Matthews v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 19-414V

Filed: December 9, 2021

Reissued for Publication: January 31, 20221

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

*

JOHNNY MATTHEWS, *

Petitioner, *

*

v. *

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

Respondent. *

*

*

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

Renée J. Gentry, Vaccine Injury Clinic, George Washington University Law

School, Washington, DC, for petitioner.

Ryan D. Pyles, Senior Trial Attorney, Torts Branch, Civil Division, United States

Department of Justice, Washington, DC, for respondent. With him were Heather L.

Pearlman, Deputy Director, Torts Branch, Civil Division, C. Salvatore D’Alessio, Acting

Director, Torts Branch, Civil Division, and Brian M. Boynton, Acting Assistant Attorney

General, Civil Division.

OPINION

HORN, J.

On March 19, 2019, petitioner Johnny Matthews filed a pro se petition in this court

under the National Childhood Vaccine Injury Act 42 U.S.C. § 300aa-10 (2018). Petitioner

claimed he “received the Influenza Vaccine on or around November 10, 2013, at the

emergency room, Carolinas Hospital System in Florence, South Carolina,” and that “[his]

GBS [Guillain-Barré Syndrome] was caused-in-fact by the Influenza Vaccine

administered on November 10, 2013.” As a result, “[p]etitioner respectfully seeks an

award in accordance with the [National Childhood Vaccine Injury] Act, including but not

limited to an award of pain and suffering, out-of-pocket medical expenses, and costs.”

1

This Opinion was issued under seal on December 9, 2021. The parties did not propose

any redactions to the December 9, 2021 Opinion, and the court, therefore, issues the

Opinion without redactions for public distribution.

Initially, petitioner attempted to proceed in forma pauperis. He subsequently obtained

counsel. From October 14, 2019 to September 29, 2020, petitioner filed numerous

medical records pertaining to his hospital visits from 2013 and 2014. On February 23,

2021, petitioner moved for a finding of fact to prove that “he received an influenza

vaccination on or about November 10, 2013.”2 Respondent opposed the motion and

cross-moved for dismissal, arguing that petitioner had failed to produce a record of

vaccine administration.

On August 19, 2021, after reviewing the extensive medical records that petitioner

submitted, Special Master Horner dismissed the petition stating there was “not

preponderant evidence that petitioner received a vaccination covered by this program.”

Matthews v. Sec’y of Health & Human Servs., No 19-414V, 2021 WL 4190265, at *1 (Fed.

Cl. Aug. 19, 2021). On September 17, 2021, after the public version of the Special

Master’s decision was released, petitioner filed a motion for review in this court, claiming

that “[t]he Special Master abused his discretion by characterizing Petitioner’s medical

records in such a way as to give them dispositive weight against petitioner as to the issue

of vaccination.” The motion for review was assigned to the undersigned.

In relevant part, the facts in the record depict the following: On October 13, 2013,

petitioner presented himself to the Carolinas Hospital System emergency department in

Florence, South Carolina for chronic lower back pain. Petitioner was diagnosed with acute

lumbar strain. A screening assessment from this visit indicated “no” under the prompt “flu

vaccine this season.” When petitioner returned to the Carolinas Hospital System

emergency department on October 28, 2013, for scabies, his screening assessment listed

the same response of “no” to the prompt “flu vaccine this season.” Less than two weeks

later, on November 10, 2013, petitioner returned to the Carolinas Hospital System

emergency department for a swollen painful toe assessed as a right-toe contusion. This

time, the prompt “flu vaccine this season” on the screening assessment elicited a printed

“yes,” without any additional details such as when or where the vaccine was administered.

The billing statement for services provided during this visit did not include a charge for an

influenza vaccination.

On November 13, 2013, petitioner presented to the McLeod Regional Medical

Center emergency department in Florence, South Carolina for cough, congestion, and

pain on his right side. A laboratory report dated November 14, 2013, showed petitioner

tested negative for both the Influenza A and B antigen tests. A billing statement from the

November 13, 2013, visit to the McLeod Regional Medical Center showed the petitioner

was billed for antigen tests, but not for an influenza vaccination.

On November 18, 2013, petitioner returned to the Carolinas Hospital System

emergency department for a severe right forearm laceration sustained from a knife attack.

Petitioner was admitted for surgery to repair his forearm. A screening assessment from

2 Petitioner states he received the influenza vaccination at issue “on or around November

10, 2013” in his petition. In his motion for finding of fact, however, petitioner states he

received the influenza vaccination “on or about November 10, 2013.”

2

this visit listed “yes” as the response to the prompt “flu vaccine this season,” again with

no elaboration of when or where an influenza vaccine had been administered. The billing

statement from this stay reflected no billing for an influenza vaccination.

Petitioner alleges that a nurse administered an influenza vaccination in the

emergency room at Carolinas Hospital System emergency department during his

hospitalization starting on November 18, 2013. Petitioner claims a nurse administered the

influenza vaccination in his left arm while another nurse sewed up his right arm after the

surgery to repair his laceration. He claims the influenza vaccination occurred in the

Carolinas Hospital System emergency department. This is inconsistent with the report

from petitioner’s surgery, which states that the surgery, along with the subsequent

stapling, splintering, dressing, and wrapping of his wound, were performed in an operating

room while he was under anesthesia and intubated. The report further states that, after

his surgery, petitioner was transferred to a Carolinas Hospital System post-anesthesia

care unit, not to the emergency department.

