Porch v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-802V
(to be published)
************************* Chief Special Master Corcoran
CHARLOTTE PORCH, *
*
Petitioner, * Dated: December 8, 2022
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************
Joseph Alexander Vuckovich, Maglio Christopher & Toale, P.A., Washington, DC, for
Petitioner.
Emily H. Manoso, U.S. Department of Justice, Washington, DC, for Respondent.
ENTITLEMENT DECISION 1
On June 14, 2017, Charlotte Porch filed a petition for compensation under the National
Vaccine Injury Compensation Program (the “Program”). 2 ECF No. 1. Petitioner initially alleged
that a measles, mumps, and rubella (“MMR”) vaccine administered to her on February 11, 2015,
caused her to develop transverse myelitis (“TM”), and/or caused or alternatively significantly
aggravated her subsequently diagnosed multiple sclerosis (“MS”). At hearing (held in Washington,
D.C. on January 13, 2022), however, Petitioner limited her claim to the allegation that the MMR
vaccine caused her MS.
1
This Decision will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access
to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published
Ruling’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has
fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
Otherwise, the entire Decision will be available to the public in its current form. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
As discussed in greater detail below, after consideration of the overall record I deny
entitlement. Petitioner’s MS has not reliably been shown to have been caused by the MMR
vaccine—or that the vaccine could cause MS in the first place.
I. Fact History
Vaccination and Onset of Symptoms
Petitioner was born on November 9, 1967. Ex. 1 at 5. Prior to the relevant vaccination, her
medical history was significant for shingles, chest pains, and carpal tunnel syndrome. Ex. 3 at 9–
12; Ex. 11 at 31; Ex. 13 at 3. Pre-vaccination medical records also memorialize instances of
bilateral hand pain and numbness in 2010.3 Ex. 11 at 11–12, 31.
On February 11, 2015, Ms. Porch received an MMR vaccine dose as a requirement of her
employment. Ex. 1 at 5. 4 She was thereafter to be stationed in Kuwait for work in the military,
beginning on March 7, 2015. Ex. 11 at 31. The records do not reveal any vaccine reaction or
symptoms presaging or characteristic of MS between February 11th and Petitioner’s travel abroad.
Indeed, there are no medical records at all pertaining to any intervening medical concerns until
early May 2015. Petitioner contends, however, that although she arrived in Kuwait symptom-free
as of the start of March, by the end of that same month she was beginning to experience MS onset,
in the form of TM. And some records from later in her treatment history do refer to symptoms
beginning in this period.
On May 2, 2015, Petitioner underwent an x-ray of her cervical spine at the International
Clinic in Kuwait. Ex. 15 at 180. The record from this encounter is silent as to why such testing
was called for. The x-ray’s findings were “suggestive of cervical spondylosis with diminished disc
space between C4-C5 with neck muscle spasm.” Id. Five days later (May 7, 2015), Petitioner
underwent an MRI of her cervical spine as ordered by neurologist Raed Alroughani, M.D., at Al
Seef Hospital in Kuwait. Ex. 12 at 23. The MRI revealed a herniated disc at C4-5, compromising
the dural sac, and left-greater-than-right neuroforaminal openings, along with a longitudinal
hyperintense lesion at C2-3 with no associated edema or mass effect. Id. It was subsequently
recommended that Petitioner have a repeat study with contrast,5 although this record is also silent
3
Petitioner, however, was unable to locate or file the 2010 Kuwait medical records that would memorialize these
medical complaints. ECF No. 60.
4
Petitioner had received an initial MMR vaccine dose approximately five months before, in October 2014. Tr. at 18.
The record does not reveal any prior reaction to that vaccination.
5
As explained later by Respondent’s expert, “contrast” (specifically gadolinium, a pharmaceutical agent) is injected
into a subject undergoing MRI imaging because it is observable on the scan results, and can reveal where “leakage”
across the blood-brain barrier into the central nervous system may be occurring. Tr. at 164–65. Evidence of
2
as to the reason for an MRI. Id. About two weeks later, however, on May 24, 2015, Petitioner had
the recommended repeat imaging study, and it showed no enhancement of the lesion at C2-3, with
the radiologist noting “no signs of activity.” Id. at 24. The notes nevertheless indicated that MS
was suspected. Id.
MS Diagnosis and Subsequent Treatment
Petitioner had a follow-up appointment with Dr. Alroughani on May 31, 2015, at which
time she reported numbness, tingling, and pain in her hands for the past two months (or since late
March 2015). Ex. 12 at 17, 55; Ex. 15 at 258. Her paresthesias were characterized as persistent
and progressive, with abnormal sensations ascending from her hands to as far up as her elbows.
Ex. 12 at 17, 55; Ex. 15 at 258. Dr. Alroughani opined that the symptoms could be consistent with
carpel tunnel syndrome, and he ordered an Electromyograph/Nerve Conduction Study
(“EMG/NCS”) to confirm. Ex. 12 at 17, 55; Ex. 15 at 258. A week later, on June 6, 2015, Petitioner
had a brain MRI completed, and on the same day followed up with Dr. Alroughani regarding her
results. Ex. 12 at 18; Ex. 15 at 263. This MRI showed brain and cervical spinal cord lesions,
indicative of demyelinating disease. Ex. 15 at 263. Two days later, on June 8, 2015, Dr. Alroughani
wrote a letter addressed “to whomsoever it may concern,” stating that Petitioner had undergone an
NCS of her upper extremities to rule out entrapment neuropathy,6 but her results came back
normal. Id. at 256.
On June 20, 2015, Petitioner reported neck pain to Dr. Alroughani, who noted she was
“unable to lift head,” and he prescribed intravenous Solu-Medrol (a steroidal anti-inflammatory
treatment) and other medication for neuropathic pain, which she received again a few days later.
Ex. 12 at 18; Ex. 15 at 252. At this time, her diagnosis was “myelitis.” Ex. 15 at 252. 7 The
following month, on July 14, 2015, Petitioner presented to the Orthopedics Department of the Al
Seef Hospital. Ex. 12 at 15. She complained of back and left ankle pain due to a fall the day prior.
Id. Her exam showed neck and back tenderness and left ankle swelling. Id. X-rays also revealed
narrowing of disc spaces in the cervical spine and no left ankle fracture, although a small planter
calcaneal spur was observed. Id. at 15, 27–29. Petitioner also underwent a lumbar spine MRI that
showed minor arthropathy at L5-S1 and “spasm of the back muscles.” Id. at 30.
“enhancement,” or image brightening, of a lesion on MRI suggests the existence of an ongoing and acute inflammatory
process at the time of the scan. Id. at 165.
6
Entrapment neuropathy is a condition in which a nerve becomes compressed, or entrapped, between two other
structures in the body. Entrapment Neuropathy, Dorland’s Medical Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=92671&searchterm=entrapment+neuropathy (last visited Dec.
8, 2022).
7
Records have been filed for appointments on July 4, July 11, and August 1, 2015, but all appear to be associated with
insomnia. Ex. 12 at 19.
3
Continued Medical Treatment
Through August 2015, Petitioner continued to undergo orthopedic evaluations, receiving
physical therapy and pharmaceutical treatments for her condition but without a clear consensus
from treaters regarding the likely etiology for her symptoms. Then, Dr. Alroughani wrote a
“Medical Report” (dated August 9, 2015) providing a summary of Petitioner’s neurologic
treatment which was more specific in proposing a possible explanation. Ex. 12 at 55. This
document states that Petitioner had been evaluated in May 2015 for a “2-month history of
paresthesia of both hands that were persistent and progressive in nature as there were ascending to
the arms.” Id. Dr. Alroughani noted that upon examination Petitioner displayed decreased
sensation in her hands to mid-forearms, brisk reflexes in the upper extremities, and planter
responses that were normal. Id. His impression was that her “presentation along with the
radiological features of the cervical spine is supportive of a diagnosis of myelitis which is an
autoimmune disorder usually idiopathic but can also be a presenting feature of a demyelinating
disorder such as Multiple Sclerosis.” Id. During this visit Petitioner “denied any history of recent
immunization or infection.” Id.
Thereafter, subsequent treaters began to suspect MS as the most likely explanation for
Petitioner’s overall symptoms. On September 4, 2015, for example, Petitioner was evaluated by
neurologist Suprabha Bhat, M.D. Ex. 11 at 31. At this visit, Petitioner reported that starting in
March 2015 she began to experience bilateral, progressive, ascending upper-extremity paresthesia.
Id. She also reflected that she had “similar symptoms of bilateral hand numbness, paresthesias and
pain while stationed in Iraq in 2010 . . . she was diagnosed and treated for carpal tunnel syndrome
in 2010, when her symptoms resolved. The same symptoms of hand numbness, paresthesia and
pain recurred in March 2015 while stationed in Kuwait.” Id. Petitioner informed Dr. Bhat that the
Solu-Medrol treatment she had received in June 2015 resolved most of her symptoms except for a
burning sensation in both hands. Id. Dr. Bhat ordered an MRI and blood panel to further assess
Petitioner for a demyelinating disease. Id. at 32–33.
A few days later, on September 10, 2015, Petitioner underwent another MRI of the brain
and cervical spine. Ex. 4 at 22–25. MRI images of the brain now showed “[s]mall ovoid well-
defined T2 signal hyperintensity . . . in the periventricular white matter at the atrium of the left
lateral ventricle.” Id. at 24. Consistent with the June 2015 MRI, this study also noted “[a] smaller
lesion . . . in the periventricular white matter of the mid to posterior right temporal lobe.” Id. These
results were interpreted as two periventricular lesions that were most likely demyelinating plaques
“based on location and morphology of the lesions.” Id. at 25. Similarly, the cervical spine MRI
was interpreted as showing “findings . . . most consistent with demyelinating plaques in the
cervical spinal cord.” Id. at 22.
4
On September 14, 2015, Petitioner followed up with Dr. Bhat to review the MRI results.
Ex. 11 at 19–20. Dr. Bhat reported a suspicion of “relapsing multiple sclerosis,” and ordered a
cerebrospinal fluid (“CSF”) study—but (inconsistent with an MS diagnosis) it did not reveal any
oligoclonal bands, 8 and otherwise revealed normal levels of CSF protein electrophoresis and
normal IgG synthesis rate. Id. at 15, 20. The CSF also contained normal levels of white blood cells
and protein, and high level of red blood cells, but it did show slightly elevated CSF/serum albumin
ratio “consistent with mildly increased permeability of the blood brain barrier.” Id. at 14–15.
Petitioner followed up with Dr. Bhat again on September 25, 2015, complaining of urinary
frequency, urgency, and incontinence, as well as ongoing upper-extremity paresthesia. Ex. 11 at
11. 9 Dr. Bhat’s assessment was that since Petitioner had “multiple demyelinating lesions in her
brain and cervical cord, [and] had 2 episodes of ascending numbness in both upper extremities
since 2010,” she could be diagnosed with “relapsing remitting multiple sclerosis.” Id. at 11–12.
The following month, on October 22, 2015, Petitioner saw Dr. Bhat again, complaining of
fatigue, hand and hip pain, numbness in the right foot, blurry vision, and ongoing urinary
frequency, urgency, and incontinence. Ex. 11 at 8. Her examination revealed normal results, but
Dr. Bhat noted that “fatigue and pain are the 2 most common symptoms in patients with MS.” Id.
at 9. Petitioner was advised to continue previously-prescribed medications, told not to return to
work until January 2016, and started on fatigue-specific treatments. Id.
Petitioner sought a second opinion, and to that end presented to neurologist Julia Jones,
M.D., on October 28, 2015. Ex. 4 at 26. 10 After discussion of Petitioner’s medical history and a
physical exam, Dr. Jones noted that Petitioner had experienced an episode of TM in the past
(presumably, while in Kuwait as reported by Petitioner, though there is no additional information
provided or treater support for this assertion), but that Petitioner met the criteria for remitting MS
based on her current workup and history since March 2015. Id. at 28. Dr. Jones also observed that
there was a new lesion evident from imaging, which she characterized as “typical MS changes on
the MRI brain.” Id. at 28.
