     In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                         Filed: January 17, 2018

* * * * * * * * * * * * * * * * * * *
JUANA OLGA DURAND as personal         *
representative of the Estate of Jorge *                                 PUBLISHED
Antonio Durand,                       *
                                      *                                 No. 15-1153V
                       Petitioner,    *
v.                                    *                                 Special Master Gowen
                                      *
SECRETARY OF HEALTH                   *                                 Influenza (“Flu”) Vaccine;
AND HUMAN SERVICES,                   *                                 Guillain-Barré Syndrome (“GBS”);
                                      *                                 Ruling on Onset.
                       Respondent.    *
* * * * * * * * * * * * * * * * * * *

Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, D.C., for respondent.

                                            RULING ON ONSET1

        On October 8, 2015, Juana Olga Durand (“petitioner”), as personal representative of the
estate of her husband Jorge Antonio Durand, filed a petition under the National Vaccine Injury
Compensation Program (the “Vaccine Act” or the “Vaccine Program”).2 Petitioner alleges that
Mr. Durand received an influenza (“flu”) vaccine on September 10, 2013, which actually caused
Mr. Durand’s development of Guillain-Barré Syndrome (“GBS”).

        There are no contemporaneous records of medical treatment between the vaccination on
September 10, 2013, and Mr. Durand’s presentation to the emergency room at Wellington
Regional Medical Center (“WRMC”) on January 5, 2013. The hospital records contain varying
histories of his condition: several obtained from Mr. Durand before he was intubated on January
6, 2013; and several that were subsequently obtained from his wife and his daughter. On
1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this ruling contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the ruling is
posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the ruling will
be posted on the court’s website without any changes. Id.
2
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2012).
All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.


                                                          1
respondent’s motion, a hearing to determine onset of Mr. Durand’s symptoms was held on
November 2, 2017, and December 5, 2017. Transcript (“Tr.”) (ECF Nos. 55, 61). At the
conclusion of the hearing, I ruled that Mr. Durand began experiencing weakness in his lower
extremities on or around October 20, 2013. Tr. 178. This order memorializes my bench ruling.3

    I.       Legal Standards Regarding Fact Finding

         The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records, which are required to be filed with the petition.
§11(c)(2). The Federal Circuit has made clear that medical records “warrant consideration as
trustworthy evidence.” Cucuras, 993 F.2d at 1528. 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.

       Accordingly, where medical records are clear, consistent, and complete, 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). However, this rule does not always
apply. In Lowrie, the special master wrote that “written records which are, themselves,
inconsistent, should be accorded less deference than those which are internally consistent.”
Lowrie, at *19.

        The Court of Federal Claims has recognized that “medical records may be incomplete or
inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998). The
Court later outlined four possible explanations for inconsistencies between contemporaneously
created medical records and later testimony: (1) a person’s failure to recount to the medical
professional everything that happened during the relevant time period; (2) the medical
professional’s failure to document everything reported to her or him; (3) a person’s faulty
recollection of the events when presenting testimony; or (4) a person’s purposeful recounting of
symptoms that did not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184,
203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014).

        The Court has also said that medical records may be outweighed by testimony that is
given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. Cl. at 391
(citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed.
Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering such testimony must
also be determined. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir.
2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

        The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La Londe, 110
Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of Health & Human
Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the special master’s discretion

3
 Pursuant to Section 300aa–13(a)(1), in order to reach my decision, I have considered the entire record including all
of the medical records, statements, expert reports, and medical literature submitted by the parties. This decision
discusses the elements of the record I found most relevant to the outcome.

                                                          2
to determine whether to afford greater weight to medical records or to other evidence, such as
oral testimony surrounding the events in question that was given at a later date, provided that
such determination is rational).

    II.      Summary and Discussion of Evidence Submitted

      I have reviewed and considered all of the medical records filed. This includes the
medical records predating the vaccine administration, as they provide reliable evidence of Mr.
Durand’s preexisting conditions and how often he sought medical care.

             A. Medical Records Predating the Flu Vaccine on September 10, 2013

        Mr. Durand had a history of diabetes, hypertension, and cataracts. On January 30, 2011,
he presented to the Wellington Regional Medical Center (“WRMC”) emergency room and was
discharged with a diagnosis of Bell’s Palsy. Pet. Ex. 4 at 2-3. At a follow-up appointment, his
primary care provider recorded that Mr. Durand had a history of Bell’s Palsy approximately
twelve years ago (in 1999). His current complaints were of numbness and difficulty closing the
eye on the left side of his face. He was recorded to have no headache and “no numbness,
tingling, or weakness of the extremities.” Pet. Ex. 5 at 18.

