In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: August 31, 2022

* * * * * * * * * * * * *

RUBY KATHERINE GORDON, *

Parent and natural guardian of * PUBLISHED

C.C., a minor, *

*

Petitioner, * No. 18-431V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Influenza (“flu”) vaccine;

AND HUMAN SERVICES, * Acute Disseminated

* Encephalomyelitis (“ADEM”);

Respondent. * Motion to Dismiss. 

* * * * * * * * * * * * *

Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for petitioner. 

Camille Collett, U.S. Department of Justice, Washington, D.C., for respondent. 

DISMISSAL DECISION1

On March 23, 2018, Ruby Katherine Gordon as parent and natural guardian of C.C., a 

minor, (“petitioner”) filed a petition for compensation under the National Vaccine Injury 

Compensation Program.2 Petitioner alleges that her child, C.C. suffered from Acute 

Disseminated Encephalomyelitis (“ADEM”) as a result of receiving an influenza (“flu”) 

vaccination on October 30, 2015. Petition (ECF No. 1).

After a review of the record as a whole, including expert reports, medical records, and 

affidavits, and for the reasons set forth below, I find by preponderant evidence that the evidence 

1

In accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012), because this opinion contains a 

reasoned explanation for the action in this case, this opinion will be posted on the website of the United States 

Court of Federal Claims. This meansthe opinion will be available to anyone with access to the internet. As 

provided by 42 U.S.C. § 300aa-12(d)(4)B), however, the parties may object to the published Decision’s inclusion of 

certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has 14 days within 

which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or 

financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the 

disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). If neither 

party files a motion for redaction within 14 days, the entire opinion will be posted on the website and available 

to the public in its current form. 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) 

(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of 

the Act.

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 1 of 23
2

in this case demonstrates that C.C.’s condition began prior to receipt of the vaccination and thus 

was not caused by the vaccination.

I. Procedural History

On March 23, 2018, petitioner filed a petition and medical records alleging that her son, 

C.C., sustained ADEM caused by the flu vaccine administered to him on October 30, 2015. 

Petition at Preamble. On July 25, 2018, respondent filed a status report requesting additional 

medical records and stating his intention to continue to defend this case. Respondent’s (“Resp.”) 

Status Report (“Rept.”) (ECF No. 9). On July 26, 2018, the court ordered petitioner to file the 

records identified in respondent’s status report. (ECF No. 10). Petitioner filed the medical 

records between September 10, 2018, to February 19, 2019. (ECF Nos. 11, 16, 21).

On February 20, 2019, I directed respondent to file a status report outlining any 

additional records that were needed, and to summarize his opposition to informal resolution. 

(ECF No. 23). On April 3, 2019, respondent submitted a status report indicating that one medical 

record was missing and stating his intention to defend the case. (ECF No. 24). Respondent 

outlined that while petitioner alleges that C.C. suffered from ADEM, his headaches preceded the 

vaccination at issue, C.C. had not been diagnosed with ADEM, and C.C. had been diagnosed 

with attention deficit hyperactivity disorder (“ADHD”) before the vaccination. Id. Respondent 

argues that the diagnosis of ADHD better explains the child’s condition than a diagnosis of 

ADEM. Resp. Motion (“Mot.”) to Dismiss at 7-8 (ECF No. 74). The petitioner disagrees.

Petitioner’s (“Pet.”) Response at 5-6 (ECF No. 76). 

On April 11, 2019, an initial status conference was held that outlined “several categories 

of records and issues” that petitioner needed to address. Scheduling Order (ECF No. 25). 

Specifically, I explained that one of the medical records indicated that C.C. had been in preschool until October 2015, but then petitioner’s affidavit stated that she picked C.C. up on 

November 9, 2015, from daycare. Id.; See also Pet. Affidavit (“Aff.”) ¶ 4; Pet. Exhibit (“Ex.”) 3 

at 7. I explained that petitioner should “make further efforts to obtain any records that do exist 

from the facility or from the petitioner,” regarding C.C.’s pre-school enrollment. Scheduling 

Order (ECF No. 25) at 2. Between May 2, 2019, and August 22, 2019, petitioner filed additional 

records. (ECF Nos. 26, 28, 37, 39, 41). I authorized petitioner to serve several subpoenas for 

records from the pre-school facility, Amazing Kids or its former owner, an individual named Ms. 

Stephanie Hopper. See Order, granting Motion to Issue Subpoenas. (ECF Nos. 34-35). On 

August 16, 2019, petitioner filed a Status Report stating she has been unable to obtain the 

requested daycare records from the permanently closed Amazing Kids Child Care Center. Pet. 

Status Rept. (ECF No. 38). 

On August 28, 2019, a status conference was held, and I issued a Scheduling Order which 

ordered petitioner to file an expert report in support of vaccine causation, any additional medical 

records and affidavits, and for respondent to file a responsive expert report and Rule 4(c) 

following petitioner’s expert report. (ECF No. 42). 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 2 of 23
3

On November 26, 2019, petitioner filed an expert report by Dr. Maria Fangchun Chen, a 

neurologist. 3 Pet. Ex. 30 (ECF No. 48). On March 20, 2020, respondent filed his Rule 4(c) 

report and an expert report by Dr. Peter M. Bingham, M.D.4 Resp. Report (“Rept.”); Resp. Ex. A

(ECF No. 50). A Rule 5 Status Conference was held on May 6, 2020. I explained that a review 

of the petitioner’s affidavits and the medical records raises a serious factual issue related to the 

onset of C.C.’s alleged vaccine injury. Rule 5 Order at 2 (ECF No. 52). I stated, “Within the 

Vaccine Program, there is a strong presumption that contemporaneous medical records are 

accurate,” and that the “contemporaneous medical records are not missing information, they 

contain information that indicates C.C.’s headaches began prior to the vaccination and that his 

behavioral problems did as well.5 These records represent a significant obstacle for petitioner’s 

claim.” Id. On June 9, 2020, petitioner filed a status report indicating her intention to file a 

supplemental expert report by Dr. Chen, and an affidavit from Stephanie Hopper, the owner of 

the daycare that C.C. attended. (ECF No. 57). On June 17, 2020, petitioner filed updated 

medical records. Pet. Exs. 32 & 33. (ECF No. 58).

On September 28, 2020, petitioner filed school records from Grace Academy, a 

supplemental Expert report by Dr. Chen, and medical literature. Pet. Exs. 34-36 (ECF No. 63). 

On December 23, 2020, petitioner filed a statement from Stephanie Hopper, former administrator 

of Amazing Kids Child Care Center. Pet. Ex. 37 (ECF No. 63). On February 25, 2021, 

respondent filed a status report indicating her intention to continue to defend the case and for the 

court to set a deadline for respondent to submit a motion to dismiss the case. (ECF No. 71). On 

July 12, 2021, respondent filed a motion to dismiss, asserting that C.C.’s symptoms began prior 

to the vaccination and thus could not have been caused by a response to the vaccine. Resp. Mot. 

3 Dr. Chen is a Neurologist and Assistant Professor of Clinical Neurology at Penn Presbyterian Medical Center in 

Philadelphia, Pennsylvania. Pet. Ex. 31 at 1. She is currently licensed to practice Neurology in Pennsylvania. Id. at 

2. Dr. Chen completed her undergraduate studies at Louisiana State University in May 1999. Id. Dr. Chen completed 

an MD/PhD at the University of Pennsylvania School of Medicine from August 1999 to May 2007. Id. at 1. Her 

postgraduate training included an internship in Medicine at the Hospital of the University of Pennsylvania from June 

2007 to July 2008, and a residency in Neurology from July 2008 to July 2011. Id. From July 2011 to July 2013 Dr. 

Chen was an attending physician in the Department of Neurology at Albert Einstein Healthcare Network in 

Philadelphia, Pennsylvania. Id. Dr. Chen has taught neurology in various settings from 2011 to present. Id. at 2. Dr. 

Chen has presented once, published in peer reviewed journals three times, and has submitted one abstract. Id.

4 Dr. Bingham is a Neurologist and Professor of Neurology & Pediatrics at the University of Vermont. Resp. Ex. B 

at 2. He is currently licensed to practice Neurology and Child Neurology in Vermont and New York. Id. Dr. 