8
Oligoclonal bands, or bands of immunoglobulins, in the CSF are evidence of inflammation deemed a biomarker for
MS. Oligoclonal Bands, Dorland’s Medical Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=60106&searchterm=oligoclonal+bands (last visited Dec. 8,
2022).
9
Respondent incorrectly identified the date of this visit as September 27, 2015. Respondent’s Prehearing Brief at 7.
Similar findings were reported in Ex. 9 at 7–9, though it appears it be formatted differently. There is no additional
10
mention of a TM diagnosis besides this visit.
5
Petitioner’s MS has since been confirmed by other treaters, based on her subsequent course
and further exams and testing. Because disposition of this case does not turn on her diagnosis or
disease progression, no further discussion of her subsequent treatment is called for.
II. Witness Testimony
A. Fact Witness – Charlotte Renee Porch
Ms. Porch was the only fact witness, and her testimony focused mainly on describing the
state of her health both before and after receiving the MMR vaccine in February 2015. See
generally Tr. at 5–19. She was diagnosed with carpal tunnel in 2010 that she initially treated with
Tylenol, but she eventually received a single steroid injection which alleviated the symptoms. Id.
at 6, 15–16. At that time, she was working on a military project in Iraq. Id. at 6, 16. Ms. Porch
claimed to have received five or six vaccines, including the MMR vaccine, in October 2014, in
association with her position—though the medical records only indicate prior receipt of an MMR
dose. Ex. 1 at 5–8; Tr. at 18. She subsequently received a second MMR dose on February 11, 2015,
as a requirement of her processing to go back to the Middle East. Tr. at 6–7.
Upon arrival in Kuwait on March 7, 2015, Petitioner reports having been in good health
and able to complete the fitness for duty exam that was required to return to the project on which
she worked. Tr. at 7, 16. By the end of March, however, she began experiencing neck pain and
tingling in her forearms, hands, and feet. Id. at 7–8. Her symptoms progressed through the spring
and summer of 2015, and she described having chronic pain and weakness in her legs. Id. at 8. She
fell three times while in Kuwait and recalled feeling weakness in her legs and tingling in her feet
when these incidents occurred. Id. at 9, 16. On one of those occasions, however, the fall was caused
by the steps she was walking up being wet and slippery. Tr. at 17. Ms. Porch also experienced
other symptoms, like bladder issues. Id. at 9. She returned to the United States in the fall of 2015
and saw Dr. Bhat for her chronic pain and leg weakness as well as tingling in her hands and
forearms. Id. at 8–10. She was diagnosed with relapsing-remitting MS and was prescribed
medications with unpleasant side effects. Id. at 10.
Since 2016, Ms. Porch has experienced several flare-ups of MS, entailing chronic pain,
fatigue, and bladder issues, and which prevent her from getting up and walking. Tr. at 10–11. She
reported that her flare-ups typically last between seven to eight days, and in 2021 she experienced
five flare-ups, which were more than usual. Id. at 10–11, 17. Ms. Porch continues to have issues
with falling due to the weakness in her legs and she feels fatigued all the time. Id. at 12–13. Steroid
medication helps control her symptoms, but she nonetheless experiences chronic pain and stiffness
in her legs and joints in between flare-ups. Id. at 12. These symptoms have profoundly impacted
her life—Ms. Porch experienced depression after her diagnosis and is concerned about the long-
term side effects of steroid use. Id. at 13–14. She has also been diagnosed with osteoarthritis in
both of her knees and is going through the clearance for gastric bypass surgery. Id. at 14, 17.
6
B. Petitioner’s Expert – Jeffrey Rumbaugh, M.D., Ph.D.
Dr. Rumbaugh, a licensed neurologist, submitted two written expert reports and testified
for the Petitioner, alleging that the MMR vaccine could cause MS and did so in this case. 11 See
generally Tr. at 19–144, 250–52. Report, dated May 1, 2019, filed as Ex. 22 (ECF No. 27-2)
(“Rumbaugh First Rep.”); Report, dated May 14, 2021, filed as Ex. 58 (ECF No. 63-2)
(“Rumbaugh Second Rep.”).
Dr. Rumbaugh attended Haverford College for his undergraduate degree in chemistry. Tr.
at 20; see Curriculum Vitae, filed May 1, 2019 (ECF No. 27-3) (“Rumbaugh CV”) at 1. He then
attended the University of Rochester for his Master of Science in biochemistry, doctorate in
biochemistry, and medical degree. Tr. at 20–21; Rumbaugh CV at 1. He completed his medicine
internship and neurology residency at Johns Hopkins Hospital, where he later became the chief
resident in neurology. Tr. at 20; Rumbaugh CV at 1. He most recently started a private practice in
Tampa, Florida where his outpatient practice is focused on evaluating and treating patients with
multiple sclerosis. Tr. at 22; Rumbaugh First Rep. at 2. Dr. Rumbaugh is also a tele-neurologist at
the National Comprehensive Neurology Services in Tampa, Florida. Rumbaugh. Tr. at 22, 29;
Rumbaugh CV at 1. He is board certified in neurology by the American Board of Psychiatry and
Neurology, a member of the American Academy of Neurology and the American Neurological
Association, and a licensed physician in Florida. Tr. at 20–21; Rumbaugh First Rep. at 2. Over the
span of his career, he has treated thousands of MS patients. Tr. at 28. He has also published articles
on caring for patients with MS and neurological infections. Id. Most of his basic science research
and publications have focused on the neurological complications of human immunodeficiency
virus and Lyme disease. Id. at 84.
Dr. Rumbaugh began with a discussion of MS. Tr. at 35–39. Although its etiology is not
completely understood, MS is believed to be an autoimmune disease in which the immune system
attacks the nerve myelin 12 in the central nervous system (“CNS”). Id. at 35, 38, 47–48, 85–87, 127;
Rumbaugh First Rep. at 4, 6. Inflammatory damage to the myelin causes a disruption in the flow
of signals through the nerves, leading to neurological symptoms. Tr. at 35–36.
11
Dr. Rumbaugh’s expert reports also included the contention that the MMR vaccine significantly aggravated
Petitioner’s pre-existing MS-like symptoms from 2010. Rumbaugh First Rep. at 1, 8–10; Rumbaugh Second Rep. at
1. However, during the hearing he maintained that Petitioner did not have any MS symptoms before arriving in Kuwait
on March 8, 2015. Tr. at 114–15. Otherwise, Petitioner does not advance a significant aggravation claim.
12
Myelin is the insulation that wraps around nerves protectively. Tr. at 35. Autoimmune responses to myelin proteins
are elevated in patients with MS. Id. at 48.
7
Although there are different forms of MS, 13 the variant pertinent to this case is relapsing-
remitting MS. Tr. at 36. In relapsing-remitting MS, a patient experiences intermittent episodes
with associated neurological symptoms for a period of time, with symptoms appearing in peaks
and waves. Id. The patient generally gets better between flares, but the overall continuation of
flares/attacks can damage the CNS sufficiently to cause longer-term disability. Id. at 36, 85. There
are distinct immunopathological characteristics for different forms of MS, with the relapsing-
remitting form characterized by active inflammation, and it therefore calls for pharmaceutical
treatments that might not be as useful in treating other MS variants. Id. at 37. 14
Petitioner was correctly diagnosed, according to Dr. Rumbaugh, with relapsing-remitting
MS. Tr. at 35, 39; Rumbaugh First Rep. at 3; Rumbaugh Second Rep. at 1. He briefly summarized
what in the medical record supported the diagnosis. Tr. at 39–41. Petitioner developed neurological
symptoms in 2015, showing symptoms of difficulty with her hands, numbness and tingling,
imbalance, and bladder problems. Id. at 39–40. She experienced various episodes in 2015, and
then five flares in 2021—all consistent with the relapsing-remitting form. Id. at 40, 85, 123. In
addition, her June 6, 2015 MRI imaging (which revealed the presence of brain and spinal cord
lesions) was strong evidence of MS. Id. at 40; Ex. 15 at 263; Rumbaugh First Rep. at 3. Although
Petitioner did not test positive for oligoclonal bands in her CSF, Dr. Rumbaugh argued that a
percentage of MS patients do not manifest this common biomarker (and there is not otherwise a
specific single test to confirm an MS diagnosis in any event). Tr. at 40–41. Dr. Rumbaugh opined
that Petitioner is likely to continue to experience relapsing-remitting MS. Id. at 81–83.
Dr. Rumbaugh then discussed TM, which appeared early in Petitioner’s medical records
(around spring and summer of 2015) as a potential diagnosis. Tr. at 41–42; Rumbaugh First Rep.
at 3. He defined TM as inflammation of the spinal cord, noting that it often is a presenting clinical
symptom for MS. 15 Tr. at 41–42. He explained that MS affects three parts of the nervous system:
the brain, optic nerves, and spinal cord. Id. at 42. When MS initially affects the spinal cord, it can
appear to be TM. Id.; Rumbaugh First Rep. at 3. In Dr. Rumbaugh’s view, when Petitioner was
initially diagnosed with TM, her treaters were actually referring to inflammation of the spinal cord
13
Other types of MS include primary progressive, which is a persistent neurological condition or symptom, and
secondary progressive, which begins with a pattern of relapsing-remitting MS, but over a number of years becomes
more progressive, with less evidence of improvement after an attack. Tr. at 36–37. Why some patients develop one
form of MS over another is unknown, although Dr. Rumbaugh opined that a person’s individual genetic makeup likely
explained the differences. Id. at 38–39; Rumbaugh Second Rep. at 4.
14
Thus, in relapsing-remitting MS, medications are aimed at reducing inflammation and addressing the imbalance in
the immune system. Tr. at 37. Progressive MS, by contrast, is more neurodegenerative without active inflammation,
lessening the effectiveness of inflammation-targeting drugs and treatments. Id. at 37–38.
15
There are other possible causes of TM when it is a single, self-limiting occurrence, such as conditions that cause
inflammation on the spinal cord or other organs that secondarily impacts the spinal cord, although it can also be
idiopathic. Tr. at 42.
8
as a part of MS. Tr. at 42, 94; Rumbaugh First Rep. at 3. He thus did not propose that the TM
diagnosis was ultimately accurate, even if Petitioner’s initial presentation could have involved the
kind of spinal cord damage associated with a single case of TM. Tr. at 42, 94; Rumbaugh First
Rep. at 3.
Dr. Rumbaugh also addressed the chronology of Petitioner’s symptoms, pre- and post-
vaccination. Tr. at 42–44. Petitioner was told in 2010 that she had carpal tunnel syndrome, which
sounded reasonable to Dr. Rumbaugh, although he admitted he could not know definitively what
caused these symptoms or how she was evaluated, because the relevant medical records were never
located. Id. at 43, 114. More evidence of her course was found in a letter written by one of
Petitioner’s treating physicians while in Kuwait (Dr. Alroughani), addressed “to whomsoever it
may concern.” Tr. at 43; Ex. 12 at 55. The letter stated that Petitioner was initially seen in May
2015, when she presented with a two-month history of paresthesias in both hands that were
ascending to her arms. Tr. at 43; Ex. 12 at 55. This suggested that her onset began in March 2015.
Tr. at 44.
Next, Dr. Rumbaugh explained the causal theory at issue. He first noted that vaccines can
cause injuries in rare instances. Tr. at 44–45; Rumbaugh First Rep. at 4. Because the immune
system is usually adept at distinguishing between self-proteins and foreign agents, vaccines do not
generally pose autoimmune risk, but occasionally internal safeguards against cross-reactivity
break down. Tr. at 44–45; Rumbaugh First Rep. at 4. For this kind of self-protective “failure” to
occur, a patient must possess some underlying susceptibility. Tr. at 46, 59–60, 87; Rumbaugh
Second Rep. at 4. Under such circumstances, medical science agrees that an aberrant autoimmune
process can lead to “neurological complications” (even if not every detail of the process involved
is understood). Tr. at 44–46; Rumbaugh Second Rep. at 3–4.
