Rupert v. Secretary of Health and Human Services ( 2021 )

CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 31, 2021
* * * * * * * * * * * * * * *
KELLY RUPERT, * No. 15-841V
*
Petitioner, * Special Master Sanders
*
v. *
* Decision; Entitlement; Influenza (“Flu”)
SECRETARY OF HEALTH * Vaccine; Significant Aggravation; Kidney
AND HUMAN SERVICES, * Failure; Glomerulonephritis
*
Respondent. *
* * * * * * * * * * * * * * *
William E. Cochran, Jr., Black McLaren et al., P.C., Memphis, TN, for Petitioner.
Sarah C. Duncan, United States Department of Justice, Washington, D.C., for Respondent.
DECISION1
On August 7, 2015, Kelly Rupert (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program (“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 September 23, 2013, caused a significant aggravation of her kidney failure 3 and
glomerulonephritis. 4 Am. Pet. at 1, ECF No. 36.
1 This Decision 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 decision. 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 Kidney failure, also called renal failure, is “the inability of a kidney to excrete metabolites at normal
plasma levels under conditions of normal loading, or the inability to retain electrolytes under conditions
of normal intake, so that waste products and metabolites accumulate in the blood.” Kidney Failure,
DORLAND’S MEDICAL DICTIONARY ONLINE [hereinafter “DORLAND’S”],
https://www.dorlandsonline.com (last visited Feb. 2, 2021); Renal Failure, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
4 Glomerulonephritis is “nephritis accompanied by inflammation of the capillary loops in the renal
glomeruli.” Glomerulonephritis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
Nephritis is “inflammation of the kidney[.]” Nephritis, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 2, 2021). Renal glomeruli are “globular tuft[s] formed by capillaries in the kidney, the
After carefully analyzing and weighing all the evidence and testimony presented in this
case in accordance with the applicable legal standards, I find that Petitioner has not met her legal
burden. Petitioner has failed to provide preponderant evidence that the flu vaccine she received on
September 23, 2013, significantly aggravated her kidney failure or glomerulonephritis.
Accordingly, Petitioner is not entitled to compensation.
I. Procedural History
Petitioner filed her petition for compensation on August 7, 2015. Pet. at 1. Shortly
thereafter, on August 10, 2015, Petitioner filed proof of her vaccination, along with ten medical
record exhibits. Pet’r’s Exs. 1–11, ECF Nos. 6–7. The next day, Petitioner filed her first statement
of completion. ECF No. 8. On November 5, 2015, Respondent filed his Rule 4(c) report,
recommending that compensation be denied. ECF No. 13. A status conference was held on
November 23, 2015, during which Petitioner was ordered to submit an amended petition
(clarifying the date of vaccination) by December 4, 2015, and updated medical records by January
4, 2016. ECF No. 15. Petitioner was also ordered to file an expert report by no later than January
25, 2016. Id.
On December 3, 2015, Petitioner filed an amended petition. ECF No. 16. Following two
extension requests, Petitioner submitted two additional sets of medical records on March 16, 2016,
followed by one additional set on April 6, 2016. Pet’r’s Exs. 14–16, ECF Nos. 21, 26. Petitioner
filed her second statement of completion on April 6, 2016. ECF No. 27.
Petitioner submitted an expert report from Eric Gershwin, M.D., accompanied by
supporting medical literature, on April 15, 2016. Pet’r’s Exs. 19–46, ECF Nos. 28–31. On the same
date, Petitioner filed an opinion letter from Wesam Ballouk, M.D. ECF No. 28. On July 21, 2016,
Respondent filed two responsive expert reports, one from Arnold Levinson, M.D., and one from
Derek Fine, M.D., along with fourteen pieces of supporting medical literature. Resp’t’s Exs. A–D,
ECF Nos. 33-1, 34-2–34-3, 34-8; Resp’t’s Ex. A, Tabs 1–10, ECF Nos. 33-2–34-1; Resp’t’s Ex.
C, Tabs 1–4, ECF Nos. 34-4–34-7.
The parties convened for a status conference on July 27, 2016, at which time Petitioner was
ordered to file a second amended petition (to limit her claim to significant aggravation) and
updated medical records. ECF No. 35. Petitioner filed a second amended petition and the requested
medical records on August 30, 2016. ECF Nos. 36–37.
On January 3, 2017, Petitioner filed a supplemental expert report from Dr. Gershwin along
with a supplemental opinion letter from Dr. Ballouk. Pet’r’s Exs. 49–50, ECF No. 40-1–40-2. The
case was reassigned to me on January 9, 2017. ECF No. 41. On February 17, 2017, Respondent
filed a responsive supplemental expert report from Dr. Fine. Resp’t’s Ex. E, ECF No. 43-1.
On July 5, 2017, I issued an order directing the parties to file a status report with proposed
dates for an entitlement hearing. Scheduling Order, docketed July 5, 2017. The matter was
subsequently set for a hearing on December 5–6, 2018. ECF Nos. 51–52. The hearing date was
site of the filtration barrier between the blood and the kidney[.]” Renal Glomerulus, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
2
subsequently rescheduled to October 29–30, 2019, due to the funeral of former President of the
United States George H.W. Bush. ECF No. 71. The entitlement hearing was held as scheduled on
these dates. See Min. Entry, docketed Oct. 31, 2019.
This matter is now ripe for consideration.
II. Factual Background
A. Medical Records
Petitioner was born on March 17, 1968. E.g., Pet. at 1. Petitioner’s pre-vaccination medical
history is notable for hypertension,5 edema,6 obesity, smoking,7 pain, and anxiety. See generally
Pet’r’s Ex. 1. Petitioner’s first record from Raymond Nino, M.D., a primary care physician
(“PCP”), is from August 10, 2010. See id. at 36. Petitioner’s blood pressure readings were
relatively stable and within or near normal range 8 until July 12, 2011, when her provider reported
a spike at 138/90. 9 Id. at 28; see also id. at 29–36. Also on July 12, 2011, Petitioner’s provider
noted that she had edema. Id. at 28. Although Petitioner’s blood pressure was sometimes normal
after this occasion, it continued to spike at times between 2011 and 2013. See id. at 1–27. It reached
a high of 176/124 on August 20, 2013. Id. at 4. On that date, Petitioner also complained of leg and
back pain, which she rated as a two out of ten on a pain scale. Id. Dr. Nino assessed Petitioner with
5 Hypertension is “high arterial blood pressure; various criteria for its threshold have been suggested,
ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm
Hg diastolic. Hypertension may have no known cause . . . or be associated with other primary diseases.”
Hypertension, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 7, 2021).
6 Edema, also called dropsy or hydrops, is “the presence of abnormally large amounts of fluid in the
intercellular tissue spaces of the body, usually referring to subcutaneous tissues.” Edema, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 7, 2021).
7 Petitioner testified that she quit smoking in the fall of 2013. Tr. 33:16–18.
8 The Centers for Disease Control and Prevention (“CDC”) states that “[a] normal blood pressure is less
than 120/80 mmHg.” High Blood Pressure Symptoms and Causes, CENTERS FOR DISEASE CONTROL AND
PREVENTION, https://www.cdc.gov/bloodpressure/about.htm (last visited Feb. 19, 2021).
9
As indicated in Dorland’s, supra note 5, there is not a universal cutoff used to identify hypertension. See
High Blood Pressure Symptoms and Causes, CENTERS FOR DISEASE CONTROL AND PREVENTION,
https://www.cdc.gov/bloodpressure/about.htm (last visited Feb. 19, 2021). The CDC refers to two
different guidelines, one from 2003 and another from 2017. Id. The 2003 guideline (“The Seventh Report
of the Joint National Committee on Prevention, Detection, Evaluation, and Treatment of High Blood
Pressure”) indicates that high blood pressure, or hypertension, is 140 mm Hg or higher systolic and 90
mm Hg or higher diastolic. Id. Said guideline also indicates that 120–139 mm Hg systolic and 80–89 mm
Hg diastolic is “elevated” and qualifies as prehypertension. Id. The 2017 guideline (“The American
College of Cardiology/American Heart Association Guideline for Prevention, Detection, Evaluation, and
Management of High Blood Pressure in Adults”) identifies hypertension as 130 mm Hg or higher systolic
and 80 mm Hg or higher diastolic. Id. It indicates that 120–129 mm Hg systolic with less than 80 mm Hg
diastolic is elevated. Id.
3
“[osteoarthritis10 (“OA”) of her lumbar] spine 11” and gave her a 120-count refill for her
Roxicodone12 prescription. Id. The records from Dr. Nino indicate that Petitioner regularly took
Roxicodone and sometimes took Xanax. 13 See generally Pet’r’s Ex. 1. Petitioner’s provider also
noted that she had edema on May 24, 2012, June 26, 2012, and May 20, 2013. Id. at 6, 18–19.
Petitioner received the flu vaccination at issue at a Rite Aid on September 23, 2013. Pet’r’s
Ex. 2 at 1. On October 1, 2013, Petitioner attended a follow-up appointment with Dr. Nino. Id. at
3. Petitioner again complained of back and left leg pain, but she rated said pain, when she took her
Roxicodone prescription as directed, as a zero on the pain scale. Id. Petitioner also complained of
anxiety. Id. She further complained of one day of mild vaginal bleeding, which she reported had
occurred the previous month. Id. Petitioner explained that her “last menstrual period was [in]
September 2012.” Id. She was assessed with “OA L[-]Spine,” anxiety, and vaginal bleeding. Id.
She was given another 120-count Roxicodone prescription refill, a 90-count Xanax prescription
refill and instructed to follow up with a gynecologist. Id.
Petitioner attended another follow-up appointment with Dr. Nino on November 7, 2013.
Id. at 2. Petitioner again complained of left leg and back pain . Id. Petitioner voiced no other
complaints at this visit. Id. Dr. Nino assessed Petitioner with OA of her lumbar spine and gave
Petitioner another 120-count refill of her Roxicodone prescription. Id.
On November 21, 2013, Petitioner presented to the emergency room at Monongahela
Valley Hospital (“MVH”) “with complaints of having abdominal pain, nausea, vomiting and
diarrhea for the last two weeks.” Pet’r’s Ex. 3(b) at 289. Doctors noted that Petitioner’s abdominal
pain was “in the periumbilical14 region[,]” and that Petitioner rated the pain as a five out of ten on
the pain scale. Id. Petitioner stated that “once she vomits and passes diarrhea then her abdominal
pain [is] relieve[d] to a certain extent.” Id. Petitioner further explained that “[s]he feels nauseated
10 Osteoarthritis is “a noninflammatory degenerative joint disease seen mainly in older persons,
characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes
in the synovial membrane. It is accompanied by pain . . . and stiffness . . . .” Osteoarthritis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
11 The lumbar spine is “the part of the spine comprising the lumbar vertebrae[,]” which are “the five
vertebrae[,]” labeled L1 through L5 “between the thoracic vertebrae and the sacrum.” Lumbar Spine,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); Lumbar Vertebrae,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); Vertebrae Lumbales,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
12 Roxicodone is a trademark for oxycodone hydrochloride, which is “the hydrochloride salt of
oxycodone, used as an analgesic[.]” Oxycodone is an “opioid agonist analgesic . . . .” Roxicodone,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); Oxycodone Hydrochloride,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); Oxycodone, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
13 Xanax is a trademark for alprazolam, which is “a short-acting benzodiazepine used as an antianxiety
agent in the treatment of anxiety disorders and panic disorders and for short-term relief of anxiety
symptoms . . . .” Xanax, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021);
Alprazolam, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
14 Periumbilical means “near or around the umbilicus[,]” which is the navel. Periumbilical, DORLAND’ S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021); Umbilicus, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
4
and . . . vomits [one]-[two] times a day[,]” and that she has “diarrhea [three]-[four] times in a day.”
Id. CT scans of Petitioner’s abdomen and pelvis conducted while she was in the emergency room
“revealed no evidence of calculus 15 or hydronephrosis, 16” and Petitioner’s “appendix was . . .
normal.” Id. In addition, doctors wrote that “[t]here was no evidence of inflammatory bowel
disease 17” and that Petitioner’s uterus and adnexa were also normal. Id. Lastly, doctors noted that
Petitioner’s “BUN18 was . . . [thirty-three] with [her] creatinine 19 [at] 2.8.” Id. Both results were
classified as high. See id. at 283. Additionally, Petitioner’s urinalysis revealed high protein levels
at greater than 300 mg/dl as well as the presence of blood and red blood cells. Id. Doctors assessed
Petitioner with, among other things, abdominal pain of a “not very clear” etiology, diarrhea with
a “not very obvious” etiology, dehydration, and chronic back pain . Id. at 292. They determined
that Petitioner would “continue with her pain medications.” Id. In addition, doctors assessed
Petitioner with “[r]enal insufficiency [that] appears to be acute renal insufficiency 20 because of
dehydration.” Id. They noted that they would continue to monitor Petitioner’s BUN and creatinine
and proceeded to schedule a nephrology consultation for the next day. Id. Petitioner was admitted
for further observation. Id. However, the next day, Petitioner checked herself out of the hospital
against medical advice. Id. at 288.
Petitioner presented to Dr. Nino for a follow-up appointment on December 10, 2013.
Pet’r’s Ex. 1 at 1. Petitioner complained of back and left leg pain but did not voice any additional
complaints. Id. Dr. Nino did not make any notations or statements regarding Petitioner’s recent
hospitalization. See id. Dr. Nino’s only assessment was OA of Petitioner’s lumbar spine. Id. He
provided Petitioner an additional 120-count refill of her Roxicodone prescription. Id.
On January 22, 2014, Petitioner presented to a new PCP, Joanna Swauger, D.O., to
establish care. Pet’r’s Ex. 12 at 30. Petitioner stated that “she went to the ER this fall, for abdominal
pain. [She w]as told that she was severely dehydrated and given [three] liters of NSS.” Id.
15 Calculus, or stone, is “an abnormal concretion in the body, usually composed of mineral salts.”
Calculus, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
16 Hydronephrosis is “distention of the pelvis and calices of the kidney with urine, as a result of
obstruction of the ureter[,]” which is “the fibromuscular tube that conveys the urine from the kidney to the
bladder.” Hydronephrosis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021);
Ureter, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
17 Inflammatory bowel disease is “a general term for those inflammatory diseases of the intestines that
have an unknown etiology . . . .” Inflammatory Bowel Disease, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
18 BUN is “blood urea nitrogen[.]” BUN, DORLAND’ S, https://www.dorlandsonline.com (last visited Feb.
2, 2021).
19 Creatinine is “the cyclic anhydride of creatine, produced as the final product of decomposition of
phosphocreatine[]” and “is excreted in the urine.” Creatinine, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
Creatine is “an amino acid formed by methylation of guanidinoacetic acid, found in vertebrate tissues,
particularly in muscle.” Creatine, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3,
2021).
20 Renal insufficiency is “a state of disordered function of the kidneys verifiable by quantitative tests[]”
that “may progress to renal failure.” Renal Insufficiency, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 2, 2021). “Acute” refers to “a short and relatively severe course.” Acute, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
5
Petitioner further stated that her nausea and vomiting “resolved.” Id. Petitioner noted that “she has
been having issues with her back,” although she explained that her recent weight loss had “really
helped to decrease her back pain.” Id. Petitioner’s blood pressure was elevated at 160/110. Id. at
31. At this visit, Petitioner underwent a urinalysis, which revealed high levels of potassium, BUN,
and creatinine. Pet’r’s Ex. 3(a) at 5. Dr. Swauger wrote that Petitioner had an “[o]verall normal
exam, aside from [blood pressure] and [urinalysis]. Will obtain old records and [follow up]
accordingly.” Pet’r’s Ex. 12 at 31. Regarding Petitioner’s back pain, Dr. Swauger wrote that she
“encourage[d Petitioner to] use her Oxycodone sparingly. Advised her that the [fifteen milligram]
dose is rather high, and that if she will require frequent use, she may need to be referred to [a] pain
clinic.” Id. at 32. Dr. Swauger also wrote that she would “send [Petitioner’s urinalysis] for
eval[uation] at [the] lab . . . [to] rule out [infection]. If negative, will need to obtain [ultrasounds]
of [her] kidneys for eval[uation] and possibly [obtain a] consultation by [a] nephrologist.” Id. Dr.
Swauger directed Petitioner to follow up in four weeks. Id.
Petitioner underwent ultrasounds of her kidneys on January 29, 2014. Pet’r’s Ex. 3(a) at
16. The ultrasounds revealed “mild prominence of the renal pyramids 21 bilaterally. This may
reflect papillary necrosis. 22” Id. Petitioner also underwent a thyroid ultrasound on this date. Id. at
17. The impression of this test was a “[m]ultinodular thyroid.” Id. Also, on this date, Dr. Swauger
received the lab results of Petitioner’s urinalysis, which showed that “the total protein was 11,365.”
Pet’r’s Ex. 12 at 27. In response, Dr. Swauger wrote the following:
I have not seen her old records, so not sure how long this has been going on with
her kidneys. Her [blood work] from today shows that her creatinine is about the
same as last week – abnormal at 3.5 (last week was 3.6) . . . . Please tell [Petitioner]
that her kidneys are leaking too much protein, and that this needs to be addressed
ASAP. . . . I see that she had [ultrasounds] of the kidneys. It looks like they are
normal in size and shape, but the center of them looks like they may have something
called “papillary necrosis.” This can have various causes, but [it] is commonly
caused by overuse of pain med[ications]. So [she should] try to avoid them at all
cost for now and go see the kidney [doctors] for [an] eval[uation].
Id. Dr. Swauger also noted that Petitioner’s thyroid ultrasound “showed . . . a couple nodules” that
were concerning, and Dr. Swauger thought they “need[ed] to be biopsied.” Id. Dr. Swauger’s nurse
wrote in the same note that she had spoken with Petitioner, and Petitioner had stated that “she has
not taken any form of pain med[ication] since she received the news about her kidneys.” Id.
Petitioner also indicated that “she want[ed] to get to the bottom of [her] kidney problems before
she does anything with [her] thyroid.” Id.
21 Renal pyramids are “the conical masses that make up the substance of the renal medulla[,]” which is
“the inner part of the substance of the kidney . . . .” Pyramides Renales, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021); Renal Medulla, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
22 Papillary “pertain[s] to or resembl[es] a papilla,” which is “a small nipple-shaped projection, elevation,
or structure.” Papillary, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
Necrosis is “the sum of morphologic changes indicative of cell death and caused by the progressive
degradation action of enzymes[.]” Necrosis, DORLAND’S, https://www.dorlandsonline.com (last visited
Feb. 3, 2021).
6
On January 30, 2014, Petitioner presented to Ronald Lutes, D.O., a nephrologist, for a
consultation. Pet’r’s Ex. 9 at 1. Dr. Lutes wrote that “[s]everal months ago[, Petitioner] had severe
[vomiting/diarrhea,] which has since resolved. She has been feeling well.” Id. at 3. Dr. Lutes
reviewed Petitioner’s prior lab work and conducted a physical examination, which was
unremarkable. Id. at 3–4. Dr. Lutes assessed Petitioner with proteinuria,23 chronic kidney disease
(“CKD”)24 - stage IV, and hematuria. 25 Id. at 1. Dr. Lutes wrote that Petitioner had “[p]rogressive
renal dysfunction with nephrotic range proteinuria and hematuria.” Id. He also wrote that he
“strongly suspect[ed] a glomerulonephritis[,]” and he believed that “[t]he most likely diagnosis at
this time would be one of proliferative glomerulonephritis 26 and a concern towards a vasculitic
process[,] i.e. lupus or a[n] Anca[-]associated process. 27” Id. Dr. Lutes also noted that Petitioner
may need to undergo a renal biopsy. Id.
Petitioner underwent a left renal biopsy on February 19, 2014. Pet’r’s Ex. 3(a) at 62, 70–
71, 102–03. Prior to the biopsy, Petitioner told doctors “that she had a flu shot sometime in October
and . . . that she had not been feeling well since that time.” Id. at 70. The biopsy revealed “a
fibrillary glomerulonephritis [(“FGN”)]28[] that is associated with extensive chronic changes
23 Proteinuria, also called albuminuria, is “excessive serum proteins in the urine, such as in renal disease,
after strenuous exercise, and with dehydration. Proteinuria, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
24 Chronic kidney disease, or chronic renal failure, is “gradual loss of kidney function, with progressively
more severe renal insufficiency . . . .” Chronic Kidney Disease, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 4, 2021).
25 Hematuria, also called erythrocyturia, refers to “blood (erythrocytes) in the urine[.]” Hematuria,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021). Erythrocytes are “one of the
elements found in peripheral blood.” Erythrocyte, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 4, 2021).
26 Proliferative Glomerulonephritis refers to “any of various types accompanied by proliferation of
endothelial or mesangial cells in the glomeruli . . . .” Proliferative Glomerulonephritis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021). Endothelial refers to the endothelium, “the
layer of epithelial cells that lines the interior structures such as the cavities of the heart, the lumina of
blood and lymph vessels, and the serous cavities of the body[.]” Endothelium, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
Mesangial refers to the mesangium, “the thin membrane that helps support the capillary loops in the renal
glomerulus.” Mesangium, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
27
ANCA-associated vasculitis is “a subgroup of small vessel vasculitis in which there are circulating
antineutrophil cytoplasmic autoantibodies (ANCA) . . . .” ANCA-Associated Vasculitis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021). Vasculitis is “inflammation of a blood or
lymph vessel[.]” Vasculitis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
ANCA, also called antineutrophil cytoplasmic autoantibody, is “an autoantibody to cytoplasmic
constituents of monocytes and neutrophils, found in increased amounts in some types of vasculitis[]”
which has “several different subtypes, each characterized serologically by reactivity against particular
cellular antigens[.]” ANCA, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021);
Antineutrophil Cytoplasmic Autoantibody, DORLAND’S, https://www.dorlandsonline.com (last visited
Feb. 3, 2021).
28 Fibrillary glomerulonephritis is “a rare form of glomerulonephritis characterized by infiltration of the
glomeruli with fibrils slightly larger than amyloid fibrils that do not stain with Congo red.” Fibrillary
Glomerulonephritis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021). Fibrils are
7
involving all components of the parenchyma 29 including focal global glomerulosclerosis,30
extensive tubular atrophy and interstitial fibrosis, 31 and moderately severe vascular sclerosis.32”
Id. at 95. It also showed “extensive interstitial inflammation . . . .” Id. Petitioner’s biopsy revealed
that eighteen out of twenty-three of her present glomeruli were globally sclerosed. Id. Additionally:
[T]hree glomeruli show segmental sclerosis, with segmental adhesion of the
glomerular tufts to the Bowman’s capsule. 33 The glomeruli do not show any
“minute filament[s], such as a component of fiber.” Fibril, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 3, 2021). Amyloid, deposits of which are primarily composed of fibrils, is “a waxy
eosinophilic substance deposited in amyloidosis.” Amyloid, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 3, 2021). Amyloidosis refers to “a group of conditions of diverse etiologies characterized
by the accumulation of insoluble amyloid in various organs and tissues of the body, which compromises
vital function.” Amyloidosis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
Congo red refers to a powder used “as a diagnostic aid in amyloidosis.”