Bingham completed his undergraduate degree in Biology from Harvard College in 1981 and completed medical 

school at the Columbia College of Physicians & Surgeons in 1987. Id. From June 1987 to June 1989 Dr. Bingham 

completed a residency in Pediatric Medicine at the Children’s Hospital of Philadelphia, and a Neurology Residency 

from July 1989 to June 1992. Id. From July 1993 to June 1994 Dr. Bingham was a Research Fellow at the Muscular 

Dystrophy Association in Philadelphia. Id. Dr. Bingham has served as an instructor of clinical neurology, and 

assistant professor of neurology & pediatrics at the University of Pennsylvania School of Medicine. Id. More 

recently he was an associate professor and professor of Neurology and Pediatrics at the University of Vermont from 

July 2000 to March 2013, and March 2013 to present. Id. Dr. Bingham has received over 10 research grants and has 

published extensively in peer reviewed journals. Id. at 4-7. Additionally, Dr. Bingham has contributed book 

chapters, and participated in symposium proceedings, and other presentations. Id. at 7-12. 

5 While I used the word presumption in the status conference to illustrate the problem confronting the petitioner, the 

order was written prior to the Federal Circuit clarifying in Kirby that there is no presumption that medical records 

are accurate and complete as to all the patient’s physical conditions. See Kirby v. Sec’y of Health & Human Servs., 

997 F.3d 1378, 1383 (Fed. Cir. 2021) (emphasis added). 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 3 of 23
4

to Dismiss. On September 27, 2021, petitioner filed her response to the motion to dismiss. Pet. 

Response (ECF No. 76). On October 12, 2021, respondent filed a reply to the response to the 

motion to dismiss. Resp. Reply (ECF No. 77). 

The matter is now ripe for decision.

II. Evidence Submitted

a. Petitioner’s Medical Records

C.C. was born on May 2, 2011, and received routine childhood vaccinations. Pet. Ex. 1 at 

1-3. The family history included a brother and maternal grandmother who suffered from 

“headaches/migraines.” Pet. Ex. 8 at 31. 

On March 28, 2014, petitioner brought C.C. to Dr. Williams, his primary care provider 

(“PCP”), with a complaint of a knot on his head that was getting bigger. Pet. Ex. 8 at 11. Dr. 

Williams diagnosed the knot as an epidermoid cyst 6 and recommended petitioner continue to 

monitor the lesion, but no treatment or surgery was recommended unless the lesion changed 

shape, size, or became painful. Id. at 15. On May 8, 2015, at a four-year well-child visit it was 

noted that C.C. “cannot dress self without help,” and “socializes well with peers, behavior 

problems (minor and improving)...tantrums (improving).” Pet. Ex. 8 at 44. 

C.C. received a flu vaccine at Shelby Children’s Clinic on October 30, 2015. Pet. Ex. 1 at 

2. There was no other record associated with that visit. On November 10, 2015, petitioner made 

a same day appointment for C.C. to see pediatrician, Dr. Christopher Cerjan. Pet. Ex. 2 at 24. 

The medical record reflects that C.C.’s chief complaint was “headaches x 1 month, cyst on back 

of head since 6 months of age.” Pet. Ex. 2 at 22. The History of Present Illness (“HPI”) provides: 

[C.C.] presents for headaches. He has had a cyst in his head for the past several years –

noted at 6 months age when he was being seen by CaroMont Family [Medicine]. He has 

not had any imaging – had palpable mobile nodule on his left parietal-occipital area. He 

has been having headaches for the past month. His pain happens at various times during 

the day with variable duration. His activity is less when his head hurts...

Id. 

Dr. Cerjan’s diagnosis was “Chronic Headache.” Pet. Ex. 2 at 25. His plan was: “Advised 

on sx [symptom] diary. Reassured about scalp adenopathy. Will do MRI for headaches.” Id. 

That same day, Dr. Cerjan ordered an MRI. The order form included a handwritten note of 

“Head x 1 mo 3 per wk.” Pet. Ex. 12 at 1.

6 An epidermoid cyst is a benign bump beneath the skin. They can appear anywhere on the skin, but are most 

common on the face, neck, and trunk. Epidermoid cysts are slow growing and often painless, so they rarely cause 

problems or need treatment. Epidermoid cysts, Mayo Clinic.org, https://www mayoclinic.org/diseasesconditions/epidermoid-cysts/symptoms-causes/syc-20352701 (last visited on Aug. 30, 2022). 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 4 of 23
5

On November 20, 2015, twenty-one days following the vaccination, C.C. underwent an 

MRI with and without contrast. Pet. Ex. 12 at 1-13. The MRI identified multiple white matter T2 

hyperintensities. Id. The radiologist’s report of the November 20, 2015, MRI read:

FINDINGS: There are multiple T2 hyperintensities noted in the bilateral subcortical 

white matter and deep white matter of the cerebral convexities with more substantial 

involvement of the bilateral frontal lobes though a smaller number are also seen in the 

bilateral parietal lobes. No significant involvement of the temporal or occipital lobes, 

brainstem or cerebellum, or the basal ganglia. The lesions sizes and shapes vary 

somewhat, they can be irregular, ovoid to rounded, and the largest measure up to 10 mm 

see left frontal lobe image 21 series 5. These are best seen on the FLAIR T2 imaging 

sequence. None of them appear to be associated with significant edema or mass effect. 

On T1 pre-contrast imaging there is very subtle decreased signal within the lesions, they 

do not enhance. There are periventricular lesions present, and it is possible there may be 

minimal involvement of the lateral portions of the corpus callosum, T2 sagittal or coronal 

sequence was not obtained. GRE sequence demonstrates no blooming affect to suggest 

old hemorrhage.

Pet. Ex. 15 at 5. 

The radiologist’s impression was as follows:

IMPRESSION: 1. T2 hyperintense abnormalities seen within the white matter of the 

bilateral cerebral convexities with appearance as discussed in detail above. The 

differential diagnosis is long, given the lack of enhancement or mass effect, consider the 

possibility this represents the residua of old TORCH infection7, a nonenhanced CT might 

be helpful at characterizing further as occasionally calcifications can be seen post 

infection. ADEM is a consideration, apparently the patient had a flu vaccine on 

10/30/2015. Multiple sclerosis is felt unlikely given the patient's age.

Id. at 5-6. 

C.C. had a consultation, with neurologist Herminia Ferreras, M.D. on December 16, 

2015. Pet. Ex. 3 at 7. The reason for the visit was “abnormal MRI.” Id. Under the “History of 

Present Illness,” Dr. Ferreras wrote, [C.C.] is here with his parents and maternal grandmother. 

He is a pleasant 4 y/o without significant PMH (prior medical history) and with normal 

development history...here for further evaluation of abnormal behavior taken in 11/2015.” Id. 

Dr. Ferreras also recorded, “The reason that led to brain MRI testing as mom indicated is – He 

was in Preschool this year and has to be pulled out by October 2015, because of behavioral 

problems. He has poor impulse control and started rubbing his head [in] the back. He also c/o of 

headaches, intermittent crossing his eyes. Mom also noticed that sometimes he is off 

7 A TORCH infection is a reference to the group of infections (toxoplasmosis, other agents, rubella, 

cytomegalovirus, herpes simplex) seen in neonates that occurs when organisms causing one of the infections cross 

the placental barrier; they all have similar symptoms in babies and may be clinically silent in mothers. Dorland’s 

Illustrated Medical Dictionary 33rd ed. (2020)(hereinafter Dorland’s) 1812, 1910. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 5 of 23
6

balance...he is very emotional.” Id. Dr. Ferreras reviewed the MRI and wrote that “Brain MRI 

showed white matter changes,” and she repeated the impression from the MRI in her notes. Id. 

Under impression and plan Dr. Ferreras noted “4 y/o with abnormal [white matter] in 

brain MRI can be finding in past infection, vs a demyelination condition from a progressive 

disease such as [metachromatic leukodystrophy], [adrenoleukodystrophy] or even lysosomal 

disease, neurocutaneous syndromes. Encouraging that he has not shown clear regression. He has 

headaches and personality changes which may or may not be related to his MRI findings.” Pet. 

