                 In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                               No. 14-119
                                          (Not to be Published)

*****************************
                            *
MICHAEL GRIESHOP,           *                                             Filed: June 5, 2015
                            *
                Petitioner, *
                            *                                             Decision on the Record; Insufficient
          v.                *                                             Proof of Causation; Six Month
                            *                                             Requirement
SECRETARY OF HEALTH AND     *
HUMAN SERVICES,             *
                            *
                Respondent. *
                            *
*****************************

Maximillian J. Muller, Muller Brazil, LLP, Philadelphia, PA, for Petitioner.

Jennifer Reynaud, U.S. Dep’t of Justice, Washington, DC, for Respondent.



    ORDER DENYING MOTION FOR DECISION ON RECORD DISMISSING CASE1

         On February 10, 2014, Michael Grieshop filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleges
that he suffered an injury to his left shoulder as a result of receiving the tetanus-diphtheria-



1
  Because this ruling contains a reasoned explanation for my action in this case, it will be posted on the United
States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, §
205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion in the posted ruling of certain kinds of
confidential information. To do so, Vaccine Rule 18(b) provides that 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 ruling will be
available to the public. Id.

2
  The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2006))
[hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to § 300aa of the Act.
acellular-pertussis (“TdaP”) vaccine on May 15, 2012, and that this alleged injury persisted for
more than six months.

        Based upon her review of the petition and supporting documents, Respondent requests
that I dismiss this case because Mr. Grieshop (in her reading of the evidence) cannot establish
that he suffered from an injury lasting for more than six months after administration of the
vaccine. Resp’t’s Rule 4(c) Report and Motion to Dismiss, filed May 30, 2014 (ECF No. 8) at 12
[Rule 4(c) Report]; see also § 11(c)(1)(D)(i). For the reasons outlined below, Respondent’s
motion is denied.


I.      Factual Background

        On May 15, 2012, Michael Grieshop (then 30 years old) received the TdaP vaccine in his
left arm from Travel Services, LLC in Dublin, Ohio in anticipation of an upcoming trip to Tahiti.
Pet’r’s Ex. 1 at 1. Immediately following administration of the vaccine, Petitioner reported
feeling “severe pain, redness, and swelling” at the injection site and in his left shoulder. Pet’r’s
Ex. 5 at 1 [Grieshop Affidavit]. Additionally, Petitioner alleges that within 48 hours of receiving
the vaccine, he felt weakness in his left shoulder and arm. Id.

        About a week later, Mr. Grieshop called Travel Services to inform them that he was
experiencing such symptoms, and was advised to consult his physician and complete a Vaccine
Adverse Event Reporting System report. Pet’r’s Ex. 1 at 1. During that call, Petitioner
specifically reported that he lifted weights a few days after his vaccination but was unable to do
left arm curls using the thirty pounds of weight that he normally lifted. Id. Thereafter, on May
23, 2012, Petitioner went to see Jeannine Hughes, MD at Westerville Family Physicians in
Westerville, Ohio. Pet’r’s Ex. 2 at 11. Mr. Grieshop reported to Dr. Hughes that he had been
experiencing arm weakness ever since he received the TdaP vaccine.3 Id. Although Dr. Hughes
was unable upon an initial examination to detect any strength difference between his right and
left arms, she encouraged him to scale back his workouts in order to give less stress to his left
side. Id.


3
  The medical records from this visit appear to indicate that Petitioner received the DTaP vaccination (Pet’r’s Ex. 2
at 11), although according to contemporaneous medical records from the date that the vaccination was administered,
Petitioner actually received the TdaP vaccination (Pet’r’s Ex. 1 at 1).

                                                         2
        Although Mr. Grieshop appears to have been generally healthy prior to vaccination, he
had sought care from a chiropractor regarding issues with his hip, neck, and back in the months
preceding receipt of the vaccination in question, and he continued those chiropractor visits after
receipt of the TdaP vaccine. During a visit to his chiropractor, Ryan M. Zullo, DC at
Amerihealth Chiropractic in Lewis Center, Ohio on May 24, 2012, Petitioner indicated that (in
addition to pain he had been experiencing before vaccination) he was experiencing weakness in
his left arm, which he felt was now only at 50 percent of its pre-vaccination strength. Pet’r’s Ex.
3 at 2-3, 13. Mr. Grieshop complained of similar symptoms during a subsequent chiropractic
visit on June 19, 2012. Id. at 3.

