includes a complete list of Petitioner’s immunizations as of

December 21, 2016. See Pet’r’s Ex. 39 at 8–9. No other medical records have been submitted.

B. Petitioner’s Affidavits and Fact Testimony

Petitioner submitted two affidavits in support of her petition and testified at the entitlement

hearing. See Pet’r’s Exs. 5, 14; Tr. 31–65. In her first affidavit, Petitioner averred that on the

evening of August 23, 2011, following her receipt of the flu vaccine, she “experienced severe

headaches and sporadic tingling in [her] face.” Pet’r’s Ex. 5 ¶ 3. Petitioner indicated that the

tingling began in the left side of her face, spread to both sides of her face, and into her hands. Id.

She asserted that she also began having trouble processing information soon thereafter. Id.

In her supplemental affidavit, Petitioner added that on August 23, 2011, around 4:00 p.m.,

she was putting on makeup and experienced a tingling sensation in her face when her makeup

brush passed over a particular area. Pet’r’s Ex. 14 ¶ 3. Petitioner noted this tingling resolved on its

own and “lasted only a few seconds.” Id. Petitioner also described that on Thursday, August 25,

2011, two days following the administration of the flu vaccine, she drove to visit her boyfriend

and “recall[ed] feeling tingling and numbness in [her] face.” Id. ¶ 4. She noted that during her

return trip the following day, on August 26, 2011, she experienced worsening numbness in her

face which was beginning to move to her arm. Id. ¶ 6. Petitioner indicated that she was alarmed

and called her mother, who happened to be with Dr. Purath at the time. Id. Petitioner stated Dr.

Purath instructed her to come to the office immediately. Id. Petitioner noted that upon arrival at

Dr. Purath’s office, she “had developed constant and complete numbness and tingling to the left

side of [her] face, numbness in [her] left arm, swelling in [her] left leg, and weakness in [her] left

hand.” Id. ¶ 7; see also Pet’r’s Ex. 5 ¶ 4.

Petitioner asserted that by October 28, 2011, her symptoms worsened to the point of

“blurred vision in [her] right eye, fine tremors in both hands, bilateral numbness in [her]

extremities and face[.]” Pet’r’s Ex. 5 ¶ 5. By November 4, 2011, Petitioner further contended that

she experienced “decreased sensation to touch on [her] right arm and forearm as well as [her]

shoulder blades.” Id. ¶ 6. At that time, Petitioner indicated that Dr. Marquez de Leon informed

her that “the most likely cause of the small fiber neuropathy was an adverse reaction to the

influenza vaccination[]” administered on August 23, 2011. Id. She stated that Dr. Marquez de Leon

also told her “that [her] symptoms were likely associated with the autonomic dysfunction that

occurred through the small fiber neuropathy, which began following the administration of the flu

shot in August of 2011.” Id. ¶ 12. Petitioner further stated that she continued to suffer from “the

36

Carpal Tunnel Syndrome is “an entrapment neuropathy characterized by pain and burning or tingling

paresthesias in the fingers and hand, sometimes extending to the elbow. Symptoms result from compression

of the median nerve in the carpal tunnel.” Dorland’s at 1824.

12

residual effects or complications from the small fiber neuropathy.” Id. ¶ 15. Such complications

include “numbness and pain in both of [her] arms as well as intermittent loss of vision in [her]

right eye.” Id.

Petitioner also submitted an affidavit regarding damages in this matter. Pet’r’s Ex. 11a. 37

In this affidavit, Petitioner described her pre- and post- vaccination lifestyles. See generally id.

Petitioner indicated that before the flu vaccine at issue, she enjoyed playing various sports

including soccer, basketball, tennis, skiing, and biking. Id. ¶¶ 2a, 2c. She noted that she typically

exercised four to five times per week, including running outside and working out at a gym. Id. ¶

2a. Petitioner noted that prior to the vaccine, she “was in law school, completed a summer associate

program in [city] and accepted a job as an associate at [law firm] to begin after graduation[.]” Id.

¶ 5.

Petitioner asserted that after receiving the flu vaccine on August 23, 2011, she experienced

difficulties attending [] law school. Id. ¶ 8a. She noted that she “missed classes and law school

commitments for a variety of reasons all related to the vaccine.” Id. Specifically, Petitioner

indicated that “[i]t was difficult to study for long amounts of time due to vision issues and pain in

[her] right eye . . . [and t]he pain and tremors in [her] hands and arms[.]” Id. Petitioner also noted

she applied for and received accommodations, including extra time and reduced typing

requirements for her law school and [state] bar exams. Id. She asserted that the accommodations

helped “to decrease the stress on [her] body to help to lessen the pain [she] experienced.” Id.

Petitioner noted that she began her position at [law firm] in October 2012. Id. ¶ 8b. She

stated she “ha[d] not missed a significant amount of time from this job . . . but the symptoms [she]

experience[d] from the small fiber neuropathy ha[d] made [her] job very difficult at times.” Id. For

example, she noted she experienced “pain in [her] right eyes, which often decreases the vision in

[her] right eye.” Id. ¶ 8bi. Petitioner indicated that the pain she experienced in her eyes, head, and

extremities made it difficult to work for long hours. Id. ¶¶ 8bi–8biv. Petitioner also asserted that

her pain and symptoms increased “at times of high stress, excitement, fatigue[,] or when [her]

other symptoms are causing pain.” Id. ¶ 8bii. Overall, Petitioner stated she was “finding it very

difficult to maintain the pace [her] job requires.” Id. ¶ 8bv.

During her testimony, Petitioner was asked about how she is able to keep up with her

demanding job responsibilities despite her symptoms. Tr. 45:2–14. She indicated that she

sometimes works remotely from home to better manage her symptoms and because of this, she

can successfully handle her workload. Tr. 44:1–9. In larger moments, such as hearings or

depositions, Petitioner stated she experiences numbness and pain in her arms, tremors in her hands,

eye pain, blurred vision, and headaches. Tr. 60:6–19. She stated she works through the pain with

very minimal accommodations. Tr. 61–64. Petitioner expressed that “in [her] mind, there is really

no question, that [she] just need[s] to try and push forward and do the best [she] can and manage

the symptoms in a way that would still allow [her] to do [her] job[.]” Tr. 45:8–11.

Petitioner noted that she no longer enjoys the same sport and outdoor recreational activities

that she enjoyed prior to receiving the flu vaccine. Id. ¶¶ 10a–10c. For example, Petitioner asserted

she “cannot exercise without experiencing extreme pain[]” including chest pain and burning in her

37

See supra note 5.

13

thighs. Id. ¶ 10a. She noted that such severe symptoms deterred her from exercising or participating

in team sports. Id. ¶¶ 10a, 10b. Petitioner wrote that “[t]he small fiber neuropathy cause[d her]

hands and arms to shake uncontrollably in the cold.” Id. ¶ 10c. She further explained that she can

no longer cook or do common household tasks like vacuuming or washing dishes without

assistance because of the severity of pain she experienced. Id. ¶¶ 10d, 10e.

During the hearing, Petitioner provided an account of the chronology of her symptoms that

was consistent with her written affidavits and medical records. See Tr. 32–55. Petitioner testified

that her progressing tingling symptoms on August 26, 2011, “were scary and something that [she]

had not had before[.]” Tr. 38:2–3; 59:6–8. She described that the tingling and numbness began in

her cheek and then “started to almost kind of wash over [her] body[]” from her face into her leg.

Tr. 37:20–23. Petitioner testified that she did not recall being concerned about the tingling in her

face until August 26, 2011. Tr. 59:24–25.

Petitioner also explained that she still experiences severe symptoms. Tr. 43:5–15. For

example, Petitioner testified that her “symptoms usually get worse or appear when [she’s] having

times of high stress or anxiety, fatigue or during exciting moments[]” including exercise. Tr. 43:6–

11. She also testified about her migraines in relation to her stress levels, including at times of high

stress such as planning her wedding and finishing law school exams. Tr. 54:22–25; 57:17–19. She

explained it was common for her to have “let-down headaches” during times like those. Tr. 57:7–

9. Petitioner further expressed she has not found a medication that she can tolerate, so she does not

take medication to manage her symptoms. Tr. 43:18–20. Instead, she stated that she uses ice packs

and arm splints. Tr. 43:20–23.

Petitioner was also asked about her recollection of her QSARTs. Tr. 45–46. Petitioner

testified that when she underwent any testing to confirm her diagnoses, including the QSARTs,

“whatever instructions [that] would have been provided at that time, [she] would have made sure

to follow . . . to make sure that we g[o]t an accurate test result to help identify and treat [her]

symptoms.” Tr. 45:25–46:1, 6–8. She further testified that she “highly doubt[ed]” that she would

have taken antihistamines or decongestants in November 2011, during the time that her QSARTs

were conducted because she only uses antihistamines during allergy season in the spring and fall.

Tr. 46:21–25.

C. Dr. Traci Purath’s Affidavit and Fact Testimony

In support of her petition, Petitioner offered an affidavit and the testimony of her treating

neurologist, Dr. Traci Purath. Pet’r’s Ex. 10. Dr. Purath noted that she was Petitioner’s treating

physician both before and after her receipt of the flu vaccine. Id. ¶ 1. Notably, Dr. Purath described

Petitioner’s symptom progression following her receipt of the flu vaccine on August 23, 2011. See

generally id. ¶¶ 5–24. Specifically, Dr. Purath indicated that Petitioner presented to her on August

25, 2011, complaining of “increased headaches along with dysesthesias in both sides of her face

and into her hands.” Id. ¶ 6. She continued that the next day, Petitioner returned to her office and,

upon further discussion, she noted that Petitioner’s “symptoms had started in the evening of August

23, 2011, after she received the flu vaccination.” Id. According to Dr. Purath, by August 26, 2011,

Petitioner “was experiencing complete numbness of the left side of her face, dysesthesias in the

left arm, swelling in the left leg[,] and weakness in her left hand.” Id. ¶ 7. Dr. Purath noted that

she ordered an MRI of Petitioner’s brain and cervical spine on August 26, 2011, which yielded

14

normal results. Id. Repeat MRIs of the brain and cervical spine performed on October 27, 2011,

showed no changes when compared to the June 16, 2010 and August 26, 2011 MRIs. Id. ¶¶ 7, 11.

Dr. Purath provided a complete account of the chronology of Petitioner’s symptoms and

treatment that was consistent with Petitioner’s written affidavits and medical records. See id. Dr.

Purath concluded that based on her comprehensive evaluations of Petitioner, she believed

Petitioner suffered an autonomic small-fiber neuropathy. Id. ¶ 26. She further opined “that the

administration of the influenza vaccination on August 23, 2011[,] caused the autonomic small-

fiber neuropathy.” Id. Dr. Purath averred that Petitioner has suffered from the residual effects of

the neuropathy since the date of vaccination to the date of Dr. Purath’s affidavit, August 15, 2014.

Id.

During the hearing, Dr. Purath was called to testify as a fact witness regarding her treatment

of Petitioner and to clarify her own notations in Petitioner’s medical records. Tr. 9:8–9. Dr. Purath

first noted Petitioner’s history of migraines. Tr. 9:15–17. She initially testified that following

receipt of the flu vaccine, Petitioner came into her office on August 25, 2011, with a change in her

headache symptoms and some dysesthesias to her face and hands. Tr. 10:11–15. However, Dr.

Purath’s notes indicated she only learned of Petitioner’s receipt of the flu vaccine on August 26,

2011. Tr. 12:4–9. Dr. Purath was asked to clarify her notes from these days. Tr. 10–12.

Specifically, on cross-examination, Dr. Purath explained that at the time she evaluated Petitioner

on August 25, 2011, she, in fact, did not know Petitioner had received a flu vaccine on August 23,

2011. Tr. 18:15–19. Dr. Purath highlighted that on August 25, 2011, she thought Petitioner’s

symptoms were caused by recently finishing law school and she was focused on the headache

itself. Tr. 18:20–23, 19:1. Dr. Purath admitted that she did not learn about Petitioner’s recent

receipt of the flu vaccine until August 26, 2011, when Petitioner returned to her office yet again

for her dysesthesias and extremity swelling and weakness. Tr. 19:2–12. Dr. Purath expressed that

she then “wanted to know what else had changed recently,” so she asked Petitioner further

questions. Tr. 19:8–9, 27:10–15. Based on their discussion, she stated, “that was when the flu shot

became apparent[.]” Tr. 19:9. Therefore, Dr. Purath’s notation from August 25, 2011, was

incorrect regarding the flu vaccine. Tr. 12:6–10. Dr. Purath further clarified that Petitioner told her

that her increased headaches began two weeks prior to the flu vaccine she received on August 23,

2011. Tr. 11:20–22. However, she emphasized that Petitioner’s “new symptoms,” the dysesthesias,

occurred only after her receipt of the flu vaccine. Tr. 11:23–25; 12:2–5.

On cross-examination, Dr. Purath was asked about her opinion that the flu vaccine was the

cause of Petitioner’s small fiber neuropathy, which she had put forth in her affidavit. Tr. 21:21–

25. Dr. Purath noted she did not have any literature on hand to support this proposition but that

there was nothing else in Petitioner’s record, temporally speaking, to account for the change in her

symptoms. Tr. 23:9–23.

D. P.E.’s Fact Testimony

Petitioner’s mother P.E. testified during the entitlement hearing. Tr. 66–78. During

the hearing, P.E. provided an account of the chronology of Petitioner’s symptoms, focusing on the

morning of August 26, 2011. Tr. 67–70. P.E. provided testimony that was consistent with both Dr.

Purath’s and Petitioner’s testimony, written statements, and Petitioner’s medical records. See id.

15

P.E. indicated that during Petitioner’s emergency visit with Dr. Purath on August 26, 2011,

Petitioner mentioned the flu shot “after a series of questions posed by Dr. Purath[.]” Tr. 69:20–23.

P.E. further corroborated Petitioner’s assertions and stated that Petitioner did not have tingling or

numbness in her face and hands prior to the appointment with Dr. Purath on August 26, 2011. Tr.

71:2–10.

III. Experts

A. Expert Review

1. Petitioner’s Expert, David S. Younger, M.D.

Dr. Younger received his medical degree from Columbia University in 1981. Pet’r’s Ex.