       On June 14, 2011, Mr. Durand returned to the primary care provider, complaining of
numbness and blurry vision on the right side of the face. He was sent directly to a neurologist
and also referred to an ophthalmologist. He was also “advised to go directly to the emergency
room for CT head, [but he] refused.” Pet. Ex. 5 at 12-13.

       Mr. Durand had endoscopies in October 2011 and in December 2011. Pet. Ex. 4. He
went to his primary care provider for chest congestion on February 18, 2012 and for a kidney
stone on April 16, 2012. Pet. Ex. 5011.

         On January 12, 2013, Ms. Omarcia Arcia recorded that she gave Mr. Durand a facial;
electrostimulation on his left side; and a full body massage. Pet. Ex. 16 at 1.4 On June 5, 2013,
Mr. Durand went to an ophthalmologist complaining of a one-week history of “black spots” in
his left eye. Pet. Ex. 2 at 18. Scans of his retinal and optical nerves were taken. Id. at 19-24.
On June 12, 2013, Mr. Durand returned to the ophthalmologist. Pet. Ex. 2 at 25-28.

        On June 20, 2013, Mr. Durand had a follow-up appointment for hypertension with an
internal medicine and cardiology specialist. He was told to follow up in six months. Pet. Ex. 17
at 7-10. Mr. Durand had an endoscopy on June 28, 2013. Pet. Ex. 4 at 7-16; Pet. Ex. 18. On
July 27, 2013, Ms. Omarcia Arcia recorded that she gave Mr. Durand a facial. Pet. Ex. 16 at 2.

       On August 15, 2013, the ophthalmologist recorded Mr. Durand’s complaints that “two
days ago, when he woke up, had horizontal diplopia for dv(distance vision) only. Gets better if
he covers either eye… patient feels od (right eye) is the problem.” The ophthalmologist’s
assessment and plan are essentially illegible. Pet. Ex. 2 at 29.

4
 As detailed below, Ms. Arcia testified that she holds two licenses from the Florida College of Natural Health. She
used to operate a spa. She currently provides facials, massages, and other treatments out of her home. Tr. 135-36.

                                                         3
       On August 27, 2013, the ophthalmologist recorded Mr. Durand’s complaints of “double
VA [visual acuity] since Aug. 15, [patient] covered his (R) eye lense to drive since Saturday…
no double va when he covers one eye. Pt reports that before he got the double va he had like a
hard pain (R) side of face and his tongue got swollen.” The assessment was right sixth nerve
palsy and diabetes. The plan included controlling “bg/ bp/ cholesterol.” They discussed
observation, prism, patching one eye, and if there was no improvement after 6 months, to
consider surgery. Pet. Ex. 2 at 30.

        On September 10, 2013, the internal medicine and cardiology specialist saw Mr. Durand
for a follow-up of headaches and palpitations. Pet. Ex. 17 at 2-5. The doctor also filled out a
form related to a workplace injury that took place in 2004. The form provides that Mr. Durand
had “no functional limitations and restrictions.” Pet. Ex. 21. Also on September 10, 2013, Mr.
Durand received the flu vaccine at his pharmacy. Pet. Ex. 1.

             B. Medical Records Following Hospitalization on January 5, 2014

       There are no contemporaneous medical records between the vaccination on September
10, 2013, and his presentation at the WRMC emergency room on January 5, 2014.

        On January 5, 2014, Mr. Durand and his wife presented to the WRMC emergency room.
A triage nurse and several doctors recorded that Mr. Durand had a one-day history of numbness
and tingling in his legs and/ or arms. Pet. Ex. 7 at 264, 267, 285. Mr. Durand’s condition
worsened. He collapsed in the hospital. Within a day of his admission on January 5, 2014, Mr.
Durand developed respiratory failure, shortness of breath, and difficulty clearing his secretions.
Pet. Ex. 7 at 191. He was intubated until he received a tracheotomy on January 15, 2014. Pet.
Ex. 7 at 181. Thus, WRMC records dating from January 6 forward have histories that are either
borrowed from the initial records or were taken from his wife and/ or his adult daughter.

        A January 6, 2014 record provides that Mr. Durand had a history of diplopia. It also
provides that Mr. Durand had been complaining to his family of right facial weakness and
numbness “since last Wednesday,” when they were in Puerto Rico. Pet. Ex. 7 at 193.5 Another
January 6, 2014, record provides that the “family notes he has had recurrence of numbness and
facial droop.” Pet. Ex. 7 at 680-81.