        In addition to chiropractic care, Petitioner saw other healthcare providers regarding the
symptoms that he reported experiencing in the months following his vaccination. Thus, on June
2, 2012, Petitioner was seen by Michael Cannone, DO at OrthoNeuro in Westerville, Ohio, at
which time he reported pain, feeling of instability, and weakness in his left arm (all of which
were exacerbated by heavy lifting). Pet’r’s Ex. 4 at 10. Upon physical examination, Dr. Cannone
observed that Mr. Grieshop displayed a “little bit of weakness with resisted abduction and
forward flexion.” Id.

        Dr. Cannone subsequently referred Mr. Grieshop to Martin T. Taylor, DO, PhD (a
neurologist in the same medical group as Dr. Cannone) for a consultation to evaluate Petitioner
for neurologic or neuromuscular injury. Id. Petitioner saw Dr. Taylor on June 18, 2012, and at
that time he reported that he had experienced mild soreness following receipt of vaccination and
“then within 2 days he noticed some definite weakness in the biceps, in the shoulder girdle, and
some weakness in the elbow but not distally.” Id. A physical examination performed during this
visit revealed “[o]nly minimal weakness,” which Dr. Taylor attributed to a possible “mild
brachioplexopathy [that] could have occurred related to an immune response.” Id. at 9.

        Mr. Grieshop returned to Dr. Taylor on August 16, 2012, for a follow-up visit regarding
his left arm weakness. Pet’r’s Ex. 4 at 4. The examination and other studies performed on
Petitioner at that time did not reveal any clear objective evidence of abnormality or neurologic
problem, even though Petitioner reported no significant improvement in his symptoms from his
prior visit. Id. at 5-6. Dr. Taylor therefore recommended that Mr. Grieshop pursue physical
therapy for strengthening exercises. Id. at 4.

                                                 3
        Nearly six months passed before Mr. Grieshop followed Dr. Taylor’s advice. On
February 6, 2013, Petitioner obtained an initial evaluation at the OrthoNeuro Center for Physical
Therapy. Pet’r’s Ex. 4 at 3. At this time, Mr. Grieshop reported to the physical therapist (not
specifically identified in the medical records) that he had been doing exercises recommended to
him by his chiropractor with minimal to mild improvements, but that he felt he was still not fully
functioning. Id. Upon physical examination, some weakness and other abnormalities in
Petitioner’s left arm were in fact noted (including decreased muscle control and stability with
resistance). Id. Based upon this physical examination (as well as Petitioner’s complaints), the
treater proposed that Mr. Grieshop undergo some kind of physical therapy. Id.

        On May 20, 2013, Mr. Grieshop returned to see Dr. Taylor for a follow-up appointment
regarding his ongoing left arm weakness. Pet’r’s Ex. 4 at 1. Petitioner indicated at that time that
although he had gone through physical therapy and was in the habit of performing some of the
exercises he had learned, he was still experiencing weakness in his left bicep and deltoid. Id.
Upon examination, however, Dr. Taylor found that Petitioner had “normal bulk and tone in the
upper extremities,” and that he did “not really [have] any significant weakness with the exception
of minimal giving way on left abduction.” Id. (emphasis added).

        Petitioner maintains that he has continued to experience weakness, pain, and cramping in
his left arm and shoulder on a daily basis since the spring of 2013, even though there is nothing
in the medical record to corroborate such assertions.4 Grieshop Affidavit at ¶16. His affidavit
avers that, at a minimum, he experienced the same symptoms between his August 2012 visit with
Dr. Taylor and his February 2013 physical therapy evaluation. Id. at ¶¶ 10-13. Mr. Grieshop’s
wife, Stephanie, has also offered an affidavit that similarly maintains that he continued to
experience his symptoms in this time period. See generally Pet’r’s Ex. 6.

II.     Procedural History

        As noted above, Mr. Grieshop filed this petition on February 10, 2014. ECF No. 1.
During a status conference on April 1, 2014, Petitioner asserted that all medical records relevant
to his claim had been filed (ECF No. 6), and filed a Statement of Completion the next day (ECF

4
  For instance, medical records from Mr. Grieshop’s visit to Westerville Family Physicians for a routine physical
examination on August 26, 2013, do not include any notations regarding pain, weakness, or other abnormalities in
his left arm and shoulder. Pet’r’s Ex. 2 at 8.

