                  In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                               No. 15-095V
                                            (to be published)

*************************                                                  Special Master Corcoran
                           *
GLORIA MASSEY CHINEA,      *
                           *
               Petitioner, *                                               Filed: March 15, 2019
                           *
          v.               *                                               Decision; Influenza (“flu”)
                           *                                               Vaccine; Guillain-Barré
SECRETARY OF HEALTH        *                                               syndrome (“GBS”); Onset
AND HUMAN SERVICES,        *
                           *
               Respondent. *
                           *
*************************

Lisa A. Roquemore, Law Office of Lisa Roquemore, Rancho Santa Margarita, CA, for Petitioner.

Christine M. Becer, U.S. Dep’t of Justice, Washington, DC, for Respondent.


                                 DECISION DENYING ENTITLEMENT1

        On October 9, 2015, Mrs. Gloria Chinea filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that she
experienced Guillain-Barré syndrome (“GBS”) due to receipt of the influenza (“flu”) vaccine on
October 31, 2012.

       An entitlement hearing was held on August 6-7, 2018. For the reasons stated in more detail
below, Petitioner has not demonstrated entitlement to compensation under the Vaccine Program.

1
  This Decision has been formally designated “to be published,” and will be posted on the Court of Federal Claims’s
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 Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine
Rule 18(b), each party has fourteen 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 Decision in its present form will be available. 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).
The medical records in this case support the conclusion that Petitioner’s GBS symptoms began in
late January 2013 – well outside the six to eight-week timeframe from vaccination that Program
decisions recognize as medically reasonable. Through her own testimony as well as that of several
credible fact witnesses, Petitioner has established that in the fall of 2012, she was more likely than
not experiencing fatigue and other symptoms that were negatively impacting her health and quality
of life. But Petitioner has not established (via expert testimony or otherwise) that those symptoms
had any relationship to her subsequently-diagnosed GBS, or that the October 2012 vaccination
initiated a slow, “smoldering” form of GBS, given the extent to which her late fall symptoms were
inconsistent with GBS’s typically acute presentation.

I.     Factual Background – Medical Record

         The evidentiary record in this case consists of Mrs. Chinea’s medical records, the testimony
and sworn statements of multiple fact witnesses and two experts, plus the medical or scientific
literature submitted by the parties in support of their respective positions. I have reviewed the
entire record as required by the Vaccine Act. Before discussing fact witness testimony, I will
recount what the medical record reveals in this case.

       Petitioner’s Pre-Vaccination Health

        Mrs. Chinea was born on July 7, 1956. Before the time period in dispute, she was a
generally healthy woman for her age with only minor health issues, such as high cholesterol (which
was successfully treated), some hypertension, asthma and allergies, type 2 diabetes, and
conductive hearing loss. Ex. 1 at 33. However, the record does establish that in the year prior to
the October 2012 vaccination, she experienced a number of symptoms congruent with those at
issue in this case. Thus, on May 31, 2011, Petitioner presented to her primary care physician (Dr.
Sergio Neira) with complaints of blurred vision, impaired hearing, urinary incontinence, and leg
pain, and continued to experience these symptoms into the late summer that year. Ex. 1 at 30, 33.
Her assessment included hypertension, menopausal syndrome, and included a screening for
tuberculosis. Id. at 31.

       On May 10, 2012, Petitioner returned to Dr. Neira complaining of depression, stress, and
premenstrual tension syndrome. Ex. 1 at 21. Her physical examination was normal, however, and
the overall assessment was consistent with her past diagnosed health problems (i.e., hypertension
and high cholesterol). Id. On July 25, 2012, Mrs. Chinea presented to Dr. Neira complaining of a
rash (with associated burning and extreme fatigue). Id. at 18. She was diagnosed with shingles and
placed on acyclovir and prednisone. Id. at 19-20. Petitioner was also treated for post-herpetic
neuralgia on August 9, 2012. Id. at 15.

                                                  2
       Vaccination and Immediate Aftermath

        On October 31, 2012, Mrs. Chinea went back to Dr. Neira for a routine appointment. She
reported some wheezing due to allergens. Ex. 1 at 11. In addition, her then-current problems were
listed as conductive hearing loss, fatigue, and post-herpetic neuralgia (consistent with her prior
diagnoses). Id. at 12. She received the flu vaccination (Fluvirin, lot #1205001) in her left deltoid
as part of her general health maintenance. Id. at 1, 43. There is no subsequent medical record
setting forth any purported reaction to this vaccination, and nothing from the month of November
that would corroborate the allegations of any adverse symptoms around this time.

         Nearly six weeks later, on December 10, 2012, Petitioner saw her gynecologist, Dr.
Adrienne Lara, for an annual exam. Ex. 4 at 3. The record from this visit indicates that Dr. Lara’s
review of symptoms was normal. Id. at 4. In particular, she did not record any complaints by
Petitioner of weakness, fatigue, or anything else that might appear a precursor of GBS as
classically understood (e.g., paresthesias, numbness of tingling in the limbs, difficulty walking,
etc.). See id. Records from this visit explicitly state that Petitioner “continues to be successful and
it is going to be a good year. There was nothing else on her mind.” Id. On December 11, 2012,
Petitioner had an endometrial biopsy. Id. at 2. Later that month, on December 21, 2012, she had a
follow-up to get the results of the biopsy. Id. at 1. No additional complaints were noted at that time
either. Id.

       GBS Presentation

        There is another, almost one-month records gap before Petitioner next saw a medical treater
– but this next set of records is what best establishes Petitioner’s GBS and how it presented. Thus,
on January 28, 2013, Petitioner began to experience “profound[] weakness,” plus other adverse
symptoms (headaches, dizziness, balance issues, congestion, and voice problems) sufficient to be
alarming to her and her husband, Mr. Rolando Chinea. Ex. 7 at 4; Ex. 1 at 40. At first, Petitioner
simply sought treatment from Dr. Neira. Ex. 1 at 39-40. The record reveals that Petitioner’s
husband telephoned Dr. Neira’s office on January 30, 2013, to report the above-noted symptoms
and obtain a Tamiflu prescription. Id. at 40. But by January 31, 2013, the Chineas were concerned
enough about Petitioner’s health to seek urgent care intervention, and Mrs. Chinea was taken to
the emergency room at Community Memorial Health System. Ex. 7 at 4.

       There, Petitioner was evaluated by a neurologist, Dr. Paul Vespa, at which time her chief
complaint was “generalized weakness.” Ex. 7 at 4. Petitioner specifically reported that she began
experiencing upper respiratory symptoms about eleven days prior (meaning no earlier than mid-
January). Id. But before onset, Petitioner reported being in generally good health, able to complete
her normal exercise classes and take hour-long walks around the neighborhood in the days prior.
                                                  3
Id. at 8, 10. It was also noted that Petitioner had a history of asthma/cat allergies, and that in the
two weeks prior, she had been exposed to a cat (which resulted in congestion/conjunctivitis/rhinitis
that “lasted for several days”). Id. at 6, 7-8. After this exposure, she experienced shortness of breath
about one week later, then profound weakness in the two to three days prior to admission. Id. She
stated that she had lost her voice, was unable to walk or hold her head up, and had impaired
sensation in the hands and feet. Id. Her physical examination was significant for slurred speech,
slow movements in all four limbs, absent deep tendon reflexes, and decreased muscle strength (3/5
bilateral in both upper and lower extremities). Id. at 5. She also had paresthesia of the hands and
feet. Id. Lab reports indicated negative testing for the influenza A and B virus. Id. at 4.

        Petitioner was diagnosed with acute respiratory failure with upper airway edema and
diffuse neuromuscular weakness. Ex. 7 at 7-8. Her medical records indicate that she was intubated
and placed on ventilator support thereafter. Id. Petitioner was evaluated by another neurologist,
Dr. Francisco Torres, on February 1, 2013. Id. at 10. In his consult, Dr. Torres indicated that
Petitioner was in her “usual state of health” until January 28, 2013, with congestion, imbalance,
and flu-like symptoms manifesting on the 29th (and thus immediately prior to her ER presentation).
Id. Upon exam, her deep tendon reflexes were absent. Id. at 11. Lower extremities were noted to
have normal distal strength. Id. Upper extremities were described as 2/3 in the deltoids, with 3+ to
4/5 in the biceps and triceps. Id. Dr. Torres opined that Petitioner had GBS given her history of
flu-like symptoms, although he also included myasthenia gravis and botulism in the differential
diagnosis. Id.

        Mrs. Chinea remained hospitalized for several days thereafter. She tested positive for the
GQ1B antibody (which as discussed below is associated with the form of neuropathy with which
Petitioner was subsequently diagnosed). Ex. 7 at 52-52, 71-72. Following this confirmation, she
was treated with a five-day course of IVIG. Id. at 1-2. She was extubated on February 15, 2013,
and was monitored thereafter for treatment success. Id. at 2. Her final hospital diagnosis was
determined to be GBS, Miller-Fisher variant. Id. On February 26, 2013, Petitioner was discharged
and transferred to St. John’s Regional Medical Center for acute inpatient rehabilitation, where she
remained for approximately one month. Ex. 7 at 2; see also Ex. 6 at 10. She was discharged on
March 23, 2013, having made “excellent progress.” Ex. 6 at 10. By this time, Petitioner was able
to ambulate with the use of a walker and climb steps, although she continued to have some
dysphagia and pain upon discharge. Id.

       Identification of Flu Vaccine as Possibly Causal of Petitioner’s GBS

        Throughout the spring and summer of 2013, Mrs. Chinea continued to receive treatment
for her GBS and the unresolved sequelae she was experiencing from it (which included ongoing
paresthesias, weakness, and pain). See, e.g., Ex. 1 at 7-10; Ex. 3 at 9, 11-14. Prior to this time, the
                                                   4
records do not include any notation in which a treater proposed that the flu vaccine Petitioner had
received the prior fall had any association with her GBS symptoms beginning in January 2013. 3
However, at a June 2013 visit with Dr. Neira, Petitioner stated “MD at hospital told her she had an
adverse reaction to [the] [i]nfluenza vaccine.” Ex. 1 at 7. Dr. Neira and Petitioner specifically
discussed at this time her seeking legal counsel concerning a reaction to the flu vaccine. Id. at 9.
At a follow-up visit on October 17, 2013, Dr. Neira’s notes indicated that Petitioner’s GBS “may
have been caused by [the] flu vaccine[,]” but included no additional comments concerning the
onset of symptoms. Id. at 73. He also seemingly recommended that Petitioner not receive the flu
vaccine in the future. Id. at 77 (“other orders: [n]o flu vaccine ever”).

        On June 24, 2013, Dr. Neira submitted a VAERS report on Petitioner’s behalf. Ex. 2 at 1-
3. Dr. Neira noted the vaccination date as October 31, 2012, and the adverse event date as January
31, 2013. Id. at 2. However, the report was modified on January 28, 2014, with additional
information emailed to VAERS by an employee from Dr. Neira’s office. Ex. 10 at 17. The new
submissions indicated that Petitioner had actually experienced associated fatigue prior to
Thanksgiving 2012 (i.e., “experienced different exhaustion than before”), as well as weakness,
blurred vision, voice hoarseness, and “difficulty lifting left arm.” Id. The VAERS report was
updated a second time on July 17, 2014. Ex. 9 at 1-5. It now included an attached list of residual
GBS symptoms that Dr. Neira reported were associated with Petitioner’s receipt of the flu vaccine,
along with a summary of the treatment and therapy she received. Id. at 3-4, 5. However, no
correction was made to the reported symptom onset date of January 31, 2013. See id. at 1-5.

       By September and December 2013, Petitioner’s treaters felt that she had mostly recovered
from her GBS. Ex. 3 at 15-17. She nevertheless continued to attend physical therapy throughout
2013 and 2014. Ex. 10 at 14.

II.      Fact Witness Testimony

         A.       Mrs. Gloria Chinea

        Petitioner was the first witness to testify at hearing. Tr. at 5-102. Her testimony largely
consisted of her own recollection of her overall health history, pre- and post-vaccination, with
some additional explanation of disputed issues relevant to certain medical records.




3
  The health history taken upon Petitioner’s presentation to the hospital on January 31, 2013, indicated that she “did
receive a flu shot this season.” Ex. 7 at 4. However, the intake physician did not opine as to any causal connection
between her symptoms and the vaccine. See id. Apart from this one reference, it does not appear that any other hospital
treater considered the vaccine to be causative of her onset of GBS. See generally Ex. 7.
                                                          5
        Mrs. Chinea began by describing her educational and employment background. She
received a bachelor’s degree in nutrition and dietetics, followed by a master’s in public health. Tr.
at 6. Following graduate school, she worked as a health education specialist at St. John’s Regional
Medical Center in Oxnard, California. Id. She retired from the hospital after twenty-one years of
service and worked briefly at a home mortgage firm thereafter. Id. at 6-7. In 2009, Petitioner
opened Alma Joy Villa, a residential care facility for the elderly, and serves as its Director of
Activities. Id. at 7, 17.

        Prior to her receipt of the flu vaccine, Petitioner testified that she was in “excellent” health.
Tr. at 16. She attended church each morning and typically arrived to work around 7:00 AM. Id. at
16-17. Petitioner stated that her days at Alma Joy Villa were busy, given that she was involved in
all aspects of patient care (including cognitive exercises, physical care, and attending meetings
with caretakers and physicians). Id. at 17. She also routinely participated in outdoor activities
(including walks with her dog and going to the gym) and was able to complete various household
tasks such as grocery shopping and cooking meals. Id. at 18. She felt like the “energizer bunny
rabbit.” Id. at 19. Petitioner specifically denied experiencing any significantly adverse health
problems or extreme fatigue prior to receiving her vaccination (despite the record evidence set
forth above recording some symptoms that echo those alleged to have been experienced in the fall
of 2012). Id. at 63-64.4

        Following receipt of the flu vaccine on October 31, 2012, Petitioner maintains that she
began to notice a “lack of energy” roughly “a week or two” following vaccine administration (or
between the first and second week of November 2012). Tr. at 19, 52, 80. In particular, she recalled
feeling fatigued and sleepy (i.e., taking naps) which was unusual for her. Id. at 19, 80. She also
reported “feel[ing] low” and having pain in her vaccinated arm. Id. at 20 (arm “feels warm”), 21,
81-83.5 She testified that the arm pain lasted until her January 2013 hospitalization and was
accompanied by a raised bump (or “mark” on the arm) and redness. Id. at 82-83. Apart from the
above, Petitioner denied experiencing any other problems at this time (for example, cold
symptoms). Id. at 21. In support of the above, Petitioner referenced phone records (Ex. 74) from
one of her patient’s relatives (Dr. Diane Moore, who also testified at hearing). Id. at 21-23.
According to Petitioner, such records reveal that she was a “no-show” to a meeting scheduled to

4
  On cross examination Respondent pointed to a record dated July 25, 2012, which indicated that Mrs. Chinea had
presented to a nurse practitioner at Dr. Neira’s office with possible shingles and had specifically reported “still” feeling
“extremely fatigued” at that time. Tr. at 85-84 (citing Ex. 1 at 18). Petitioner, however, maintained that this record
was an inaccurate description of how she was actually feeling that day. Id. at 86 (“I did not tell her that I had what you
read me, extremely fatigued”). Petitioner otherwise stated the fatigue she felt in July 2012 was distinguishable from
what she felt following her receipt of the vaccine. Id. at 85.
5
 At hearing, Petitioner recalled a meeting with her Bible study group when she asked for prayer to restore her formerly
high energy level. Tr. at 20.