Petitioner was discharged from the Carolinas Hospital System on November 21,

2013. Petitioner’s Patient Discharge Summary had “No” printed next to the prompt

“Influenza Admin.” A form in petitioner’s medical records signed by a nurse and dated

November 21, 2013, marked that petitioner refused vaccination. The form also included

an unchecked box next to the prompt “Previously immunized this flu season.” The billing

statement from petitioner’s November 18-21, 2013, hospital stay did not include a charge

for an influenza vaccination.

On November 25, 2013, petitioner returned to the Carolinas Hospital System

emergency department for moderate numbness and tingling in his hands and legs. He

was assessed with hyperventilation syndrome. The screening assessment from this visit

indicated “no” in response to the prompt “flu vaccine this season.” As with the previous

visits to the Carolinas Hospital System, the billing statement for services during this visit

reflected no charge for a vaccination. On November 27, 2013, petitioner returned to the

McLeod Regional Medical Center emergency department for anxiety, chest pain,

shortness of breath, and numbness. His immunizations were noted as “current” without

any specification. Petitioner was diagnosed with numbness of the arms and legs, after

which he left the hospital against medical advice.

On November 28, 2013, petitioner returned to the Carolinas Hospital System

emergency department, at which time he presented with difficulty standing and walking.

Petitioner was assessed with neuropathy, after which he agreed to follow up with a

neurologist. Once again, the screening prompt “flu vaccine this season” elicited a “no.”

Similar to the other billing statements, the billing statement from this visit showed no

charge for a vaccination. On November 29, 2013, petitioner returned to the McLeod

Regional Medical Center for what was diagnosed as GBS. Upon admission, medical

records again indicated he had not received an influenza vaccine for the 2013-2014 flu

season. An order was entered to administer an influenza vaccination at discharge.

Petitioner then consulted with a neurologist on December 6, 2013. While making no

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reference to any vaccination history, the neurologist diagnosed petitioner with probable

GBS, which was later confirmed.

A notation in petitioner’s medical records dated December 12, 2013, instructed a

nurse at McLeod Regional Medical Center to call the Carolinas Hospital System to

confirm whether petitioner had received an influenza shot during his prior admission. This

notation was followed by the word “done,” with no date shown. Clinical notes from that

same date state a pharmacist at the Carolinas Hospital System confirmed “there are no

records of pt [patient] receiving the vaccination.”

On December 21, 2013, a notation in the petitioner’s medical record from the

McLeod Regional Medical Center indicated the influenza vaccine should be added to

petitioner’s list of allergies. This notation was followed by another stating petitioner had a

“recent shot followed by Guillain-Barre Syndrome.” The basis for these notations is

unknown as the clinic notes from December 21, 2013, did not indicate who or which

record provided this information. Following the notations regarding an allergy to the

Influenza vaccine, petitioner’s medical record was updated to include the vaccine among

his allergies. The order for vaccination issued on November 29, 2013, was then

discontinued.

On January 7, 2014, a consultation for pain management indicated no known drug

allergies. Petitioner’s medical records further indicated that he “is now no longer a

candidate for the flu shot.” From this consultation on, petitioner reported to other health

providers that his GBS was caused by an influenza vaccination and the vaccine continued

to be listed as an allergy. On January 18, 2014, before his discharge from the McLeod

Regional Medical Center, petitioner was recorded as having reported to a nurse that he

was previously vaccinated. On January 19, 2014, petitioner’s medical records reflected a

severe allergy to the influenza vaccine. On February 24, 2014, petitioner’s medical record

indicated that “he got GBS from getting a flu shot.”

As noted above, petitioner filed his original petition in this case on March 19, 2019,

initially pro se. On March 20, 2019, a notice of the entry of appearance by Heather

Pearlman as attorney of record for respondent was filed. On March 21, 2019, the case

was assigned to Special Master Herbrina Sanders. On August 30, 2019, the case was

reassigned to Special Master Daniel Horner. On March 25, 2019, petitioner filed a motion

to proceed in forma pauperis, which, according to the docket, was terminated on March

26, 2019. Petitioner appealed and, on March 28, 2019, Special Master Herbrina granted

the motion to proceed in forma pauperis. After Ryan Pyles filed a notice of appearance

for respondent, Renée Gentry filed a motion to substitute as petitioner’s attorney on April

29, 2019, which the Special Master granted. Currently, Ms. Gentry, as part of the George

Washington University Law School Vaccine Injury Clinic, remains the attorney of record

for petitioner. On May 8, 2019, an order to vacate the previous order granting petitioner

in forma pauperis status was filed.