Second, Dr. Rumbaugh highlighted the different external/environmental triggers thought
to possibly incite MS. Science has proposed that a variety of external factors (e.g., surgery, insect
bites, allergy immunotherapy, or certain forms of chemotherapy) can provoke MS in a susceptible
individual. Tr. at 48; Rumbaugh First Rep. at 6–7. Recent research has particularly focused on
viral infections as causal of autoimmune disease generally. Tr. at 48, 87; Rumbaugh First Rep. at
6-7; Second Rep. at 1–2; M. van Gemeren et al., Vaccine-Related Autoimmune Hepatitis: The
Same Disease as Idiopathic Autoimmune Hepatitis? Two Clinical Reports and Review, 52
Scandinavian J. Gastroenterology 18, 20 (2017), filed as Ex. 29 (ECF No. 27-9) (“van Gemeren”).
Since vaccines are engineered in part to invoke an immune response comparable (if more
controlled) to what a wild virus or bacterium would prompt, they too should be capable of
triggering MS. Tr. at 48–50; Rumbaugh Second Rep. at 1–2. Here, the MMR vaccine was in Dr.
Rumbaugh’s view a credible MS trigger. Tr. at 48–50; Rumbaugh Second Rep. at 1–2. The
vaccine’s measles antigens are equivalent to wild type measles viral antigens—the vaccine itself
9
is a live attenuated virus vaccine, in which live but weakened viral components are included to
spark immune memory without also causing disease. Tr. at 49. 16
Medical literature was offered by Dr. Rumbaugh to support his vaccine-MS association
conclusions—although not all items proved supportive of his opinion. Tr. at 50–56, 58. First, he
discussed a meta-analysis of case studies of CNS demyelinating disorders secondary to
vaccination. Id. at 50–52, 93; Rumbaugh Second Rep. at 2; D. Karussis & P. Petrou, The Spectrum
of Post-Vaccination Inflammatory CNS Demyelinating Syndromes, Autoimmunity Rev.’s 215, 221
(2014), filed as Ex. 64 (ECF No. 63-8) (“Karussis”). Karussis conducted a literature search of
instances between 1979 and 2013 of reports of post-vaccination CNS demyelinating diseases—
including nine instances of vaccines against measles or rubella (although none specifically
involving MMR vaccine). Karussis at 218–19. Although Karussis observed instances of
demyelinating disease (most commonly optic neuritis), and discussed other findings relating MS
to vaccination, MS was not one of the five clinical syndromes focused on by its authors. 17 Tr. at
93–94; Rumbaugh Second Rep. at 2; Karussis at 215, 220. And Karussis ultimately concluded that
the overall risk of post-vaccination demyelinating disease was “relatively low,” especially in
comparison to the greater risk posed by a wild infection. Karussis at 221.
Second, Dr. Rumbaugh referenced an epidemiological study looking at several vaccines,
but heavily focused on the Hepatitis B and HPV vaccines. Tr. at 95–96; A. Langer-Gould et al.,
Vaccines and the Risk of Multiple Sclerosis and Other Central Nervous System Demyelinating
Diseases, 71 JAMA Neurology 1506, 1512 (2014), filed as Ex. 65 (ECF No. 63-9) (“Langer-
Gould”). Langer-Gould performed a retrospective, case-control study of 780 patients who had
been properly diagnosed with a CNS-specific demyelinating syndrome (including MS) after
receiving some type of vaccination. Langer-Gould at 1506, 1508. It observed a greater risk for MS
in the sample vaccinated group within 30 days of vaccination, in particular for patients younger
than 50 years old. Tr. at 52–53; Rumbaugh Second Rep. at 2; Langer-Gould at 1508–10.
Yet Langer-Gould also admitted that its data did not establish a causal link between the
current vaccines and the risk of MS (or other CNS demyelinating syndromes for that matter). Tr.
at 97; Langer-Gould at 1509–10. Indeed, to the extent there was any observed short-term post-
16
Dr. Rumbaugh also addressed (albeit more in passing) the possibility that the vaccine’s other two antigens—mumps
and rubella—could be causal. Tr. at 69–70. Mumps and rubella antigens are also live attenuated viruses, like the
measles antigen. Id. at 69. For the same reasons the measles virus could cause relapsing-remitting MS, Dr. Rumbaugh
opined, the mumps and rubella antigens could have the same effect. Id. He also found it significant that these three
different viruses in the MMR vaccine are “viewed” by the immune system simultaneously, increasing the chance that
something could go wrong and cross-react with a self-antigen. Id. at 69–70.
17
There was only one CNS condition of myelitis following the measles reported in Karussis, but Dr. Rumbaugh agreed
that the TM referenced in Petitioner’s medical records was a manifestation of her MS and not an isolated event—thus
reducing the probative value of this item of evidence. Tr. at 94; Karussis at 219.
10
vaccination association, Langer-Gould’s authors speculated that it was likely attributable to the
fact that “vaccines are redundant enhancers of preexisting autoimmunity” (meaning the disease
process had begun pre-vaccination) as opposed to initiating triggers. Langer-Gould at 1510. And
its authors (noting that the MMR vaccine is more often than not administered to children, rather
than adults who would bear an MS diagnosis) could not even distinguish between MMR boosters
and single-doses of the MMR vaccine in reviewing the relevant data, further diminishing what, if
anything, could be said about that vaccine’s causal potentiality. Id. at 1507.
Dr. Rumbaugh, however, sought to minimize the conclusions to be drawn from the overall
paucity of evidence involving the MMR vaccine. Tr. at 56–58. He noted that the vaccine is
typically administered to young children, whereas MS is a disease of adults, so it would be rare
that an adult would receive the MMR vaccine at a time in their life when it is likely to trigger
MS—simply stating that meaningful data on the topic would not exist. Id. at 56. He also more
generally maintained that larger-scale epidemiologic studies (which he admitted are useful for
purposes of causation) would be difficult to perform, given MS’s rarity. Id. at 56–57, 124–25; A.
Steelman, Infection as an Environmental Trigger of Multiple Sclerosis Disease Exacerbation, 6
Frontiers in Immunology 1, 2 (2015), filed as Ex. 34 (ECF No. 28-5). Because MS is likely multi-
factorial in cause, especially given the role individual susceptibility plays, it would be difficult to
isolate a specific trigger through an epidemiological study. Tr. at 57–58.
Besides the above, Dr. Rumbaugh referenced some case reports. See N. Agmon-Levin et
al., Transverse Myelitis and Vaccines: A Multi-Analysis, 18 Lupus 1198 (2009), filed as Ex. 63
(ECF No. 63-7) (“Agmon-Levin”). Agmon-Levin collected 37 case reports (based on a 39-year
review of relevant literature) in which post-vaccination TM was reported. Agmon-Levin at 1199.
Putting aside the fact that the article does not involve MS, however, Agmon-Levin observed only
six instances of TM after receipt of the MMR or rubella vaccination. Tr. at 92–93; Agmon-Levin
at 1200. And Dr. Rumbaugh agreed generally that case reports are not particularly strong proof in
support of causation (although he defended their use herein, invoking the rarity of MS as a
justification). Tr. at 95, 137–38.18
Dr. Rumbaugh next proposed a mechanism for how vaccination could result in MS,
offering the theory of molecular mimicry. Tr. at 58–60, 89; Rumbaugh First Rep. at 6; Rumbaugh
Second Rep. at 2. Molecular mimicry, he explained, occurs when the immune system confuses a
18
I also note that Agmon-Levin (which is often cited by Vaccine Program claimants as evidence of CNS-oriented
autoimmune demyelinating diseases after vaccination) has been criticized in many other cases, since its limited
findings had to be dredged from a lengthy reporting period of nearly 40 years, thus revealing very few instances of
post-vaccination adverse events. See Pearson v. Sec'y of Health & Hum. Servs., No. 16-9V, 2019 WL 3852633, at *14
(Fed. Cl Spec. Mstr. July 31, 2019) (giving limited weight to Agmon-Levin in a case alleging that flu vaccine caused
TM, since Agmon-Levin referenced only two post-flu vaccine TM cases, despite the number of years of data
considered).
11
self-protein for a foreign antigen (because the two appear similar, structurally 19 or in molecular
composition), and attacks itself via antibodies or T cells that were generated in response to the
mimic foreign antigen. Tr. at 58–59, 89, 90–91; Rumbaugh First Rep. at 4–5 (describing molecular
mimicry as a cross-reaction mediated by similarities in chemical structure between the body’s own
protein and then a pathogen); see also van Gemeren at 20 (identifying molecular mimicry as one
of the mechanisms “postulated or . . . confirmed to cause development of an autoimmune disease”).
Molecular mimicry is in fact widely accepted among neuroimmunologists as a potential
mechanism of autoimmunity—and Dr. Rumbaugh maintained the MMR vaccine could result in
MS (understood to be an autoimmune-mediated disease) through this biologic mechanism. Tr. at
59–67.
In support, Dr. Rumbaugh referenced literature suggesting that antibodies generated in
response to the measles virus could erroneously cross-react with vimentin, a cytoskeletal/structural
intermedial filament protein. 20 Although it is found in cells throughout the body (and thus not only
in the CNS), vimentin is also expressed in the CNS astrocyte cells 21 that (among other things)
assist the oligodendrocytes 22—another specialized CNS cell that generates and maintains nerve
myelin. Tr. at 65–66, 101, 105. But (as purportedly established in one item of literature) antibody
attacks on the vimentin found in the astrocytes could have a downstream, deleterious effect on
oligodendrocyte myelin maintenance, resulting in MS. Id. at 61–67, 102–07; J. Srinivasappa et al.,
19
In his second expert report, Dr. Rumbaugh noted that molecular mimicry could occur even where the self and
foreign antigens lacked sequential similarity (in amino acids or other building blocks), but there was a structural/three-
dimensional similarity, arising from the manner in which the linear peptide components of a protein might “fold.” Tr.
at 90–91, 126; Rumbaugh Second Rep. at 4. However, he acknowledged that he could cite no evidence supporting the
concept that structural similarity between MMR vaccine components and CNS-myelin-related structures is actually
linked to pathogenic autoimmunity. Tr. at 91–92, 126–28; Rumbaugh Second Rep. at 4.
20
Intermediate filament proteins are involved in the structural integrity of a cell, according to Dr. Rumbaugh. Tr. at
63–64; Intermediate Filaments, Dorland’s Medical Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=75869 (last visited Dec. 8, 2022). They help maintain the cell
membrane, organelles, and subcomponents of the cell. Tr. at 63–64. Dr. Rumbaugh acknowledged, however, that he
had not addressed vimentin as a proposed target for autoimmune cross-reaction leading to MS in his written reports.
Id. at 89–90, 101. He also acknowledged a debate involving the distinction between intracellular and extracellular
antigens as targets of antibodies produced in response to the measles vaccine, but maintained that there was a growing
body of evidence that intracellular antigens (like vimentin) can also trigger an antibody response despite their location.
Id. at 250–51.
21
Astrocytes cells are a major component of the CNS. Astrocyte, Dorland’s Medical Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=4587&searchterm=astrocyte (last visited Dec. 8, 2022). They
are specialized support cells that assist many processes in the CNS—including providing nutrients and other inputs
needed by the oligodendrocytes to produce myelin. Tr. at 65–66.
22
Oligodendroglia is “the non-neural cells of ectodermal origin forming part of the adventitial structure (neuroglia)
of the central nervous system; projections of the surface membrane of each of these cells (oligodendrocytes) fan out
and coil around the axon of many neurons to form myelin sheaths in the white matter. . . .” Oligodendroglia, Dorland’s
Medical Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=34894 (last visited Dec. 8, 2022).
12
Molecular Mimicry: Frequency of Reactivity of Monoclonal Antiviral Antibodies with Normal
Tissues, 57 J. Virology 397, 397 (1986), filed as Ex. 66 (ECF No. 66-2) (“Srinivasappa”).