       A January 12, 2014 record provides the wife’s account that Mr. Durand had “developed
diplopia a few weeks ago and then has had some progressive numbness and tingling and then
developed weakness.” Pet. Ex. 7 at 189. Another January 12, 2014, record provides that
“around September,” Mr. Durand started developing double vision, for which he was seeing an
eye doctor but no further history was known. Pet. Ex. 7 at 187.

       A January 15, 2014, record provides that Mr. Durand had diplopia “2 months prior to
admission.” Pet. Ex. 7 at 187.



5
 Another record provides that Mr. Durand “was in Peru and may have eaten foods that are not within his normal
diet.” Pet. Ex. 7 at 681. There is no indication that Mr. Durand traveled to Peru.

                                                       4
        A January 17, 2014, history provides that Mr. Durand had exhibited dysarthria for “many
months.” But the impression provides that he had a history of “recent travel to PR (ate different
foods, per daughter), then diplopia/ dysarthria.” Pet. Ex. 7 at 175-79.

        Following his hospitalization, Mr. Durand was diagnosed with GBS. His condition
worsened, he was transferred to different hospitals, and he passed away. The death certificate
attributes his death to GBS.

           C. Testimony Re: Intervening Time Period

        On November 2, 2017, I convened a fact hearing to obtain testimony from Mr. Durand’s
wife Ms. Juana Olga Durand (petitioner in this matter); his adult daughter Ms. Rosa Durand
Alcazar; his granddaughter Ms. Alicia Cuba; and his close friend and massage therapist Ms.
Omarcia Arcia. Several of the witnesses testified that Mr. Durand – a retired corrections officer
– had been working full time as a bailiff for Circuit Court Judge Jose Fernandez in Miami,
Florida until just before his hospitalization. The parties and I agreed that the Judge could be a
helpful witness as Mr. Durand had worked with him for years. At the conclusion of the
proceedings in Florida and in the presence of counsel, I contacted Judge Hernandez’s chambers
and inquired whether he would be willing to provide fact testimony in this case. Judge
Hernandez referred my inquiry to the court’s legal counsel, who indicated that a subpoena was
necessary. After I authorized petitioner’s counsel to serve the subpoena, the court’s legal
counsel approved Judge Hernandez’s testimony. Judge Hernandez testified via videoconference
on December 5, 2017. The following section summarizes the testimony from all fact witnesses.

       Several of the witnesses testified that prior to receiving the vaccine on September 10,
2013, Mr. Durand had certain medical issues including diabetes and Bell’s Palsy but was
generally healthy.

        Ms. Arcia testified that she first met Mr. Durand in 1976. After she was licensed by the
Florida College of Natural Health in 1998, she opened a day spa. She frequently provided Mr.
Durand treatments, including massage therapy and facials. Beginning in 2011, she treated his
Bell’s Palsy with electrostimulation treatments (either with a TENS unit or ultrasound). She also
suggested that Mr. Durand purchase a TENS unit and apply it to his own face. Tr. 135-36.

        Mr. Durand was involved in various activities including judo, various charity walks, and
was very active in the state Police Benevolent Association (“PBA”). He was a retired
corrections officer. He was working full time as a bailiff for Judge Hernandez in Miami, Florida.
Mr. Durand and his wife had an apartment in Miami during the week. On the weekends, they
went home to West Palm Beach, Florida. See, e.g., Tr. 6-9.

       In late June or early July 2013, Mr. Durand attended his granddaughter’s high school
graduation. His wife, his daughter, and his granddaughter all recalled that Mr. Durand was in
good health. He was able to climb the stairs of the auditorium, observe the graduation, and go to
dinner afterwards with the family. Tr. 53-54; 82; 141-42.




                                                5
      The witnesses did not offer any specific recollections of Mr. Durand’s condition in July
or August 2013. Mr. Durand received the flu vaccine on September 10, 2013, which was a
Tuesday.

        Mr. Durand’s daughter, Ms. Rosa Durand-Alcazar, who is also a police officer, recalled
that she received a phone call from Mr. Durand while he was driving from Miami (where he
worked) to West Palm Beach (where he resided on the weekends). She recalled that Mr. Durand
sounded short of breath. She asked him what was going on. He responded that he had aches and
pains. He then said he was losing vision in his right eye and he needed to hang up in order to
concentrate on the road. The daughter believed this call was the weekend after the vaccination,
which was the weekend of September 15, 2013. Tr. 76-77; 102-04.