On October 14, 2019, petitioner filed his extensive medical records from the

Carolina Hospital, the Carolina Pines Regional Medical Center, the McLeod Regional

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Medical Center, and HopeHealth, as exhibits before the Special Master. The exhibits also

included an affidavit detailing petitioner’s own account of his vaccination status. In his

affidavit, petitioner claimed “he received the influenza vaccination on or about November

18, 2013.” On March 27, 2020, petitioner filed yet additional medical records from the

McLeod Regional Medical Center. On April 14, 2020, petitioner also filed further medical

records from the McLeod Regional Medical Center. On August 16, 2020, petitioner once

more filed further documents regarding billing at the Carolinas Hospital Center and the

McLeod Regional Medical Center and, on September 29, 2020, petitioner filed additional

medical records from the McLeod Regional Medical Center. After all these medical

records were filed, the parties filed various status reports, and on December 17, 2020,

Special Master Horner gave petitioner another chance to file any “additional evidence of

additional evidence of his alleged injury-causing vaccination.”

On February 23, 2021, petitioner filed a motion for ruling on the record. As noted

above, petitioner again requested that the Special Master issue a finding of fact that he

had “received an influenza vaccination on or about November 10, 2013.” In the motion

for ruling on the record, petitioner noted that one of his many screening assessments did

indicate that he had received an influenza vaccination for the 2013-2014 flu season. Most

of petitioner’s motion focused on the recorded doctors’ notes that associated his GBS

with an influenza vaccination and the adverse health effects he suffers as a result.

Petitioner contended that “the weight of the circumstantial evidence” “supports a finding

that Petitioner received the influenza vaccination on or about November 10, 2013.”

On March 9, 2021, respondent filed a response to the petitioner’s motion.

Respondent did not oppose a finding of fact by the Special Master, but answered that the

record did not establish by a preponderance of the evidence that petitioner had in fact

received the influenza vaccine and, therefore, respondent moved for dismissal of

petitioner’s claim for failure to demonstrate the receipt of an influenza vaccine and when

it was received. Respondent, therefore, cross-moved for dismissal of petitioner’s claim

for failure to establish, as a threshold matter, that petitioner had indeed received an

influenza vaccination for the year in question. Respondent focused on the numerous

inconsistencies in petitioner’s hospital screening assessments prior to the GBS diagnosis,

most of which indicated that petitioner had not received a vaccine for the 2013-2014 flu

season. Respondent argued that the doctors’ notes pertaining to a linkage between

petitioner’s GBS diagnosis and an influenza vaccine administration were not sufficient to

establish petitioner’s claim. Respondent noted that the medical record also indicated that

petitioner was struggling with substance abuse issues. Respondent claimed that due to

the internal inconsistencies in petitioner’s medical records and those between the medical

records and petitioner’s affidavit detailing the vaccine administration, petitioner failed to

provide preponderant evidence that a vaccination had been administered to the petitioner

as alleged.

On March 16, 2021, petitioner filed a reply brief and once again maintained that he

had “received the influenza vaccination on or about November 10, 2013.” Petitioner

argued that direct medical documentation of the vaccination is not required to meet the

preponderance of the evidence standard. He claimed the records reflecting that his GBS

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followed an influenza vaccination, and those indicating he was allergic to the influenza

vaccine, were more important than the earlier inconsistent screening assessments.

Petitioner also noted that medical staff had been critical of him due to what the staff

viewed as “drug-seeking behavior.” He acknowledged that he was not a sympathetic

victim, but argued that this was irrelevant to his case. Petitioner again asserted that, when

viewing the record as a whole, there was preponderant evidence that he had received an

influenza vaccination.

On August 19, 2021, Special Master Horner issued an appropriately reasoned

decision dismissing the petition. See generally Matthews v. Sec’y of Health & Human

Servs., 2021 WL 4190265. The Special Master wrote:

Medical records and/or statements of a treating physician's views do not per

se bind the special master to adopt the conclusions of such an individual,

even if they must be considered and carefully evaluated. §300aa-13(b)(1);

Snyder v. Sec’y of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009)

(“there is nothing . . . that mandates that the testimony of a treating physician

is sacrosanct—that it must be accepted in its entirety and cannot be

rebutted”). The views of treating physicians should also be weighed against

other, contrary evidence also present in the record. Hibbard v. Sec’y of

Health & Human Servs., 100 Fed. Cl. 742, 749 (2011) (not arbitrary or

capricious for special master to weigh competing treating physicians’

conclusions against each other), aff’d, 698 F.3d 1355 (Fed. Cir. 2012);

Caves v. Sec’y of Health & Human Servs., 100 Fed. Cl. 119, 136 (2011),

aff’d, 463 Fed. Appx. 932 (Fed. Cir. 2012); Veryzer v. Sec’y of Health &

Human Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec.

Mstr. Apr. 29, 2011), mot. for review denied, 100 Fed. Cl. 344, 356 (2011),

aff’d without opinion, 475 Fed. Appx. 765 (Fed. Cir. 2012).

Matthews v. Sec’y of Health & Human Servs., 2021 WL 4190265, at *7. When addressing

the medical notation that petitioner’s GBS occurred after receiving an influenza shot, the

Special Master wrote further:

The source of information ultimately relied upon in subsequently noting to

the contrary that petitioner’s GBS followed a flu vaccine is not documented

(Ex. 9, p. 294); however, to the extent that source of information would have

been petitioner himself, his contemporaneous medical records document,

as explained above, that he already had an established pattern of

inconsistently reporting whether he had received a flu vaccine that year.