In Srinivasappa (an animal study published 36 years ago), researchers generated more than
600 monoclonal (meaning lab-created) 23 antibodies against 11 different viruses, including 39
against the measles virus, and then screened them for reactivity against 14 different organs in
healthy mice. Tr. at 61, 110; Srinivasappa at 397, 400. Generally, Srinivasappa’s authors found
that 3.5 percent of the antibodies in the study reacted with uninfected healthy tissue, leading to the
conclusion that a cross-reaction was common. Tr. at 61; Srinivasappa at 397, 400. Five of the
antibodies generated in response to the measles virus cross-reacted (a higher number than any
group of antibodies at issue save one)—although only one 24 had any CNS involvement, and
Srinivasappa’s authors noted that disease pathogenesis could not be assumed simply on the basis
of a single instance of cross-reactivity. Tr. at 113; Srinivasappa at 400. Indeed, Dr. Rumbaugh
admitted that there was no way of knowing whether the five measles-specific monoclonal
antibodies would be produced in response to the wild measles virus itself, let alone to the vaccine.
Tr. at 111, 137. And Srinivasappa said nothing about vimentin in CNS cells as being the likely
situs of a measles-responsive cross-reaction capable of resulting in MS. Id. at 110.
Dr. Rumbaugh also discussed two other articles. See R. Fujinami et al., Molecular Mimicry
in Virus Infection: Crossreaction of Measles Virus Phosphoprotein or of Herpes Simplex Virus
Protein with Human Intermediate Filaments, 80 Proceedings. Nat’l Acad. Sci.’s 2346, 2348–49
(1983), filed as Ex. 67 (ECF No. 66-3) (“1983 Fujinami”). This article (even older than
Srinivasappa) observed that phosphoprotein 25 antibodies to the measles virus (and to a lesser extent
the herpes simplex virus protein)26 could cross-react with an intermediate filament protein—likely
vimentin, although the article did not formally confirm this). 27 Tr. at 63; 1983 Fujinami at 2346.
During cross examination, however, Dr. Rumbaugh acknowledged that the measles strain that was
tested in 1983 Fujinami had been discontinued in 1970. Tr. at 103–04; 1983 Fujinami at 2346. Dr.
23
Dr. Rumbaugh proposed that it was reasonable to conclude that the monoclonal antibodies would be similar in their
chemical structure to antibodies generated in vivo and in reaction to a wild virus. Tr. at 136.
24
Specifically, only the monoclonal antibody 3 (MV) was identified as reacting with the cerebellum and the
hippocampus. Tr. at 11; Srinivasappa at 399.
25
Dr. Rumbaugh defined a phosphoprotein as a protein that was modified by the body to contain a phosphate group.
Tr. at 63.
26
In July 2012, Petitioner’s lab work was positive for herpes simplex virus 1 and 2 antibodies—the same virus that
the authors in this study theorized as reacting with the intermediate filament protein vimentin. Tr. at 105–07; Ex. 8 at
3. However, Dr. Rumbaugh did not believe this likely-resolved infection could suddenly trigger an autoimmune
reaction in 2015. Tr. at 135–36.
27
Although 1983 Fujinami’s authors theorized it was vimentin, based on a similar molecular weight and staining
pattern, they never directly confirmed it was vimentin in the body of the article. Tr. at 102. And Dr. Rumbaugh
admitted that 1983 Fujinami only said that vimentin may have certain sequences or service configurations in common
with the measles virus phosphoprotein. Id. at 105; 1983 Fujinami at 2349.
13
Rumbaugh did not know any details about this original strain, or about the strain used today in the
MMR vaccine (Enders attenuated Edmonston strain), and thus he could not provide insight into
whether the results specific to the version considered in 1983 Fujinami still had applicability to
the version of the vaccine likely received by Petitioner. Tr. at 104–05. However, he did not deem
the difference to be significant, because the measles virus was used in both scenarios, and though
differing strains can have individual characteristics and properties, the virus overall has similar
proteins, and should therefore elicit the same autoimmune response. 28 Id. at 132–33.
A second article was cited more to shore up those aspects of Petitioner’s causation theory
specific to the putative target for the autoimmune cross-reactive CNS attack leading to MS. R.
Fujinami et al., Molecular Mimicry, Bystander Activation, or Viral Persistence: Infections and
Autoimmune Disease, 19 Clinical Microbiology Rev.’s 80 (2006), filed as Ex. 31 (ECF No. 28-2)
(“2006 Fujinami”). 2006 Fujinami is largely a review article summarizing its authors’ views
(published 15 years ago) on the state of medical and scientific knowledge regarding “three
potential mechanisms for viral-induced autoimmune disease.” 2006 Fujinami at 80. The article
specifically states that “[i]n MS the target for immune mediated damage is the myelin producing
cell, the oligodendrocyte, and the axon. Loss of oligodendrocytes either by direct viral infection
or immune attack can lead to large areas of demyelination, since an oligodendrocyte can myelinate
multiple axons with myelin.” Id. at 84.
2006 Fujinami was not specific to MS, however, and Dr. Rumbaugh agreed that its authors
did not embrace the view that all cross-reactivity was likely pathogenic. Tr. at 108–10; 2006
Fujinami at 81. 29 In fact, 2006 Fujinami seems to propose that MS could be triggered in association
with an infection via a “fertile field” model, in which the immune system’s response to an infection
“sets up or tills the field,” immunologically speaking, allowing MS to occur, rather than directly
causing the demyelination and nerve damage associated with it. 2006 Fujinami at 84–85. But Dr.
Rumbaugh did not in this case propose such a pathogenic mechanism, nor is there evidence that
Petitioner possessed a pre-vaccination infection in any event with which vaccination could have
interacted.
Dr. Rumbaugh otherwise acknowledged that these items of literature did not stand as
particularly robust support for his theory. Only 1983 Fujinami discussed vimentin, for example,
as a putative cross-reactive target—unlike 2006 Fujinami, which discussed myelin basic protein,
and Srinivasappa, which mentioned none of the above. Tr. at 101, 108–12. He also agreed that 23
years separated the 1983 Fujinami and 2006 Fujinami articles—ample time for advancement in
scientific understanding of the vimentin-oriented theory he outlined (although he offered no more
28
As a comparison, Dr. Rumbaugh invoked the seasonal flu vaccine, which is formulated with different strains every
year but can still trigger the same immune response or neurological complications. Tr. at 134–35.
29
Dr. Rumbaugh also observed that 2006 Fujinami cited another article in which specific viruses were isolated from
the brain of MS patients—suggesting (in Dr. Rumbaugh’s opinion) that the measles virus may also be present. Tr. at
68; 2006 Fujinami at 84. However, Petitioner did not offer this article as evidence.
14
recent evidence suggesting any further research or developments into vimentin as an MS
autoimmune target). Id. at 107–08. And none of the articles involved the MMR vaccine itself—
although Dr. Rumbaugh insisted their virus-oriented findings were applicable, emphasizing that
because the measles vaccine is a live attenuated vaccine, “it’s basically the same virus.” Id. at 62–
63, 68, 103.
Petitioner’s medical record was also, in Dr. Rumbaugh’s view, supportive of the conclusion
that the vaccine was causal of her MS. Tr. at 72–74, 80–81, 89; Rumbaugh First Rep. at 3, 6;
Rumbaugh Second Rep. at 5. Prior to vaccination, Petitioner was in her usual state of health and
without any known neurological symptoms (other than her 2010 carpal tunnel diagnosis). Tr. at
72. There was no evidence of any other known non-vaccine triggers for demyelinating diseases—
viral infection, bacterial infection, surgery, insect bites, allergy, immunotherapy. Id. at 72–73;
Rumbaugh First Rep. at 6–7. There were also no other risk factors for Petitioner’s lesion activity,30
evidenced by her June and September 2015 MRI results. Tr. at 75–79; Ex. 4 at 22–23; Ex. 15 at
263. Dr. Rumbaugh specifically proposed that the pattern of demyelination observed in such
imaging studies was consistent with the theory of an autoimmune cross-reaction causing damage
and dysfunction to oligodendrocytes in the CNS. Tr. at 77–79; 2006 Fujinami at 84. But he agreed
on cross examination that more broadly this pattern was merely consistent with what is expected
in any individual experiencing relapsing-remitting MS, and thus is not specific to any suspected
cause. Tr. at 114.
The fact that Petitioner’s February 2015 MMR dose was her second in less than six months
was significant to Dr. Rumbaugh. Tr. at 79–80. Children alone were thought to receive lifelong
immunity from a similar two-dose course, he noted, but with a longer period of time between
doses. 31 Id. at 118. Since Petitioner’s immune system had encountered the antigen in a far tighter
timeframe, the immune system response to the second dose had to have occurred fairly fast,
increasing the likelihood of an aberrant cross-reaction. Id. at 79–80, 118; Rumbaugh Second Rep.
at 3. However, Dr. Rumbaugh acknowledged that a two-dose MMR regimen was recommended
for adults as well (suggesting that science did not perceive much of a risk from such a dosage).32
30
Dr. Rumbaugh embraced the idea that Petitioner’s non-enhancing lesions (appearing as early as May 2015) were in
reaction to the vaccine and had resolved by the time they were detected in later MRIs. Tr. at 141–44. This was not an
event of radiological isolated syndrome (“RIS”), where there were lesions consistent with MS, but imaging discovered
them before clinical symptoms had manifested. Id. at 143–44; Rumbaugh Second Rep. at 1.
The MMR vaccine is typically given to children in a two-dose series, with the first administered at the age of 12-15
31
months, and the second at age 4-6 years. Rumbaugh Second Rep. at 3.
32
On cross examination, Respondent referenced the CDC’s “Pink Book”—a collection of information on vaccines
and viruses—for these points, although it was not filed. Tr. at 119. Dr. Rumbaugh did not deem it surprising, however,
that the Pink Book recommended two doses of the MMR vaccine for colleges and other post-high school educational
facilities. Id. at 120, 139–41. He also admitted he did not find it difficult to accept that the Pink Book recommended
people receive an additional dose before traveling outside the United States—as Petitioner had in her travel to Kuwait.
Id. at 120.
15
Tr. at 118–19. And he offered no evidence establishing that the timeframe of Petitioner’s dosage
was out of the ordinary, or more truncated than medically appropriate.
Dr. Rumbaugh concluded his testimony by discussing Petitioner’s likely onset date for her
first MS symptoms, and whether it was consistent with his causation theory. He deemed
Petitioner’s testimony and medical records supportive of an onset date after her arrival in Kuwait
but before the end of March 2015—most likely with her symptoms beginning between 30 to 45
days post-vaccination (or between March 13th and March 28th). 33 Tr. at 74; Rumbaugh Second
Rep. at 2. Notably, however, the first medical record in which Petitioner mentioned an onset date
for her initial numbness and pain in her hands is from May 31, 2015—at which time she stated her
symptoms had been present for two months, or no sooner than the end of March 2015. Tr. at 115–
16; Ex. 12 at 17.
In Dr. Rumbaugh’s view, anything between two weeks to a few months from vaccination
to onset would be a medically acceptable timeframe for stimulation of the immune system
sufficient to produce CNS demyelination, depending on variables (the susceptibility of the
individual, the strength of the stimuli, etc.). Tr. at 70–71. Thus, a mid to late-March 2015 onset
was consistent with his theory, as well as relevant literature about other timeframes of other post-
vaccination neurologic injuries.34 Id. at 74, 80–81; see generally R. Bakshi & J. Mazziotta, Acute
Transverse Myelitis After Influenza Vaccination: Magnetic Resonance Imaging Findings, J.
Neuroimaging 248, 249 (1996), filed as Ex. 32 (ECF No. 28-3) (reporting neurological
complications in a case report of the flu vaccine and appear with a latency of 1 to 63 days (with an
average of 16.5 days)).
In support of this contention, Dr. Rumbaugh referenced Langer-Gould, which found the
risk of CNS demyelinating disease following vaccination was elevated in patients under the age of
50 (and Petitioner was 47 at the time of her receipt of the second MMR dose). Langer-Gould at
1511; Tr. at 74–75. Dr. Rumbaugh admitted, however, that it was unclear in Langer-Gould how
age was cross-referenced against timeframe, making it difficult to ascertain specifically when onset
was more or less likely. Tr. at 97–98. This was not accurate for other literature he had offered.
