Hodge v. Secretary of Health and Human Services

In the United States Court of Federal Claims
No. 09-453V
(Filed Under Seal: March 7, 2023)
(Reissued for Publication: March 22, 2023) 1
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JEREMY HODGE, by his conservator *
ERIKA ELSON, *
*
Petitioner, * Vaccine Act; Motion for Review;
* Consideration of the Record as a Whole;
v. * Failure to Evaluate Relevant, Reliable
* Evidence; Factual Predicate for Petitioner’s
SECRETARY OF HEALTH AND HUMAN * Theory of Causation; Remand
SERVICES, *
*
Respondent. *
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Renée J. Gentry, Washington, DC, for petitioner.
Bridget A. Corridon and Althea Walker Davis, United States Department of Justice, Washington,
DC, for respondent.
OPINION AND ORDER
SWEENEY, Senior Judge
Petitioner Erika Elson filed an amended petition under the National Childhood Vaccine
Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34, alleging that her son’s
neurological issues were significantly aggravated by his hepatitis A and hepatitis B vaccinations.
The special master determined that petitioner did not establish a necessary factual predicate for
her theory of causation and therefore failed to prove that she was entitled to compensation.
Petitioner seeks review of that decision, arguing that the special master did not consider the
record as a whole as required by the Vaccine Act. As explained in more detail below, the court
grants petitioner’s motion for review, sets aside certain fact findings and legal conclusions made
by the special master, makes its own findings of fact, and remands the case to the special master
to reevaluate petitioner’s entitlement to compensation.
1
Vaccine Rule 18(b), included in Appendix B of the Rules of the United States Court of
Federal Claims, affords each party fourteen days in which to object to the disclosure of (1) trade
secrets or commercial or financial information that is privileged or confidential or (2) medical
information that would constitute “a clearly unwarranted invasion of privacy.” Neither party
objected to the public disclosure of any information included in this opinion.
I. BACKGROUND
A. Procedural History
Jeremy Hodge, in his individual capacity, filed a petition for compensation under the
Vaccine Act on July 15, 2009, alleging unspecified injuries arising from his hepatitis A and
hepatitis B vaccinations. 2 Over the following few years, Mr. Hodge filed various medical
records in support of his claim. After he indicated that all of his medical records had been filed,
respondent moved to dismiss the petition on the ground that it was filed beyond the applicable
limitations period. Thereafter, Mr. Hodge filed additional medical records and an expert report
from Carlo Tornatore, M.D. that addressed his diagnosis and the onset of his symptoms. The
parties then briefed the issue of whether equitable tolling applied in this case due to Mr. Hodge’s
mental health issues, and Mr. Hodge submitted an affidavit from his mother. On March 23,
2015, the special master dismissed the petition as untimely. Mr. Hodge filed a motion for
review, which the undersigned granted on September 9, 2015. The case was remanded to the
special master with instructions to reevaluate Mr. Hodge’s equitable tolling argument based on
the entirety of the record and then issue a new decision on respondent’s motion to dismiss.
During the remand period, Mr. Hodge filed additional medical records, two expert reports
from Robert Dasher, M.D., and two affidavits from his mother, while respondent filed expert
reports from Elizabeth M. LaRusso, M.D., and John T. Dunn, Ph.D. On December 21, 2015, the
special master issued a decision in which he concluded that the statute of limitations should be
equitably tolled and directed the parties to address whether a guardian should be appointed on
behalf of Mr. Hodge. The following year, Mr. Hodge’s mother was appointed his conservator,
and in that capacity she was substituted as the petitioner in this case.
On March 6, 2017, after filing additional medical records and another expert report from
Dr. Tornatore, petitioner filed an amended petition to specify her son’s injury: a significant
aggravation of his preexisting neuroborreliosis. Thereafter, respondent filed an expert report
from Arun Venkatesan, M.D., Ph.D., and petitioner filed two additional expert reports from Dr.
Tornatore. The parties also filed prehearing briefs in anticipation of an entitlement hearing.
After receiving the prehearing briefs, the special master issued an order on September 13,
2018, in which he directed petitioner to obtain and file additional medical records from providers
mentioned in the existing medical records and propounded a twelve-page, single-spaced list of
questions for petitioner to answer in writing. Four days later, the special master issued another
order directing petitioner to obtain and file her social security file and eleven other sets of
records (school records, medical records, and youth sports records). Petitioner filed the records
2
The court limits its recitation of the case’s procedural history and recounting of the
contents of the medical records, school records, affidavits, and expert reports to the information
relevant to the resolution of petitioner’s motion for review. A fuller account of the case’s factual
and procedural history can be found in the special master’s decision. See generally Hodge v.
Sec’y of HHS, No. 09-453V, 2022 WL 4954672, at *2-9, *12-32 (Fed. Cl. Spec. Mstr. Sept. 12,
2022).
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she was able to obtain and, on November 26, 2018, another affidavit. The special master,
dissatisfied with petitioner’s production (of both the requested records and the contents of the
affidavit), issued an order on November 28, 2018, in which he cancelled the upcoming
entitlement hearing, indicated his intent to instead hold a fact hearing focused on Mr. Hodge’s
condition before and after his hepatitis A and hepatitis B vaccinations, stated that such a hearing
would not be scheduled until the identified records had been produced, directed petitioner’s
counsel to seek authorization to issue subpoenas to obtain these records, further directed
petitioner’s counsel to be prepared to submit an affidavit describing the efforts made to obtain
these records, explained that updated expert reports reflecting any new information would likely
be necessary, and indicated that a new entitlement hearing would then need to be scheduled. The
special master acknowledged that the delay his requests would cause was contrary to the efficient
resolution of claims contemplated by Congress in enacting the Vaccine Act, but stated his belief
that such a delay was better than deciding the case without relevant factual information.
Eventually, on August 16, 2020, petitioner filed a statement indicating that all of the
records requested by the special master, to the extent they existed, had been filed. Thereafter,
she filed another expert report from Dr. Tornatore and respondent filed another expert report
from Dr. Venkatesan. Petitioner subsequently advised the special master that she did not want to
testify during the yet-to-be-scheduled entitlement hearing, 3 and instead proposed filing another
affidavit, which she did on February 3, 2021. In this affidavit, she directly answered the
questions originally propounded by the special master in September 2018.
In a March 25, 2021 order, the special master indicated that he was inclined to order
petitioner to testify during the entitlement hearing. In response, petitioner again indicated her
objections to testifying, but stated that she would make herself available if required by the
special master. The special master treated the latter statement as petitioner indicating her
willingness to testify and thus incorporated petitioner’s testimony into the hearing schedule,
along with the testimony of Dr. Tornatore and Dr. Venkatesan.
The special master held the entitlement hearing on June 14-15, 2021. The parties then
filed posthearing briefs from September 2021 to February 2022, and the special master heard
argument in March 2022. Six months later, on September 12, 2022, the special master issued his
decision.
At the outset of his decision, the special master summarized petitioner’s theory of
causation:
[Petitioner] alleges that (1) her son, Jeremy Hodge, developed Lyme disease in
2003; (2) the untreated bacterial infection progressed to a central nervous system
disorder known as neuroborreliosis; (3) the Lyme disease / neuroborreliosis in
turn caused him to develop obsessive-compulsive disorder (“OCD”); (4) then, the
2006 hepatitis B vaccine(s) significantly aggravated his condition.
3
By this point in time, the special master’s plan to conduct separate fact and expert
hearings had been abandoned.