16 at 1. At the time Petitioner filed this case, Dr. Younger was licensed to practice in New York

and held board-certifications in internal medicine, clinical neurophysiology, electrodiagnostic

medicine, and neurology and psychiatry. Id. Dr. Younger’s clinical experience includes serving as

an attending in neurology at Lenox Hill Hospital and New York University’s (“NYU”) Langone

Medical Center, both in New York, New York, since 1994 and 1998, respectively. Id. He also

served as the Chief of Neuromuscular Diseases at NYU Medical Center throughout 1998. Id. Since

2014, he has served as both the Co-Director of the Muscular Dystrophy Clinic and an attending in

neurology at White Plains Hospital in White Plains, New York. Id. Dr. Younger also has academic

experience, including serving as a Clinical Associate Professor of Neurology at NYU School of

Medicine and as a member of the faculty at the Global Institute of Public Health at NYU. Id. Dr.

Younger’s curriculum vitae lists numerous books, book chapters, and research papers of which he

is a listed author. See id. at 4–18.

Dr. Younger submitted two expert reports and a neurological summary of this case but did

not testify at the hearing. Pet’r’s Exs. 15, 21, 22. At Petitioner’s request, Dr. Younger was not

called to testify, as his recent felony conviction involving a crime of dishonesty would have

undermined his credibility and prejudiced Petitioner’s case. See ECF No. 55. His expert reports

were not stricken and are still part of the record in this case. I will consider them for the limited

purpose of his diagnoses of Petitioner as her treating physician. However, I will afford them

considerably less weight, as Dr. Younger was not cross-examined. Instead, Petitioner proceeded

with the testimony of Dr. Lawrence Steinman as her chief expert. Tr. 79–149.

2. Petitioner’s Expert, Lawrence Steinman, M.D.

Dr. Steinman received his medical degree from Harvard University in 1973. Pet’r’s Ex. 45

at 1. He completed his post-graduate training at Stanford University, where he completed an

internship in surgery in 1973, a residency in pediatrics in 1974, and a residency in pediatric and

adult neurology from 1977 to 1980. Id. He became board-certified in neurology in 1984. Id. at

2. He served as the Chairman of the Immunology Program at Stanford for approximately ten years

from 2002 to 2011. Id. He currently serves as a Professor of Neurology, Pediatrics, and Genetics

at Stanford University’s Department of Neurology and Neurological Sciences. Id. Dr. Steinman’s

curriculum vitae includes over four-hundred and fifty published articles of which he is a listed

author. See id. at 5–40. During the hearing, he noted that he “did a post-doctoral fellowship in

16

neuroimmunology[.]” Tr. 80:14. He explained that his clinical practice involves “see[ing] patients,

both inpatients and outpatients . . . [with] neuroimmunological diseases.” Tr. 80:20, 81:6. He also

stated that he has testified many times in the Vaccine Program. Tr. 83–84.

Dr. Steinman submitted two expert reports and testified during the hearing. See Pet’r’s Exs.

40, 78; Tr. 79:18–152:11. He also submitted one post-hearing supplemental report. Pet’r’s Ex. 84.

The parties stipulated that Dr. Steinman was qualified to render an expert opinion in neurology,

and I recognized Dr. Steinman as such. Tr. 78:24–25, 79:1.

3. Respondent’s Expert, Peter D. Donofrio, M.D.

Dr. Donofrio received his medical degree from the Ohio State University School of

Medicine in 1975. Resp’t’s Ex. B at 1. He is licensed to practice medicine in several states and is

board-certified in internal medicine, psychiatry and neurology, and electrodiagnostic medicine.

Id. at 2. Dr. Donofrio has extensive academic and practical experience, including residencies in

internal medicine and neurology, and a fellowship in neuromuscular medicine. Id. He has served

as a Professor of Neurology at the Vanderbilt University School of Medicine from 2006 to present.

Id. Prior to that, he served as first an Assistant Professor and then a Professor of Neurology at

Wake Forest University School of Medicine from January 1986–July 2006. Id. at 2–3. His clinical

experience includes serving as the Director of the Neuromuscular Division at Vanderbilt

University School of Medicine from August 2006 through present and as Chief of the

Neuromuscular Section at the Wake Forest University from July 1993–July 2006. Id. Dr. Donofrio

has been appointed to numerous hospital committees throughout his career. Id. at 3–8. His

curriculum vitae lists numerous publications and editorials of which he is a listed author. See id.

at 12–58.

During the hearing, Dr. Donofrio explained that he, in addition to his other responsibilities

as the Director of the Neuromuscular Division, is also “the Director of the EMT laboratory,

Director of the Muscular Dystrophy Association Clinic, [] Director of the ALS Clinic[,] and Vice

Chairman for Clinical Affairs[.]” Tr. 154:2–5. Dr. Donofrio testified that his “professional

responsibilities are patient care, teaching, service, and research.” Tr. 154:8–9. He stated he mainly

sees patients “with diseases of the peripheral nerve muscle . . . so, [] people with spinal cord

diseases.” Tr. 154:12–15.

Dr. Donofrio submitted three expert reports and testified at the hearing. See Resp’t’s Ex.

A, I, L; Tr. 153:5–174:3. He also submitted one post-hearing supplemental expert report. Resp’t’s

Ex. N. The parties also stipulated that Dr. Donofrio was qualified to render an expert opinion in

the field of neurology, and I recognized Dr. Donofrio as such. Tr. 155:9–22.

B. Expert Reports and Testimony

1. Petitioner’s Expert, Dr. Younger

In his first expert report, Dr. Younger confirmed that based on Petitioner’s medical records,

Petitioner indeed suffered from small fiber sensory neuropathy. Pet’r’s Ex. 15 at 7. Dr. Younger

expressed that “[a]s an initial matter, every qualified treating neurologist . . . has determined that

17

[Petitioner] suffers from small fiber neuropathy.” Pet’r’s Ex. 21 at 4 (citing Pet’r’s Ex. 4 at 542;

Pet’r’s Ex. 2 at 23–25; Pet’r’s Ex. 9 at 12–13). Based on his own assessment of Petitioner, Dr.

Younger noted that Petitioner demonstrated brisk reflexes, “convergence insufficiency, sensory

loss to pinprick[,] and cold temperature with a gradient from distal to proximal.” Pet’r’s Ex. 21 at

6. Dr. Younger opined these symptoms were “consistent with a diagnosis of small fiber

neuropathy.” Id. Dr. Younger noted that none of Petitioner’s complaints of “fatigue, tremor, and

chest pain . . . are associated with small fiber neuropathy.” Id. at 6. However, Dr. Younger

concluded those symptoms resulted, instead, from Petitioner’s “autonomic disorder and small

vessel vasculitis, both associated with the influenza vaccination of August 23, 2011.” Id.

As further support for his opinion regarding Petitioner’s small fiber neuropathy diagnosis,

Dr. Younger indicated that he met with Petitioner on December 28, 2015, and assessed her

condition. Pet’r’s Ex. 21 at 5. Dr. Younger revealed he performed an epidural nerve fiber density

skin biopsy on Petitioner during their encounter on December 28, 2015. 38 Id.; see also Pet’r’s Ex.

23 at 12–13, ECF No. 35-3). Dr. Younger explained he “performed a 3-mm punch skin biopsy and

collected two skin specimens from [Petitioner] . . . one from her left thigh and one from her left

calf.” Id. He indicated the samples were sent to Dr. Kurenai Tanji, M.D., at Columbia-Presbyterian

Hospital. Id. (citing Pet’r’s Ex. 22 at 12–13). Dr. Tanji “concluded that both specimens exhibited

‘significantly low epidermal nerve fiber density.’” See id. Dr. Younger stated “[b]ecause

[Petitioner’s] biopsy demonstrated a significant reduction in [e]pidermal [n]erve [f]iber density,

her diagnosis of [s]mall [f]iber [n]europathy is therefore confirmed.” Pet’r’s Ex. 21 at 5.

Dr. Younger also diagnosed Petitioner with small vessel vasculitis. Id. at 7. He cited an

article by Jennette et al., 39 which noted that common symptoms associated with small vessel

vasculitis include “fever, myalgias, 40 arthralgias, 41 and malaise[.]” 42 Id. (citing Pet’r’s Ex. 26 at 5,

ECF No. 35-6). He wrote that Petitioner’s “epidermal nerve fibers were [] injured by influenza

vaccination wherein the influenza vaccination led to an autoimmune response restricted to small

nerve fibers in the skin with consequent sensory changes, including burning pain.” Pet’r’s Ex. 21

at 7. As support for his opinion, Dr. Younger cited to a case study by Blumberg et al., 43 which

described two patients suffering from autoimmune sequela in the form of small vessel vasculitis

secondary to the influenza vaccination. Id. (citing Pet’r’s Ex. 25 at 1, ECF No. 35-5). The authors

noted that the first patient was a twenty-seven-year-old man “suffering from fever, arthralgias, and

myalgias post-immunization, consisting of split-product virus a A-New Jersey Swine and A-

Victoria influenza.” See id. Dr. Younger indicated that “much like [Petitioner], this patient noted

blurred vision.” Pet’r’s Ex. 21 at 7. He further noted that the second patient in the Blumberg study

38

Petitioner submitted a letter from Dr. Younger describing their encounter on December 28, 2015,

including a neurological summary of her condition. Pet’r’s Ex. 22, ECF No. 35-2. During this appointment,

he conducted a skin biopsy to assess Petitioner’s epidermal nerve fiber densities in order to confirm

Petitioner’s small fiber neuropathy diagnosis. Id. at 2. Based on his findings, Dr. Younger indicated “[t]he

findings were consistent with post-vaccination autoimmune small fiber neuropathy and dysautonomia with

orthostatic intolerance.” Id.

39

J. Charles Jennette, et al., Small-Vessel Vasculitis, 337 N. ENG. J. MED. 1512–23 (1997).

40

Myalgia is “pain in a muscle or muscles.” Dorland’s at 1214.

41

Arthralgia is “pain in a joint.” Dorland’s at 150.

42

Malaise is “a vague feeling of bodily discomfort and fatigue.” Dorland’s at 1097.

43

Scott Blumberg, et al., A Possible Association Between Influenza Vaccination and Small-Vessel

Vasculitis, 140 ARCH. INTERN. MED. 847–48 (1980).

18

was an eighty-seven-year-old man “that experienced onset systemic fever, malaise, generalized

arthralgia, myalgia, and swelling in the face beginning hours after influenza vaccination.” Id.

(citing Pet’r’s Ex. 25 at 1). The patient underwent a skin biopsy which revealed “cutaneous

necrotizing venulitis localized to the papillary dermis.” See id. He analogized this study to

Petitioner’s case and concluded that “[Petitioner] suffered [from] small vessel vasculitis as a result

of the influenza vaccination on August 23, 2011.” Pet’r’s Ex. 21 at 7.

2. Petitioner’s Expert, Dr. Steinman

Dr. Steinman submitted three expert reports in response to both Drs. Younger’s and

Donofrio’s reports and testified during the hearing. Pet’r’s Exs. 40, 78, 84; Tr. 79–152, 245–260.

During his testimony, Dr. Steinman expanded upon the points he discussed in his first expert report

regarding his opinion that the flu vaccine caused Petitioner’s injuries. Tr. 79–152. As a preliminary

matter, Dr. Steinman discussed the debate surrounding Petitioner’s diagnoses. Pet’r’s Ex. 40 at

17–18. First, he agreed with Dr. Younger and Petitioner’s other treating physicians that Petitioner

suffered from small fiber neuropathy. Id. (citing Pet’r’s Ex. 4 at 542; Pet’r’s Ex. 22 at 12–13). Dr.

Steinman arrived at his own conclusion and testified that “by a preponderance of the evidence . . .

[Petitioner] suffers from small fiber neuropathy.” Tr. 87:20–22, 88:7–10. He stated that he based

his opinion, in part, on Petitioner’s treating physicians’ notes indicating her symptoms showed “an

inflammatory neuropathic condition[,]” and subsequent diagnosis of small fiber neuropathy. Tr.

91:2–3; see also Pet’r’s Ex. 40 at 5 (citing Pet’r’s Ex. 21 at 4; Pet’r’s Ex. 4 at 542; Pet’r’s Ex. 2 at

23–25; Pet’r’s Ex. 9 at 12–13).

Dr. Steinman also based his opinion on Petitioner’s symptoms. Tr. 88–89. During his

testimony, Dr. Steinman explained small fiber neuropathy generally and stated that “[t]he fibers

that are involved [with small fiber neuropathy] have a receptor called the alpha 3 acetylcholine

receptor which the immune system targets[.]” Tr. 88:25–89:2. As a result, “the manifestations of

small fiber neuropathy are highly variable . . . [and] include[] many of the features that [] Petitioner

has faced, burning heat, pain, [tha]t comes and goes[.]” Tr. 89:2–5. Dr. Steinman was asked about

Dr. Donofrio’s assertion that small fiber neuropathy symptoms “typically don’t fluctuate from one

side to the other[,]” as they do in Petitioner’s case. Tr. 93:13. He testified that he does not agree

with Dr. Donofrio’s characterization of these symptoms because “this type of illness, it’s fibers

that are associated with the autonomic nervous system and some of the symptoms are fleeting,

some of them have to do with pain, some of them have to do with fatigue, which is a global

symptom[.]” Tr. 93:20–24.

On cross-examination, Dr. Steinman maintained that Petitioner exhibited many of the

common symptoms associated with small fiber neuropathy, as enumerated in the literature. Tr.

117:4–17; see also Pet’r’s Ex. 19. 44 He cited the Lacomis et al. 45 study, to list several clinical

features of small fiber neuropathy that Petitioner exhibited, including “tingling, burning, prickling,

shooting pain, or aching.” Tr. 117:22–25; Pet’r’s Ex. 19 at 2. He testified that Petitioner’s weakness

and brisk reflexes can also be clinical features of her small fiber neuropathy. Tr. 118:7–8.

44

David Lacomis, Small-fiber neuropathy, 26 MUSCLE NERVE 173–88 (2002).

45

See id.

19

Dr. Steinman addressed Dr. Donofrio’s argument that Petitioner must not suffer from small

fiber neuropathy because “it would be particularly difficult for someone like [Petitioner], with

small fiber neuropathy to maintain a demanding job[.]” Tr. 94:7–15. Dr. Steinman acknowledged

that while Petitioner’s job requires “a lot of hours[]” and “it’s very high stressed,” her ability to do

it well does not have “any significance . . . in terms of making a diagnosis or deciding whether her

diagnosis is small fiber neuropathy[.]” Tr. 94:10–15. He testified this is because he has “been

repeatedly amazed by how driven people can overcome medical problems and do things at a [high

functioning] level.” Tr. 94:15–16.