Congo Red, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
29 Parenchyma refers to “the essential or functional elements of an organ, as distinguished from its
framework (stroma).” Parenchyma, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2,
2021).
30 Glomerulosclerosis is “fibrosis and scarring with senescence of the renal glomeruli.”
Glomerulosclerosis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021). Fibrosis
refers to “the formation of fibrous tissue, as in repair or replacement of parenchymatous elements.”
Fibrosis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
31 Interstitial fibrosis refers to idiopathic pulmonary fibrosis, a “chronic inflammation and progressive
fibrosis of the pulmonary alveolar walls, with steadily progressive dyspnea, resulting finally in death from
oxygen lack or right heart failure.” Interstitial Fibrosis, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 2, 2021). Pulmonary “pertain[s] to the lungs.” Pulmonary, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021). Dyspnea is “breathlessness or shortness of
breath[.]” Dyspnea, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
32 Vascular sclerosis refers to arteriosclerosis, which is “any of a group of diseases characterized by
thickening and loss of elasticity of arterial walls[.]” Arteriosclerosis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
33
The glomerular capsule, also known as the Bowman, malpighian, or müllerian capsule, is “the double-
walled globular dilatation that forms the beginning of a renal tubule and surrounds the glomerulus; the
inner wall is called the visceral layer and the outer wall is called the parietal layer.” Capsula Glomeruli,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
8
evidence of crescent34 formation, fibroid necrosis, 35 thrombosis,36 or endocapillary
proliferation. The glomerular basement membranes 37 appear thickened . . . . The
interstitial infiltrates contain mostly mononuclear cells. In one area, there is
formation of a small granuloma 38 with giant cells. There is also extensive tubular
atrophy . . . .
Id. at 95–96.
On February 28, 2014, Petitioner presented to another nephrologist, Sudha M. Nayar,
M.D.,39 for a follow-up. Pet’r’s Ex. 9 at 6. Dr. Nayar reviewed Petitioner’s biopsy results with her,
noting that it showed “[f]ibrillary [g]lomerulonephritis, that is associated with extensive chronic
changes involving all components of the parenchyma . . . .” Id. Dr. Nayar further noted that the
“light microscopic features do[] not show any evidence of [membranoproliferative
glomerulonephritis (“MPGN”)40], crescents or proliferative GN.” Id. However, Dr. Nayar wrote
that the biopsy did “show[] extensive tubular atrophy and fibrosis[,] but some areas show
interstitial inflammation and infiltration with mononuclear cells.” Id. She then discussed treatment
options, including an “immunosuppressive regimen,” but noted that she was “not sure if
immunosuppressive regimen would help delay the progression of the eventual [end -stage renal
34
An epithelial crescent is “a more or less crescentic mass of cells found between the tuft of a glomerulus
and the inside of Bowman capsule in rapidly progressive glomerulonephritis.” Epithelial Crescent,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 4 , 2021). Rapidly progressive
glomerulonephritis is “acute glomerulonephritis marked by a rapid progression to end-stage renal disease
. . . .” Rapidly Progressive Glomerulonephritis, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 4 , 2021).
35 Fibrinoid necrosis, also known as necrotizing arteriolitis, is “deposition of fibrin and other plasma
proteins in the walls of afferent renal arterioles in malignant hypertension, often accompanied by an
inflammatory infiltrate within the walls and thrombosis of the vessel lumen.” Fibrinoid Necrosis,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021). Fibrin is “the insoluble protein
from fibrinogen by the proteolytic action of thrombin during normal clotting of blood; it forms the
essential portion of the blood clot.” Fibrin, DORLAND’S, https://www.dorlandsonline.com (last visited
Feb. 3, 2021). An arteriole, or arteriola, is “a minute arterial branch, especially one just proximal to a
capillary.” Arteriola, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
36 Thrombosis is “the formation, development, or presence of a thrombus[,]” which is “a stationary blood
clot along the wall of a blood vessel” that “frequently caus[es] vascular obstruction.” Thrombosis,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021);
Thrombus, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
37 A basement membrane is “a thin sheet of amorphous extracellular material upon which the basal
surfaces of epithelial cells rest[]” and “is interposed between the cellular elements and the underlying
connective tissue.” Basement Membrane, DORLAND’S, https://www.dorlandsonline.com (last visited Feb.
3, 2021).
38 Granuloma is “an imprecise term applied to either a small, nodular, delimited aggregation of
mononuclear inflammatory cells or a similar collection of epithelioid cells[.] . . . Granuloma formation
represents a chronic inflammatory response that can be initiated by infectious or noninfectious agents.”
Granuloma, DORLAND’S, https://www.dorlandsonline.com (last visited Mar. 30, 2021).
39 Dr. Nayar worked in the same practice as Dr. Lutes. See Pet’r’s Ex. 9 at 6.
40 Membranoproliferative glomerulonephritis is “a chronic glomerulonephritis characterized by mesangial
cell proliferation and irregular thickening of the glomerular capillary wall.” Membranoproliferative
Glomerulonephritis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
9
disease (“ESRD”)41].” Id. Dr. Nayar recommended “weekly bloodwork to closely monitor
[Petitioner’s] renal function.” Id. at 7. Dr. Nayar further discussed with Petitioner the possibility
of “renal replacement therapy including hemodialysis 42 and peritoneal dialysis[.]43” Id. Petitioner
expressed a desire to obtain a second opinion, and Dr. Nayar agreed that she should. Id.
Petitioner’s medical records contain an undated note recounting a phone message Dr.
Nayar left for Dr. Swauger. Pet’r’s Ex. 12 at 26. Dr. Nayar stated that she “got [the] results of
[Petitioner’s kidney biopsy], which showed a lot of fibrosis.” Id. Therefore, Dr. Nayar thought
“that this may have been ongoing longer.” Id. Dr. Nayar noted that the biopsy “revealed a type
of proliferative GN, with fibrosis [that] can be assoc[iated] with malignancy or myeloproliferative
disorder.44” Id. Dr. Nayar further noted that Petitioner’s creatinine “seems to be worsening, [and
was] now up to 3.9.” Id. Dr. Nayar explained that Petitioner “may be a candidate for
immunosuppressive/steroids for [treatment], but [Dr. Nayar was] not sure it will be effective . . .
.” Id. After reviewing Petitioner’s other results, Dr. Nayar concluded by recommending that
Petitioner stop taking her Oxycodone immediately. Id.
On March 4, 2014, Petitioner presented to Dr. Swauger for a follow-up. Id. at 23. Petitioner
stated that, despite extensive bloodwork and a kidney biopsy, her nephrologists “are not certain
what the source of her kidney failure is from.” Id. Petitioner told Dr. Swauger that “overall she
feels well.” Id. In addition, Petitioner told Dr. Swauger that “[s]he was told to have a cancer
[workup], as underlying malignancy may be the source of [her] . . . problem[s].” Id. Dr. Swauger
recommended that Petitioner undergo a chest x-ray and a biopsy of her thyroid nodule. Id. at 23–
24. Petitioner underwent a chest x-ray on March 10, 2014, which was unremarkable. Pet’r’s Ex.
3(a) at 158. Petitioner subsequently underwent a thyroid biopsy on March 21, 2014, which was
“negative for malignant cells.” Pet’r’s Ex. 6(b) at 305, 311–13.
Petitioner had another follow-up appointment with Dr. Nayar on March 31, 2014. Pet’r’s
Ex. 9 at 12. Petitioner reported “feeling well” and having “good” urine output. Id. She did not
report experiencing any nausea, vomiting, or diarrhea, and did not have any edema on examination.
Id. Petitioner told Dr. Nayar that she had an appointment scheduled with transplant services the
following month. Id. Petitioner also stated that she “talked with the [peritoneal dialysis (“PD”)]
nurse, and if needed[,] she would rather do PD.” Id.
41 End-stage renal disease is “chronic renal failure that is irreversible.” End-Stage Renal Disease,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 4 , 2021).
42 Hemodialysis is “the removal of certain elements from the blood by virtue of the difference in the rates
of their diffusion through a semipermeable membrane.” Hemodialysis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
43 Peritoneal dialysis is “hemodialysis through the peritoneum[,]” which is “the serious membrane lining
the walls of the abdominopelvic cavity . . . and investing the viscera . . . .” Peritoneal Dialysis,
DORLAND’S, https://www.dorlandsonline.com/dorland/definition?id=33488&searchterm=nephritis (last
visited Feb. 2, 2021); Peritoneum, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3,
2021).
44 Myeloproliferative disorders are “a group of usually neoplastic diseases, which may be related
histogenetically by a common multipotential stem cell . . . .” Myeloproliferative Disorders, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
10
On May 31, 2014, Petitioner presented to Dr. Nayar for a follow-up. Id. at 16. Dr. Nayar
wrote that Petitioner “has had worsening of her [r]enal functions, [with her] BUN [at ninety-five],
creatinine [at] 5.4[, potassium] . . . at 5.4[, and] PO4 . . . [at] 6.6.” Id. Dr. Nayar recommended that
Petitioner “get the PD catheter45 placed.” Id.
Petitioner presented to Dr. Swauger on June 4, 2014, for a follow-up. Pet’r’s Ex. 12 at 19.
Petitioner did not complain of any “symptoms aside from continuous[,] unexplained weight loss.”
Id. Dr. Swauger noted that Petitioner’s “[k]idney function has continue[d] to progressively decline,
although she denies swelling, [shortness of breath], [and] fatigue.” Id. Petitioner reported that she
was scheduled to have a PD catheter placed later that month. Id. Dr. Nayar “[r]ecommended that
[Petitioner] be vaccinated for [Hepatitis A and B], [measles, mumps, and rubella,] . . . Varicella[,]
and obtain a [tetanus-diphtheria-acellar-pertussis] . . . particularly if she is anticipating a transplant,
which will be followed by immune suppressive medications.” Id. at 20. Petitioner agreed to
consider getting these vaccinations but declined them on that date. Id.
On June 9, 2014, Petitioner presented to Dr. Nayar for a follow-up. Pet’r’s Ex. 9 at 20. Dr.
Nayar noted that Petitioner’s “[r]enal function continues to worsen . . . .” Id. Petitioner’s creatinine
was 6.6. Id. Petitioner did not report any complaints and “denie[d] any uremic 46 symptoms.” Id.
Dr. Nayar wrote that Petitioner was “scheduled to . . . undergo PD cath[eter] placement on the 18th
[of that month].” Id. Dr. Nayar continued, “[i]f [Petitioner’s] labs worsen, then we will have [the
surgeon] place an exposed catheter and begin [dialysis] in [two] weeks. Otherwise we will keep it
buried until RRT is needed.” Id. Dr. Nayar directed Petitioner to follow up again in three weeks.
Id.
Petitioner had a PD catheter placed on June 18, 2014, and began PD the same day. Pet’r’s
Ex. 4 at 2–3. Both her pre-operative and post-operative diagnoses were listed as “[e]nd-stage renal
failure.” Id. at 2. On July 12, 2014, Petitioner presented to the emergency room “to get [her PD]
catheter checked.” Id. Petitioner explained that she “usually do[es her PD with] gravity[,]” but she
had “used a circulator for the first time [that] morning and . . . [thought] it was too much . . . .” Id.
at 25. Petitioner further explained that doctors had “increased [her dialysis] fluids to 1500
[milliliters six] days ago.” Id. Petitioner was examined and released the same day. See id. at 25–
41.
On August 22, 2014, Petitioner underwent a chest x-ray. Pet’r’s Ex. 3 at 276. The results
showed “mild emphysema47 . . .” and “a [three millimeter,] possibly calcified pulmonary nodule
laterally within the left upper lobe, likely benign but follow[-]up recommended.” Id. at 277. They
45 A catheter is “a tubular, flexible, surgical instrument that is inserted into a cavity of the body to
withdraw or introduce fluid.” Catheter, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 4,
2021).
46 Uremia refers to “the entire constellation of signs and symptoms of chronic renal failures, including
nausea, vomiting, anorexia, a metallic taste in the mouth, a characteristic odor of the breath, pruritus, urea
frost on the skin, neuromuscular disorders, pain and twitching in the muscles, hypertension, edema,
mental confusion, and acid-base and electrolyte imbalances.” Uremia, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
47 Emphysema is “a pathologic accumulation of air in tissues or organs.” Emphysema, DORLAND’ S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
11
also showed “a 1.9 [by] 1.6 [centimeter] right thyroid nodule for which ultrasound correlation and
likely biopsy [are] recommended.” Id.
Petitioner was transported to the emergency room after suffering a seizure on August 26,
2014. Pet’r’s Ex. 5 at 78. Petitioner’s sister stated that Petitioner “ha[d] not been complaining of
anything recently. She has not recently been sick, though the dialysis does make [her] vomit daily.”
Id. Petitioner’s husband explained that Petitioner “was somewhat ill throughout the day with
anorexia[,] which progressed to vomiting and some [altered mental statu s] . . . .” Id. at 76. He
stated that Petitioner “then had [a] seizure [and] fell [and] hit her head.” Id. While being treated
by emergency medical services (“EMS”), Petitioner “was very combative and had a second seizure
. . . .” Id. After her second seizure, Petitioner “was again very combative and was intubated for
airway protection [and given rapid sequence intubation (“RSI”)] drugs . . . .” Id. On arrival at the
emergency room, Petitioner was “intubated, sedated on Propofol,48 and paralyzed.” Id. Petitioner’s
blood pressure on arrival was highly elevated, and her sister explained that Petitioner “ha[d] not
taken any [blood pressure] med[ication] as she ran out last Friday.” Id. at 78.
Petitioner underwent a head CT, which did not reveal “definite evidence of large acute
intracranial hemorrhage, 49 territorial infarction, 50 midline shift or mass effect.” Id. at 83. However,
it did reveal some “minimal left frontal sulcal 51 hyperdensity[,] which could be artificial.” Id.
Petitioner also underwent a brain MRI, which revealed “areas of abnormal T2/FLAIR signa1
intensity seen predominantly in the subcortical white matter 52 in the left posterior
temporal/occipital lobe region[,]53 as well as in the right occipital region, bilateral centrum
48 Propofol is “a short-acting anesthetic and sedative used in induction and maintenance of general
anesthesia and also for sedation . . . .” Propofol, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 2, 2021).
49 An intracranial hemorrhage is “bleeding within the cranium, which may be extradural, subdural,
subarachnoid, or cerebral (parenchymatous)[.]” Intracranial Hemorrhage, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
50 Infarction, or infarct, is “an area of coagulation necrosis in a tissue due to local ischemia resulting from
obstruction of circulation to the area . . . .” Infarct, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 3, 2021). Ischemia is “deficiency of blood in a part . . . of a blood vessel.” Ischemia,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
51 A sulcus is a “long groove or furrow, especially one of the cerebral sulci[,]” which are “the furrows on
the surface of the brain between the cerebral gyri.” Sulcus, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 3, 2021); Cerebral Sulci, DORLAND’S, https://www.dorlandsonline.com (last visited Feb.
3, 2021). Cerebral gyri are “the tortuous convolutions of the surface of the cerebral hemispheres, caused
by folding of the cortex and separated by sulci.” Cerebral Gyri, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
52 White matter, also known as white substance and substantia alba, is “the nervous tissue of the brain and
spinal cord composed mostly of myelinated nerve fibers arranged in bundles (fasciculi).” Substantia Alba,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
53 The temporal lobe is “the lower lateral lobe of the cerebral hemisphere . . . .” Lobus Temporalis,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021). The occipital lobe is “the
posterior portion of the cerebral hemisphere, on the medial surface extending from the posterior pole to
the parietooccipital fissure but on the lateral surface continuous with the parietal lobe superiorly and with
the temporal lobe inferiorly.” Lobus Occipitalis, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 3, 2021). The cerebral hemisphere is “either half of the cerebrum, “which is “the main portion
12
semiovale, [and] left parietal region.” Pet’r’s Ex. 6(b) at 219. Doctors noted that, “[g]iven
[Petitioner’s] clinical history, these findings are concerning for an etiology such as posterior
reversible encephalopathy [(“PRES”)].54” Id. Petitioner also underwent a psychiatric consultation
on August 29, 2014. Id. at 216. The note reflects that Petitioner’s medical history was “significant
for self[-]home[-]dialysis for ESRD apparantly [sic] sustained after a flu shot a year ago.” Id.
Petitioner “acknowledged depression ‘[ten percent] of the time’ and anxiety, related to her kidney
malfunction requiring home dialysis and ultimately needing a . . . kidney transplant.” Id. Petitioner
ultimately expressed that she “does not want or require psychiatric treatment[,]” and she
“decline[d] recommendation measures that include psychotherapy and potential medication . . . .”
Id. at 220. Petitioner was discharged from the hospital that day with a final diagnosis of PRES and
a prescription for Dilantin.55 Id. at 222.
On September 4, 2014, Petitioner presented to Dr. Swauger to follow up regarding her
recent hospitalization. Pet’r’s Ex. 12 at 16. Petitioner reported “feeling okay” since discharge. Id.
She also reported being “a little swollen, but [was not experiencing any] further headaches.” Id.
She noted that she has not experienced any nausea, vomiting, or blurred vision, but she
“[a]dmit[ted] that she still d[id] not have much of an appetite . . . .” Id. Petitioner’s examination
was unremarkable, and Dr. Swauger directed her to follow up again in two months. Id.
Petitioner underwent a repeat brain MRI on October 2, 2014. Pet’r’s Ex. 6(b) at 200. The
impression was “[i]nterval resolution of areas . . . previously seen [as] parenchymal signal
abnormality[] compatible with resolution of PRES.” Id. In addition, there were “[n]o new lesions
[seen] elsewhere in [Petitioner’s] brain.” Id.
On October 10, 2014, Petitioner presented to the emergency room for a malfunctioning PD
catheter. Pet’r’s Ex. 4 at 5. She was released the same day. See id. at 7. Petitioner presented to Dr.
Nayar for a follow-up on October 13, 2014, and reported that “[s]he has not been able to drain [her
PD catheter] since last Thursday and has not had a complete dialysis [treatment] in [five] days.”
Id. Dr. Nayar noted that Petitioner’s “PD site is [clean/dry/intact,]” and a “[workup] was negative
of the brain, occupying the upper part of the cranial cavity.” Hemisphaerium Cerebri, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021);
Cerebrum, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
54 Posterior reversible encephalopathy syndrome, also known as reversible posterior leukoencephalopathy
syndrome, posterior leukoencephalopathy syndrome, and posterior reversible leukoencephalopathy
syndrome, is “a syndrome resulting from leukoencephalopathy with edema in posterior parts of the
occipital and parietal lobes, characterized by headaches, confusion, seizures, and visual disturbances[.]”
Reversible Posterior Leukoencephalopathy Syndrome, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 3, 2021). Leukoencephalopathy refers to “any group of diseases affecting the white matter of
the brain, especially of the cerebral hemispheres, and occurring as a rule in infants and children.”
Leukoencephalopathy, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021). The
parietal lobe is “the upper central lobe of the cerebral hemisphere . . . .” Lobus Parietalis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
55 Dilantin is a trademark for phenytoin, an anticonvulsant used to treat and prevent seizures and related
disorders. Dilantin, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021); Phenytoin,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
13
for [p]eritonitis.56” Id. On exam, Dr. Nayar noted that Petitioner was “volume overloaded[,]”
although she “state[d that] she is voiding a moderate [amount] on her current dose of Lasix 57 . . .
.” Id. Therefore, Dr. Nayar “advised [Petitioner] to go to the hospital for [hem odialysis (“HD”)
cath[eter] placement so [they] could start [HD] . . . .” Id. However, Petitioner “refus[ed] to do so
at [that] time[]” and noted that she had an appointment for an evaluation of her PD catheter the
following day. Id.
Petitioner reported again to the emergency room on October 15, 2015, “with complaints
of abdominal pain, generalized fatigue, malaise[,] and diaphoresis. 58” Pet’r’s Ex. 3(a) at 331. The
note continues that, “[a]pparently, [Petitioner] ha[d] not received he r scheduled [PD] due to
malfunctioning of her [PD] catheter.” Id. Petitioner indicated that she “had a laparoscopic removal
of [her PD] catheter scheduled . . . ; however, owing to her condition becoming worse[,] she
presented to the [emergency room].” Id. While at the emergency room, Petitioner had a
consultation with Dr. Nayar. Id. at 334–36. Dr. Nayar reviewed Petitioner’s medical history and
noted that Petitioner was “on [the] active transplant list and [was] waiting for her sister to possibly
donate a kidney.” Id. at 334. Dr. Nayar was concerned that Petitioner was suffering from
peritonitis, and she conducted a draining procedure to procure fluid to culture. Id. at 335. Dr. Nayar
also wrote that Petitioner would undergo “[HD] until [doctors could] evaluate the PD catheter to
see if this modality can be continued.” Id. at 336. Petitioner underwent a successful HD catheter
placement on that date. Pet’r’s Ex. 3(b) at 97. Petitioner was ultimately diagnosed with peritonitis
and prescribed Vancomycin59 and Zosyn.60 Pet’r’s Ex. 3(a) at 339. She was discharged on October
17, 2014. Id. at 318.
On October 22, 2014, Petitioner presented to Dr. Swauger for a follow-up. Pet’r’s Ex. 12
at 11. Petitioner reported that she was “currently receiving the antibiotics while on HD[]” and was
“going to HD on [Monday/Wednesday/Friday].” Id. Petitioner further stated that “[s]he ha[d] not
had any further seizures[] and [was] weaning off of the [seizure] medication.” Id. Dr. Swauger
recommended that Petitioner receive the Hepatitis A/B, flu, and pneumovax vaccines, but
Petitioner declined. Id. at 12. Dr. Swauger noted that Petitioner was “tolerating HD much better
than [PD].” Id.
56 Peritonitis is “inflammation of the peritoneum, with exudations of serum, fibrin, cells, and pus . . . .”
Peritonitis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
57 Lasix is a trademark for furosemide, “a loop diuretic used in the treatment of edema associated with
congestive heart failure or hepatic or renal disease, as an adjunct in the treatment of acute pulmonary
edema, and in the treatment of hypertension . . . .” Lasix, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 2, 2021).
58 Diaphoresis is another word for sweating. Diaphoresis, DORLAND’ S, https://www.dorlandsonline.com
(last visited Feb. 2, 2021).