                                                             6
take place with Dr. Moore on November 14, 2012, because she overslept. Id. at 23. Following the
missed meeting, Petitioner reported she continued to feel tired and experience hoarseness. Id. at
24. She could not, however, reference medical records corroborating these allegations.

        Mrs. Chinea next testified about the progression of her symptoms over the 2012
Thanksgiving holiday. Petitioner described her typical Thanksgiving as a big family event filled
with cooking and preparing meals for the homebound, as well as assisting with celebrations at
Alma Joy Villa. Tr. at 24-25. However, that year she “didn’t have much energy,” felt tired and
achy, and was unable to participate in the above-mentioned activities.6 Id. at 26, 100-02. She was
also purportedly experiencing at this time heightened sensitivity to touch, a sensation of an
“overgrown” tongue, and “taste of metal” in her mouth. Id. at 26-27, 100. And she began to have
trouble swallowing, now preferring a bland diet filled with liquids or soft foods. Id. at 27-28.7 In
addition, she started experiencing leg jerks at night, plus blurred vision when looking at a computer
screen, along with a lack of hand strength when attempting to open bottles or coffee containers,
and felt “intermittent” tingling in her hands and toes. Id. at 28-29, 100.

        Because she did not feel up to hosting her own Thanksgiving celebration, Petitioner
attended Thanksgiving 2012 at the home of a family friend, Dr. Arturo Sidransky. Tr. at 30. Other
friends were in attendance as well, including Ms. Enjoli Flores. Id. Petitioner did not have much
appetite and recalled that she was “quiet” and felt “tired” throughout the evening. Id. at 31.
Petitioner also stated that she was unable to participate in post-Thanksgiving “Black Friday”
shopping that year due to her fatigue/tiredness (an activity that she usually looked forward to). Id.
at 32-33.

        Petitioner provided some detailed testimony regarding her aforementioned visit to her
OB/GYN, Dr. Lara, in December 2012. Tr. at 33-34. In addition to the need for routine testing,
Petitioner testified that she was experiencing adverse gynecological symptoms (including vaginal
discharge and bleeding) which prompted the visit. Id. at 34. Contrary to the original medical
records from this visit, however (which make no mention of any non-gynecologic symptoms, and
even suggest that Petitioner was in her usual health overall), Petitioner testified that she also
discussed her feelings of tiredness and lack of energy8 with Dr. Lara (along with a concern for an


6
 Petitioner also stated her tiredness caused her to be less active (i.e. she could not complete her routine exercise classes
at the 24-Hour Fitness gym). Tr. at 81.
7
 At the same time, however (and somewhat contradictorily to the foregoing), she also began to eat spicy food which
was unusual for her. Tr. at 28 (“I noticed I was eating more Cholula [a hot sauce].”).
8
 On cross, Petitioner stated that she was acquainted with Dr. Lara through her professional activities prior to December
2012. Tr. at 70-72. Thus, in her view, Dr. Lara would have been well aware of her typical energy level.

                                                             7
iron deficiency, sleepiness, loss of appetite, swollen mouth, and issues with body temperature). Id.
at 34, 38, 96-97.

        To support her contentions that she did in fact inform Dr. Lara of the non-gynecologic
symptoms she was experiencing at that time, Petitioner maintained that she had prepared notes
about her medical health in anticipation of this visit, asserting that this was her common practice,
and offered these notes into evidence at hearing (although they were never previously identified
as existing prior to that moment). Ex. 82 and 83; Tr. at 34-35 (“[i]t is my tradition that I usually
take notes . . . things that I need to talk about.”), 37-38, 67-68, 78-79.9 Petitioner testified that she
tearfully expressed the above-mentioned problems to Dr. Lara who listened “attentive[ly]” and
recommended a follow-up appointment (along with “more testing”).10 Tr. at 39, 78-79. Petitioner
otherwise proposed that she may have downplayed how she then felt because she had always been
a “very positive person.” Id. at 40 (“even though I probably felt the way I felt, I knew that a new
year was coming and that things . . . w[ere] going to get better”).11

         Following her visit with Dr. Lara in December 2012, Petitioner testified that she scheduled
an appointment with Dr. Neira for February 2013 (to discuss her overall condition and symptoms).
Tr. at 45. She was unable to keep that appointment, however, due to her onset of GBS. Id. Upon
further questioning, Petitioner stated that she did not seek an earlier appointment with Dr. Neira
because she thought her symptoms of tiredness and voice hoarseness would resolve on their own.
Id. at 46 (“I felt that they were going to go away because I didn’t have a fever, didn’t have diarrhea,


9
  On cross, Petitioner attempted to account for the eve-of-trial discovery of this evidence, maintaining that she located
the personal health agenda from the Dr. Lara appointment on or about Thursday evening prior to hearing (or August
2, 2018). Tr. at 66. She purported to have been searching for the notes, but had been unable to locate them. Id. at 66-
67. Petitioner could not explain why she did not bring the agenda to Dr. Lara’s deposition, however, or why her
January 24, 2015, declaration did not reference their existence. Id. at 67.
10
  It is not clear if the additional testing or follow-up were intended to address Petitioner’s symptoms related to fatigue
or her gynecological symptoms. See Tr. at 39.
11
  Given reasonable questions about the discovery of this evidence, I cautioned Petitioner that her personal health
agenda/notes would need to be filed and properly authenticated, along with any evidence that would corroborate the
date of their creation. Tr. at 94-95, 99. I also asked Petitioner some questions about the manner in which this evidence
might have been maintained. In response, Petitioner testified that she typically produced her notes on a personal
computer, although she could not access the notes electronically (something that might establish, via a file time stamp,
when the document actually was created) because the computer had since crashed. Id. at 91, 94.

   Following the hearing, on September 11, 2018, Petitioner filed various pieces of evidence attempting to
authenticate her notes. Analysis of her hard drive completed by Mr. Chinea confirmed that no data could be retrieved
concerning the date the document was created. See Ex. 87 at 3. Petitioner also filed examples of similarly created
health agendas (some hand written and some typed), as well as a photo of the “pink binder” in which she located the
agenda pertaining to Dr. Lara’s visit. Tr. at 66; see Ex. 84; Ex. 85; Ex. 86 (example of Dr. Neira appointment agenda).
Petitioner and her husband otherwise filed additional declarations attesting to the reliability of the above-described
exhibits. See Ex. 88 and 89.
                                                            8
I didn’t have – I was not vomiting, I was not – I just felt really tired, and my voice was raspy. So
I thought it’s gonna be taken away”). On cross, however, Petitioner acknowledged that she could
have scheduled an appointment with Dr. Neira sooner if she had been experiencing a more
concerning problem. Id. at 68-69.

        Petitioner went on to testify about additional occurrences in December 2012-January 2013
that in her view corroborated her allegations of post-vaccination symptoms. In December 2012,
Petitioner attended a dinner with friends and family at Outback Steakhouse. Tr. at 46-47.12
Petitioner described choking on a small piece of meat. Id. at 47 (“I couldn’t get – dislodge the
piece of meat.”). Then, over the Christmas holiday, Petitioner described similar feelings of
sleepiness/tiredness, along with problems regulating her temperature. Id. at 48 (“My hands were
cold. My – my legs were cold. My feet were cold.”), 49-50. The end of the following month, just
prior to her hospitalization, Petitioner recalled attending a book signing event for Dr. Moore (who
had written a guide for seeking assisted living care for elderly relatives). Id. at 50-51. Mrs. Chinea
had been invited to speak at the event, but stated she had trouble completing her speech due to
voice irritation. Id. at 51 (“My voice was totally – it was gone, was very very raspy, very deep.”).

        Petitioner presented to the emergency room on January 31, 2013, with complaints similar
to those discussed above (including sleepiness, trouble swallowing, and temperature problems).
Tr. at 55, 86-88. She testified that she could not walk or stand at the time of arrival, and thus had
to be brought into the hospital by wheelchair. Id. at 55. She recalled experiencing sleepiness,
“shallow breaths[,]” low oxygen, as well as an inability to speak. Id. at 55 (“I lost my voice.”), 56.
As a result, Mr. Chinea was primarily responsible for communicating with her treaters. Id. at 58.
She was intubated thereafter and experienced additional symptoms (including paralysis). Id. at 59.

         As already mentioned in the review of the contemporaneous medical records, Petitioner’s
emergency room intake records set forth that Petitioner had been in her “normal state of health”
until roughly one week prior to her January 31, 2013, presentation. Tr. at 60. At hearing, however,
Petitioner maintained that such references in the record were inaccurate. Id. Rather, Petitioner
testified, she had been experiencing milder forms of the symptoms that led to her hospitalization
throughout the fall and early winter. Id. at 60-61, 63-64. In particular, she denied experiencing
allergies, brought on by exposure to a cat in the two weeks before her hospitalization. Id. at 61, 63.
She also maintained that her “throat” symptoms/voice hoarseness were unrelated. Id. at 62-63. At
times, however, Petitioner acknowledged that her earlier-in-time symptoms could have been
related to her pre-existing allergies/asthma. Id. at 83. Overall, apart from her own inability to
communicate, Petitioner could not firmly explain the discrepancies in her intake records. See id.

12
   Two of Petitioner’s other fact witnesses (Mr. Rolando Chinea and Dr. Diane Moore) also attended this dinner. Tr.
at 47.

                                                        9
at 61, 88. She assumed that whoever provided her medical history to her ER treaters must have
simply been describing “how [she] used to be” (presumably prior to her alleged onset of symptoms
in November 2012), rather than providing a truthful assessment of the start of the severe symptoms
in January. Id. at 88.

        B.       Mr. Rolando Chinea

         Petitioner’s second fact witness was her husband, Mr. Rolando Chinea. Tr. at 124-160. He
also filed two witness declarations. See Ex. 56 & 67.13 Mr. Chinea is an electrical engineer. Tr. at
124. He graduated from the University of Puerto Rico in 1979, and moved to the United States
that same year to take a job with the Department of Defense. Id. at 125. Mr. Chinea met Petitioner
in 1970, and they were married in 1976 (prior to their move). Id. at 125-26. In addition to his
primary employment, Mr. Chinea assists Petitioner with her duties at Alma Joy Villa. Id. at 156-
57. In particular, he often handles evening or overnight responsibilities at the care facility given
the workload and small staff. Id. at 157-58.

        Mr. Chinea described Petitioner as energetic, organized, and warm-hearted. Tr. at 127.
Prior to receipt of the flu vaccine in October 2012, Mr. Chinea testified that Petitioner’s “energy
level was very high.” Id. at 128 (“[s]he used to go walking, dancing, to the gym almost daily, and
she was always like the [energizer] bunny rabbit, you know, going – moving and helping people
and – all the time”). Petitioner’s typical day began around 5:00 AM (and included both a trip to
church and the gym as well as assisting with breakfast and household tasks). Id. at 128-29. She
would then go to work, where Mr. Chinea testified she was “more than active” and successfully
managed both hospital duties and staff management. Id. at 129.

        Following vaccine administration, however, Mr. Chinea began to notice a change in
Petitioner’s energy level starting in early November 2012. Tr. at 130, 143. She expressed feelings
of cold, slept for long hours, and attended gym classes less often. Id. at 144. She also mentioned a
“lack of sensation” in her hands, fingers, arms, and legs. Id. Petitioner’s already low energy level
worsened that Thanksgiving, and resulted in her not participating in the holiday as she had in the
past. Id. at 129-30, 132. She also began requesting assistance with various household tasks
(including opening jars or lifting items to and from the stove). Id. at 130, 131 (“[s]he didn’t have
the strength or the stamina to go [to the grocery store]”). These symptoms progressed through the
Christmas holiday. Id. at 132-33. Petitioner also reported experiencing vision problems. Id. at 145
(“I had to change the size of the font [on the computer] because she couldn’t read properly.”).


13
  At hearing, Mr. Chinea acknowledged that Petitioner reviewed and edited his two witness statements. Tr. at 142-
43. He maintained, however, that any corrections she would have made were merely grammatical in nature. Id. at 143.
He seemingly denied knowing if any such changes were made. Id.
                                                        10
        Mr. Chinea also testified about Petitioner’s December 10, 2012, appointment with Dr. Lara.
Tr. at 134. He maintained it was likely he had traveled with Petitioner to the appointment, but
added that he was not present for any conversation between Dr. Lara and Petitioner regarding her
purported symptoms at the time. Id. at 134-35, 136.14 Mr. Chinea did, however, confirm that
Petitioner likely would have taken medical notes along with her to discuss with Dr. Lara (as this
was her typical practice). Id. at 135. Regarding the health agenda produced by Petitioner at hearing,
Mr. Chinea acknowledged that Petitioner had only recently located it. Id. at 147-48. He also
confirmed that it was common for her to prepare written notes about her health status and
symptoms, and then later to transfer them to the home computer. Id. at 147.

        Upon Petitioner’s presentation to the emergency room on January 31, 2013, Mr. Chinea
was the primary historian during the visit (as Petitioner was having difficulty talking and
communicating to hospital personnel). Tr. at 137; see also Ex. 67 at 3. Mr. Chinea testified that he
informed hospital personnel that Petitioner had received the flu vaccine that year. Tr. at 138-39.
He also took copies of Petitioner’s medical records to the ER. Id. at 149. Mr. Chinea described
Petitioner as in “really bad shape.” Id. at 137. She was “unbalanced” and could not walk unassisted.
Id. Mr. Chinea also recalled some breathing troubles and voice hoarseness prior to Petitioner’s
presentation. Id. at 137-38.

        Mr. Chinea denied telling hospital personnel what the contemporaneous records indicate
he said: that Petitioner had been in her “usual state of health” in the days prior to presentation (or
before January 28th). Tr. at 138-39. He reported instead that her health had been in decline since
November of that year, although she previously always had been a healthy person (and thus
suggesting, as Mrs. Chinea did, that these record references inaccurately confused her pre-
vaccination health with her symptoms in the weeks before hospitalization). Id. at 139, 140. Thus,
Mr. Chinea disputed the accuracy of notations in the contemporaneous record that suggested that
Petitioner had been exercising as normal before the ER visit. Compare Tr. at 139 (“[s]he went to
the gym, did one hour samba and one hour walking in her neighborhood”) with 140 (“that
statement there is not accurate”). Rather, such descriptions applied to Petitioner’s pre-vaccination
circumstances, “not in January or in December of that year.” Id. at 140 (emphasis added).




14
   There was some confusion at hearing regarding whether in fact Mr. Chinea took Petitioner to the December 10 th
visit with Dr. Lara. On cross, Mr. Chinea acknowledged that it was possible that a friend had taken her to the
appointment, and that he had transported her to a follow-up appointment thereafter. Tr. at 153-55. He later maintained
that he had taken her to the December 10th appointment. Id. at 155-56. His witness statement, however, was somewhat
unclear. The statement suggests that an unspecified friend took Petitioner to an appointment with Dr. Lara “in early
December.” Ex. 56 at 7. That same statement noted that Mr. Chinea “had to drive her to other appointments at this
time.” Id. at 7 (emphasis added).