                                                       4
No. 7). On May 30, 2014, Respondent filed her Rule 4(c) report indicating that, based on her
analysis of the record, Mr. Grieshop’s claim did not merit compensation – in particular because
of his inability to satisfy the six-month requirement – and formally asking for dismissal of the
claim on that basis. Rule 4(c) Report at 2 and 12. Respondent specifically questioned the nine-
month period that had elapsed between Petitioner’s August 16, 2012, visit to Dr. Taylor and his
next visit to Dr. Taylor on May 20, 2013, observing that the only medical record from this period
of time was from Petitioner’s single visit to a physical therapist, and that the thrust of Mr.
Grieshop’s medical history after August 2012 suggests (despite his assertions to the contrary)
that the effects of his alleged vaccine injury had resolved by that time. Rule 4(c) Report at 10.

         On June 30, 2014, Mr. Grieshop opposed Respondent’s dismissal request, arguing that
the medical records in fact established that his symptoms had lasted more than six months. ECF
No. 9 at 5. During a status conference in this case on July 16, 2014, I indicated that I would
analyze Respondent’s motion to dismiss as a motion for summary judgment. ECF No. 14. Thus,
prior to ruling on the motion, I provided Petitioner with an opportunity to further support his
claim with evidence regarding (a) the fact of his injury, and (b) that his injury lasted more than
six months. ECF No. 14.

         In response to my request for additional evidence regarding whether the six month
requirement was satisfied, Petitioner submitted only the affidavit of Stephanie Grieshop, his
wife, which was filed on October 1, 2014. Pet’r’s Ex. 6 (ECF No. 11). Thereafter, I held a status
conference in this case on January 26, 2015, at which time I urged the parties to engage in
settlement negotiations. ECF No. 16. Such settlement negotiations were not successful (ECF
Nos. 17-19), and therefore it is now appropriate to rule on Respondent’s pending motion.

III.     Relevant Legal Standards

         Because (as I previously informed the parties) I am treating Respondent’s motion as one
for summary judgment,5 evaluation of its merits requires application of Rule 56 of the Rules of

5
  Respondent’s Rule 4(c) Report does not cite the analytical standard applicable to her dismissal request. I have
opted to treat this as a motion for summary judgment because in so moving, Respondent is pointing to the evidence
in the record to make her argument, and in effect is asserting that, based on the existing record, it is an undisputed
question of fact that Mr. Grieshop cannot meet the “six-month requirement” set forth in Section 11(c)(1)(D)(i) of the
Vaccine Act. It is therefore reasonable to apply the legal standards applicable to summary judgment – even though
the motion does not follow in precise form the requirements for such a motion under the Court of Federal Claims’s

                                                          5
the United States Court of Federal Claims (“RCFC”) (which is applied to Vaccine Program cases
in accordance with Vaccine Rule 8).

         Summary judgment is appropriate where there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. RCFC 56(c) (“[a] motion for
summary judgment should be granted if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”); see also Jay v. Sec’y of Health & Human
Servs., 998 F.2d 979, 982–83 (Fed. Cir. 1992) (motion for summary judgment should be treated
the same way in vaccine cases as it is in other Court of Federal Claims cases). For purposes of
summary judgment, there is no “genuine issue of material fact” when the evidence presented is
insufficient to permit a reasonable finder of fact to find in favor of the non-moving party (in this
case, Petitioner), and the moving party (in this case, Respondent) bears the burden of
demonstrating absence of all genuine issues of material fact. Jay, 998 F.2d at 982–83. When
ruling on a motion for summary judgment, the evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in favor of the non-moving party. Id.