Accordingly, reliance on a single, additional instance of this unreliable

reporting by the MRMC treaters does not provide any meaningful evidence

buttressing petitioner’s claim, especially where the treaters initially arrived

at their diagnosis [of GBS] without that information and then tried and failed

to confirm the vaccination. Moreover, given that MRMC [McLeod Regional

Medical Center] confirmed that Carolinas Hospital had no record of

vaccination, the later notation that petitioner’s GBS was preceded by a flu

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vaccine is conspicuous for the lack of any additional detail or indication of

when petitioner purportedly received the vaccination.

Id. at *8 (capitalization in original; brackets added). Special Master Horner cited the

various inconsistencies in the record, stating: “Additionally, these inconsistent notations

were generated at two different facilities on nine different occasions, and both confirm

and deny that petitioner was vaccinated. Many of these notations would have to be

incorrect to allow for the record to support any of petitioner’s various allegations.” Id. at

*6. Due to these inconsistencies, the Special Master stated that “neither petitioner’s

medical records nor his affidavit, alone or in combination, provide preponderant evidence

that any flu vaccination was administered to petitioner in the days, weeks, or months prior

to the onset of his GBS.” Id. at *9.

Special Master Horner determined: “I find that there is not preponderant evidence

that petitioner received a vaccination covered by this program and therefore dismiss this

petition.” Id. at *1. As noted above, on September 17, 2021, petitioner filed a motion for

review in this court. The motion for review was assigned to the undersigned. On October

18, 2021, respondent filed a response to petitioner’s motion for review.

DISCUSSION

When reviewing a Special Master’s decision, the assigned Judge of the United

States Court of Federal Claims shall:

(A) uphold the findings of fact and conclusions of law of the special master

and sustain the special master's decision,

(B) set aside any findings of fact or conclusions of law of the special

master found to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law and issue its own findings of fact and conclusions

of law, or

(C) remand the petition to the special master for further action in

accordance with the court's direction.

Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 867 (Fed. Cir. 1992); see also

42 U.S.C. § 300aa-12(e)(2) (2018). The legislative history of the Vaccine Act states: “The

conferees have provided for a limited standard for appeal from the [special] master’s

decision and do not intend that this procedure be used frequently, but rather in those

cases in which a truly arbitrary decision has been made.” H.R. Conf. Rep. No. 101-386,

at 516–17, reprinted in 1989 U.S.C.C.A.N. 3018, 3120.

In Markovich v. Secretary of Health & Human Services, the United States Court of

Appeals for the Federal Circuit wrote, “[u]nder the Vaccine Act, the Court of Federal

Claims reviews the Chief Special Master's decision to determine if it is ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the law.’ 42 U.S.C.

§ 300aa-12(e)(2)(B).” Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353,

7

1355-56 (Fed. Cir.), cert. denied, 552 U.S. 816 (2007); see also K.G. v. Sec’y of Health

& Human Servs., 951 F.3d 1374, 1379 (Fed. Cir. 2020); Oliver v. Sec’y of Health & Human

Servs., 900 F.3d 1357, 1360 (Fed. Cir. 2018) (citing Milik v. Sec’y of Health & Human

Servs., 822 F.3d 1367, 1375-76 (Fed. Cir. 2016)); Deribeaux ex rel. Deribeaux v. Sec’y

of Health & Human Servs., 717 F.3d 1363, 1366 (Fed. Cir.), reh’g and reh’g en banc

denied (Fed. Cir. 2013) (The United States Court of Appeals for the Federal Circuit stated

that “we ‘perform[ ] the same task as the Court of Federal Claims and determine[ ] anew

whether the special master’s findings were arbitrary or capricious.’” (brackets in original)

(quoting Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.

2000))); W.C. v. Sec’y of Health & Human Servs., 704 F.3d 1352, 1355 (Fed. Cir. 2013);

Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355, 1363 (Fed. Cir. 2012); de

Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed. Cir. 2008); Avera

v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir.) (“Under

the Vaccine Act, we review a decision of the special master under the same standard as

the Court of Federal Claims and determine if it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” (quoting 42 U.S.C. § 300aa-

12(e)(2)(B))), rehearing and rehearing en banc denied (Fed. Cir. 2008); Althen v. Sec’y

of Health & Human Servs., 418 F.3d at 1277; Faup v. Sec’y of Health & Human Servs.,

147 Fed. Cl. 445, 458 (2019); Dodd v. Sec’y of Health & Human Servs., 114 Fed. Cl. 43,

47 (2013); Taylor v. Sec'y of Health & Human Servs., 108 Fed. Cl. 807, 817 (2013). The

abuse of discretion standard is applicable when the special master excludes evidence or

limits the record upon which he or she relies. See Munn v. Sec’y of Health & Human

Servs., 970 F.2d at 870. The United States Court of Appeals for the Federal Circuit has

indicated that:

These standards vary in application as well as degree of deference. Each

standard applies to a different aspect of the judgment. Fact findings are

reviewed by us, as by the Claims Court judge, under the arbitrary and

capricious standard; legal questions under the “not in accordance with law”

standard; and discretionary rulings under the abuse of discretion standard.

The latter will rarely come into play except where the special master

excludes evidence.