                                                         11
        In the same vein, Mr. Chinea sought to clarify some of his statements (contained in the
contemporaneous medical record) regarding Petitioner’s cat allergy, and a particular reaction she
may have experienced just before her hospitalization. Tr. at 140-41. Mr. Chinea recalled
Petitioner’s visit to the home of a potential Alma Joy Villa client a few days prior to the ER
presentation, at which time Petitioner experienced an adverse reaction to a cat inside the home. Id.
at 141. According to Mr. Chinea, Petitioner had something like an “asthma attack” accompanied
by additional symptoms (including an inability to talk, walk, or sit down). Id. Given the emergent
nature of Petitioner’s hospital presentation, Mr. Chinea informed treaters of the above-mentioned
event due to its proximity in time to her hospitalization. Id. at 150-51. Notably, Mr. Chinea
acknowledged that he did not also report Petitioner’s purported November/December symptoms
to treaters at that time because he had not “connect[ed] the dots” between the flu vaccine and her
downward progression at that point. Id. at 151.

        Following Petitioner’s ER visit, Mr. Chinea conducted his own research concerning
Petitioner’s GBS diagnosis and whether the disease might be vaccine-related. Tr. at 159-60; Ex.
56 at 5-6. At hearing, Mr. Chinea stated that he suspected the flu vaccine initially because
Petitioner’s testing for traditional triggers revealed no explanation. Tr. at 159. Despite the above,
Mr. Chinea confirmed that his research was prompted only by his desire to find a possible
explanation for his wife’s symptoms. Id. He otherwise asserted that the research he individually
performed occurred in the weeks following Petitioner’s hospital presentation, and he presented his
concerns to Petitioner’s treaters thereafter. Id.

         C.       Dr. Arturo Sidransky

       Petitioner’s next witness was Dr. Arturo Sidransky. He testified at hearing and offered
witness declarations in support of Petitioner’s assertions concerning her overall health progression
from November 2012 to her hospital presentation in January 2013. Tr. at 103-23; Ex. 57
(Declaration of Dr. Sidransky).15

        Dr. Sidransky is medical doctor with over forty years of practice experience. Tr. at 104. He
graduated from the University of New Mexico Medical School and thereafter completed an
internship in obstetrics/gynecology and a fellowship in emergency medicine. Id. Dr. Sidransky
first met Petitioner in 1979-80 while employed at St. John’s Regional Medical Center in Oxnard,
California, when he attended to Petitioner’s daughter during an emergency room visit. Id. at 104-
05. The families thereafter became social friends. Id. During that time period, Petitioner worked

15
  At hearing, Dr. Sidransky acknowledged that Petitioner requested he author the above-mentioned declaration prior
to her filing of this matter. Tr. at 114-15. He otherwise stated, however, that his declaration was solely his work (i.e.,
he did not use notes or explanations provided by Petitioner to aid him in writing drafts or the finalized version). Id. at
115-16.
                                                           12
in the education department at St. John’s and Dr. Sidransky would participate in health programs
sponsored by Petitioner and other staff members. Id. at 105-06. Dr. Sidransky’s mother later
became a resident of Alma Joy Villa. Id. at 106. Dr. Sidransky testified that he sees Petitioner on
a weekly basis (or more often). Id. at 107.

        Prior to her hospitalization in January 2013, Petitioner was “vivacious” or the “life of the
party.” Tr. at 109-10. It was for these reasons that Dr. Sidransky entrusted his mother’s care to
Petitioner and her staff. Id. But (and in contrast to how she had typically acted at prior
Thanksgivings), Petitioner was in his view noticeably different in November 2012. Id. at 107-08,
111. Dr. Sidransky specifically recalled Petitioner stating she was “hurting” and had low energy
and arm pain. Id. at 111; Ex. 57 at 4 (declaration regarding arm pain). Her voice was also “raspy
and muffled.” Tr. at 111. On cross, Dr. Sidransky acknowledged that he did not really delve into
the nature of Petitioner’s concerns at the time (i.e., he did not make recommendations for treatment
or discuss the symptoms with her). Id. at 116. He also noted that at this time Petitioner appeared
to have a normal appetite and gait. Id.

        Dr. Sidransky next discussed two social outings during the month of December 2012,
which in his view further evidenced Petitioner’s adverse symptoms. He recalled a holiday party at
a Greek restaurant where families gathered for dancing. Tr. at 111-13. Petitioner, however, refused
an invitation to the event due to low energy. Id. at 112. Dr. Sidransky also recalled his wife’s
birthday party in mid-December 2012. Id. at 112-13. Petitioner attended this event, but would not
participate in activities due to an inability to concentrate and persistent low energy. Id. at 112 (“we
played cards – but [Petitioner] didn’t feel that she had the energy or would be able to concentrate
to play cards, so she refused to play with us”).

        Dr. Sidransky also discussed Petitioner’s January 2013 hospital presentation and her
symptomatology course leading up to the GBS diagnosis. At hearing, Dr. Sidransky testified that
he examined Petitioner some time in the days prior to her hospital presentation (though, he could
not identify the exact date). Tr. at 118. Petitioner’s husband had called him and asked that he visit
Petitioner at home due to her various adverse symptoms (including tiredness, watery eyes, a
muffled voice, a flushed face, and an inability to sit up or get out of bed). Id. at 119. Dr. Sidransky
recalled that Petitioner did not complain of pain, and her physical exam was otherwise normal
apart from the above-noted complaints. Id. He did not test her reflexes at that time. Id. Dr.
Sidransky recommended that Petitioner’s husband take her to the emergency room if her condition
worsened. Id. He otherwise could not recall when Petitioner began to experience the symptoms
noted above.

       Dr. Sidransky subsequently went to see Petitioner on January 31, 2013 (the day she
presented to the hospital), and discussed her condition with hospital treaters. Tr. at 113. Dr.
                                                  13
Sidransky recalled that Petitioner was intubated upon presentation, and had minimal movement in
her hands and feet. Id. (“she couldn’t move a toe . . . [s]he couldn’t move a finger”). He also spoke
with Petitioner’s intake neurologist at the time, who informed him that Petitioner likely had GBS
secondary to the flu vaccination she received in October 2012. Id. at 114, 122; see also Ex. 57 at
5. Later, however, Dr. Sidransky acknowledged he was unsure how he found out about Petitioner’s
prior receipt of the flu vaccine (i.e., Petitioner or her husband may have told him at some point).
Tr. at 120, 122-23. Dr. Sidransky’s declaration (filed as Ex. 57) stated that he actually informed
Petitioner’s hospital treaters that she received the shot in October of the previous year. Ex. 57 at 5
(“I related to them about her having the vaccine.”). He otherwise stated that he was not involved
in Petitioner’s care during or after her GBS diagnosis. Tr. at 122.

         D.       Ms. Enjoli Flores

       Petitioner’s next fact witness was Ms. Enjoli Flores. She testified at hearing and offered
witness declarations in support of Petitioner’s assertions regarding the onset of her symptoms. Tr.
at 161-80; Ex. 66.16

        Ms. Flores moved to the United States in 2006 from Puerto Rico. Tr. at 161. She met
Petitioner in July 2012 (roughly three months prior to her receipt of the flu vaccine) at a fitness
club. Id. at 162. Ms. Flores recalled that she and Petitioner shared many common interests (such
as attending dancing classes and religious services, and having lunch or dinner together). Id. at
162-63. Ms. Flores testified that from July to October 2012, she routinely interacted with Petitioner
three to four times per week. Id. at 164. She described Petitioner as full of energy. Id. at 163, 165-
66. In her view, Petitioner was always happy and active in managing her many responsibilities
(including the family, gym, her job, and church). Id. at 165-66.

         Consistent with the fact testimony discussed earlier, Ms. Flores recalled that Mrs. Chinea
began to change around mid-November 2012. Tr. at 167-68. Ms. Flores spoke with Petitioner on
the phone in early November 2012 to discuss holiday preparations, and she did not recall
complaints of low energy around that time. Id. at 77. Thereafter, however, Petitioner began to
exhibit exhaustion just prior to the Thanksgiving holiday. Id. at 168, 170. Ms. Flores recalled a
specific instance at a fitness class where Petitioner complained of left arm pain and exited the class
early. Id. at 169. Ms. Flores also discussed a time around November 20, 2012, when she kept
Petitioner’s granddaughter while she attended a doctor’s appointment. Id. at 170, 177. Ms. Flores
testified that Petitioner was experiencing voice hoarseness around the time of this appointment. Id.

16
  On cross, Ms. Flores testified that she sent drafts of her declaration to Petitioner for her review. Tr. at 174-75. Ms.
Flores recalled that Petitioner offered suggestions/edits regarding her recollection of Petitioner’s health in December
2012 (specifically in the context of Petitioner’s refusal to attend Ms. Flores’s birthday party). Id. at 174. She did not
remember if Petitioner offered suggestions regarding any other portion of her declaration. Id. at 175.
                                                           14
at 170. On cross, however, Ms. Flores could not recall if Petitioner complained of any other
symptoms or what type of doctor she saw. Id. at 177. She remembered only that Petitioner wasn’t
feeling well and that the symptoms had not resolved. Id. at 178.

        For Thanksgiving that year, Petitioner had planned to host a meal at her home (and cook
for a local homeless shelter), but the plans fell through due to her health. Tr. at 168. Ms. Flores
recalled that she attended a Thanksgiving meal at the home of a different friend instead. Id. at 170-
71. During the meal, Ms. Flores described Petitioner as quiet and tired. Id. at 171 (“she wasn’t
talking or being part as she was used to being, so quiet”). On cross, she also stated that Petitioner
had trouble walking (i.e., she was walking “slowly”). Id. at 175. Ms. Flores did not recall, however,
that Petitioner needed assistance serving her plate. Id.

        The symptoms described above continued into December 2012. Tr. at 171-72. Ms. Flores
recalled that Petitioner refused an invitation to her birthday party in mid-December due to sickness
symptoms (including congestion and breathing troubles). Id. She also recalled a time in early
January 2013, when Petitioner visited her home. Id. at 172. Ms. Flores was pregnant, and Petitioner
was helping her prepare for the baby’s arrival. Id. At the visit, Ms. Flores recalled Petitioner
looking tired and weak. Id. Petitioner also refused an offer to stay for lunch because she wanted to
go home and rest. Id. On cross, Ms. Flores noted that she was not concerned about the January
2013 symptoms because Petitioner told her she was not contagious. Id. at 176. She could not,
however, offer details regarding any additional wellness appointments or other explanation for
why Petitioner would know her symptoms were not concerning. Id.

         E.       Dr. Diane Moore

       Petitioner’s final fact witness was Dr. Diane Moore. She testified at hearing and offered
witness declarations detailing Petitioner’s adverse symptoms in the months leading up to her GBS
diagnosis. Tr. at 180-207; Ex 55.17

        Dr. Moore is an English professor at Ventura Community College in Ventura, California.
Tr. at 181. She became acquainted with Petitioner while searching for a residential care facility for
her elderly mother. Id. at 182. Dr. Moore stated that she chose Petitioner’s facility for her mother
due in part to Petitioner’s extensive background in senior living and her overall enthusiasm for the
work. Id. Dr. Moore’s mother has been a resident at Alma Joy Villa since May 2010. Id. Because
of Petitioner’s extensive involvement in her mother’s daily care, Dr. Moore communicated with

17
   Dr. Moore testified that she wrote multiple drafts of her statement before the present matter was filed. Tr. at 200-
01. She denied, however, that her drafts were shared with Petitioner (or others), and maintained that she had no input
from Petitioner or her family and friends. Id.

                                                          15
Petitioner (either telephonically or in-person) almost daily between May 2010 and October 2012.
Id. at 183.18

        Dr. Moore described Petitioner as “extremely energetic,” organized and involved in her
community. Tr. at 186 (“[she] was a dynamo”), 187. Petitioner was dedicated to her work at Alma
Joy Villa and would engage personally in the care of each resident. Id. at 187. She also encouraged
family members to participate in residential activities. Id. By early November 2012, however,
Petitioner was not often at the facility when Dr. Moore visited, and voiced concerns regarding her
health (including voice hoarseness, tiredness, and achiness) during their phone conversations. Id.
at 188, 203. Dr. Moore also recalled a time in mid-November of that year when Petitioner failed
to show for a scheduled meeting regarding her mother’s care. Id. at 190. According to Dr. Moore,
during a phone conversation thereafter, Petitioner explained that she was not feeling well and
missed the meeting because she had fallen asleep. Id. at 191. Though Dr. Moore did not see
Petitioner personally at this time, she recalled that Petitioner was still experiencing voice
hoarseness and weakness. Id. At some point during their discussions in November 2012, Dr. Moore
also testified that Petitioner complained of persistent swelling in her arm following a flu
vaccination. Id. at 188.

        Dr. Moore testified that Petitioner’s adverse symptoms continued into the Thanksgiving
holiday. Tr. at 192. In prior years, Dr. Moore recalled, Thanksgiving at Alma Joy Villa was a
“fiesta” with beautiful decorations and a complete Thanksgiving dinner. Id. at 187-88. Petitioner
was “the life of the party” and created a celebratory environment for both residents and their
families. Id. at 188. Thanksgiving 2012, however, was “dramatically different.” Id. at 192.
Petitioner ordered a precooked holiday dinner that year, and the facility was not decorated. Id. at
192-93. Dr. Moore described Petitioner as “exhausted” and “quiet.” Id. at 193. Her eyes were
“dull” and “lackluster.” Id. When asked about the above-mentioned behavior, Petitioner stated that
she did not feel well. Id.

        Thereafter, in December 2012, Dr. Moore expressed concerns regarding Petitioner’s health
and its effect on her management of Alma Joy Villa (especially in the context of patient/caregiver
communication). Tr. at 194. For example, Dr. Moore noticed that Petitioner was not at the facility
as much when she visited her mother. Id. at 193-94. Dr. Moore scheduled a meeting with Petitioner
to address these concerns. Id. at 194-95. During the meeting, Petitioner apologized and explained
that she “wasn’t up to being there like she had before.” Id. at 195. Petitioner agreed to communicate
more regularly by phone with caregivers and staff. Id.


18
   To prepare for hearing, Dr. Moore relied in part on a detailed diary of calendars she kept regarding her mother’s
care. These diaries included specific dates that she met with Petitioner and/or visited the Alma Joy Villa facility. Tr.
at 184-86.
                                                          16
        Petitioner’s symptoms continued through the 2012 Christmas season. Tr. at 195. Like the
Alma Joy Villa Thanksgiving celebration that year, the Christmas party was less festive than in
prior years. Id. By this time, Petitioner had become more “lethargic” and “seemed weak.” Id.
Following the Christmas party, Dr. Moore recalled a social outing with the Chineas in late
December 2012. Id. at 196. Dr. Moore and her mother treated the Chineas to dinner at Outback
Steakhouse to thank them for their hard work that year. Id. They also planned to attend a musical
theater performance at the local college after dinner. Id. During the dinner, Dr. Moore recalled
Petitioner was still experiencing voice hoarseness (and did not seem to be enjoying herself). Id. at
196, 206. She also choked on her food. Id. at 196, 197 (“as we were eating, [Petitioner] started
gasping for breath and choking . . . . [but] eventually breathed”).