Ex. 3 at 10. The radiologist had noted that these diagnoses were unlikely given the location of 

the white matter process but were not excluded. Pet. Ex. 15 at 6. Dr. Ferreras suggested a 

follow up MRI, CT of the brain, lab work, and referral to ophthalmology. Id. at 10. 

On December 28, 2015, C.C. underwent a head CT scan without contrast. Pet. Ex. 3 at 

12. The findings included, “vague multifocal low attenuation is seen in the periventricular 

subcortical white matter [in] both cerebral hemispheres similar to the findings of previous MRI.” 

Id. The impression included, “vaguely decreased attenuation seen in the periventricular 

subcortical white matter both cerebral hemispheres corresponding to the areas of abnormal signal 

seen on recent MRI. No calcification is observed within the areas of abnormality...pansinusitis 

with marked mucosal thickening and fluid left maxillary antrum, right ethmoid sinuses, and right 

sphenoid sinus.” Id. at 12-13 (emphasis added).

C.C. had a subsequent medical appointment with Charlotte Eye, Ear, Nose and Throat 

Associates, on January 29, 2016. Pet. Ex. 11 at 3-5. The record noted the history of brain lesion 

on MRI, headaches one to two times a week, eyes crossing or drifting, getting worse, and the 

condition was intermittent and has been going on for over four months. Id. at 3 (emphasis 

added). He was diagnosed with hypermetropia (far sightedness) and astigmatism neither of 

which required treatment. Id. at 5. 

On June 13, 2016, C.C. was evaluated at Shelby Children’s Clinic for a five-year wellchild visit. Pet. Ex. 2 at 11-14. Under history it was noted that C.C. “had significant behavior 

problems in pre-K with Vanderbilts + ADHD on teacher and parent forms. He will be starting K 

in the fall- possibly Grace. He has poor attention and is easily distracted. He is impulsive. He is 

emotional and does not do well with peers.” Id. at 12. The diagnosis included “healthy 5 y/o WM 

with ADHD.” Id. at 15. C.C.’s diagnosis was ADHD combined type, and the plan was to 

continue immunization per schedule and start him on a trial of Quillivant,8 a medication to treat 

ADHD. Id. 

A repeat brain MRI was performed on June 15, 2016. Pet. Ex. 6 at 156-157. The brain 

MRI findings included “stable nonspecific areas of abnormal white matter T2 hyperintensity 

most prominently involving the subcortical deep and periventricular white matter in the bilateral 

frontal lobes. There are no areas of abnormal contrast enhancement or restricted diffusion.” Pet. 

Ex. 6 at 156. The impression notes, “once again these most likely represent areas of remote 

nonspecific white matter injury. The sequela of chronic ischemic microvascular disease, 

vasculitis or demyelinating disease process are difficult to exclude.” Id. The medical records do 

8 Quillivant-a central nervous system stimulant used for the treatment of ADHD, Drugs.com, 

https://www.drugs.com/quillivant-xr html(last visited Aug. 26, 2022). 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 6 of 23
7

not demonstrate that C.C. was examined by Dr. Ferreras on this date. Id. According to 

petitioner’s health insurance statement, C.C. was assigned the diagnostic code of G37.9 which 

stands for “demyelinating disease of the central nervous system, Unspecified” and “R51” which 

stands for “headache.” Pet. Ex. 5 at 5-6. 

Subsequent medical care was relatively sparse. C.C. had pediatric well visit 

appointments, most of which were focused on his diagnosis of ADHD. See Pet. Ex. 4; Pet. Ex. 

23. On June 14, 2017, C.C. was seen by Dr. Cerjan for his six-year well child exam. Pet. Ex. 23 

at 14-18. The history noted that C.C. was doing well except he was “having a lot of anxiety,” 

was homeschooled using a virtual academy, and had a “major breakdown with even one [day] at 

Grace Christian.” Id. at 14. C.C.’s physical exam was normal, and diagnosis included ADHD, 

combined type. Id. at 17. On August 24, 2017, C.C. had an appointment for an “ADD recheck.” 

Pet. Ex. 4 at 2. At this appointment, it was noted that C.C. was taking Quillivant, and his mother 

was trying to adjust the dosage. Id. C.C.’s neurological exam noted that he was, “awake, alert, 

level of consciousness is appropriate for age, normal strength.” Id. He was also “cooperative,” 

and had “appropriate affect.” Id. C.C.’s diagnosis of ADHD continued. 

On February 26, 2018, C.C. was seen by neuropsychiatrist, Dr. C. Thomas Gualtieri. Pet. 

Ex. 19 at 10. Dr. Gualtieri wrote:

C.C. is 5-years old and is schooled at home. He has been healthy. No chronic medical 

problems. Immediately following a flu-shot, he started having headaches in 2014; they 

saw Dr. Perreiras [sic] and he had a comprehensive work up, including genetic testing, 

two MRIs and a neuropthalmologist. He has lesions in the frontal and occipital lobes that 

are believed to be related to the flu shot. He has been treated with neurofeedback for 

headache, impulsivity. His primary care provider diagnosed attention deficit disorder 

and they tried Quillivant, Focalin, and Adderall and they all make him aggressive, he 

wouldn’t sleep or eat.9

Id. 

Dr. Gualtieri wrote that, “The clinical picture is one of attention deficit/hyperactivity 

disorder, but atypical attention deficit/hyperactivity disorder in a very smart child. It may or may 

not be related to brain injury. He needs a formal neuropsychological test battery after he turns 

seven.” Id. Dr. Gualtieri recommended that C.C. try guanfacine. Id. at 11. 

C.C. had a follow-up appointment with Dr. Gualtieri on March 8, 2018. Pet. Ex. 19 at 8. 

C.C. was described as “a cheerful, healthy and bright child who is hyperactive and disinhibited in 

the clinic.” Id. His mother reported that he was doing well on 1 mg of Tenex10 and it helps him 

with his lessons in the morning. Id. However, by 2-3 pm, C.C.’s hyperactivity and 

9 This record contains multiple errors. The flu shot referenced was given in October 2015, not 2014. Further, no 

lesions in the occipital lobe of the brain were identified on the MRI. Additionally, C.C. was born on May 2, 2011, 

and thus was six and half at the time of this medical appointment. 

10 The generic name for Tenex is guanfacine hydrochloride. It is used to treat high blood pressure, but has an off 

label use for the treatment of ADHD. Healthline.com, https://www healthline.com/health/adhd/tenex-adhd(last 

visited on Aug. 26, 2022). 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 7 of 23
8

impulsiveness starts to come back. Id. Dr. Gualtieri also noted that C.C. did well on the tests 

and his exam was “quite normal but he is disinhibited and into everything.” Id. 

On June 7, 2018, C.C. had another appointment with Dr. Gualtieri. Pet. Ex. 19 at 6. At 

this appointment, under “Chief Complaint,” it read: [C.C.] is a 7-year-old white male who has 

brain injuries related to vaccination injection.” Id. Dr. Gualtieri noted that C.C. was on one mg 

of Tenex at night “and he is doing very well.” Id. It was recommended that C.C. have a followup appointment in three months. Id. Aside from the change in the “Chief Complaint” section, 

the medical record was almost identical to the previous two records from appointments with Dr. 

Gualtieri. 

On July 17, 2019, C.C. was seen by Dr. Cerjan for his 8-year well child exam. Pet. Ex. 27 

at 5-6. The history noted that C.C. was “making A/Bs in the 2nd grade – now in regular 

school...doing well with peers.” Id. at 5. His ADHD diagnosis was noted as stable with a refill of 

Guanfacine, a medication to treat ADHD. Id. 

No other medical records were filed. 

b. C.C.’s School Records 

C.C.’s educational history was mentioned throughout the medical records and Ms. 

Gordon’s two affidavits. Petitioner stated that C.C. had been attending Amazing Kids Childcare 

since he was seven months old. Pet. Ex. 29 at 6. In her affidavit, petitioner also stated that since

C.C.’s headaches which began in November 2015, he became more aggressive and “even pushed 

over a small bookcase at preschool.” She stated that C.C. was unenrolled in preschool at 

Amazing Kids in November 2015 and that the preschool closed in December 2015.