Id. at 871 n.10; see also Carson ex rel. Carson v. Sec’y of Health & Human Servs., 727

F.3d 1365, 1369 (Fed. Cir. 2013); Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human

Servs., 717 F.3d at 1366; W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1355;

Griglock v. Sec’y of Health & Human Servs., 687 F.3d 1371, 1374 (Fed. Cir. 2012); Porter

v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011) (citing

Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1345) (explaining that the

reviewing court “do[es] not reweigh the factual evidence, assess whether the special

master correctly evaluated the evidence, or examine the probative value of the evidence

or the credibility of the witnesses—these are all matters within the purview of the fact

finder”) reh’g and reh’g en banc denied (Fed. Cir. 2012); Dodd v. Sec’y of Health & Human

Servs., 114 Fed. Cl. at 56. “[T]he special masters have broad discretion to weigh evidence

and make factual determinations.” Dougherty v. Sec'y of Health & Human Servs., 141

Fed. Cl. 223, 229 (2018). As explained by the federal circuit:

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With regard to both fact-findings and fact-based conclusions, the key

decision maker in the first instance is the special master. The Claims Court

owes these findings and conclusions by the special master great deference

– no change may be made absent first a determination that the special

master was “arbitrary and capricious.”

Munn v. Sec’y of Health & Human Servs., 970 F.2d at 870; see also 42 U.S.C. § 300aa-

12(e)(2)(B).

Generally, “if the special master ‘has considered the relevant evidence of record,

drawn plausible inferences and articulated a rational basis for the decision, reversible

error will be extremely difficult to demonstrate.’” Hibbard v. Sec’y of Health & Human

Servs., 698 F.3d at 1363 (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d

1518, 1528 (Fed. Cir. 1991)); see also Porter v. Sec'y of Health & Human Servs., 663

F.3d at 1253-54; Lampe v. Sec'y of Health & Human Servs., 219 F.3d at 1360; Avila ex

rel. Avila v. Sec'y of Health & Human Servs., 90 Fed. Cl. 590, 594 (2009); Dixon v. Sec'y

of Health & Human Servs., 61 Fed. Cl. 1, 8 (2004) (“The court's inquiry in this regard must

therefore focus on whether the Special Master examined the ‘relevant data’ and

articulated a ‘satisfactory explanation for its action including a rational connection

between the facts found and the choice made.’” (quoting Motor Vehicle Mfrs. Association

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (quoting Burlington Truck Lines,

Inc. v. United States, 371 U.S. 156, 168 (1962)))).

As noted by the United States Court of Appeals for the Federal Circuit:

Congress assigned to a group of specialists, the Special Masters within the

Court of Federal Claims, the unenviable job of sorting through these painful

cases and, based upon their accumulated expertise in the field, judging the

merits of the individual claims. The statute makes clear that, on review, the

Court of Federal Claims is not to second guess the Special Masters [sic]

fact-intensive conclusions; the standard of review is uniquely deferential for

what is essentially a judicial process. Our cases make clear that, on our

review of the judgment of the Court of Federal Claims, we remain equally

deferential. That level of deference is especially apt in a case in which the

medical evidence of causation is in dispute.

Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1366-

67 (modification in original) (quoting Hodges v. Sec’y of Health & Human Servs., 9 F.3d

958, 961 (Fed. Cir. 1993)); Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at

1363; Locane v. Sec’y of Health & Human Servs., 685 F.3d 1375, 1380 (Fed. Cir. 2012).

The United States Court of Appeals for the Federal Circuit has explained that the

reviewing courts “‘do not sit to reweigh the evidence. [If] the special master's conclusion

[is] based on evidence in the record that [is] not wholly implausible, we are compelled to

uphold that finding as not being arbitrary and capricious.’” Deribeaux ex rel. Deribeaux v.

Sec’y of Health & Human Servs., 717 F.3d at 1367 (modification in original) (quoting

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Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1363); see also K.G. v. Sec’y of

Health & Human Servs., 951 F.3d at 1379 (“With respect to factual findings, however, we

will uphold the special master's findings of fact unless they are clearly erroneous.”

(citing Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278)); Hibbard v. Sec’y of

Health & Human Servs., 698 F.3d at 1363 (citing Cedillo v. Sec’y of Health & Human

Servs., 617 F.3d at 1338).

The United States Court of Appeals for the Federal Circuit has explained that:

A petitioner can establish causation in one of two ways. Id. [Broekelschen

v. Sec'y of Health & Human Servs., 618 F.3d at 1341] If the petitioner shows

that he or she received a vaccination listed on the Vaccine Injury Table, 42

U.S.C. § 300aa–14, and suffered an injury listed on that table within a

statutorily prescribed time period, then the Act presumes the vaccination

caused the injury. Andreu [ ex rel. Andreu] v. Sec'y of Health & Human

Servs., 569 F.3d 1367, 1374 (Fed. Cir. 2009). Where, as here, the injury is

not on the Vaccine Injury Table, the petitioner may seek compensation by

proving causation-in-fact.