         Moving to early January 2013, Dr. Moore recalled an instance where Petitioner canceled a
scheduled meeting. Tr. at 197. Dr. Moore had planned to discuss her mother’s medication, but
Petitioner called to say she wasn’t feeling well. Id. (“she wasn’t up to coming to the facility, and .
. . [h]er voice was much more hoarse and weak”). The two spoke by phone instead. Id. Dr. Moore
next recalled Petitioner’s demeanor at her mother’s birthday party at Alma Joy Villa in mid-
January 2013. Id. at 197-98. According to Dr. Moore, Petitioner was not involved in the party
planning (which was unusual) and arrived over one hour late because she had fallen asleep. Id. at
198. Dr. Moore also described a book signing event she and Petitioner attended together. Id. at
198-99. Dr. Moore had authored a book on the topic of senior assisted living, and she invited
Petitioner to speak at the signing event. Id. at 198. During the event, Dr. Moore recalled that
Petitioner could not complete her planned speech due to voice hoarseness. Id. at 199. She also
lacked her usual “sparkle.” Id.

       F.      Additional Declarations

        Besides the hearing testimony offered by the above-noted fact witnesses, Petitioner filed
five declarations from other family members and professional/social acquaintances in attempts to
bolster her claim that she was experiencing GBS-related symptoms beginning in November 2012.
See Ex. 61 (Declaration of Tom Hovarth) (“Hovarth Dec.”); Ex. 62 (Declaration of Linda Neilson)
(“Neilson Dec.”); Ex. 63 (Declaration of Carmen Garay) (“Garay Dec.”); Ex. 64 (Declaration of
Doris Calderon) (“Calderon Dec.”); Ex. 65 (Declaration of Astrid Carrillo) (“Carrillo Dec.”).

        The statements provided by the above-named individuals are consistent with the fact
witness testimony offered at hearing. In short, Petitioner was noted to have decreased energy
during the early weeks of November 2012 (which continued thereafter through December of that
year). Hovarth Dec. at 4; Neilson Dec. at 4; Garay Dec. at 4; Calderon Dec. at 4; Carrillo Dec. at
5. Multiple statements also referenced additional adverse symptoms Petitioner experienced
throughout those months, including: voice troubles, arm pain, fatigue, low stamina, shortness of
                                                 17
breath, exhaustion, and loss of appetite. Hovarth Dec. at 4; Neilson Dec. at 4; Garay Dec. at 4;
Calderon Dec. at 4; Carrillo Dec. at 6-7. Many expressed confusion as to what caused Petitioner’s
symptoms (as she had reported to them that she had not experienced any new onset health
complications or altered her routine in any way). Hovarth Dec. at 4; Neilson Dec. at 4; Garay Dec.
at 5.

        One statement in particular (from Tom Hovarth) noted that Petitioner had expressed some
concern that her flu vaccination might have precipitated her adverse symptoms. Hovarth Dec. at
4. The statement also indicated that Mr. Hovarth was “against flu shots, pneumonia, etc., that
government agencies perpetrate on us on a yearly basis.” Id. at 4. Mr. Hovarth’s statement did not
indicate what prompted Petitioner to suspect the vaccine, however, or when these discussions
occurred.19 Mr. Hovarth did state that Petitioner was also against receiving the flu vaccine, but did
so because it was required by the state of California given her occupation as a health facility
administrator. Hovarth Dec. at 4.


III.    Expert Testimony

        A.       Petitioner’s Expert – Dr. Lawrence Steinman

        Dr. Steinman prepared two written reports for this case and testified at hearing. Tr. at 213-
300, 355-62; Expert Report, dated Aug. 19, 2015 (ECF No. 31-1) (“First Steinman Rep”); Expert
Report, dated Feb. 15, 2017 (ECF No. 64-1) (“Steinman Supp. Rep.”). He offered the opinion that
the flu vaccine Petitioner received in late October 2012 was the cause of her GBS, and that the
symptoms she experienced in November and December of 2012 were associated with her illness,
even though her symptoms did not become acute until late January 2013 (almost three months
after vaccine administration). Tr. at 218.

       Dr. Steinman obtained his medical degree from Harvard Medical School, where he
 completed a fellowship in chemical neurobiology. Tr. at 214; see also CV, filed as Ex. 76 (ECF
 No. 74-1) (“Steinman CV”) at 1. After medical school, Dr. Steinman went on to complete both a
 pediatrics and neurology residency at Stanford University. Tr. at 214; Steinman CV at 1. He then
 joined the faculty at Stanford in 1980, where he presently serves as the George A. Zimmerman
 Professor of Neurological Sciences, Neurology, Genetics and Pediatrics. Tr. at 216; Steinman
 CV at 1. During his tenure, Dr. Steinman estimated that he has treated multiple patients with
 various diseases, including MS, GBS, and/or ADEM. Tr. at 215. Dr. Steinman has also published


19
   The declaration indicated that Mr. Hovarth noticed a change in Petitioner’s disposition “[i]n the beginning of
November 2012, around the week of the 12 th.” Hovarth Dec. at 4. Presumably his conversation with her happened
around this time, although the declaration does not give a specific date. See id.
                                                       18
 extensively in peer-reviewed journals on topics including neuroimmunology and GBS. Steinman
 CV at 5-46. He is an exceedingly qualified expert on the subjects at issue in this case, and has
 testified numerous times in the Vaccine Program.

          To begin, Dr. Steinman reviewed Petitioner’s symptoms and the progression of her
condition compared to the most common features of GBS. Tr. at 218-19. The relevant literature
cited by Dr. Steinman describes GBS as an autoimmune disease in which the immune system
essentially attacks components of the peripheral nerves, leading to acute (or rapidly progressive)
flaccid symmetrical weakness of the limbs (including paresthesia and sometimes pain). See, e.g.,
J. Menze, et al., Textbook of Peripheral Neuropathy 167 (1st ed. 2012), filed as Ex. 80 (ECF No.
74-5) (“Menze”) A typical course can also include generalized weakness, sensory disturbances
(i.e., tingling), pain, unsteady gait, and loss of bowel function. Id. The disease is diagnosed using
an array of diagnostic testing (including a physical exam, CSF analysis, nerve conduction studies,
and MRI imaging). Id. at 168. The precise trigger of the disease is unknown, but it is thought to be
often precipitated by a respiratory or gastrointestinal infection. Id. at 167.

        GBS has different variants. Dr. Steinman categorized Petitioner’s GBS as the Miller-Fisher
variant (consistent with the medical record evidence filed in the case). Tr. at 218; First Steinman
Rep. at 1.20 A typical course associated with this variant can include eye movement abnormalities
and ataxia (due to the involvement of the brainstem’s peripheral nerves), along with the other more
traditional manifestations of GBS identified above. Tr. at 218, 239. Notably, the Miller-Fisher
variant is also associated with a particular antiganglioside antibody: the GQ1B antibody. Id. at
219-20. Dr. Steinman relied heavily on Petitioner’s medical record in confirming the above-noted
GBS diagnosis. As those records revealed, Petitioner presented to the emergency room in late
January 2013 with generalized weakness, muscle soreness, shortness of breath, and absent deep
tendon reflexes (along with an associated cough/congestion and voice hoarseness). First Steinman
Rep. at 4-5; Ex. 7 at 1-2. A lumbar puncture test conducted on February 1, 2013, supported the
GBS diagnosis. First Steinman Rep. at 5; Ex. 7 at 1. Petitioner also tested positive for the GQ1B
antibody. Tr. at 219-20.

       Dr. Steinman next discussed Petitioner’s health history prior to her hospital presentation
on January 31, 2013, and its purported relationship to her eventual diagnosis. In his view, Petitioner
exhibited multiple GBS-related symptoms in the months prior to her hospitalization, beginning as


20
  In so opining, Dr. Steinman attempted to refute some suggestion by Dr. Donofrio (Respondent’s opining expert)
that Petitioner’s condition was best characterized as brainstem encephalitis. Tr. at 266-67, 297. He agreed that the
medical record revealed some evidence that Petitioner had experienced “neuro-inflammation” or “inflammation in the
brainstem,” but maintained the record best supported a diagnosis of GBS. Id. at 270. In any event, Dr. Donofrio
accepted GBS to be the diagnosis best supported by the medical record at hearing. Id. at 307, 329.

                                                        19
early as Thanksgiving 2012 (including double vision, overwhelming fatigue, taste disturbance,21
voice hoarseness, feelings of tingling/cold, and swallowing difficulties). Tr. at 234-40. These
symptoms, he asserted, were likely due to inflammation in the various nerves in and around the
brainstem. Id. at 296.

        In Dr. Steinman’s opinion, Petitioner’s “overwhelming fatigue” was likely due to
inflammation occurring congruently with the underlying nerve damage initiated by the
autoimmune process that ultimately resulted in a GBS diagnosis. Tr. at 236 (“if your nerves aren’t
functioning well, doing the activities of daily living just takes so much more energy”). Voice
hoarseness (as described by Petitioner and her fact witnesses), in his view, could also be caused
by the “impact of inflammation” on nerves controlling the larynx and vocal cords. Id. at 240.
Similarly, tingling could be a consequence of inflammation in the peripheral nerve “between its
root and the distal portion.” Id. Dr. Steinman opined that Petitioner’s swallowing problems were
likely due to inflammation in the cranial nerve (although he allowed for the possibility that the
fatigue or hoarseness she was experiencing could have played a role in the swallowing issues). Id.
at 241. Petitioner’s feelings of cold/chilliness, by contrast, were in Dr. Steinman’s experience
atypical of the GBS patients he has treated over the course of his career. Id. at 240-41.
Nevertheless, he allowed for the possibility that cool feelings could be a result of underlying
inflammation as well. Id. at 240. Dr. Steinman did not find it concerning that Petitioner had no
associated fever around this time. Id. at 296.

       To support linking the fall 2012 symptoms to Petitioner’s later and more obvious GBS
onset, Dr. Steinman cited various scientific articles detailing the common symptoms associated
with a GBS course. See, e.g., A. Langmuir, et al., An Epidemiologic and Clinical Evaluation of
Guillain-Barre Syndrome Reported in Association with the Administration of Swine Flu Influenza
Vaccines, 119 Am. J. Epidemiology 841, 847-48 (1984), filed as Ex. 45 (ECF No. 32-8)
(“Langmuir”) (noting typical presenting clinical criteria for GBS can include progressive motor
weakness, paralysis of the extremities plus trunk and/or cranial muscle involvement, bilateral
neurologic signs, lower motor neuron signs, areflexia, and autonomic dysfunction); L.
Schonberger, et al., Guillain-Barré Syndrome Following Vaccination in the National Influenza
Immunization Program, United States, 1976-1977, 110 Am. J. Epidemiology 105, 117 (1979),
filed as Ex. 44 (ECF No. 32-7) (“Schonberger”) (respiratory impairment, trunk/cranial
involvement, and sensory symptoms could also be associated with a GBS diagnosis). The above-
mentioned articles did not, however, offer the same level of specificity as Dr. Steinman’s opinion.




21
 Dr. Steinman did not reference any literature supporting his contention that taste disturbance was associated with
GBS. Tr. at 236-37. He maintained, however, that the relevant scientific literature supports such a conclusion. Id.

                                                        20
        Along the same lines, Dr. Steinman challenged Dr. Donofrio’s assertion that many of the
above-mentioned symptoms (specifically, voice hoarseness, difficulty swallowing, double vision,
or light sensitivity) were not common presenting indicia of GBS. Tr. at 277-78.22 Rather, he
asserted (albeit in a conclusory manner) that his own “experience” as a practicing neurologist
suggested that Petitioner’s persistence of symptoms was attributable to inflamed cranial nerves
associated with her GBS course. Id. On cross, however, Dr. Steinman could not say what criteria
he drew upon to characterize Petitioner’s overall constellation of symptoms as falling within GBS.
Id. at 285. In addition, when confronted with certain GBS diagnostic criteria not evidenced in
Petitioner’s history prior to her January 2013 hospital presentation (extremity paralysis, for
example), Dr. Steinman seemingly categorized Petitioner’s case as an “exception” to the typical
presentation, but offered no further explanation for the absence of certain normally-presenting
criteria discussed in Schonberger/Langmuir (i.e., paresthesia/paralysis of the extremities, plus
involvement of trunk/cranial muscle). Id. at 289-90.

        Dr. Steinman next proposed a mechanism by which the flu vaccine could have caused Mrs.
 Chinea’s GBS: the biologic process of molecular mimicry. Tr. at 230; First Steinman Rep. at 8-
 14. His testimony on this point revolved around a concept that has been largely accepted in the
 medical community (and often in the Vaccine Program as well): that antibodies produced to fight
 off a foreign infectious antigen (or generated in response to a vaccine) can mistakenly attack, or
 cross-react with, myelin basic protein (“MBP”), a primary protein component of human nerves.
 As a result, an autoimmune process begins, encouraging the production of antibodies that
 erroneously attack self-cells and structures, and thereby causing damage to the nerve’s myelin
 sheath. Tr. at 219, 221-22; see also L. Steinman, Autoimmune Disease, Scientific American 107
 (1993), filed as Ex. 34 (ECF No. 31-4). Dr. Steinman’s expert report provided a highly detailed
 walkthrough of possible mimics between protein sequence components contained in the flu
 vaccine and MBP. First Steinman Rep. at 8-14.

        As an example of the molecular mimicry concept, Dr. Steinman briefly discussed the
 relationship between a particular bacterial infection and onset of GBS. Tr. at 224-26. All forms
 of GBS, Dr. Steinman testified, are autoimmune diseases occurring after the body mounts an
 immune response to a foreign agent that accidently targets the body's own nerve tissue. Id. at 222.
 One of the most well-known examples of molecular mimicry resulting in such an autoimmune
 process involves a structure shared between a bacterium called Campylobacter jejuni and
 gangliosides - sugar structures found on the surface of myelin. Id. at 224, 226. Dr. Steinman
 opined that it is medically accepted (while not fully understood) that certain vaccines can also

22
  For example, Dr. Donofrio suggested Petitioner’s swallowing problems could be evidence of GERD. Dr. Steinman
did not find this assertion credible, given that Petitioner’s record evidenced a GERD diagnosis no earlier than April
2015 (over two and one-half years post-vaccination). Tr. at 272. He otherwise attempted to recast the assertion by
claiming that GBS is not associated with GERD. Id.
                                                         21
 cause GBS, initiating an autoimmune process the same way microbe (like the Campylobacter
 bacterium) might. Id. at 224. The components of the vaccine actually share molecular homologies
 with myelin structures present in the human body, and thus could produce the same reaction as a
 wild virus alone. Id.