Dr. Steinman testified that he also relied on Petitioner’s biopsy results to support his

opinion regarding Petitioner’s small fiber neuropathy diagnosis. Tr. 91–92. Dr. Steinman cited an

article by Lauria et al., 46 in which the authors, like Dr. Younger, analyzed skin biopsies at the calf

and “published epidermal nerve fiber density [“ENFD”] normative values for clinical use that are

generally accepted within the scientific community.” Pet’r’s Ex. 40 at 18 (citing Pet’r’s Ex. 55 at

3, ECF No. 60-16). Based on this study, Dr. Steinman determined the “ENFD normative values

for Petitioner’s age group and gender, . . . 10 cm. proximal to the lateral malleolus, would be 8.4

for the 5th percentile, with a median ENFD value per age span of 13.5.” See id. Dr. Steinman noted

the results of Petitioner’s calf biopsy “yielded a mean of 2.8 (with a range of 1.3–3.0).” Pet’r’s Ex.

40 at 18. Dr. Steinman therefore concluded that “these results indicate the presence of small fiber

neuropathy.” Id.; see also id. at 19–20. He opined that the low density of the nerve fibers revealed

by the biopsy were “because of the immune attack that . . . is the basis for [Petitioner’s] small fiber

neuropathy.” Tr. 92:7–9. He stated that Petitioner’s biopsy results were “unmistakably . . .

consistent with the diagnosis of small fiber neuropathy.” Tr. 91:22–23.

Dr. Steinman was asked about Dr. Donofrio’s concerns “that the skin biopsy was taken

four years after the vaccination, so there’s no contemporaneous proof that if she does suffer from

small fiber neuropathy, that she suffered from [it] around the time of the vaccination.” Tr. 92:14–

18 (citing Resp’t’s Ex. L at 4). In response, Dr. Steinman testified that “in an ideal world, it would

have been great to do the biopsy earlier, but . . . [the biopsy is] telling us that the pathology is small

fiber neuropathy.” Tr. 92:20–21, 93:2–3. Therefore, he “do[es]n’t think that a separate diagnosis

is viable, especially when all the doctors before that said anyway that she had small fiber

neuropathy.” Tr. 93:7–10.

Dr. Steinman also relied on the abnormal results of Petitioner’s QSARTs from November

2011, to support his conclusion that Petitioner suffers from small fiber neuropathy. Tr. 94:24. He

explained that QSARTs “trigger sweating in a local area and you can see the quantity.” Tr. 95:3–

4. He noted that the results of Petitioner’s QSARTs revealed decreased responses in the right foot,

distal leg, and forearm. Pet’r’s Ex. 40 at 5 (citing Pet’r’s Ex. 4 at 542); see also Pet’r’s Ex. 9 at 46.

These results indicated that Petitioner suffered from small fiber neuropathy. Pet’r’s Ex. 40 at 5

(citing Pet’r’s Ex. 21 at 4); Pet’r’s Ex. 4 at 542; Pet’r’s Ex. 2 at 23–25. However, Dr. Steinman

testified that if a patient is using antihistamines such as allergy drugs at the time of this test, like

Dr. Donofrio contended occurred in Petitioner’s case, the antihistamine can interfere with the

results. Tr. 95:4–5. However, he expressed that based on Petitioner’s “testimony that she follows

instructions [before laboratory tests] carefully, [and] only takes allergy drugs when it’s allergy

46

Giuseppe Lauria, et al., Intraepidermal nerve fiber density at the distal leg: a worldwide normative

reference study, 15 J. PERIPHERAL NERVOUS SYS. 202–07 (2010).

20

season, and November is not her allergy season[,]” the abnormal results of Petitioner’s QSARTs

were not unreliable. Tr. 95:6–8, 12–15.

Dr. Steinman opined “that all other potential alternative neurologic explanations for

Petitioner’s condition have been excluded, and the diagnosis of small fiber neuropathy is the

correct diagnosis.” Pet’r’s Ex. 40 at 18 (citing Pet’r’s Ex. 2 at 43–44; Pet’r’s Ex. 21 at 3). In fact,

he stated that Petitioner “had a rather extensive evaluation for diseases that could masquerade or

have similar manifestations [to small fiber neuropathy]. She was worked up for Lyme disease,

lupus, various rheumatological disorders[,]” and all were negative. Tr. 89:18–21. Therefore, Dr.

Steinman stated that “there’s more than a preponderance of evidence with the QSART testing, []

skin biopsy, [] proper reference levels, [] the exclusion of other diagnoses, that we’re dealing here

with small fiber neuropathy.” Tr. 95:15–19.

Dr. Steinman addressed whether Petitioner’s small fiber neuropathy is autoimmune in

nature. He opined that it is. Tr. 252:11. He based his opinion on Petitioner’s elevated ANA and

the density of the nerve fibers revealed by her biopsy. Tr. 252:13, 25, 253:1. In response to my

questioning, Dr. Steinman posited that his theory of causation described below “fits better if

[Petitioner’s small fiber neuropathy] is autoimmune[,]” to account for the cross-reactivity from the

flu vaccine that occurred in Petitioner’s case. Tr. 257:2–7. He also explained that any reference he

made to Petitioner having an “autonomic neuropathy” should be regarded as “a feature of her small

fiber neuropathy[]” and “not a separate diagnosis[,]” as he is someone who “lumps” diagnoses

together rather than “split[s]” them apart. Tr. 116:6–20.

Second, Dr. Steinman also agreed with Dr. Younger’s conclusion that Petitioner suffered

from small vessel vasculitis. Pet’r’s Ex. 40 at 21. Dr. Steinman agreed that “none of [Petitioner’s]

treating physicians diagnosed her with small vessel vasculitis[,] other than Dr. Younger[.]” Tr.

116:1–5. He explained that his theory in this case, described below, “indicates how immune

memory to components of the vaccine that mimic the alpha 3 nicotinic acetylcholine receptor are

at the heart of the small fiber neuropathy. A vasculitic response would be involved in the

penetrations of the autoimmune T cells.” Pet’r’s Ex. 40 at 21. Dr. Steinman cited a case study by

Yang et al., 47 which explained “the role of the nicotinic acetylcholine receptor ɑ3 subtype (ɑ3-

nAChR) in vascular inflammation.” Id. (citing Pet’r’s Ex. 56 at 1, ECF No. 60-17). The authors of

the study concluded that “ɑ3-nAChRs play a pivotal role in regulating the inflammatory responses

in endothelial cells and macrophages.” See id. As a result, Dr. Steinman opined “[a]n immune

response to alpha 3 nicotinic acetylcholine receptor would block a major suppressive pathway in

the blood vessel wall, and predispose Petitioner to vasculitic inflammation and subsequently small-

fiber neuropathy.” Pet’r’s Ex. 40 at 21.

Dr. Steinman testified regarding the criteria he relied on to support his opinion that

Petitioner suffers from small vessel vasculitis. Tr. 96:1–18. He explained that “the way that the

immune system attacks [the] peripheral nerve, the way it does in small fiber neuropathy, . . . [and]

Guillain-Barr[é] . . . the immune cells and the antibodies go through the blood vessels, and it

creates a small inflammatory response in the vessels.” Tr. 96:9–15. Based on this, Dr. Steinman

stated that Petitioner “has a vasculitis, which is, . . . concomitant with how the small fiber

47

Cui Yang, et al., Role of the nicotinic acetylcholine receptor ɑ3 subtype in vascular inflammation, 173

BR. J. PHARMACOL. 3235–47 (2016).

21

neuropathy pathophysiology works.” Tr. 96:16–18. He explained that “[a]natomically, there is a

relationship [between the two diseases] and the pathophysiology can link the two entities.” Tr.

88:13–14. However, he acknowledged that a tissue sample was not tested in Petitioner’s case that

could have confirmed her small vessel vasculitis. Tr. 97:1–4. Dr. Steinman stated he did not know

if Petitioner’s skin biopsy “captured some small arterials and venules in the epidermal tissue[,]”

which would also show the markings of small vessel vasculitis. Tr. 97:4–7. He also admitted that

no laboratory studies were conducted to help confirm “abnormal values for markers of

vasculitis[.]” Tr. 97:8–10. Dr. Steinman testified that even if those tests were conducted, “the

confound in this case” was that Dr. Purath prescribed Decadron, a steroid, to Petitioner “which

would reduce the possibility of detecting . . . th[e] antibody throughout the three acetylcholine

receptor or some of the markers of vasculitis.” Tr. 97:11–16.

Next, Dr. Steinman stated his theory was that Petitioner’s August 23, 2011 flu vaccine

triggered an immune response to her previous flu vaccines, resulting in her small fiber neuropathy

and small vessel vasculitis. Tr. 109:3. Dr. Steinman stated that “one of the known immune

responses associated with small fiber neuropathy is an antibody, an immune response directed to

the alpha 3 acetylcholine receptor.” Tr. 98:14–16. He explained that “[n]icotinic acetylcholine

receptors (“AChRs”) are a family of ligand-gated cation channels found throughout the central and

peripheral nervous system. Every nicotinic AChR is formed by the association of five subunits of

which at least two are ɑ subunits. The ɑ subunit contains important binding sites for acetylcholine.”

Pet’r’s Ex. 40 at 6–7 (citing Pet’r’s Ex. 69 at 1, ECF No. 60-30). 48 Based on this, Dr. Steinman

theorized that Petitioner’s “Fluarix vaccine in 2011 triggered a small fiber neuropathy[] based on

the contents of the 2011 vaccine and their molecular mimicry with the alpha3 nicotinic AChR[]”

contained in prior flu vaccines administered to Petitioner in 2005, 2008, 2009, and 2010. Pet’r’s

Ex. 40 at 13–17, 27; see also Pet’r’s Ex. 39 at 8, 18, 37, 86.

Specifically, Dr. Steinman wrote that there were components in Petitioner’s previous flu

vaccines that “mimic[ked] the alpha3 AChR associated with vasculitis and small fiber neuropathy.

A rapid recall response to those components following the 2011 Fluarix immunization triggered

the immune cross-reaction to alpha 3 AChR, culminating in Petitioner’s small fiber neuropathy.”

Pet’r’s Ex. 40 at 26. Dr. Steinman explained that a “recall response” occurs when it is not the

body’s “first encounter” with that specific antigen, but rather “the immune system has seen this

[antigen] before[.]” Tr. 102:8–9. Dr. Steinman cited an article by de St. Groth et al., 49 which

discusses the notion of recall response and shows that prior exposure to an antigen leads to an

immune response when exposed to a subsequent, related antigen. Pet’r’s Ex. 40 at 22 (citing Pet’r’s

Ex. 62 at 3, ECF No. 60-23). The authors of the study found “that there is a tremendous recall

response that could be measured [eight] years later[]” following the original antigen exposure. See

id. Dr. Steinman wrote that “[i]n parallel to these classic findings, Petitioner more likely than not

carried antibodies to the alpha 3 nicotinic AChR from 2005 to the time of her vaccination in 2011.”

Pet’r’s Ex. 40 at 23. He opined that “the earlier influenza immunizations documented in the record

in 2005, 2008, 2009[,] and 2010 would have provided an ample immunological memory for a

recall response [to the flu vaccine o]n [August 23,] 2011.” Id. at 22.

48

Steven Vernino, et al., Characterization of ganglionic acetylcholine receptor autoantibodies, 197 J.

NEUROIMMUNOL. 63–69 (2008).

49

Fazekas de St. Groth, et al., Disquisitions on Original Antigenic Sin, 124(3) J. EXP. MED. 331–45 (1966).

22

Dr. Steinman indicated that, using the resources available at the National Institute of Health

(“NIH”) and the National Library of Medicine, he conducted a “filtration process” of running

BLAST searches to discover if there was anything in Petitioner’s 2011 flu vaccine, that would in

fact, mimic, or share a “structural similarity with alpha 3 acetylcholine receptors.” Tr. 98:24–25,

99:1. He testified that he targeted alpha 3 acetylcholine receptors because “one of the known

immune responses associated with small fiber neuropathy is an antibody, an immune response

directed to the alpha 3 acetylcholine receptor.” Tr. 98:14–16. He wrote that the process involved

“looking for [specific] homologies between the components of Fluarix and the alpha-3 subtype of

nicotinic AChR.” Pet’r’s Ex. 40 at 7. Dr. Steinman indicated that this is a common practice. Tr.

106–107; see also Pet’r’s Ex. 74, ECF No. 74-4. 50 To do so, he “enter[ed] a protein sequence, like

alpha 3 nicotinic AChR . . . with one of the known components of Fluarix[.]” Pet’r’s Ex. 40 at 7.

Dr. Steinman noted that the components of the 2011–2012 Fluarix vaccine include

“A/California/7/09 (H1N1)-like virus (pandemic (H1N1) 2009 influenza virus), A/Perth/16/2009

(H3N2)-like virus, and B/Brisbane/60/2008-like virus[.]” Id. at 14 (citing Pet’r’s Ex. 51 at 2, ECF

No. 60-12). 51 He also noted the components of the other prior seasonal flu vaccines that Petitioner

received. Pet’r’s Ex. 40 at 13. The 2005 influenza vaccine contained “A/New Caledonia/20/99

(H1N1)-like virus; A/California/7/2003 (H3N2)-like virus; and B/Shanghai/361/2002-like virus.”

Id. (citing Pet’r’s Ex. 70 at 2, ECF No. 60-31). The FluMist 2008 contained “A/Brisbane/59/2007

(H1N1)-like virus; an A/Brisbane/10/2007 (H3N2)-like virus; and B/Florida/4/2006-like virus.”

Pet’r’s Ex. 40 at 14 (citing Pet’r’s Ex. 51 at 2). The components of the 2009–2010 flu vaccine

include A/Brisbane/59/2007 (H1N1)-like virus, A/Brisbane/10/2007 (H3N2)-like virus, and

B/Brisbane/60/2008-like virus, a component also in the 2011 Fluarix vaccine. Pet’r’s Ex. 40 at 16

(citing Pet’r’s Ex. 71 at 1, ECF No. 60-32). The 2010–2011 flu vaccine contained

“A/California/7/09 (H1N1)-like virus (pandemic (H1N1) 2009 influenza virus), A/Perth/16/2009

(H3N2)-like virus, B/Brisbane/60/2008-like virus.” Pet’r’s Ex. 40 at 16 (citing Pet’r’s Ex. 72 at 1,

ECF No. 60-33).