Milik v. Sec’y of Health & Human Servs., 822 F.3d at 1379 (citing Andreu ex rel. Andreu

v. Sec’y of Health & Human Servs., 569 F.3d at 1374); see also W.C. v. Sec’y of Health

& Human Servs., 704 F.3d at 1356; Broekelschen v. Sec’y of Health & Human Servs.,

618 F.3d at 1346; Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1356 (Fed.

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2006), cert. denied, 551 U.S. 1102 (2007);

Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1147-48 (Fed. Cir. 1992); Faup

v. Sec’y of Health & Human Servs., 147 Fed. Cl. at 458; Dodd v. Sec’y of Health & Human

Servs., 114 Fed. Cl. at 50; Paluck v. Sec’y of Health & Human Servs., 104 Fed. Cl. 457,

467-68 (2012); Fesanco v. Sec’y of Health & Human Servs., 99 Fed. Cl. 28, 31 (2011).

When proving eligibility for compensation for a petition under the Vaccine Act, such

as the one filed by Mr. Matthews, a petitioner must establish by a preponderance of the

evidence that he received a vaccine set forth in the Vaccine Injury Table and that injury

caused by the vaccination occurred within the required amount of time. See Althen v.

Sec’y of Health & Human Servs., 418 F.3d at 1278; see also 42 U.S.C. § 300aa-

11(c)(1)(A). Regarding the preponderance of the evidence standard, the Vaccine Act

requires “‘the trier of fact to believe that the existence of a fact is more probable than its

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

the [judge] of the fact’s existence.’” Moberly ex rel. Moberly v. Sec’y of Health and Human

Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (quoting Concrete Pipe & Prods. of Cal.,

Inc. v. Construction Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993)). In

demonstrating this preponderance of evidence, petitioner may not rely on his or her

testimony alone to establish preponderant evidence of vaccine administration. According

to the Vaccine Act, “[t]he special master or court may not make such a finding based on

the claims of a petitioner alone, unsubstantiated by medical records or by medical

opinion.” 42 U.S.C. § 300aa-13(a)(1).

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In weighing the evidence pertaining to proof of vaccination, the Special Master has

discretion to determine the relative weight of the evidence presented, including

contemporaneous medical records and oral testimony. See Burns v. Sec’y of Health &

Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (finding that the Special Master had

thoroughly considered evidence in record, had discretion not to hold an additional

evidentiary hearing); see also Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at

1368 (finding it was not arbitrary or capricious for the Special Master to weigh diagnoses

of different treating physicians against one another, including when their opinions

conflict).

“Clearly it is not then the role of this court to reweigh the factual evidence,

or to assess whether the special master correctly evaluated the evidence.

And of course we do not examine the probative value of the evidence or the

credibility of the witnesses. These are all matters within the purview of the

fact finder.”

Dodd v. Sec’y of Health & Human Servs., 114 Fed. Cl. at 56 (quoting Munn v. Sec’y of

Health & Human Servs., 970 F.2d at 870 n.10); see also Rich v. Sec’y of Health & Human

Servs., 129 Fed. Cl. 642, 655 (2016); Paluck v. Sec'y of Health & Human Servs., 104

Fed. Cl. at 467 (“So long as those findings are ‘based on evidence in the record that [is]

not wholly implausible,’ they will be accepted by the court.” (quoting Lampe v. Sec’y of

Health & Human Servs., 219 F.3d at 1363 (alteration in original))). “Determinations

subject to review for abuse of discretion must be sustained unless ‘manifestly erroneous.’”

Heddens v. Sec’y of Health & Human Servs., 143 Fed. Cl. 193 (2019) (quoting Piscopo

v. Sec’y of Health & Human Servs., 66 Fed. Cl. 49, 53 (2005) (citations omitted)).

Additionally, a Special Master is “not required to discuss every piece of evidence

or testimony in [his or] her decision.” Snyder ex rel. Snyder v. Sec’y of Health & Human

Servs., 88 Fed. Cl. 706, 728 (2009) (brackets added). As explained by a Judge of the

United States Court of Federal Claims:

“[W]hile the special master need not address every snippet of evidence

adduced in the case, see id. [Doe v. Sec'y of Health & Human Servs., 601

F.3d 1349, 1355 (Fed. Cir. 2010)], he [or she] cannot dismiss so much

contrary evidence that it appears that he ‘simply failed to consider genuinely

the evidentiary record before him [or her].’” (brackets added)

(quoting Campbell v. Sec’y of Health & Human Servs., 97 Fed. Cl. 650, 668

(2011))).

A Special Master is required to acknowledge that “the purpose of the Vaccine Act’s

preponderance standard is to allow the finding of causation in a field bereft of complete

and direct proof of how vaccines affect the human body,” even if the possible link between

the vaccine and the injury is "hitherto unproven.” Althen v. Sec’y of Health & Human

Servs., 418 F.3d at 1280; see Porter v. Sec’y of Health & Human Servs., 663 F.3d at

1261. In that vein, “close calls regarding causation are resolved in favor of injured

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claimants.” Id. (citing Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548-49

(Fed. Cir. 1994)).

With regard to the Special Master’s weighing of evidence when testimony conflicts

with contemporaneous medical records, a Special Master generally should afford

contemporaneous medical records greater weight than conflicting testimony offered after

the fact. See Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (citing

United States v. United States Gypsum Co., 333 U.S. 364, 396 (1948) (“It has generally

been held that oral testimony which is in conflict with contemporaneous documents is

entitled to little evidentiary weight.”)), aff’d, 968 F.2d 1226 (Fed. Cir.), reh’g denied (Fed.