        Dr. Steinman theorized that Petitioner’s GBS was likely initiated by the hemagglutinin
component23 of the 2012 Fluvirin form of the flu vaccine. Tr. at 220, 223; First Steinman Rep. at
11-12. He maintained that this component is known to trigger/induce antiganglioside antibodies,
specifically the anti-GQ1B associated with the Miller-Fischer variant of GBS, via a cross-
reactivity response. Tr. at 220, 223, 225; First Steinman Rep. at 12; see I. Nachamkin, et al., Anti-
Ganglioside Antibody Induction by Swine (A/NJ/1976/H1N1) and Other Influenza Vaccines:
Insights into Vaccine-Associated Guillain-Barre Syndrome, 198 J. Infect. Disease 226 (2008), filed
as Ex. 39 (ECF No. 32-2) (“Nachamkin”). In Nachamkin, researchers determined that the
hemagglutinin component of the H1N1 vaccine had induced the production of anti-GQ1B
antibodies in mice, further supporting their overall conclusion that the H1N1 vaccine can induce
GBS in this manner. Nachamkin at 226-27.

       Given that Petitioner tested positive for the anti-GQ1B antibody and had received a flu
vaccine containing hemagglutinin protein, Dr. Steinman found it reasonable to conclude that the
H1N1 vaccine she received triggered her onset of related fatigue symptoms (and “somnolence”
associated with an increase in anti-GQ1B). Tr. at 219-20; First Steinman Rep. at 13-14; see Y.
Fukami, et al., Anti-GQ1B Antibody Syndrome: Antiganglioside Complex Reactivity Determines
Clinical Spectrum, 23 Eur. J. Neuro. 320 (2016), filed as Ex. 41 (ECF No. 32-4) (confirming that
elevated levels of anti-GQ1B antibodies can result in ataxia, neck/arm/leg weakness, and
hypersomnolence). According to Dr. Steinman, antiganglioside antibodies can mount in a
timeframe of days (typically seven to ten), and can thereafter exist in the body for months
following production. Tr. at 356.

        Apart from the above, Dr. Steinman otherwise asserted that various treater statements
contained in Petitioner’s records confirmed his suspicion that her receipt of the flu vaccine had
precipitated GBS. Tr. at 227-28, 233. Dr. Neira (Petitioner’s primary care provider), for example,
speculated that Petitioner’s GBS was vaccine-induced. Id. at 227 (citing Ex. 1 at 7, 73, 77). Dr.
Steinman acknowledged that treater statements are not direct proof that a flu vaccine can cause
GBS, but he nonetheless felt such statements “carrie[d] a lot of weight” in formulating an opinion
by the Program’s preponderant standard. Id. at 228. He also cited to the flu vaccine package insert
as supportive of an association between the vaccine and GBS. Id. at 227.

23
  At hearing, Dr. Steinman categorized this component as H1N1 California 2009. Tr. at 220. He defined
hemagglutinin is the “outer coat” of the influenza virus. Id. at 228.

                                                 22
        Dr. Steinman next proposed a medically reasonable timeframe for a flu vaccine-induced
GBS injury. In his view, the relevant scientific literature supported an onset as reasonably
occurring within a period of a few weeks to up to three months post-vaccination. Tr. at 295 (“four
months is too long . . . [but] three months I’d say is ok”).24 In support, he cited to Schonberger and
Langmuir. Id. at 244-45; see Schonberger at 105 (five- to ten-week onset is medically appropriate);
Langmuir at 841 (elaborating on Schonberger and determining that a six- to eight-week onset is
more typical). In his view, however, the above timeframes are not absolute, but rather provide only
a “useful yardstick” in estimating the typical progression of a vaccine-induced injury. Tr. at 246-
47, 257. Since researchers in Schonberger/Langmuir studied the 1976 swine flu vaccine
specifically, Dr. Steinman felt it would be inappropriate to discount a longer onset for the version
of the vaccine administered today. Id. at 247, 257.

        Besides such admittedly older literature, Dr. Steinman also referenced a more recent article
that he had co-authored. Tr. at 221-22; see S. Ahmed, et al., Antibodies to Influenza Nucleoprotein
Cross-React with Human Hypocretin Receptor 2, 7 Sci. Transl. Med. 1 (2015), filed as Ex. 33
(ECF No. 31-3) (“Ahmed”). Ahmed researchers conducted a study which established that the
Pandemrix version of the flu vaccine (administered solely in Europe) contained high amounts of a
nucleoprotein component associated with narcolepsy, causing that condition by interfering with
certain hypocretin receptors in the brain. Tr. at 222; First Steinman Rep. at 8-10; Ahmed at 1.
Although Petitioner’s injury is wholly different in this case, Dr. Steinman nevertheless maintained
that Ahmed supported his timeframe argument, since Fluvirin, like Pandemrix, is an H1N1
vaccine. Tr. at 246. The Ahmed study also catalogued various dates for onset of narcolepsy
following flu vaccine administration, observing that it could present within up to six (or even eight)
months thereafter. Id. In Dr. Steinman’s view, Ahmed supported his contention that GBS could
also present months following receipt of the flu vaccine. He later acknowledged, however, that
Ahmed involved a distinguishable injury (narcolepsy) and a formulation of the flu vaccine “never
used in the United States,” since Pandemrix is adjuvanted (whereas U.S. versions of the flu vaccine
are not). Tr. at 246.25


24
  On redirect, however, Dr. Steinman contradicted the above statements and suggested that he could offer an opinion
regarding onset even longer than three months based on the concept that the relevant autoantibodies remain in the
body (at detectable levels) for extended periods of time. Tr. at 361.
25
  In two other Program decisions involving narcolepsy, I have determined that Ahmed does not by itself support the
contention that non-adjuvanted forms of the flu vaccine (meaning essentially all forms administered in the United
States) can cause narcolepsy. See, e.g., McCollum v. Sec’y of Health & Human Servs., No. 14-790V, 2017 WL
5386613 (Fed. Cl. Spec. Mstr. Sept. 15, 2017), motion for review den’d, 135 Fed. Cl. 735 (2017), aff’d, No. 14-790V
(Fed. Cir. Feb. 25, 2019); D’Toile v. Sec’y of Health & Human Servs., No. 15-085V, 2016 WL 7664475 (Fed. Cl.
Spec. Mstr. Nov. 26, 2016), mot. for review den’d, 132 Fed. Cl. 421 (2017), aff’d, 726 F. App’x 809 (Fed. Cir. 2018).

                                                         23
        With regard to onset in the present matter, Dr. Steinman proposed that Petitioner’s GBS-
related symptoms began just before Thanksgiving 2012 (or close-in-time to November 22, 2012).
Tr. at 243. Based on the literature discussed above, he opined that an onset around Thanksgiving
2012 placed Petitioner’s symptomatology course (from vaccination, to first indicator of GBS, to
nadir) well within the ten-week timeframe established in Schonberger. Id. at 248. Dr. Steinman
relied primarily on the fact witness testimony (discussed above) in formulating his opinion, given
the lack of confirming contemporaneous medical record evidence.26 He further asserted that he
would allow for the possibility that her symptoms began earlier in November 2012 based on the
statements offered by Petitioner’s friends and family (which in the aggregate support this earlier
onset). Id. at 254 (“I could go before, but I’ll clearly say at Thanksgiving . . . .”).

        At hearing, Dr. Steinman admitted that the long gap between Petitioner’s receipt of the flu
vaccine and her hospital presentation in January 2013 was atypical for a vaccine-induced GBS
injury. Tr. at 232 (“[H]ow can something linger from October 31st to January 31st[?]”). Rather, the
typical GBS disease course (which is well understood to be an acute process)27 lasts two to four
weeks from onset to nadir. Id. at 283. This did not, however, alter his opinions concerning
causation in the present matter. Id. at 284. Considering Petitioner’s overall course, Dr. Steinman
opined that Petitioner’s GBS was likely subacute and/or “smoldered” for weeks (or in Petitioner’s
case, over two months) prior to the time it became acute enough to compel her to seek emergency
treatment. Id. at 251 (“the destructive pathology of [GBS] is gradual . . . [n]ot everything is there
when the diagnosis is first made”), 252 (“some patients have clinical features and disease course
similar to GBS except for a slower progression, that is, the progression that lasts longer than four
weeks”), 291 (suggesting Petitioner’s symptoms were “subacute rather than subclinical”). Thus,
Dr. Steinman concluded that Petitioner’s symptom onset (beginning in November 2012) gradually
progressed into a more severe course (and eventual diagnosis) the following January 2013. Id. at
252.

        To support his contention that a smoldering form of GBS is medically recognized, Dr.
Steinman referenced a single article. J. Wanschitz, et al., Distinct Time Pattern of Complement
Activation and Cytotoxic T Cell Response in Guillain-Barré Syndrome, 126 Brain 2034 (2003),
filed as Ex. 69 (ECF No. 64-2) (“Wanschitz”). Wanschitz examined autopsy tissues of eleven
subjects (compared to four controls) who died within one day to eight weeks of GBS onset in order

26
   At hearing, Dr. Steinman assumed that Petitioner did not seek treatment for her symptoms in the intervening months
(i.e., between November 2012 and January 2013) because she worked in a healthcare-centric field, and therefore
disregarded the severity of the symptoms she was experiencing. Tr. at 238 (“health professionals make the worst
patients”).
27
  Dr. Steinman expressly acknowledged that the “textbook” definition of GBS suggests the disease is acute in nature.
Tr. at 253.

                                                         24
to determine if various immunological and cellular markers (i.e., T cells/proteins/antigens) present
in the stages of demyelinating activity worsened or prolonged disease duration. Id. at 2034-38.
Significantly, Wanschitz defined the GBS disease course as “acute” if the patient died within four
weeks of identified onset, or “subacute” if the patient died four to eight weeks following onset. Id.
at 2035. Hence, Wanschitz did not measure the period from the antecedent event speculated to
have caused the GBS and onset – precisely the issue in this case. Id. (Table 1). Wanschitz
concluded that damaging humoral immune responses (meaning largely antibody-mediated
adaptive immune responses) predominated in the “early” stages of GBS (i.e., after recognized
onset), whereas cellular immune response (T-cells as part of an adaptive response) occurred later,
thereby suggesting that different therapeutic approaches would be more effective depending upon
the temporal status of the patient’s disease. Id. at 2040.

        Dr. Steinman proposed that Wanschitz suggested that the “destructive pathology” of GBS
is gradual (given that killer T cells require a four-week incubation period prior to being detectable
in the body), and thus could take a course consistent with what Petitioner experienced. Tr. at 251-
52, 298-99.28 On cross, however, Dr. Steinman acknowledged that Wanschitz focused primarily
on the timeframe surrounding myelin destruction within the context of an existing case of GBS –
not the overall timing or progression of GBS symptoms measured from its origin (whether due to
wild infection or otherwise). Id. at 282.

          Dr. Steinman also referenced a GBS textbook excerpt29 in support of his contention that
GBS could be subacute and/or smolder for weeks before reaching nadir. Tr. at 252 (“progression
[of GBS can] last[] longer than four weeks”); but see Menze at 167, 179-80. In his view, Menze
suggested that once a diagnosis of GBS is made, it could “progress[] for more than four weeks
until it really bottoms out.” Id. Notably, however, the text referenced by Dr. Steinman applies only
to the course of GBS following its onset (which in this case would mean that Petitioner’s nadir
should have been reached by the end of December at the latest – a month before Petitioner sought
emergency treatment). Menze at 167 (“current diagnostic criteria include <4 weeks of progression
to clinical nadir”). Overall, Menze describes GBS as an “acute-onset, monophasic” disorder
beginning “abruptly with relatively symmetrical onset of paresthesia and sometimes pain.” Id.

        Dr. Steinman further sought to rebut the evidence in Petitioner’s medical records
suggesting that she may have experienced some preexisting viral infection (or respiratory tract)
close-in-time to her onset of GBS. Tr. at 224, 231-32, 356, 359-60. Based on his review of the
medical record, Dr. Steinman could not identify a firm viral diagnosis associated with GBS in the


 Dr. Steinman also asserted, correctly, that Dr. Donofrio did not contest Wanschitz’s literal findings (although Dr.
28

Donofrio did dispute that Wanschitz supports Petitioner’s claim otherwise). Tr. at 255-56, 298-99.
29
     Respondent’s opining expert in this case (Dr. Donofrio) is the editor of the textbook.
                                                            25
antecedent period prior to onset. Id. at 231. A flu (A/B) viral panel completed during Petitioner’s
hospital stay was negative. Id. at 260 (citing Ex. 7 at 4-5). Petitioner’s bacterial panel also revealed
no concerning results. Id. at 287. He did agree, however, that certain “heavy hitter” viruses (i.e.,
Epstein Barr or CMV) were not tested for or eliminated as triggers. Id. at 263. Dr. Steinman
otherwise asserted there was not strong (or confirming) evidence of a pre-onset URI. Id. at 232.

        Given the above, Dr. Steinman concluded that the flu vaccine was the more likely trigger
of Petitioner’s GBS in the absence of evidence suggesting the presence of a firm alternative
explanation. Tr. at 232, 359. On cross, he nevertheless acknowledged that in most cases of viral-
induced GBS, the actual precipitating virus is not known, and that GBS is usually deemed
idiopathic in nature. Id. at 260, 287 (“we really don’t know what causes your [GBS] in most
cases”), 291. Even so, Dr. Steinman opined that he would still be reluctant to attribute Petitioner’s
GBS to an antecedent viral infection even if she had not received a flu vaccination within the
preceding months. Id. at 285-87. At the same time, he acknowledged that he would at least consider
any pre-existing viral symptoms in combination with the overall medical record when attempting
to identify the most appropriate trigger. Id. at 286.

        Occasionally during his testimony, Dr. Steinman stepped out of his role as
medical/scientific expert and into the shoes of judicial “color commentator,” expressing views
about the proper apportionment of legal burdens and standards applicable in the Vaccine Program,
or making asides about his responsibilities as an expert based upon his understanding of the
applicable legal standards. See, e.g., Tr. at 217, 234, 265-66 (suggesting that he could “probably
structure a theory” identifying the vaccine as a substantial factor even if another cause were
identified), 285, 287-88 (suggesting the method by which he would diagnose the cause of GBS “in
the real world” is different from the context of a Vaccine Program case, where he is tasked by
petitioners to propose a vaccine cause).

       B.      Respondent’s Expert – Dr. Peter Donofrio

        Dr. Donofrio, a neurologist, was Respondent’s expert. Tr. at 300-55. He filed two expert
reports in support of Respondent’s position. See Expert Report, dated Nov. 30, 2015, filed as Ex.
A (ECF No. 42-1) (“Donofrio Rep.”); Expert Report, dated Apr. 21, 2017, filed as Ex. F (ECF No.
65-1) (“Donofrio Supp. Rep.”). In his view, the flu vaccine Petitioner received in October 2012
did not precipitate her GBS. Tr. at 306-07. Rather, Dr. Donofrio attributed her condition to a pre-
existing URI (and/or a combination of a URI and asthma attack caused by a cat allergy) close-in-
time to her January 2013 diagnosis. Id. at 323; see Donofrio Rep. at 6-9; Donofrio Supp. Rep. at
6-7.