Agmon-Levin, for example, referenced six reports of TM following some combination of either
MMR, measles or rubella, but with the oldest patient experiencing disease in a shorter timeframe
(20-year-old and two-week onset) than the youngest (newborn infant experiencing onset a year
33
Dr. Rumbaugh’s first expert report proposed a broader onset timeframe around 18-48 days post-vaccination. Tr. at
115; Rumbaugh First Rep. at 7. But he deemed Petitioner’s testimony to support a narrower timeframe. Tr. at 115.
34
Dr. Rumbaugh also opined that the onset date would not differ if the initial immune stimulus were an infection or
vaccination—the process to get from stimulus to neurological disease were basically the same. Tr. at 71–72.
16
post-vaccination). 35 Id. at 116–17, 138; Agmon-Levin at 1200. Karussis, by contrast, observed
symptoms beginning in an average period of 14.2 days post-vaccination, although in some
instances symptoms were delayed. Tr. at 117; Karussis at 215. However, the most relevant case
study it cited involved a 19-year-old experiencing TM merely four days after measles
vaccination—hardly comparable to Petitioner’s circumstances. Tr. at 117–18; Karussis at 219.
Moreover, Dr. Rumbaugh acknowledged, Langer-Gould actually showed a decreased risk
of post-vaccination adverse events as time passed. Tr. at 54–56, 75; Langer-Gould at 1511–12.
Regarding MS, Langer-Gould observed that at roughly 14 days post-vaccination there was 2.58
times increased relative risk, slipping to 1.45 relative risk at 30 days, and 1.01 at 42 days. 36 Tr. at
53–56, 75, 98–99, 128–30; Rumbaugh Second Rep. at 2; Langer-Gould at 1511. Langer-Gould’s
authors actually found no increased risk of CNS demyelinating syndromes beyond 30 days,
undermining the assertion of a causal link where onset was not close in time to the purportedly-
causal vaccination. Tr. at 99–100, 130–31; Langer-Gould at 1509–10, 1512.
C. Respondent’s Expert – Jeffrey Gelfand, M.D., M.A.S.
Dr. Gelfand, a board-certified neurologist specializing in caring for patients with a wide
range of neurological and neuroinflammatory disorders, testified on behalf of Respondent, and
submitted a single expert report. See generally Tr. at 145–249; Report, dated Sept. 16, 2019, filed
as Ex. A (ECF No. 30-1) (“Gelfand Rep.”). Dr. Gelfand discussed Petitioner’s disease presentation
and medical history, as well as other aspects of the evidence offered to support causation.
Dr. Gelfand attended Princeton University for his undergraduate degree. See Curriculum
Vitae, filed as Ex. B (ECF No. 30-2) (“Gelfand CV”) at 1. He then attended Harvard Medical
School for his medical degree. Tr. at 146; Gelfand CV at 1; Gelfand Rep. at 2. He is currently an
Associate Professor of Clinical Neurology at University of California, San Francisco (“UCSF”),
where he also completed his medical residency with a subspeciality fellowship training in MS and
neuroimmunology, and master’s in advanced study in clinical research. Tr. at 145–48; Gelfand CV
at 1; Gelfand Rep. at 2. He is also the Clinical Fellowship Program and Assistant Medical Director
at the UCSF MS and Neuroinflammation Clinic. Tr. at 146; Gelfand Rep. at 2. He is board certified
in neurology by the American Board of Neurology and Psychiatry and has a medical license in
California. Tr. at 151; Gelfand Rep. at 2. He has also published several articles and editorials on
35
Dr. Rumbaugh found it relevant that middle aged and older adults seldom get the MMR vaccine. Tr. at 138–39.
This would explain why there is more of an association between younger people, as they are more likely to receive
the vaccine. Id.36
Relative risk was explained by Dr. Rumbaugh as involving a comparison of two groups. If the groups have the same
risk of getting a condition, the relative risk is 1.0. Tr. at 54. A relative risk of two, however, would mean that the
observed group is twice as likely to get the condition. Id. A relative risk of 1.1 would thus indicate that an affected
individual has a ten percent higher chance of developing the adverse event at issue than someone not similarly
impacted. Id.17
neurology, neuroimmunology, and MS. Tr. at 149. Dr. Gelfand has treated several hundred MS
patients, seeing some annually, and has also treated patients with TM. Id. at 153–55.
Dr. Gelfand accepted Petitioner’s relapsing-remitting MS diagnosis. Tr. at 156, 216;
Gelfand Rep. at 5–6, 8. 37 He defined MS as a chronic inflammatory autoimmune condition thought
to be caused by a mixture of environmental exposures and genetic susceptibility, but with no clear
originating etiology. Tr. at 158, 176, 217–20; Gelfand Rep. at 6; D. Reich et al., Multiple Sclerosis,
378 New Eng. J. Med. 169, 172 (2018), filed as Ex. A, Tab 1 (ECF No. 31-1) (“Reich”) (listing
examples of environmental exposures, including the Epstein-Barr virus infection and
mononucleosis, UV exposure, which may relate to the latitude effect, low vitamin D status, and
smoking). Its “attacks” are acute inflammatory demyelinating events involving the CNS. Tr. at
157–59, 217. An attack manifests as a neurologic symptom often correlated with lesions
observable on MRI. Id. at 157. MS is clinically diagnosed based on an appropriate history of
symptoms, typically with supportive findings and features on MRIs, a rigorous exclusion of other
potential causes, and possibly by additional evidence derived from spinal fluid or paraclinical tests.
Id. at 169. Overall, a diagnosis of relapsing-remitting MS requires evidence of “dissemination and
space and time,” with clinical symptoms and/or lesions impacting distinguishable parts of the
nervous system and in a chronic rather than monophasic process. Id. at 170.
Dr. Gelfand as a general matter disputed the contention that MS could be caused by any
vaccine. Tr. at 198–202, 222–23; Gelfand Rep. at 6; Reich at 173–74 (not identifying vaccines as
an environmental risk factor for MS, but acknowledging that not all causes of MS are known, and
viruses are thought to be one cause). Although he agreed with Dr. Rumbaugh that vaccines trigger
an immune response somewhat comparable to what foreign viruses or bacteria elicit, and that
sometimes viruses and vaccines can be associated with specific autoimmune demyelinating
diseases, he denied that the same association was true for MS. Tr. at 220–21. On the contrary, the
weight of scientific evidence was strongest for associations with other forms of acute inflammatory
demyelinating events which are often monophasic (e.g., Guillain-Barré syndrome (“GBS”))—not
something like MS, which is chronic. Id. at 248; Langer-Gould at 1512 (finding the strongest
association for monophasic conditions).
In addition, Dr. Gelfand noted, medical practice guidelines for patients with MS encourage
vaccination (further undermining arguments about the danger that a vaccine could trigger a flare).
Tr. at 208–11, 232–33; O. Rutschmann et al., Immunization and MS: A Summary of Published
Evidence and Recommendations, Am. Acad. Neurology 1837, 1842–43 (2002), filed as Ex. A, Tab
7 (ECF No. 31-7) (“Rutschmann”); M. Farez et al., Practice Guideline Update Summary: Vaccine
Preventable Infections and Immunization in Multiple Sclerosis, 93 Am. Acad. Neurology 1, 5, 8
(2019), filed as Ex. A, Tab 8 (ECF No. 31-8) (“Farez”). At most, vaccines containing live
37
Dr. Gelfand described in detail the nature of Petitioner’s MS, but because his diagnosis is not at issue, I will not
summarize Dr. Gelfand’s commentary or the records referenced therein. See generally Gelfand Rep. at 2–5; Tr. at
157–58; 161–75, 177–182.
18
components 38 are contraindicated for people who are actively immune-suppressed—but MS does
not feature immunosuppression, and so the benefits of preventing intercurrent infections in MS
patients far outweigh any negligible risk. Tr. at 208–10, 231–33; Gelfand Rep. at 7; Rutschmann
at 1839 (reviewing the published literature, and unable to provide evidence that MMR causes either
MS risk or an increased risk of relapse in people with MS, and concluding there was insufficient
evidence to support or reject an association between the measles vaccine and MS exacerbation);
Farez at 3, 5 (noting insufficient data to support or refute an association between MS and history
of vaccinations generally and including MMR); see also C. Confavreux et al., Vaccinations and
the Risk of Relapse in Multiple Sclerosis, 334 New Eng. J. Med. 319, 319, 324–25 (2001), filed as
Ex. A, Tab 6 (ECF No. 31-6) (“Confavreux”) (finding that a person with MS who gets vaccinated
is not at an increased risk of another attack).39
Dr. Gelfand attempted to go further than simply opining that vaccination was safe for MS
patients, offering literature he maintained rebutted any connection between the MMR vaccine and
MS’s instigation. See, e.g., M. Mailand & J. Frederiksen, Vaccines and Multiple Sclerosis: A
Systematic Review, 264 J. Neurology 1035 (2017), filed as Ex. A, Tab 2 (ECF No. 31-2)
(“Mailand”). Mailand, a review article, considered the findings of nine studies examining the risk
of developing MS following vaccination against measles, mumps and or rubella, with only one of
the cited studies supporting an increased risk. Mailand at 1036, 1044, and 1048. Petitioner noted
on cross examination that Mailand’s authors had admitted they were motivated in part to bulwark
the “public attitude towards vaccination” (based on instances in which vaccination coverage
dropped when there appeared to be a temporal association between vaccination and certain adverse
events), and thus might have been biased in their effort, but Dr. Gelfand accepted its authors’
statement that they merely hoped to summarize what reliable and existing epidemiologic studies
showed. Tr. at 240; Mailand at 1035. And he emphasized the fact that the article’s methodology
excluded numerous other articles and case reports. Tr. at 240–41; Mailand at 1035–36.
In addition, it was pointed out on cross examination (and in some detail as well) that most
of the items of literature considered in Mailand had been criticized for methodologic reasons40 by
38
The MMR vaccine is a live attenuated vaccine. Vaccinations, Nat’l Multiple Sclerosis Society,
https://www nationalmssociety.org/Living-Well-With-MS/Diet-Exercise-Healthy-Behaviors/Vaccinations, filed as
Ex. A, Tab 5 (ECF No. 31-5).
39
At worst, vaccination is associated with transient systemic reactions—and for MS patients this can encourage a
response akin to a symptoms flare. Tr. at 215–16. But Dr. Gelfand noted there was inadequate research into whether
such a reaction constituted a flare or was merely a pseudo relapse. Id.40
Respondent did not file any of these questioned items of literature, however, even if he indirectly relied on them
through Dr. Gelfand’s favorable citation to Mailand. Respondent did file Confavreux, by contrast, which Petitioner
also pointed out had been methodologically questioned by the IOM. Tr. at 233–35, 242. But Confavreux (observing
that vaccination is unlikely to cause MS symptom flares) only indirectly supported Dr. Gelfand’s larger opinion, and
in any event the IOM’s criticism of Confavreux referenced on cross-examination is not otherwise set forth in the filed
IOM Report (even if it is contained in that work elsewhere).
19
the Institute of Medicine (the “IOM”)—and in an article offered by Respondent. Tr. at 202–03,
236–39, 243–44 (references omitted); Evidence and Causality 159 (K. Stratton et al. eds., 2011),
filed as Ex. A, Tab 3 (ECF No. 31-3) (“IOM Report”), 159–61. Dr. Gelfand did not contest the
legitimacy of these criticisms, but maintained they merely underscored overall limitations in what
could be concluded from the “state of the literature.” Tr. at 245. He also observed that Mailand
considered at least one item of literature he had filed (along with Petitioner) that was not criticized
by the IOM—Langer-Gould. Tr. at 245–47; Mailand at 1046.