Once he generated the computerized results, Dr. Steinman demonstrated that there “are

homologies between alpha 3 nicotinic AChR and the hemagglutinin in B/Brisbane/60/2008 in the

2011 Fluarix vaccine that Petitioner received[.]” Pet’r’s Ex. 40 at 10–11. He wrote that he

considered “a run of [five] or more of [twelve] amino acids that are identical in the Fluarix

components and the alpha-3 subtype of nicotinic AChR[,]” to be a “‘meaningful molecular

mimic[.]’” Id. at 7–8 (citing Pet’r’s Exs. 58–60, ECF Nos. 60-19–60-21). 52 As support, Dr.

Steinman relied on his own research and posited that it revealed the “identity of [five] of [twelve]

50

Robert Root-Bernstein, Rethinking molecular mimicry in rheumatic heart disease and autoimmune

myocarditis: laminin, collagen IV, CAR, and B1AR as initial targets of disease, 2 FRONTIERS IN PEDS. 1–

17 (2014).

51

Influenza Virus Vaccine for the 2008–2009 Season, U.S. FOOD & DRUG ADMIN. (original URL not

available).

52

Anand Gautam, et al., A Viral Peptide with Limited Homology to a Self Peptide Can Induce Clinical Signs

of Experimental Autoimmune Encephalomyelitis, 161 J. IMMUNOL. 60–64 (1998); Anand Gautam, et al.,

Minimum structural requirements for peptide presentation by major histocompatibility complex class II

molecules: Implications in induction of autoimmunity, 91 J. IMMUNOL. 767–71 (1994); Anand Gautam, et

al., A Polyalanine Peptide with only Five Native Myelin Basic Protein Residues Induces Autoimmune

Encephalomyelitis, 176 J. EXP. MED. 605–09 (1992).

23

amino acids, not even consecutive amino acids, was sufficient to trigger experimental

encephalomyelitis[]” in mice. Pet’r’s Ex. 40 at 8 (citing Pet’r’s Ex. 58 at 5). 53 He also cited two

studies, in which he is listed author, that found that “a [six] amino acid peptide with identity at

[five] amino acids was sufficient to trigger neuroinflammation[]” in mice, and “a peptide with

[four] of [eleven] amino acids induced neuroinflammation[.]” Pet’r’s Ex. 40 at 8 (citing Pet’r’s

Ex. 59 at 4, Pet’r’s Ex. 60 at 3). 54 Based on this, Dr. Steinman noted that he found “two

ABSOLUTELY REMARKABLE sequence homologies[.]” Pet’r’s Ex. 40 at 11 (emphasis in

original). The first, Dr. Steinman described was “[five] amino acids in a row PLIGE with the sixth

amino acid representing a small change from leucine to isoleucine[.]” 55 Id. Dr. Steinman indicated

“this degree of molecular mimicry is sufficient to trigger clinically relevant clinical

neuroinflammation.” Id. The second, was “a [five] of six identity PSWVKT, again sufficient to

trigger clinically relevant neuroinflammation.” Id. (citing Pet’r’s Exs. 58–60). 56

Dr. Steinman performed a second BLAST search “directed to the hemagglutinin found in

the 2011 Fluarix component, known as hemagglutinin [Influenza A virus

(A/California/07/2009(H1N1))].” Pet’r’s Ex. 40 at 12. Dr. Steinman found “[o]ther relevant

homologies [] between components of the 2011 Fluarix vaccine and alpha 3 nicotinic AChR.” Id.

Specifically, Dr. Steinman identified “from DKAKIDLVLIG, a stretch with a [seven] of [eleven]

amino acid identity between a component of the 2011 Fluarix vaccine and alpha3 nicotinic AChR,

. . . [which] has shown to be sufficient to trigger clinical relevant neuroinflammation in animal

models.” Id.

Dr. Steinman conducted a third round of BLAST searches comparing the 2005–2006 flu

vaccine to the 2011 Fluarix. Id. at 13. He “blasted the hemagglutinins from B/Brisbane/60/2008

and B/Shanghai/361/2002 . . . [and found] over a 90% identity in their protein sequences[.]” Id. at

13–14. Dr. Steinman noted that “[t]he homologies between the 2005–2006 influenza vaccine

received by Petitioner and the Fluarix she received in 2011 cover the region with PLIG and

PIWVKT that share homology with alpha 3 nicotinic AChR.” Id. at 14.

Dr. Steinman conducted the same analysis between the 2008 FluMist and the 2011 Fluarix.

Id. He found that “[t]he hemagglutinin sequences are nearly identical between B/Brisbane/60/2008

in Fluarix and B/Florida/4/2006 in FluMist . . . [and] cover the region with PLIGE and PIWVKT

that share homology with alpha 3 nicotinic AChR.” Id. at 14–16. Dr. Steinman conducted the same

assessment of the 2009–2010 and 2010–2011 flu vaccines compared to the Fluarix 2011,

respectively. Id. at 16–17. He noted that all three seasonal flu vaccines contain

53

Anand Gautam, et al., A Viral Peptide with Limited Homology to a Self Peptide Can Induce Clinical

Signs of Experimental Autoimmune Encephalomyelitis, 161 J. IMMUNOL. 60–64 (1998).

54

Anand Gautam, et al., Minimum structural requirements for peptide presentation by major

histocompatibility complex class II molecules: Implications in induction of autoimmunity, 91 J. IMMUNOL.

767–71 (1994); Anand Gautam, et al., A Polyalanine Peptide with only Five Native Myelin Basic Protein

Residues Induces Autoimmune Encephalomyelitis, 176 J. EXP. MED. 605–09 (1992).

55

Leucine is “an essential amino acid, 2-amino-4-methylpentanoic acid, necessary for optimal growth in

infants and for nitrogen equilibrium in human adults. It is obtained by the digestion or hydrolytic cleavage

of protein.” Dorland’s at 1026. Isoleucine is “an essential amino acid, α-amino-β-methylvaleric acid,

produced by the hydrolysis of fibrin and other proteins; necessary for optimal growth in infants and for

nitrogen equilibrium in human adults.” Id. at 964.

56

See supra note 52.

24

B/Brisbane/60/2008, and “[t]he homologies with PLIGE and PIWVKT that share homology with

alpha 3 nicotinic AChR are contained in [all three] vaccines.” Id. Based on his findings, Dr.

Steinman opined that through the “numerous examples of molecular mimicry between the alpha 3

nicotinic acetylcholine receptor and the Fluarix vaccine, and between earlier seasonal influenza

vaccines given to Petitioner[,]” he has demonstrated “that the Fluarix vaccine can trigger an

autoimmune response to the alpha3 nicotinic acetylcholine receptor via molecular mimicry.” Id.

at 17.

Regarding Petitioner’s small vessel vasculitis, Dr. Steinman posited that “the immune

response to alpha 3 nicotinic acetylcholine receptor triggered by molecular mimicry would block

a major suppressive pathway in the blood vessel wall, and predispose [] Petitioner to vasculitic

inflammation, and then subsequently to small-fiber neuropathy.” Id. In response to my

questioning, Dr. Steinman admitted that the inflammation caused by small vessel vasculitis would

be necessary for molecular mimicry to occur in Petitioner’s case. Tr. 149:10–14. However, he

stated that “the traditional use of the word vasculitis . . . isn’t critical for the theory.” Tr. 149:8–9.

But the way he used “vasculitis” in Petitioner’s case is to refer to inflammation generally, which

is “necessary for molecular mimicry to work in her particular case[.]” Tr. 149:10–14. Thus, Dr.

Steinman concluded that Petitioner’s August 23, 2011 flu vaccine caused her small fiber

neuropathy and small vessel vasculitis. Pet’r’s Ex. 40 at 26. He held his conclusion “to a reasonable

degree of medical and scientific probability[.]” Id. at 27.

Dr. Steinman admitted that he could not say for sure that the presence of these sequences

in Petitioner “prove[d] that Fluarix [sic] cross-react[ed] with alpha 3 acetylcholine receptor[,]” as

establishing computerized homologies between proteins is only the first step in proving molecular

mimicry. Tr. 101:16–17, 128:15–17. The next step would be to show “cross-reactivity between

the homologous proteins and that the cross-reactivity actually leads to damage[,]” but that

experiment cannot be done in humans, as “it would be unethical.” Tr. 99:25, 128:17–21.

On cross-examination, Dr. Steinman agreed that neither animal nor human studies have

been conducted with respect to the specific homologies he found between the flu vaccine and the

acetylcholine receptor to see if they, in fact, result in disease. Tr. 130:5–18. He testified that he

was “not surprised” that his search did not yield any experimental models. Tr. 150:12–13.

However, he pointed out that “[t]here is an association between alpha 3 acetylcholine receptor and

[small fiber neuropathy,]” but “not the flu vaccine as the cause of the molecular mimicry with

acetylcholine receptors leading to small fiber neuropathy.” Tr. 132:6–7, 10–14. Dr. Steinman

testified that he did not know of “any epidemiol[ogical] actual [sic] studies that support a causal

association between the flu vaccine and small fiber neuropathy[]” or small vessel vasculitis, in

general, or via molecular mimicry, specifically. Tr. 118:9–14, 125:5–8. Dr. Steinman

acknowledged that the suspected relationship between the flu vaccine and small fiber neuropathy

has been documented, but it is not “widely reported[.]” Tr. 107:7. While he maintained that the

cause of small fiber neuropathy is unknown in 30% of cases, he “certainly, through the strategies

that [he] used in the theory, s[aw] how [the flu vaccine] could cause it.” Tr. 109:13–14.

Dr. Steinman conceded that an issue with his theory on causation is “that we don’t have

evidence that [an] alpha 3 immune response was actually detected[]” in Petitioner. Tr. 108:1–2.

He admitted that the only time Petitioner was tested, the presence of this antibody could have been

25

blocked by her use of Decadron, a corticosteroid, near the time of her antibody test. Tr. 108:1–3.

He opined that Petitioner’s use of Decadron may have influenced her negative antibody test. Tr.

248–249. Dr. Steinman stated that while Dr. Donofrio opined that Decadron therapy would not

have blocked a positive antibody test, Dr. Steinman “believe[s he is] correct[.]” Tr. 249:3. Dr.

Steinman supported his opinion by explaining the pharmacokinetics and pharmacodynamics of

Decadron. Tr. 249. He stated that pharmacokinetics refers to “how long it takes for [the drug] to

be out of your system[,]” Tr. 249:7, while “[p]harmacodynamics is how long the effects of the

drug are lasting.” Pet’r’s Ex. 84 at 1. Based on this, Dr. Steinman explained that Decadron is “gone

from the system in a matter of days in most people[ because i]t’s a fat[-]soluble drug.” Tr. 249:10–

11. But, “it depletes your T cells and B cells and they come back very slowly. It takes weeks and

months for, particularly the B cells that are the antibody lineage to come back.” Tr. 249:19–22.

Therefore, he opined Petitioner’s antibody “may have been below the level of detection.” Tr.

250:2–3. He stated that he “would be really close to certainty about linking the molecular mimicry

with the alpha 3 acetylcholine receptor, had they been positive[]” in Petitioner. Tr. 250:4–6.

To address this issue, Dr. Steinman submitted a second expert report and supporting

medical literature following the entitlement hearing regarding how Decadron “could suppress the

immune system, and how it therefore may have suppressed an antibody response to ganglionic

AChR[]” in Petitioner. Pet’r’s Ex. 78 at 1; see also Pet’r’s Exs. 79–83, ECF Nos. 85-2–85-6. In

this report, Dr. Steinman cited The Advisory Committee on Immunization Practices for the CDC 57

to support his assertion that corticosteroids, such as Decadron and its generic form dexamethasone,

are immune suppressive. Pet’r’s Ex. 78 at 4 (citing Pet’r’s Ex. 82 at 42, ECF No. 85-5). He wrote

that “The Advisory Committee on Immunization Practices for the CDC states that ‘[s]evere

immunosuppression can be caused by congenital immunodeficiency, leukemia, lymphoma, . . . or

large amounts of corticosteroids.”’ Pet’r’s Ex. 78 at 4 (citing Pet’r’s Ex. 82 at 42) (emphasis in

original).

Dr. Steinman maintained that “Petitioner has shown that there are molecular mimics

between ganglionic AChR and the influenza vaccines that Petitioner received[]” even though “the

only time that the ganglionic AChR antibody test was measured, on 11/4/2011[,] it was negative.”

Pet’r’s Ex. 78 at 1. Dr. Steinman opined that “the 22-day 58 course of Decadron reduced Petitioner’s

capacity to mount a ganglionic AChR antibody response that was negative when actually

measured.” Id. As support, Dr. Steinman cited a study by Baris et al. 59 to explain how long the

cells that make antibodies are “suppressed after cessation of treatment with corticosteroids.” Id. at

2 (citing Pet’r’s Ex. 79). Dr. Steinman wrote that the authors of the study found “that the prolonged

57

Center for Disease Control, Immunization of health-care workers: recommendations of the Advisory

Committee on Immunization Practices (ACIP) and the Hospital Infection Control Practices Advisory

Committee (HICPAC), MMWR 1997;46 (No. RR-18).

58

Dr. Steinman wrote that “it is an established fact that Petitioner was on Decadron immunosuppressive

therapy for 22 days (8/26/11–9/17/11).” Pet’r’s Ex. 78 at 2. As support, he indicates that Petitioner was

initially placed on Decadron on 8/26/11. Id. at 1 (citing Pet’r’s Ex. 2 at 43). Dr. Steinman noted that on

9/16/11, Dr. Purath wrote that she was “weaning [Petitioner] off [Decadron]…” and she “will be off of

Decadron tomorrow (9/17).” Pet’r’s Ex. 78 at 1 (citing Pet’r’s Ex. 2 at 35). He further noted that Dr. Purath

wrote that Petitioner was off of Decadron “completely” by 9/29/11. Pet’r’s Ex. 78 at (citing Pet’r’s Ex. 2 at

32).

59

Hatice E. Baris, et al., The effect of systemic corticosteroids on the innate and adaptive immune system

in children with steroid responsive nephrotic syndrome, 175 EUR. J. PEDIATR. 685–93 (2016).

26

effect on the antibody producing cells after cessation of corticosteroids is notable[.]” Pet’r’s Ex.

78 at 2. He explained that “[t]he cells that make antibod[ies] are in the B cell class and include

plasma cells and memory cells.” Id. In fact, the authors of the Baris et al. 60 study found that “[t]he

change of B cells and B cell subtypes (CD27+ memory) shows prolonged effect of CSs

[CSs=corticosteroids] on B cells which may alter antibody production even after [three] months

of CSs cessation.” Pet’r’s Ex. 79 at 2.