        I do not question the sincerity of Ms. Alcazar’s memory. However, her placement of
these symptoms and this call in September 2013 appears to conflict with the medical records.
On August 15, 2013, Mr. Durand reported a two-day history of diplopia to his ophthalmologist.
Pet. Ex. 2 at 29. On August 27, 2013, the ophthalmologist recorded that Mr. Durand complained
of “double va [visual acuity] since Aug. 15” and that he “covered his (R) eye lense to drive since
Saturday… no double va when he covers one eye.” Pet Ex. 2 at 30.

        I asked Ms. Alcazar about how her recollections mirrored the August 2013 records.
However, she maintained that she remembered Mr. Durand experiencing double vision while
driving the weekend after the flu vaccine in September 2013. She suggested that Mr. Durand
may have pulled off the road and gone to urgent care or somewhere closer than his regular
ophthalmologist. Tr. 87-94. Following the fact hearing, I ordered petitioner’s counsel to locate
and file any outstanding records. Petitioner’s counsel contacted Mr. Durand’s insurance
provider, but they were not billed for any ophthalmology or other medical care during this time
period. Tr. 175.

        I can accept that Ms. Alcazar has drawn an association between the phone call from her
father and the flu vaccine. These events are close in time. However, her description of her
father experiencing blurry vision while driving is highly consistent with two contemporaneous
ophthalmology records placing those events in August. There is no suggestion that those records
are incorrectly dated. Moreover, there are no medical records or additional evidence
corroborating Ms. Alcazar’s memory that Mr. Durand experienced blurry vision while driving on
a separate occasion in September. Thus, I do not find her testimony is sufficiently “consistent,
clear, cogent, and compelling” to outweigh the contemporaneous medical records. Camery, 42
Fed. Cl. at 391 (internal citations omitted); see also Burns, 3 F.3d at 417 (holding that the special
master can make a rational determination to afford greater weight to contemporaneous medical
records than to other evidence, such as testimony given later in time).

        Ms. Alcazar also recalled that later in September 2013, she and Mr. Durand went to
breakfast and then observed the feast day of St. Michael, the patron saint of police officers, at St.
Patrick’s Catholic Church in Miami. This was a particularly memorable event both to Ms.
Alcazar and to Judge Hernandez as it was an annual Mass for police officers and Mr. Durand had
been very active in various police associations for many years. Uncharacteristically on this
occasion, Mr. Durand did not want to drive because he had tingling in his left hand so Ms.


                                                  6
Alcazar drove them both. She also had to help Mr. Durand out of the car because his hip was
hurting. Tr. 78-79, 102-105. I generally find this testimony to be credible, insofar as it is tied to
a specific event and does not conflict with other evidence submitted.

        Ms. Arcia recalled an appointment with Mr. Durand on September 20, 2013. That day in
her appointment book provides: “George facial treatment. Elect. stimulation. Tingling on lf
side of face. Weakness of muscles.” Pet. Ex. 16 at 3. She testified that Mr. Durand called in
advance for a facial. When he arrived, the left side of his face was drooping. Ms. Arcia believed
this resembled the Bell’s Palsy he’d had in the past. However, there were several differences:
she felt his face to be cold; his complexion was grey in color; he looked weak; and he
complained that his face was tingling; and he complained that his body ached. These symptoms
seemed new. Tr. 129-36. I find that her testimony, as to these facts was credible. It will be for
the experts to address whether these symptoms could have represented a recurrence of Bell’s
Palsy or whether given the differences she described whether they could have been early
symptoms of GBS.

        Mrs. Durand testified that after receiving the vaccine, Mr. Durand developed headaches,
weakness, and tingling in his legs and arms. He also began having problems talking, facial
weakness, and drooping on the left side of his face. He began putting his TENS unit on his face
to relieve the pain. His vision became blurry and he had to place strips on his glasses. Pet. Ex.
12 at 1; Tr. 61. He initially asked Mrs. Durand to massage him, but by “the end of September,”
he didn’t want massages anymore because he was too tense. Tr. 63-64. “By the end of
October,” he started having sexual problems. His joints and calves started to experience a lot of
cramping. Pet. Ex. 12 at 1.