         Special masters have on occasion addressed the appropriateness of summarily dismissing
petitions that fail to meet the Vaccine Act’s “six month requirement” as set forth in Section
11(c)(1)(D)(i), which states that a petitioner must establish that he “suffered the residual effects
or complications of such illness, disability, injury, or condition for more than 6 months after the
administration of the vaccine.” Dismissal under such circumstances is not appropriate if it
appears the parties reasonably contest the length of time that petitioner has suffered from the
effects of his alleged vaccine injury. See, e.g., Faup v. Sec'y of Health & Human Servs., No. 12-
87V, 2015 WL 443802, at *4 (Fed. Cl. Spec. Mstr. Jan. 13, 2015) (denying Respondent’s motion
for summary judgment in a case involving juvenile idiopathic arthritis; with regard to whether
the six month requirement was satisfied, “one can suffer from a disease without exhibiting any
clinical signs thereof”); Herren v. Sec'y of Health & Human Servs., No. 13-1000V, 2014 WL
3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (indicating that there was “a set of
circumstances which, if proven at hearing and connected to a medical or scientific theory of


rules – and in particular the requirement that a movant establish through record citation that a fact is undisputed. See
RCFC 56(c)(1)-(4).

                                                           6
causation could allow Petitioners to prevail on the merits,” and thus the petitioners had “clear[ed]
the relatively low hurdle presented by a motion to dismiss” where the individuals who was
allegedly injured was still under the medical care of a neurologist at the six-month point and
there were medical records from that period of time which continued to document some
symptoms of the alleged injury).

IV. Analysis

         The six month requirement is a threshold factor applicable to many Vaccine Program
petitioners.6 Cloer v. Sec’y Health & Human Servs., 654 F.3d 1322, 1335 (Fed. Cir. 2011) (en
banc) (six month requirement is a “petition content requirement intended to restrict eligibility to
the compensation program” and “a condition precedent to filing a petition for compensation.”). It
can be understood to be a “severity” requirement that flows directly from the policy goals of the
Vaccine Act, obligating a petitioner to demonstrate that his injury is significant enough
temporally to be actionable (assuming the other elements of causation can established). Black v.
Sec’y of Health and Human Servs., 33 Fed. Cl. 546, 551–52 (1995), aff'd, 93 F.3d 781 (Fed. Cir.
1996) (six month requirement is “rough and inexact” but has some logic to it, so a claimant “who
suffers an injury for four months and then recovers . . . is obviously not eligible for the
Program”).

         Here, Mr. Grieshop unquestionably received the TdaP vaccine on May 15, 2012, and he
therefore must show that his alleged injuries lasted more than six months thereafter from onset of
his symptoms. Hinnefeld v. Sec’y of Health & Human Servs., No. 11-328V, 2012 WL 1608839,
at *4-5 (Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing case where medical history revealed
that petitioner’s Guillain-Barré syndrome resolved less than two months after onset). The
treatment record, coupled with Mr. Grieshop’s petition and affidavit, suggests onset of his
alleged symptoms began within 48 hours of receipt of the TdaP vaccine – or by no later than
May 17, 2012 – so he logically must demonstrate that his left arm and shoulder injury was extant
as of November 17th of that same year.

6
  Section 11(c)(1)(D) sets forth three severity prerequisites applicable to different kinds of petitioners alleging non-
table injuries, depending on their circumstances. Thus, Section 11(c)(1)(D)(ii) applies to individuals who allegedly
died from administration of the vaccine in question, while Section 11(c)(1)(D)(iii) applies to petitioners who
suffered from injuries “which resulted in inpatient hospitalization and surgical intervention.” Plainly these
prerequisites are inapplicable to Mr. Grieshop’s claim.

                                                           7
       To satisfy the six month requirement, “[a] potential petitioner must do something more
than merely submit a petition and an affidavit parroting the words of the statute.” Faup, 2015
WL 443802, at *3 (quoting Black, 33 Fed. Cl. at 550). Rather, a petitioner is required to “submit
supporting documentation which reasonably demonstrates that the alleged injury or its sequelae
lasted more than six months . . . .” Id. (internal quotations omitted). Although a petitioner cannot
establish the length or ongoing nature of an injury merely through his self-assertion, the fact that
a petitioner has been discharged from medical care does not necessarily indicate that there are no
remaining or residual effects from his or her alleged injury. See, e.g., Herren, No. 13-1000V,
2014 WL 3889070, at *3 (finding that a petitioner suffered from residual symptoms that due to
their mild nature did not require medical care).