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Hodge, 2022 WL 4954672, at *1. He then identified three issues presented by this case: (1) “the
absence of records during the critical periods of time”; (2) the inconsistency of petitioner’s
testimony, provided “many years after the subject events took place,” that was meant to “fill in
the evidentiary gaps”; and (3) the experts’ “develop[ment of] their opinions based upon the
rough sketch that the limited record evidence provides.” Id. at *1-2. With respect to second
issue, the special master found that petitioner’s testimony, “[a]t times,” was contradicted by the
medical records, inconsistent, and hyperbolic. Id. at *33. He therefore found petitioner’s
testimony unreliable, and held that it could not form the basis for any finding of fact. With
respect to the third issue, he remarked that Dr. Tornatore’s opinion was premised on Mr. Hodge
suffering from Lyme disease before he developed OCD, but that petitioner had “not established
that predicate with preponderant evidence.” Id. at *2. He therefore held that petitioner did not
establish her entitlement to compensation.
The special master’s decision contains a lengthy recounting of much of the factual
evidence in the record, including Mr. Hodge’s medical and school records, petitioner’s affidavits,
the reports of petitioner’s experts, and the oral testimony elicited from petitioner and Dr.
Tornatore during the entitlement hearing. 4 The court briefly summarizes the evidence relevant to
the resolution of petitioner’s motion for review. 5
B. Information Included in Mr. Hodge’s Medical Records
Mr. Hodge was born on May 15, 1987. His pediatric records reflect a number of normal
childhood illnesses and injuries through July 8, 1996, when he was nine years old. There are no
medical records from that date until March 10, 2004, when he visited his pediatrician with a two-
month history of sinus pressure.
Mr. Hodge’s mental health issues are first referenced in a September 28, 2004 notation by
an individual in his pediatrician’s office describing petitioner’s report that a psychiatrist had
given Mr. Hodge a prescription for Adderall. This notation is supported by pharmacy records
4
The special master’s recounting omits discussion of certain records, which the court
addresses below. It also includes a few inaccuracies. For example, the special master
erroneously indicated that Mr. Hodge was in the ninth grade from 2003 to 2004 and was sixteen-
to-seventeen years old at the time. Compare Hodge, 2022 WL 4954672, at *14 (“In ninth grade
(2003-2004), Mr. Hodge again attended the City of Angels School. . . . Mr. Hodge would have
been 16-17 years old during ninth grade.”), with Pet’r’s Ex. 61 at 6-7 (reflecting that Mr.
Hodge’s ninth grade year began in October 2002, and that his first two (of six) semesters in
senior high school ended in January 2004 and June 2004, respectively). As another example, the
special master implies that Shri Mishra, M.D. recorded Mr. Hodge’s chief complaint, history of
present illness, and assessment during an August 4, 2019 visit, even though the medical record
reflects that this information was recorded by another physician. Compare Hodge, 2022 WL
4954672, at *24, with Pet’r’s Ex. 7 at 45-46. Further inaccuracies are noted later in this decision.
5
The court derives its summary from the special master’s decision and petitioner’s
affidavits. Additional details from the medical records are set forth in the court’s discussion of
petitioner’s motion for review.
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indicating that John Nasse, M.D. prescribed Adderall for Mr. Hodge that same day (Dr. Nasse
also prescribed Risperdal for Mr. Hodge the previous day). 6 A March 21, 2005 pediatric record
indicates that Mr. Hodge had been taking Zoloft, and medical records from the spring of 2006
indicate that the Zoloft was being used to treat OCD, which Mr. Hodge developed when he was
seventeen years old.
On March 17, 2006, when he was eighteen years old, Mr. Hodge received a hepatitis A
vaccination and his first hepatitis B vaccination. Mr. Hodge received his second hepatitis B
vaccination on April 25, 2006. On June 2, 2006, he was evaluated at the Valley Presbyterian
Hospital emergency room for balance issues, dizziness, eye movement disturbances, fatigue, and
pain. His discharge diagnoses were dizziness and arthralgias-myalgias following the hepatitis
vaccination. Six days later, at petitioner’s request, one of Mr. Hodge’s physicians agreed to
request an MRI for Mr. Hodge. However, Mr. Hodge did not obtain an MRI at that time. In
fact, Mr. Hodge did not obtain an MRI until May 19, 2009. The MRI revealed white matter
hyperintensities in Mr. Hodge’s brain, leading a neurologist to suggest the possibility of a
demyelinating disease, among other potential diagnoses. A blood test on June 5, 2009, revealed
the presence of antibodies for Borrelia burgdorferi, suggestive of Lyme disease, but subsequent
testing for those antibodies had negative or inconclusive results.
The record from a neurology examination on August 4, 2009, includes the first mention
of a tick exposure in the section describing the history of Mr. Hodge’s illness. That record
further indicates that Mr. Hodge had psychiatric disorders, including OCD, of various onsets
starting at age seventeen, and that the onset of his OCD-like behavior occurred abruptly over the
course of one month. On December 11, 2009, an infectious disease specialist indicated that Mr.
Hodge’s symptoms were consistent with chronic neuroborreliosis.
C. Petitioner’s Written and Oral Testimony
Petitioner submitted several affidavits to expand upon the information described in the
medical records and fill in gaps where no relevant records exist. In her first affidavit, filed on
January 14, 2011, petitioner stated that Mr. Hodge “was at all times before his vaccination,
extremely healthy. He was kind, happy-go-lucky, and excelled in athletics.” Pet’r’s Ex. 9 ¶ 6.
She reported, however, that Mr. Hodge began to suffer from allergy-like symptoms at age
sixteen, leading them to seek medical treatment. Petitioner stated that the physician who
examined Mr. Hodge on March 17, 2006, Jorge Rodriguez, M.D., noted that Mr. Hodge had not
yet received his hepatitis A and hepatitis B vaccinations, and had them administered that day.
She then recounted:
6
Petitioner submitted a handwritten note, dated November 24, 2018, from Dr. Nasse in
which Dr. Nasse explained that his records had been destroyed in a fire a couple of years before
the records request. Nevertheless, he certified that Mr. Hodge was his patient on-and-off for a
year between 2000 and 2003, and was being treated for OCD. The conflict between this
certification and the September 2004 prescriptions he wrote for Mr. Hodge is not explained.
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14. The same evening he became violently ill with chills followed by hot flashes
and stabbing pains that felt like electric shocks up his spine, his legs, and his
arms.
15. We thought he had caught the flu.
16. He was somewhat better the following day, yet still felt hot.
17. Days [passed] and he still felt tired, but his symptoms did not seem too
alarming.
18. On April 25, 2006, I took Jeremy back to Dr. Rodriguez for a Hepatitis B
booster vaccination.
19. After that vaccination, my son’s health declined rapidly.
20. He complained of horrible fatigue, numbness in his arms, and stiffness
throughout his body. He was unable to concentrate for any length of time. He
left school and has not returned to his studies.
Id. ¶¶ 14-20. Petitioner did not mention OCD or describe any ritualized behaviors in this
affidavit, nor did she mention Mr. Hodge’s Lyme disease diagnosis. 7
Petitioner’s second affidavit, filed on October 1, 2014, provides additional detail
regarding Mr. Hodge’s health prior to the vaccinations at issue:
While we do not know the exact trip where Jeremy likely contracted Lyme
disease, we would go camping all the time at Big Sur, near my grandparents’
house. There were always ticks on the pets, and there were a lot of deer and there
were ticks on everything. On our last trip there was a large amount of ticks
everywhere. In the sleeping bags and on the dogs. At the end of that trip Jeremy
had a bulls-eye rash on his leg.
Back then there was not much information about Lyme disease so we just
treated it topically. He had some flu-like symptoms but we never thought much
of it. Within a year of that he began exhibiting OCD hoarder symptoms and
complained of spaciness and fogginess in his brain.