59 Vancomycin hydrochloride is an antibiotic. Vancomycin Hydrochloride, DORLAND’ S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
60 Zosyn is a trademark for a combination of piperacillin sodium and tazobactam sodium, which are used
to treat infections. Zosyn, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021);
Piperacillin Sodium, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); Nephritis,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); Tazobactam Sodium,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
14
Petitioner had an AV fistula61 placed in her left arm by Gene W. Manzetti, M.D., on
November 20, 2014. Pet’r’s Ex. 10 at 18. At follow-up appointments with Dr. Manzetti on January
12 and February 9, 2015, Dr. Manzetti noted that Petitioner’s fistula was “showing some
maturation” but also noted that Petitioner “does have a lot of venous tributaries over her forearm.”
Id. at 6–7. On March 9, 2015, Petitioner’s fistula was declared “occluded[,]” and Dr. Ma nzetti
wrote that “the plan will be to have [Petitioner] undergo creation of a higher AV fistula.” Id. at 5.
Petitioner underwent a successful placement of an AV fistula in her upper left arm on March 17,
2015. Id. at 2.
III. Experts
A. Expert Review
1. Petitioner’s Expert, M. Eric Gershwin, M.D.
Dr. Gershwin received his medical degree from Stanford University in 1971. Pet’r’s Ex.
20 at 1. He is licensed to practice in California and holds board-certifications in internal medicine,
internal medicine with a subspecialty in rheumatology as well as allergy and clinical immunology.
Id. at 2. Dr. Gershwin’s clinical experience includes serving as the Chief of the Division of
Rheumatology/Allergy and Clinical Immunology at the University of California School of
Medicine, Davis since 1982. Id. He also has academic experience, including serving as the Jack
and Donald Chia Professor of Medicine within the Division of Rheumatology/Allergy and Clinical
Immunology at the University of California, Davis and as a Distinguished Professor of Medicine
within the same division. Id. at 1. Dr. Gershwin’s curriculum vitae includes numerous books, book
chapters, and research papers of which he is a listed author. See id. at 8–125.
During his testimony, Dr. Gershwin stated that he has experience with treating patients
with kidney diseases, but he also noted that he “do[es] not have significant experience” treating
patients with FGN and estimated that he “perhaps [had] seen one or two [FGN] patients” during
his entire career. See Tr. 54:23–55:12. In response to my questioning, Dr. Gershwin stated that
neither his research nor his publications involved FGN, although he has conducted research on
nephritis, which he described as being “mostly related to lupus[,]” and on “other autoimmune
kidney diseases . . . .” Tr. 56:18–57:4.
Dr. Gershwin submitted two expert reports and testified at the entitlement hearing. See
Pet’r’s Exs. 19, 49; Tr. 51:1–106:23, 167:1–168:7. At Petitioner’s request, and without objection
from Respondent, I admitted Dr. Gershwin to testify as an expert in internal medicine,
rheumatology, and immunology. Tr. 56:9–16.
2. Petitioner’s Expert, Wesam F. Ballouk, M.D.
61AV fistula refers to a “passage[ that] may be . . . created surgically for arteriovenous access . . . .”
Fistula, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); see also AV,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
15
Dr. Ballouk received his medical degree from Damascus University in 1996. Pet’r’s Ex. 18
at 1. He completed an internship in psychiatry/internal medicine and a residency in internal
medicine at the University of Tennessee Health Science Center in 2000 and 2002, respectively. Id.
Dr. Ballouk also completed a post-residency fellowship in nephrology at the same institution in
2005. Id. He is licensed to practice medicine in both Tennessee and Arkansas, and he is board-
certified in both internal medicine and nephrology. Id. at 2; Tr. 175:25–176:2. Dr. Ballouk’s
clinical experience includes serving as the Chairman of the Nephrology Division in the Internal
Medicine Department at Saint Francis Hospital in Bartlett, Tennessee since 2006. Id. Also
beginning in 2006, Dr. Ballouk has served as the Medical Director of multiple HD units in
Tennessee, and in 2013, Dr. Ballouk began serving as the Medical Director of a home dialysis unit.
Id. Dr. Ballouk also has academic experience, including serving as an Assistant Professor of
Internal Medicine at the University of Tennessee Health Science Center from 2007 to 2015. Id.
Dr. Ballouk submitted two expert reports and testified at the entitlement hearing. See
Pet’r’s Exs. 18, 50; Tr. 174:20–283:25, 388:16–402:7. At Petitioner’s request, and without
objection from Respondent, I admitted Dr. Ballouk to testify as an expert in internal medicine and
nephrology. Tr. 177:15–20.
3. Respondent’s Expert, Arnold Levinson, M.D.
Dr. Levinson received his medical degree from the University of Maryland in 1969.
Resp’t’s Ex. D at 1. He is licensed to practice medicine in Pennsylvania and is board -certified in
internal medicine and allergy and clinical immunology. Id. at 2–3. Dr. Levison has extensive
academic and practical experience, although he retired in 2014. He served as a Professor of
Medicine and Neurology at the University of Pennsylvania School of Medicine from 1994 to 2009,
and as an Associate Director of Undergraduate Medical Education at the same institution from
1997 to 1999. Id. at 2. His clinical experience includes serving as the Chief of the Allergy and
Immunology Section within the Pulmonary, Allergy, and Critical Care Division at the University
of Pennsylvania School of Medicine from 1998 to 2009. Id. He also served as the Chief of Allergy
and Immunology at the Philadelphia Veterans Administration Medical Center from 1999 –2007.
Id. His curriculum vitae includes numerous publications and editorials of which he is a listed
author. See id. at 10–21.
Since his retirement in 2014, Dr. Levinson explained that he, among other responsibilities,
“still maintain[s] a significant amount of activity . . . at [the University of Pennsylvania] . . . in the
teaching arena, particularly teaching and mentoring fellows, and to some extent residents . . . .”
Tr. 109:17–24. Prior to his retirement, Dr. Levinson estimated that “about [twenty] percent[]” of
his time was devoted to patient care, mainly those “who suffered from complex allergic
autoimmune . . . and/or immunodeficiency disorders.” Tr. 110:12 –21.
Dr. Levinson submitted one expert report and testified at the entitlement hearing. See
Resp’t’s Ex. C; Tr. 107:23–163:6. At Respondent’s request, and without objection from Petitioner,
I admitted Dr. Levinson to testify as an expert in immunology and clinical immunology . Tr.
113:19–23.
4. Respondent’s Expert, Derek M. Fine, M.D.
16
Dr. Fine received his medical degree from the Johns Hopkins University School of
Medicine in 1994. Resp’t’s Ex. B at 1. He completed his internship and residency at the Johns
Hopkins Hospital/University School of Medicine from 1994 to 1997, and a fellowship in
nephrology at the same institution from 1997 to 1999. Id. at 2. He currently holds both academic
and clinical positions. Id. at 1. Beginning in 2008, he has served as an Associate Professor of
Medicine at the Johns Hopkins University School of Medicine, and since 2009, he has served as
the Fellowship Director within the Division of Nephrology at the same institution. Id. Beginning
in 2014, Dr. Fine has served as the Medical Director at Johns Hopkins Davita – Bond Street
Dialysis Unit. Id. His curriculum vitae includes numerous publications of which he is a listed
author. See id. at 2–10. Dr. Fine estimated that he spends five to fifteen percent of his time on
research, depending on the year. Tr. 289:19–22.
Dr. Fine explained during his testimony that his work involves diagnosing patients at all
stages of various renal diseases, and that he has seen “probably around four or five[]” patients with
FGN throughout his career. Tr. 290:25–291:10. Dr. Fine also noted that he has experience in
pathology, which he described as “sort of [an] ongoing education in pathology [whereby he]
frequently look[s] at pathology with [the] pathologists [at Johns Hopkins] and discuss[es] the
findings and the implications [of biopsies and pathology reports,] and [therefore he has ] a fairly
solid base of . . . nephropathology.” Tr. 291:11–292:5.
Dr. Fine submitted two expert reports and testified at the entitlement hearing. See Resp’t’s
Exs. A, E; Tr. 284:19–387:23. At Respondent’s request, and without objection from Petitioner, I
admitted Dr. Fine to testify as an expert in nephrology. Tr. 292:6–9.
B. Expert Reports and Testimony
1. Petitioner’s Expert, Dr. Gershwin
Dr. Gershwin stated that his theory was that the flu vaccine “exacerbated [Petitioner’s]
ongoing FGN.” Tr. 58:3–4. Specifically, Dr. Gershwin wrote that his theory was “that the cytokine
response following the [flu] vaccination would have accelerated [Petitioner’s] [GN] and made it
worse. In other words, she went from the onset of a renal disease to requiring dialysis at a more
rapid rate than one would anticipate.” Pet’r’s Ex. 19 at 1. He explained that he built his theory on
two assumptions. First, Dr. Gershwin assumed “that the time of onset of [Petitioner’s] FGN was
about the same time, [or] certainly preceded the [flu] vaccination.” Tr. 58:6–8. He noted that “if
the time of [FGN] onset was distant from the vaccination, then [he] would not hold” the opinion
that the flu vaccine exacerbated Petitioner’s FGN. Tr. 58:8–9. Dr. Gershwin stated that “[i]f this
disease started six months before the vaccination[,]” he would not hold his opinion or offer it. Tr.
83:2–4. He indicated that his opinion was based on onset “certainly within a window of six weeks
before the vaccine.” Tr. 83:9–10. Second, Dr. Gershwin “assumed that [Petitioner’s] FGN was
worse than what one would expect in an individual of her age with FGN.” Tr. 58:10–12. Again,
Dr. Gershwin noted that “if there’s evidence and the Court is convinced that the natural history of
her FGN was the same as you would expect of another cohort of patients with FGN, then [he]
would not be here.” Tr. 58:12–15.
17
During his testimony, Dr. Gershwin discussed cytokines in detail. He explained that “a
cytokine is a low molecular weight material produced by a whole variety of cells in the body.” Tr.
61:6–7. He noted that “[v]irtually any cell can produce some form of cytokine, or a chemokine or
what’s often called its cognizant receptor,” and explained that they are “a way to signal or activate
cells. [Cytokines] allow[] cells to talk to each other.” Tr. 61:8 –11. He stated that cytokines
“facilitate[] the immune response, amplif[y the] immune response.” Tr. 62:19 –20. He further
stated that cytokine signaling can affect cell behavior in a multitude of ways, the effectiveness of
which “will depend on the health of the cell . . . .” Tr. 64:2–7. He provided the following example
of how cytokines can affect cell behavior: “a very simple example is [a cytokine] can make cells
divide. It can make cells go through autophagy, which is a form of how cells die . . . .” Tr. 64:5–
11. Dr. Gershwin further testified that cytokines are involved in both the innate and adaptive
immune systems, and that doctors “classically . . . divided cytokines into what are called Th1 and
Th2 responses, [or] those that promote inflammation and those that inhibit inflammation.” Tr.
62:24–63:7.
Dr. Gershwin also opined that cytokines can act both locally and systemically. Tr. 66:8–
16. He cited to an article by Ortega and Fornoni to support this proposition. Tr. 65:3 –66:7; Pet’r’s
Ex. 57.62 The authors of this article conducted a literature review to “provide a general
comprehensive overview of the role of the main cytokine families in the setting of [acute kidney
injury], CKD, [end stage kidney disease], [GN], and transplantation, and to explore their
relationship to clinical outcomes, mortality, and recovery of renal function.” Pet’r’s Ex. 57 at 2.
They noted that “cytokines may act in a systemic, paracrine, or an autocrine fashion.” Id. at 1. Dr.
Gershwin provided further explanation of these terms. He explained that “systemic” means that
“cytokines that are produced elsewhere [in the body] . . . can act at a distant site [elsewhere in the
body].” Tr. 65:16–17. He further explained that “paracrine” refers to “a cell-to-cell interaction,”
whereas “autocrine” refers to “an individual cell [that] secretes cytokines and then the cytokines
will feed back and impact its own cell.” Tr. 65:19–66:1. Dr. Gershwin affirmed that the “key
takeaway” from this article is the discussion of the different ways that cytokines can act on a cell.
Tr. 66:8–11. During his testimony, he noted that “in this case, we’re really referring to systemic.”
Tr. 66:11–12. Dr. Gershwin testified, however, that “these [types of action] overlap.” Tr. 66:12–
13. The article concludes by noting that currently available studies on cytokines “do not provide
any evidence for a causative role of a given cytokines in disease pathogenesis or progression.”
Pet’r’s Ex. 57 at 12.
In his first expert report, Dr. Gershwin wrote that “[t]he role of cytokines in the activity of
the immune mediated/inflammatory renal disease has been the subject of intense study for more
than [twenty] years.” Pet’r’s Ex. 19 at 2. He cited to a study by Niemer et al., the data of which
Dr. Gershwin described as “confirmatory of earlier work that there is a contribution of both pro-
inflammatory and anti-inflammatory cytokines 63 by renal cells that contribute to the natural history
62 Luis M. Ortega & Alessia Fornoni, Role of Cytokines in the Pathogenesis of Acute and Chronic Kidney
Disease, Glomerulonephritis, and End-stage Kidney Disease, 2 INTERN. J. OF INTERFERON, CYTOKINE
AND MEDIATOR RESEARCH 49 (2010).
63 Cytokine is “a generic term for nonantibody proteins released by one cell population . . . on contact
with a specific antigen, which act as intercellular mediators, as in the generation of an immune response.”
Cytokine, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
18
of disease.” Id.; Pet’r’s Ex. 52. 64 In this study, the authors “examined the in situ expression of
[interleukin (“IL”)]-10 65 and [tumor necrosis factor (“TNF”) 66]-α in renal biopsy specimens from
patients with different forms of GN and variable clinical presentations.” Id. at 2. They found “that
resident renal cells are the major source of TNF-α and IL-10.” Id. at 12. They “propose[d] that
TNF-α is involved in the pathogenesis of interstitial fibrosis, . . . [whereas the] excessive
production [of IL-10] seems to be associated with active and/or progressing glomerular lesions.”
Id. The authors concluded that their study “confirm[s] previous suggestions that pro[-
]inflammatory and anti[-]inflammatory cytokines are produced in situ by resident renal cells and
contribute to the natural course of human GN.” Id. at 1.
Dr. Gershwin opined that “[a] vaccine would not work unless it produced cytokines.” Tr.
61:13–14. Dr. Gershwin cited to a paper by Morel and Turner to support this proposition. Tr.
61:17–62:9; Pet’r’s Ex. 56. 67 The authors conducted a “review [that] focus[es] on recent advances
in the ways [dendritic cells] 68 and cytokines can be used to develop the most appropriate and
effective vaccines.” Pet’r’s Ex. 56 at 1. When discussing cytokines, the authors wrote that
“[c]ytokine production . . . plays an important role in defining the type of T cell effector response
that is induced.” Id. at 2. They concluded that “[dendritic cells] and the cytokines they produce
play a key role in driving . . . immune responses and can be harnessed to induce an effective
immune response against the pathogen or disease of choice.” Id. at 7–8. Dr. Gershwin testified that
this article “emphasiz[es] that in producing vaccines, the measurement of cytokines is basically
the gold standard, meaning when you’re trying to design a vaccine, one way to pred ict how optimal
it is [by] how good of a cytokine response it produces.” Tr. 62:10–16.
When discussing the flu vaccine generally, Dr. Gershwin testified that it triggers the
production of cytokines. Tr. 67:14–16. He explained that the types of cytokines produced by the
flu vaccine in “individuals will be different, and they’ll be different by age, but some of the key
[cytokines produced by the flu vaccine] are interferon family, IL-2, IL-5, IL-10, IL-17, IL-21.
64 Zofia I. Niemir et al., In Situ Upregulation of IL-10 Reflects the Activity of Human
Glomerulonephritides, 32:1 AM. J. OF KIDNEY DISEASES 80 (1998).
65 Interleukin-10 is “a cytokine produced by activated macrophages, certain lymphocytes, and other cells
that decreases both innate and T cell-mediated immune inflammation[.]” Interleukin-10, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
66 Tumor necrosis factor refers to “either of two lymphokines that are capable of causing in vivo
hemorrhagic necrosis of certain tumor cells but not affecting normal cells[.]” Tumor Necrosis Factor,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021). Lymphokines are “soluble
cytokine[s] that mediate[] immune responses[]” that are “released by sensitized lymphocytes on contact
with antigen.” Lymphokine, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
Lymphocytes are “any of the mononuclear, nonphagocytic leukocytes, found in blood, lymph, and
lymphoid tissues, that are the body’s immunologically competence cells and their precursors.”
Lymphocyte, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021). Leukocytes are
white blood cells, “colorless blood cell[s] capable of ameboid movement[.]” Leukocyte, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
67 Penelope A. Morel & Michael S. Turner, Designing the Optimal Vaccine: The Importance of Cytokines
and Dendritic Cells, 3 OPEN VACCINE J. 7 (2010).
68 Dendritic refers to dendrites, which are “threadlike extensions of the cytoplasm of a neuron . . . .”
Dendritic, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021); Dendrite,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
19
Lots of other ones as well.” Tr. 67:17–23. Dr. Gershwin stated that cytokines produced by the flu
vaccine “help facilitate the immune response, they will act on cells, they will amplify them, so in
effect cell differentiation, [and] would promote inflammation.” Tr. 68:20 –24. He continued,
“[t]hey will make an ongoing inflammation get worse,” depending on “the window of opportunity”
of when the vaccine is administered. Tr. 68:25–69:2. When asked whether “cytokines that are
produced in a host following a vaccine[] . . . travel around the body,” Dr. Gershwin responded that
“they do get in the sera, and they do have a sera half[-]life. And the antigen [in the vaccine] will
be systemic as well, but it’s really in the sera cytokines that will affect, in a systemic way,
peripheral cells as well.” Tr. 69:3–10. He further explained that the cytokines “get around the body
because you can measure them in circulation.” Tr. 69:11–12. Dr. Gershwin also opined that these
cytokines would interact with the kidneys, “[p]articularly . . . if . . . [the vaccination occurs in] the
early phase of [Petitioner’s kidney] disease.” Tr. 70:1–5.
Dr. Gershwin also discussed FGN during his testimony, although he noted that he “will
defer to [the] nephrologists” on FGN-specific topics. Tr. 70:8–9. He described FGN as “an
enigmatic form of [GN]. [It is an e]nigmatic form of kidney inflammation, and there are these . . .
filaments that are deposited, they’re very small, they stain. We don’t know that much about it.”
Tr. 70:9–13. Dr. Gershwin referred to FGN as an immunological disease, and he cited to an article
by Rosenstock and Markowitz for support. Tr. 70:24–72:6; Pet’r’s Ex. 55. 69 The authors of this
paper wrote that “[t]he fibrils that characterize FGN are predominantly confined to the glomeruli
and stain intensely by IF for IgG, C3, κ, and λ, strongly suggesting that the fibrils are composed
of a complex of antibodies and antigens.” Pet’r’s Ex. 55 at 1. They continue, “[t]he absence of
staining for Congo red (with rare exception) and the composition of the fibrils help to differentiate
FGN from amyloidosis, 70 while the diameter of the fibrils and the absence of a microtubular
appearance with a hollow core help differentiate FGN from immunotactoid glomerulopathy.71” Id.
Dr. Gershwin testified that this passage suggests that FGN is an immunological disease, as the
authors “even use the word immunotactoid, in the next to last word of that [passage]. But there is
still a wide gap in knowledge.” Tr. 71:24–72:6.
When asked whether cytokines played a role in pathogenesis of FGN, Dr. Gershwin stated
that “cytokines play a role in [GN]. As far as [he] know[s] . . . there is nobody who has studied
cytokine biology in FGN.” Tr. 72:7–11. He explained that this lack of a definitive answer stems
from FGN being “uncommon, [and he] suspect[s] people don’t have enough patients in one series
to be able to do those sorts of intensive studies . . . . There haven’t been eviden ce-based, double-
blind studies, as there have been in lupus nephritis 72[, for example.] So[,] there is this gap.” Tr.
72:14–24. However, Dr. Gershwin stated he “would still argue that proof of principle analogy that
69 Jordan L. Rosenstock & Glen S. Markowitz, Fibrillary Glomerulonephritis: An Update, 4 KIDNEY INT .
REP. 917 (2019).
70 Id.
71 Immunotactoid glomerulopathy is “a type of fibrillary glomerulonephritis having particularly large
fibrils (immunotactoids). Immunotactoid Glomerulopathy, DORLAND’S, https://www.dorlandsonline.com
(last visited Feb. 2, 2021).
72 Lupus nephritis is “glomerulonephritis (diffuse, focal, or membranous) associated with systemic lupus
erythematosus, marked by deposition of antigen-antibody complexes in the mesangium and basement
membrane.” Lupus nephritis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
20
cytokine biology, as with any other form of inflammation, would play a critical role.” Tr. 72:25–
73:2.
Dr. Gershwin testified that he “[a]bsolutely” recommends the flu vaccine to his patients.
Tr. 75:16–18. Dr. Gershwin further testified that he would recommend the flu vaccine to his
patients that have kidney disease “if they aren’t in the early phase” of the disease. Tr. 75:19–20.
He explained that “some of the best studies that have been done on vaccination are done in people
with established disease.” Tr. 76:3–5. He further explained this distinction by comparing patients
with “ongoing” disease, like lupus and rheumatoid arthritis [(“RA”)],73 with patients that have an
acute onset of kidney disease. Tr. 75:22–77:2. Dr. Gershwin testified that lupus and rheumatoid
arthritis have “latency time[s] . . . measured in years. So[,] if [he] see[s] a patient in [his] clinic
and [he’s] about to start the biologics, [he] will vaccinate them, but . . . their disease . . . probably
began [five] or [ten] years earlier.” Tr. 76:2–10. He further explained that doctors “can find
evidence of antibodies in the blood in rheumatoid arthritis and even lupus patients many, many
years before they ever get clinical symptomatology.” Tr. 76:10–13. Therefore, he would vaccinate
these types of patients. Tr. 76:2.
However, Dr. Gershwin stated that that is “a different scenario than comparing the safety
of vaccines in somebody . . . just beginning the throws of an acute renal process[,] which involves
inflammation.” Tr. 76:21–24. He wrote that “[t]he basis for concern regarding administration of
[the flu] vaccine in an active inflammatory response is the altered immune profile and, in
particular, the cytokine response that is produced following vaccination.” Pet’r’s Ex. 19 at 3. He
explained that the “[flu] vaccine elicits a rigorous cytokine response and this response begins
within hours of the vaccination.” Id. He further explained that “[t]his [inflammatory response]
would have significantly aggravated any underlying inflammation, including and, in particular,
[Petitioner’s] pre[-]existing [FGN].” Pet’r’s Ex. 49 at 1.