The authors of the Baris et al. 61 study examined patients with kidney disease who were

treated with prednisolone, a corticosteroid. Id. at 1. These patients were started on 2mg/kg/daily

prednisolone therapy for one month and then were weaned the following month to prednisolone

therapy every other day. Id. By the end of the third month, the treatment had tapered and ceased

completely. Id. The authors noted that, “[i]t is widely accepted that 2 mg/kg/day prednisolone

causes immunosuppression after [fourteen] days of continuous administration.” Pet’r’s Ex. 79 at

2. Specifically, the authors found that

[a]fter the cessation of CS, . . . a progressive decline was observed, reaching a

statistical significance at first month (41 ± 22/mm³) compared to the baseline (131

± 128/mm³) . . . . This effect continued until third month of CS cessation (50 ±

26/mm³) . . . . The same pattern was seen in the un-class switched memory B cell

compartment (CD19+CD27+IgD+).

Id. at 6, Fig. 3b. Based on these findings, the authors concluded that “patients receiving CSs might

be deemed immunosuppressed even earlier in course of therapy and immunological alterations

may last as long as [three] months following the cessation of CS treatment.” Id. at 8. Dr. Steinman

therefore concluded that “[t]he suppressive effect of corticosteroids like Decadron on antibody

production can last for a month or more after cessation[.]” Pet’r’s Ex. 78 at 4. He opined that “these

alterations in the cell population responsible for making antibodies, even a month or more after

cessation of corticosteroids, more probably than not, impaired the ability to measure an anti-

ganglionic AChR response [in Petitioner] on 11/4/11 [sic].” Id.

Dr. Steinman conceded that “[t]here are issues in generalizing from [the Baris et al. 62 study]

. . . as [] the population studied were children with kidney disease, not an adult with small fiber

neuropathy[, and] . . . a different steroid was used[,]” with different dosages. Pet’r’s Ex. 78 at 3

(citing Pet’r’s Ex. 79). To remedy the dosage discrepancy between Petitioner’s case and the Baris

et al. study, Dr. Steinman submitted a corticosteroid dose comparison chart. See id. (citing Pet’r’s

Ex. 80 at 1). 63 He highlighted that Petitioner’s “dose of 2 mg dexamethasone is equivalent to a

dose of 20mg prednisolone.” See id. In the Baris et al. 64 study, the child patients received a 2mg/kg

dose of prednisolone. Pet’r’s Ex. 78 at 3 (citing Pet’r’s Ex. 79).

60

See id.

61

See Baris, et al., supra note 59, at 685–93.

62

Id.

63

Adrenal Cortical Steroids, In Drug Facts and Comparisons, 5th ed. St. Louis, Facts and Comparisons,

Inc., 122–28 (1997).

64

See Baris, et al., supra note 59, at 685–93.

27

In his rebuttal report, Dr. Steinman stated that Dr. Donofrio “fail[ed] to differentiate the

pharmacokinetic effect of Decadron (days) to the pharmacodynamic effect (weeks) when [he]

writes, . . . ‘Decadron is a long acting form of corticosteroids whose duration of action is 36–54

hours . . . Decadron blood levels would no longer be detectable and would not be expected to

interfere with antibody detection.’” Pet’r’s Ex. 84 at 1 (citing Resp’t’s Ex. N at 1). Instead, Dr.

Steinman wrote that “Decadron has long-lasting effects on the immune system far beyond when it

is out of the blood stream, because of its effects in depleting and sequestering different populations

of immune cells.” Pet’r’s Ex. 84 at 1. He again relied on the Baris et al. 65 study to “support that

[twenty-two] days of oral Decadron could suppress an antibody response measured [seven] weeks

later, after Decadron treatment was discontinued.” Id. at 2 (citing Pet’r’s Ex. 79). The authors of

the study found that “the prolonged effect of corticosteroids was demonstrated, with the

corticosteroids having an effect on antibody producing cells until the third month after cessation.”

See id. In fact, the authors noted that “it has been shown that even low dose CS therapy may lead

to extended suppression of humoral immunity, only to resolve over time, which may take as long

as [two] years.” Pet’r’s Ex. 79 at 2. Therefore, Dr. Steinman opined that “Petitioner’s 22-day

course of Decadron immunosuppressive therapy could have suppressed antibody levels at the time

of testing, based on an application of [p]harmacodynamic principles.” Pet’r’s Ex. 84 at 2.

Dr. Steinman also stated that another “confound” with the negative results of Petitioner’s

antibody test is that “even when [this antibody] is detected [in other patients], it’s only about 50[%]

of the time . . . even detected.” Tr. 98:21–23, 213:19–25. Dr. Steinman cited an article by Vernino

et al. 66 and reiterated that ‘“[a]ntibodies that specifically bind to the ganglionic AChR are

detectable in about 50% of patients[.]”’ Pet’r’s Ex. 78 at 1 (citing Pet’r’s Ex. 69). He therefore

opined that “it is not surprising that [Petitioner’s test] was negative, from the steroid treatment

done already on a background where in general 50% of cases are negative anyway in autoimmune

autonomic ganglionopathy[.]” Pet’r’s Ex. 78 at 2 (citing Pet’r’s Ex. 69 at 3).

Dr. Steinman addressed the timing and onset of Petitioner’s symptoms. Pet’r’s Ex. 40 at

21–26. He opined the “sentinel sign” of Petitioner’s symptoms was between four- to- six- hours

post vaccination. Tr. 104:13, 135:2–3, 144:22–24. Dr. Steinman opined that her rather immediate

response to the flu vaccine is based on the notion of “recall response.” Pet’r’s Ex. 40 at 21. Based

on his purported medical theory and the notion that Petitioner received several flu vaccines in the

past, Dr. Steinman wrote “there [was] an immense recall response to influenza[.]” Id. at 22. Dr.

Steinman elaborated that under the notion of “recall response,” once one receives a subsequent

dose of a vaccine that the body has seen before, it “work[s]” fast” because “you have immune

memory[.]” Tr. 104:7. He noted that “a rapid recall response can begin even on the day of

immunization.” Pet’r’s Ex. 40 at 21. Dr. Steinman explained that this was possible because “[t]he

immune system, once it has memory, is trigger happy . . . to stop things like polio[,]” or whichever

disease the vaccine is designed to defend against. Tr. 103:25–104:1. Dr. Steinman stated that

regardless of whether the onset of Petitioner’s symptoms occurred around 4:00 p.m. on the day of

her flu vaccine, or [forty-eight] hours later when the tingling started manifesting into her hands,

“it would still go along with [] how the immune system works[,]” and was a sufficient amount of

time to generate an immune response under his theory. Tr. 104:13–14, 110:1–6.

65

Id.

66

See Vernino, et al., supra note 48, at 63–69.

28

Dr. Steinman relied on several articles in his report and testimony, which noted “that recall

responses to specific antigens can be read within [twenty-four] hours of vaccination.” Id. (citing

Pet’r’s Exs. 63–65, ECF Nos. 60-24–60-26 67; see also Tr. 110–113). Dr. Steinman cited the Serane

et al. 68 study to demonstrate that a recall response to a tuberculin test can be read as positive and

produce a reaction in children after twenty-four hours. Pet’r’s Ex. 63 at 1. He also cited the Kardjito

et al. 69 study, which found that the first reaction elicited by a tuberculin test can occur within thirty

minutes. Pet’r’s Ex. 65 at 1. Dr. Steinman relied on an article by Lai et al., 70 to show that during a

recall response reaction, memory cells can react “within six hours [of the vaccine], . . . not just

days[.]” Tr. 113:15–19; see also Pet’r’s Ex. 77, ECF No. 74-5. He wrote that a study by

Schonberger et al. 71 “described an increased incidence of [GBS] . . . even within 0–1 day” of

vaccination. Pet’r’s Ex. 40 at 24 (citing Pet’r’s Ex. 67 at 8, ECF No. 60-28). Dr. Steinman equated

the onset interval of GBS to Petitioner’s small fiber neuropathy and small vessel vasculitis and

opined that the onset of Petitioner’s symptoms fits within the acceptable timeframe for the onset

of GBS. Pet’r’s Ex. 40 at 25. He testified that the Schonberger et al. article is an example of how

the “inflammatory response can trigger something real [sic] quickly.” Tr. 111:18.

On rebuttal, Dr. Steinman reiterated his preference for the Schonberger et al. article over

the Langmuir et al. 72 article relied on by Dr. Donofrio. Tr. 246–248. He maintained that the

Schonberger et al. article is better because “it’s much more incisive about what’s happening, at

least within [forty-eight] hours [of vaccination,]” whereas the Langmuir et al. article “does not

wipe away the issue of what can happen in a shorter interval than a seven day interval.” Tr. 247:19–

20, 248:16–17. Dr. Steinman noted that the authors of the Langmuir et al. study found there were

no patients who developed onset symptoms of GBS on the same day as the swine flu vaccine.

Resp’t’s Ex. G at 15. Dr. Steinman addressed this conclusion and stated that, in accepting this

conclusion, Dr. Donofrio “does not understand figure one[.]” Tr. 246:14 (citing Resp’t’s Ex. G at

15, Fig. 1). Dr. Steinman explained that the horizontal axis contained seven-day intervals,

representing a weekly analysis. Tr. 246:16. He noted that the authors of the article drew “each dot

. . . right in the middle of the interval, as if something happened on day three-and-a-half.” Tr.

246:25, 247:1–2. But, since the analysis is on a weekly basis, “it cannot tell you anything about

what’s happening in anything less than the interval of a week[]” and “[t]here are no places where

it’s zero.” Tr. 247:7–8, 254:22.

67

Tiroumourougane Serane, et al., Tuberculin Test can be Read after 24 hours in Adolescent Children, 60:2

J. TROP. PEDS. (2014); Lin Fan, et al., Variation of Mycobacterium tuberculosis Antigen-Specific IFN-γ

and IL-17 Responses in Healthy Tuberculin Skin Test (TST)-Positive Human Subjects, 7:8 PLoS ONE

(2012); T. Kardjito, et al., Immunological and Clinical Features of Smear-Positive Pulmonary Tuberculosis

in East Java, 61 TUBERCLE 231–38 (1980).

68

Tiroumourougane Serane, et al., Tuberculin Test can be Read after 24 hours in Adolescent Children, 60:2

J. TROP. PEDS. (2014).

69

T. Kardjito, et al., Immunological and Clinical Features of Smear-Positive Pulmonary Tuberculosis in

East Java, 61 TUBERCLE 231–38 (1980).

70

Wendy Lai, et al., Transcriptional Control of Rapid Recall by Memory CD4 T Cells, 187 J. IMMUNOL.

133–40 (2011).

71

Lawrence Schonberger, et al., Guillain-Barré Syndrome Following Vaccination in the National Influenza

Immunization Program, United States, 1976–1977, 110:2 AM. J. EPIDEMIOL. 105–24 (1979).

72

Alexander D. Langmuir, et al., An Epidemiologic and Clinical Evaluation of Guillain-Barré Syndrome

Reported in Association with the Administration of Swine Influenza Vaccines, 119:6 AM. J. EPIDEMIOL.

841–80 (1984).

29

On cross-examination, Dr. Steinman was asked how memory T cells “travel through the

circulatory system to the site and then cross-react to cause the damage” so quickly. Tr. 122:15–17.

In response, Dr. Steinman stated that “the heart [is] pumping [the memory cells] around all the

time, . . . the same way that we need oxygenation of all of our tissues, . . . nourishment of even a

nerve is second to second, within a minute, . . . [and] the cross-reaction can take place in

nanoseconds.” Tr. 122:18–21, 123:3. Therefore, he maintained the onset of Petitioner’s symptoms

fit within the appropriate timeframe in which to ascribe causation to the flu vaccine. Tr. 109–110.

Dr. Steinman was also asked on cross-examination to explain why, if Petitioner already

had an immune memory to the flu vaccine, she did not have a reaction to any of the prior flu

vaccines she received between 2005 and 2011. Tr. 137:1. He opined that the occurrence of

Petitioner’s reaction after several flu vaccines “is not unusual.” Pet’r’s Ex. 40 at 25. He analogized

Petitioner’s reaction with patients who suffer from food allergies. Id. He noted that “[p]eople with

food allergies often do not have clinical manifestations until multiple encounters.” Id. Dr.

Steinman relied on a case study by Kappos et al., 73 to demonstrate that the onset of hypersensitivity

reactions via a “molecular mimic of a nervous system component” following subcutaneous

injections in MS patients ranged from two to twenty-seven injections. Tr. 136:18–25, 137:1–6;

Pet’r’s Ex. 68 at 3, ECF No. 60-29. Dr. Steinman could not proffer a better explanation for why

this reaction varied from patient to patient or why Petitioner did not have a reaction to earlier flu

vaccines. Tr. 136–137. Therefore, he opined this explanation is a “work in progress[]” because

“[he]’d like to know the answer as much as anyone[.]” Tr. 137:2–6.

However, in response to my questioning, Dr. Steinman elaborated on this point and stated

that the innate and adaptive immune systems work differently. Tr. 139:13. He agreed that the

adaptive immune system is more efficient than the innate immune system. Tr. 139:16–17.

Nonetheless, he noted that we have the innate immune system “for when our responses are naïve.

Once we have memory, fortunately, we . . . get to fight it with adaptive immunity which comes on

really fast.” Tr. 139:18–21. Dr. Steinman testified that each time one receives a flu vaccine, it

could contain different strengths and iterations of the virus. Tr. 140:1–5. He agreed that memory

cells, while they have seen the flu vaccine or flu virus before, may create new memory cells every

time they are introduced to a new strain of the virus. Tr. 140:6–11. He stated that “the memory of

our immune system to influenza is really complicated by our first or second encounters with

influenza. And even with [subsequent] seasonal flu vaccines, the memory cells revert[] to that

original antigenic exposure.” Tr. 140:16–21. Dr. Steinman testified that this could explain why

this particular flu vaccine iteration triggered Petitioner’s immune response. Tr. 140:22–25.

However, he conceded that this explanation “cuts against the assertion that the T cells are already

primed and immediately ready to go for cross-reaction . . . in nanoseconds.” Tr. 141:1–4, 20–21.

Dr. Steinman qualified his statement that the cross-reaction can occur in “nanoseconds.” Tr.

141:13–23. He explained that the use of this term was merely “fodder” in his testimony and that

the cross-reaction does not occur in actual “nanoseconds,” but still very quickly. Tr. 141:20–23.