Another piece of literature offered by Dr. Gelfand was a large population-based
retrospective case-control study. Tr. at 203–08, 227–29; A. Hapfelmeier et al., A Large Case-
Control Study on Vaccination as Risk Factor for Multiple Sclerosis, 93 Am. Acad. Neurology e908
(2019), filed as Ex. A, Tab 4 (ECF No. 31-4) (“Hapfelmeier”). Hapfelmeier’s authors considered
the relationship between an MS diagnosis and vaccinations (in the five years prior to diagnosis) of
12,000 German patients, including the MMR vaccine. Hapfelmeier at e909–10. Focusing on
vaccination as the sole tested risk factor, Hapfelmeier observed no increased risk of MS post-
vaccination, and found the odds of MS were actually lower after receipt of some vaccines (although
the MMR vaccine was not identified in this group). Id. at e914–15. Dr. Gelfand also disagreed
with Petitioner’s reading of Hapfelmeier—that it deemed the vaccine-MS relationship
“uncertain”—noting that in fact the article was explicit in finding otherwise, and only
characterized the “uncertain” state of thinking on the subject as a threshold statement regarding
the determination of a “large number of studies” prior to Hapfelmeier’s findings. Id. at e912; Tr.
at 228.
The IOM report also invited attack from Petitioner. The IOM Report looked closely at two
of six epidemiologic studies involving MS and the MMR vaccine, rejecting four at the outset as
having facial methodologic issues. IOM Report at 159. The remaining two were deemed not
supportive of causation, but the IOM Report expressed “limited confidence” in their findings due
to identified issues in the respective studies. Id. at 161. The IOM Report (although again on the
basis of limited evidence) was, however, somewhat more definitive in finding a lack of
“mechanistic evidence” showing how immune cells are stimulated by the MMR vaccine, which
could lead to “onset of MS in adults.” Id. Dr. Gelfand stressed this finding over the IOM’s ultimate
determination that there was insufficient evidence overall to accept or reject a causal relationship
between the vaccine and the onset of MS in adults. Tr. at 202–03; Gelfand Rep. at 6; IOM Report
at 164.
In addition to challenging the existence of studies supporting an MMR vaccine-MS link,
Dr. Gelfand more specifically questioned the logic of Petitioner’s theory of causation, disputing
that it (with molecular mimicry as its mechanism) reliably explained how the MMR vaccine could
cause MS. Tr. at 183, 222. He defined the theory of molecular mimicry as when the human immune
system responds to a foreign antigen in a manner sufficient to overcome the typical self tolerance
20
that prevents autoimmunity, attacking the host at the situs having molecular similarity with the
original antigen (due to mimicry between the two). Tr. at 183–84, 222. Dr. Gelfand acknowledged
examples of particular bacterial infections that may have shared antigens with self myelin
structures sufficient to cause GBS, a peripheral neuropathy also involving harm to nerve myelin.
Id. at 185. To establish that molecular mimicry explains an autoimmune process, there must be
evidence of sufficient similarity (molecularly, functionally, and immunologically) between the
antigen and the target tissue in the host. Id. at 184. But additional steps are necessary for this kind
of mimicry to have any consequential significance, for not all cross-reactivity attributable to
molecular mimicry is pathogenic. Id. at 184–87.
Dr. Rumbaugh’s literature used to support his causation theory was not, in Dr. Gelfand’s
view, persuasive on a fundamental point: how antigens in the MMR vaccine could trigger
pathogenic autoimmunity leading to MS. Gelfand Rep. at 6. 1983 Fujinami, for example,
suggested the possibility of antibodies that could target vimentin—a protein found inside the cell—
but Dr. Rumbaugh had not provided other supportive links required by his theory to establish that
putative cross-reactivity of this kind could in fact become pathogenic. Tr. at 189. For an
autoimmune process to cause disease, purportedly cross-reacting antibodies must target a self
antigen in vivo, thereby causing damage or interfering with other processes. Id. at 187–88. When
proteins are on the outside of the cell, it is far easier to model how an antibody might directly cause
pathology. Tr. at 188. But when antigens are intracellular, or inside the cell, there is a question as
to how the allegedly-causal antibody would directly access the mimicked antigen. Id. at 188. In
addition, 1983 Fujinami was published 35-40 years ago, but in the ensuing timeframe medical
science never embraced an MMR virus cross-reaction with vimentin as a reliable hypothesis for a
potential cause of MS. Id. at 189. And even if it were assumed that vimentin could constitute a
target antigen, 1983 Fujinami (along with Srinivasappa and 2006 Fujinami) did not explain how
such an initial response would lead to a chronic and persistent process culminating in MS. Id. at
189–90.
Dr. Gelfand also discussed the use of case reports, and the related argument that since MS
is a rare disease case report evidence merits greater weight. Tr. at 197–98, 205–07. In Dr. Gelfand’s
view, case reports may provide clinical observations suggesting the need for more rigorous
scientific exploration and study, but cannot substantiate causation on their own. Id. at 197–98. Nor
did he deem persuasive the argument that it is not possible to design larger-scale studies to detect
rare events like MS. Id. In Dr. Gelfand’s understanding approximately 750,000 people in the
United States have been diagnosed with MS, making it one of the most common neurologic
conditions seen in clinical practice. Id. at 205–06. Otherwise, it was always possible to study rare
diseases as long as an appropriate study design was employed. Id. at 206–07. Dr. Gelfand did not
contest, however, that for many diseases and conditions, existing epidemiologic “tools” might be
inadequate. Id. at 224–26.
21
Besides offering an opinion on the evidence pertaining to causation, Dr. Gelfand also
expressed the view that Petitioner’s medical record did not support a finding that the MMR vaccine
she received in February 2015 had caused her MS. Tr. at 159, 211–12, 221. For example, he saw
nothing in the record indicating that any treaters attributed her MS to the vaccine. Tr. at 183;
Gelfand Rep at 6, 8. He also deemed the lesions viewed on MRI as typical in MS generally, rather
than somehow consistent with a vaccine-induced form of autoimmune condition. Tr. at 77–79,
175. Nor was it out of the ordinary that Petitioner was in her usual state of health prior to
vaccination, since it was very common for MS patients to suddenly experience clinical symptoms
with no prior warning. Id. at 176.
Dr. Gelfand concluded by offering an opinion on onset. Based on his reading of the record,
Dr. Gelfand proposed (consistent with other treaters) that Petitioner’s MS began in mid to late
March 2015 (or around five to six weeks following vaccination).41 Tr. at 216–17; Gelfand Rep. at
5–6; Ex. 15 at 63, 258. But new MS lesions (which would likely predate clinical manifestations)
typically enhance on imaging for a few weeks to months (with one to two months being the
average), 42 and the lesions observed in May 2015 were not enhancing, meaning they had already
resolved. Tr. at 165–66. The lack of MRI results from before May 2015 made it difficult to date
Petitioner’s progression or pinpoint her actual onset more carefully. Id.; Gelfand Rep. at 5–6.
Dr. Gelfand did not, however, accept a five to six-week post-vaccination onset to be
medically reasonable. Tr. at 190. In support, he referenced Langer-Gould. Id. at 190–97. That
article suggested an increased risk of post-vaccination MS at most very early after vaccination,
and only for CNS acute demyelinating events—not chronic ones like MS. 43 Id. at 197. And MMR
was not a common vaccine in this data set (in fact, Langer-Gould’s focus was on Hepatitis B and
HPV), so Dr. Gelfand did not find that the study showed the MMR vaccine could cause MS in this
specific timeframe. Id. at 190–91, 197; Langer-Gould at 1511–12.
III. Procedural History
The matter was initially assigned to another special master after its filing in 2017. ECF No.
1. By June 2018, Petitioner had filed all relevant medical records, an affidavit, and a Statement of
Completion. ECF No. 22. Respondent filed a Rule 4(c) Report on August 28, 2018, contesting
41
Dr. Gelfand acknowledged Petitioner’s 2010 hand-related symptoms might have been a first presenting MS
symptom of some kind, but stated that without additional information there was not enough evidence to connect these
earlier symptoms to her subsequently-diagnosed MS. Tr. at 216–17; Gelfand Rep. at 6.
42
Dr. Gelfand did not substantiate this assertion with literature.
43
Dr. Gelfand went into detail describing the use of the odds ratios, confidence intervals, and statistical significance
to further explain Langer-Gould. Tr. at 193–97. Ultimately, he opined that the larger the sample size (so long as the
data quality is good), the more power there is when observing an effect. Tr. at 213–14.
22
Petitioner’s right to compensation. ECF No. 23. Expert reports were filed over the next two years.
ECF Nos. 27, 30, 63. The matter was transferred to me on January 26, 2021, and I subsequently
scheduled a hearing to be held on January 13-14, 2022. ECF Nos. 56, 62. With the submission of
post hearing briefs (ECF Nos. 82, 86–87), the claim is now ripe for resolution.
IV. Applicable Legal Standards
A. Petitioner’s Overall Burden in Vaccine Program Cases
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 2010); Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006).44
Petitioner does not assert a Table claim.
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.”
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344,
1352–53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen v. Sec'y of Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005): “(1) a
44
Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding
authority. Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings
concerning legal issues are binding on special masters. Guillory v. Sec’y of Health & Hum. Servs., 59 Fed. Cl. 121,
124 (2003), aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Hum. Servs., No. 13-159V,
2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
23
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
proximate temporal relationship between vaccination and injury.”
Each of the Althen prongs requires a different showing. Under Althen prong one, petitioners
must provide a “reputable medical theory,” demonstrating that the vaccine received can cause the
type of injury alleged. Pafford, 451 F.3d at 1355–56 (citations omitted). To satisfy this prong, 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). Such a theory must
only be “legally probable, not medically or scientifically certain.” Id. at 549.
Petitioners may satisfy the first Althen prong without resort to medical literature,
epidemiological studies, demonstration of a specific mechanism, or a generally accepted medical
theory. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009) (citing
Capizzano, 440 F.3d at 1325–26). Special masters, despite their expertise, are not empowered by
statute to conclusively resolve what are essentially thorny scientific and medical questions, and
thus scientific evidence offered to establish Althen prong one is viewed “not through the lens of
the laboratorian, but instead from the vantage point of the Vaccine Act’s preponderant evidence
standard.” Id. at 1380. Accordingly, special masters must take care not to increase the burden
placed on petitioners in offering a scientific theory linking vaccine to injury. Contreras, 121 Fed.
Cl. at 245.
In discussing the evidentiary standard applicable to the first Althen prong, the Federal
Circuit has consistently rejected the contention that it can be satisfied merely by establishing the
proposed causal theory’s scientific or medical plausibility. See Boatmon v. Sec’y of Health & Hum.
Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019); see also LaLonde v. Sec’y of Health & Hum. Servs.,
746 F.3d 1334, 1339 (Fed. Cir. 2014) (“[h]owever, in the past we have made clear that simply
identifying a ‘plausible’ theory of causation is insufficient for a petitioner to meet her burden of
proof” (citing Moberly, 592 F.3d at 1322)). And petitioners always have the ultimate burden of
establishing their overall Vaccine Act claim with preponderant evidence. W.C. v. Sec’y of Health
& Hum. Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013) (citations omitted); Tarsell v. United States,
133 Fed. Cl. 782, 793 (2017) (noting that Moberly “addresses the petitioner’s overall burden of
proving causation-in-fact under the Vaccine Act” by a preponderance standard).
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,
569 F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec’y of Health & Hum. Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party’s treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
24
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
trustworthy evidence since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Medical records and statements of a treating physician, however, do not per se bind the
special master to adopt the conclusions of such an individual, even if they must be considered and
carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment,
test result, report, or summary shall not be binding on the special master or court”); Snyder v. Sec’y
of Health & Hum. Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is nothing . . . that mandates
that the testimony of a treating physician is sacrosanct—that it must be accepted in its entirety and
cannot be rebutted”). As with expert testimony offered to establish a theory of causation, the
opinions or diagnoses of treating physicians are only as trustworthy as the reasonableness of their
suppositions or bases. The views of treating physicians should be weighed against other, contrary
evidence also present in the record—including conflicting opinions among such individuals.
Hibbard v. Sec’y of Health & Hum. Servs., 100 Fed. Cl. 742, 749 (2011) (not arbitrary or capricious
for special master to weigh competing treating physicians’ conclusions against each other), aff’d,
698 F.3d 1355 (Fed. Cir. 2012); Veryzer v. Sec’y of Dept. of Health & Hum. Servs., No. 06-522V,
2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot. for review denied, 100 Fed.
Cl. 344, 356 (2011), aff’d without opinion, 475 F. Appx. 765 (Fed. Cir. 2012).