Dr. Gershwin explained that the flu vaccination “accelerated [Petitioner’s] kidney disease.”
Tr. 79:18. He affirmed that Petitioner would have been at risk for exacerbation by the flu vaccine
“[i]f . . . [Petitioner] was in the early phases of [her] disease[]” when she was vaccinated. Tr. 78:2–
6. If this was the case, then Dr. Gershwin believes that Petitioner “was a susceptible host because
she was in the initial phases of her active kidney disease.” Tr. 79:15 –16. In this scenario, he
explained that:
[the flu vaccine] would have led to upregulation of multiple cytokines, including
pro-inflammatory cytokines, which . . . would exacerbate an ongoing inflammatory
process in the kidney, both from a systemic perspective, . . . cytokines coming in
affecting cells, which might affect those cells both in a paracrine and in an autocrine
fashion.
Tr. 78:16–22.
73 Rheumatoid arthritis is “a chronic systemic disease primarily of the joints, usually polyarticular,
marked by inflammatory changes in the synovial membranes and articular structures and by muscle
atrophy and rarefaction of the bones.” Rheumatoid Arthritis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
21
Prior to receiving the flu vaccine at issue, Dr. Gershwin stated that Petitioner had not been
diagnosed with or treated for nephritis. Tr. 73:13–16. Dr. Gershwin nonetheless opined that
Petitioner “was suffering from it at the time of her vaccin[ation],” although he was “really bas[ing]
that on the nephrologist.” Tr. 73:20–23. He continued that nephrologists “have an opinion about
that . . . , which helps [them] to come to that [opinion], and that is that the nausea that people
experience from renal failure often is more dependent on the rate of rise of BUN in the absolute
amount.” Tr. 73:22–74:1. He further explained that “somebody with acute renal failure in which
there's a . . . rise in BUN[] is more likely to experience nausea.” Tr. 74:5–8. However, Dr. Gershwin
again stated that he would defer to a nephrologist” when asked whether he had an opinion as to
the onset date of Petitioner’s FGN. Tr. 74:15–18.
Dr. Gershwin discussed the harm caused by Petitioner’s flu vaccine by citing to Petitioner’s
biopsy results. Dr. Gershwin identified the “extensive inflammation” present, which he noted was
“critical to [his] opinion because inflammation is never helpful, even in most infectious diseases.
It can be harmful.” Tr. 80:21–24. He also identified the following line in the biopsy report as
significant to his opinions: “The interstitial infiltrates contain mostly mononuclear cells.” Tr.
81:11–12 (quoting Pet’r’s Ex. 3 at 96). Dr. Gershwin described “mononuclear cells, or
monocytes,” as “professional antigen-presenting cells[]” that “would be particularly susceptible to
cytokines.” Tr. 81:14–15. He also referenced “the one giant cell,” which he described as
“consistent with an immune inflammatory response.” Tr. 81:22–82:2.
Although Dr. Gershwin wrote, “it is unknown what the actual date of onset of [Petitioner’s
GN] is,” he noted that, “it is clear that there was significant exacerbation in the beginning of
November 2013, which culminated in the hospitalization on November 21, 2013.” Pet’r’s Ex. 19
at 3. Dr. Gershwin disagreed that Petitioner’s symptoms during this hospitalization were caused
by a gastrointestinal illness, as suggested by Respondent, because “[t]here wasn't anyone else who
was sick at the time, there wasn't any blood, there wasn't a history of food poisoning . . . .” Tr.
83:24–84:4. Dr. Gershwin also noted that none of Petitioner’s treaters diagnosed her with a
gastrointestinal illness during this time. Tr. 84:11–14. In addition, Dr. Gershwin thought that
Petitioner’s “symptoms [during her hospitalization] would be consistent with acute renal failure.
The nausea, the vomiting, the abdominal pain on exam was said to be mild, but it would be
consistent with someone who’s vomiting.” Tr. 84:2–6. Dr. Gershwin further opined that diarrhea,
which Petitioner also experienced, “can be present with acute renal failure.” Tr. 84:7–8.
In addition, Dr. Gershwin testified that he “couldn’t find any[]” other aggravating factor
for Petitioner’s FGN other than the flu vaccine. Tr. 84:14–18. He disagreed that Petitioner’s use
of prescription pain medication played a role in her disease course, noting that “there was no
concurrent evidence of liver disease[, which] one would have expected such a feature in many
patients.” Pet’r’s Ex. 19 at 3. He testified that Petitioner “showed no signs of liver toxicity[]”
despite being “on [the pain medication] for a long time.” Tr. 82:13 –14. Dr. Gershwin also wrote
that “there is no literature to support the induction of [FGN] with pain medication.” Pet’r’s Ex. 19
at 3.
Dr. Gershwin concluded his first expert report by writing that he “ would not have
recommended vaccination on September 23, 2013,” because Petitioner was in the acute process of
22
her FGN. Id. However, Dr. Gershwin further wrote that he does “not have any concern about
vaccinating her now. In other words, her kidney disease is essentially burned out and she is
dependent on dialysis.” Id. Therefore, he does “not envision a problem for further vaccination in
people with stable renal failure.” Id. However, on cross-examination, Dr. Gershwin testified that
he “would ask . . . a nephrologist” as to when Petitioner’s disease burned out. Tr. 93:23 –94:1. Dr.
Gershwin clarified that he made his statement regarding vaccinating Petitioner now “ only to
explain . . . that [he] had no problem about vaccinating people with [ESRD] or longstanding
autoimmune disease.” Tr. 94:4–7.
In response to my questioning, Dr. Gershwin explained that the inflammation stays in
Petitioner’s kidneys because there’s “already . . . an early ongoing inflammatory process going on,
which is immunologic, and then the cytokines would work there, produce harm . . . . It’s like a
wound that [the cytokines are] exacerbating.” Tr. 100:3–7. He disagreed that Petitioner had
inflammation in other parts of her body, namely her intestine and arm, noting that “ the intestine
was just the symptom of the elevated BUN and the nausea from renal failure.” Tr. 100:8–14. He
opined that “if you do a biopsy, there was no colitis, no ulcerative colitis, no inflammatory
gastroenteritis . . . . [A]t the [vaccination] site, there was some marker inflammation, and yes, that
is part of the immune response to the vaccine . . . . [B]ut [he doesn’t] think it played any role in
systemic disease.” Tr. 100:16–22. He continued, “[a]nd because there wasn't already an ongoing
disease going on there, there's nothing for [the vaccine] to exacerbate.” Tr. 100:22–24.
2. Petitioner’s Expert, Dr. Ballouk
Dr. Ballouk submitted two expert reports in this case. In his first report, Dr. Ballouk wrote
that he “agree[s] that [Petitioner] has rapidly progressing [FGN,]” which he described as an
“inflammatory disease.” Pet’r’s Ex. 17 at 2. He opined that Petitioner “was likely suffering from
nephritis at the time of her vaccination . . . , but she did not have any clinical manifestations of
nephritis at that time.” Id. Dr. Ballouk wrote that “[i]t is possible that vaccination accelerated and
made [Petitioner’s] nephritis worse[,]” and if it did, he argued that “the timing was appropriate
given her hospitalization in November 2013 with renal insufficiency, which was likely the first
clinical manifestation of her nephritis.” Id. Dr. Ballouk noted that “[i]t is [his] opinion that [the]
flu vaccin[e] can produce an immune response[,] which includes cytokine production[;]” however,
Dr. Ballouk also wrote that “the opinions of an immunologist would be helpful[]” in determining
“whether it is more likely than not that [Petitioner’s] vaccination did aggravate her nephritis . . . .”
Id. Aside from a brief factual background on Petitioner’s clinical course, Dr. Ballouk did not
provide any additional information in his first expert report. See id. at 1–2.
During his testimony, Dr. Ballouk expanded upon the points he discussed in his first expert
report. Dr. Ballouk described GN as “inflammation of the glomeruli, which is the filtering part of
the nephron 74 in the kidneys. Each kidney has millions of nephrons, and if there’s any
74The nephron is “the anatomical and functional unit of the kidney, consisting of the renal corpuscle, the
proximal convoluted tubule, the descending and ascending limbs of the loop of Henle . . . and the
collecting tubule.” Nephron, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
The renal corpuscle is “a body that forms in the beginning of a nephron, consisting of a glomerulus
surrounded by the glomerular capsule (an expanded portion of the renal tubule). Renal Corpuscle,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021). The proximal convoluted tubule
23
inflammation of the glomeruli, that will affect the function of the kidney.” Tr. 183:1–7. He stated
that there are multiple causes of GN, including immune diseases, vasculitis, or nephrotic
syndrome. Tr. 183:8–12. He also stated that GN “can cause renal failure.” Id.
Dr. Ballouk described FGN as “one rare kind of [GN].” Id. He noted that “the exact cause
is not yet known[,]” although he explained that “there are some coexisting factors found in the
literature, like . . . [ten] to [twelve] percent [of FGN patients] have [an] autoimmune disease, like
lupus.” Tr. 184:17–21. He also listed “[H]epatitis C” and “malignancy” as other coexisting factors.
Tr. 184:20–21. Dr. Ballouk stated that FGN is a “little bit closer to an immune disease, so [it is]
treat[ed] with immunosuppressants . . . [and] Prednisone. 75” Tr. 184:22–185:1. He explained that
FGN is thought of as an immune disease because “[t]here are new research studies showing that
[FGN] is more like an inflammation with antibodies presented in the kidneys, . . . called DNAJB.
That will tell me that there is acute inflammation of the kidneys. . . . [I]t’s kind of similar to
autoimmune disease, like we see in lupus, and that will make me feel that . . . immunosuppressant
medications will help in this kind of disease.” Tr. 185:2–13.
Dr. Ballouk testified that FGN is “usually diagnosed by biopsy.” Tr. 183:24–25. He
explained that “[f]irst . . . , the nephrologist will suspect [that] the patient [has GN] from the
symptoms[,]” which he described as “swelling, sometimes feeling bad like nausea. All the
symptoms of renal insufficiency and proteinuria.” Tr. 185:15–21. In addition, Dr. Ballouk
explained that many patients will complain of “foamy urine, . . . and a urine test . . . [will] find that
they have a lot of protein or blood in the urine.” Tr. 185:21–22. He continued, “[t]hen [doctors
will] do . . . blood work[,] which shows . . . BUN and creatinine . . . rising, so [doctors] will send
[the patient] for a kidney biopsy . . . .” Tr. 185:23–25. Dr. Ballouk noted that FGN is “very hard
to diagnose . . . without a biopsy.” Tr. 183:25–184:1.
During his testimony, Dr. Ballouk discussed the results of Petitioner’s kidney biopsy. Tr.
196:10–199:16. Dr. Ballouk stated that the biopsy results showed that Petitioner “had [FGN] for
sure, with interstitial nephritis and focal global glomerulosclerosis and some extensive fibular
atrophy.” Tr. 199:21–24. He continued, “looking at live microscope, that will also tell [a doctor]
that [Petitioner] has some meningeal infiltrations with few nuclear cells.” Tr. 196:24–197:1. Dr.
Ballouk explained that “in the live microscopy, [one] will find some changes consistent with [GN],
there will be an infiltration and inflammation in the mesangial and the glomerular basement
membrane . . . .” Tr. 197:2–5. In addition, Dr. Ballouk wrote “the lack of crescents on [Petitioner’s]
biopsy does not mean that [Petitioner’s] vaccination did not aggravate her disease. [The b]iopsy
is “the most proximate part of the renal tubule, extending from the glomerular capsule to the proximate
straight tubule[.]” Tubulus Contortus Proximalis, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 3, 2021). The loop of Henle, or nephron loop, is “a long, U-shaped part of the renal tubule,
extending through the medulla from the end of the proximal convoluted tubule to the beginning of the
distal convoluted tubule.” The loop “begins with a descending limb having a thick-walled segment called
the proximal straight tubule, followed by a thin-walled segment called the thin or attenuated tubule; this is
followed by the ascending limb, which sometimes includes the distal end of the attenuated tubule and
always ends with a long thick-walled segment called the distal straight tube.” Ansa Nephroni,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
75 Prednisone is “a synthetic glucocorticoid derived from cortisone, administered orally as an
antiinflammatory and immunosuppressant in a wide variety of disorders.” Prednisone, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
24
was performed approximately [five] months post vaccination and [four] months after her first
recorded elevated creatinine. Therefore, active disease could have ceased prior to biopsy.” Pet’r’s
Ex. 50 at 2. When asked about the lack of crescents in Petitioner’s biopsy, Dr. Ballouk espoused
that “[a]ctually, reviewing the literature about [crescents], [they don’t] exist [in] probably more
than like [thirteen] percent [of patients] in this kind of [this] disease. So[,] this is not the disease
where you will have crescents all the time.” Tr. 198:2–7. He also stated that “the timing also means
[you] probably . . . will not see the crescents even if presented at – you know, so just to make it
simple, you don’t have to see crescents to diagnose [FGN].” Tr. 198:9–12. When asked whether
“the lack of crescents rule out . . . the probability that [Petitioner’s] vaccination may have
accelerated her disease course[,]” Dr. Ballouk responded, “[n]o[,] . . . the literature say[s] that most
of the time [doctors] will not see crescents at all.” Tr. 198:13–18.
In his second expert report and corresponding testimony, Dr. Ballouk discussed “the
manner in which [Petitioner’s] condition progressed differently as a result of vaccination than it
would have otherwise.” Pet’r’s Ex. 50 at 1. He cited to and referenced multiple articles outlining
the general FGN disease course. The first is an article by Nasr et al., which Dr. Ballouk described
as “the largest, longest, single-center study of [FGN] patients . . . .” Pet’r’s Ex. 50 at 1; Resp’t’s
Ex. A, Tab 5. 76 The authors of this study wrote that the objective of the study was “[t]o better
define the clinical-pathologic spectrum and prognosis [of FGN] . . . .” Resp’t’s Ex. A, Tab 5, at 1.
The study included “[sixty-six] patients with FGN that were followed for a mean time of [fifty-
two] months.” Id. at 2. The sixty-six patients included sixty-three Caucasian patients, two Hispanic
patients, and one Black patient, with a mean age of fifty-three at the time of biopsy. Id. at 2–3. At
biopsy, seventy-one percent of patients had hypertension and fifty-nine percent had edema. Id. at
4. All patients had proteinuria at the time of biopsy, with fifty -five percent of patients in the
nephrotic range and thirty-eight percent of patients with full nephrotic syndrome. Id. at 3. The
authors followed these patients for an average of 52.3 months, with a range of two to 209. Id. at 6.
During this period, “[three] patients ([five percent]) had [complete remission], [five] patients
([eight percent]) had [partial remission], [twenty-six] patients ([forty-three percent]) had
[persistent renal disease], and [twenty-seven] patients (forty-four percent]) progressed to ESRD.”
Id. The authors noted that “[g]ender, type of therapy, . . . presence of underlying malignancy, and
presence of underlying autoimmune disease did not correlate significantly with outcome.” Id. The
authors concluded that FGN “[p]rognosis is poor, with nearly one half of patients progressing to
ESRD within [four] years.” Id. at 9. They also concluded that the clinical “[f]eatures associated
with poor renal outcome include older age, higher creatinine at biopsy, higher 24-hour urine
protein at biopsy, and higher percentage of globally sclerotic 77 glomeruli.” Id.
Dr. Ballouk also discussed a paper by Javaugue et al. in which the authors conducted a
retrospective study of “[twenty-seven] adults with [FGN] referred to [fifteen] nephrology
departments in France between 1990 and 2011 . . . .” Tr. 201:19–202:19; Resp’t’s Ex. A, Tab 7, at
1.78 Of these twenty-seven patients, there were sixteen men and eleven women, with a median age
76 Samih H. Nasr et al., Fibrillary Glomerulonephritis: A Report of 66 Cases from a Single Institution, 6
CLIN. J. AM. SOC. NEPHROL. 775 (2011).
77 Sclerotic means “hard, or hardening[.]” Sclerotic, DORLAND’ S, https://www.dorlandsonline.com (last
visited Feb. 2, 2021).
78 Vincent Javaugue et al., Long-term Kidney Disease Outcomes in Fibrillary Glomerulonephritis: A Case
Series of 27 Patients, 62(4) AM. J. KIDNEY DIS. 679 (2016).
25
of fifty-nine. Resp’t’s Ex. A, Tab 7, at 2. The authors wrote that, “[a]t the time of diagnosis, most
patients presented with hypertension ([seventy percent]) and lower-limb edema ([fifty-six
percent]). All patients had proteinuria . . . with nephrotic syndrome in [eleven] patients ([forty-one
percent] and microhematuria 79 in [nineteen] patients ([seventy-three percent]).” Id. at 2–3. In terms
of patient outcomes, the authors wrote that “[r]enal prognosis in [FGN] is poor and most prev iously
reported patients progressed to ESRD.” Id. at 9 (citing id. at 10, Table 4). They continued, “[w]ith
a median follow-up of [forty-six] months, [forty-eight percent] of patients from the present series
developed ESRD after a median of [forty-four] months after diagnosis.” Id. at 9.
During his testimony, Dr. Ballouk also stated that he relied on an article by Rosenstock et
al. as a basis for his opinions. Tr. 202:20–203:1; Resp’t’s Ex. C, Tab 1; Resp’t’s Ex. A, Tab 8;
Pet’r’s Ex. 23.80 The authors of this article wrote that “[c]ontroversy surrounds the relatedness of
. . . FGN and immunotactoid glomerulonephritis (“IT”)[,]” and they therefore set out “[t]o better
define their clinicopathologic features and outcome[s by] . . . report[ing] the largest single center
series of [sixty-seven] cases biopsied from 1980 to 2001, including [sixty-nine] FGN and [six] IT
[cases].” Resp’t’s Ex. C, Tab 1, at 1. The FGN patients in this study included “[twenty-four] males
and [thirty-seven] females . . . age [twenty-eight] to [eighty-one] years old . . . . These included
[fifty-six] Caucasian, [three] African American, and [two] Hispanic patients.” Id. at 3. The authors
also noted that, “at the time of biopsy,” forty-four of the sixty-one FGN patients had renal
insufficiency, thirty-six of the patients had hypertension, and “[a]ll patients presented with
proteinuria . . . .” Id. In terms of outcomes, the authors wrote that follow-up was conducted on
fifty-six FGN patients. Id. at 6. These patients “were followed for a mean of [twenty-three]
months[,]” and “[twenty-five] patients developed ESRD.” Id. The authors continued, “[w]hile only
[eighteen percent] of patients who presented without renal insufficiency progressed to ESRD,
[seventy-two percent] . . . of patients who presented with a creatinine [greater than] 2.0mg/dL
reached ESRD.” Id. The authors found that “[t]he median time to ESRD was 24.4 [plus/minus]
15.2 months (mean, 57.6 [months plus/minus] 9.49 months).” Id. The authors concluded that this
study “confirm[s] the high risk of ESRD in FGN, with a median renal survival . . . of only [twenty-
four] months from the time of biopsy.” Id. at 8.
Based on these articles, Dr. Ballouk argued that Petitioner’s “[GN] advanced to ESRD
much more rapidly than would be expected.” Pet’r’s Ex. 50 at 2. Dr. Ballouk opined that “[o]nly
[forty-four] percent of . . . patients . . . will end up on dialysis with a median of [twenty -four]
months.” Tr. 186:25–187:1. He relied on the Rosenstock et al. article to argue that Petitioner
progressed to ESRD quicker than what is normally associated with an FGN patient. Tr. 204:21–
205:4. He stated:
If [one] look[s] at the literature, [one] would expect [Petitioner] to have – if she’s
from the bad patients who end up on dialysis, . . . [they] usually [reach ESRD
requiring dialysis in] two years . . . . [Petitioner] [reached ESRD requiring dialysis]
79 Microhematuria, or microscopic hematuria, is “blood in the urine visible only with a microscope,
defined as at least two to three red blood cells per high-power field.” Microscopic Hematuria,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
80 Jordan L. Rosenstock et al., Fibrillary and Immunotactoid Glomerulonephritis: Distinct Entities with
Different Clinical and Pathologic Features, 63 KIDNEY INTER. 1450 (2003).
26
in four months. So . . . [Petitioner progressed to ESRD requiring dialysis] at least a
year and a half faster than the average.
Tr. 205:6–11. Regarding the Nasr et al. study, Dr. Ballouk wrote:
Applying the results of this study to [Petitioner’s] situation, . . . she advanced from
biopsy to ESRD much more rapidly than expected. The average time from biopsy
to ESRD was [fifty-two] months. [Petitioner], however, reached ESRD in only
[four] months from the date of biopsy and only [seven] months from her first
recorded elevated serum creatinine. This is a significant difference.
Pet’r’s Ex. 50 at 2. Dr. Ballouk continued, “[w]hile it can be argued that [P]etitioner would likely
have still reached ESRD at some point, she reached it much faster than the majority of other
similarly situated [FGN] patients.” Id.
On cross-examination, Dr. Ballouk was asked about Petitioner’s onset date, which he
argued was “seven to eight weeks before [her] symptoms start[ed,]” or the “early part of September
[2013].” Tr. 209:11–20. He explained that this estimation “has nothing to do with [Petitioner’s]
vaccination[,]” but rather was based on “when [Petitioner’s] symptoms started, like the nausea,
vomiting . . . .” Tr. 210:4–13. Dr. Ballouk agreed that kidney disease can be present without
symptoms, but he stated that a person “may have some vague symptoms, but [the person] will not
be aware” that she has a kidney disease. Tr. 210:14–211:1. Dr. Ballouk testified that Petitioner had
“silent” kidney disease for “at least” a couple of months. Tr. 211:4–6.
Dr. Ballouk also discussed Petitioner’s hypertension and edema on cross-examination. Dr.
Ballouk agreed that hypertension was a clinical manifestation of kidney disease, but he stated that
“hypertension is very, very common in overweight patients, so if [a person has] hypertension, it
doesn’t mean [that person has a] kidney disease.” Tr. 211:12 –17. However, after reviewing
Petitioner’s medical records, Dr. Ballouk conceded that Petitioner had normal blood pressure
readings in 2010 even though she was overweight and smoking at that time. Tr. 212:17–215:11.
Dr. Ballouk also agreed that edema is a clinical manifestation of kidney disease. Tr. 216:2–5. He
conceded that Petitioner’s primary care physician began documenting Petitioner’s edema
approximately two years prior to her vaccination, although he again noted that “[o]bese patients
like [Petitioner] . . . will have edema . . . but it doesn’t [mean] that [Petitioner] has kidney disease
at that time . . . .” Tr. 216:8–15. However, Dr. Ballouk did acknowledge that Petitioner began
having high blood pressure and edema findings at around the same time, in July 2011. Tr. 216:16–
217:2.