However before the hepatitis b vaccination in March of 2006 Jeremy was
a young man getting ready to finish school and start his new life. He loved going
to wrestling events with his family. Before the vaccine he would play video
7
Presumably, these topics were not addressed because the theory of causation at that
time was that Mr. Hodge developed a demyelinating disease from his hepatitis A and hepatitis B
vaccinations. See, e.g., Pet’r’s Ex. 9 ¶¶ 25-27 (stating that an MRI revealed lesions on Mr.
Hodge’s brain that indicated “a yet undiagnosed demyelinating condition”).
-6-
games with friends. He loved hiking, riding bikes, swimming. He was very
active. He could drive and go out with friends.
Pet’r’s Ex. 19 at 1. She also expanded upon Mr. Hodge’s condition postvaccination:
After the March 2006 shot . . . it was night and day. It was like he got hit
by a bus. He got very very ill within the month after the shot. He deteriorated
rapidly. He went to the emergency room within a week. He had severe pain
shooting up and down his spine. He was screaming in pain. His eyes were jittery
and moving all over the place. That didn’t stop for the next year. He had to drop
out of school – his independent study program.
Id.; see also Pet’r’s Ex. 71 ¶ 19 (explaining that she erroneously attributed Mr. Hodge’s
deterioration in health to a single vaccination rather than the multiple vaccinations he received on
two dates). She expanded on this information in a third affidavit, filed on October 16, 2015:
Jeremy’s OCD developed around age 16. Before about May 2006, my son
acted on his OCD symptoms but he could participate in his life. In the years
before and leading up to his 2006 vaccination he played video games,
skateboarded, wrestled. He did engage in rituals but they didn’t consume his
entire life like they did for the next seven or eight years following the vaccine.
....
Toward the end of 2005 Jeremy was on track to get his GED. At that
time, he could not attend school with the rest of his peers. He took classes
through an independent study program. His OCD made him fall too far behind in
school to keep up with ordinary classes. Because of his condition, ordinary high
school overwhelmed him. His rituals, obsessions, and compulsions became so
severe during the summer of 2006 that attending any classes whatsoever was a
pipe dream.
Pet’r’s Ex. 21 at 1; see also Pet’r’s Ex. 71 ¶ 19 (explaining that she erroneously stated that Mr.
Hodge wrestled; rather, he liked to attend WWE wrestling events).
Petitioner’s fifth affidavit was submitted in response to the special master’s order
propounding a list of questions for her to answer. 8 Petitioner did not directly answer the
questions posed by the special master, but did address some of the questions’ subject matter,
such as Mr. Hodge’s educational history. After recounting Mr. Hodge’s educational history
through the ninth grade, she stated:
7. I don’t remember when Jeremy had the tick bite that resulted in the bulls-eye
rash on his leg, but I think it was shortly before we moved to De Soto Avenue [on
8
The contents of petitioner’s fourth affidavit are not relevant to the issues now before
the court.
-7-
April 30, 2003]. It was some time after the move when he started having OCD
symptoms.
8. I took Jeremy to Valley Care on Victory Boulevard, and they prescribed
medication for him to take. First they tried Prozac, and then they switched to
Zoloft. Jeremy saw them off and on for about six months.
9. While Jeremy had OCD symptoms, they did not interfere with his daily life.
He continued to do well in school, and he continued to enjoy hiking, riding bikes,
swimming, going to WWE wrestling events, shows, and even opera. He also
enjoyed playing video games with friends.
10. Jeremy attended City of Angels for tenth grade. His report card for tenth
grade shows that he received all A’s the first semester (which ended January
30, 2004), and he received 4 A’s and one B the second semester (which ended
June of 2004[)]. . . . Clearly, Jeremy’s OCD was not causing any problems with
his school work.
Pet’r’s Ex. 71 ¶¶ 7-10; see also id. ¶¶ 12-13 (indicating that Mr. Hodge did independent study
through his school district for eleventh grade, that after the eleventh grade he dropped out of
school to pursue his GED, and that he wanted to attend a local community college). She also
described Mr. Hodge’s condition on the date of his hepatitis A and first hepatitis B vaccinations:
On March 17, 2006, I took Jeremy to the Noble Community Medical Center. It is
important to understand what Jeremy was like on that day. He did have OCD,
and he was somewhat depressed, but he was active and enjoying all of the
activities described in paragraph 9 above. The best analogy I can come up with is
watching the TV series about Monk. He has OCD, but it does not prevent him
from living his life. That was Jeremy. He had a life.
Id. ¶ 14. Petitioner directly responded to the questions posed by the special master in her sixth
affidavit, and her answers to the questions relevant to her motion for review were consistent with
the contents of her fifth affidavit.
In addition to providing extensive written testimony, petitioner testified during the
entitlement hearing in June 2021. The special master summarized petitioner’s testimony
regarding Mr. Hodge’s prevaccination condition, placing particular emphasis on her inability to
remember certain details regarding events that occurred more than fifteen years previously:
When asked to described Mr. Hodge’s general health from birth to age 16,
she stated he was “very healthy.” She testified that during a camping trip with
lots of ticks, Mr. Hodge received a bull’s-eye rash and subsequently developed
OCD symptoms. She recalled the OCD symptoms started at around age 16 and
he received an OCD diagnosis at age 17. Despite the symptoms, she insisted his
life was “very normal.” However, he had to quit school in eleventh grade because
Ms. Elson and Mr. Hodge had moved several times and “the OCD made him
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work a little bit slower because he would get caught up counting” and with
“ritualistic behavior.”
. . . . On a bad day, Mr. Hodge would spend about 20% of his day
consumed by OCD symptoms. On good days, it was not noticeable. She recalled
Mr. Hodge getting OCD treatment at Valley Care, but could not remember the
name of the doctor that diagnosed him. She stated he was on Prozac during this
time period. . . .
During cross-examination, Ms. Elson was asked about whether Mr. Hodge
was seeing other doctors or receiving other treatment at around age 16 when the
OCD symptoms purportedly started. Ms. Elson responded: “It’s kind of hard to
remember. Everything is so – just such a blur now. I may have, about that time,
gone to Dr. Nasse, but other than that, I’m sorry, I don’t remember.” She could
not recall, without checking her notes, what grade Mr. Hodge was in when she
separated from her husband. “The dates are very fuzzy for me right now. It’s just
been so long.”
After being reminded that Mr. Hodge was placed on Adderall in 2004, Ms.
Elson noted that Mr. Hodge took Adderall only one time. She stated she did not
fill the prescription. She could not remember if Dr. Nasse prescribed any other
medication, and thought Mr. Hodge saw him only twice. She recalled Mr. Hodge
taking Zoloft for a couple of weeks in 2005. But, it was “hard to remember all the
medications.”
Respondent’s counsel asked Ms. Elson if she had any recollection of the
month or year that the Big Sur camping trip took place. She responded: “I know
it was not – I know it wasn’t – maybe spring. I’m literally guessing. . . . It would
have been like summer or spring, something like that.” She proceeded to say Mr.
Hodge was about 14 or 15 years old on that trip (which would be between 2001
and 2002). 9
Hodge, 2022 WL 4954672, at *18 (footnote added) (citations omitted). The special master then
summarized petitioner’s testimony regarding Mr. Hodge’s postvaccination condition:
Ms. Elson testified that after the first shot, Mr. Hodge’s eyes started
fluttering and he complained of spinal pain and itching. Though the two allegedly
told Dr. Rodriguez about the eye fluttering, it was not reflected in the medical
record. 10 Then, “[a]ll hell broke loose” after the second hepatitis vaccine. She
9
Mr. Hodge’s fifteenth birthday was on May 15, 2002, and therefore he also would have
been fifteen years old in 2003.