Dr. Steinman also testified that there was no “alternative trigger, in [his] opinion for small

fiber neuropathy.” Tr. 109:2–3. He explained that a “battery of tests” were performed on Petitioner

73

Ludwig Kappos, et al., Induction of a non-encephalitogenic type 2 T helper-cell autoimmune response in

multiple sclerosis after administration of an altered peptide ligand in a placebo-controlled, randomized

phase II trial, 6 NATURE MED. 1176–83 (2000).

30

and none of them yielded positive for other causes of her symptoms. Tr. 108:20–23. However, on

cross-examination, he stated prior to Petitioner’s mother’s testimony regarding her diagnosis of

rheumatoid arthritis, an autoimmune disease, he was unaware of Petitioner’s genetic predisposition

for autoimmune disease. Tr. 145:5–6. Dr. Steinman noted that while a genetic predisposition could

have contributed to Petitioner’s development of small fiber neuropathy, this fact did not change

his opinion that the flu vaccine caused Petitioner’s small fiber neuropathy and small vessel

vasculitis. Tr. 145:2–10.

3. Respondent’s Expert, Dr. Donofrio

Dr. Donofrio filed his first expert report in response to Dr. Younger’s original report.

Resp’t’s Ex. A. Dr. Donofrio opined that “more likely than not, [ P]etitioner did not develop a

small fiber neuropathy as a result of the flu vaccination of August 23, 2011.” Id. at 13. First, Dr.

Donofrio began his analysis by explaining Petitioner’s diagnoses. Id. at 8. He opined that Petitioner

does not suffer from “a small fiber neuropathy or autonomic neuropathy.” Id. Dr. Donofrio

considered Petitioner’s symptoms and indicated that contrary to Dr. Younger’s findings,

“[p]atients with small fiber neuropathy would not have weakness, loss of deep tendon reflexes or

problems with balance or walking[,] as the fibers for those functions are large fibers.” Id. (citing

Pet’r’s Ex. 18, ECF No. 25-5; Pet’r’s Ex. 19, ECF No. 25-6; Resp’t’s Ex. F, ECF No. 29-6). 74 He

explained “[b]ecause small fiber neuropathy is a relatively permanent process affecting the small

fibers, one would not expect fluctuations of symptoms and movement from one side of the body

to the other or improvement followed by worsening.” Resp’t’s Ex. A at 8.

Dr. Donofrio testified that Petitioner’s shifting symptoms are not related to or features of

her small fiber neuropathy. Tr. 243:5–12. In fact, Dr. Donofrio stated that Petitioner’s “shifting”

symptoms from one side of her body to the other did not fit the pattern for small fiber neuropathy

as described by Lacomis et al., 75 in which the authors noted the typical symmetric symptoms of

small fiber neuropathy include “tingling, burning, prickling, shooting sensation, [which are] often

worse at night.” Tr. 157:21–22, 158:21. Dr. Donofrio described that “[t]he typical presentation of

small fiber neuropathy . . . begins in the toes, . . . works its way through the feet and ankles,

remaining symmetrical.” Tr. 156:4–7. The symptoms then “move[] up between the ankles and []

knees[,] and [] by that time, patients often have numbness, tingling, and burning pain in their

fingertips . . . hands[,] and [] forearms.” Tr. 156:7–10. Dr. Donofrio stated that this “evolution can

be anywhere from days to weeks, but it’s commonly measured in months and years.” Tr. 156:11–

12. Dr. Donofrio relied on an article by Tavee et al., 76 to support his assertion that small fiber

neuropathy symptoms present symmetrically and are length-dependent, meaning the symptoms

appear more predominantly in the point that is furthest away from the axis of the body (the

fingertips and toes). Tr. 158:8–18 (citing Resp’t’s Ex. C at 4, ECF No. 29-3). However, the authors

of the Tavee et al. study noted that “[i]n rare cases, small fiber neuropathy follows a non-length-

74

Jinny Tavee, et al., Small fiber neuropathy: A burning problem, 76:5 CLEV. CL. J. MED. 297–305 (2009);

David Lacomis, Small-fiber neuropathy, 26 MUSCLE NERVE 173–88 (2002); Alexandra Hovaguimian, et

al., Diagnosis and Treatment of Pain in Small Fiber Neuropathy, 15(3) CURR. PAIN HEADACHE REP. 193–

200 (2011).

75

See Lacomis, supra note 44, at 173–88.

76

Jinny Tavee, et al., Small fiber neuropathy: A burning problem, 76:5 CLEV. CL. J. MED. 297–305 (2009).

31

dependent distribution in which symptoms may be manifested predominantly in the arms, face, or

trunk.” Resp’t’s Ex. C at 2.

Dr. Donofrio considered the neurologic examinations following Petitioner’s vaccination

and noted she exhibited “brisk reflexes in the arms and legs.” Resp’t’s Ex. A at 8 (citing Pet’r’s

Ex. 2 at 23, 40, 43). He wrote “[b]risk reflexes are not a feature of a small fiber or autonomic

neuropathy . . . [i]n most neuropathies, reflexes are diminished or absent.” Resp’t’s Ex. A at 8

(citing Pet’r’s Exs. 18, 19; Resp’t’s Exs. E, F). 77 He noted Petitioner exhibited “normal sensation

or an inconsistent loss of sensation[]” following the vaccination. Resp’t’s Ex. A at 8 (citing Pet’r’s

Ex. 2 at 38; Pet’r’s Ex. 7 at 11, 19; Pet’r’s Ex. 4 at 316; Pet’r’s Ex. 9 at 10). He also explained that

Petitioner’s “[f]atigue, tremor[,] and chest pain” symptoms are not “considered symptoms

associated with small fiber neuropathy.” Resp’t’s Ex. A at 8 (citing Pet’r’s Ex. 2 at 35; Pet’r’s Exs.

18, 19; Resp’t’s Exs. E, F). 78 He argued that Dr. Steinman ignored these facts in determining that

Petitioner suffers from small fiber neuropathy. Resp’t’s Ex. L at 1–4. However, Dr. Donofrio could

not offer an alternative diagnosis for her fatigue, tremors, or shifting symptoms. Tr. 244:19–22.

Dr. Donofrio indicated that instead, patients with small fiber neuropathy typically

“complain of dry eyes and mouth, orthostasis (drop of blood pressure when the patient stands up),

constipation, sexual dysfunction, daily urinary incontinence, impaired sweating[,] and red or white

discoloration of the feet and hands.” Resp’t’s Ex. A at 8 (citing Pet’r’s Exs. 18, 19; Resp’t’s Exs.

E, ECF No. 29-5, F). 79 Dr. Donofrio concluded that “[l]ittle proof exists in the medical records

that [Petitioner] truly had an autonomic neuropathy[,]” or small fiber neuropathy as “[Petitioner]

did not have common symptoms one associates with an autonomic neuropathy[,]” such as

orthostasis, bradycardia, tachycardia, impaired sweating, or a tonic pupil. Resp’t’s Ex. A at 9.

Dr. Donofrio wrote that Dr. Younger stated, and Dr. Steinman agreed, that ‘“every

qualified treating neurologist diagnosed [ P]etitioner with a small fiber neuropathy.”’ Resp’t’s Ex.

L at 1 (citing Pet’r’s Ex. 21 at 4; Pet’r’s Ex. 40 at 1). However, Dr. Donofrio indicated this was

inaccurate, as it was not true for each of Petitioner’s other treating physicians. Resp’t’s Ex. L at 1.

For example, he noted that Dr. Purath’s office note from October 28, 2011, states “that she had no

reasonable explanation for [ P]etitioner’s symptoms.” Id. (citing Pet’r’s Ex. 2 at 30). Dr. Donofrio

also noted that Dr. Remler’s office note from January 12, 2012, indicates that he was unable to

render a diagnosis for Petitioner’s symptoms. Resp’t’s Ex. L at 1 (citing Pet’r’s Ex. 6 at 8). He

further highlighted that Dr. Barboi, one of Petitioner’s treating neurologists and a specialist in

autonomic neuropathy, “gave a weak endorsement for a small fiber neuropathy.” Resp’t’s Ex. L

at 1 (citing Pet’r’s Ex. 9 at 10). In fact, Dr. Barboi stated Petitioner’s “history would fit with a

small fiber neuropathy but her physical examination did not aid in localization because of the

inconsistent nature of her sensory loss and non-dermatomal distribution.” See id.

77

Jinny Tavee, et al., Small fiber neuropathy: A burning problem, 76:5 CLEV. CL. J. MED. 297–305 (2009);

David Lacomis, Small-fiber neuropathy, 26 MUSCLE NERVE 173–88 (2002); Christopher Gibbons, Small

Fiber Neuropathies, 20 CONTINUUM 1398–1412 (2014); Alexandra Hovaguimian, et al., Diagnosis and

Treatment of Pain in Small Fiber Neuropathy, 15(3) CURR. PAIN HEADACHE REP. 193–200 (2011).

78

See id.

79

Id.

32

Dr. Donofrio considered Petitioner’s “typical workday as a trial lawyer[,]” specifically her

long hours. Resp’t’s Ex. A at 9 (citing Pet’r’s Ex. 11a at 3). Based on Petitioner’s affidavit, Dr.

Donofrio opined that patients like Petitioner “with a significant painful small fiber neuropathy

would not be able to work the prolonged hours of a trial lawyer.” Resp’t’s Ex. A at 10. Dr. Donofrio

wrote that Dr. Steinman failed to “comment about the remarkable ability of [ P]etitioner to work

very long hours . . . [which] would be highly unusual for someone with the number and severity

of her [small fiber neuropathy] symptoms.” Resp’t’s Ex. L at 4. Dr. Donofrio also wrote that

“[Petitioner] states that she cannot exercise, walk, or play sports because of the heightened pain

she experiences. She is unable to cook for herself.” Resp’t’s Ex. A at 7. He opined that

“[Petitioner’s] inability to exercise, walk, or play sports are incongruent with her long hours of

work.” Id. at 10. He opined that “[i]t seems unusual for [ P]etitioner to be able to work [eleven]

to [eighteen] hours per day in a busy law practice and, yet, be unable to cook for herself.” Resp’t’s

Ex. I at 2 (citing Pet’r’s Ex. 11a at 2–5). As a result, Dr. Donofrio maintained Petitioner could not

suffer from small fiber neuropathy. See id. However, on cross-examination, Dr. Donofrio admitted

he “overstated” Petitioner’s inabilities to exercise or cook for herself. Tr. 192:23–25, 193:1. He

conceded that Petitioner stated that she merely had difficulties doing those activities. Tr. 193:4–9

(citing Pet’r’s Ex. 11a ¶ 10a).

As further support of his opinion that Petitioner does not suffer from small fiber

neuropathy, he noted that this diagnosis was confirmed by “indirect evidence,” abnormal results

of QSARTs, which according to Dr. Donofrio, could have been “influenced by [Petitioner] taking

Allegra[.]” Resp’t’s Ex. A at 9; Resp’t’s Ex. I at 2. Dr. Donofrio testified that “[he] noticed that

when the [QSARTs] w[ere] done on November 4th, 2011, that the medical records lists that

[Petitioner] was taking Allegra, which is a[n] antihistamine. Whether she was taking it or not that

day or for several days, it cannot be determined in [Petitioner’s] chart.” Tr. 162:1–5. Dr. Donofrio

therefore concluded this test was not determinative of Petitioner’s small fiber neuropathy diagnosis

because the results may have been influenced by her use of Allegra. Resp’t’s Ex. A at 9. However,

Dr. Donofrio admitted that he “had no means to determine whether she was taking the medication

within [forty-eight] hours of the testing.” Resp’t’s Ex. I at 2.

Dr. Donofrio also indicated that, at the time of his first report, neither a skin nor peroneal

sensory biopsy was ever performed to confirm Petitioner’s diagnosis of small fiber neuropathy.

Resp’t’s Ex. I at 2; see also Resp’t’s Ex. A at 9. However, in his second report, pursuant to the

presiding special master’s order, Dr. Donofrio addressed the skin biopsy performed on Petitioner

by Dr. Younger on December 28, 2015, which revealed the diagnosis of small fiber neuropathy.

Resp’t’s Ex. I at 2, 6; see also Sched. Order, ECF No. 36. Accordingly, Dr. Donofrio reviewed the

results and wrote that the evaluator of Petitioner’s biopsy recorded an “epidural nerve fiber density

consistent with the diagnosis of a small fiber neuropathy.” Resp’t’s Ex. I at 6. At the time of his

second report, Dr. Donofrio noted that he attempted to review and opine as to the meaning of the

results of Petitioner’s skin biopsy but, “[t]he reference values for [Petitioner’s] age and gender

were not reported, so [he] c[ould not] interpret the data himself.” Id. at 2, 4, 5. Based on this, he

opined Petitioner’s results “may have been low, but not abnormal.” Id. at 2. However, during his

testimony, Dr. Donofrio admitted that he had since received the reference values from Petitioner’s

biopsy. Tr. 160:7–8. After repeated questioning, he conceded that “clearly there was evidence for

a small fiber neuropathy . . . . ” Tr. 160:8–9.

33

While Dr. Donofrio admitted that Petitioner’s biopsy revealed evidence of small fiber

neuropathy, he continued to question the results as conclusive evidence of her small fiber

neuropathy diagnosis in 2011. Resp’t’s Ex. L at 4; see also Tr. 160:16–18. Dr. Donofrio noted that

the biopsy was performed “more than [four] years after the flu vaccination.” Id.; see also Tr.

160:18–19. He argued “[t]he presence of a small fiber neuropathy by skin biopsy at that time

cannot be unequivocally related to a year 2011 vaccination . . . because of the [four] year lag

between the biopsy and the vaccination.” See id. Therefore, he opined that the skin biopsy showing

small fiber neuropathy did not explain Petitioner’s symptoms in 2011. Tr. 160:16–18. Nonetheless,

Dr. Donofrio opined that “the fact that the skin biopsy was abnormal four years later shows

pathologic . . . evidence for a small fiber neuropathy.” Tr. 160:21–24. On cross-examination, Dr.

Donofrio conceded that by “pathologic evidence” of small fiber neuropathy within Petitioner’s

biopsy results, he meant that “the pathology report demonstrated a significant reduction in

epidermal nerve fiber density[,]” which is conclusive evidence of small fiber neuropathy. Tr.

200:22–25, 201:1. But, he still opined that the results are unreliable evidence of her small fiber

neuropathy in 2011 because “in th[ose] four years, other things may have happened to her life. She

may have developed some illnesses that were not diagnosed or uncovered . . . . ” Tr. 160:24–24,

161:1.