Rather, Dr. Ballouk asserted that Petitioner’s first clinical manifestation of her FGN
occurred on November 21, 2013, when she presented to the hospital with complaints of abdominal
pain, vomiting, nausea, and diarrhea. Tr. 217:7–218:1. Dr. Ballouk opined that these symptoms
were all “clinical manifestations” of “renal insufficiency.” Tr. 218:5–9. However, upon
questioning during cross-examination, Dr. Ballouk acknowledged that he did not refer to these
symptoms as manifestations of renal insufficiency or kidney disease in his expert reports because
he “indirectly [did as much when he] said that [Petitioner] had [GN] when she presented to the
hospital. This is how [he] came to this conclusion, from [Petitioner’s] symptoms and labs.” Tr.
27
218:10–18. Dr. Ballouk also conceded that he did not file any medical literature listing these
symptoms as “clinical manifestations” of kidney disease, although he argued that “it’s well known
that patients with renal insufficiency . . . will have nausea, . . . vomiting, . . . and sometimes . . .
abdominal pain.” Tr. 218:19–219:1. When asked about the Clinical Practice Guidelines published
by the National Kidney Foundation, which do not list these symptoms as manifestations of kidney
disease or renal insufficiency, Dr. Ballouk responded that he “[did not] think [that] they mention
every single manifestation, . . . but . . . any nephrologist will know that if [someone has] a rapid
rise in BUN, [they] will feel bad and [they] may have nausea and vomiting.” Tr. 219:7 –15. Dr.
Ballouk disagreed that these symptoms were likely a manifestation of a gastrointestinal illness
(“GI”) because Petitioner had been complaining of these symptoms for two weeks, was also
suffering from proteinuria, and had increased creatinine that did not improv e with hydration. Tr.
219:24–220:16.
Dr. Ballouk also discussed Petitioner’s potential dehydration during her November 2013
hospitalization and its effect on her creatinine levels. He testified that “it’s hard to say” exactly
“how severe” her dehydration was. Tr. 229:7–8. However, he explained that “[t]he worse
[Petitioner’s dehydration was,] the higher the creatinine [would be].” Tr. 229:13. When pressed,
Dr. Ballouk stated that Petitioner was “moderately dehydrated[,]” and that her actual creatinine
level, if she had not been dehydrated, would have been “around 1.5 to 1.7.” Tr. 229:15 –18, 21–
25. Dr. Ballouk explained that this estimation was based on his “personal experience[,]” although
he later conceded that he did not cite to any medical literature as support. Tr. 230:3, 5–8. In
addition, Dr. Ballouk stated that he would “expect to [see] some tachycardia 81 and low blood
pressure[]” in a person who is moderately dehydrated. Tr. 252:19–22. When asked whether
Petitioner exhibited these symptoms during her hospitalization, Dr. Ballouk asserted that Petitioner
had an initial normal pulse reading and high blood pressure when she presented to the hospital. Tr.
250:24–252:4. Dr. Ballouk explained, however, that whether a person is exhibiting these
symptoms “depends on the severity [of the dehydration] and it depends on the [patient’s] baseline
[blood pressure and pulse levels].” Tr. 252:23–24.
Under my questioning, Dr. Ballouk stated that vomiting and diarrhea are caused by renal
failure when there is a “[rise] of the BUN and the creatinine . . . .” Tr. 256:2 –8. He also explained
that, “[o]n the other hand, . . . if you [are] vomiting and dehydrated, that will worsen your renal
failure. It’s . . . a vicious cycle.” Tr. 256:17–19. When asked “how long it would take the effects
of renal failure to lead to GI symptoms[]” in Petitioner’s case, Dr. Ballouk responded “a couple of
months.” Tr. 256:24–257:4.
Also, under my questioning, Dr. Ballouk estimated that Petitioner’s FGN began “around
early September [2013].” Tr. 267:2–4. He agreed that the progression of Petitioner’s FGN up to
the date of vaccination was “natural . . . because there [hadn’t] been any . . . catalyst to exacerbate
her condition.” Tr. 268:7–10. However, he stated that Petitioner’s increase in creatinine between
her November 2013 reading and January 2014 reading indicated that Petitioner’s disease was
rapidly progressing during that time. See Tr. 267:11–12. He clarified that he meant that Petitioner’s
disease was “progressive [because of the rise in Petitioner’s creatinine and proteinuria between
81 Tachycardia is “excessive rapidity in the action of the heart[.]” Tachycardia, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
28
November and January], and it is aggressive because she ended up on dialysis [in] four months.”
Tr. 280:12–281:1.
During re-direct examination, Dr. Ballouk opined that the presence of mesangial
involvement, as well as the fact that Petitioner did not have one hundred percent sclerosed
glomeruli, indicated that she was in the MES subgroup, which showed “exclusively mesangial
proliferation or sclerosis” Tr. 274:20–275:1; Resp’t’s Ex. A, Tab 6, at 4. Citing the Rosenstock et
al. study, Dr. Ballouk stated that a patient in the MES subgroup would take eighty months to reach
ESRD. Tr. 275:2–5.
3. Respondent’s Expert, Dr. Levinson
Dr. Levinson submitted an expert report in which he wrote that he “disagree[s] with the
claim that the [flu] vaccination accelerated the progression of [Petitioner’s] FGN to [ESRD].”
Resp’t’s Ex. C at 3. He noted that while he “concur[s] with [Petitioner’s] diagnosis of FGN[,]” he
“leave[s] detailed discussion of [the disease] to . . . [R]espondent’s expert in renal disease, and will
focus on aspects of this disease that influenced formulation of [his] dissenting opinion.” Id.
In his expert report, Dr. Levinson wrote that “[i]t is widely accepted that vaccines elicit the
production of cytokines as a prerequisite for the induction of desired adaptive immune (antibody
and cell-mediated) responses.” Id. at 5. He explained that the cytokine production “provides a
favorable milieu in the lymph nodes that drain injection sites for promoting the activation of
lymphocytes (B and T cells), which respond to the vaccine’s antigenic constituents.” Id.
Therefore, Dr. Levinson wrote that the “production of cytokines, even proinflammatory cytokines,
is an expected and desired outcome in vaccination strategy.” Id.
However, Dr. Levinson further wrote that “[i]t is not immediately clear to [him]” what Dr.
Gershwin was referring to when he wrote in his expert report that the “[flu] vaccine elicits a
rigorous cytokine response . . . .” Id. (quoting Pet’r’s Ex. 19 at 3). Dr. Levinson opined that “it is
highly unlikely that the cytokine response to the inactivated seasonal [flu] vaccine [received] by
[Petitioner] reached a level of magnitude to deleteriously impact organs distant to the injection
site.” Id. While Dr. Levinson wrote that the “[flu] virus . . . may induce intense lung inflammation
and additional organ dysfunction due to the release of extremely large amounts of pro -
inflammatory cytokines,” a phenomenon he described as a “cytokine storm,” he explained that
“there is no credible scientific evidence . . . that vaccines otherwise elicit such dangerous levels of
cytokines.” Id. He testified that “[m]any of [the] people [who receive the flu vaccine] have
underlying autoimmune diseases. Some of them are stable, some of them are not so stable.” Tr.
119:11–13. He therefore concluded that “if Dr. Gershwin's . . . theory[] is correct, . . . [then] we
would see a lot more reports of flu vaccine-induced exacerbations of autoimmune disease, and we
just don't see that.” Tr. 120:12–19.
Dr. Levinson wrote that “[t]he bottom line of the extant scientific literature is that
inactivated vaccines, including seasonal [flu] vaccines, have not been shown to induce flares of
disease activity in patients with stable autoimmune disease or augment disease expression in
patients with active autoimmune disorders.” Id. Dr. Levinson testified that, while these studies do
not directly address vaccination and FGN, he nonetheless explained that they are important
29
because the Court “heard . . . from Dr. Gershwin that FGN may . . . represent an autoimmune
disease, and to the extent that that may be true, then . . . what the studies that dealt with the effect
of flu vaccine on autoimmune disease probably are relevant to FGN.” Tr. 115:25–116:11. He cited
two articles as support. The first is by Westra et al. Resp’t’s Ex. C, Tab 2. 82 The authors of this
article “provide an analysis of data on vaccination of patients with an [autoimmune inflammatory
rheumatic diseases (“AIRD”)83].” Id. at 1. The authors note that “[s]afe vaccination is particularly
important for patients with an AIRD, as vaccine-induced antigenic stimulation might exacerbate
the underlying autoimmune disease.” Id. at 6. In terms of the flu vaccine specifically, the authors
wrote that “several studies have found that autoantibody titers84 increase in some patients with an
AIRD after [flu] vaccination,” although they note that “other studies could not confirm these
findings, and in the majority of cases this increase . . . was not associated with clinical disease
activity.” Id. Regarding RA, the authors noted that “[i]n most of the latest studies[,] . . . no
significant influence of vaccination on disease activity has been reported.” Id. In addition, they
noted that “in pre–post studies after [flu] vaccination, patients with RA did not experience
increased disease activity.” Id. For patients with systemic lupus erythematosus (“SLE”),85 the
authors wrote that “a number of studies” showed that “patients with SLE . . . did not develop more
disease flares than unvaccinated patients with SLE.” Id. The authors did, however, further note
that “[o]ther studies of patients with SLE found either no flares or mild flares . . . .” Id. They also
noted that “[o]nly one severe disease manifestation[] (renal flares with [GN]) occurred in [one] of
[twenty-nine] patients with SLE.” Id. at 6–7. However, the authors go on to note that “this study
did not include a control of unvaccinated patients with SLE, and these data should therefore be
interpreted with caution.” Id. at 7. The authors concluded that, “[i]n general, [flu] vaccination is
safe for patients with SLE and inactive disease.” Id. The authors also found that “no increase in
disease flares was found[]” in patients with granulomatosis with polyangiitis (“GPA”)86 when
compared with non-vaccinated GPA patients. Id. Lastly, the authors wrote that “the inactivated
[flu] vaccine seemed to be safe[]” after administration “[i]n a population of patients with diverse
82 Johanna Westra et al., Vaccination of Patients with Autoimmune Inflammatory Rheumatic Diseases, 11
NAT. REV. RHEUMATOL . 135 (2015).
83 An autoimmune disease, generally, is “a disorder caused by an immune response directed against self
antigens” that is typically characterized by “demonstrable circulating autoantibodies or cell-mediated
immunity against autoantigen, inflammatory lesions caused by immunologically competent cells or
immune complexes in tissues containing the autoantigens . . . .” Although autoimmune diseases generally
involve evidence of pathogenic process, “some diseases, such as systemic lupus erythematosus and
rheumatoid arthritis[,] are often classified as autoimmune diseases even though their pathogenesis is
unclear.” Autoimmune Disease, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
84 A titer is “the quantity of a substance required to produce a reaction with a given volume of another
substance, or the amount of one substance required to correspond with a given amount of another
substance. Titer, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
85 Systemic lupus erythematosus is “a chronic, inflammatory, often febrile, multisystemic disorder of
connective tissue that proceeds through remissions and relapses[]” that “is characterized principally by
involvement of the skin . . . , joints, kidneys , and serosal membranes.” Systemic Lupus Erythematosus,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
86 Granulomatosis with polyangiitis is “a multisystem disease chiefly affecting males, characterized by
necrotizing granulomatous vasculitis involving the upper and lower respiratory tracts, glomerulonephritis,
and variable degrees of the ANCA-associated type of small vessel vasculitis. Most authorities consider
this condition to be an aberrant hypersensitivity reaction to an unknown antigen.” Granulomatosis with
Polyangiitis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 2, 2021).
30
AIRDs . . . .” Id. In addition, “[f]lares of SLE occurred as often after vaccination . . . in an
unvaccinated control group . . . , and disease activity scores did not increase after vaccination.” Id.
The authors concluded that “[s]tudies comparing adverse effects between vaccinated and
unvaccinated patients, and from pre–post vaccination studies, do not seem to indicate that
vaccination exacerbates underlying AIRDs.” Id. at 8. They do note, “[h]owever, [that] serious
vaccine-attributable conditions are rare; therefore, the clinical studies that have been done are too
small to yield sufficient safety data.” Id.
The second article is by van Assen et al. Resp’t’s Ex. C, Tab 3. 87 The authors of this article
sought “to develop evidence-based European League Against Rheumatism (“EULAR”)
recommendations for vaccination in patients with [AIRDs].” Id. at 1. The authors included
“experts representing [eleven] European countries, consisting of eight rheumatologists, four
clinical immunologists, one rheumatologist/clinical immunologist, one infectious disease
physician, one nephrologist, one paediatrician[sic]/rheumatologist, and one clinical
epidemiologist.” Id. They note that “[n]o studies have been performed comparing efficacy and
harms between patients with AIRD with stable and unstable disease[]” and that “almost all
vaccination studies in [AIRD] patients . . . addressed patients with quiescent disease.” Id. They
further note that “[s]tudies that also included patients with moderate or severe disease activity did
not show more frequent side effects or disease flares, or decreased efficacy in patients with [AIRD]
compared with healthy controls.” Id. However, they nonetheless note that “the numbers of patients
in these studies were too small to conclude that vaccination during active disease is safe and
efficacious.” Id. Therefore, the authors recommended that “vaccination in patients with [AIRD]
should ideally be administered during stable disease . . . .” Id. Regarding the inactivated flu
vaccine, the authors wrote that “[a]dverse events of [flu] vaccination in patients with [AIRD] seem
comparable to those in healthy controls, although there are no studies that are sufficiently powered
with regard to safety.” Id. at 4. They recommend that “[i]nactivated [flu] vaccination should be
strongly considered for patients with [AIRD].” Id. The authors conclude by writing that,
“[a]lthough many case reports have been published demonstrating flares of AIRD or new -onset
autoimmune diseases following vaccination, these adverse events remain rare and a causal
relationship has not been proved.” Id. at 6. They continue, “several controlled studies show no
difference in the occurrence of flares of AIRD after vaccination, although these studies have not
been powered to address specific adverse events, but efficacy. Because of the lack of sufficiently
powered studies focusing on harms, these issues remain an important item on the research agenda.”
Id.
Dr. Levinson took issue with the studies that Dr. Gershwin cited “[t]o link the alleged
vaccine-induced cytokines to [Petitioner’s] FGN,” which included “several studies that deal with
1) the interaction of pro[-] and anti-inflammatory cytokines during the course of host immune
responses . . . , and 2) the potential of pro-inflammatory cytokines to inflict renal tissue injury.”
Resp’t’s Ex. C at 6 (citing Pet’r’s Exs. 24–42). Dr. Levinson wrote that the first group of studies
“are of general interest and importance and have been appreciated for many years. However, they
are not relevant to considerations in this case, as there is no credible evidence that any of the
cytokines discussed are involved in the pathogenesis of FGN.” Id. In terms of the second group of
studies, Dr. Levinson noted that, “although there is good evidence that pro -inflammatory cytokines
87S. van Assen et al., EULAR Recommendations for Vaccination in Adult Patients with Autoimmune
Inflammatory Rheumatic Diseases, 70 ANN. RHEUM. DIS. 414 (2011).
31
can cause renal tissue injury in other autoimmune diseases,” these studies concern “experimental
animal models of autoimmune glomerulopathies and human autoimmune glomerulopathies in
which tissue injury is initiated by antibodies that target renal tissue for destruction . . . .” Id. (citing
Pet’r’s Exs. 27–31, 38, 40, 42). Dr. Levinson opined that he is “not aware of any credible evidence
that such adaptive immune precipitants lead to the characteristic pathologic fibrillary changes seen
in FGN and none of these factors were detected during the course of [Petitioner’s] diagnostic
evaluation.” Id. He wrote that these articles “deal with studies in which renal tissue injury is
attributed to pro-inflammatory cytokines that are produced locally, i.e., in the kidneys, by cells
that are either renal tissue constituents or inflammatory cellular immigrants.” Id. (citing Pet’r’s
Exs. 26–30, 38–42) (emphasis in original). Dr. Levinson contrasted that with Dr. Gershwin’s
theory, which “proposed that cytokines produced at sites remote from the kidneys in response to
the [flu] vaccine promoted damage to [Petitioner’s] kidneys.” Id. Dr. Levinson opined that “[t]here
is no basis for such a claim unless [Dr. Gershwin] is invoking a vaccine-induced cytokine storm.
And surely there is no evidence that this catastrophic event occurred.” Id.
Regarding the onset of Petitioner’s FGN, Dr. Levinson wrote that “Dr. Gershwin is on
shaky grounds when he makes claims about the vaccination aggravating a disease process whose
time of onset relative to the vaccination is unclear to him.” Resp’t’s Ex. C at 4. Dr. Levinson took
issue with Dr. Gershwin’s opinion that Petitioner’s “persistent nausea, emesis, diarrhea and
abdominal pain . . . in the two weeks leading up to her [November 21, 2013] hospital visit were
the by-products of an exacerbation of [her] FGN.” Id. Dr. Levinson described this conclusion as
“a giant leap of faith[,]” and he instead opined that “those symptoms represented an unrelated
gastrointestinal illness.” Id. He continued that “it is extremely likely that this illness, which was
associated with intravascular volume depletion and resultant dehydration . . . contributed to the
renal insufficiency that was first noted at that time.” Id. Dr. Levinson testified that Petitioner’s CT
scan of her intestines showed “signs of acute diverticulitis.88” Tr. 121:25–122:2. Dr. Levinson
explained that “acute diverticulitis . . . is a pretty significant disorder[, which] . . . is associated
with inflammation . . . .” Tr. 122:3–6. In addition, Dr. Levinson discussed Petitioner’s blood tests
conducted during her brief hospitalization, which showed “leukocytosis, [or] an elevated white
cell count, which would go along with underlying inflammation, particularly an infection.” Tr.
122:17–19.
Dr. Levinson also took issue with Dr. Gershwin’s assertion that the flu vaccine
exacerbated Petitioner’s FGN, resulting in Petitioner reaching ESRD faster than what is normally
expected with this disease. Resp’t’s Ex. C at 4. In doing so, Dr. Levinson cite d to the Rosenstock
et al. article. See id.; see also Resp’t’s Ex. C, Tab 1.89 While Dr. Levinson agreed that “the median
time of progression to [ESRD] in this . . . study . . . was reported to be 24.4 [plus/minus] 15.2
months,” he noted that, “clearly, the length of progression time is influenced by the pathology seen
on renal biopsy.” Resp’t’s Ex. C at 4. In the article, the authors wrote that, of the sixty-one patients
88 Diverticulitis is “inflammation of a diverticulum, especially inflammation related to colonic diverticula,
which may undergo perforation with abscess formation.” Diverticulitis, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021). The diverticulum is “a circumscribed pouch
or sac of variable size occurring normally or created by herniation of the lining mucous membrane
through a defect in the muscular coat of a tubular organ. Diverticulum, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
89 Rosenstock et al., supra note 80.
32
with FGN included, forty-four percent of biopsies showed MPGN defined by mesangial expansion
with foci of mesangial interposition and replication of glomerular basement membrane 90 . . . .”
Resp’t’s Ex. C, Tab 1, at 4. In addition, “[t]wenty-one percent of biopsies had exclusively
mesangial proliferation or sclerosis (“MES”) [,]” while “[f]ifteen percent of patients had a diffuse
proliferative (“DPGN”)91 pattern characterized by endocapillary proliferation including focal
infiltrating leukocytes . . . .” Id. The authors further noted that seven percent of biopsies revealed
a “membranous [pattern],92 featuring predominantly subepithelial93 fibrillar deposits separated by
well-formed basement membrane spikes, with little or no mesangial hypercellularity[,]94” and
another “[t]hirteen percent of biopsies had a nondescript diffuse 95 sclerosing96 pattern (“DS”),
defined as glomerular sclerosis 97 obliterating [greater than seventy percent] of glomeruli . . . .” Id.
While the authors did note that “[t]he median time to ESRD was 24.4 [plus/minus] 15.2 months[,
with a] mean [of] 57.6 [plus/minus] 9.49 months[,]” they explained further that the “[m]ean time
to ESRD varied according to histologic subgroups.” Id. at 6. They wrote that “[t]he histologic
subgroups of DS, DPGN, and MPGN progressed more rapidly to ESRD[, with a] mean [of seven]
. . . , [twenty] . . . , and [forty-four] months[] respectively[,] compared to MES and MGN
[subgroups, with a] mean [of eighty] . . . and [eighty-seven] months[] respectively[].” Id.
Based on this study, Dr. Levinson wrote that “patients with the chronic irreversible change
of [DS] demonstrated a shorter time of progression from the time of diagnosis to [ESRD],
compared to patients with other histopathological subtypes.” Resp’t’s Ex. C at 4. He further noted
that Petitioner’s “renal biopsy demonstrated extensive histopathological signs of chronic and
irreversible disease including [DS]. Therefore, her rate of progression to [ESRD] would be
expected to be commensurate with the time period reported for such FGN patients studied in” the
Rosenstock et al. article. Id. Dr. Levinson wrote that Petitioner exhibited “[i]mpaired renal function
(creatinine of 2.8), proteinuria and hematuria . . . when she presented to [MVH] on November 21,
90 Glomerular membrane refers to “the fenestrated basement membrane of the visceral layer of the
glomerular capsule, lying adjacent to glomerular capillaries . . . .” Glomerular Membrane, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 2, 2021).
91 Diffuse glomerulonephritis is “a severe form in which there are proliferative changes in more than half
the glomeruli, frequently with epithelial crescent formation and necrosis[. I]t is often seen in cases of
advanced [SLE].” Diffuse Glomerulonephritis, DORLAND’S, https://www.dorlandsonline.com (last visited
Feb. 2, 2021).
92 This refers to membranous glomerulonephritis, which is “glomerulonephritis characterized
histologically by proteinaceous deposits on the glomerular basement membrane or by thickening of the
membrane, with circulating antigen-antibody complexes, indicating immune complex disease.”
Membranous Glomerulonephritis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3,
2021).
93 Subepithelial means “beneath the epithelium.” Subepithelial, DORLAND’ S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
94 Hypercellularity is “a state characterized by an abnormal increase in the number of cells present . . . .”
Hypercellularity, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
95 Diffuse means “not definitely limited or localized; widely distributed.” Diffuse, DORLAND’ S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
96 Sclerosing is “causing or undergoing sclerosis.” Sclerosing, DORLAND’ S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
97 Glomerular sclerosis, or glomerulosclerosis, is “fibrosis and scarring with senescence of the renal
glomeruli.” Glomerularsclerosis, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
33
2013.” Id. He explained that Petitioner began “[PD] . . . in June[] 2013 [sic].98” Id. Therefore, he
calculated that “the approximate time of her progression to [ESRD] from the time of her diagnosis
of a glomerulopathy was seven months and is totally consistent with the time period observed in”
the Rosenstock et al. article. Id.