       Respondent’s motion to dismiss is largely based on the nine-month gap between Mr.
Grieshop’s visit to Dr. Taylor in August of 2012 and his next follow-up visit with Dr. Taylor in
May of 2013. Because Dr. Taylor appeared to opine that he could not find anything wrong with
Mr. Grieshop as early as three months after the TdaP vaccination – an opinion he echoed later –
Respondent reasons that, even assuming Petitioner was injured in some way, the injury subsided
well before six months had passed from the time Petitioner first reported left shoulder and arm
pain. Rule 4(c) Report at 9-11.

       Petitioner relies on a variety of evidence in opposing Respondent’s motion. The strongest
evidence he marshals are the medical records from Petitioner’s visit to the physical therapist in
February of 2013. Pet’r’s Ex. 4 at 3. At that time, the physical therapist noted that Petitioner had
some abnormalities and weakness, including decreased muscle control and decreased stability
with resistance. Id. These are contemporaneous findings the therapist made – not simply Mr.
Grieshop’s reporting of how he felt – and are therefore properly afforded some weight. And even
when Petitioner finally returned to Dr. Taylor in May of 2013, despite his overall assessment that
he could not corroborate Petitioner’s reports of continued arm and shoulder problems, he too
acknowledged the presence of some weakness, indicating that Petitioner had “minimal giving
way on left abduction.” Id. at 1. While such evidence is not especially strong proof (and will
ultimately be weighed against other record evidence that suggests both that Mr. Grieshop’s
treaters did not conclude he had been injured as he alleges), I must credit its truthfulness for



                                                   8
purposes of evaluating Respondent’s motion, and it supports Mr. Grieshop’s allegations
regarding the length of time his symptoms lasted.

        The affidavits submitted by Mr. and Mrs. Grieshop offer some corroboration of his claim
that he continued to experience symptoms related to his alleged injury more than six months
post-vaccination, and also attempt to explain why he did not seek additional medical treatment
during the August 2012 – February 2013 gap. See generally Pet’r’s Exs. 5 and 6. Such evidence
is of course inherently less probative than the contemporaneous medical records, and would be
by itself insufficient to create a triable issue of fact. Lamell v. Sec'y of Dep't of Health & Human
Servs., No. 90-3607V, 1991 WL 161079, at *3 (Fed. Cl. Spec. Mstr. Aug. 5, 1991) (summary
judgment was appropriate in a case where the “only evidence of an adverse reaction within the
statutory time frame is the affidavits of the parents describing symptoms, which, even considered
in light most favorable to petitioners, are inadequate to establish a Table injury.”). But these
affidavits do help flesh out Petitioner’s allegation about the temporal length of his symptoms.7

        Based on all of the above, I find that Respondent has not demonstrated that it is
undisputed that Mr. Grieshop’s alleged left arm and shoulder injuries did not persist more than
six months from mid-May of 2012 until November of that year. Whether or not Petitioner can
ultimately prove his case, factually there is record support for the alleged injury lasting at least
six months, and therefore I cannot grant summary judgment on that narrow basis. To be sure,
Respondent has highlighted significant weaknesses in Petitioner’s case. And even if Mr.
Grieshop demonstrates causation, it does not appear at the present time that he will be entitled to
significant damages, given the evidence suggesting that his injuries were mild at best and/or have
resolved since the time of vaccination. But close calls are to be decided in a petitioner’s favor in
Vaccine Program cases, and I find here there is just enough evidence in the record to make
dismissal inappropriate at this time.




7
  For example, Mrs. Grieshop’s affidavit explains that Mr. Grieshop did not seek medical care in late 2012 and early
2013 because he was attempting to live with the arm and shoulder weakness, and was otherwise performing
exercises at home to strengthen his shoulder. Pet’r’s Ex. 6 at ¶ 7. Such statements are corroborated by notations in
Petitioner’s medical records which reveal that he contemporaneously informed treaters that he was attempting to
manage his symptoms on his own. See Pet’r’s Ex. 4 at 1 and 3.

                                                         9
                                          CONCLUSION

       For the reasons stated above, I hereby DENY Respondent’s motion. The parties shall
contact chambers to schedule a status conference in this matter, at which time a deadline for any
expert report(s) to be filed by Petitioner will be established.

IT IS SO ORDERED.


                                               /s/Brian H. Corcoran
                                               Brian H. Corcoran
                                               Special Master




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