The third Althen prong requires establishing a “proximate temporal relationship” between
the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to the
phrase “medically-acceptable temporal relationship.” Id. A petitioner must offer “preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder’s etiology, it is medically acceptable to infer causation.” de Bazan
v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what
is a medically acceptable timeframe must align with the theory of how the relevant vaccine can
cause an injury (Althen prong one’s requirement). Id. at 1352; Shapiro v. Sec’y of Health & Hum.
Servs., 101 Fed. Cl. 532, 542 (2011), recons. denied after remand, 105 Fed. Cl. 353 (2012), aff’d
mem., 503 F. Appx. 952 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Hum. Servs., No. 11-355V,
2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for rev. denied (Fed. Cl. Dec. 3,
2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).
B. Legal Standards Governing Factual Determinations
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [ ] relevant medical and scientific evidence contained in the record,” including
25
“any diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained
in the record regarding the nature, causation, and aggravation of the petitioner's illness, disability,
injury, condition, or death,” as well as the “results of any diagnostic or evaluative test which are
contained in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special
master is then required to weigh the evidence presented, including contemporaneous medical
records and testimony. See Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (determining that it is within the special master's discretion to determine whether to afford
greater weight to contemporaneous medical records than to other evidence, such as oral testimony
surrounding the events in question that was given at a later date, provided that such determination
is evidenced by a rational determination).
As noted by the Federal Circuit, “[m]edical records, in general, warrant consideration as
trustworthy evidence.” Cucuras, 993 F.2d at 1528; Doe/70 v. Sec'y of Health & Hum. Servs., 95
Fed. Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner's testimony and his
contemporaneous medical records, the special master's decision to rely on petitioner's medical
records was rational and consistent with applicable law”), aff'd, Rickett v. Sec'y of Health & Hum.
Servs., 468 F. App’x 952 (Fed. Cir. 2011) (non-precedential opinion). A series of linked
propositions explains why such records deserve some weight: (i) sick people visit medical
professionals; (ii) sick people attempt to honestly report their health problems to those
professionals; and (iii) medical professionals record what they are told or observe when examining
their patients in as accurate a manner as possible, so that they are aware of enough relevant facts
to make appropriate treatment decisions. Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V,
2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr. Apr. 10, 2013); Cucuras v. Sec'y of Health & Hum.
Servs., 26 Cl. Ct. 537, 543 (1992), aff'd, 993 F.2d at 1525 (Fed. Cir. 1993) (“[i]t strains reason to
conclude that petitioners would fail to accurately report the onset of their daughter's symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec'y of Health & Hum. Servs., No. 03–1585V, 2005 WL
6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records
are often found to be deserving of greater evidentiary weight than oral testimony—especially
where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528; see also
Murphy v. Sec'y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d
1226 (Fed. Cir. 1992), cert. den'd, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States
v. United States Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral
testimony which is in conflict with contemporaneous documents is entitled to little evidentiary
weight.”)).
However, the Federal Circuit has also noted that there is no formal “presumption” that
records are accurate or superior on their face, in comparison to other forms of evidence. Kirby v.
Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). There are certainly situations
26
in which compelling oral or written testimony (provided in the form of an affidavit or declaration)
may be more persuasive than written records, such as where records are deemed to be incomplete
or inaccurate. Campbell v. Sec'y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“like any
norm based upon common sense and experience, this rule should not be treated as an absolute and
must yield where the factual predicates for its application are weak or lacking”); Lowrie, 2005 WL
6117475, at *19 (“[w]ritten records which are, themselves, inconsistent, should be accorded less
deference than those which are internally consistent”) (quoting Murphy, 23 Cl. Ct. at 733)).
Ultimately, a determination regarding a witness's credibility is needed when determining the
weight that such testimony should be afforded. Andreu, 569 F.3d at 1379; Bradley v. Sec'y of
Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec'y of Health & Hum. Servs.,
No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the
accuracy and completeness of medical records, the Court of Federal Claims has listed four possible
explanations for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person's failure to recount to the medical professional everything that happened
during the relevant time period; (2) the medical professional's failure to document everything
reported to her or him; (3) a person's faulty recollection of the events when presenting testimony;
or (4) a person's purposeful recounting of symptoms that did not exist. La Londe v. Sec'y of Health
& Hum. Servs., 110 Fed. Cl. 184, 203–04 (2013), aff'd, 746 F.3d 1334 (Fed. Cir. 2014). In making
a determination regarding whether to afford greater weight to contemporaneous medical records
or other evidence, such as testimony at hearing, there must be evidence that this decision was the
result of a rational determination. Burns, 3 F.3d at 417.
C. Analysis of Expert Testimony
Establishing a sound and reliable medical theory often requires a petitioner to present
expert testimony in support of his claim. Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357,
1361 (Fed. Cir. 2000). Vaccine Program expert testimony is usually evaluated according to the
factors for analyzing scientific reliability set forth in Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 594–96 (1993). See Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1339 (Fed.
Cir. 2010) (citing Terran v. Sec’y of Health & Hum. Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999).
Under Daubert, the factors for analyzing the reliability of testimony are:
(1) whether a theory or technique can be (and has been) tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) whether
there is a known or potential rate of error and whether there are standards for
27
controlling the error; and (4) whether the theory or technique enjoys general
acceptance within a relevant scientific community.
Terran, 195 F.3d at 1316 n.2 (citing Daubert, 509 U.S. at 592–95).
In the Vaccine Program the Daubert factors play a slightly different role than they do when
applied in other federal judicial settings, like the district courts. Typically, Daubert factors are
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable or could confuse a jury. By contrast, in Vaccine Program cases these factors are
used in the weighing of the reliability of scientific evidence proffered. Davis v. Sec'y of Health &
Hum. Servs., 94 Fed. Cl. 53, 66–67 (2010) (“uniquely in this Circuit, the Daubert factors have
been employed also as an acceptable evidentiary-gauging tool with respect to persuasiveness of
expert testimony already admitted”). The flexible use of the Daubert factors to evaluate the
persuasiveness and reliability of expert testimony has routinely been upheld. See, e.g., Snyder, 88
Fed. Cl. at 742–45. In this matter (as in numerous other Vaccine Program cases), Daubert has not
been employed at the threshold, to determine what evidence should be admitted, but instead to
determine whether expert testimony offered is reliable and/or persuasive.
Respondent frequently offers one or more experts in order to rebut a petitioner’s case.
Where both sides offer expert testimony, a special master's decision may be “based on the
credibility of the experts and the relative persuasiveness of their competing theories.”
Broekelschen v. Sec'y of Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing
Lampe, 219 F.3d at 1362). However, nothing requires the acceptance of an expert's conclusion
“connected to existing data only by the ipse dixit of the expert,” especially if “there is simply too
great an analytical gap between the data and the opinion proffered.” Snyder, 88 Fed. Cl. at 743(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 146 (1997)); see also Isaac v. Sec'y of Health & Hum.
Servs., No. 08–601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec. Mstr. July 30, 2012), mot. for
review den'd, 108 Fed. Cl. 743 (2013), aff'd, 540 F. App’x. 999 (Fed. Cir. 2013) (citing Cedillo,
617 F.3d at 1339). Weighing the relative persuasiveness of competing expert testimony, based on
a particular expert's credibility, is part of the overall reliability analysis to which special masters
must subject expert testimony in Vaccine Program cases. Moberly, 592 F.3d at 1325–26
(“[a]ssessments as to the reliability of expert testimony often turn on credibility determinations”);
see also Porter v. Sec'y of Health & Hum. Servs., 663 F.3d 1242, 1250 (Fed. Cir. 2011) (“this court
has unambiguously explained that special masters are expected to consider the credibility of expert
witnesses in evaluating petitions for compensation under the Vaccine Act”).
D. Consideration of Medical Literature
Both parties filed numerous items of medical and scientific literature in this case, but not
all such items factor into the outcome of this decision. While I have reviewed all the medical
28
literature submitted in this case, I discuss only those articles that are most relevant to my
determination and/or are central to Petitioner’s case—just as I have not exhaustively discussed
every individual medical record filed. Moriarty v. Sec’y of Health & Hum. Servs., No. 2015–5072,
2016 WL 1358616, at *5 (Fed. Cir. Apr. 6, 2016) (“[w]e generally presume that a special master
considered the relevant record evidence even though he does not explicitly reference such evidence
in his decision”) (citation omitted); see also Paterek v. Sec’y of Health & Hum. Servs., 527 F.
App’x 875, 884 (Fed. Cir. 2013) (“[f]inding certain information not relevant does not lead to—
and likely undermines—the conclusion that it was not considered”).
ANALYSIS
I. Treatment of MS in Prior Program Cases
The parties agree that Ms. Porch was properly diagnosed with the relapsing-remitting form
of MS (with her TM simply representing the first MS-associated flare rather than a distinguishable,
single instance of disease). But some discussion of what is known about MS, and also how claims
involving it in the Vaccine Program have been analyzed, will be useful in ascertaining whether
entitlement is appropriate herein.
MS is a chronic disease process impacting the CNS that (regardless of its initial
presentation) is likely to recur and/or progress. Reich at 169. In addition, MS can be subclinical
and symptomatically silent for a long period of time, with MS-characteristic brain lesions often
discovered in the absence of symptoms, or non-recent lesions discovered only after clinical
manifestations. Id. at 169–72. Significantly (and of course independent of the burden of proof
petitioners bear in Program cases), there is little to no direct scientific knowledge as to why MS
recurs—and no similar evidence that a one-time neurologic “hit” can explain subsequent
symptoms months or years later. Id. at 169, 172; Tr. at 74.
MS thus must be considered distinct from other demyelinating CNS injuries that the
Program often considers (and awards damages for), but which are acute and monophasic, like TM
or ADEM. Compare Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2014 WL 1092274,
at *23 (Fed. Cl. Spec. Mstr. Feb. 24, 2014) (finding causal relationship between flu vaccine and
TM) with Wei-Ti Chen v. Sec’y of Health & Human Servs., No. 16-634V, 2019 WL 2121208, at
*22 (Fed. Cl. Spec. Mstr. Apr. 19, 2019) (determining there was insufficient evidence provided to
support a causal connection between the flu vaccine and petitioner’s subsequent development of
neuromyelitis optica spectrum disorder, which is chronic and relapsing/remitting, like MS). I have
noted the importance of this distinction in several prior decisions. See, e.g., Morgan v. Sec’y of
Health & Human Servs., No. 15-1137V, 2019 WL 7498665, at *16 (Fed. Cl. Spec. Mstr. Dec. 4,
2019), mot. for review den’d, 148 Fed. Cl. 454 (2020), aff'd, 850 F. App'x 775 (Fed. Cir. 2021);
Taylor v. Sec'y of Health & Human Servs., No. 13-700V, 2018 WL 2050857, at *28–29 (Fed. Cl.
29
Spec. Mstr. Mar. 9, 2018); Caruso v. Sec'y of Health & Human Servs., No. 15-200V, 2017 WL
5381154, at *12–13 (Fed. Cl. Spec. Mstr. Oct. 18, 2017), mot. for review den'd, 137 Fed. Cl. 386(2018). 45
Because of the above, special masters have more often than not denied compensation in
cases alleging MS as a vaccine-caused injury. See, e.g., Samuels v. Sec'y of Health & Hum. Servs.,
No. 17-071V, 2020 WL 2954953, at *18–19 (Fed. Cl. Spec. Mstr. May 1, 2020) (finding
petitioner’s actual injury was MS, an illness far less associated with vaccination than one-time
acute CNS demyelinating events like ADEM); Pek v. Sec'y of Health & Hum. Servs., No. 16-
0736V, 2020 WL 1062959, at *17 (Fed. Cl. Spec. Mstr. Jan. 31, 2020) (determining that evidence
and expert reports did not provide sufficient proof that a progressive, chronic demyelinating
condition like MS could be initiated by the flu and Tdap vaccines); Chen, 2019 WL 2121208, at
*22; Hunt v. Sec’y of Health & Human Servs., No. 12-232V, 2015 WL 1263356, *15 (Fed. Cl.