During cross-examination, Dr. Levinson opined that the time period measured in the
Rosenstock et al. article “was . . . the time of diagnosis to the time of entering [ESRD].” Tr. 151:23–
152:3. After further questioning, Dr. Levinson conceded that “it’s not particularly clear[]” whether
this article was measuring from the time of diagnosis to ESRD or the time of biopsy to ESRD. Tr.
153:5–10. Dr. Levinson explained “that based on the reading [he] did, . . . [he] assumed that that
was from the time of diagnosis with a clinical disease of nephritis.” Tr. 154:24–155:2.
4. Respondent’s Expert, Dr. Fine
Dr. Fine wrote that FGN “is a poorly understood entity with limited treatment options.”
Resp’t’s Ex. A at 7. While he acknowledged that the causes of FGN are “unknown,” Dr. Fine
explained that FGN “has been associated with hematologic and nonhematologic malignancies,
plasma cell dyscrasias,99 autoimmune disease and [H]epatitis C.” Id. Dr. Fine found it “notable
that [FGN] has never been associated with the [flu] vaccine or any other vaccine.” Id. He then
discussed an association between FGN and Oxycodone use. See id. However, during his testimony,
Dr. Fine clarified that he did not believe that Petitioner’s Oxycodone use caused her FGN. Tr.
300:22–24. He explained that he included this discussion in his expert reports “because if someone
is going to claim that a flu vaccine did it and there's never been a publication and she's on a
substance that has been described as causing . . . [FGN], then at least there's a paper on something
else that she is exposed to.” Tr. 301:1–6. He continued, “[s]o if one is going to speculate that a
vaccine did it and there's no data and you've got something that she is taking and there is data, it
makes [Oxycodone use] more likely than at least the flu shot.” Tr. 301:6–9. Dr. Fine concluded
this discussion by stating that, “as of now, [he does not] have any reason to believe that Oxycodone
was certainly not more likely than not [the cause of Petitioner’s FGN].” Tr. 301:13–14. In fact, Dr.
Fine believed that it was “much less likely than not that Oxycodone was the culprit.” Tr. 301:15–
16.
Regarding Petitioner’s health pre-vaccination, Dr. Fine opined that she exhibited two
symptoms that are considered manifestations of kidney disease. The first is hypertension. Resp’t’s
Ex. A at 4–5. Dr. Fine wrote that “[h]ypertension is a well[-]described feature of chronic kidney
disease.” Id. at 5. He cited to the National Kidney Foundation’s Clinical Practice Guidelines for
98 Petitioner had her PD catheter placed in June 2014, which would be seven months from November
2013. See Pet’r’s Ex. 4 at 2–3. It is clear based on context that Dr. Levinson’s reference to June 2013 is a
typographical error.
99 Plasma cell dyscrasias are “a diverse group of neoplastic diseases involving proliferation of a single
clone of cells producing a serum M component (a monoclonal immunoglobulin or immunoglobulin
fragment).” Plasma Cell Dyscrasias, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3,
2021). An M component is “an abnormal monoclonal immunoglobulin with a characteristic
electrophoretic pattern, occurring in the serum of patients with plasma cell dyscrasias and formed by the
proliferating concentrations of immunoglobulin-producing cells.” M Component, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
34
Chronic Kidney Disease: Evaluation, Classification and Stratification as support. Id.; Resp’t’s Ex.
A, Tab 1.100 The guidelines state that “[h]igh blood pressure is both a cause and a complication of
chronic kidney disease.” Resp’t’s Ex. A, Tab 1, at 45. When hypertension arises “[a]s a
complication, [it] may develop early during the course of chronic kidney disease and is associated
with adverse outcomes – in particular, faster loss of kidney function and development of
cardiovascular disease.” Id. Dr. Fine also cited to an article by Coresh et al. as support. Resp’t’s
Ex. A at 5; Resp’t’s Ex. A, Tab 3. 101 In this study, the authors conducted “[a] cross-sectional study
of a representative sample of the US population . . . using 16,589 adult participants aged
[seventeen] years and older . . . .” Resp’t’s Ex. A, Tab 3, at 1. They defined elevated serum
creatinine as 141 μmol/L or higher (~1.6 mg/dL) for men and 124 μmol/L or higher (~1.4 mg/dL)
for women (>99th percentile for healthy young adults) . . . .” Id. The authors found that, among
others, “[h]igher systolic and diastolic blood pressures, presence of hypertension, [and]
antihypertensive medication use . . . were all associated with higher serum creatinine levels.” Id.
They further noted that “[a]n estimated [three percent] (5.6 million) of the civilian,
noninstitutionalized US population had elevated serum creatinine levels, [seventy percent] of
whom were hypertensive.” Id.
Furthermore, Dr. Fine testified that he submitted two additional articles “that document[]
the prevalence of hypertension in patients with FGN[,]” which show that “around [seventy]
percent” of FGN patients have hypertension. Tr. 194:2–12. The first of these articles is by Nasr et
al., which was also discussed by Dr. Ballouk and described in more detail in section III.B.2 above.
The authors of this article wrote that, of the sixty-six FGN patients studied, seventy-one percent
presented with hypertension. Resp’t’s Ex. A, Tab 5, at 1. The second article, by Javaugue et al.,
was also discussed by Dr. Ballouk and described in section III.B.2 above. Resp’t’s Ex. A, Tab 7.
The authors of this article wrote that, “at the time of diagnosis,” seventy percent of the patients
they studied “presented with hypertension . . . .” Id. at 2.
Dr. Fine stated these four studies are relevant because “when [hypertension] appears when
you're not expecting it, it suggests the possibility of kidney disease . . . .” Tr. 294:19–21. He
explained that “hypertension . . . is often the first sign of kidney disease,” and that “in the presence
of [CKD], whatever [the] cause, hypertension is very frequent, maybe even [occurring] the
majority of the time as . . . one’s disease progresses.” Tr. 294:23 –295:11. He further explained that
“in the context of what happened to [Petitioner], it makes sense that [hypertension ] was the onset
of her kidney disease.” Tr. 294:21–22. Regarding Petitioner, Dr. Fine explained that “her blood
pressure measurements from August 2010 to May 2011 were very stable and ranged from 112–
122/62–80 . . . . This appears to be her stable baseline blood pressure.” Resp’t’s Ex. A at 2. He
noted that Petitioner’s “blood pressure [was] first noted to be elevated in July and August of 2011,
long before her vaccine exposure.” Id. at 4. Dr. Fine stated that Petitioner’s heart rate was also
higher than her baseline when she had her initial high blood pressure readings. Id. Dr. Fine
acknowledged that her higher heart rate on these initial occasions might indicate that her high
blood pressure readings were due to pain or anxiety. Id. at 2–3. He noted, however, that she had
blood pressure and heart rate readings within her baseline range in May 2011, when she also had
100 National Kidney Foundation, K/DOQI Clinical Practice Guidelines for Chronic Kidney Disease:
Evaluation, Classification and Stratification, 39 (Supp. 1) AM. J. KIDNEY DIS. S1 (2002).
101 Josef Coresh et al., Prevalence of High Blood Pressure and Elevated Serum Creatinine Level in the
United States, 161 ARCH. INTERN. MED. 1207 (2001).
35
a pain score of 7/10. Id. at 3. Regarding Petitioner’s blood pressure readings, Dr. Fine continued,
“[a]fter [July and August 2011], while they intermittently returned to baseline levels, [Petitioner’s]
blood pressures were generally higher than the prior baseline, fluctuated more[,] and were
interspersed with spikes in blood pressure . . . .” Id. at 4–5. Dr. Fine also noted that, “[m]ost
importantly, [Petitioner’s] highest blood pressure of 176/124 . . . occurred on August 20, 2013,
approximately a month prior to administration of the influenza vaccine on September 23, 2013 . .
. .” Id. at 5. Dr. Fine concluded that “[t]hese blood pressure changes suggest that [Petitioner’s]
kidney disease was present for some time prior to diagnosis, and the very severe elevation in
August 2013[,] certainly suggests that the disease was already flaring prior to the September 2013
vaccination.” Id.
In addition to hypertension, Dr. Fine also stated that Petitioner’s “lower extremity edema,”
noted on at least three separate visits prior to her vaccination, were manifestations of her FGN. Tr.
298:14–20. Dr. Fine noted that “edema is quite common[]” in kidney disease patients. Tr. 298:24–
299:1. He explained that edema is “really a reflex of the ability of the kidney to get rid of fluid,
although ultimately it’s more related to salt than fluid. . . . [T]he two go hand[-]in[-]hand.” Tr.
299:1–4. He further explained that:
if you have either a declining kidney function, you could get fluid, or if you have
excessive wasting of protein in the urine, people tend to retain sodium and get
swollen as well. It's not specific for kidney disease, but in someone who has no
other explanation, one has to consider kidney disease as being one of the
possibilities.
Tr. 299:5–11. In the Javaugue et al. study discussed above, the authors wrote that fifty-six percent
of the patients studied had “lower-limb edema” at the time of FGN diagnosis. Resp’t’s Ex. A, Tab
7, at 2.
Dr. Fine, however, stated that he did not believe that the Petitioner’s symptoms of
abdominal pain, nausea, vomiting, and diarrhea when she presented to the hospital on November
21, 2013, were the manifestation of her FGN. Tr. 302:24–303:8. He explained that “kidney disease
does not usually present with these symptoms.” Tr. 303:10–11. While he noted that “nausea and
vomiting are well established symptoms of advanced kidney disease[,]” Dr. Fine explained that
they are “just generally not symptoms [he’s] going to see until . . . [a] very advanced [glomerular
filtration rate (“GFR”)102 . . . .” Tr. 303:11–12, 17–18. Dr. Fine also stated that “[d]iarrhea is not a
symptom of kidney disease that he’s ever heard of.” Tr. 303:20 –21. Dr. Fine noted that “patients
with kidney disease [may] present with diarrhea for some other reason[,]” but stated that, “in
general, as a manifestation of either acute or [CKD], diarrhea is not something that would make
[him] think . . . [someone has a] kidney disease.” Tr. 303:24–304:2. Rather, Dr. Fine opined that
102 The glomerular filtration rate is “the quantity of glomerular filtrate formed per unit time in all
nephrons of both kidneys, equal to the inulin clearance; usually measured clinically by the endogenous
creatinine clearance.” Glomerular Filtration Rate, DORLAND’S, https://www.dorlandsonline.com (last
visited Feb. 3, 2021). Glomerular filtrate is “the ultrafiltrate of plasma that passes across the membranes
of the renal corpuscles into the urinary space.” Glomerular Filtrate, DORLAND’S,
https://www.dorlandsonline.com (last visited Feb. 3, 2021).
36
Petitioner’s symptoms would have “immediately [put] the focus . . . on abdominal issues.” Tr.
304:5–7.
In addition, Dr. Fine argued that three diagnostic findings show that Petitioner likely was
suffering from a gastrointestinal illness at the time of her November 21, 2013 hospitalization. First,
Dr. Fine noted that Petitioner had “a high white blood cell count” during her brief hospitalization.
Tr. 304:7–8. He further stated that “Dr. Ballouk made an allusion to [Petitioner’s] volume
depletion, . . . the idea [being] as you lose water in the blood, the white [cell] count concentration
goes up. That is not an accepted teaching. Hemoglobins 103 can go up when you get volume
depleted, white [cell] counts generally don’t.” Tr. 306:11–15. Dr. Fine explained that “white cell
counts don’t go up just because of kidney failure. Generally [,] a high white blood cell count
suggests an inflammatory or an infectious condition.” Tr. 306:8–10. Furthermore, Dr. Fine
explained that “if the white count went up because of hemodilution,104 all the subtypes of white
cells would go up together, but in her case, the one that indicates infection was actually higher than
all the rest.” Tr. 306:1–19. Therefore, he concluded “that the higher white cell count was not a
feature of volume depletion[] but was truly a high white blood cell count.” Tr. 306:21–23.
Second, Dr. Fine stated that, “on [Petitioner’s] white count, there was what [is] . . . call[ed]
a left shift.” Tr. 304:13–14. He explained a “left shift” is “a high number of neutrophils,105 which
generally suggests an infection.” Tr. 304:14–15. Third, Dr. Fine noted that Petitioner’s abdominal
“CT did show something that suggested a mild diverticulitis.” Tr. 304:18 –19. He explained that
diverticulitis “is little appendices on the other side of the bowel.” Tr. 305:2–3. He disagreed with
Dr. Ballouk that diverticulitis cannot last “for [only] two weeks,” as “there are cases of
diverticulitis that spontaneously resolve.” Tr. 304:20–23. In addition, Dr. Fine testified that “[t]he
other feature that suggests . . . that this was gastrointestinal is [that] it resolved, and . . . [Petitioner]
specifically [stated] that after this, she had intolerance of milk products . . . .” Tr. 305:3 –8. He
explained that “one of the most common causes of [lactose intolerance] is a gastroenteritis 106 type
of presentation.” Tr. 305:15–16. Dr. Fine opined that, taken together, “it’s sort of added evidence
that this was just a GI complaint.” Tr. 306:20–21.
Dr. Fine also discussed the renal function testing performed during Petitioner’s brief
hospitalization and her estimated GFR (“EGFR”). In terms of testing renal function, Dr. Fine
explained that “the standard test that [doctors] use, the most . . . reliable test [doctors] have is the
creatinine [test].” Tr. 307:5–6. Dr. Fine further explained that creatinine levels differ person to
person, where “creatinine in a very muscular person tends to be higher because it's made by [the]
103 Hemoglobin is “the red oxygen-carrying pigment of the erythrocytes, formed by developing
erythrocytes in bone marrow.” Hemoglobin, DORLAND’S, https://www.dorlandsonline.com (last visited
Feb. 4, 2021).
104 Hemodilution is an “increase of the fluid content of the blood with resulting decrease in concentration
of its erythrocytes.” Hemodilution, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 4,
2021).
105 Neutrophils are “mature granular leukocytes that [are] polymorphonuclear (its nucleus having three to
five lobes connected by slender threads of chromatin, and cytoplasm containing fine granules).”
Neutrophil, DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 3, 2021).
106 Gastroenteritis is “inflammation of the lining of the stomach and intestines . . . .” Gastroenteritis,
DORLAND’S, https://www.dorlandsonline.com (last visited Feb. 4, 2021).
37
muscle[s], and in someone who is less muscular, it will be lower.” Tr. 307:22–25. Because “age,
race and gender all affect muscle mass indirectly[,]” Dr. Fine testified that there is a “calculation,
or . . . formula that’s used[]” to “measure . . . the ability of the kidney to clear toxins.” Tr. 307:25–
308:2, 9–10. Dr. Fine explained that the formula “includes the creatinine [level], but then it tries
to normalize that to the other features by looking at age, race[,] and gender[,]” and the number
calculated by this formula is called the GFR. Tr. 308:2–8. He noted that “[t]he lower your GFR,
the less well you clear toxins.” Tr. 308:10–11. Dr. Fine testified that a “normal” GFR is “more
than [ninety].” Tr. 308:17. He further testified that the GFR “more or less reflects percent of kidney
function. So[,] if [GFR is] at [twenty], [then that person] has [twenty] percent of the normal kidney
function.” Tr. 308:18–20.
Dr. Fine explained that there are five stages of kidney disease and that “the staging of
kidney disease is specifically based on [EGFR].” Tr. 308:23–309:1. Dr. Fine testified that the
stages of kidney disease are as follows:
Stage one is when the EGFR is more than [ninety]; stage two is [sixty] to [eighty-
nine]; stage three [is thirty] to [fifty-nine]; and then stage four is [fifteen] to [thirty]
. . . Stage five is less than [fifteen] and that's usually considered sort of near [ESRD],
or [ESRD].
Tr. 309:1–6.107 Dr. Fine explained that an EGFR of “below [fifteen is] . . . when [doctors] really
start to monitor patients very closely for dialysis needs[,]” which usually begins once the patient
exhibits “symptoms like nausea and vomiting, poor appetite.” Tr. 309:6 –9.
During Petitioner’s November 21, 2013 hospitalization, Dr. Fine noted that her creatinine
level was 2.8, which equated to an EGFR of “20 ml/min/1.73m2[,] representing approximately
[twenty percent] of kidney function.” Resp’t’s Ex. E at 3–4. Dr. Fine testified that this meant that
Petitioner was already in stage four of her kidney disease by her November 21, 2013
hospitalization. Tr. 309:10–14. Dr. Fine disagreed with Dr. Ballouk’s contention that Petitioner’s
creatinine was as high as it was because she was dehydrated. Tr. 309:15 –19. While he agreed that
“if [Petitioner] had gotten fluids and [doctors] rechecked her creatinine, it would probably have
been a little lower[,]” Dr. Fine opined that he did not “think that it would be less than two . . . .”
Tr. 309:19–22. He estimated that Petitioner’s creatinine after receiving fluids was “probably
somewhere around 2.5, but certainly it wouldn't have been a dramatic reduction in her creatinine
and hence [not a drastic] increase in that GFR number . . . . [Y]ou can have a creatinine of 2.4, 2.5,
[and] her GFR is still in the low [twenties].” Tr. 310:9–14. Further, Dr. Fine addressed the
difference between Petitioner’s creatinine readings in November 2013 and January 2014. He
explained that, as kidney function worsens, “the creatinine rises way faster than the amount of
kidney function you lose.” Tr. 311:11–15. He continued that this did not result in a “massive
change” in Petitioner’s EGFR. Tr.311:19–12. Dr. Fine stated that the rise in Petitioner’s creatinine
107 Dr. Fine’s testimony on the stages of kidney disease by EGFR closely tracks with the Kidney Disease
Improving Global Outcomes’ 2012 Clinical Practice Guidelines for the Evaluation and Management of
Chronic Kidney Disease that Dr. Fine submitted with his supplemental report. See Resp’t’s Ex. E, Tab 4,
at 21; Kidney Disease Improving Global Outcomes, 2012 Clinical Practice Guidelines for the Evaluation
and Management of Chronic Kidney Disease, 3(1) KIDNEY INTERN. SUPP. 1, 21 (2013).
38
levels did not signal rapid progression because “[r]apidly progressive patients lose . . . half their
kidney function in weeks.” Tr. 311:22–24.
Dr. Fine took issue with how Petitioner characterized the Nasr et al. study and applied it to
her disease progression. He testified that this study was “a case series, which is just a number of
patients . . . [where researchers] look at what happens to [the patients] and how they presented . .
. .” Tr. 313:11–13. He wrote that this “study is a retrospective one which is not designed to predict
‘expected’ progression.” Resp’t’s Ex. E at 3. Rather, Dr. Fine opined that “[i]t is a descriptive
study that presents a series of patients and how their disease behaved in order to give the reader
insights into the disease.” Id.
Nevertheless, Dr. Fine explained that “the features of [Petitioner’s] disease, both clinical
and histopathologic, are entirely consistent with those presented in this study of a relatively small
patient population with a rare disease.” Id. Specifically, Dr. Fine referred to a chart on page seven
of the article, which “shows . . . the four factors that would predict, in their group of patients, at
the time of biopsy, which [patient] is going to do the worst.” Tr. 314:14–19. In the article, the
authors “identified several independent predictors of ESRD by multivariate analysis . . . .” Resp’t’s
Ex. A, Tab 5, at 9. They listed “older age, higher creatinine at biopsy, higher 24-hour urine protein
at biopsy, and higher percentage of globally sclerotic glomeruli” as “predictors of renal survival
in [FGN].” Id. Dr. Fine explained each predictor in greater detail during his testimony. He
explained that, for the old age factor, “the older you are, your hazard ratio is one more, for each
year in age, you have 0.12 percent, or [twelve] percent increased risk [of reaching ESRD].” Tr.
314:21–23. For the urine protein factor, Dr. Fine stated that “the higher the urine protein, the more
likely [the patient is] going to be on dialysis.” Tr. 314:25–315:2. Regarding serum creatinine at
biopsy, Dr. Fine explained that “the higher that is, the greater risk of meeting [ESRD, which] . . .
make[s] sense[] because . . . if you have higher creatinine, [then] you have mo re damage to your
kidneys and are more likely to end up on dialysis.” Tr. 315:3 –8. Lastly, he explained that “globally
sclerotic glomerulus is a dead glomerulus, [and] the more you have, the more likely you’re going
to be on dialysis.” Tr. 315:9–12.
Looking at these factors, Dr. Fine opined that Petitioner “had high levels of proteinuria and
creatinine at [the] time of biopsy and very high percent of sclerosed glomeruli.” Resp’t’s Ex. A at
7. The only factor Dr. Fine did not believe applied to Petitioner was age. Tr. 316:2–3. Therefore,
Dr. Fine concluded that “[i]t is not surprising . . . that she went on to develop ESRD.” Resp’t’s Ex.
A at 7.
Dr. Fine also discussed Petitioner’s renal biopsy results in detail in both his written reports
and testimony. Dr. Fine testified that he believed that “there are significant clues as to how long
[Petitioner’s FGN] was there based on [her] biopsy [results].” Tr. 31 2:12–14. He discussed three
articles as support. The first was the Nasr et al. article. In this article, which studied sixty-six FGN
patients, the authors noted that only one of the patients had a form of FGN called “diffuse
sclerosing glomerulonephritis” (“DSGN”), which they defined as “[one hundred percent] of
glomeruli showing global sclerosis.” Resp’t’s Ex. A, Tab 5, at 3–4. They also noted that “fifty-
five cases ([eighty-three percent]) showed interstitial inflammation, which was predominantly
focal.” Id. at 4. In addition, they found that “[t]he degree of tubular atrophy and interstitial fibrosis
ranged from absent ([six percent] of cases) to mild ([fifty-one percent]) to moderate ([thirty-three
39
percent]) to severe ([nine percent]).” Id. The authors also found that the “[m]ean percentage of
globally sclerotic glomeruli” was twenty-five percent. Id. at 5.
In addition to the Nasr et al. study, Dr. Fine also referenced the Rosenstock et al. study in
support of his discussion of Petitioner’s biopsy results. Dr. Fine testified that this study “actually
break[s FGN] down . . . based on pathology findings . . . .” Tr. 318:22–319:2. The authors of this
study wrote that “[t]hirteen percent of biopsies had a nondescript diffuse sclerosing pattern . . . ,
defined as glomerular sclerosis obliterating [greater than seventy percent] of glomeruli . . . .”