Cir. 1992). This is because medical records, created contemporaneously with the events

they describe are presumed to be accurate and complete. See Cucuras v. Sec’y of Health

& Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

In his motion for review, petitioner claims that:

It is not Mr. Matthews’ burden to explain the inconsistency in the records,

and it was an abuse of discretion on the part of the Special Master to require

it and specifically, to use Mr. Matthews inability to explain it as the lens

through which he viewed the evidence.

Petitioner further claims that “[t]he Special Master abused his discretion by

characterizing Petitioner’s medical records in such a way as to give them dispositive

weight against petitioner as to the issue of vaccination.” Petitioner asserted this

characterization led the Special Master to conclude there was not preponderant evidence

that a vaccination occurred. Petitioner maintained that he had demonstrated, by

preponderance of the evidence, that he had received the influenza vaccine, as referenced

in his medical records. The Court notes, however, that from the time Ryan Pyles filed a

notice of appearance to represent respondent, Mr. Matthews was no longer appearing

pro se and, during the majority of the proceedings in this case, he was represented.

As explained above, in this case, petitioner has the burden to demonstrate, by

preponderant evidence, that his medical records establish that he had received the

influenza vaccination at a time that it could be recognized by the Vaccine Compensation

Injury Program as causation for petitioner’s GBS. See 300aa-11(c)(1). The Vaccine Act

indicates that “[t]he special master or court may not make such a finding based on the

claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.”

42 U.S.C. § 300aa-13(a)(1) If the Special Master finds that the petitioner has not met his

burden and this decision was not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law, the reviewing court shall uphold that

decision. See 42 U.S.C. § 300aa-12(e)(2).

The Special Master found that petitioner failed to demonstrate, by preponderant

evidence, that he had received an influenza vaccination in the months before the onset

of his GBS. The Special Master’s decision explained:

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Considering the record as a whole, several aspects of petitioner’s medical

history warrant discussion, namely: inconsistent references to petitioner’s

vaccination status prior to onset of his GBS; the implausibility of the more

detailed account of vaccination provided by petitioner; references to efforts

made to ascertain petitioner’s vaccination status during his hospitalization

for his GBS; and the undisclosed basis for the references to petitioner

becoming ineligible for future flu vaccinations. Considering the record as a

whole, there is not preponderant evidence that petitioner received a flu

vaccination at any point in the days, weeks, or months preceding onset of

his GBS.

Matthews v. Sec’y of Health & Human Servs., 2021 WL 4190265, at *6.

After careful review of the record and the Special Master’s decision to dismiss Mr.

Matthews’ petition, the court finds that Special Master Horner’s decision was not arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. See 42 U.S.C.

§ 300aa-12(e)(2). Petitioner failed to meet his burden of demonstrating by a

preponderance of the evidence that he had received an influenza vaccination in the time

leading up to the onset of his GBS. § 300aa-11(c)(1)(A). The unexplained and plentiful

inconsistencies in the record before the Special Master render the evidence petitioner

tried to rely on insufficient to support petitioner’s claim of having received the vaccination

at a time that could have caused petitioner’s GBS. These inconsistencies include the

contradictory responses to the vaccination prompts on the hospital screening

assessments, the differing dates on which petitioner claims he received an influenza

vaccination, and the differing details of what occurred during his November 18-21, 2013,

hospital stay at the Carolinas Hospital System. The remaining indications that an

influenza vaccination occurred was the petitioner’s own account of an influenza vaccine

administered “on or about November 18, 2013,” which was inconsistent with his petition

and subsequent motion practice which asserted he received a vaccination “on or around

November 10, 2013, and which was contradicted by the medical records of his November

18-21, 2013, hospital stay. Petitioner failed to meet the requirement set forth in 42 U.S.C.

§ 300aa-13(a)(1) that he may not establish his case “based on the claims of a petitioner

alone, unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-

13(a)(1).

As noted above, in reviewing Vaccine Act decisions, “‘[t]he statute makes clear

that, on review, the United States Court of Federal Claims is not to second guess the

Special Masters [sic] fact-intensive conclusions; the standard of review is uniquely

deferential for what is essentially a judicial process.’” Deribeaux ex rel. Deribeaux v. Sec'y

of Health & Human Servs., 717 F.3d at 1366 (quoting Hodges v. Sec’y of Health & Human

Servs., 9 F.3d at 961). When “‘the special master's conclusion was based on evidence in

the record that was not wholly implausible, we are compelled to uphold that finding as not

being arbitrary and capricious.’” Id. at 1367 (quoting Lampe v. Sec’y of Health & Human

Servs., 219 F.3d at 1363).

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With no explanation for the inconsistencies in petitioner’s medical records

regarding whether he had received an influenza vaccination, or when he received the

influenza vaccination, the Special Master, after comprehensively reviewing the record,

found the inconsistencies were not explainable and, therefore, “five separate notations

regarding his vaccination status would necessarily be incorrectly recorded,” to accept

petitioner’s version. Furthermore, the Special Master noted that petitioner’s own medical

records labeled him a “difficult historian.” According to the Special Master, “[t]hus, without

more, these notations cannot serve as evidence that any vaccination occurred.” Matthews

v. Sec’y of Health & Human Servs., 2021 WL 4190265, at *6.