Spec. Mstr. Feb. 23, 2015) (denying entitlement where MS was the alleged injury, but the literature
offered only discussed a causal relationship between vaccines and ADEM).
Admittedly, some special masters have gone in the opposite direction, and granted
compensation in MS cases—but my review of those decisions does not reveal any reasoned efforts
to grapple with the distinctions highlighted above. See, e.g., Robinson v. Sec'y of Health & Hum.
Servs., No. 14-952V, 2021 WL 2371721, at *25 (Fed. Cl. Spec. Mstr. Apr. 12, 2021); Hitt v. Sec’y
of Health & Human Servs., No. 15-1283V, 2020 WL 831822, at *9–10 (Fed. Cl. Spec. Mstr. Jan.
24, 2020). Rather, their assumption appears to have been that if a vaccine can cause one kind of
CNS autoimmune demyelinating injury, it can cause another.
II. Petitioner Has Not Carried Her Burden of Proof
A. Althen Prong One
The evidence offered in this case (mainly via the testimony of Dr. Rumbaugh) does not
preponderantly support the conclusion that the MMR vaccine can cause MS. At the outset, I note
that the wild viral versions of the vaccine’s primary components are not themselves associated
with MS, thus diminishing the value of the general argument (which Dr. Rumbaugh embraced)
that because vaccines mimic a wild viral infection, if the latter is causal the former can plausibly
be, as well. This also means that the MMR’s inclusion of actual measles viral particles is not
especially persuasive proof of causation by itself. Nor is it compelling that other vaccines have
been deemed causal of distinguishable demyelinating diseases, like GBS, or other CNS-oriented
demyelinating diseases more acute in nature, as reviewed in Karussis (which did not even focus
45
I also have yet to see, or preside over, a case in which a claimant successfully explained, through expert testimony
or literature, how a purportedly vaccine-caused acute demyelinating event could subsequently evolve into a chronic
condition (although it is wholly conceivable that this could be done).
30
on MS). The mere fact that MS is believed to be autoimmune in nature is only a starting point for
a causal theory based on a vaccine instigating the illness.
Petitioner needed instead to establish something specific about the MMR vaccine that
could be causal of MS. His primary argument was that the vaccine’s antigenic components could
(via the mechanism of molecular mimicry) result in an autoimmune cross-reaction against self
tissues, with Dr. Rumbaugh specifically identifying vimentin as a potential antigenic target. But
this causal theory lacked reliable support for many of its sub-elements. And that support was
needed. It is the case that molecular mimicry is a reliable theory for how autoimmune cross-
reactions might sometimes occur—but it is hardly the case that they always occur, and therefore
the concept’s core scientific reliability (which I accept) is not enough for it to render a causation
theory preponderantly established simply by invoking it, as I have noted on many prior occasions.
See, e.g., McKown v. Sec'y of Health & Hum. Servs., No. 15-1451V, 2019 WL 4072113, at *50
(Fed. Cl. Spec. Mstr. July 15, 2019) (citing Devonshire v. Sec'y of Health & Hum. Servs., No. 99-
031V, 2006 WL 2970418, at *15 (Fed. Cl. Spec. Mstr. Sept. 2006) (“[b]ut merely chanting the
magic words ‘molecular mimicry’ in a Vaccine Act case does not render a causation theory
scientifically reliable, absent additional evidence specifically tying the mechanism to the injury
and/or vaccine in question”) (emphasis in original), mot. for review den’d, 76 Fed. Cl. 452 (2007)).
First, Dr. Rumbaugh did not preponderantly demonstrate what element of the MMR
vaccine was likely to serve as a potentially mimicking antigen, causing the production of cross-
reacting antibodies. At best, he referenced items like Srinivasappa, which stands as somewhat-
stale support for the potentiality of a cross-reaction between antibodies produced (in the
environment of a lab) against the measles virus and host tissue—not that the cross-reaction was
reliably demonstrated to be pathogenic, and without anything additional to reliably suggest that
the same process was likely in vivo. Tr. at 111, 137; Srinivasappa at 397, 400. And unlike in other
cases (where experts attempt to show a specific amino acid peptide sequence or structure in
common between the vaccine antigens and a putative self-tissue structure serving as the antigenic
target for the cross-reactive attack), Dr. Rumbaugh did not similarly strive. Of course, even when
experts do attempt to show homology, this is insufficient to stand as preponderant evidence of
causality by itself—again because cross-reactivity is not congruent with pathogenicity. Schultz v.
Sec'y of Health & Hum. Servs., No. 16-539V, 2020 WL 1039161, at *22 n.24 (Fed. Cl. Spec. Mstr.
Jan. 24, 2020).
Second, Dr. Rumbaugh’s effort to establish a possible target for the proposed autoimmune
antibody-driven attack—vimentin—was equally bulwarked with thin support. He certainly did not
demonstrate that an intracellular structural protein like vimentin would necessarily be accessible
to antibodies in the first place. But even if that hurdle is ignored, his support for the contention that
this could be the situs for an MS-inducing cross-reaction was based on essentially two items of
literature, both (like Srinivasappa) fairly old and not updated or reevaluated: 1983 Fujinami and
31
2006 Fujinami. The findings of the two are only tenuously linked, moreover, with 1983 Fujinami
observing primarily only the possibility of a cross-reaction between antibodies produced in
response to an outdated measles virus strain and a vimentin-like protein, while 2006 Fujinami
suggests that MS’s damage begins with harm to oligodendrocytes in the brain. The idea that
vimentin in brain cells specific to CNS myelination can be reached by measles-reactive antibodies
is thus no more than a speculative theory at this point—despite ample opportunities of medical
science to explore it.
Petitioner also invoked a number of studies for indirect support of an MMR vaccine-MS
link, but they only provided limited assistance to his theory. Langer-Gould, for example, observed
some temporal association between vaccination and MS in at least a more immediate timeframe,
although its showing loses force when applied to the MMR vaccine—and its own authors largely
disclaimed the conclusion that Dr. Rumbaugh felt was compelled by the article. In fact, Langer-
Gould’s authors felt it more likely that vaccination might stoke an existing, if subclinical,
autoimmune process—a theory consistent with 2006 Fujinami’s “fertile field” concept, but not
with Petitioner’s theory that the MMR vaccine was directly causal, and in the absence of existing
but undetected MS. 46 2006 Fujinami at 84–85. And it observed little to no risk outside of a 30-day
window (shorter than the five to six-week timeframe for onset in this case). 47 The other case report
evidence (long understood in the Program to merit limited probative weight as a general matter)
was also mostly unhelpful. See, e.g., Campbell v. Sec'y of Health & Hum. Servs., 97 Fed. Cl. 650,
668 (2011) (“[c]ase reports do not purport to establish causation definitively, and this deficiency
does indeed reduce their evidentiary value”). Agmon-Levin did not at all involve MS.
In addition, Petitioner’s effort to establish causation must be viewed in the context of the
relevant injury. As discussed above, MS is chronic and persistent in nature, waxing and waning
over time for reasons not fully understood. It is simply more difficult to preponderantly show how
a single vaccination event can put into motion such a long-lasting disease process, as opposed to
causing an acute, monophasic injury that may have secondary sequelae but itself eventually ceases.
The fact that MS features demyelination, like more acute autoimmune disease counterparts, does
not eliminate this foundational issue.
46
Petitioner has not alleged a claim of significant aggravation of preexisting MS. To the contrary—she alleges her
MS began in late March 2015, and not prior to the February vaccination. I could not otherwise find on this record that
it is likely her MS was subclinical at the time she received the vaccine (despite the evidence of seemingly-neurologic
symptoms in 2010, believed at the time to be carpal tunnel syndrome), and the record also does not suggest that after
she received it, she began to experience some kind of immune-oriented response. On the contrary, she alleges no
symptoms at all a few weeks after vaccination, at the time of her arrival in Kuwait. Tr. at 7, 16.
47
I do not include a detailed analysis of Petitioner’s success in demonstrating the third Althen prong—for the simple
reason that all three prongs must be established, and my findings as to the first two therefore prohibit recovery for
Petitioner regardless of her success on the timeframe prong. Althen, 418 F.3d at 1278. The medical acceptability of a
five or six-week post-vaccination MS onset is first dependent on the conclusion that the vaccine can cause MS—a
conclusion I do not reach.
32
I reach my determination despite the fact that Petitioner made several persuasive points
rebutting some of Respondent’s contentions. In particular, Petitioner effectively demonstrated that
several of the epidemiologic articles or studies offered in this case had methodologic deficiencies
(as the IOM Report itself noted) that prevented me from giving such evidence significant weight.
Petitioners often (erroneously) argue that epidemiologic evidence should be given no weight at all
because it is never a “required” class of evidence that must be marshaled in favor of causation. In
fact, it can be very probative of causation when it exists, and if it is reliable. King v. Sec'y of Health
& Hum. Servs., No. 03-584V, 2010 WL 892296, at *74 (Fed. Cl. Spec. Mstr. Mar. 12, 2010)
(“special masters have routinely found that epidemiologic evidence, and/or other medical journal
articles, while not dispositive, should be considered in evaluating scientific theories”) (emphasis
in original). But if the latter is not demonstrated, epidemiologic evidence can reasonably be drained
of its probative value. And here, Petitioner effectively and persuasively established that the IOM
Report not only itself equivocated as to its findings on an MMR vaccine-MS association, but called
into question most of the articles relied upon by the Mailand review article, as well—killing two
birds with one stone.
Of course, simply because some items of literature relied upon by Respondent did not move
the needle against causation does not also mean that Petitioner’s showing in favor of causation
was any better. And in fact, Respondent did offer one item of epidemiologic evidence,
Hapfelmeier, that was not only very recent but was not subject to the same reliability attacks that
Petitioner convincingly launched against the other articles previously mentioned. Accordingly,
while this is not a case where epidemiologic evidence robustly rebuts causation, the limited items
of reliable proof offered on the topic were not overall supportive of Petitioner’s claim.
This is also not a case in which one expert’s demonstrated command of the disputed
medical or scientific issues predominated over the other. Both experts possessed neurologic
expertise (although it was largely not needed in this case, since Petitioner’s diagnosis was not
disputed), coupled with just enough immunologic knowledge to testify intelligently on the topic,
but without being able to establish enough specialized, real-world grasp of the subject to make
their proposed opinion more credible. The case instead turned mostly on the more fundamental
fact that Petitioner, via her expert, simply could not carry her burden of establishing the MMR
vaccine can likely cause MS—a determination that I reached based on consideration mostly of
Petitioner’s expert reports along with the literature offered in support. Dr. Rumbaugh otherwise
did not have the demonstrated expertise in immunologic issues to give his opinion weight that the
literature he filed lacked.
33
B. Althen Prong Two
The record also does not preponderantly establish that the MMR vaccine likely caused
Petitioner’s MS. First, no treaters have ever proposed her MS was vaccine-caused. Second, the
record is devoid of any evidence that Petitioner experienced any kind of reaction or immune-
oriented symptoms that might link the vaccine to injury; instead, the record is silent as to
Petitioner’s condition for almost the entire month of March 2015. There is also no proof that
Petitioner possessed even some of the putative cross-reacting antibodies. All the above is amplified
by the absence of evidence of any prior reaction by Petitioner to her earlier MMR dose (negating
the possibility of a demonstrated “rechallenge”48 to the second dose—despite Dr. Rumbaugh’s
suggestions that the dosage schedule increased the chance of an aberrant immune reaction). The
record does not provide more than a temporal association between Petitioner’s onset and prior
vaccination.
CONCLUSION
A Program entitlement award is only appropriate for claims supported by preponderant
evidence. Here, Petitioner has not made such as showing. Petitioner is therefore not entitled to
compensation.
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 this Decision.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
48
See generally Nussman v. Sec'y of Health & Hum. Servs., No. 99-500V, 2008 WL 449656, at *9 (Fed. Cl. Spec.
Mstr. Jan. 31, 2008), mot. for review den’d, 83 Fed. Cl. 111 (2008) (defining challenge-rechallenge as “when a person
(1) is exposed to one antigen, (2) reacts to that antigen in a particular way, (3) is given the same antigen again, and (4)
reacts to that antigen similarly”).
34