10
Contrary to the special master’s assertion, Dr. Rodriguez’s “subjective” notes from
Mr. Hodge’s April 25, 2006 visit provide: “Pt gets itchy after [illegible], pt gets uncontrollable
eye movements[.] Pt also complaining of back pain[.]” Pet’r’s Ex. 5 at 3.
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testified she requested an MRI “[e]very time” they went to an emergency room,
but was denied until 2009 because they had Medi-Cal / Medicaid.
She testified his eye fluttering got worse after the second vaccine and he
experienced horrible pain, weakness, and dizziness. Similarly, she alleged his
personality changed and his ritualistic behavior became constant. She stated she
reported all of these symptoms when she took him to the hospitals. On cross-
examination, she professed to not recalling several details.
Id. at *31-32 (footnote added).
Having set forth the background relevant to petitioner’s motion for review, the court is
prepared to address the merits of that motion.
II. DISCUSSION
A. Standard of Review
The United States Court of Federal Claims (“Court of Federal Claims”) has jurisdiction
to review the record of the proceedings before a special master, and upon such review, may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master found
to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
42 U.S.C. § 300aa-12(e)(2). The standards set forth in § 300aa-12(e)(2)(B) “vary in application
as well as degree of deference. . . . Fact findings are reviewed . . . under the arbitrary and
capricious standard; legal questions under the ‘not in accordance with law’ standard; and
discretionary rulings under the abuse of discretion standard.” Munn v. Sec’y of HHS, 970 F.2d
863, 870 n.10 (Fed. Cir. 1992). In this case, petitioner’s sole enumerated objection to the special
master’s decision is that the special master improperly raised her burden of proof by separately
assessing and rejecting each piece of evidence under the preponderance-of-evidence standard
rather than evaluating all of the evidence in the record as a whole. This approach, she argues, is
not in accordance with law. When faced with such a contention, the Court of Federal Claims
reviews the special master’s application of the law de novo. Rodriguez v. Sec’y of HHS, 632
F.3d 1381, 1384 (Fed. Cir. 2011).
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B. The Special Master Did Not Consider All of the Evidence in the Record
Petitioner, in support of her contention that the special master did not consider the record
as a whole when determining that she had not established by a preponderance of evidence that
Mr. Hodge’s Lyme disease predated his development of OCD, maintains:
In his analysis, the Special Master reviews the pieces of circumstantial
evidence regarding the Big Sur camping trip individually, relying substantially on
[petitioner’s] six affidavits (including the final affidavit addressing 13 pages of
questions from the special master issued several years after the fact) filed over the
period of more than a decade, as well as her testimony at hearing in 2021 – nearly
two decades after the events in question. The Special Master then critiques every
variation in [petitioner’s] affidavits and testimony with respect to when the
camping trip at Big Sur occurred. He further criticizes and dismisses every
medical record that references the tick-bite exposure trip as being insufficient. He
does both without acknowledging that [petitioner’s] statements in her affidavits
and testimony consistently report the tick-bite exposure camping trip occur[ing]
before her son’s diagnosis of OCD and prior to the first Hepatitis b vaccination
and that the medical records at the time support this statement. Nevertheless, he
dismisses each one individually as lacking persuasive information.
Pet’r’s Mot. 15 (footnotes and citations omitted). Respondent counters that the special master
appropriately considered all of the evidence in the record in concluding that petitioner had not
established that Mr. Hodge suffered from Lyme disease in 2003, before he developed OCD and
before he was vaccinated against hepatitis A and hepatitis B.
Under the Vaccine Act, a petitioner is entitled to compensation “if the special master . . .
finds on the record as a whole . . . that the petitioner has demonstrated by a preponderance of the
evidence” the necessary elements of a vaccine-caused “illness, disability, injury, condition, or
death,” 11 and if there is not a preponderance of evidence that the “illness, disability, injury,
condition, or death” is due to factors unrelated to the administration of the vaccine. 42 U.S.C.
§ 300aa-13(a)(1). Further, when determining the weight to be given any “diagnosis, conclusion,
judgment, test report, report, or summary” set forth in the medical records, the special master
“shall consider the entire record and the course of the injury, disability, illness, or condition
. . . .” Id. § 300aa-13(b)(1). This “statutory instruction to consider the entire record[] is
consistent with the purpose of the Vaccine Act, which established ‘a no-fault compensation
11
The necessary elements include: (1) that the vaccine in question is set forth in the
Vaccine Injury Table (“Table”); (2) that the vaccine was received in the United States or in its
trust territories; (3) that the injured person either sustained an injury as a result of the
administration of a Table-designated vaccine for a period of more than six months after the
administration of the vaccine, suffered illness, disability, injury, or condition from the vaccine
that resulted in inpatient hospitalization and surgical intervention, or died from the
administration of the vaccine; and (4) that the petitioner has not previously collected an award or
settlement of a civil action for damages arising from the alleged vaccine-related injury or death.
42 U.S.C. § 300aa-11(c)(1).
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program “designed to work faster and with greater ease than the civil tort system.”’” Moriarty v.
Sec’y of HHS, 844 F.3d 1322, 1331-32 (Fed. Cir. 2016) (quoting Bruesewitz v. Wyeth LLC, 562
U.S. 223, 228 (2011)).
Precedent of the United States Court of Appeals for the Federal Circuit (“Federal
Circuit”) provides guidance on what is necessary to satisfy the requirements of 42 U.S.C.
§ 300aa-13(a)(1) and 42 U.S.C. § 300aa-13(b)(1). For example, in Golub v. Secretary of Health
& Human Services, the Federal Circuit criticized the special master for “treat[ing] each element
of the evidence individually, discrediting each piece of evidence in turn, without considering the
totality of the evidence.” 243 F.3d 561 (Fed. Cir. 2000) (per curiam) (unpublished table
decision). It relied, in part, on its earlier decision in Jay v. Secretary of the Department of Health
& Human Services, in which it held that the special master, in concluding that the petitioners had
not established that their child suffered from an encephalopathy, “los[t] sight of the forest for the
trees” because the testimony of the petitioners’ expert reflected that the child, after his
vaccination, exhibited symptoms consistent with an encephalopathy and then “died well-within
the [Vaccine Act’s] time frame for an encephalopathy.” 998 F.2d 979, 983-84 (Fed. Cir. 1993).
Ten years later, in Cedillo v. Secretary of Health & Human Services, the Federal Circuit
approved the special master’s separate evaluation of each piece of evidence, remarking: “In the
Special Master’s careful and thorough opinion, he considered, weighed, and stated his reasons
for rejecting or discounting each item of evidence in which the petitioners relied.” 617 F.3d
1328, 1345 (Fed. Cir. 2010). In Snyder v. Secretary of Health & Human Services, it concluded
that the special master properly “examin[ed] the record in its entirety” when he found that the
respondent’s evidence showed that the children’s seizure disorders were caused by a factor
unrelated to the DTaP vaccine, observing that the special master “did the analysis necessary to
decide the Secretary had the stronger case based on testimony and the intellectual strength of the
evidence, as well as the arguments presented.” 553 F. App’x 994, 1000, 1003 (Fed. Cir. 2014)
(unpublished decision). And most recently, in Paluck v. Secretary of Health & Human Services,
the Federal Circuit held that “the special master failed in his duty to consider ‘the record as a
whole’” by “placing undue emphasis on the relatively insignificant variations” in some of a
particular provider’s records, thereby “giv[ing] short shrift to the evidence” of the child’s
condition reflected in the entirety of that provider’s records. 786 F.3d 1373, 1382-83 (Fed. Cir.