After considerable effort, petitioner was able to obtain a statement, dated November 12, 

2020, from Ms. Stephanie Hopper, the administrator of Amazing Kids Child Care Center that 

C.C. had attended. Pet. Ex. 37. Ms. Hopper stated that, “All records of enrollment, 

withdrawing, attendance, and discipline were all given to parents when the childcare center 

closed in December 2015.” Id. She also stated:

The months leading up to December, [C.C.] did withdraw from Amazing Kids Child Care 

Center and enrolled at Grace Christian Academy in Kings Mountain. From my memory, 

he left during the month of October 2015 to attend Grace Christian Academy. Based on 

my memory, [C.C.’s] mother moved him to Grace Christian Academy because of his 

behavior, mother wanted to see if they could help with his behavior issues. As far as his 

behavior goes, I do not recall exact dates due to no longer having any records from 

Amazing Kids Child Care Center, again these were all given to mother at time of closure 

in December 2015. From memory, his behavior would consist of anger outrages, 

throwing chairs, cussing. To my knowledge [C.C.] did not have any medical issues that 

would have impacted his attendance in October or November 2015. Records were kept 

of major behavioral issues along with verbal conversations with parents in reference to 

children’s behavior. All written records were given to parents at time of child-care center 

closure in 2015. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 8 of 23
9

Id. 

When C.C. was seen by Dr. Ferreras on December 16, 2015, the History of Present 

Illness stated, “....the reason that led to brain MRI testing as mom indicated is-He was in 

Preschool this year and had to be pulled out by October 2015, because of his behavioral 

problems....” Pet. Ex. 3 at 7. 

Petitioner filed other limited school records from 2016 and 2017. Pet. Ex. 34. 

These include “North Carolina Virtual Academy” records that have a start date of August 

22, 2016 and go through June 2017, representing C.C.’s kindergarten year. Id. at 9-14. 

He appears to have done quite well with high grades in most subjects that year. 

Additionally, petitioner filed an application to Grace Christian Academy which

was for the 2017-2018 school year. Id. at 2-6. However, no other records associated 

with Grace Christian Academy have been filed. 

On the February 26, 2018, Dr. Gualtieri, noted that C.C. “is 6-years-old and is 

schooled home.” Pet. Ex. 19 at 10. Further, under “Treatment Plan,” Dr. Gualtieri 

referenced how C.C. could only do 17 days of school this year (2017-2018). According 

to petitioner’s second affidavit, C.C. was able to start school for 2nd grade. Pet. Ex. 29. 

at ¶ 9. 

c. Petitioner’s Affidavits

Petitioner, mother of C.C. submitted two affidavits, the first was filed on March 23, 2018, 

and the second was submitted on October 28, 2019. Pet. Aff. (ECF No. 1); Pet. Ex. 29; (ECF 

No. 45). In her second affidavit, petitioner stated that “C.C. did not have headaches or 

behavioral problems prior to his vaccination on October 30, 2015.” Pet. Ex. 29 at ¶ 2. Prior to the 

vaccination, C.C. “had a small scalp cyst on his head,” and petitioner took him to the doctor for 

pain specific to that nodule. Id. at ¶ 3. She explained that “he did not have headaches but pain 

on that spot on the back of his head.” Id. Petitioner stated that C.C. received the influenza 

vaccine on October 30, 2015. Id. at ¶ 4. 

Petitioner stated that all was normal until on Monday, November 9, 2015, when she 

picked him up at Amazing Kids at approximately 5:00pm, “he began to experience severe 

headaches, and he complained of an actual all over headache.” Pet. Ex. 29 at ¶ 5. He had been

“having headaches for a day or two, but it wasn’t until November 9. 2015 that they became 

severe.” Pet. Aff. at ¶ at 4; Pet. 2nd Aff. 29 at ¶ 5. Petitioner stated, “his eyes were doing 

something weird and his behavior was off.” Pet. Ex. 29 at ¶ 5. The following day, November 10, 

2015, petitioner was able to get C.C. a same day appointment with his pediatrician and stated 

that she informed the pediatrician that he had been “having severe headaches since the day 

prior.” Pet. Aff. at ¶ 4; Pet. Ex. 29 at ¶ 5. 

Petitioner explained that Dr. Cerjan was a new doctor and was given a lot of information 

“in regard to the nodule on the back of his head and the specific pain to that area while 

presenting that day with an all over headache.” Pet. Ex. 29 at ¶ 6. The doctor ordered an MRI for 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 9 of 23
10

CC. Id. Petitioner stated that, “[C.C.’s] headaches continued and his behavior became 

aggressive. He even pushed over a small bookcase at preschool. He was so mean to one of the 

teachers she quit.” Id. Petitioner stated that she withdrew C.C. from the preschool in November 

2015, and the preschool closed in December 201[5]. Id. 

Petitioner explained that in the fall of 2016, C.C. attended “one day of Kindergarten and 

due to behavior could not go back.” Pet. Ex. 29 ¶ 7. She stated that “The day he went, he lasted 

an hour.” Id. In 2017 C.C. tried first grade and he made it 17 days because of his behavior, “he 

had become physically aggressive towards staff and property.” Id. at ¶ 8. Petitioner stated that 

“he was unable to attend school,” and as a result petitioner had to quit her “full time job with 

benefits to care for him and home school him.” Id. 

C.C. started second grade in 2018 and was in third grade in 2019. Pet. Ex. 29 at ¶ 9. 

Petitioner stated that C.C. “still struggles with emotional regulation and impulsivity, overall he is 

doing much better as he gets older. He has attended physical therapy and received 

neurofeedback.” Id. Petitioner explained that C.C.’s primary care doctor was unsuccessful at 

finding medication, so petitioner drove him four hours to a specialist, who was able to prescribe 

medication “to help with the emotional regulation and impulse control.” Id. 

d. Petitioner’s Expert Reports from Dr. Maria Fangchun Chen

Dr. Maria Fangchun Chen, a neurologist, filed two expert reports in this case. Pet. Ex. 30; 

Pet. Ex. 35 (ECF Nos. 48, 60). In her initial expert report Dr. Chen stated, “With my review of 

the images of the MRI brain dated 11/20/2015 and 06/15/2016 of C.C. and my review of the 27 

exhibits of medical records, it is my expert medical opinion that these 2 MRI brain studies and 

his medical records support a diagnosis of a central nervous system demyelinating condition 

such as ADEM.” Pet. Ex. 30 at 8. Dr. Chen observed that C.C.’s treating neurologist, Dr. 

Ferreras, assigned the diagnostic code of G37.9 to C.C.’s MRI dated 06/15/2016, which “stands 

for “Demyelinating Disease of the Central Nervous System, Unspecified.” Id. Dr. Chen stated, 

“Hence, I conclude that Dr. Herminia Ferreras also diagnosed C.C. with a demyelinating central 

nervous system disorder such as ADEM.” Id. 

Dr. Chen stated that, “The only preceding immune trigger to an immune-mediated 

condition such as ADEM is the flu vaccination on 10/30/2015,” and observed that C.C. had no 

symptoms of a cough, runny nose, fever or diarrhea that would support a preceding viral 

syndrome at his pediatric appointment on November 10, 2015. Id. In her second report, Dr. 

Chen stated that “the medical record documenting onset of symptoms noted by the medical 

providers as before the vaccination is problematic.” Pet. Ex. 35 at 1. Dr. Chen stated, “The 

source of the onset of the headaches as being 1 month appears to have originated by intake 

staff...who does not have any notations to her name to indicate medical training,” citing to C.C’s 

first appointment post-vaccination on November 10, 2015. Id. She asserts that this notation is 

then “pulled into” Dr. Cerjan’s notes for the same appointment and “Dr. Cerjan’s notes do not 

document any attempts to further delineate the onset of the headaches as to the exact date. This 

raises the possibility that [Dr. Cerjan] simply propagated any information provided at intake 

without probing for the accuracy of the onset.” Id. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 10 of 23
11

Dr. Chen also asserted that the medical record from C.C.’s appointment with Dr. Ferreras 

contains errors, likely due to the use of Dragon voice recognition software. Pet. Ex. 35 at 2. Dr. 