                                                  26
         Dr. Donofrio is a professor of neurology and director of the MDA and ALS clinics at the
Vanderbilt University Medical Center. Tr. at 301. He received his B.S. at the University of Notre
Dame, and then attended the Ohio State University School of Medicine for his M.D. Id. He is
board certified in neurology, internal medicine, electrodiagnostic medicine, and neuromuscular
disorders. CV, filed as Ex. B (ECF No. 42-2) (“Donofrio CV”) at 2. Dr. Donofrio is experienced
in treating peripheral neuropathies like GBS and CIDP, and is a member of organizations focusing
on these kinds of neuropathic conditions. Tr. at 301-02; Donofrio Rep. at 1. Among his
publications is a textbook on the specific topic of peripheral neuropathy. Donofrio CV at 21. He
has also co-authored peer-reviewed papers on topics related to GBS. Tr. at 302. Dr. Donofrio
testified that he diagnoses patients with various forms of peripheral neuropathy on a daily basis.
Id. at 353. Specifically, Dr. Donofrio estimated that he treats around three GBS patients per month.
Id. He is not an immunologist, however, and does not otherwise appear to have specific expertise
in that field.

         Dr. Donofrio began by discussing the classical GBS symptomatology course. He defined
GBS as a subacute “inflammatory autoimmune disorder of the peripheral nervous system”
affecting both the motor and sensory autonomic nerve fibers. Tr. at 303, 305. GBS can be
idiopathic, but “follows a viral infection or a presumed viral infection of the upper respiratory tract
or in the GI system” roughly seventy percent of the time. Id. at 303. Dr. Donofrio explained that a
typical GBS symptomatology course evolves “fairly rapidly” (i.e., over several days) with
numbness/tingling in the feet and toes, which gradually ascends the legs and eventually the arms,
hands, and fingers. Id. at 304, 311-12. Weakness in the upper and lower extremities, pain in the
lower back (or posterior thighs), areflexia (absent reflexes) and unsteady gait are also common
criteria for a GBS diagnosis. Id. at 304-05, 311-12. In his view, generalized fatigue is not a pre-
acute presenting symptom of GBS, but could be a resulting symptom following a “full-blown”
course. Id. at 312. Ninety percent of GBS patients reach nadir of their illness between two and
four weeks following onset, with a plateauing of symptoms thereafter. Id. at 304. After treatment,
the majority of patients reach a full recovery (with only fifteen percent experiencing significant
deficits). Id.

        Based on his review of Petitioner’s medical record, Dr. Donofrio agreed that hospital
treaters properly diagnosed her with some form of “explosive” GBS (given her presenting
symptoms documented in the contemporaneous record). Tr. at 307, 329 (“I think the
preponderance of the clinical evidence and laboratory evidence pointed to [GBS] with some ocular
involvement”); Donofrio Supp. Rep. at 3, 5; Donofrio Rep. at 6. Consistent with Dr. Steinman, Dr.
Donofrio acknowledged that Petitioner’s GBS could be classified as the Miller-Fisher variant or
“Miller-Fisher-plus syndrome.” Tr. at 306, 330.30 In addition to the classic GBS symptoms, the

30
  Dr. Donofrio’s first expert report suggested that Petitioner’s GBS included some atypical features, including
hyperreflexia and a normal EMG and nerve conduction study. Donofrio Rep. at 6. He suggested that these variants
                                                      27
Miller-Fisher variant typically presents with a “triad” of cranial nerve abnormalities (including eye
movement weakness, areflexia in the arms and legs, and ataxia, usually of walking) after onset of
the more typical peripheral nerve involvement. Id. at 306, 317; Donofrio Rep. at 5. Miller-Fisher-
plus, in his view, encompasses the triad discussed above, but can also implicate other cranial nerves
(for example, those responsible for proper vocal control). Tr. at 330.

       However, and relying on his understanding that a classical GBS course spans a two- to
four-week period, Dr. Donofrio vehemently disputed Dr. Steinman’s assertion that Petitioner’s
GBS “lurked” for months before reaching nadir. Tr. at 316 (“[eleven] weeks would be a stretch for
me to accept”), 353-55. In his view, Dr. Steinman’s opinion regarding Petitioner’s GBS course
was inconsistent with what is known in the medical/scientific community about the disease’s
progression (from onset to nadir). Dr. Donofrio opined that a similar disease course occurring over
a timeframe longer than four weeks would likely evidence an illness more along the lines of
CIDP31 or SIDP32 – peripheral neuropathies distinguishable from that which Petitioner experienced
(and diagnoses she never received). Id. at 306.

        In challenging Petitioner’s contentions that GBS could take a longer course than is
commonly understood, Dr. Donofrio took direct issue with the Wanschitz post-GBS autopsy study.
Tr. at 318-20. Although he did not question the reliability of its specific findings, Dr. Donofrio
proposed that Wanschitz was generally unhelpful in predicting the timeframe of a GBS disease
course because it did not address “pre-onset” features of GBS relevant under Petitioner’s theory,


might suggest that Petitioner was suffering from brainstem encephalitis rather than GBS. Id. But it appears that Dr.
Donofrio conceded this point at hearing. His supplemental expert report also states an affirmed opinion that Petitioner
was properly diagnosed with GBS. Donofrio Supp. Rep. at 3. But this concession did not detract from the thrust of
Dr. Donofrio’s opinion (considering the strong evidence suggesting Petitioner’s alleged injury did not manifest in an
acceptable timeframe).
31
  CIDP, or “chronic inflammatory demyelinating polyneuropathy,” is defined as a “slowly progressive, autoimmune”
type of polyneuropathy, characterized by progressive weakness and impaired sensory function in the limbs and
enlargement of the peripheral nerves. See Dorland’s Illustrated Medical Dictionary 361, 1491 (32nd ed. 2012).
Although Dr. Donofrio acknowledged that GBS and CIDP can manifest similar symptoms, he maintained that CIDP
should not be considered “chronic” GBS. Tr. at 348. Rather, in his view, the two are different illnesses (as evidenced
by the accepted treatment protocol for each). Id. at 348-49. I have previously also found this to be an accurate
characterization of the difference between GBS and CIDP. See, e.g., Strong v. Sec’y of Health & Human Servs., No.
15-1108V, 2018 WL 1125666 (Fed. Cl. Spec. Mstr. Jan. 12, 2018).
32
   Dr. Donofrio testified that SIDP (or “subacute inflammatory demyelinating polyneuropathy”) is like GBS, but
patients with this condition typically experience nadir around eight weeks (i.e., too long to be characterized as GBS,
but too short to be CIDP). Tr. at 320-21. In Dr. Donofrio’s view, the condition is rare (and not well-accepted given
the more modern diagnoses), as most polyneuropathy patients tend to fall in the GBS/CIDP categories. Id. at 321,
347-48. It is included in textbooks for inclusivity and historical significance. Id. at 347. Dr. Donofrio explained that
Petitioner’s course was not consistent with an SIDP diagnosis (even if the alleged November 2012 onset were
accepted) given its eleven-week progression. Id. at 321.

                                                          28
discussing instead the progression of the disease following its recognized acute onset. Id. at 318.
Wanschitz thus did not stand for the proposition that GBS could smolder gradually for weeks prior
to its acute presentation. Id. The article also did not set forth its subject inclusion criteria (or
identify any variance in treatments received or additional diagnoses considered) – which caused
Dr. Donofrio to question whether its subjects were indeed properly classified as GBS patients, or
whether their deaths were even attributable to GBS (something a chart in Wanschitz suggests was
not the case). Id. at 319-20; see Wanschitz at 2035 (Table I).

        Dr. Donofrio spent some time at hearing discussing Petitioner’s symptoms during the
months prior to her ER visit and subsequent hospitalization. Petitioner’s medical records revealed
multiple past illnesses (for example, depression and shingles) and pre-existing symptoms (such as
blurred vision, incontinence, stress, and impaired hearing), all which caused Dr. Donofrio to
question if her immediate post-vaccination symptoms could really be attributed to the flu vaccine,
rather than reflecting a continuation of what she previously experienced before vaccination. Tr. at
308-09; Donofrio Rep. at 6-7; Donofrio Supp. Rep. at 4.

        In addition, and relying on witness testimony as well as alleged contemporaneous
documentation of Petitioner’s fall 2012 symptoms,33 Dr. Donofrio questioned whether any of those
symptoms had any connection to her subsequently-diagnosed GBS. Those symptoms (which
included vaginal bleeding, feelings of tiredness34/exhaustion/cold, black/blue coloring on arms,
arm/chest/neck pain, sensitivity to touch, lack of appetite, and crying episodes) did not fit with the
accepted GBS clinical criteria. Tr. at 311 (“[s]o when I look at this constellation of symptoms here,
I would not be thinking of [GBS]”); see also S. Vucic, et al., Guillain-Barre Syndrome: An Update,
16 J. Clin. Neuroscience 733, 734 (2009), filed as Ex. C (ECF No. 43-3) (noting that the dominant
clinical feature of GBS is “generalized muscle weakness with sensory symptoms . . . ascending
from the lower to upper limbs” which “reaches nadir at 2 weeks to 4 weeks after symptom onset”)
(emphasis added)). The typical, presenting clinical manifestations of GBS (i.e., ascending
numbness/tingling, weakness, low back pain, and unsteady gait) were not described by Petitioner
(or noted by Dr. Lara) in November or December 2012, making it unlikely that these earlier-in-
time symptoms could be related to a GBS course that became fulminant only in late January 2013.
Tr. at 311-12; Donofrio Rep. at 6. He otherwise noted that Dr. Lara’s contemporaneous visit notes
did not corroborate Petitioner’s claims that she was also experiencing other symptoms at this time

33
   Dr. Donofrio specifically relied on the medical visit notes from Petitioner’s OB/GYN, Dr. Lara (along with
Petitioner’s self-documented health agenda) given the absence of any other contemporaneous appointment notes. Tr.
at 309-11; Donofrio Rep. at 6.
34
  Dr. Donofrio observed that Petitioner’s pre-vaccination health records indicated she was diagnosed with sleep apnea
(both obstructive and central) in the years prior. Tr. at 311. In his view, this could better explain any specifically-
claimed symptoms of tiredness or sleepiness. Id.

                                                          29
(including fatigue and voice hoarseness). Tr. at 309, 312. He could locate no other primary care
physician or other specialist’s notes confirming the worsening of her condition around this time.
Donofrio Rep. at 6.

        Dr. Donofrio acknowledged that Petitioner’s newly-discovered health agenda/diary (as
confirmed by fact witness testimony) evidenced some concerning complaints in these earlier
months that could be deemed symptoms secondarily associated with GBS (including fatigue, voice
hoarseness, and arm/chest pain), but did not constitute presenting symptoms of the disease. He
also disputed any contention by Dr. Steinman that Petitioner’s general feelings of fatigue in late
November or December 2012 could constitute a presenting GBS symptom. Tr. at 331 (as an “initial
symptom, I’ve never seen it”), 352.35 Similarly, Dr. Donofrio opined that voice hoarseness is not
a presenting feature of GBS. Id. at 314. He agreed that a raspy voice could reflect cranial
involvement in the setting of a classic GBS course (i.e., congruent with limb weakness,
hyporeflexia, sensory loss, etc.), but would not be evidence of early manifestation. Id. The bilateral
arm pain Petitioner reported would also be atypical as a presenting symptom of GBS because GBS
pain more commonly affects the lower back/thighs, not the upper extremities. Id. at 310-11, 344.36

        Based on the above, Dr. Donofrio concluded that Petitioner’s onset of GBS likely occurred
closer-in-time to her hospital presentation in late January 2013 (roughly three months post-
vaccination), thus falling outside the recognized, medically appropriate timeframe for a vaccine-
induced GBS injury. Tr. at 322-33, 334; Donofrio Rep. at 8; Donofrio Supp. Rep. at 3. In his view,
a three-month-long gap between receipt of vaccination and onset of symptoms was simply too
long to reliably support causation. Tr. at 323. For support, he referenced two papers offered by
Petitioner (Langmuir and Schonberger), which suggested a five- to ten-week period would be an
appropriate measurement. Id. at 322-23. Dr. Donofrio otherwise asserted that such a long onset
runs counter to accepted immunologic principles (on which Dr. Steinman relies) as they relate to
onset of neuromuscular disease. Considering the immune system will generally mount an antibody
response to a foreign antigen (in Petitioner’s case, the anti-GQ1B) within a seven- to ten-day
timeframe after infection or other insult, it would be unlikely that a vaccine (administered three
months earlier) caused the production of antibodies that could have triggered an acute response so

35
  On cross, Dr. Donofrio was questioned regarding fatigue as a presenting GBS symptom in the context of an EBV-
induced GBS injury. Tr. at 332-33. He persuasively reaffirmed, however, that while fatigue could be an associated
symptom (i.e., in the context of other typical GBS symptoms), it would not constitute a presenting symptom. Id.
36
  During his direct testimony, Dr. Donofrio pointed out that Petitioner’s personal health agenda and Dr. Lara’s revised
visit notes from 2014 both evidenced a bullet point list of similarly worded complaints (presumably to offer some
suggestion that the revised notes were not wholly Dr. Lara’s own recollection of the events). Tr. at 312. Regardless of
her documentation (or lack thereof), Dr. Donofrio maintained, as noted above, that many of the symptoms Petitioner
allegedly complained of at this time were not related to GBS. Id. In any event, Dr. Lara was not qualified to opine as
to such a diagnosis. Id.

                                                          30
much later. Id. at 346. Even assuming, hypothetically, Petitioner’s symptoms started around
ten/eleven weeks following administration (as Dr. Steinman proposes), Dr. Donofrio opined that
such a timeframe too fell outside the more accepted period (i.e., seven to eight weeks) referenced
in Langmuir. Id. at 323.

        As noted earlier, Dr. Donofrio identified a possible alternative cause for Petitioner’s GBS:
a pre-onset URI. Tr. at 315, 345; Donofrio Rep. at 8. Upon reviewing Petitioner’s records from
her January 2013 hospitalization, Dr. Donofrio referenced documented concerns by at least two
treaters of a prior upper respiratory tract infection (congruent with or exacerbated by an asthma
attack)37 in the two weeks immediately prior to presentation. Id. at 315 (citing Ex. 7 at 4-5). A
prior infection would better align with what is known about GBS (and better explain the eventual
evolution of Petitioner’s symptoms). Donofrio Rep. at 8 (“[i]t is well-known that [GBS] is often
preceded by an upper or lower . . . respiratory tract infection or gastroenteritis in approximately
60-70% of patients”). Dr. Donofrio could not identify what virus caused the URI, and
acknowledged that viral testing had not pointed to any possible such explanation. Tr. at 315. Even
so, Dr. Donofrio noted that other radiologic evidence taken during Petitioner’s hospitalization was
supportive of this point. Id. Petitioner’s CT scan, for example, revealed a bronchial obstruction
and associated secretions, which confirmed his suspicion. Id. at 315-16.