Petitioner tried to place increased importance on certain medical notations made

after his diagnosis of GBS. As with the multiple inconsistent screening assessments on

whether petitioner had received an influenza vaccination, neither petitioner nor his

medical records provided a basis for the notations indicating that petitioner “got GBS from

getting a flu shot,” or that he was allergic to the influenza vaccine. Before these notations

appeared in petitioner’s medical records, a separate notation instructed a nurse at the

McLeod Regional Medical Center to verify petitioner’s vaccination with the Carolinas

Hospital System. This notation was followed by the word “done,” with no date or location

listed or whether the word “done” referred to a vaccination or a check of petitioner’s

records. Another notation, dated December 12, 2013, stated a pharmacist at the

Carolinas Hospital System confirmed “there are no records of pt [patient] receiving the

vaccination.” Only after the December 12, 2013 notation, did the notations start to appear

in petitioner’s medical records, leaving the source of his vaccination status unknown.

Given that neither the Carolinas Health System, nor petitioner’s billing statements verified

the time or place of petitioner’s vaccination, the Special Master reasonably found that the

evidence did not establish that petitioner had been given an influenza vaccination prior to

contracting GBS. Regarding the allergy notation, the Special Master’s decision noted the

data suggesting that those who suffer from GBS “are generally cautioned against receipt

of the flu vaccine without specific respect to the underlying trigger of their prior GBS.”

As previously stated, “[t]he special master or court may not make such a finding

[of eligibility for compensation] based on the claims of a petitioner alone, unsubstantiated

by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). Although Mr.

Matthews’ petition alleges that he “received the Influenza Vaccination on or around

November 10, 2013,” petitioner claimed in the affidavit he submitted to the Special Master

that he received the vaccination during his November 18-21, 2013, stay at the Carolinas

Hospital System after he had surgery for a forearm laceration. In his motion for review

before the undersigned, petitioner alleged that the Special Master had erred when he

concluded that there were no medical records consistent with this account. Petitioner

pointed out that “the initial assessment form filled out on November 18, 2013, is where it

states, ‘Flu Vaccine This Season – Yes.’” The Special Master reasonably listed this

screening assessment as one that was incorrect to be consistent with petitioner’s claims

because the hospital record does not support that petitioner received a vaccination on

November 18, 2013. Given that petitioner stated during his initial screening assessment

on November 18, 2013, that he had already received a flu vaccination, the Special Master

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reasonably concluded that the hospital did not administer the influenza vaccination during

the admission to the Carolinas Hospital System from November 18-21, 2013.

Petitioner further asserts that the Special Master’s analysis of the record was

flawed because, under the vaccine compensation system, “close calls regarding

causation are resolved in favor of injured claimants.” Althen v. Sec’y of Health & Human

Servs., 418 F.3d at 1280 (citing Knudsen v. Sec’y of Health & Human Servs., 35 F.3d at

548-49). Petitioner claims that this rule should apply to facts, as well as to causation. It is

unlikely, however, that as part of the overall statutory National Childhood Vaccine Injury

Act, failure to document vaccination is permissible to allow a petitioner to receive

compensation. Whether or not a petitioner had received a vaccination is a statutory

requirement under the Act. 42 U.S.C. § 300aa-11(c)(1)(A). Respondent correctly states

in its response to petitioner’s motion for review that preponderant proof is the requirement

for proving the establishment of a critical fact necessary to be eligible for compensation.

See Moberly ex rel. Moberly v. Secretary of Health and Human Servs., 592 F.3d at 1322

n.2 (quoting Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers Pension Trust

for S. Cal., 508 U.S. at 622).

As a result of the Special Master’s analysis of the record, he found there was

insufficient evidence to support petitioner’s inconsistent versions of when or if an influenza

vaccination was administered to the petitioner. With no contemporary medical records

establishing a clear date of vaccination and with multiple records indicating that petitioner

had not been vaccinated, the Special Master properly found that there was a lack of proof

in the record before the court presented by petitioner of an influenza vaccine

administration which could have caused his GBS symptoms, as unfortunate as the GBS

diagnosis is for petitioner. See 42 U.S.C. § 300aa-13(a)(1).

CONCLUSION

This court finds that Special Master Horner fully examined the relevant available

evidence and that his conclusions with respect to the significance of the evidence in the

record, as a whole, were not “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 42 U.S.C. § 300aa–12(e)(2)(B). The Special Master’s

decision provided a comprehensive review of the record and came to the proper

conclusion that the record, as a whole, did not constitute preponderant evidence that an

influenza vaccine was administered to petitioner which could have caused his GBS.

Therefore, the Special Master properly denied petitioner’s request for compensation. The

Special Master’s ruling is affirmed. Petitioner’s motion for review is DENIED. The above-

captioned case brought by Mr. Matthews is DISMISSED. The Clerk of the Court shall

enter JUDGMENT consistent with this Opinion.

IT IS SO ORDERED.

s/Marian Blank Horn

MARIAN BLANK HORN

Judge

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