2015). What all of this case law indicates is that a special master must not focus on individual
pieces of evidence at the expense of determining what is depicted by the record as a whole, and
that to the extent that a special master evaluates each piece of evidence on its own merits, he or
she should ensure that all relevant evidence is so evaluated.
In setting forth his findings of fact, the special master in this case accepted the
“undisputed” proposition “that Mr. Hodge had Lyme disease in December of 2009,” but declined
to find that Mr. Hodge had Lyme disease prior to that date, explaining:
[A] finding that Mr. Hodge suffered from Lyme disease in 2009 does not mean
that Mr. Hodge suffered from Lyme disease six years earlier in 2003. The
medical records discussing Lyme disease start in 2009. The only evidence
supporting a Lyme disease diagnosis prior to 2006 is derived from statements
made by [petitioner]. Although Dr. Tornatore assumes Mr. Hodge had Lyme
-12-
disease in 2003, the basis for that assumption comes from [petitioner’s]
testimony. It is not wholly implausible that Mr. Hodge had Lyme disease before
2006. But, in light of the above findings [that petitioner’s testimony was
unreliable because petitioner “made numerous statements that are in conflict with
the medical records and that are contradicted by her own testimony,” 12] the
undersigned cannot credit that assertion because it is not sufficiently persuasive.
Hodge, 2022 WL 4954672, at *36; accord id. at *35 (“Given the finding that [petitioner] is not
reliable . . . , the undersigned cannot accept the assertion that Mr. Hodge was bitten by ticks
during a camping trip in 2003 or that he developed Lyme disease in 2003.”), *37 n.50 (“While
the evidence supports a finding that Mr. Hodge suffered Lyme disease in 2009, there is not
preponderan[t] evidence that Mr. Hodge suffered Lyme disease in 2006.”). In other words,
because the special master found “numerous” “flaws” in petitioner’s testimony, id. at *34, he
refused to credit any of her statements.
It is axiomatic that special masters have great discretion in assessing the credibility of
witnesses and determining what weight their testimony should be afforded. See, e.g., Andreu v.
Sec’y of HHS, 569 F.3d 1367, 1379 (Fed. Cir. 2009); Pafford v. Sec’y of HHS, 451 F.3d 1352,
1359 (Fed. Cir. 2006); Lampe v. Sec’y of HHS, 219 F.3d 1357, 1360 (Fed. Cir. 2000); Munn,
970 F.2d at 871. But upon declaring a fact witness to be lacking in credibility and rejecting the
witness’s testimony as unreliable, a special master cannot ignore other evidence in the record
that is consistent with, but does not depend on, that witness’s testimony. To do so would be a
violation of the Vaccine Act’s mandate to consider the entire record.
Here, the special master rejected petitioner’s written and oral testimony that Mr. Hodge
was bitten by a tick and developed Lyme disease in 2003. In doing so, he made a single, passing
reference in a footnote to other evidence in the record that might support petitioner’s testimony:
He stated that “[a] medical record from 2009 also mentions possible tick exposure,” but
maintained that “this record does not contain any persuasive information about the time of the
camping.” Hodge, 2022 WL 4954672, at *35 n.49 (citing Pet’r’s Ex. 7 at 44). He did not
reference any other medical record. Yet there are at least five separate medical records dated
from August 2009––shortly after presence of antibodies for B. burgdorferi were detected in Mr.
Hodge’s blood––to January 2010 that implicitly associate the presence of those antibodies to the
onset of Mr. Hodge’s OCD around 2004, and more than one record that explicitly states that Mr.
Hodge’s Lyme disease predated his OCD symptoms. Set forth below are the portions of these
and other medical records that relate to the timing of Mr. Hodge’s tick exposures, contraction of
Lyme disease, and development of OCD: 13
12
This quotation is from earlier in the special master’s decision. See Hodge, 2022 WL
4954672, at *34.
13
Many of the quoted notes are handwritten. The court retains the original
abbreviations, punctuation, and grammar, but makes one alteration for an obvious misspelling
and omits irrelevant comments.
-13-
• August 4, 2009, Olive View-UCLA Medical Center (“Olive View”)
neurology department, resident physician’s notes on Mr. Hodge’s chief
complaint and the history of his illness:
Pt was normal prior to age of 17, abrupt onset of OCD-like behavior
(counting, checking, etc) over 1 month, then onset of a mental
“fogginess”/“detachment from reality” of insidious onset that has since
waxed and waned with periods of “normalcy.” By the age 19, mother
states he has never been back to baseline psych level––always somewhat
detached/[weird]. At age 18 1/2 had routine hep B vaccine, then that night
had stabbing spinal/back pain c̄ neg CT head, Age 19, pt c/o
“arm/neck/back” muscle and skin “tightness” c̄ spasms of gradual onset
(intermittent). . . . tick exposure in NorCal c̄ neighbor c̄ Lyme Dx.
Mother convinced sx’s 2/2 Hep vaccine
Pet’r’s Ex. 7 at 46; see also id. at 45 (setting forth the resident physician’s
assessment: “22 y/o M c̄ . . . psychiatric d/o including OCD behavior, bipolar
vs. schizoaffective d/o all of varying onsets starting at age 17.”).
• August 4, 2009, Olive View neurology department, attending physician’s
assessment:
22 yr old male c̄ hx of behavioral problem starting at age 17. Pt has hx of
tick bite? Exposure to northern California Lyme? Pt had hx of fever neck
sinus symptoms. Pt examined He has normal gen physical &
neurological exam. . . . Imp. → Hx of Lyme?
Id. at 45.
• September 24, 2009, Olive View infectious disease outpatient clinic,
physician’s “subjective” notes:
22 yo ♂ c̄ ? Lyme disease, had characteristic EM rash after went camping,
on back of calf 3 yrs ago. Then 6 wks after rash, had “OCD” type
symptoms. Was given amoxicillin for a squirrel bite, then 2 months amox
for ? sinusitis. . . . Went camping a few times prior.
Pet’r’s Ex. 14 at 457.
• September 29, 2009, Olive View neurology department, a different resident
physician’s notes on Mr. Hodge’s chief complaint and the history of his
illness: “pt c̄ OCD sxs, ‘bad mood swings’, hx of hallucinations, pt c̄ hx of
tick bite at Monterey County, CA, pt c̄ chronic HA, pt never Rx’ed for lyme
-14-
dx.” Pet’r’s Ex. 7 at 44; see also id. at 43 (noting, in the resident physician’s
assessment and plan, that Mr. Hodge was “ past lyme disease exposure” 14).
• October 22, 2009, Olive View initial psychiatric evaluation, psychiatrist’s
assessment: “22 y/o ♂ c̄ 4-5 yr hx of cognitive sx’s assoc c̄ high exposure to
Lyme disease.” Pet’r’s Ex. 14 at 447.
• December 3, 2009, Olive View infectious disease outpatient clinic,
physician’s “subjective” notes:
Pt was in his normal state of health until ~4 yrs ago, when family noted
the onset of OCD and cognitive disturbances. Pt reportedly had exposure
to tick bites while camping in Big Sur. Mother also states she recalls rash
on L leg. Over past few years, patient has been plagued by progressive
fatigue, headaches, memory disturbances, myalgias which have left him
unable to function.
Pet’r’s Ex. 7 at 22.
• December 11, 2009, Olive View infectious disease outpatient clinic,
physician’s notes: “24 yr old male with . . . chronic neuropsychiatric
syndrome (depression; obsessive compulsive disorder; changes in cognition)
and hx of possible Lyme disease 4-5 years PTA while living in Big Sur area
(+ hx of tick bites; + hx of rash Rxed c̄ short course of antibiotics).” Pet’r’s
Ex. 14 at 3.