        Dr. Donofrio did not spend much time at hearing addressing Petitioner’s proffered medical
theory. Overall, he agreed that molecular mimicry is an acceptable biologic theory to explain how
an autoimmune disease process could result from a viral trigger. Donofrio Rep. at 8. He seemingly
also allowed for an association between GBS and receipt of the flu vaccine based on the
Schonberger swine flu study. Tr. at 325, 331 (“I certainly think that theoretically [vaccines] can
[cause GBS]”), 337-38; see also Schonberger at 117. Dr. Donofrio’s written report similarly
affirms this point. Donofrio Rep. at 7.

IV.        Dr. Lara Fact Dispute

        Before this matter was reassigned to me, the parties engaged in some discovery relating to
the accuracy of the December 2012 medical record memorializing Petitioner’s visit with Dr. Lara.
Although (as discussed below) the outcome of this discovery does not ultimately impact my
resolution of the case, I nevertheless shall briefly summarize the procedural history relevant to
Petitioner’s efforts to correct alleged inaccuracies in this medical record.

        On November 7, 2014 (over two years following the above-mentioned visit – but prior to
this case’s filing in January 2015), Dr. Lara authored a letter on Petitioner’s behalf seeking to

37
     Asthma alone, in his view, could not precipitate GBS. Tr. at 345-46.
                                                           31
elaborate on what had been discussed at the December 2012 visit. Ex. 59 at 1-2. In it, Dr. Lara
stated that in 2012 Petitioner had reported “significant loss of energy on a daily basis,” voice
hoarseness (unrelated to allergies), throat swelling and difficulty with swallowing, numbness of
the extremities and sensitivity to cold, weakness in her wrists and arms, and “sensitivity” in her
nose, mouth, and eyes. Id. Petitioner was also noted to be depressed and tearful. Id. at 1. This
correction was consistent with Petitioner’s allegations – but not with the contemporaneously-
created record from this same visit, which suggests (except for gynecologic issues) that Petitioner’s
health at the time was good.

         Special Master Millman, to whom this case was originally assigned, noted after a status
conference that the contrast between the 2014 letter and Dr. Lara’s prior record, coupled with the
degree to which the letter seemed to parallel Petitioner’s contentions in this case, was extremely
troubling. See Order, dated February 17, 2016 (ECF No. 48) at 1. She also noted that there was
evidence that Dr. Lara had received professional discipline, putting her credibility at risk – and
that it appeared that Dr. Steinman’s opinion relied on contentions about onset that were rooted in
the altered description of the December 2012 visit. Id. at 2. Special Master Millman accordingly
authorized Respondent to depose Dr. Lara in order to probe these issues.

        Dr. Lara’s deposition did not occur until August 23, 2016, and the transcript was filed two
months later. See Deposition Transcript, filed on October 31, 2016 (ECF No. 58). At the
deposition, Dr. Lara testified that the additional symptoms outlined in her November 2014 letter
were indeed reported by Petitioner, but that she had not included them in the record, as her exam
was focused on gynecological issues. See ECF No. 58 at 9-10, 21-22. Thus, Dr. Lara maintained
that Petitioner had reported these symptoms to her in December 2012, and her November 2014
letter accurately reflected their conversation at that time. Id. at 25-26, 28. Dr. Lara’s sworn
testimony did not, however, make any reference to seeing the health notes that Petitioner testified
at hearing she brought to the December 2012 appointment.

        At hearing, Petitioner elaborated on the circumstances of her visit with Dr. Lara and what
was discussed at that time. Petitioner explained that she requested the letter correcting the earlier
medical record because she noticed that the contemporaneous record “did not describe the
information . . . shared with [Dr. Lara]” during the appointment. Tr. at 42. She further stated that
Dr. Lara acknowledged the contemporaneous notes did not accurately describe the additional
symptoms she was experiencing at the time. Id. at 44 (“I recall how tired you were. You were
teary, and you didn’t understand what was going on.”). Petitioner otherwise stated that she
provided Dr. Lara with the personal health agenda noted above prior to the date Dr. Lara authored
her 2014 letter (presumably in hopes it would assist her in clarifying her treatment notes), and that
the revised notes were an accurate description of what Dr. Lara observed, and/or was told, during
the December 2012 appointment. Id. at 74-76, 96-97.
                                                 32
V.       Procedural History

        Mrs. Chinea filed her Petition on January 30, 2015. Pet. at 1. The parties filed the Joint
Statement of Completion on February 17, 2015. ECF No. 10. Additional medical records were
filed thereafter. ECF Nos. 14-17, 22-24, 29-30, 34. Respondent then filed his Rule 4(c) report on
December 1, 2015, denying that Mrs. Chinea was entitled to compensation. ECF No. 41.

        Thereafter, the parties began filing expert reports. Petitioner filed an initial expert report
from Dr. Steinman on August 21, 2015. ECF No. 31. Respondent filed an initial expert report from
Dr. Donofrio on December 1, 2015. ECF No. 42. Following a request by the Court to supplement
the record with additional expert support, Petitioner filed a second expert report from Dr. Steinman
on February 16, 2017. ECF No. 64. Thereafter, Respondent filed a supplemental report from Dr.
Donofrio on April 24, 2017. ECF No. 65. Given the issues identified in the expert reports (and
supporting fact witness declarations), the matter was set for hearing on August 6-7, 2018, in
Woodland Hills, California, to determine entitlement. ECF No. 67. The matter was subsequently
reassigned to me.

        The hearing took place as scheduled, and included testimony from the experts identified
above (along with testimony from Petitioner and multiple fact witnesses). Following the hearing’s
conclusion, the parties submitted post-hearing briefs on October 31, 2018. ECF Nos. 88-87. The
matter is ripe for adjudication.


VI.      Applicable Law

         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 & Human Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 2010); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006).38
In this case, Petitioner does not assert a Table claim.

38
  Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding
authority. Hanlon v. Sec’y of Health & Human 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 & Human Servs., 59 Fed. Cl. 121,
124 (2003), aff’d 104 F. App’x 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Human Servs., No. 13-
159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).

                                                         33
         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 & Human 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 & Human Servs., 165 F.3d 1344,
1352-53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human 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 & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005): “(1)
a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause
and effect showing that the vaccination was the reason for the injury; and (3) a showing of
proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278.

        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 & Human 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 & Human 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 v. Sec’y of
                                                  34
Health & Human Servs., 121 Fed. Cl. 230, 245 (2015) (“[p]lausibility . . . in many cases may be
enough to satisfy Althen prong one” (emphasis in original)), vacated on other grounds, 844 F.3d
1363 (Fed. Cir. 2017). But this does not negate or reduce a petitioner’s ultimate burden to establish
his overall entitlement to damages by preponderant evidence. W.C. v. Sec’y of Health & Human
Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013) (citations omitted).39

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

        However, medical records and/or statements of a treating physician’s views do not per se
bind the special master to adopt the conclusions of such an individual, even if they must be
considered and carefully evaluated. 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 & Human Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is
nothing . . . that mandates that the testimony of a treating physician is sacrosanct – that it must be
accepted in its entirety and cannot be rebutted”). 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 also be
weighed against other, contrary evidence also present in the record – including conflicting opinions
among such individuals. Hibbard v. Sec’y of Health & Human Servs., 100 Fed. Cl. 742, 749 (2011)
(not arbitrary or capricious for special master to weigh competing treating physicians’ conclusions
against each other), aff’d, 698 F.3d 1355 (Fed. Cir. 2012); Caves v. Sec’y of Dept. of Health &
Human Servs., No. 06-522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011), mot.
for review den’d, 100 Fed. Cl. 344, 356 (2011), aff’d without opinion, 475 Fed. App’x 765 (Fed.
Cir. 2012).


39
   Although decisions like Contreras suggest that the burden of proof required to satisfy the first Althen prong is less
stringent than the other two, there is ample contrary authority for the more straightforward proposition that when
considering the first prong, the same preponderance standard used overall is also applied when evaluating if a reliable
and plausible causal theory has been established. Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339,
1350 (Fed. Cir. 2010).
                                                          35
        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 & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for
what is a medically acceptable timeframe must also coincide 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 & Human Servs., 101 Fed. Cl. 532, 542 (2011), recons. den’d after remand, 105 Fed. Cl.
353 (2012), aff’d mem., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v. Sec’y of Health & Human
Servs., No. 11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for review
den’d (Fed. Cl. Dec. 3, 2013), aff’d, 773 F.3d 1239 (Fed. Cir. 2014).

       B.      Law Governing Analysis of Fact Evidence

        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 “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 & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (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).

        Medical records that are created contemporaneously with the events they describe are
presumed to be accurate and “complete” (i.e., presenting all relevant information on a patient’s
health problems). Cucuras, 993 F.2d at 1528; Doe/70 v. Sec’y of Health & Human 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 &
Human Servs., 468 F. App’x 952 (Fed. Cir. 2011) (non-precedential opinion). This presumption is
based on the linked propositions that (i) sick people visit medical professionals; (ii) sick people
honestly report their health problems to those professionals; and (iii) medical professionals record

                                                  36
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 & Human Servs., No. 11-685V, 2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013); Cucuras v. Sec’y of Health & Human 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 & Human Servs., No. 03-1585V, 2005
WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical
records are generally 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 & Human 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, there are situations in which compelling oral testimony may be more persuasive
than written records, such as where records are deemed to be incomplete or inaccurate. Campbell
v. Sec’y of Health & Human 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 & Human
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 & Human
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.
                                                 37
Sec’y of Health & Human 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 & Human 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 & Human Servs., 617 F.3d 1328, 1339
(Fed. Cir. 2010) (citing Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316 (Fed. Cir.
1999). “The Daubert 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 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).

         The Daubert factors play a slightly different role in Vaccine Program cases than they do
when applied in other federal judicial for a (such as the district courts). Daubert factors are usually
employed by judges (in the performance of their evidentiary gatekeeper roles) to exclude evidence
that is unreliable and/or could confuse a jury. In Vaccine Program cases, by contrast, these factors
are used in the weighing of the reliability of scientific evidence proffered. Davis v. Sec’y of Health
& Human 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 of his own 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 & Human 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

                                                  38
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 91997)); see also Isaac v. Sec’y of Health &
Human 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 Fed. 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 & Human 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 medical and scientific literature in this case, but not every filed item
factors into the outcome of this decision. While I have reviewed all of the medical 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 & Human 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 & Human 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.     Overview of GBS and Relevant Program Law

        As literature filed in this case establishes, GBS is a peripheral neuropathy involving
rapidly-progressive and ascending motor neuron paralysis. Vucic at 733; Menze at 167. Its etiology
is unknown, although two-thirds of GBS cases follow an antecedent infection (typically an upper
respiratory tract or gastrointestinal infection) beginning a few weeks prior to symptoms onset.
Vucic at 733 (six weeks pre-onset); Menze at 167 (two weeks pre-onset). GBS has also been
reported following surgery, head trauma, and vaccination. Id. at 734. It is believed to have an
autoimmune mechanism. Vucic at 733; Menze at 167, 180. A GBS diagnosis centers on a thorough
medical assessment involving clinical presentation, nerve conduction studies, and CSF analysis.
Vucic at 734; Menze at 168.

                                                  39
         GBS’s primary clinical features are generalized muscle weakness combined with sensory
symptoms. Vucic at 734. GBS typically begins abruptly with paresthesia in the feet, progressing
to a flaccid paralysis of the lower limbs and ascending to the trunk, upper limbs, and face (although
some cases involve paresthesia in all four limbs simultaneously or paresthesia beginning in the
upper limbs and descending downward). Vucic at 733-34; Menze at 167. Weakness of the facial
muscles is common and is frequently bilateral. Vucic at 734; Menze at 167. Respiratory weakness
is a common feature (requiring arterial ventilation in severe cases). Vucic at 734. Eighty to ninety
percent of patients become nonambulatory due to weakness. Menze at 167. Other characteristics
include low-grade fever, bulbar palsy, absent tendon reflexes, and increased protein levels in the
cerebral spinal fluid without a corresponding increase in cells. Vucic at 733-34. The Miller-Fisher
variant (consistent with Petitioner’s diagnosis) is clinically characterized as evidencing additional
adverse symptoms, including ophthalmological abnormalities, ataxia, and areflexia. Id. at 734;
Menze at 168-69.

        GBS patients typically reach nadir of their illness between two and four weeks following
onset, with a plateauing of symptoms thereafter. Vucic at 734, 737; Menze at 167. The current
diagnostic criteria include up to 4 weeks of progression to clinical nadir. Menze at 167. Although
GBS is considered a monophasic illness, between seven and sixteen percent of patients suffer
recurrent episodes of worsening after initial onset and improvement. Vucic at 734. Sequela of GBS
can include severe fatigue and persistent pain in some cases. Menze at 179. The majority of patients
reach a full recovery (with only ten to twenty percent experiencing significant deficits). Vucic at
737. Up to one-third of GBS patients require some alteration to their daily routine due to the
residual functional deficits. Id. Adverse prognosis factors can include: older age at disease onset
(i.e., >50 years), severity of the disease course at nadir, rapid onset, and the presence of an
underlying infection. Id.

        The association between the flu vaccine and GBS is well-established in the Vaccine
Program. See, e.g., Strong v. Sec’y of Health & Human Servs., No. 15-1108V, 2018 WL 1125666
(Fed. Cl. Spec. Mstr. Jan. 12, 2018); Stitt v. Sec’y of Health & Human Servs., No. 09-653V, 2013
WL 3356791 (Fed. Cl. Spec. Mstr. May 31, 2013); Stewart v. Sec'y of Health & Human Servs.,
No. 06-777V, 2011 WL 3241585, at *16 (Fed. Cl. Spec. Mstr. July 8, 2011); see also Barone v.
Sec'y of Health & Human Servs., No. 11-707V, 2014 WL 6834557 (Fed. Cl. Spec. Mstr. Nov. 12,
2014). Indeed, GBS was added in 2017 as a Table Claim for the flu vaccine (although this case
does not involve such a claim). See 42 C.F.R. § 100.3(a). Accordingly, my resolution of
Petitioner’s claim does not turn on a finding, under Althen prong one, that (for purposes of
adjudicating a Program claim) the flu vaccine “can cause” GBS, for that question has been
thoroughly examined and answered in the affirmative.



                                                 40
        There are nevertheless some limits to the kinds of fact patterns that successfully establish
that the flu vaccine “did cause” a particular petitioner’s GBS under the second Althen prong. In
most successful non-Table cases, onset of symptoms is demonstrated to have occurred no longer
than six to eight weeks after vaccination. See, e.g., Barone, 2014 WL 6834557, at *13 (eight weeks
is the longest reasonable timeframe for a flu/GBS injury). I am aware of no published Vaccine
Program decisions that have found a timeframe longer than two months to be medically acceptable.
See, e.g., Aguayo v. Sec'y of Health & Human Servs., No. 12-563V, 2013 WL 441013, at *4 (Fed.
Cl. Spec. Mstr. Jan. 15, 2013) (three and one-half month onset for flu/GBS injury deemed too
attenuated to be causal); Corder v. Sec'y of Health & Human Servs., No. 08-228V, 2011 WL
2469736, at *27-29 (Fed. Cl. Spec. Mstr. May 31, 2011) (proposed four-month onset period from
vaccination to GBS injury is too long; two months is the longest reasonable timeframe).