        Mrs. Durand stated that these events happened after Mr. Durand received the vaccine on
September 10, 2013, and that they occurred during the months of September and October. She
remembered the timing because every year during this time, “starting in the middle of
September” – she and Mr. Durand would begin preparing for his three children’s birthdays (in
late October, mid-November, and late November), Thanksgiving, and Christmas. They would
buy gifts in advance and celebrate with their children on each occasion. Tr. 34. But in fall 2013,
Mr. Durand could not follow their regular routine. He couldn’t walk because his legs were tense,
tingling, and painful. He also had headaches. Tr. 10. Mrs. Durand couldn’t remember any
details about the first daughter’s birthday in late October. She did recall that for the second
daughter’s birthday in early November, they did not buy any gifts and they did not go out to a
restaurant. Mr. Durand had a terrible, constant headache the whole day. The daughter, Ms.
Alcazar, just visited Mr. Durand at his home on her birthday. Tr. 35-36, 68; see also Tr. 80-81,
102-05 (that daughter’s testimony).

        Mrs. Durand recalled that throughout November and December, Mr. Durand had
increased difficulty walking up and down stairs; more severe headaches; and increased pain,
tingling, and numbness. Pet. Ex. 12 at 1. She and Mr. Durand did not leave the house on
Thanksgiving or on Christmas Eve. Tr. 43-45; see also Tr. 110 (daughter’s testimony that on
Christmas Day, Mr. Durand came to her house only briefly, and complained about his pain).




                                                  7
        Mr. Durand and his wife traveled from Florida to Puerto Rico December 26, 2013 to
January 3, 2014. Pet. Ex. 12 at 1. Mrs. Durand testified that Mr. Durand did not want to go, but
he felt obligated because it was a celebration for his brother’s birthday and retirement. Tr. 42-
43. According to Mrs. Durand, Mr. Durand was in constant pain and fatigue during the trip. Pet.
Ex. 12 at 1-2; Tr. 43-44. When they returned on January 3, 2014, Mr. Durand had a high fever
with increased weakness in both arms. He had lost his appetite. On January 4, 2014, he still had
a high fever with body aches and numbness in both arms and legs. Pet. Ex. 12 at 1-2. He
thought it might be symptoms of a cold or a flu. Tr. 46. He mentioned that if the symptoms
continued on Sunday, he was going to the hospital. He took over the counter medications like
Tylenol and Aleve but they did not help his pain. Pet. Ex. 12 at 2. On January 5, 2014, when
Mr. Durand woke up, he was in such pain that he and Mrs. Durand decided to go to the hospital.
That day, he was admitted and placed in the intensive care unit. Pet. Ex. 12 at 2. The following
day, he was intubated.

        Mrs. Durand stated several times that Mr. Durand did not seek medical attention for
every issue he experienced. Neither did he complain to others. He was reserved and private.
Pet. Ex. 12 at 1; Tr. 13, 27. But if he did go to any doctors between receiving the vaccine on
September 10, 2013, and being hospitalized on January 5, 2014, he did not tell her about it. Tr.
28.

       Mrs. Durand also stated that Mr. Durand’s presentation to the hospital and his rapid
decline were sudden and stressful. Within a day, he was unable to speak. She tried to
communicate with the various doctors who saw him. She tried to explain that he had diabetes
and other preexisting issues, but that this was worse. This was difficult for her. Tr. 65.

        I found Mrs. Durand to be fairly credible. While recognizing that she is the petitioner
bringing this claim and has a vested interest, she did her best to focus on the time in question and
relate her memories to specific events. She stated that Mr. Durand began experiencing problems
in September or in October. However, she was not particularly specific. She could not
remember any details prior to the first child’s birthday being at the end of October. I find it most
plausible that these problems began at some point in the middle or towards the end of October,
close in time to the birthdays and the holidays.

        Mrs. Durand’s testimony regarding Mr. Durand’s hospitalization is also fairly
compelling. The records reflect that Mr. Durand contributed to his history for the initial medical
records, but his condition rapidly worsened and he was intubated by the end of the first day. I
am persuaded that it was likely difficult for Mr. Durand and his wife (and later, his daughter) to
fully explain his history to the various doctors. This is informed by my review of the facts laid
out in the medical records, as well as my observations of Mrs. Durand’s testimony.