• December 17, 2009, Olive View psychiatric/infectious disease outpatient
clinic, psychiatrist’s assessment: “OCD-like sx’s assoc c̄ anxiety – Possible
Lyme c̄ neuro Ψ sx’s - Can’t exclude 1° cause.” Pet’r’s Ex. 7 at 37; see also
id. (indicating that Mr. Hodge was being “followed for possible neurolyme
with neuropsychiatric sxs”).
• December 22, 2009, Olive View, physician’s notes on the history of Mr.
Hodge’s illness: “22-yo man with a history of possible Lyme disease 4-5
years ago who subsequently developed new obsessive compulsive symptoms
(concerns about contamination, incessant counting) and changes in cognition
. . . .” Pet’r’s Ex. 14 at 5; see also id. at 9 (indicating, in a December 23, 2009
record made by a different physician, that Mr. Hodge was being followed for
“neuropsychiatric disorders as complication of his lyme disease”), 12
(indicating, in another record dated December 23, 2009, from a third
physician, that Mr. Hodge had a “hx of likely lyme disease 5 years ago,
untreated then”).
14
There appear to be two letters immediately following the word “exposure” (perhaps
“VT”) that are double underscored, but it is difficult to ascertain precisely what they are.
-15-
• December 31, 2009, Olive View infectious disease outpatient clinic,
physician’s “subjective” notes: “22 y/o ♂ being followed by ID for
unexplained neurologic/cognitive deficits c̄ MRI evidence of demyelination in
setting of possible tick bite.” Pet’r’s Ex. 7 at 21.
• January 11, 2010, private infectious disease specialist’s notes on the history of
Mr. Hodge’s illness:
[T]he patient and his mother recall that the patient had spent a great deal
of time visiting in Monterey County near Salinas and also in the Big Sur
area because his grandparents were there. At age 17, the patient and the
rest of his family had camped out at Big Sur. The patient’s mother recalls
that there were ticks all over them, their dog, and their belongings at that
time. Approximately 2 months after that trip, the patient developed severe
muscle aches and fatigue. The patient also may have had some rashes,
which his mother believes could have been of the bull’s eye type. Six
months after the camping trip, the patient suddenly developed OCD and in
fact has not really been normal since that time, although it is noted he did
have the major breakdown starting 2 years ago [around the time of his
hepatitis B vaccination]. . . . The patient and his mother stated he was
angry, agitated, and had hallucinations. The patient was followed at a
mental health clinic, but no specific diagnosis other than the OCD was
found . . . . Finally, a brain MRI was done and lesions were found. . . . In
the meantime, the patient’s mother had found out that other people in the
area of Big Sur and also Monterey County, where the patient had been,
had contracted Lyme disease, and she became concerned about this.
Pet’r’s Ex. 13 at 5.
The special master does not mention four of the medical records excerpted above in his
decision: the medical records dated September 29, 2009, and December 3, 2009, and the two
medical records dated December 23, 2009. Additionally, for all but two of the remaining
medical records excerpted above––those dated August 4, 2009, and December 17, 2009––the
special master only describes portions of the records not quoted by the court. Given his decision
to assess whether one medical record included persuasive evidence regarding the timing of Mr.
Hodge’s camping trip and possible tick exposures, it is unclear why the special master would not
similarly assess the other medical records that referenced these key events.
The special master’s failure to discuss these other medical records is problematic because
they bear several hallmarks of reliability. First, the notes in these medical records regarding Mr.
Hodge’s tick exposures and OCD reflect information that was conveyed to the physicians closer
in time to the relevant events, and at a time when it made sense to convey that information to the
-16-
physicians (in the wake of the detection of antibodies for B. burgdorferi in Mr. Hodge’s blood). 15
Second, the notes reflect information that was conveyed to the physicians well before petitioner
or Dr. Tornatore linked Mr. Hodge’s Lyme disease and OCD to his alleged vaccine-caused
injury. 16 Thus, petitioner and Mr. Hodge were not motivated by this litigation when recounting
Mr. Hodge’s history of tick exposures and OCD, but instead by the need to provide the
physicians with information relevant to the newly discovered presence of antibodies for B.
burgdorferi in Mr. Hodge’s blood. And third, the medical history reflected in these notes is
generally consistent, even though it is evident from the distinct manners in which the information
was recorded that petitioner and Mr. Hodge were required to recount the relevant events
numerous times to numerous physicians. Overall, while it is true that many of the notes in these
medical records regarding Mr. Hodge’s tick exposures and OCD were likely derived from
information provided by petitioner, there is every reason to believe that they portray a
substantially accurate picture of Mr. Hodge’s health in the years leading up to his hepatitis A and
hepatitis B vaccinations. Indeed, the special master did not find that the statements that
petitioner likely made to these physicians in 2009 and early 2010 were not credible; his
credibility determination was limited to petitioner’s testimony, which she first offered by way of
affidavit in October 2014.
At bottom, the special master’s failure to consider these medical records when
determining whether it was more likely than not that Mr. Hodge’s tick exposures and Lyme
disease predated his OCD symptoms violates the Vaccine Act’s mandate to consider the record
as a whole, and therefore his conclusion on this issue was not in accordance with law. Further,
because the special master did not consider all of the relevant evidence in the record, his fact
findings regarding the timing of Mr. Hodge’s exposure to ticks, contraction of Lyme disease, and
development of OCD symptoms are arbitrary and capricious. See Hines v. Sec’y of HHS, 940
F.2d 1518, 1528 (Fed. Cir. 1991) (observing that under the “highly deferential” arbitrary and
capricious standard, reversible error is “extremely difficult to demonstrate” when “the special
master has considered the relevant evidence of record” (emphasis added)). Consequently,
15
Petitioner asserts that Mr. Hodge’s tick exposures and rash predated his OCD
symptoms, which he began to exhibit when he was sixteen years old (in the 2003-2004 time
period). Antibodies for B. burgdorferi were detected in Mr. Hodge’s blood on June 5, 2009. The
excerpted medical records are dated from August 4, 2009, to January 11, 2010, and the first time
petitioner testified regarding Mr. Hodge’s tick exposures and OCD was in her October 1, 2014
affidavit.
16
In the original petition, filed on July 15, 2009, just forty days after antibodies for B.
burgdorferi were detected in Mr. Hodge’s blood, petitioner suggested only that the hepatitis A
and hepatitis B vaccines caused a demyelinating disease; the theory of significant aggravation is
not even suggested. Further, petitioner’s first affidavit, signed on January 13, 2011, and filed the
following day, does not mention Lyme disease or OCD. The first evidence that petitioner
considered Mr. Hodge’s alleged vaccine-caused injury to be related to his Lyme disease and
OCD was Dr. Tornatore’s August 23, 2013 expert report identifying the illness suffered by Mr.
Hodge and the onset of the symptoms of that illness. Petitioner did not provide testimony
regarding Mr. Hodge’s tick exposures and OCD until the submission of her second affidavit on
October 1, 2014.
-17-
pursuant to 42 U.S.C. § 300aa-12(e)(2)(B), the court sets aside the special master’s conclusion––
and the findings of fact underlying that conclusion––that petitioner did not satisfy her burden to
prove, by a preponderance of evidence, that Mr. Hodge contracted Lyme disease in 2003. 17
C. Consideration of the Record as a Whole
The question of when Mr. Hodge contracted his Lyme disease is critical to petitioner’s
case because her theory of causation, as espoused by Dr. Tornatore, is premised on Mr. Hodge’s
17
Notably, the special master found petitioner to not be a credible witness because, “[a]t
times,” her testimony was in conflict with the medical records, internally inconsistent, and
hyperbolic; he then provided several examples of these “flaws.” Hodge, 2022 WL 4954672, at
*33-34. In this decision, the court sets aside only one aspect of this determination—that
petitioner’s testimony concerning the sequence of Mr. Hodge’s tick exposures, contraction of
Lyme disease, and exhibition of OCD symptoms was not credible. Nevertheless, a few
comments regarding some of the “flaws” identified by the special master are warranted. First, it
seems unfair to rely on Dr. Nasse’s statement that he treated Mr. Hodge sometime between 2000
and 2003 to criticize petitioner for her inconsistent statements regarding the treatment dates,
since Dr. Nasse’s statement is itself contradicted by pharmacy records indicating that Dr. Nasse
prescribed Risperdal and Adderall for Mr. Hodge in September 2004.