Chen noted that one error that likely arose from the use of the Dragon voice recognition software 

was that the word “behavior” was substituted for “MRI.” Id. The History of Present Illness 

provides, “[C.C.] is a pleasant 4 y/o without significant PMH and with normal development 

history is here for abnormal behavior taken in 11/2015.” Id. at 22; Pet. Ex. 3 at 7. Dr. Chen 

stated that “behavior” cannot be “taken on 11/2015” as an MRI can be, and thus the word 

“behavior” under History of Present Illness, was a mistake. Pet. Ex. 35 at 2. Dr. Chen asserts 

that it is plausible that the Dragon voice recognition technology “misrecognized the word 

‘October’ for ‘November’ in the note which stated that C.C. was pulled out of preschool by 

October 2015.” Id. Then Dr. Chen stated that she was raising the issue that “physician histories 

at times cannot be trusted to be completely accurate, particularly when they lack details on the 

sequence of events,” based on her personal experience of “witnessing my colleagues generate 

medical histories from referring physician’s clinical notes without re-verification of the 

information from the patient due to time constraints of busy clinical practices.” Id. at 2. 

Dr. Chen relied mostly on C.C.’s two brain MRI studies dated November 20, 2015, and 

June 15, 2016, to provide her opinion about C.C.’s diagnosis. Id. at 4. She highlighted the most 

obvious areas of abnormalities from a T2 FLAIR series and explained that “these T2-

hyperintense areas of white matter are typical of demyelination see[n] in ADEM. These T2 

FLAIR hyper-intensities remained stable in the subsequent MRI study on June 15, 2016.” Id. at 

4-6. Dr. Chen wrote, “the white matter changes that I have highlighted in both MRI brain studies 

are typical of the white matter lesions that are found in MRI brain scans of children with 

ADEM.” Id. at 7. Dr. Chen cited to an article by Krupp et al., which provides diagnostic criteria 

for ADEM and explains that the MRI should demonstrate “diffuse, poorly demarcated, large (>1-

2 cm) lesions involving predominantly the cerebral white matter.” Pet. Ex. 30 at 7; Pet. Ex. 

31B.

11 The Krupp paper also explains that for a diagnosis of ADEM there must be, “no new 

clinical or MRI findings that emerge three months or more after the onset [and] brain MRI is 

abnormal during the acute (three month) phase.” Id. The article stated that, “The clinical features 

subsumed under the term ADEM typically follow a monophasic disease course,” and that “The 

clinical symptoms and radiologic findings of ADEM can fluctuate in severity and evolve in the 

first three months following disease onset.” Id. at 3. Dr. Chen observed that C.C.’s second MRI, 

taken in June 2016, was stable, and that C.C.’s course followed a monophasic illness without 

further accumulation of changes on the second brain MRI. Pet. Ex. 30 at 7. 

Dr. Chen also stated that the “diagnosis of ADEM is typically achieved when symptoms 

of headache or altered mental status or behavior results in brain imaging with MRI. Pet. Ex. 30 

at 7. In her second report, she stated that “behavioral changes in pediatrics have been accepted 

as mild encephalopathy.” Pet. Ex. 35 at 2. She wrote, “Acceptable cognitive changes that 

constitute encephalopathy may range from “irritable” (mild) to “coma” (severe).” Id. Dr. Chen 

cited to an article by Fridinger & Alper, which reviewed medical charts of 25 children diagnosed 

11 Lauren B. Krupp, et. al., International Pediatric MS Study Group criteria for pediatric multiple sclerosis and 

immune mediated central nervous system demyelinating disorders: revision to the 2007 definition, 19(10) Multiple 

Sclerosis J., 1261-1267 (2013). [Pet. Ex. 31B-1]

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 11 of 23
12

with ADEM to understand how encephalopathy was being documented. Id.; Pet. Ex. 36.12 The 

authors found “irritability (36%), sleepiness (52%), confusion (8%), obtundation (20%), and 

coma (16%) as encephalopathy-defining features in ADEM.” Pet. Ex. 36 at 1; Pet. Ex. 35 at 3. 

Dr. Chen stated that, “behavioral changes such as irritability are not unlikely as a presentation of 

encephalopathy as part of the diagnostic criteria for ADEM.” Pet. Ex. 35 at 3. 

Dr. Chen stated that “ADEM is an immune mediated disorder in which an individual’s 

immune system inappropriately targets the nervous system after a provoking factor.” Pet. Ex. 30 

at 7. She stated that, “The concept of molecular mimicry has been proposed, but cannot be 

proven, for the majority of immune-mediated central nervous system [diseases].” Id. Dr. Chen 

wrote, “The timing of the onset of neurological symptoms can range from days to weeks and this 

range is expected due to the biological variability of the immune response across the human 

population. Several studies demonstrate that typical onset of ADEM is within a month from the 

initial infection or vaccination.” Id. 

To support her theory of vaccine causation, Dr. Chen cited to an article by Karussis & 

Petrou, which examined post-vaccination inflammatory CNS demyelinating syndromes that 

were reported in the medical literature. Pet. Ex. 31-J.13 The article described ADEM as “an 

inflammatory demyelinating disease of the central nervous system,” that “is a rather rare 

disease.” Id. at 2. Further, the authors described ADEM as “monophasic” in the majority of 

patients, and if relapse occurs, it usually happens within 3 months from its onset.” Id. The 

article explained, that “the current pathogenetic hypothesis in post-vaccination ADEM is that 

antigens of viral origin cross-react with myelin components (molecular mimicry) and in a 

secondary manner induce a hyperergic14 reaction, that leads to the development of disseminated 

demyelination.” Id. at 87. 

Dr. Chen concluded that C.C.’s MRI demonstrated lesions that are typical of ADEM and 

that ADHD “cannot be the diagnosis to explain the white matter changes on the MRI which do 

not appear in ADHD.” She also noted that ADHD was not listed in the radiologist’s differential.

Instead, she opined that ADHD can be a secondary diagnosis due to a primary central nervous 

system injury such as ADEM. Pet. Ex. 30 at 8. It was her opinion that C.C.’s ADEM was 

caused by the flu vaccination, and that the “onset of behavioral problems after the flu vaccination 

indicates that ADHD likely is a result of brain injury caused by the ADEM, and not due to any 

hereditary disorder.” Id. 

Dr. Chen concluded that C.C.’s diagnosis is ADEM, based on the medical records, 

including a review of the two MRIs and the other evidence submitted. Pet. Ex. 30; Pet. Ex. 35 at 

3. 

e. Respondent’s expert opinion of Dr. Peter Bingham

12 Fridinger, S.E. & Alper, Gary, Defining Encephalopathy in Acute Disseminated Encephalomyelitis, 29 J. of Child 

Neurol. 751-755 (2014). 

13 Karussis, D. and Petrou, P., The spectrum of post-vaccination inflammatory CNS demyelinating syndromes, 13 

Autoimmunity Reviews, 215-224 (2014). [Pet. Ex. 31-J]. 

14 Hyperergic is an increased sensitivity in allergy. Dorland’s at 877. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 12 of 23
13

On March 20, 2020, respondent filed an expert report by Dr. Peter M. Bingham, a 

pediatric neurologist. Resp. Ex. A (ECF No. 50). Dr. Bingham opined that C.C.’s medical 

records weigh against vaccine causation for three reasons: timing, relevant condition, and theory. 

Id. at 2-3. Dr. Bingham argued that the clinical course outlined in the medical records indicates

“that the symptoms that Petitioner attributes to vaccination on 10/30/15 more likely than not 

began prior to vaccination.” Id. Dr. Bingham contended that C.C.’s relevant condition and 

clinical course “does not support the diagnosis of ADEM based on published criteria,” and that 

the “available evidence does not support a conclusion that influenza vaccination causes brain 

lesions, ADD, ADHD, or ADEM.” Id. at 3. 

Regarding timing, Dr. Bingham pointed to “at least four different notes from different 

medical providers in C.C.’s contemporaneous medical records that consistently report the 

presence of headaches and behavioral changes prior to vaccination.” Resp. Ex. A at 4. 