        Such limits are in keeping with well-recognized Program case law. It is not enough for a
petitioner to argue that her illness post-dated receipt of a particular vaccine – for that is another
way of simply invoking the temporal relationship between vaccine and injury, something
understood in the Program to have little evidentiary bearing when determining entitlement. See,
e.g., LaLonde v. Sec'y of Health & Human Servs., 746 F.3d 1334, 1341 (Fed. Cir. 2014) (“[a]
temporal correlation alone is not enough to demonstrate causation”).

II.     Petitioner Has Not Established That Her Symptoms Before January 2013 Were
        More Likely Than Not Related to Her Subsequently-Diagnosed GBS

        Before determining whether Petitioner has carried her overall burden in this case, I must
make a fact determination regarding the onset of Petitioner’s first GBS-related symptoms.
Petitioner argues for an onset beginning sometime in November 2012, while Respondent favors
onset no sooner than a week to ten days before Mrs. Chinea’s late-January 2013 hospitalization.
See Pre-Hearing Brief, filed on Oct. 31, 2018 (ECF No. 88) at 4-5; Donofrio Rep at 8; Ex. 7 at 4.

         It is undisputed that Petitioner did not see a healthcare professional between October 31,
2012 (the day she received the flu vaccine) and late January 2013 to obtain treatment for the
symptoms associated with her alleged 2012 onset of GBS. And the record is largely devoid of
persuasive evidence that she even informed any treaters before late January that she felt out of the
ordinary. She unquestionably saw a gynecologist, Dr. Lara, in December 2012, and arguably
informed her of her then-present symptoms (despite the fact that she saw Dr. Lara for an entirely
different kind of treatment), although the contemporaneous record of this visit says nothing about
the symptoms Petitioner and her witnesses described at hearing. Although Petitioner maintains
that this record is in error, Petitioner has not successfully established why I should give the original,



                                                   41
contemporaneous document less weight than her subsequent (and somewhat self-serving)
revisions.40

        The testimony offered by the fact witnesses at hearing, however, was more persuasive.
These witnesses recounted their personal observations of Petitioner’s demonstrated fatigue and
other symptoms in November and December 2012. All of Petitioner’s fact witnesses appeared to
be credible individuals, and I have no doubt that they made an honest effort to recall what they
saw at the time. Their contentions were also not rebutted. I can therefore conclude that Petitioner
did experience overall fatigue/malaise, inter alia, beginning in November 2012 and running into
January 2013, and that these symptoms affected her professional and social life.

        However – and in light of what is known regarding the typical GBS clinical presentation –
I do not find that Petitioner successfully established that any such symptoms represented the onset
of her subsequently-diagnosed GBS. Respondent and his expert, Dr. Donofrio, persuasively
established that GBS is understood to be an acute-onset, monophasic disease. See, e.g., Vucic at
733-34; Menze at 167. Although some of the symptoms Petitioner experienced in the fall of 2012
could be secondarily associated with GBS, they would not be presenting symptoms of the illness.
Petitioner’s witnesses most credibly suggested they observed Petitioner in the weeks before
Thanksgiving displaying malaise and fatigue – but this is not how GBS presents. The record was
otherwise not supportive of the conclusion that Petitioner was experiencing nascent GBS in
November or December 2012 (and no treater evidence beyond the discredited statements of Dr.


40
  As already noted, Dr. Lara’s contemporaneous record from the December 2012 visit makes no mention of any non-
gynecologic complaints. The updated “version” from November 2014, by Dr. Lara’s admission, was not solely the
product of her own recollection, but was prompted by Petitioner (who sought revisions to the original document right
before filing this case). See Deposition Transcript (filed as ECF No. 58) at 18-21. Moreover, at hearing, Petitioner
revealed that she had located a previously-undisclosed set of notes that she purported to always prepare when attending
a visit with a medical provider, and which she claimed to have brought to Dr. Lara in December 2012 – and yet no
mention of these notes was made at all during Dr. Lara’s deposition. Dr. Lara’s own credibility was also properly
called into question during this case, given her prior professional misconduct. See, e.g., Swick v. Sec’y of Health &
Human Servs., No. 13-526V, 2018 WL 1514453, at *6-7 (Fed. Cl. Spec. Mstr. Feb. 26, 2018) (“failure to disclose [a]
reprimand diminishes [expert’s] credibility”) (citing Contreras v. Sec’y of Health & Human Servs., 121 Fed. Cl. 230,
238 (2015), vacated on other grounds, 844 F.3d 1363 (Fed. Cir. 2017)). And although Dr. Lara did provide sworn
testimony at her deposition that (to the extent it was not rebutted) should be given some consideration, her absence as
a witness in this case is a further reason to give that deposition testimony less weight, because her statements have a
hearsay quality, and she has not otherwise been demonstrated to have been unable to attend the hearing. See, e.g.,
Pickney v. United States, 82 Fed. Cl. 627, 636 n.8 (2008) (“[t]estimony given in a deposition may be presented to the
court if the declarant is unavailable”) (emphasis added) (referencing Fed. R. Evid. 804); RCFC 32(a).

   For all these reasons, I do not find that the revised version of Dr. Lara’s medical record should be given more weight
than the original 2012 record. See, e.g., Cucuras, 993 F.2d at 1528; Murphy, 23 Cl. Ct. at 733 (citing United States v.
Gypsum Co., 333 U.S. 364, 396 (1974)). However, even if I had found the contrary, the corrected version of the
December 2012 record that Petitioner favors would not alter my determination herein – for, as discussed below, I do
not find that any of Petitioner’s purported symptoms from the fall of 2012 constituted onset of her subsequently-
diagnosed GBS, or were even related.
                                                           42
Lara exist that could be invoked for the contrary), or that any of these earlier symptoms had
anything at all to do with Petitioner’s late-January 2013 symptoms.

         Dr. Steinman endeavored to describe a smoldering form of GBS that could not only begin
with secondary symptoms but thereafter progressively meander, only becoming acute over an
eleven-week period, and long after the autoantibodies he deemed essential to the condition would
have first been produced in reaction to the flu vaccine. But he was wholly unsuccessful and
unpersuasive in his efforts. The form of GBS he described is not recognized in the medical
literature filed in this case.41 Literature like Wanschitz discussed purportedly longer timeframes
for GBS only after a presentation sufficiently acute for a diagnosis, and was thus unhelpful in
establishing GBS’s course measured from the time of initial proposed insult (in this case,
vaccination). Dr. Steinman otherwise, and despite his immense credentials as an immunologist,
does not have a current, demonstrated expertise in studying or treating GBS sufficient to breathe
life into his theory. Instead, the theory he espoused seems the product of his admitted goal: to
“provide” a theory that would be useful to the Petitioner.

         Such asides at hearing also greatly undercut Dr. Steinman’s overall credibility as a
testifying expert. Although his familiarity with Vaccine Act claims (as a result of his frequent
participation as an expert in Program cases) may have provided him some layman’s insight into
the relevant law, it is wholly inappropriate for a scientific or medical expert to comment at hearing
on such legal subjects. He was not offered as an expert on Vaccine Act law – and even if he were,
it is the sole purview of the judicial officer presiding over a legal case (here, the special master) to
interpret and apply the law, subject to argument by counsel (and any subsequent appellate input).
See, e.g., El–Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1361 (Fed. Cir. 2004) (“it
is emphatically the province and duty of the judicial department to say what the law is”). I would
never permit a Program petitioner to offer a “legal expert” to comment on the proper application
of Althen or any other controlling precedent in the Vaccine Program. Dr. Steinman’s unsolicited
views on such matters were thus especially unwelcome and unhelpful.42

        All in all, the record and witness testimony does not support the conclusion that any of
Petitioner’s fall 2012 symptoms were GBS-related, or that she experienced any GBS-related onset
before late January 2013. I therefore find that her onset occurred no sooner than January 20-28,
2013 (or within eleven days prior to her hospital presentation). See Ex. 7 at 4, 7-8.

41
  To the extent this proposed GBS variant resembles CIPD, I note that Petitioner was never diagnosed with CIDP,
and Petitioner does not otherwise allege that her GBS diagnosis was inaccurate.
42
  I have criticized Dr. Steinman in other cases for testifying in this manner. See, e.g., Rolshoven v. Sec’y of Health &
Human Servs., No. 14-439V, 2018 WL 1124737 (Fed. Cl. Spec. Mstr. Jan. 11, 2018). If Dr. Steinman continues in the
future to comment on Vaccine Program legal standards in cases before me, he will see a reduction in expert fees
awarded, due to the wholly unhelpful and irrelevant nature of such testimony.
                                                          43
III.     Petitioner’s GBS Onset was Too Long After Her Receipt of the Flu Vaccine to Satisfy
         the Third Althen Prong43

        The most reliable medical literature offered in this case establishes that a reasonable
timeframe for onset of GBS after vaccine administration is no more than six to eight weeks. See,
e.g., Langmuir at 841; Schonberger at 105. This is echoed by the timeframe set for the Table
version of the claim (see 42 C.F.R. § 100.3 (2017)), which is grounded in scientific observation of
how the flu vaccine would result in harmful demyelination. Langmuir/Schonberger are both
routinely relied on by opining experts in the Program, as well as other special masters. See, e.g.,
Corder, 2011 WL 2469736, at *27-29. And both experts in this case tended to agree that the above-
mentioned timeframes are medically acceptable in the context of a flu/GBS injury. Accordingly,
and measuring from the October 31, 2012 vaccination, Petitioner’s GBS (if vaccine-caused) should
have at least manifested by no later than the end of December 2012 – not almost a month thereafter.

        Petitioner argues for a longer timeframe, but her contentions lack reliable support in
science or fact. Beyond Dr. Steinman’s say so, nothing was filed in this case that would credibly
establish the reliability of a three month post-vaccination timeframe. Ahmed involves a different,
central nervous system condition (narcolepsy) with a wholly different pathogenic mechanism, and
therefore the length of time it might take for an H1N1 flu vaccine to trigger that condition cannot
be applied credibly to an entirely different injury. Wanschitz does not address the question
presented herein – the expected timeframe from insult (in this case, vaccination) to onset – and
therefore the individual reliability of its specific findings cannot be expanded to mean that the
timeframe for GBS is potentially much longer than existing science suggests. Dr. Steinman’s
testimony on the topic also acknowledged that Wanschitz researchers were primarily focused on
measuring myelin destruction following acute onset (not the pre-acute stage). See Tr. at 282. And
Dr. Steinman’s own experience in treating GBS (which would presumably inform him of clinical


43
   As already noted, I do not include an extended discussion of the first Althen prong (which Petitioner effectively
satisfied). I also do not engage in an extended Althen prong two analysis, given my determination that the timeframe
for onset of Petitioner’s GBS was too remote from vaccination to be deemed medically reasonable. See, e.g., Hunt v.
Sec’y of Health & Human Servs., 123 Fed. Cl. 509, 524-25 (2015) (citing Veryzer v. Sec’y of Health & Human Servs.,
100 Fed. Cl. 344, 355-56, aff’d, 475 F. App’x 765 (Fed. Cir. 2012)). However, I note that the record does not support
the conclusion in this case that the flu vaccine “did cause” Petitioner’s GBS. Her symptoms did not reflect an ongoing
inflammatory process (sufficient to corroborate her contention that she was experiencing some kind of autoimmune
process), or the manner in which GBS most commonly would progress, and the medical record does not establish that
any contemporaneous treaters (not prompted by Petitioner’s views about a causal association) separately opined that
the October flu vaccine likely caused her January illness. The fact that she tested positive for the anti-GQ1B antibody
(which is unquestionably associated with the Miller-Fisher GBS variant with which she was diagnoses) also does not
help Petitioner, even if the flu vaccine can be associated with that antibody. Dr. Steinman did not persuasively establish
that a vaccine can create an antibody that thereupon takes months to instigate an acute illness like GBS, nor did he
demonstrate that the antibody would cause the kinds of secondary symptoms Mrs. Chinea alleges to have experienced
in November and December 2012 before her GBS became acute.
                                                           44
symptom presentation and common disease courses) was outmatched by Dr. Donofrio’s
demonstrated, treatment-derived understanding of the condition. Dr. Steinman’s personal
vouching for his timeframe theory did not imbue it with a strength it otherwise lacked.

        The proposed timeframe is also deficient factually. As already noted, Petitioner’s fatigue
and other nonspecific symptoms in the fall of 2012 were inconsistent with how GBS is understood
to manifest, and at best reflect symptoms that would follow – not precede – initial acute
presentation. Although the witnesses who testified may have credibly established that Petitioner
experienced these symptoms, none had any neurologic expertise, and therefore their observations
of Petitioner’s condition do not convert these symptoms into GBS onset. Mrs. Chinea’s medical
history from the October 31, 2012 vaccination to her January 31, 2013 ER visit does not describe
a GBS course (and indeed, the contemporaneous records from when she presented to the hospital
indicate that she seemed largely healthy until the week or so before – inconsistent with a vaccine-
caused injury where that vaccine was administered eleven or more weeks prior).

        At bottom, Petitioner has attempted to deem the actual chronology of her health history as
a medically acceptable timeframe. That history was characterized by long periods of mild
symptoms (never deemed significant enough by Petitioner to warrant a treatment visit) not directly
associated with GBS, and which occurred prior to the time she experienced sufficiently acute
symptoms to seek emergency treatment. See, e.g., Tr. at 232, 251-52, 283-84, 289-90. Ultimately,
Petitioner relies too heavily on the (long) temporal relationship between her vaccination and her
subsequent onset of GBS, a position clearly rejected by relevant case law. See, e.g., U.S. Steel
Group v. United States, 96 F.3d 1352, 1358 (Fed. Cir. 1996) (“[b]ut to claim that the temporal link
between these events proves that they are causally related is simply to repeat the ancient fallacy:
post hoc ergo propter hoc”); Fricano v. United States, 22 Cl. Ct. 76, 80 (1991) (“[P]ost hoc ergo
propter hoc . . . is regarded as neither good logic nor good law”); Doe/34 v. Sec'y of Health &
Human Servs., 2009 WL 1955140, at *10 (Fed. Cl. Spec. Mstr. Mar. 4, 2009); Pafford v. Sec'y of
Health and Human Servs., No. 01-0165V, 2004 WL 1717359, at *9 (Fed. Cl. Spec. Mstr. July 16,
2004), aff'd, 64 Fed. Cl. 19 (2005), aff'd, 451 F.3d 1352 (Fed. Cir. 2006). Petitioner has not
successfully demonstrated that a flu vaccine administered eleven to twelve weeks before she
experienced true clinical indicia of GBS could be related to, or causal of, that disease.


                                        CONCLUSION

        The evidentiary record does not support Petitioner’s contention that the flu vaccine she
received in October 2012 caused her GBS in the timeframe proffered, or that the symptoms she
experienced in November and December 2012 were manifestations of that GBS. Petitioner has not
established entitlement to a damages award, and therefore I must DISMISS her claim.
                                                45
        In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision.44


IT IS SO ORDERED.
                                                                         /s/ Brian H. Corcoran
                                                                         Brian H. Corcoran
                                                                         Special Master




44
   Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
                                                          46