       I was most persuaded by the testimony from Judge Hernandez. He testified that Mr.
Durand became his bailiff in January 2007. In this role, Mr. Durand prepared the judge’s
calendar, walked him in and out of court, maintained security, escorted participants in and out of
the courtroom, and was essentially the judge’s right hand. Tr. 155. It was apparent that Mr.
Durand was more than Judge Hernandez’s bailiff, but had become a close friend over these
years. They usually attended the St. Michael’s Day Mass together each year and they had lunch


                                                 8
together on most work days. Judge Hernandez said that he finds it difficult to return to the
restaurant where he regularly went with Mr. Durand.

       Judge Hernandez recalled that in approximately February 2013, he (assisted by Mr.
Durand) was assigned to a three-year term doing “back up” at the court. This entailed “run[ning]
around” and covering two to three courtrooms in different parts of the building each day. The
judge said this was “hectic.” Tr. 160-61.

        The Judge testified that Mr. Durand preferred to take the stairs rather than the elevator
because the stairs were less open to the public, safer, and quicker. That is how they would travel
to the Judge’s own chambers on the seventh floor and the other courtrooms they covered. The
Judge was always surprised by Mr. Durand’s ability to climb the stairs better than he could
himself. Tr. 156-57, 160, 169. At some point, Mr. Durand began to complain that his legs felt
“wobbly” and “unstable.” Tr. 156. As a consequence, Judge Hernandez and Mr. Durand started
taking the stairs less and instead took the elevators and escalators. The Judge did not recall the
exact timing, other than it was during the “back up” term that began in February 2013 and “near
the end” of Mr. Durand working with him. Tr. 164-65. Judge Hernandez also said the issues
began “several months” or “a few months” before Mr. Durand’s last day of employment, which
was a few days before Christmas 2013. Tr. 164-66, 172. Judge Hernandez did recall that they
began taking the private judge’s elevator because Mr. Durand could no longer take the stairs
during this same time period. Tr. 165-166.

        Judge Hernandez also recalled that that “shortly before the Christmas break,” Mr. Durand
brought in a man he wanted to replace him. Mr. Durand told Judge Hernandez, “I don’t think
I’m going to do this much longer or I can’t do this much longer.” Tr. 167. The Judge stated that
he did not know what Mr. Durand’s intentions were. But after Mr. Durand passed away, the
Judge hired the man he had brought in. Tr. 168.

         I found Judge Hernandez to be credible. He began working with Mr. Durand in 2007, at
least six years before the time period at issue here. He knew Mr. Durand and his habits very
well. They frequently took the stairs, at work at Mr. Durand’s preference. It is certainly credible
that Judge Hernandez would have a clear recollection of Mr. Durand not wanting to take the
stairs any longer when this was a regular part of their daily routine.

       While the Judge was testifying about events several years prior, he gave his best
estimates and admitted what he did not recall. Additionally, he did not hear any other witnesses’
testimony, he did not prepare an affidavit, he only testified upon receiving a subpoena to do so.

         I find that the Judge’s testimony and Mrs. Durand’s testimony both support that Mr.
Durand began experiencing fatigue and sensory issues in his lower extremities approximately
two months before Mr. Durand left for the Christmas break, in the middle to latter part of
October 2013, placed approximately at October 20, 2013. It is possible that some of his
symptoms may have begun in September, as referenced by Mrs. Durand and as Ms. Alcazar
testified about the St. Michael’s Day Mass.




                                                 9
   III.      Conclusion

        I have carefully reviewed the record. Consistent with the foregoing, I find that the record
does not support that Mr. Durand experienced double vision a few days after the vaccination on
September 10, 2013. I find that Mr. Durand developed facial droop, numbness and tingling in
later September 2013. While these symptoms bear some resemblance to his earlier episodes of
Bell’s Palsy, the experts will have to opine whether they could have been early symptoms of his
GBS. I further find that Mr. Durand began experiencing fatigue as well as weakness in his legs
in the middle to latter part of October, on or around October 20, 2013. This date represents
approximately two months before Mr. Durand’s last day working with Judge Hernandez before
the Christmas break.

          The following is ORDERED:

   1) Each party shall provide a copy of this fact ruling to any expert witness retained in the
      case. Each expert must rely on the facts as I have found them in this ruling. No expert
      shall rely on the daughter’s testimony providing that Mr. Durand experienced blurry
      vision within a week of the flu vaccine, or any medical records that repeat that account.

   2) Petitioner shall file an expert report within 60 days, by Monday, March 19, 2018.

   3) Respondent shall file a responsive expert report and his Rule 4(c) report within 60 days
      thereafter.

          IT IS SO ORDERED.

                                                             s/Thomas L. Gowen
                                                             Thomas L. Gowen
                                                             Special Master




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