Specifically, Dr. Bingham refersto the pediatric visit on November 10, 2015, which indicates 

that C.C. had headaches for one month; the MRI request form from November 20, 2015, which

indicates headaches for one month, with three per week; the neurological evaluation from 

December 16, 2015, which indicates that because of C.C.’s behavioral problems he had to be 

pulled out of school in October 2015; and finally, the note from the appointment with the ENT 

in January 2016 that indicated C.C.’s eyes were crossing for over four months.” Resp. Ex. A at 4; 

see also Pet. Ex. 18 at 32; Pet. Ex. 12 at 1; Pet. Ex. 3 at 7; Pet. Ex. 11 at 3. Dr. Bingham 

concluded, “Taken together, these notes in the medical record strongly support symptom onset 

prior to vaccination.” Resp. Ex. A. at 1. Dr. Bingham correctly observed that Dr. Cerjan’s notes 

from the November 10, 2015, appointment, do not indicate that C.C.’s headaches began post flu 

vaccination, instead he stated on November 10, 2015, that C.C. “has been having headaches for 

the past month,” which dates the onset of C.C.’s headaches to weeks before the vaccination at 

issue. Id.

Dr. Bingham also argued that C.C.’s clinical course does not support the diagnosis of 

ADEM based on the published criteria for ADEM. Resp. Ex. A at 3. Dr. Bingham referred to an 

article, filed by petitioner, by Cole et al., which reviewed the diagnostic criteria for ADEM as 

defined by the International Pediatric Multiple Sclerosis Society Group (“IPMSSG”) in 2007, 

updated in 2013. Resp. Ex. A at 3; Pet. Ex. 31-M.

15 The article states that the International 

IPMSSG’s ADEM criteria requires among other things, “Encephalopathy not explained by fever, 

systemic illness, or postictal symptoms.” Pet. Ex. 31-M at 2. Dr. Bingham observed that the 

article also states, that, “All children must have some component of encephalopathy during their 

acute illness to meet the IPMSSG criteria for ADEM.” Resp. Ex. A at 9; Pet. Ex. 31-M at 2. 

However, Cole also acknowledged that “data regarding the spectrum of encephalopathy in 

patients with ADEM are limited.” Pet. Ex. 31-M at 3. Dr. Bingham wrote, “Based on my own 

experience as a pediatric neurologist, I would not consider either headache or difficult behaviors 

of attention deficit disorder as evidence of encephalopathy, and there is no other evidence in the 

records that C.C. suffered encephalopathy in the days or weeks following vaccination.” Resp. 

Ex. A at 4. 

15 Jordan Cole, et. al., Acute Disseminated Encephalomyelitis in Children: An Updated Review based on Current 

Diagnostic Criteria, 100 Pediatric Neurology 26-34 (2019). [Pet. Ex. 31M]. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 13 of 23
14

Regarding the white matter lesions seen on the MRI from November 20, 2015, Dr. 

Bingham agreed with the neuroradiologist who interpreted the findings that they were nonspecific. Resp. Ex. A at 4. Dr. Bingham argued that the findings on C.C.’s MRI could be “due 

to a number of different possible underlying causes,” including a “radiologically isolated 

syndrome (“RIS”).” Resp. Ex. A at 3. He defined RIS by referring to an article by Makhani as a 

“situation wherein presumptively demyelinating lesions in the white matter are discovered 

incidentally on brain MRI, when subjects undergo MRI for reasons not related to brain 

demyelination.” 16 Resp. Ex. A at 3; Resp. Ex C at 1. The Makhani article reported that out of 

the 38 children with “RIS” identified on their MRIs, nearly half developed a first clinical event 

consistent with demyelination and an even higher proportion developed radiologic evolution.” 

Resp. Ex. C at 5. Dr. Bingham asserted that the Makhani article demonstrated that “the scenario 

of incidental, apparently demyelinative, lesions on brain MRI is increasingly encountered.” 

Resp. Ex. A at 3. Dr. Bingham argued, “In clinical laboratory or radiological diagnosis when the 

probability of a finding related to the clinical precipitating symptom is relatively low, one has to 

consider the possibility of un-related findings such as RIS.” Resp. Ex. A at 3-4. He suggested 

that a spinal tap would have been helpful to determine if C.C.’s lesions were actively 

demyelinating. Id. at 4. However, Dr. Bingham agreed with Dr. Chen that the white matter 

hyperintensities seen on the MRI are typical of those seen in ADEM but observed that “they are 

non-specific as to etiology, and not pathognomonic of ADEM.” Id. at 5. Dr. Bingham 

contended that occurrence of encephalopathy in conjunction with the white matter lesions is 

central to the diagnosis of ADEM, which Dr. Chen contended that “when symptoms of a 

headache or altered mental state or behavioral changes lead to an MRI which shows 

demyelination, can support a diagnosis of ADEM.” 

Additionally, Dr. Bingham noted that there is a family history of ADHD with two of 

C.C.’s siblings, and he opined that this family history also represents an alternative or contributor 

to ADHD in this specific case. Resp. Ex. A at 5; Pet. Ex. 3 at 7. He also stated that C.C.’s father 

and maternal grandfather were said to have anger/psychiatric problems, and it is also possible 

that C.C. “suffered mood dysregulation or anger problems on either a genetic of environmental 

(learned) basis.” Resp. Ex. A at 5; Pet. Ex. 3 at 7; Pet. Ex. 6 at 172. 

Finally, Dr. Bingham disagreed with Dr. Chen’s opinion regarding vaccine causation. 

Resp. Ex. A at 5. Dr. Bingham argued that Dr. Chen’s theory relies “on an incorrect temporal 

onset of C.C.’s symptoms to attribute causation to the influenza vaccine.” Resp. Ex. A at 5. Dr. 

Bingham noted that even if no other underlying cause can be determined for an ADHD 

diagnosis, it “may wax and wane in the severity of symptomatology in relation to other life 

events...and is itself a polygenic, hereditary disorder...that appears to affect multiple family 

members across generations.” Id. Dr. Bingham concluded his report by stating that in his 

medical opinion, “C.C. does not have ADEM...and more likely than not, C.C.’s headaches, 

behavioral problems, ADHD, and/or ADD are unrelated to his receipt of the flu vaccination on 

10/30/15.’ Id. 

16 Naila Makhani, et. al., Radiologically isolated syndrome in children: clinical and radiologic outcomes, 4(6) 

Neurology Neuroimmunology & Neuroinflammation, e395 (2017). [Resp. Ex. C]. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 14 of 23
15

III. Legal Standard

To receive compensation under the Vaccine Act, a petitioner must prove by a 

preponderance of the evidence that the injury was caused by the vaccine. § 300aa-13(a)(1). To 

be compensated, the petitioner must establish a causal link between the vaccination and the 

injury. It may be shown that the vaccine recipient suffered an injury of the type enumerated in 

the “Vaccine Injury Table.” § 300aa-13(a)(1)(A); § 300aa-14(a). If the injury is not listed in the 

Vaccine Injury Table, a petitioner must prove actual causation or causation in fact by a 

preponderance of the evidence. § 300aa-11(c)(1)(C(ii); Moberly v. Sec’y of Health & Human 

Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010). In this case, petitioner is not alleging that C.C. 

suffered a Table injury, but that he suffered a new onset neurological disorder caused by the flu 

vaccination he received on October 30, 2015. 

Petitioners cannot establish entitlement to compensation based solely on their assertions. 

Rather, a vaccine claim must be supported either by medical records or by the opinion of a 

medical doctor. § 300aa-13(a)(1). In determining whether petitioners are entitled to 

compensation, the special master shall consider all material contained in the record, including 

“any . . . conclusion, [or] medical judgment . . . which is contained in the record regarding . . . 

causation.” § 300aa-13(b)(1)(A). The undersigned must weigh the submitted evidence and the 

testimony of the parties’ offered experts and rule in petitioners’ favor when the evidence weighs 

in their favor. See Moberly, 592 F.3d at 1325-26 (“Finders of fact are entitled—indeed, 

expected—to make determinations as to the reliability of the evidence presented to them and, if 

appropriate, as to the credibility of the persons presenting that evidence”); Althen, 418 F.3d at 

1280 (“close calls” are resolved in petitioner’s favor). 

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). A special master must consider, but is not bound by, any diagnosis, conclusion, 

judgment, test result, report, or summary concerning the nature, causation, and aggravation of 

petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1). “Medical 

records, in general, warrant consideration as trustworthy evidence. The records contain 

information supplied to or by health professionals to facilitate diagnosis and treatment of medical 

conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These 

records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & 

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

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. Further, there is no presumption that medical records are complete as to all of a 

patient’s conditions. Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1382-83 (Fed. 