Second, there are notes in a few medical records from 2007, unmentioned by the special
master, that provide some support for petitioner’s claim that Mr. Hodge experienced significant
weight loss (albeit not to the magnitude petitioner describes in her affidavits). See, e.g., Pet’r’s
Ex. 65 at 5 (indicating, in a medical record dated June 20, 2007, that petitioner reported “weight
loss, difficulty eating” “over the last year”); Pet’r’s Ex. 10 at 3 (indicating, in a medical record
dated November 16, 2007, that Mr. Hodge “lost significant weight, between 25-30 pounds in
recent months”).
Third, unlike the special master, the court does not find it “difficult to reconcile”
petitioner’s assertions in her third affidavit regarding Mr. Hodge switching between being afraid
to leave the house and refusing to go in the house, especially in light of her comment later in the
same affidavit that a medication helps Mr. Hodge sleep so that her “entire life isn’t consumed
with chasing him down in the streets––that is, when he isn’t afraid to wear clothes or leave the
house.” Pet’r’s Ex. 21 at 3. Given the manifestation of his illness, as described in the medical
records, it seems quite likely that Mr. Hodge’s behavior could shift from one extreme to the
other.
Fourth, the special master ascribes more precision to petitioner’s references to particular
years and ages than is warranted by the record. He recounts petitioner’s oral testimony that the
pivotal camping trip occurred when Mr. Hodge was fourteen or fifteen years old, concludes that
it therefore would have occurred in 2001 or 2002, and then offers petitioner’s written testimony
that the trip occurred in 2003 as a reason for discrediting her testimony. However, Mr. Hodge
turned fourteen years old on May 15, 2001, and was fifteen years old from May 15, 2002, to May
14, 2003. Accordingly, there is no actual conflict between petitioner’s oral and written
testimony.
-18-
OCD being a manifestation of neuroborreliosis. Given this fact, there are two paths available to
the court: (1) remand the case to the special master to consider the record as a whole and
redetermine whether petitioner has satisfied her burden to establish that Mr. Hodge’s tick
exposures and Lyme disease predated his OCD symptoms, 18 42 U.S.C. § 300aa-12(e)(2)(C); or
(2) make its own findings of fact on this issue and, if necessary, remand the case for further
proceedings, id. § 300aa-12(e)(2)(B). To ensure that this 2009 case is not delayed any longer
than necessary, the court opts to take the latter path.
To establish entitlement to compensation under the Vaccine Act, a petitioner alleging a
vaccine-caused injury must prove causation by a preponderance of evidence. Id. § 300aa-
13(a)(1) (citing 42 U.S.C. § 300aa-11(c)(1)).
The burden of showing something by a “preponderance of the evidence,” the most
common standard in the civil law, “simply requires the trier of fact ‘to believe that
the existence of a fact is more probable than its nonexistence before [he] may find
in favor of the party who has the burden to persuade the [judge] of the fact’s
existence.’”
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602,
622 (1993) (quoting In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring)
(alterations in original)), quoted in Moberly v. Sec’y of HHS, 592 F.3d 1315, 1322 n.2 (Fed. Cir.
2010). When determining whether preponderant evidence exists to establish a fact, the court,
like the special master, weighs the relevant evidence in light of the “entire record and the course
of the injury, disability, illness, or condition . . . .” 42 U.S.C. § 300aa-13(b)(1); see also id.
§ 300aa-13(a)(1) (requiring fact findings to be based “on the record as a whole”).
Further, the court must be mindful that there is “no basis for presuming that medical
records are accurate and complete . . . as to all physical conditions” because “[a]lthough a patient
has a ‘strong motivation to be truthful’ when speaking to his physician, that does not mean he
will report every ailment he is experiencing, or that the physician will accurately record
everything he observes.” Kirby v. Sec’y of HHS, 997 F.3d 1378, 1383 (Fed. Cir. 2021) (citation
omitted); accord id. (“[P]hysicians may enter information incorrectly and ‘typically record only a
fraction of all that occurs.’” (quoting Shapiro v. Sec’y of HHS, 101 Fed. Cl. 532, 538 (2011)));
see also La Londe v. Sec’y of HHS, 110 Fed. Cl. 184, 203 (2013) (describing reasons why
symptoms may not appear in a medical record, such as a petitioner’s failure to recount an
observed symptom, a physician’s failure to record all information conveyed by a petitioner, and a
petitioner’s faulty recollection of events), aff’d, 746 F.3d 1334 (Fed. Cir. 2014). Additionally,
“the absence of a reference to a condition or circumstance is much less significant than a
reference which negates the existence of the condition or circumstance.” Kirby, 997 F.3d at
1383 (quoting Shapiro, 101 Fed. Cl. at 538).
18
The special master has already found that Mr. Hodge had OCD prior to his 2006
hepatitis A and hepatitis B vaccinations. Hodge, 2022 WL 4954672, at *34-35.
-19-
With these standards in mind, the court finds that when looking at the record as a whole,
there is a preponderance of evidence that Mr. Hodge exhibited symptoms of OCD by September
28, 2004. This evidence includes:
(1) records from the Los Angeles Unified School District reflecting that Mr.
Hodge did not return to high school for the eleventh grade in the fall of 2004,
when he was seventeen years old, Pet’r’s Ex. 61 at 7;
(2) the September 27-28, 2004 pharmacy record indicating that Dr. Nasse
prescribed Risperdal and Adderall for Mr. Hodge, who was seventeen years
old at the time, Pet’r’s Ex. 23;
(3) the March 21, 2005 medical record indicating that Mr. Hodge, who was
seventeen years old at the time, had been taking Zoloft until two days prior,
Pet’r’s Ex. 3 at 4;
(4) the March 17, 2006 medical record indicating that Mr. Hodge’s OCD started
when he was seventeen years old (between May 15, 2004, and May 14, 2005),
Pet’r’s Ex. 5 at 2;
(5) the August 4, 2009 medical record indicating that Mr. Hodge experienced an
“abrupt onset of OCD-like behavior” at age seventeen (between May 15,
2004, and May 14, 2005), Pet’r’s Ex. 7 at 46; accord id. at 45;
(6) the October 22, 2009 medical record indicating that Mr. Hodge had a four-to-
five year history of cognitive symptoms, which would place those symptoms
in the 2004-2005 time period, Pet’r’s Ex. 14 at 447; and
(7) the December 11, 2009 medical record indicating that Mr. Hodge had a
“chronic neuropsychiatric syndrome (depression; obsessive compulsive
disorder; changes in cognition)” four-to-five years prior, which would place
that syndrome in the 2004-2005 time period, id. at 3.
Only two pre-2010 medical records suggest different dates for the onset of Mr. Hodge’s OCD.