However, Dr. Donofrio admitted that “[he] didn’t find any[]” evidence in Petitioner’s

medical records that she suffered an underlying or subsequent illness, “but she may not have had

any new symptoms that would have led to ordering further testing that would be necessary to

evaluate her small fiber neuropathy.” Tr. 195:9–13. He stated if he had received Petitioner’s biopsy

results without an explanation for the evidence of small fiber neuropathy, he would have ran tests

for the “eight or nine illnesses that were not ruled out” among the “approximately [twenty-five]”

illnesses known to cause small fiber neuropathy including, “[H]epatitis C, Sjogren’s [disease], . .

. family history for neuropathy, . . . HIV[,] . . . sarcoidosis, . . . B-6 [sic] level, [but] probably not

[] Lyme . . . . ” Tr. 167:23, 196:15–16, 199:9–15; see also Resp’t’s Ex. A at 8; Resp’t’s Ex. L at

1–2. Yet, he admitted he was speculating that Petitioner may have had any of these other illnesses

during that time. Tr. 196:1–4. Based on the pathologic evidence in Petitioner’s skin biopsy, he

conceded “it’s more likely than not that [Petitioner] suffers from small fiber neuropathy[.]” Tr.

201:11–12; see also Tr. 203:16 (indicating Dr. Donofrio stated “[Petitioner] has a small fiber

neuropathy.”). Dr. Donofrio also admitted that in light of Petitioner’s biopsy and his conclusion

that she suffered from small fiber neuropathy Petitioner’s “atypical” symptom presentation carried

less weight in his opinion. Tr. 207:1–15.

He further opined that Petitioner’s small fiber neuropathy is not autoimmune in nature. Dr.

Donofrio argued that for him to conclude Petitioner’s small fiber neuropathy was autoimmune, he

would have to see significant biomarkers, such as an elevated ANA. Tr. 223:25–224:2. He also

argued that he “would have extremely low suspicion that [Petitioner’s small fiber neuropathy] was

autoimmune[]” if she does not already have a pre-existing autoimmune disease. Tr. 225:5–19. Yet,

on re-cross-examination, Dr. Donofrio conceded that on August 29, 2011, Petitioner did have a

positive ANA with an index of 1.33, but he opined that it “has no meaning[, as i]t’s a test that can

be positive in normal people[.]” 80 Tr. 240:17–18, 242:6–7, 16–18 (emphasis added).

80

On rebuttal, Dr. Steinman noted that Dr. Purath wrote this “must be false positive.” Tr. 252:14. But he

opined he did not “know what her mindset was that she said it must be [a false positive].” Tr. 252:15–16.

Dr. Steinman agreed that her notation could have been an interpretation of the fact that the rest of

34

Dr. Donofrio elaborated on the relationship between autonomic neuropathy and small fiber

neuropathy, as both diagnoses had been proposed to describe Petitioner’s symptoms. Tr. 156:14–

25, 157:1. Dr. Donofrio testified that “small fibers constitute the peripheral aspect of the autonomic

nervous system.” Tr. 156:17–18. He stated that “the autonomic nervous system [] begins in the

brain stem and the spinal cord, but then gives rise to one series of nerve fibers that go to

ganglions[,] and then [] a second order goes to [] many places, hands, skin, heart, gut.” Tr. 156:18–

22. Dr. Donofrio explained that patients can have a small fiber neuropathy without autonomic

involvement and vice versa, but that patients “commonly [] have both.” Tr. 156:24–25, 157:1. He

noted that patients with autonomic neuropathy exhibit “difficulty with pupillary reactions, . . . they

don’t sweat well[,] . . . they may have skin changes . . . their feet and hands may feel colder or too

warm.” Tr. 163:2–3, 16–20. Dr. Donofrio testified that Petitioner underwent autonomic testing,

which yielded normal results and she did not exhibit many of the purported symptoms. Tr. 162:12–

22, 163:22. He maintained that Petitioner did not have autonomic involvement or suffer from an

autonomic neuropathy. Tr. 156–157, 162–163.

Regarding Petitioner’s small vessel vasculitis diagnosis, Dr. Donofrio opined that neither

Petitioner’s medical records nor skin biopsy revealed evidence of a small vessel vasculitis.

Resp’t’s Ex. L at 2. He indicated “tissue is necessary to confirm the presence of a small vessel

vasculitis. There was no comment by the pathologist reading the skin biopsy of changes consistent

with a small fiber vasculitis or a vasculitis of any size blood vessel.” Id. Dr. Donofrio testified that

“[i]f blood vessels were present in the skin biopsy . . . [he] th[ought] the pathologist would have

commented on the [] presence of vasculitis in the small arterials of the skin.” Tr. 164:6–9. Dr.

Donofrio highlighted none of Petitioner’s laboratory tests “showed abnormal values for markers

of vasculitis.” Resp’t’s Ex. L at 2. Therefore, he opined Petitioner could not be suffering from

small vessel vasculitis. Id.

Dr. Donofrio considered Dr. Steinman’s “theory and hypothesis about how [the] Fluarix

[vaccine] triggered an autoimmune response to the alpha-3 nicotinic acetylcholine receptor via

molecular mimicry.” Resp’t’s Ex. L at 2 (citing Pet’r’s Ex. 40 at 6). Dr. Donofrio noted that Dr.

Steinman “discusse[d] the concept of molecular mimicry and its application to the flu vaccination

of 2011 and those from previous years . . . [but h]e doesn’t discuss how long it takes to develop

antibodies against those amino acid homologs.” Resp’t’s Ex. L at 2. He pointed out that Dr.

Steinman’s theory and filtration process has not been published or subjected to peer-review. Tr.

173:17–18.

Dr. Donofrio testified that based on available data, he is not convinced by Dr. Steinman’s

theory that the flu vaccine more likely than not caused Petitioner’s small fiber neuropathy. Tr.

164:15–18. He explained that “if it did, [he] would expect [] the neurologic literature to be replete

with either a very large number of case reports or even some epidemiologic data to support that.

And that is just not the case.” Tr. 164:20–23. However, in response to my questioning, Dr.

Donofrio conceded that epidemiological studies are not the only way to associate a theory of

molecular mimicry with causation of an injury; but he stated that the presence of epidemiological

studies would be the only way to convince him. Tr. 227:24–25, 228:4–7 (emphasis added). Dr.

Petitioner’s testing was normal, but he could not speculate regarding whether that interpretation was

accurate. Tr. 259:10–15.

35

Donofrio argued that Petitioner’s literature wholly fails to mention vaccination as a possible cause

of small fiber neuropathy. Resp’t’s Ex. A at 11 (citing Pet’r’s Exs. 18, 19, 20). 81

Dr. Donofrio wrote that Dr. Steinman’s “analysis makes logical sense as a theory and

hypothesis, but its application to [ P]etitioner . . . is speculative.” Resp’t’s Ex. L at 2. Dr. Donofrio

argued Dr. Steinman could not show the homologies he identified resulted in the production of

autoantibodies against acetylcholine receptors resulting in small fiber neuropathy. See id. As

support for his opinion, Dr. Donofrio noted that Petitioner “underwent serum testing for antibodies

against the ganglionic acetylcholine receptor and none were detected.” Id. He testified that the

presence of the ganglionic acetylcholine receptor antibody would have been the best indicator of

antibodies but was negative. Tr. 166:2–3. Dr. Donofrio concluded that “[t]his result refute[d] the

presence of an autoimmune response against the ganglionic acetylcholine receptors.” Resp’t’s Ex.

L at 2. Dr. Donofrio responded to Dr. Steinman’s assertions that Petitioner’s use of Decadron could

have suppressed her immune response, resulting in a negative test. Tr. 166–167. He noted that

Petitioner received a seven-day course of Decadron on August 26, 2011, and the antibody test was

performed in November. Tr. 167:2–3. Therefore, he opined that “any steroid effect would have

been long gone to suppress the antibodies[]” by the time the test was performed. Tr. 167:4–6.

On cross-examination, Dr. Donofrio acknowledged that he failed to consider Dr. Purath’s

notation from September 16, 2011, indicating that “as of tomorrow [September 17, 2011], she will

be off the Decadron completely[.]” Tr. 215:20–25. Dr. Donofrio corrected his impression that

Petitioner was only on a seven-day course of Decadron and stated he had “no reason to dispute

that[]” Petitioner was on a 22-day course of Decadron through September 17, 2011. Tr. 216:17.

He also had no reason to dispute that the antibody test was performed on November 4, 2011,

approximately fifty days later. Tr. 216:18–25. However, he maintained that “it takes about a full

month of [using] any steroid before [it] interfere[s] with the pituitary adrenal access and

suppressive,” so Petitioner’s period of Decadron use “would not be long enough to interfere with

the [antibody] testing [fifty] days after discontinuation of use[.]” Tr. 217:2–14. He opined that

even if Petitioner was on Decadron on November 4, 2011, the antibody testing “would have still

uncovered the problem of the antibody, had it been there.” Tr. 217:23–24. However, Dr. Donofrio

could not cite to any literature to support this position. Tr. 218:2–7.

In his final report filed after the entitlement hearing, Dr. Donofrio revisited Dr. Steinman’s

“argument that corticosteroids in the form of Decadron eliminated the antibody production and for

that reason the ganglionic AChR antibodies were not measured in [ P]etitioner.” Resp’t’s Ex. N at

1. As support for his opinion, Dr. Donofrio attacked Dr. Steinman’s reliance on the Baris et al. 82

study, as figure one “shows the dynamic function of lymphocytes CD19 and lymphocyte

proliferation in children with renal failure. The figure does not show antibody levels[,] which is

the data reported in . . . [P]etitioner’s medical records (not lymphocyte activity).” Id. (citing Pet’r’s

Ex. 79 at 3). Dr. Donofrio opined that “[e]ven if figure one indirectly inferred antibody levels, the

figure[] did not show complete suppression of CD19 function that would be necessary to achieve

unrecordable antibody levels.” Resp’t’s Ex. N at 1 (citing Pet’r’s Ex. 79 at 3). He also attacked Dr.

81

Jinny Tavee, et al., Small fiber neuropathy: A burning problem, 76:5 CLEV. CL. J. MED. 297–305 (2009);

David Lacomis, Small-fiber neuropathy, 26 MUSCLE NERVE 173–88 (2002); Phillip Low, et al., Autonomic

Dysfunction in Peripheral Nerve Disease, 27 MUSCLE NERVE 646–61 (2003).

82

See Baris, et al., supra note 59, at 685–93.

36

Steinman’s use of a corticosteroid comparison chart to equate the Baris et al. study with

Petitioner’s case. Resp’t’s Ex. N at 1 (citing Pet’r’s Ex. 80). Dr. Donofrio noted that this

comparison is ineffective because “Decadron is a long acting form of corticosteroids whose

duration of action is 36 to 54 hours.” Resp’t’s Ex. N at 1. Therefore, he opined that based on the

number of days between Petitioner’s last dose of Decadron on September 17, 2011, and the date

of her testing for the titer of ganglionic acetylcholine receptor antibodies on November 4, 2011,

“Decadron blood levels would no longer be detectable and would not be expected to interfere with

antibody detection.” Id. Dr. Donofrio maintained his opinion that “the absence of antibodies

against the ganglionic acetylcholine receptor is due to their absence in the blood stream of [

P]etitioner[,]” not by her taking a 22-day course of Decadron weeks before the study. Id.

Dr. Donofrio wrote that Petitioner’s treating physicians “who judged the vaccine causal to

her condition do not appear to have known that the symptoms predated her vaccination, and they

too offer no explanation as to how the flu vaccine could cause her condition.” Resp’t’s Ex. A at

12. For example, Dr. Donofrio noted “Dr. Purath does not explain why, other than a temporal

relationship, she believes the vaccine caused [P]etitioner’s condition.” Id. Additionally, Dr.

Bernard Remler “mentioned his uncertainty regarding a causal relationship between [Petitioner’s]

symptoms and the flu vaccination.” Id. (citing Pet’r’s Ex. 6 at 9). Thus, Dr. Donofrio opined “there

is no reliable evidence showing that flu vaccine causes small fiber neuropathy[,]” or that it did so

in Petitioner’s case. Resp’t’s Ex. A at 11, 13.

Next, Dr. Donofrio discussed his opinion regarding the onset of Petitioner’s condition. Id.

at 11. Dr. Donofrio felt it was “clear from the medical records that [P]etitioner had tingling for

almost [two] weeks before the vaccination of August 23, 2011.” Id. at 11–12 (citing Pet’r’s Ex. 2

at 46); see also Resp’t’s Ex. L at 1, 4. He also indicated his conclusion is contrary to Dr. Steinman’s

theory that the onset of Petitioner’s symptoms was the “numbness and tingling in [her] face [that]

occurred within hours of the vaccination.” Resp’t’s Ex. L at 1 (citing Pet’r’s Ex. 40 at 4).

As support for his opinion, Dr. Donofrio noted that during Petitioner’s visit with Dr. Purath

on August 25, 2011, “she specifically complained of severe headaches and sporadic tingling in the

face off-and-on for [two] weeks.” Resp’t’s Ex. A at 11–12 (citing Pet’r’s Ex. 2 at 46); see also

Resp’t’s Ex. L at 1, 4. He maintained that “[t]he tingling of the face described in [Petitioner’s] first

affidavit was not taken out of context.” Resp’t’s Ex. I at 1. Rather, he stated that “[Petitioner’s]

affidavit does not acknowledge [her] symptoms [] beginning [two] weeks before the flu

vaccination.” Id. (citing Pet’r’s Ex. 5). During his testimony on cross-examination, Dr. Donofrio

admitted that Dr. Purath made a “corrective entry” on August 26, 2011, indicating Petitioner’s

“symptoms of paresthesia did not begin until . . . August 23, 2011.” Tr. 220:15, 22–24. He then

agreed that Petitioner’s “paresthesia and the numbness and tingling did not occur before August

23, 2011[.]” Tr. 221:21–24 (emphasis added). Instead, he stated that Petitioner’s symptoms “all

started after Tuesday night after she had a flu shot.” Tr. 221:5–6, 222:3–10. Dr. Donofrio further

agreed that in order to maintain his conclusion that Petitioner’s symptoms began two weeks prior

to August 2011, he would have to “disbelieve the testimony of Dr. Purath, . . . [Petitioner], . . .

[and] [Petitioner’s] mother[,]” who is also an attorney. Tr. 222:3–10.

Dr. Donofrio further noted that Petitioner’s theory relating to timing “is not scientifically

sound because the breakdown of immune tolerance requires several days to evolve[,]” not hours.