Resp’t’s Ex. C, Tab 1, at 4. They also wrote that “[i]nterstitial disease was most severe in the
[diffuse sclerosing] subgroup, in which all biopsies . . . displayed moderate to severe interstitial
fibrosis . . . .” Id. While the authors found that “[t]he [overall] median time to ESRD was 24.4
[plus/minus] 15.2 months,” with an overall “mean [time to ESRD] of 57.6 [plus/minus] 9.49
months[,]” they further noted that the “[m]ean time to ESRD varied according to histologic subtype
. . . .” Id. at 6. They found that the diffuse sclerosing “subgroup[] . . . progressed more rapidly to
ESRD” than other subgroups, noting that patients of this group reached ESRD in a mean of seven
months. Id. A chart created by the authors showed that more than seventy percent of the diffuse
sclerosing subgroup of patients reached ESRD within two months from the date of biopsy. Id. at
10.
During his testimony, Dr. Fine also discussed the Rosenstock and Markowitz article, which
he described as a “more of a review type paper.” Tr. 326:16–17; Pet’r’s Ex. 55. On page two of
this article, the authors provide a chart in which they list the clinical characteristics of patients with
FGN included in the three studies reviewed by the authors. Pet’r’s Ex. 55 at 2. The authors found
that, “[a]t the time of presentation, [seventy percent] of patients had renal insufficiency, and the
mean serum creatinine was 2.9 . . . .” Id. at 1. They further noted that “[t]he mean [twenty-four]-
hour urine protein was 5.7 . . . , and [thirty-six percent] of patients met criteria for full nephrotic
syndrome.” Id. Dr. Fine stated that this study demonstrates that Petitioner’s FGN was a “classic”
presentation. Tr. 327:20.
Regarding Petitioner’s renal biopsy, Dr. Fine wrote that the “biopsy findings are typical of
an advanced [FGN] as described in the literature.” Resp’t’s Ex. A at 5. He noted that the biopsy
revealed “extensive interstitial inflammation.” Tr. 340:23–24. He further noted that “[eighteen]
out of [twenty-three] of [Petitioner’s glomeruli] . . . were dead glomeruli[,]” and “three other
glomeruli that show segmental sclerosis, so it's starting to scar off, but it's probably an earlier stage
scarring, with a significant lesion, glomerular tufts, and [the pathologists] say, ‘glomeruli show
marginal increase in mesangial matrix . . . .” Tr. 339:10–12, 342:2–7. The results also revealed a
“mild increase in cellularity due to few mononuclear cells. So[,] the few mononuclear cells say
[there’s] maybe a little bit of inflammation, but this mesangial matrix increases the mesangial type
lesion.” Tr. 342:9–12. He continued, “in the three glomeruli that [he] ha[s] that [he] can actually
get real information out of, there isn't any evidence of something that's highly active.” Tr. 342:12–
15. He further testified that the pathologists wrote “[t]he glomeruli do not show evidence of
crescent formation, fibrinoid necrosis, thrombosis, or endocapillary proliferation.” Tr. 343:2–4.
Dr. Fine opined that they wrote this “because they want [the nephrologist reading the results] to
know that, because it's actually important in determining how active is the lesion.” Tr. 343:5–8.
Dr. Fine argued that Petitioner’s theory that she “had a rapid loss of kidney function” fails because
that type of deterioration doesn’t happen “without crescentic GN or some really aggressive
40
inflammation[,] which almost always results in crescentic formation.” Tr. 344:9, 16–18. Dr. Fine
opined that “[i]f there was ongoing active disease that was bad enough to cause renal failure from
September through to the time of the biopsy,” then “you would see evidence of whatever that
process was that would do that.” Tr. 345:3–5, 9–11. Dr. Fine noted that the “proliferative types [of
FGN act in that manner], but there’s no evidence [on Petitioner’s biopsy] of proliferation.” Tr.
345:13–14. However, he further noted that “the mesangial process doesn't behave that way.” Tr.
345:12–13.
Dr. Fine disagreed with Dr. Ballouk that the lack of crescent formations on Petitioner’s
biopsy would be expected because the literature only notes that a small percentage of patients have
crescents. Tr. 347:9–17. He submitted an article by Pusey, which provides more information on
crescentic formations in renal injury. Resp’t’s Ex. A, Tab 6. The author wrote that crescents are a
“hallmark of inflammatory [GN] and a histologic marker of severe glomerular injury.” Id. at 1. He
further wrote that “[c]rescentic [GN] is typically associated with the syndrome of rapidly
progressive [GN] . . . .” Id. He explained that “[g]lomerular crescent formation appears to represent
a nonspecific response to severe injury to the glomerular capillary wall[,]” and therefore “crescent
formation appears to be a consequence, not a cause, of severe glomerular injury.” Id. at 1, 9. Dr.
Fine wrote that “a currently active glomerular disease would be expected to present with cellular
crescents on biopsy, and one that was previously active but now ‘burnt out’ will have fibrous
crescents (or sclerosed crescents).” Resp’t’s Ex. E at 4. He explained that “crescents evolve over
time from cellular to fibrous, and later the entire glomerulus may sclerose or scar . . . .” Id. He
further explained that “fibrous crescents will be present for months after the initial crescent
formation and remain as evidence of a recent active lesion . . . .” Id. Dr. Fine stated that “the
hallmark of [rapidly progressive] . . . renal lesions is the presence of a crescent.” Tr. 349:14–15.
Dr. Fine noted that Petitioner’s biopsy did not show crescents, but rather “[o]nly [showed]
sclerosed glomeruli,” and he therefore concluded that Petitioner’s “disease was present for a very
long time.” Resp’t’s Ex. E at 4.
During his testimony, Dr. Fine opined that Petitioner’s FGN course was “typical.” Tr.
354:7–9. He argued that Petitioner’s “course is . . . what you see in someone who has had
longstanding [FGN] . . . .” Tr. 354:21–22. He explained that “the reason it’s longstanding is it is
asymptomatic. You don’t get symptoms. [A patient] might get hypertension, but . . . physicians
are saying, . . . a lot of people get hypertension, and so [the physicians] ignore it or just expect
[hypertension] for that particular patient.” Tr. 354:23–355:2.
Regarding onset of Petitioner’s FGN, Dr. Fine testified that he “sort of work[ed]
backwards.” Tr. 355:8–11. He explained that Petitioner had “a very advanced lesion[,]” which he
stated “usually takes years to develop.” Tr. 355:11–12. In addition, Dr. Fine testified that “based
on pathology alone, [he] would . . . [estimate that] it’s been there for years.” Tr. 355:23 –24. He
wrote that “there were no cellular crescents [present on Petitioner’s biopsy] suggesting no ongoing
severe disease activity, and no fibrous crescents, suggesting no recent activity.” Resp’t’s Ex. E at
4. Rather, Dr. Fine explained that Petitioner’s biopsy only rev ealed “sclerosed glomeruli . . . ,
which indicates that the disease was present for a very long time.” Id. He estimated that, although
“an exact [onset] date is hard to determine, based on [his] clinical practice and experience . . . , the
presence of global sclerosis of the diffuse nature seen on this kidney biopsy suggest that the
damage had occurred more than [five] months before the biopsy.” Id. He expounded on this belief
41
during his testimony. He noted that “the first signs [he] see[s] of something that would go with the
kidney disease is the hypertension, the edema, and they both occur actually very similarly around
the middle July, August of 2011 . . . .” Tr. 355:14 –17. He further stated that “the fact that the
glomerulus that's actually visible, that isn't dead yet, that mesangial form of fibrillary supports that
this is the way that it would have progressed, would have been over a very long period of time.”
Tr. 356:8–13. Therefore, Dr. Fine estimated that the onset of Petitioner’s FGN occurred in 2011.
Tr. 356:14–15.
On cross-examination, Dr. Fine explained that Dr. Lutes’ assessment that Petitioner had
“renal insufficiency with nephrotic syndrome, [which] again, . . . has developed acutely over the
past few months[]” did not change his opinion that Petitioner’s FGN developed over a period of
years. Tr. 367:15–21. He opined that Dr. Lutes “was wrong[]” in his opinion because Dr. Lutes
“can't say it's acute or chronic at [that] point.” Tr. 368:21–22. He continued, “at the time that Dr.
Lutes” made that assessment, “all he has is one creatinine, and one creatinine doesn’t tell you
where [Petitioner is] in the course of [her] disease.” Tr. 367:25–368:2.
Under my questioning, Dr. Fine stated that he had seen “triggers” in patients with
“otherwise asymptomatic kidney disease” but not in FGN patients because he’s “seen too few of
them.” Tr. 377:25–378:5. In kidney diseases other than FGN, Dr. Fine listed infection, medication,
and stress as “triggers . . . for kidney diseases that can make them flare or get worse.” Tr. 378:6–
9. However, Dr. Fine opined that, if Petitioner’s FGN “flared” because of an infection, for
example, he “would have seen it on the biopsy three months later.” Tr. 379:9–12.
I also asked Dr. Fine what he thought of Petitioner’s PCP’s statement that Petitioner’s
biopsy “results . . . showed a lot of fibrosis, so she thinks that this may have been ongoing longer.”
Tr. 384:5–7, 9–10 (quoting Pet’r’s Ex. 12 at 26). Dr. Fine responded that he “think[s] that’s the
whole premise of [his] argument . . . .” Tr. 384:11–12. He explained that this “[t]ells [him
Petitioner’s FGN] . . . wasn’t acute. This . . . was a longstanding lesion that was present for certainly
more than five months . . . . This is years of lesion, before you get that level of fibrosis.” Tr.
384:15–20.
IV. Applicable Legal Standards
A petitioner in the Program is entitled to compensation if a special master determines “on
the record as a whole” that the petitioner “has demonstrated by a preponderance of the evidence
the matters required in the petition by [ § 300aa-11(c)(1)], and that there is not a preponderance of
evidence that the illness, disability, [etc.] described in the petition is due to factors unrelated to the
[vaccination].” § 300aa-13(a)(1)(A)–(B). A special master cannot award compensation “based on
the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.” §
300(a)(1). Although a special master must consider all “diagnos[e]s, conclusion[s], [and] medical
judgment[s] . . . regarding the nature, causation, and aggravation of the petitioner’s [condition],”
as well as diagnostic or evaluative tests, such are not binding on the court. § 300(b)(1). When
considering the weight to be afforded to such medical evidence, the special master must “consider
the entire record and the course of” the petitioner’s condition. Id.
A. Petitioner’s Overall Burden in Program Cases
42
To receive compensation under the Vaccine Act, a petitioner must demonstrate either that:
(1) her condition is a “Table Injury,” and therefore resulted from the receipt of a covered vaccine
or vaccines within the time frame prescribed by the Vaccine Injury Table set forth at § 14, as
amended by 42 C.F.R. § 100.3; or (2) her condition is an “off-Table Injury,” one not listed on the
Table, that resulted from her receipt of a covered vaccine. See § 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’s claim that the flu vaccination
significantly aggravated her kidney failure and glomerulonephritis does not fall within the Vaccine
Table. Thus, Petitioner must prove that her flu vaccination was the cause-in-fact of the aggravation
of her condition.
To establish causation-in-fact, a petitioner must demonstrate by a preponderance of the
evidence that her vaccine was the cause of injury. § 13(a)(1)(A). A petitioner need not show that
the vaccination was the sole cause, or even the predominant cause, of the alleged injury; showing
that the vaccination was a “substantial factor” and a “but for” cause of the injury is enough for
recovery. Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006); Shyface
v. Sec’y of Health & Hum. Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999).108
In Althen v. Sec’y 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 (Fed. Cir. 2005). The Althen test requires a petitioner 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. 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. (internal citations omitted).
Specifically, under the first prong of Althen, a petitioner must offer a scientific or medical
theory that answers in the affirmative the question “can [the] vaccine(s) at issue cause the type of
injury alleged?” See Pafford v. Sec’y of Health & Hum. Servs., No. 01-0165V, 2004 WL 1717359,
at *4 (Fed. Cl. Spec. Mstr. July 16, 2004), aff’d, 64 Fed. Cl. 19 (2005), aff’d, 451 F.3d 1352 (Fed.
Cir. 2006), cert. denied, 551 U.S. 1102 (2007). To satisfy this prong, a petitioner’s theory must be
based on a “sound and reliable medical or scientific explanation .” Knudsen v. Sec’y of Health &
Hum. Servs., 35 F.3d 543, 548 (Fed. Cir. 1994); see also Andreu v. Sec’y of Health & Hum. Servs.,
569 F. 3d 1367, 1375, 1379 (2009) (ruling that the petitioners had satisfied Althen prong one where
their expert witness had “presented a ‘biologically plausible’ theory”). Such a theory must only be
“legally probable, not medically or scientifically certain.” Knudsen, 35 F.3d at 548–49.
A petitioner may satisfy this prong in a number of ways. “Reliability and plausibility of . .
. pathogenesis can be bolstered by providing evidence that at least a sufficient minority in the
medical community has accepted the theory, so as to render it credible.” Pafford, 2004 WL
1717359, at *4. Additionally, “epidemiological studies and an expert’s experience, while not
108 The Vaccine Act also requires petitioners to show by preponderant evidence that the “residual effects
or complications” of the alleged vaccine-related injury lasted for more than six months. § 11(c)(1)(D)(i).
It is undisputed that this six-month requirement is satisfied in this case.
43
dispositive, lend significant credence to the claim of plausibility.” Id. Medical literature published
in respected medical journals is also persuasive. Id. “However, publication ‘does not necessarily
correlate with reliability’, because ‘in some instances well-grounded but innovative theories will
not have been published.’” Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–
94 (1993) (emphasis in original)). However, “a petitioner can satisfy her burden to prove a
plausible medical theory without resort to medical literature, epidemiological studies,
demonstration of a specific mechanism, or a generally accepted medical theory[.]” Sharpe, 964
F.3d 1072, 1085 (Fed. Cir. 2020) (citing Andreu, 569 F.3d at 1378–79).
In addition to showing that the vaccine at issue can cause a particular injury, a petitioner
must also, under Althen’s second prong, prove that the vaccine actually did cause the alleged injury
in a particular case. See Pafford, 2004 WL 1717359, at *4; Althen, 418 F.3d at 1278. A petitioner
does not meet this obligation by showing only a temporal association between the vaccination and
the injury; the petitioner “must explain how and why the injury occurred.” Pafford, 2004 WL
1717359, at *4 (emphasis in original) (internal citations omitted).
Although a temporal association alone is insufficient to establish causation, under the third
prong of Althen, a petitioner must show that the timing of the injury fits with the causal theory.
See Althen, 418 F.3d at 1278. The special master cannot infer causation from temporal proximity
alone. See Thibaudeau v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 400, 403–04 (1991); see also
Grant v. Sec’y of Health & Hum. Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992) (“[T]he inoculation
is not the cause of every event that occurs within the ten[-]day period. . . . Without more, this
proximate temporal relationship will not support a finding of causation.” (quoting Hasler v. United
States, 718 F.2d 202, 205 (6th Cir. 1983))).
B. Standards Applicable to Significant Aggravation Claims
Petitioners must establish causation in all off-Table cases; however, petitioners may
establish they are entitled to compensation based on a claim that vaccination significantly
aggravated a pre-existing condition. Here, Petitioner asserts that the flu vaccine significantly
aggravated her pre-exiting FGN. The Vaccine Act defines significant aggravation as “any change
for the worse in a pre[-]existing condition which results in markedly greater disability, pain, or
illness accompanied by substantial deterioration of health.” § 300aa -33(4). When a petitioner
makes this argument, the evidentiary burden is expanded. See Loving v. Sec’y of Health and Hum.
Servs., 86 Fed. Cl. 135, 144 (2009). In Loving, the Court set forth a six-factor test, which requires
establishing the following:
(1) the person’s condition prior to administration of the vaccine, (2) the person’s
current condition (or the condition following the vaccination if that is also
pertinent), (3) whether the person’s current condition constitutes a “significant
aggravation” of the person’s condition prior to vaccination, (4) a medical theory
causally connecting such a significantly worsened condition to the vaccination, (5)
a logical sequence of cause and effect showing that the vaccination was the reason
for the significant aggravation, and (6) a showing of a proximate temporal
relationship between the vaccination and the significant aggravation.
Loving, 86 Fed. Cl. at 144.
44
The Loving analysis requires the special master to “evaluat[e] whether the vaccine made
the person worse than the person would have been but for the vaccination. In doing so, the natural
course of the disease must be considered.” Locane v. Sec’y of Health & Hum. Servs., No. 99-589V,
2011 WL 3855486 at *10 (Fed. Cl. Spec. Mstr. Feb. 17, 2011), mot. for review den’d, 99 Fed. Cl.
715 (2011), aff’d, 685 F.3d 1375 (Fed. Cir. 2012); see also Hennessey v. Sec’y of Health & Hum.
Serv., No. 01-190V, 2009 WL 1709053, at *41–42 (Fed. Cl. Spec. Mstr. May 29, 2009), mot. for
review den’d, 91 Fed. Cl. 126 (2010). However, a petitioner is not required “to demonstrate an
expected outcome and that her current-post vaccination condition was worse than such expected
outcome.” Sharpe, 964 F.3d at 1081.
V. Analysis
A. Loving Prong One – Condition Prior to Vaccination
The parties agree that Petitioner’s FGN predated her vaccination. However, they dispute
how long her disease had been progressing before her vaccination and whether she was
symptomatic before her vaccination. Regarding the onset of Petitioner’s FGN, neithe r party
proffers a precise date. Respondent’s experts opine that Petitioner was experiencing two classic
symptoms of renal disease, hypertension and edema, beginning in July and August 2011, more
than two years before her September 23, 2013 vaccination. Petitioner’s experts, in contrast, claim
that her disease began, asymptomatically, shortly before her vaccination. Petitioner’s experts
maintain that Petitioner did not experience symptoms of her FGN until after her vaccination. The
evidence in the record demonstrates that, by a preponderant standard, Petitioner was symptomatic
as of July 2011. Thus, by Petitioner’s September 23, 2013 vaccination, it is more likely than not
that she had been suffering from FGN for more than two years.
The articles submitted by Respondent, and cited by Petitioner’s expert, show that
hypertension and edema are associated with renal disease generally, and FGN specifically. The
Rosenstock et al. paper found that seventy-seven percent of FGN patients presented with
hypertension and sixty-seven percent of patients presented with edema. Resp’t’s Ex. C, Tab 1, at
4. The Nasr et al. study found that seventy-one percent of FGN patients had hypertension and fifty-
nine percent of patients had edema at biopsy. Resp’t’s Ex. A, Tab 5, at 4 ; see also Pet’r’s Ex. 50
at 1–2, 2 n.1. The Javaugue et al. article found that seventy percent of patients at biopsy exhibited
hypertension while fifty-six percent of patients exhibited edema. Resp’t’s Ex. A, Tab 7, at 2. These
articles demonstrate that a substantial majority of FGN patients exhibit hypertension and/or edema
during the course of their disease.
Furthermore, expert opinions in the record indicate that hypertension is often the first
symptom, and sometimes the only symptom in the early stages of renal disease. Dr. Fine stated
that “hypertension . . . is often the first sign of kidney disease . . . .” Tr. 294:23 –295:11. Dr. Fine
asserted that a person with longstanding FGN may have longstanding FGN precisely because she
is asymptomatic. Tr. 354:21–23. Dr. Fine indicated that an FGN patient might be asymptomatic
except for hypertension, which doctors commonly attribute to other causes. See Tr. 354:23–355:2.
45
The medical records first indicate that Petitioner suffered from hypertension and edema
during a July 12, 2011 visit with Dr. Nino. See Pet’r’s Ex. 1 at 28. Petitioner again presented with
edema on May 24, 2012, June 26, 2012, and May 30, 2013. Pet’r’s Ex. 1 at 6, 18 –19. During her
July 12, 2011 visit, Petitioner’s blood pressure reading was 138/90. Id. at 28. Her blood pressure
during her next appointment, on August 17, 2011, was 140/86. Id. at 27. These readings were
above Petitioner’s baseline from previous visits. See Resp’t’s Ex. A at 2. During previous visits
with Dr. Nino on January 22, March 7, April 18, and May 31, 2011, her blood pressure readings
were all within normal range at 118/62, 122/80, 112/66, and 118/80, respectively. Id. According
to the more recent of the two guidelines cited by the CDC, high blood pressure is 130 mm Hg or
higher systolic and 80 mm Hg or higher diastolic.109 Petitioner’s readings from July up to her
September 23, 2013 vaccination fluctuated, but were generally higher than her baseline.
Petitioner’s highest blood pressure reading during that time occurred on August 24, 2013,
approximately one month before her vaccination. Her blood pressure on August 24, 2013, was
176/124. Id. at 4.
While hypertension, even when accompanied by edema, may be too common to be used as
a basis for diagnosis of any specific disease, neither symptom can be discounted once a disease
associated with both symptoms is diagnosed. There are no other readily identified conditions or
injuries in Petitioner’s medical history that would cause edema and high blood pressure to appear
in such close proximity to each other. Furthermore, there is no evidence that Petitioner’s physicians
attributed her high blood pressure or edema to any other cause. See generally Pet’r’s Ex. 1. While
Petitioner does have a history of smoking and obesity, these are unlikely causes of her edema or
hypertension. Petitioner had a long history of obesity and smoking, but no history of hypertension
or edema prior to 2011. Notably, Petitioner testified that she quit smoking in the fall of 2013. Tr.
33:16–18. On January 22, 2014, she reported weight loss that had helped remedy her back pain.
Pet’r’s Ex. 12 at 30. Yet, even after she quit smoking and reported at least some weight loss,
Petitioner’s blood pressure was still significantly elevated at 160/110 on January 22, 2014. Id. at
31. Dr. Fine briefly considered whether pain or anxiety could have contributed to her high blood
pressure, but these too are unlikely. Petitioner had a history of both pain and anxiety, including
longstanding treatment with medication. Yet, Petitioner’s blood pressure did not begin to spike
until July 2011. Further, even if a different condition did explain Petitioner’s high blood pressure
on one or a few occasions, that would not account for why it was consistently high in years leading
up to her flu vaccination. Based on the expert testimony and the temporal relationships, I find it
more likely than not that Petitioner’s hypertension and edema were early indicators of Petitioner’s
FGN.
That Petitioner’s FGN began years before her vaccination is further supported by her
biopsy results. Dr. Fine testified that Petitioner’s biopsy showed “a very advanced lesion[,]” which
“usually takes years to develop.” Tr. 355:11–12. He continued that “based on pathology alone,
[he] would . . . [estimate that] it’s been there for years.” Tr. 355:23–24. Dr. Fine stated that the
presence of sclerosed glomeruli on biopsy “indicates that the disease was present for a very long
time.” Resp’t’s Ex. E at 4.
109See supra note 9. Petitioner’s readings are also close to qualifying as high blood pressure according to
the older set of guidelines mentioned by the CDC. See id.