See Pet’r’s Ex. 7 at 22 (a December 3, 2009 medical record suggesting an onset date around
2005); Pet’r’s Ex. 14 at 457 (a September 24, 2009 medical record suggesting an onset date
around 2006). Furthermore, petitioner consistently testified that Mr. Hodge’s OCD symptoms
manifested before September 28, 2004. See Pet’r’s Ex. 21 at 1 (indicating that Mr. Hodge’s
“OCD developed around age 16,” in other words, between May 15, 2003, and May 14, 2004);
Pet’r’s Ex. 71 ¶ 10 (implying that Mr. Hodge had OCD during tenth grade, in other words,
between the fall of 2003 and the spring of 2004); Hr’g Tr. 145 (testifying that Mr. Hodge showed
symptoms of OCD at age sixteen––in other words, between May 15, 2003, and May 14, 2004––
and was diagnosed with OCD at age 17). At no time did petitioner testify that Mr. Hodge first
exhibited OCD symptoms after September 28, 2004.
-20-
In addition, the court finds that when looking at the record as a whole, there is a
preponderance of evidence that Mr. Hodge’s tick exposures and resulting Lyme disease predated
his OCD symptoms. This evidence includes several medical records indicating that Mr. Hodge
exhibited OCD symptoms after contracting Lyme disease:
(1) the September 24, 2009 medical record indicating that Mr. Hodge developed a
rash after camping, which was followed by OCD-like symptoms six weeks
later, Pet’r’s Ex. 14 at 457;
(2) the December 22, 2009 medical record indicating that Mr. Hodge developed
OCD symptoms after contracting “possible Lyme disease,” id. at 5; and
(3) the January 11, 2010 medical record indicating that Mr. Hodge camped at Big
Sur, developed muscle aches and fatigue approximately two months later, and
then developed OCD four months after that, Pet’r’s Ex. 13 at 5.
The evidence also includes medical records that more generally associate Mr. Hodge’s OCD
with his tick exposures and/or Lyme disease:
(1) the October 22, 2009 medical record indicating that Mr. Hodge had a four-to-
five year history of cognitive symptoms that were associated with a “high
exposure” to Lyme disease, Pet’r’s Ex. 14 at 447;
(2) the December 3, 2009 medical record indicating that Mr. Hodge’s family
noted an onset of OCD, that Mr. Hodge purportedly had an exposure to ticks
while camping in Big Sur, and that petitioner recalled a rash on Mr. Hodge’s
left leg, Pet’r’s Ex. 7 at 22; and
(3) the December 11, 2009 medical record indicating that Mr. Hodge had a
“chronic neuropsychiatric syndrome,” along with “possible Lyme disease,” a
“history of tick bites,” and a “history of rash” four-to-five years prior, Pet’r’s
Ex. 14 at 3.
There are no pre-2010 medical records indicating that Mr. Hodge’s OCD symptoms predated his
tick exposures or Lyme disease. Furthermore, petitioner consistently testified that Mr. Hodge
exhibited OCD symptoms after his tick exposures and subsequent bull’s-eye rash. See Pet’r’s
Ex. 19 at 1 (stating that “[w]ithin a year of” developing “a bulls-eye rash on his leg” at the
conclusion of a camping trip, Mr. Hodge “began exhibiting OCD hoarder symptoms”); Pet’r’s
Ex. 71 ¶ 7 (stating that they moved on April 30, 2003, and indicating petitioner’s belief that Mr.
Hodge “had the tick bite that resulted in the bulls-eye rash on his leg” shortly before they moved,
and began to exhibit OCD symptoms “some time after” they moved); Hr’g Tr. 145 (testifying
that the tick exposure and “bull’s-eye rash” predated Mr. Hodge’s OCD symptoms).
In short, upon considering the record as a whole, including Mr. Hodge’s medical and
school records and petitioner’s testimony, the court finds that (1) Mr. Hodge exhibited symptoms
of OCD by September 28, 2004, and (2) Mr. Hodge’s tick exposures and subsequent Lyme
-21-
disease predated his OCD symptoms. These findings negate the special master’s determination
that Dr. Tornatore’s expert opinion was based on facts not established by petitioner and therefore
could not be credited. They also negate the special master’s determination that any further
analysis of petitioner’s theory of causation, including whether “a hepatitis B vaccine can
aggravate Lyme disease,” was unnecessary. Hodge, 2022 WL 4954672, at *37. Consequently,
petitioner’s entitlement to compensation must be resolved anew. And while the court is
authorized to make the necessary fact findings and legal conclusions, 42 U.S.C. § 300aa-
12(e)(2)(B), the special master, given his familiarity with the experts’ opinions and the medical
and scientific evidence supporting those opinions, is better positioned to assess petitioner’s
theory of causation in the first instance. See Munn, 970 F.2d at 870 (“[T]he key decision maker
in the first instance is the special master.”); Sword v. United States, 19 44 Fed. Cl. 183, 188-89
(1999) (“[E]ven more than ordinary fact-finders, this Court has recognized the unique ability of
Special Masters to adjudge cases in the light of their own acquired specialized knowledge and
expertise. . . . A fact-finder, especially one with specialized experience such as a Special
Master, can accept or reject opinion testimony, in whole or in part. . . . [T]he Special Master
evaluates the testimony in light of the entire record, based on reasonable inferences born of
common experience or the product of special expertise.” (citations omitted)). Thus, the court
will remand the case to the special master with instructions to reevaluate petitioner’s entitlement
to compensation in accordance with 42 U.S.C. § 300aa-13.
III. CONCLUSION
Under the Vaccine Act, special masters are required to consider all of the evidence in the
record, and when a special master violates this mandate, the reviewing court must set aside the
findings of fact and conclusions of law affected by that violation and may then issue its own fact
findings and legal conclusions. Here, the special master disregarded substantial, reliable
evidence in the record that supported petitioner’s later testimony regarding the sequence of
events: that prior to his hepatitis A and hepatitis B vaccinations, Mr. Hodge was exposed to
ticks, then developed a rash indicative of Lyme disease, and then exhibited symptoms of OCD.
Consequently, the court sets aside the special master’s conclusion––and the findings of fact
underlying that conclusion––that petitioner did not satisfy her burden to prove, by a
preponderance of evidence, that Mr. Hodge contracted Lyme disease in 2003. Additionally, to
avoid further delay in this matter, the court issues its own fact findings regarding the sequence of
events, concluding that petitioner has established, by a preponderance of evidence, that Mr.
Hodge exhibited symptoms of OCD by September 28, 2004, and that his tick exposures and
subsequent Lyme disease predated his OCD symptoms.
Finally, the court remands the case to the special master to reevaluate petitioner’s
entitlement to compensation in light of the court’s fact findings. On remand, the special master
shall not require the submission of any additional evidence or legal argument unless this
prohibition would result in erroneous findings of fact or conclusions of law. Indeed, the record
already appears to be complete since it includes all of Mr. Hodge’s existing, relevant medical
19
Although the respondent in all Vaccine Act cases is the Secretary of the Department of
Health and Human Services, 42 U.S.C. § 300aa-12(b)(1), the respondent in Sword is identified
as the United States.
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and school records; petitioner’s oral and written testimony; expert reports and testimony
addressing petitioner’s theory of causation; and legal memoranda and oral argument addressing
petitioner’s entitlement to compensation. Ultimately, the decision regarding how to resolve
entitlement is within the province of the special master, but given the extent of the information
presently in the record, the special master may likely only need to issue a new decision on
entitlement.
In sum, the court GRANTS petitioner’s motion for review; SETS ASIDE the special
master’s conclusion that petitioner did not establish that Mr. Hodge contracted Lyme disease in
2003 and the findings of fact made in support of that conclusion; FINDS that Mr. Hodge
exhibited symptoms of OCD by September 28, 2004, and that the tick exposures and Lyme
disease predated Mr. Hodge’s OCD symptoms; and REMANDS the case, for a period not to
exceed ninety days, to the special master to reevaluate petitioner’s entitlement to compensation.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Senior Judge
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