Cir. 2021). Afterall, “[m]edical records are only as accurate as the person providing the 

information.” Parcells v. Sec’y of Health & Human Servs., No. 03-1192V, 2006 WL 2252749, 

at *2 (Fed. Cl. Spec. Mstr. July 18, 2006). And, importantly, “the absence of a reference to a 

condition or circumstance is much less significant than a reference which negates the existence 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 15 of 23
16

of the condition or circumstance.” 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). 

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 

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).

IV. Finding of Fact

a. Parties’ arguments related to the onset of C.C.’s condition

Respondent, in his motion to dismiss, argues, “the contemporaneous medical records 

filed by petitioner in support of her petition document that C.C.’s symptoms predate the 

vaccination, and thus, C.C.’s alleged injury could not have been caused by the vaccine.” Resp. 

Mot. at 7. Respondent avers that “C.C.’s behavioral problems were documented in the medical 

records as ongoing for at least six months prior to vaccination,” and that “C.C.’s headaches also 

predated the vaccine by at least one month.” Id. Additionally, respondent asserts that 

petitioner’s affidavits also contradict the medical records and the letter from C.C.’s former preschool administrator, Ms. Stephanie Hopper. Id. 

Petitioner argues that C.C.’s symptoms did not predate the vaccination. Pet. Response. at 

4. Petitioner asserts that the medical records, specifically the appointment from November 10, 

2015, is inaccurate as to the onset of C.C.’s headaches. Id. Petitioner states her expert, Dr. Chen 

“cautions against the reliability of the medical record for the purposes of establishing onset of 

symptoms,” and that Dr. Chen observed that “Dr. Cerjan’s notes do not document any attempts 

to further delineate the onset of [C.C.’s] headaches as to the exact date or contextualize the 

headaches in the setting of C.C.’s parietal-occipital cyst, which had been present since 6 months 

of age.” Id. Petitioner argues that her affidavits clarified that C.C. complained about pain on the 

spot of the back of his head, referring to the cyst prior to the vaccination, and not the headache. 

Id. Further, petitioner argues that the November 10, 2015, record is inconsistent with the March 

8, 2018, record, where petitioner provided a history of headaches beginning after the flu vaccine. 

Id. at 4; see also Pet. Ex. 19 at 8. 

Finally, petitioner argues that respondent’s assertion that C.C.’s behavioral issues that 

were documented six months prior to the vaccination is not evidence of encephalopathy. Pet. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 16 of 23
17

Response at 5. While petitioner acknowledges that C.C.’s behavioral issues were documented as 

early as May 2015, she also “stresses the importance of differentiating between an altered mental 

state and poor behavior.” Id. Petitioner asserts that “specific indications of an altered mental 

state due to encephalopathy such as crossing eyes and poor balance were not documented until 

after C.C.’s vaccination.” Id. Petitioner submits that C.C.’s ADHD may have been a preexisting condition prior to the flu vaccination, but that it worsened as a result of ADEM caused 

by the flu vaccine.” Id. at 5. Petitioner concludes that “ADHD in the setting of ADEM presents

a complicated clinical picture such as this one but should not result in a dismissal of petitioner’s 

post-vaccination claim.” Id. 

Replying to petitioner’s filing, respondent states that “petitioner appears to concede that 

C.C. has ADHD and that onset of his ADHD more likely than not predated the vaccination.” 

Resp. Reply at 1. Respondent argued that C.C. was never diagnosed with ADEM and the 

medical records do not support a diagnosis of ADEM. Resp. Reply at 2. Respondent concludes 

that “the contemporaneous medical records filed by petitioner in support of her petition 

document that C.C.’s symptoms more likely than not predated the vaccine, and thus, C.C.’s 

alleged injury could not have been caused by the vaccine.” Id. at 2. Respondent accordingly

requests that the Special Master dismiss the petition. Id. 

b. Discussion and conclusion regarding the onset of C.C.’s neurologic condition 

The critical and dispositive issue raised by respondent is the onset of C.C.’s neurological 

condition. If the onset of C.C.’s neurological symptoms occurred prior to the vaccination, then 

the vaccination could not have been the cause of his neurological condition. Resp. Mot. at1. 

However, if C.C.’s neurological symptoms began after the vaccination, as petitioner argues, then 

petitioner would have to demonstrate that the vaccine was the cause-in-fact of the alleged 

neurological condition. 

Petitioner, through Dr. Chen, argued that the correct diagnosis for C.C. is ADEM. Pet. 

Ex. 30 at 8; Pet. Ex. 35. Dr. Chen stated that, “The diagnosis of ADEM is typically achieved

when symptoms of headache or altered mental status or behavior results in brain imaging with 

MRI. MRI findings of T2 hyper-intense white matter lesions that signify white matter brain 

injury are typical of ADEM and other central nervous system demyelinating conditions....” Pet. 

Ex. 30 at 7. She stated that her review of C.C.’s two MRIs from November 20, 2015, and June 

15, 2016, support a diagnosis of a central nervous system demyelinating condition such as 

ADEM.” Id. at 8. Dr. Chen also asserted that C.C.’s headaches and behavioral issues can be 

evidence of mild encephalopathy in pediatric patients and stated, “often times, the diagnosis of 

mild encephalopathy is accepted retrospectively based on spinal fluid testing demonstrating 

inflammatory changes.” Pet. Ex. 35 at 2. However, she acknowledged that no spinal fluid 

testing was done in C.C. Id. 

Dr. Bingham disagreed with the Dr. Chen’s diagnosis of ADEM. Resp. Ex. A at 4. Dr. 

Bingham argued that behavioral issues and headaches were documented in the medical records 

as beginning prior to the October 30, 2015 vaccination, and that the headaches and behavioral 

changes are not evidence of encephalopathy, required to make the diagnosis of ADEM. Id. at 4. 

However, he agreed with Dr. Chen that the findings on C.C.’s MRIs of “white matter 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 17 of 23
18

changes...highlighted in both MRI brain studies are typical of white matter lesions that are found 

in MRI brain scans of children with Acute Disseminated Encephalomyelitis (“ADEM”).” Resp. 

Ex. A at 5. Dr. Bingham argued that the headaches and behavioral issues that C.C. had were 

related to his diagnosis of ADHD, not ADEM, and they began prior to the vaccination at issue in 

this case. 

The article by Fridinger & Alper, referenced by Dr. Chen, explained that the IPMSSG 

defined encephalopathy as “one or more of the following: behavioral change, e.g., confusion, 

excessive irritability; alteration of consciousness, e.g. lethargy, coma.” Pet. Ex. 36 at 4. 

Additionally, the authors explained that younger children diagnosed with ADEM, tended to have 

mild encephalopathy, defined as irritability and/or sleepiness. Id. They noted that irritability 

and/or sleepiness is a less objective measure, illustrating the challenge of diagnosing 

encephalopathy in younger children. Id. This article supports Dr. Chen’s opinion that signs of 

encephalopathy in a child can be behavioral change, similar to the behavioral changes that are 

noted in C.C.’s medical records and the letter from Ms. Stephanie Hopper. 

For the purposes of this decision, I accept Dr. Chen’s opinion that behavioral issues can 

be evidence of mild encephalopathy, necessary for the diagnosis of ADEM and that C.C. likely 

had ADEM. However, based on a review of the medical records submitted, the affidavits by 

petitioner, and the letter from Amazing Kids administrator Ms. Stephanie Hopper, I find by 

preponderant evidence that C.C.’s symptoms of mild encephalopathy began prior to the receipt 

of the October 30, 2015, influenza vaccination, and thus could not have been caused by the 

vaccine. 

Petitioner, in her affidavits and petition, alleged that C.C.’s headaches were the first 

symptom of his ADEM, which began approximately two days prior to November 9, 2015. Pet. 

Aff. at ¶ 4; Petition at ¶ 4. In her first affidavit, petitioner stated, “On Monday, November 9, 

2015, at approximately 5:00 pm, I picked [C.C.] up from daycare at which time he began to 

experience severe headaches. He had been having headaches for a day or two, but it wasn’t until 

November 9, 2015, that they became severe.” Pet. Aff. at ¶ 4. In her second affidavit, petitioner 

clarified that C.C. complained “of an actual all over headache,” and that “his eyes were doing 

something weird and his behavior was off.” Pet. Ex. 29 at ¶ 5. 