46
Based on the foregoing, I find it more likely than not that Petitioner was suffering from and
exhibiting symptoms of FGN, in the form of hypertension and edema, for more than two years
prior to her vaccination.
B. Loving Prong Two – Current, or Post-Vaccination, Condition
Petitioner’s condition post vaccination is not disputed by either party. Nearly two months
post vaccination, Petitioner presented to the emergency room with complaints of abdominal pain,
nausea, vomiting, and diarrhea. See Pet’r’s Ex. 3(b) at 289. During her brief hospitalization,
Petitioner had her first high creatinine reading. See id. at 283. She was biopsied and definitively
diagnosed with FGN on February 19, 2014. See Pet’r’s Ex. 3(a) at 62, 95. She progressed to ESRD
requiring dialysis by June 2014. See Pet’r’s Ex. 4 at 2. At the time of the hearing, Petitioner was
undergoing regular HD and was awaiting kidney transplantation. Tr. 28:1 –3, 29:5–6. I find it more
likely than not that Petitioner was still suffering from FGN, which later progressed to ESRD, post
vaccination.
C. Loving Prong Three – Significant Aggravation
The parties’ most significant dispute is whether the course of Petitioner’s disease after her
vaccination constituted a significant aggravation of her FGN. Petitioner alleges that she progressed
to ESRD faster than what is normally expected for FGN patients. Respondent, however, argues
that Petitioner’s FGN was more chronic in nature and that her clinical course aligned with the
expected progression of her particular iteration of FGN. After considering the entire record,
particularly the literature filed by the parties 110 and Petitioner’s biopsy results, I find that it is more
likely than not that the flu vaccine did not significantly aggravate the course o f Petitioner’s disease.
The articles discussed by both parties indicate various time frames in which a FGN patient
would likely reach ESRD. Petitioner points to some of these time frames to demonstrate that
Petitioner progressed to ESRD at an accelerated rate. Dr. Ballouk cited the Nasr et al. study, which
found “nearly one half of patients [studied] progressing to ESRD within [four] years.” Resp’t’s
Ex. A, Tab 5, at 9. Dr. Ballouk discussed the Jauvague et al. paper, which showed forty -eight
percent of patients developing ESRD a median of forty-four months following diagnosis. Resp’t’s
Ex. A, Tab 7, at 9. Dr. Ballouk further discussed the Rosenstock et al. study, which showed that
forty-five percent of patients (including seventy-two percent of patients presenting with a
creatinine level above 2.0) reached ESRD after a median of about two years. Resp’t’s Ex. C, Tab
1, at 6. Asserting that he relied on the Rosenstock et al. article to form the basis of his opinions,
Dr. Ballouk testified that forty-four percent of FGN patients “will end up on dialysis with a median
of [twenty-four] months.” Tr. 186:24–187:1, 202:24–203:1. Dr. Ballouk later opined that the
110 Neither party is required to file medical literature, however, it can be effective support for expert
opinions, particularly when the opposing party does not provide rebuttal. While the undersigned has
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) (“We 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) (“Finding certain information not
relevant does not lead to—and likely undermines—the conclusion that it was not considered.”).
47
presence of mesangial involvement, as well as the fact that Petitioner did not have one hundred
percent sclerosed glomeruli, indicated that she was in the MES subgroup . Tr. 274:20–275:1. Citing
the Rosenstock et al. study, Dr. Ballouk stated that a patient in the MES subgroup would take
eighty months to reach ESRD. Tr. 275:2–5. Dr. Ballouk, however, neglected that Petitioner falls
into the clearly stated definition of the DS subgroup articulated in that study, which is seventy
percent of sclerosed glomeruli. See Resp’t’s Ex. C, Tab 1, at 4. Overall, the time frames presented
by Petitioner do not take account of the percentage of Petitioner’s glomeruli that were already
sclerosed by the time of biopsy.
Respondent’s use of the Rosenstock et al. article to demonstrate th at Petitioner’s disease
progressed at a normal rate is very compelling. As Dr. Ballouk acknowledged, this article showed
that the time frame to ESRD varies by histologic FGN-subgroup based on biopsy. Resp’t’s Ex. C,
Tab 1, at 6. Specifically, as stated above, the authors of this study noted that the DS subgroup of
FGN reached ESRD an average of seven months post biopsy. Id. at 4, 6. Furthermore, a chart
included in the article indicates that over seventy percent of patients in the DS subgroup reached
ESRD within two months post biopsy. 111 See id. at 10.
Petitioner’s biopsy results revealed eighteen of twenty-three glomeruli were sclerosed,
which equates to seventy-eight percent. Petitioner, therefore, falls within the DS subgroup as
defined in the Rosenstock et al. article. She progressed from her first high creatinine finding in
November 2013 to ESRD by June 2014. Dr. Levinson indicated that Petitioner’s creatinine,
proteinuria, and hematuria findings on November 21, 2013 , constitute “her diagnosis of a
glomerulopathy.” See Resp’t’s Ex. C at 4. Dr. Levinson stated that counting from November 2013,
Petitioner’s diagnosis occurred approximately seven months before she reached ESRD, which was
consistent with the DS subgroup. Id. Even if the appropriate date to count from is that of
Petitioner’s February 19, 2014 biopsy, that time frame of more than three months between
Petitioner’s biopsy and ESRD is well within the range appropriate for her subgroup.
Beside her FGN subgroup, Petitioner’s November 21, 2013 hospitalization revealed that
she had other risk factors for reaching ESRD. The Nasr el al. article discussed by both parties
identified “older age, higher creatinine at biopsy, higher 24-hour urine protein at biopsy, and higher
percentage of globally sclerotic glomeruli” as “predictors of renal survival in [FGN].” Resp’t’s
Ex. A, Tab 5, at 9. Dr. Fine concluded that it was unsurprising that Petitioner reached ESRD at the
time she did, because age was the only risk factor that Petitioner did not have. Tr. 316:2 –3; Resp’t’s
Ex. A at 7.
I did consider that the damage to seventy-eight percent of Petitioner’s glomeruli, as well
as the rise to high creatinine and urine protein levels, could also be evidence of an accelerated
course following Petitioner’s vaccination. Petitioner, however, did not persuasively explain how
Petitioner’s medical history illustrates this potential argument. Dr. Ballouk also did not
persuasively distinguish how these indicators, present in Petitioner’s case, can be distinguished
from a more commonly seen, slower development of FGN. He indicated during my questioning
that Petitioner’s increase in creatinine between her November 2013 reading and January 2014
111 The average was seven months, however, because the remaining DS patients did not reach ESRD until
twenty-four months or more post biopsy, as shown in the referenced chart. See Resp’t’s Ex. C, Tab 1, at
10.
48
reading indicated that Petitioner’s disease was rapidly progressing. See Tr. 267:11–12. However,
Dr. Fine persuasively rebutted this by noting that this did not dramatically impact Petitioner’s
EGFR and explaining that, as kidney function worsens, “the creatinine rises way faster than the
amount of kidney function you lose.” Tr. 311:11–21. Dr. Fine concluded that this did not signal
rapid progression because “[r]apidly progressive patients lose . . . half their kidney function in
weeks.” Tr. 311:22–24. Furthermore, Dr. Ballouk clarified that he meant that Petitioner’s disease
was “progressive [because of the rise in Petitioner’s creatinine and proteinuria between November
and January], and it is aggressive because she ended up on dialysis [in] four months.” Tr. 280:12–
281:1. However, the issue in this matter is whether Petitioner’s disease progressed abnormally
quickly, not whether it progressed at all. Overall, the evidence in the record does not demonstrate
abnormal progression.
Furthermore, Petitioner’s argument fails because her biopsy did not show any evidence
that her FGN had progressed at an abnormal rate following her vaccination. Dr. Fine noted that
“[eighteen] out of [twenty-three of [Petitioner’s glomeruli] . . . were dead glomeruli[,]” and that
an additional three of Petitioner’s glomeruli displayed segmental sclerosis. Tr. 339:10–12. Dr. Fine
stated that such sclerosis indicates that the glomeruli were “starting to scar off, but it’s probably
an earlier stage scarring . . . .” Tr. 342:2–5. Dr. Fine continued, “in the three glomeruli that . . . he
can actually get real information out of, there isn’t any evidence of anything that’s highly active.”
Tr. 342:12–15. Dr. Fine noted that the pathologists indicated that the glomeruli did not evince
“crescent formation, fibrinoid necrosis, thrombosis, or endocapillary proliferation.” Tr. 342:2–4.
Dr. Fine argued that this meant Petitioner did not suffer “rapid loss of kidney function” beginning
in September 2013, because such rapid loss does not occur “without crescentic GN or some really
aggressive inflammation which almost always results in crescentic formation.” Tr. 344:8–19. Dr.
Fine stated that if Petitioner’s disease activity was bad enough to cause renal failure between
September 2013, and Petitioner’s biopsy, the biopsy would show “evidence of whatever that
process was that would do that.” Tr. 345:3–5, 9–11. Dr. Fine indicated that a lack of evidence
could occur with “proliferative types, but there’s no evidence [on Petitioner’s biopsy] of
proliferation.” Tr. 345:13–14. Dr. Fine opined that the lack of cellular crescents or fibrous
crescents on Petitioner’s biopsy, respectively, “suggest[ed] no ongoing severe disease activity[]
and . . . no recent activity.” Resp’t’s Ex. E at 4.
In contrast, Dr. Ballouk opined that “the lack of crescents on [Petitioner’s] biopsy does not
mean that [Petitioner’s] vaccination did not aggravate her disease.” Pet’r’s Ex. 50 at 2. Dr. Ballouk
indicated that only around thirteen percent of biopsies of patients with Petitioner’s disease reveal
crescents. Tr. 198:2–7. He stated that Petitioner’s “active disease could have ceased prior to
biopsy.” Pet’r’s Ex. 50 at 2.
Overall, I find Dr. Fine’s explanation of Petitioner’s disease progression more compelling
than Dr. Ballouk’s. Dr. Ballouk estimated that Petitioner’s disease began around September 2013
and was aggravated by her vaccination that same month. Dr. Ballouk argued that Petitioner
manifested symptoms of her disease by November 2013, about two months after his proposed
onset. In contrast to the acute progression suggested by Dr. Ballouk, Dr. Fine, argued that
Petitioner’s disease progression was more chronic in nature. He estimated that Petitioner’s disease
began in 2011 because Petitioner was experiencing symptoms, in the form of hypertension and
edema, at that time.
49
Dr. Ballouk estimated the onset of Petitioner’s FGN based on the notion that her November
2013 gastrointestinal issues were sequela of her FGN. Dr. Ballouk then concluded that Petitioner
reached ESRD at an accelerated rate from September 2013, but he did n ot point to any medical
literature to explain how this can occur. The lack of literature is not fatal, however. Due to the rare
nature of vaccine-caused injuries, Petitioner is not required to submit medical literature in support
of her medical theory. Dr. Ballouk also did not persuasively support his theory regarding onset by
using Petitioner’s medical record or other corroborative evidence. As previously discussed, Dr.
Ballouk noted the difference between Petitioner’s creatinine levels in November 2013 an d January
2014, but he did not present persuasive evidence that this represented abnormal progression. In
this case, with respect to FGN symptomatology, I must consider Dr. Ballouk’s opinion that is
substantially unsupported, versus Dr. Fine’s theory that effectively relies on supporting literature
and explains Petitioner’s medical record.
Dr. Fine’s reliance on medical literature to link edema and hypertension to kidney disease
is persuasive. The literature helped to explain that hypertension and edema are often the first
symptoms in an otherwise asymptomatic early phase of disease . Dr. Fine then related this
information to Petitioner’s medical records and explained the progression of Petitioner’s disease.
Dr. Fine explained that he believed Petitioner was already in stage four of her disease by her
November 21, 2013 hospitalization, based on her elevated creatinine levels on that date. See Tr.
309:10–22. Dr. Fine maintained this assertion even when accounting for Dr. Ballouk’s suggestion
that Petitioner’s creatinine levels were elevated on that date due to dehydration. See Tr. 310:9–14.
Dr. Ballouk explained that active disease could have ceased prior to biopsy, Pet’r’s Ex. 50
at 2, but he did not explain how crescents could have appeared and subsequently disappeared all
within a few months of the rapid acceleration of her disease. Furthermore, Dr. Ballouk failed to
explain how rapid progression of Petitioner’s disease before biopsy would not result in crescents
or any other indicators of disease activity. Dr. Ballouk noted that the majority of FGN biopsies do
not reveal crescents. See Tr. 198:2–18. However, he did not explain under what circumstances
they would appear or distinguish those cases from Petitioner’s. Dr. Fine did, however, explain that
the three segmentally sclerosed glomeruli he identified would have revealed crescent formation if
Petitioner’s disease had been recently active. See Resp’t’s Ex. E at 4. Dr. Fine asserted that the
biopsy would have revealed recent activity, in the form of fibrous crescents, even if her disease
had “burnt out” prior to her February 19, 2014 biopsy. Id. Petitioner did not rebut this.
I am not persuaded by Dr. Ballouk’s assertion that Petitioner’s clinical course was
significantly aggravated by the flu vaccine, largely because he did not effectively use her medical
record to identify indicators of disease exacerbation. Dr. Fine provided strong support for his
assertions in the record and through medical literature that were not rebutted by Dr. Ballouk. I
conclude that Petitioner did not establish it is more likely than not that her disease was highly
active following her September 23, 2013 vaccination, or because of it. Further, Petitioner’s biopsy
did not reveal persuasive evidence to support Petitioner’s claim of an accelerated course. Without
additional support, I cannot conclude that, by a preponderant standard, Petitioner’s vaccination
significantly aggravated her injury.
D. Loving Prong Four/Althen Prong One – Medical Theory
50
Dr. Gershwin presented a theory whereby “the cytokine response following the [flu]
vaccination would have accelerated [Petitioner’s] [FGN] and made it worse.” Pet’r’s Ex. 19 at 1.
For the reasons discussed below, Petitioner’s theory fails to meet her burd en under Loving prong
four/Althen prong one.
Dr. Gershwin testified that the flu vaccine produces cytokines. Tr. 67:14–23. He went on
to identify some of these cytokines and explained that cytokines can act locally or systemically.
See Tr. 62:23, 66:8–16. Dr. Gershwin continued that cytokines produced in response to a
vaccination travel through the body. Tr. 69:3–12. He opined that cytokines produced in response
to a vaccination that travel throughout the body could then interact with the kidneys, especially if
the vaccination occurred “in the early phase of disease.” Tr. 70:1 –5. Dr. Gershwin stated that
cytokines produced following a vaccination travel around the body because they “get in the sera .
. . .” Tr. 69:3–9. He explained that someone in the early phases of disease “was a susceptible host”
because the pro-inflammatory cytokines “would exacerbate an ongoing inflammatory process in
the kidney . . . .” Tr. 78:16–22, 79:15–16.
Petitioner’s discussion of vaccine-induced cytokines and her attempt to link them to her
disease do not constitute a sufficient medical theory. Petitioner fails to account for the fact that
many different types of cytokines are typically present in the body and stem from a variety of
causes. Although Dr. Gershwin stated that some of the “key” cytokines produced in response to
the flu vaccine are from the interferon family, see Tr. 67:17–23, he did not clarify the role of
interferons in his theory. In particular, he did not explain whether interferons were the only types
of cytokines involved in the reaction he alleged. Ultimately, Dr. Gershwin’s assertions that
different people will produce different cytokines in response to the flu vaccine and that there are
many different cytokines that can be produced in such a response equivocate his attempt to identify
a “key” family of cytokines. An assertion that vaccine-induced cytokines caused the significant
aggravation of a disease, without a specific or even general explanation of the types of cytokines
involved and how they could aggravate the condition, is too general to constitute a sufficient
medical theory. See Jaafar v. Sec’y of Health & Hum. Servs., No. 15-267V, 2018 WL 4519066 at
*5 (Fed. Cl. Spec. Mstr. Aug. 10, 2018) (determining that a petitioner did not establish an adequate
medical theory that vaccine-induced cytokines triggered a condition when the “cytokine theory
[was] conclusory and not persuasively supported[]”); Cf. Doe/11 v. Sec’y of Health & Hum. Servs.,
No. 99-212V, 2008 WL 4899356 at *9 (Fed. Cl. Spec. Mstr. Oct. 29, 2008) (decision on remand)
(concluding that the petitioners satisfied the first prong of Althen when they explained the two
particular cytokines involved and explained how their release resulted in the injury in question),
mot. for review den’d, 87 Fed, Cl. 1 (2009), aff’d, 601 F.3d 1349 (Fed. Cir. 2012), cert. den’d, 562
U.S. 1029 (2010).
Dr. Levinson opined that “it is highly unlikely that the cytokine response to the inactivated
seasonal [flu] vaccine [received] by [Petitioner] reached a level of magnitude to deleteriously
impact organs distant to the injection site.” Resp’t’s Ex. C at 5. Dr. Levinson stated that the flu
virus may induce a “cytokine storm” causing lung inflammation and other organ dysfunction. Id.However, he maintained that “there is not credible scientific evidence” that vaccines are capable
of inducing a cytokine storm. Id. Petitioner does not allege that she suffered from a cytokine storm
51
as a result of her vaccine. Cytokine storm is a catastrophic autoimmune response, and there is not
evidence of that occurring in Petitioner’s case.
Petitioners are not required to submit the exact biological mechanism for a vaccine-caused
injury. However, any theory that is asserted should be applicable to the vaccination given and the
disease Petitioner suffers from. Petitioner’s purported mechanism amounts to little more than a
vague declaration that there are proteins (cytokines) that appear post-vaccination (produced as
result of an immune response triggered by the vaccine), travel to the kidneys (because the kidneys
are already diseased), and tell the kidney to attack itself (for reasons unknown). Petitioner has not
asserted that the flu vaccination elicited any specific cytokines in her case. In fact, Dr. Gershwin
stated that the types of cytokines triggered by the flu vaccine vary from person to person. Tr.
67:17–23. Furthermore, there is no explanation of why this vaccine would produce cytokines
triggered by pre-existing kidney disease. Dr. Gershwin submitted numerous articles to illustrate
the role pro-inflammatory cytokines play in renal injury. However, none of these articles were
specific to FGN. And, as Dr. Levinson explained, the articles submitted all discuss pro-
inflammatory cytokines that are produced in the kidneys rather than elsewhere in the body. The
fact that these cytokines are produced in the kidneys provides a logical explanation for why they
would target an already diseased kidney. Dr. Gershwin did not link any of these cytokines to FGN
or explain why they are instructive to Petitioner’s case. Therefore, the articles are unhelpful in
explaining how cytokines produced locally in response to a vaccination would travel to Petitioner’s
kidneys and lead to organ damage.
Again, I must note that Petitioner is not required to provide a specific biological
mechanism. However, given the ubiquitous nature of cytokines in the body, it cannot be enough
to simply say “cytokines did it.” Petitioner has not provided sufficient evidence that cytokines of
any kind impact FGN. Importantly, Petitioner has not provided reliable medical evidence that
vaccine-induced cytokines can cause or aggravate inflammation or injury at a distant site.
Furthermore, Dr. Gershwin opined during his testimony that FGN is an immunological
disease but conceded that there has not been a definitive characterization found in the literature.
See Tr. 70:24–72:6. In addition, Dr. Gershwin submitted numerous studies that discuss the
immunological components of the disease. Taken together, these articles do support the contention
that FGN is an immunologic disease. Neither of Respondent’s experts rebutted this contention,
and Dr. Levinson even testified under the assumption that FGN may be an immunological disease
in order to rebut other parts of Petitioner’s theory. See Tr. 115:25–116:11. Therefore, I find that
FGN is an immunological disease.
However, Petitioner has failed to establish by a preponderant standard that inactivated
vaccines can cause exacerbation of underlying autoimmune diseases, regardless of whether they
are active or stable. Dr. Levinson provided two articles that supported that such vaccines are
considered safe for people with AIRDs. See Resp’t’s Ex. C, Tabs 2–3. The authors of both of those
articles acknowledged that research into the issue is incomplete. However, both articles show that
existing studies have not established a link or causal relationship between vaccines and disease
flares in AIRD patients. Furthermore, Dr. Levinson stated during his testimony that, if Petitioner’s
theory was correct, then based on the amount of people who are vaccinated each year with the
inactivated flu vaccine, who have underlying autoimmune diseases, there s hould be more
52
documented cases and studies showing the aggravating effects of the vaccine. See Tr. 119:11–13,
120:12–19. I conclude that although FGN is an immunologic disease, this does not clarify
Petitioner’s purported theory.
Based on the foregoing, I find that Petitioner has not presented preponderant evidence that
the flu vaccine can significantly aggravate FGN.
E. Loving Prong Five/Althen Prong Two – Actual Causation
Petitioner has failed to present preponderant evidence that the flu vaccine she received
significantly aggravated her FGN. As I have already discussed, Petitioner did not meet her burden
under Loving prong three.
Furthermore, although Petitioner’s purported theory is that her FGN was aggravated by a
vaccine-induced cytokine response, Dr. Gershwin does not point to evidence in Petitioner’s
medical record to support his contention that she suffered from a vaccine-induced cytokine
response. Dr. Gershwin stated that the “[flu] vaccine elicits a rigorous cytokine response and this
response begins within hours of the vaccination.” Pet’r’s Ex. 19 at 3. Dr. Gershwin, however, did
not explain what “a rigorous cytokine response” would look like or how it would have manifested
in Petitioner’s case. As Dr. Levinson noted, the medical records do not indicate cytokine testing
or any evidence that Petitioner suffered from a cytokine storm.
Based on the foregoing, I find that Petitioner has failed to meet her burden u nder Loving
prong five/Althen prong two.
F. Loving Prong Six/Althen Prong Three – Temporal Relationship
Dr. Gershwin specified that “if the time of [FGN] onset was distant from the vaccination,
then [he] would not hold” the opinion that the flu vaccine exacerbated Petitioner’s FGN. Tr. 58:8–
9. He indicated that his position would be inappropriate if the onset of Petitioner’s FGN was more
than six weeks before her vaccination. See Tr. 83:9–10. I have already concluded by a preponderant
standard that Petitioner’s FGN predated her vaccination by more than two years. Therefore, relying
on Petitioner’s own expert, Petitioner’s course exhibits an inappropriate time frame for the flu
vaccine to significantly aggravate her FGN. Accordingly, Petitioner has failed to meet her burden
under Loving prong six/Althen prong three.
VI. Conclusion
Based on the foregoing, I find that Petitioner has failed to show by preponderant evidence
that the flu vaccine she received on September 23, 2013, significantly aggravated her FGN.
Therefore, her petition is hereby DISMISSED.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of the above decision. 112
112Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
53
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
54