37

Resp’t’s Ex. A at 10. Dr. Donofrio testified that the four- to- six-hour timeframe proposed by Dr.

Steinman is inconsistent with what is known about how long it takes for the development of

autoimmunity. Tr. 170:17–21. Dr. Donofrio reiterated that “the immune system must process a

foreign antigen and slowly develop the signal for the antibodies to form . . . [t]his takes several

days and usually 7–10 days . . . [up] until 2–3 weeks after the vaccination.” Resp’t’s Ex. A at 10

(citing Resp’t’s Ex. G). 83 Dr. Donofrio opined that Petitioner’s “manifestation of symptoms within

a few hours [of the flu vaccine] would be too rapid in onset for the vaccine to have been the cause.”

Resp’t’s Ex. A at 12.

Dr. Donofrio expanded on Petitioner’s GBS comparison and explained “most patients with

[GBS] do not develop the initial features of the illness until 7–10 days after a prior respiratory or

gastrointestinal infection.” Id. (citing Resp’t’s Ex. G). 84 He continued that “[t]he immune system

must process a foreign antigen and slowly develop the signal for the antibodies to form that attack

the myelin that surrounds the nerves.” Resp’t’s Ex. A at 10. Dr. Donofrio cited the Langmuir et

al. 85 article, which “did not identify patients who developed symptoms of GBS on the same day as

the flu vaccination.” Id. (citing Resp’t’s Ex. G). The authors of the study noted that the onset of

GBS after the swine flu vaccine showed a neurological response “most commonly at [seven] days

and never within hours” of vaccination. Resp’t’s Ex. I at 4 (citing Resp’t’s Ex. G). Dr. Donofrio

wrote this article “does not support the concept that neurologic symptoms begin within hours of a

flu vaccine.” Resp’t’s Ex. I at 3. Based on this, Dr. Donofrio concluded that “it is inconceivable

for [Petitioner] to receive a flu vaccination on August 23, 2011, and to have her first symptom

from the flu vaccination by 4[:00] pm on the same day, if one uses the theory of

immunopathogenesis of the condition.” Resp’t’s Ex. A at 10. Therefore, Dr. Donofrio opined that

based on Dr. Steinman’s purported theory regarding timing, it is “highly unlikely that [Petitioner’s]

now proven small fiber neuropathy relates to the [flu] vaccine.” Tr. 173:24–25, 174:1.

Dr. Donofrio addressed Dr. Steinman’s explanation of rapid onset and noted that Dr.

Steinman instead relied on an article by Schonberger et al., 86 “to support the concept that neuro-

inflammation of the peripheral nervous system can begin within 0–1 days after a flu vaccination.”

Resp’t’s Ex. L at 3 (citing Pet’r’s Ex. 67 at 8; Resp’t’s Ex. M, ECF No. 63-2). The authors of the

article analyzed patients who developed GBS following the 1976–1977 flu vaccination. Pet’r’s Ex.

67 at 1. However, Dr. Donofrio explained that the issue with this study is that the authors of the

Schonberger article lumped one thousand patients together with presumed GBS following the

swine flu vaccination. Tr. 171:11–15 (citing Resp’t’s Ex. M). Dr. Donofrio testified that the

Langmuir et al. 87 study re-examined the data because the authors were concerned that each patient

in the Schonberger study did not, in fact, suffer from GBS. Tr. 171:19–20 (citing Resp’t’s Ex. G).

Instead, the authors of the Langmuir et al. study focused on patients with “extensive muscle

weakness, which is what you should have if you have [GBS].” Tr. 171:22–23. Dr. Donofrio

explained that when the authors of the Langmuir et al. study re-examined the data from the

Schonberger et al. study, the data failed to reveal “any cases of [GBS] developing in the first [three]

days following the vaccination.” Resp’t’s Ex. L at 3 (citing Resp’t’s Ex. G at 15; Pet’r’s Ex. 67 at

83

See Langmuir, et al., supra note 72, at 841–80.

84

See id.

85

Id.

86

See Schonberger, et al., supra note 71, at 105–24.

87

See Langmuir, et al., supra note 72, at 841–80.

38

8). Rather, the Langmuir et al. study found “the interval of vaccination to onset of symptoms in

days and [seven] day intervals.” Resp’t’s Ex. G at 15. He explained the authors found that “[t]here

were no patients reported on day one, two[,] or three developing the onset of the illness after the

vaccination.” Tr. 172:4–5 (citing Resp’t’s Ex. G at 15, Fig. 1). Instead, the authors found the

reported cases of GBS following a flu vaccination “did not occur until either day three or day

four.” Tr. 231:22–23. Dr. Donofrio opined that the Langmuir et al. article “is a stronger paper

because it intended to collect only people with strong evidence of GBS.” Tr. 172:8–10. Therefore,

Dr. Donofrio concluded that “if one uses this model of flu vaccination and onset of [GBS], it is

not possible to support the onset of a small fiber neuropathy within hours of a flu vaccination[]”

and Dr. Steinman’s argument must fail. Resp’t’s Ex. L at 3. However, in response to my

questioning, Dr. Donofrio testified that assuming Petitioner’s small fiber neuropathy was

autoimmune in nature (which he does not believe), the onset of symptoms could occur within a

matter of hours after a vaccine, although it is “highly unlikely” to occur. Tr. 237:18–23.

Finally, Dr. Donofrio addressed Dr. Steinman’s assertion that he did not proffer an

alternative neurologic explanation for Petitioner’s symptoms. Resp’t’s Ex. L at 1 (citing Pet’r’s

Ex. 40 at 5). Dr. Donofrio explained that in his first report, he “mentioned the possibility that [

P]etitioner’s symptoms might integrate with her long history of migraines.” Resp’t’s Ex. L at 1

(citing Resp’t’s Ex. A at 10). He reiterated that “patients with complicated migraines can have

numbness and tingling, weakness, gait imbalance, dizziness, vertigo, and even loss of

consciousness.” See id. In response to my questioning, he stated he “believe[s] there is a higher

incidence of migraine[s] in autoimmune diseases,” but the correlation is not strong. Tr. 226:14–

18. He further noted that “all [other] potential alternative causes have not been eliminated[]” for

“the causes or associations of [Petitioner’s] small fiber neuropathy[.]” Resp’t’s Ex. L at 3. In fact,

Dr. Donofrio indicated that Petitioner was never tested for other possible explanations for her small

fiber neuropathy including “Sjogren’s syndrome, [H]epatitis C, inherited neuropathies, thyroid

disease, Fabry’s disease or Tangiers disease.” Resp’t’s Ex. L at 2. He cited to several articles which

mentioned other “causes or associations of small fiber neuropathy[,]” for which Petitioner was

never tested such as “diabetes, connective tissue disorders such as lupus, HIV infection,

sarcoidosis, thyroid disease, vitamin B1, B6, [] B12 deficiency, . . . celiac disease, . . . amyloidosis,

erythromelalgia, hypertriglyceridemia, Lyme disease, leprosy, [and] restless leg syndrome[.]” Id.

at 3 (citing Pet’r’s Exs. 18, 19; Resp’t’s Exs. E, F). 88 Therefore, Dr. Donofrio opined that

“alternative explanations might be uncovered if those conditions are investigated . . . [t]hus all

potential alternative causes have not been eliminated.” Resp’t’s Ex. L at 2–3.

On cross-examination, he maintained that while these alternate explanations are very

“unlikely,” they are still possibilities. Tr. 198:9, 200:1–9. However, he would not opine that any

of those conditions caused her small fiber neuropathy because they have not been tested for. Tr.

198:19–22. On re-direct, Dr. Donofrio clarified that he was not insinuating that Petitioner suffered

from any of the other conditions, simply that such conditions have not been ruled out. Tr. 234:16–

20. Still, he could not identify a definitive alternative cause for Petitioner’s small fiber neuropathy.

Tr. 203:17–20. He maintained “there’s a cause out there somewhere,” but it has not been identified

yet. Tr. 204:14–18.

88

See supra note 77.

39

IV. Applicable Legal Standards

To receive compensation under the Vaccine Act, a petitioner must demonstrate either that:

(1) the petitioner suffered a “Table injury” by receiving a covered vaccine and subsequently

developing a listed injury within the time frame prescribed by the Vaccine Injury Table set forth

at 42 U.S.C. § 300aa-14, as amended by 42 C.F.R. § 100.3; or (2) that petitioner suffered an “off-

Table injury,” one not listed on the Table, as a result of his receiving a covered vaccine. See 42

U.S.C. §§ 300aa-11(c)(1)(C); Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321

(Fed. Cir. 2010); Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1319-20 (Fed. Cir.

2006). Petitioner does not allege a Table injury in this case; thus, she must prove that her injury

was caused-in-fact by a Table vaccine.

To establish causation-in-fact, a petitioner must demonstrate by a preponderance of the

evidence that the vaccine was the cause of the injury. 42 U.S.C. § 300aa-13(a)(1)(A). A petitioner

is required to prove that the vaccine was “not only a but-for cause of the injury but also a substantial

factor in bringing about the injury.” Moberly, 592 F.3d at 1321–22 (quoting Shyface v. Sec’y of

Health & Hum. Servs., 165 F.3d 1344, 1352–53 (Fed. Cir. 1999)).

In the seminal case of Althen v. Sec’y of the Dept. of Health & Hum. Servs, the Federal

Circuit set forth a three-pronged test used to determine whether a petitioner has established a causal

link between a vaccine and the claimed injury. See 418 F.3d 1274, 1278–79 (Fed. Cir. 2005). The

Althen test requires petitioners to set forth: “(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. To establish entitlement to compensation under the Program,

a petitioner is required to establish each of the three prongs of Althen by a preponderance of the

evidence. See id.

A petitioner who satisfies all three prongs of the Althen test has established a prima facie

showing of causation. Hammitt v. Sec’y of Health & Hum. Servs., 98 Fed. Cl. 719, 726 (2011). A

petitioner who demonstrates by a preponderance of the evidence that he suffered an injury caused

by vaccination is entitled to compensation unless the respondent can demonstrate by a

preponderance of the evidence that the injury was caused by factors unrelated to the vaccination.

See Althen, 418 F.3d at 1278; Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d 543, 547 (Fed.

Cir. 1994). Consequently, when and if Petitioner establishes a prima facie case, the burden then

shifts to the government to prove that an alternative cause, unrelated to the administration of the

vaccine, was the “sole substantial factor” in causing the alleged injury. de Bazan, 539 F.3d at 1354;

see also Hammitt, 98 Fed. Cl. at 726 (explaining that the respondent’s burden is to show that the

“factor unrelated” was the “sole substantial factor” in causing the injury). Additionally, a factor

unrelated “may not include ‘any idiopathic, unexplained, unknown, hypothetical, or

undocumentable cause, factor, injury, illness or condition.’” 42 U.S.C. § 300aa-13(a)(2); see also

Doe v. Sec’y of Health & Hum. Servs., 601 F.3d 1349 (Fed. Cir. 2010) (opining that an idiopathic

diagnosis cannot be a “factor unrelated,” as it is idiopathic).

40

V. Discussion

A. Petitioner’s Diagnoses

As a factual predicate to proving vaccine-causation, it is Petitioner’s burden to demonstrate

that she actually suffers from the injuries alleged to have been caused by the August 23, 2011 flu

vaccination. See Hibbard v. Sec’y of Health & Hum. Servs., 698 F.3d 1358, 1364-65 (Fed. Cir.

2012); Lombardi v. Sec’y of Health & Hum. Servs., 656 F.3d 1343, 1353 (Fed. Cir. 2011);

Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1346 (Fed. Cir. 2010) (finding that

in a case where the injury itself is in dispute, it is appropriate for the special master to “first

determine which injury was best supported by the evidence presented in the record before applying

the Althen test so that the special master could subsequently determine causation relative to the

injury.”). The Vaccine Act provides that a treating physician’s diagnosis “shall not be binding on

the special master or court,” but that the special master should consider the “entire record and the

course of the injury” when evaluating how much weight to afford a treating physician’s diagnosis.

42 U.S.C. § 300aa-13(b)(1). In this case, Petitioner must show by preponderant evidence that she

suffers from small fiber neuropathy and small vessel vasculitis. See Broekelschen, 618 F.3d at

1349; see also Lombardi, 656 F.3d at 1353.

I. Small Fiber Neuropathy

Petitioner has established by preponderant evidence that she suffers from small fiber

neuropathy. A majority of Petitioner’s treating physicians diagnosed her with small fiber

neuropathy. For example, Dr. Marquez de Leon’s notes from November 4, 2011, indicate that he

originally diagnosed Petitioner with small fiber neuropathy. Pet’r’s Ex. 4 at 542. Drs. Purath and

Barboi agreed with Dr. Marquez de Leon’s diagnosis of small fiber neuropathy and individually

arrived at the same conclusion. Dr. Purath noted on January 16 and April 20, 2012, that Petitioner

suffered from small fiber neuropathy. Pet’r’s Ex. 2 at 23–26. Dr. Purath indicated that Petitioner’s

numbness and pain in the arms, which flared with stress, “is not uncommon with

polyneuropathy[.]” Id. at 26. Dr. Barboi noted on February 6, 2014, that Petitioner’s “history

would fit a small fiber neuropathy diagnosis[,] but physical examination does not aid in

localization given the inconsistent nature of her sensory exam and non-dermatomal distribution.”

Pet’r’s Ex. 9 at 13. Nonetheless, Dr. Barboi agreed with Dr. Marquez de Leon’s diagnosis. Id.

Petitioner’s experts, Drs. Younger and Steinman, agreed with Petitioner’s treating

physicians’ diagnosis of small fiber neuropathy. Indeed, Dr. Steinman maintained this opinion

throughout his reports and testimony. While Respondent’s expert, Dr. Donofrio, originally opined

that Petitioner’s symptoms were not consistent with the diagnosis of small fiber neuropathy, he

later conceded that there is pathologic evidence showing that Petitioner suffers from small fiber

neuropathy. Tr. 200:22–25, 201:1. In fact, he stated that her abnormal symptom presentation

“carried less weight” in light of Petitioner’s other evidence supporting her small fiber neuropathy

diagnosis. Tr. 207:1–15. Therefore, an extensive discussion regarding Petitioner’s symptom

presentation is unnecessary for the diagnosis analysis.

Petitioner’s small fiber neuropathy diagnosis was also confirmed by direct evidence.

Following Dr. Donofrio’s criticism regarding the lack of a biopsy performed on Petitioner, she

41

underwent a skin biopsy to confirm her small fiber neuropathy diagnosis. The results of

P

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