However, multiple contemporaneous medical records contradict petitioner’s account of 

the onset of C.C.’s neurological symptoms. C.C.’s first three medical appointments after his 

October 30, 2015, vaccination, put onset of his headaches and behavioral issues before his 

vaccination. On November 10, 2015, C.C. had an appointment with Dr. Cerjan for “headaches 

for one month, cyst on back of head since 6 months of age.” Pet. Ex. 2 at 22. Under “History of 

Present Illness,” it notes that “[C.C.] has been having headaches for the past month. His pain 

happens at various times during the day with variable duration. His activity is less when his head 

hurts.” Id. Dr. Cerjan diagnosed C.C. with “chronic headache” and ordered an MRI. Id. at 25. 

On the MRI order, Dr. Cerjan wrote, “head x 1 mo 3 per week.” Pet. Ex. 12 at 1. Petitioner and 

C.C.’s father attended this appointment with C.C. and presumably gave the history to Dr. Cerjan. 

Pet Ex. 23 at 27 and Ex.2 at 22. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 18 of 23
19

Petitioner argued that her second affidavit clarified that C.C. did not have headaches prior 

to the vaccination and that Dr. Cerjan did not separate the discussion of the cyst on the back of 

C.C.’s head and the onset of headaches. Pet. Response at 4; Pet. Ex. 29 at ¶¶ 2, 6. Further, 

petitioner argues that her expert, Dr. Chen also “cautions against the reliability of the [November 

10, 2015 medical record] for the purposes of establishing the onset of symptoms,” because Dr. 

Cerjan did not make any attempts to “delineate the onset of headaches as to the exact date or 

contextualize the headaches in the setting of C.C.’s parietal-occipital cyst.” Pet. Response at 4. 

In Dr. Chen’s supplemental report, she asserted that the “source of the onset of the headaches 

being one month appears to have originated by intake staff....and then pulled into Dr. Cerjan’s 

notes,” and that “it raised the possibility that [Dr. Cerjan] may have simply propagated any 

information provided at intake without probing for the accuracy of the onset.” Pet. Ex. 35 at 1. 

However, the medical record from the November 10, 2015 appointment demonstrates that Dr. 

Cerjan probed for additional details about C.C.’s headaches, and he recorded those details under 

the “History of Present Illness.” While Dr. Cerjan mentioned that C.C. had a “palpable, mobile 

nodule on the parietal, occipital first noted at six months,” Dr. Cerjan took additional details 

about the duration, frequency and impact of C.C.’s headaches. He wrote, “[C.C.’s] pain happens 

at various times during the day with variable duration. His activity is less when his head hurts.” 

Id. Dr. Cerjan diagnosed C.C. with “chronic headache.” Pet. Ex. 2 at 25; Pet. Ex. 23 at 30. 

Further, this information appears to have been provided by petitioner herself. 

These additional notations, coupled with the statement, “[C.C.] has been having 

headaches for the past month,” Dr. Cerjan’s diagnosis of “chronic headache,” and his notation of 

“headache x 1 month, 3x per week” on the MRI order, provides significantly more detail than the 

mere onset statement in the initial intake form. Importantly, there is no reference at all to new 

onset of a severe headache that began one to two days prior to the appointment. 

If C.C. had developed a new onset of a severe headache within one or two days of the 

appointment, as asserted by petitioner, it seems very likely that Dr. Cerjan would have recorded 

that history rather than the details about the C.C.’s headaches that he did note. As indicated 

above, Dr. Cerjan recorded that C.C. had a history of headaches for a month, occurring about 

three times a week, which occurred at various times and during which C.C.’s activity level 

decreased. Further, the cyst on C.C.’s scalp was mentioned at the November 10th appointment, 

as it had been in prior appointments. The cyst had apparently been the source of minor irritation 

in the past but had been diagnosed as essentially benign several years before. It is highly 

unlikely that the cyst would have been the reason that Dr. Cerjan ordered the MRI as 

demonstrated by the medical record which states, “Will do MRI for headaches.” Pet. Ex. 2 at 25 

(emphasis added). Headaches that cause a reduction in activity arise within the skull and quite 

logically persistent headaches would be a reason for ordering an MRI of the brain as Dr. Cerjan 

did. Thus, it appears that Dr. Cerjan distinguished the cyst on the back of C.C.’s head from the 

headache symptoms and indeed the MRI demonstrated multiple lesions in the brain that certainly 

could give rise to headaches. 

The next medical record was from C.C.’s appointment on December 16, 2015, with 

neurologist, Dr. Ferreras. Pet. Ex. 3 at 7. C.C. was accompanied by both parents and his 

maternal grandmother. Id. In the “History of Present Illness” it stated, “....[C.C] is here for 

further evaluation of abnormal behavior taken in 11/2015.” Id. It continued, stating, “The 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 19 of 23
20

reason that led to brain MRI testing as mom indicated is-[C.C] was in preschool this year and 

had to be pulled out by October 2015, because of behavioral problems....” Id. Dr. Ferreras 

noted that [C.C] “has poor impulse control and started rubbing his head in the back. He also has 

a history of headaches, intermittent crossing his eyes. Mom also noticed that sometimes he is off 

balance.” Id. After reviewing C.C.’s MRI and a physical exam, Dr. Ferreras diagnosed C.C. 

with abnormal MRI, which in her opinion, “could be a finding of past infection, vs. 

demyelinating conditions from a progressive disease...encouraging that he has not shown clear 

regression.” Id. at 10. Then Dr. Ferreras wrote that, “[C.C.] has headaches and personality 

changes which may or may not be related to his MRI findings.” Id. at 10. The medical history 

recorded at this appointment, attended by multiple adults, clearly states that C.C. was taken out 

of school in October 2015 because of behavioral problems. While the specific date in October 

2015 was not provided, it would mean that C.C. was not in school on November 9th, when 

petitioner stated in her affidavits thatshe picked him up from school, and he was suffering a new 

onset of a severe, “all over” headache. Thus, this medical record also provides evidence that 

C.C.’s behavioral changes likely began prior to the October 30, 2015, vaccination, and 

contradicts petitioner’s affidavits that C.C. was picked up on November 9, 2015, from preschool. 

Further, the description by Dr. Ferreras, while brief, was generally consistent with the facts 

recorded by Dr. Cerjan.

When C.C. was evaluated by ENT, Dr. Elliott McKee on January 29, 2016, the reason for 

the visit was noted as, “Problem-brain lesion history, eyes are crossing, [headache], location-OU, 

(both eyes) quality-crossing or drifting, duration has been going on for over four months, timingintermittent, severity-worsening.” Id. Under the Review of Systems, there is a “Psychiatric,” 

section where petitioner (who accompanied C.C. to this appointment) denied ADD, ADHD, 

anxiety, depression, or behavioral problems. Id. at 4. Again, at this appointment, petitioner 

provided the medical history to the provider, and petitioner reported that C.C.’s “eye drifting,” 

and headaches were going on for over four months, suggesting that the headaches and eye 

drifting had begun in early October, which is prior to the vaccination of October 30, 2015. 

The first reference in the medical records that C.C.’s headaches began after the flu shot 

was in the history given to Dr. Gualtieri on February 26, 2018-- more than two years post 

vaccination. Pet. Ex. 19 at 10. Under “Chief Complaint/HPI” Dr. Gualtieri wrote, “Immediately 

following a flu-shot, [C.C.] started having headaches in 2014; they saw Dr. [Ferreras] and he had 

a comprehensive work-up, including genetic testing, two MRIs, and a neuropthalmologist. He 

has lesions in the frontal and occipital lobes that are believed to be related to the flu shot.” Id. 

Dr. Gualtieri wrote, “The clinical picture is one of attention deficit/hyperactivity disorder, but 

atypical attention deficit/hyperactivity disorder in a very smart child. It may or may not be 

related to brain injury.” Id. Of course, the appointment with Dr. Gualtieri was two years after 

the vaccination, and the record contains multiple errors. For example, he referenced the flu shot 

occurring in 2014, not 2015. Further, he stated that C.C. had lesions in the occipital lobe. Pet. 

Ex. 19 at 10. C.C.’s MRI from November 20, 2015, stated, “No significant involvement of the 

temporal or occipital lobes....” Pet. Ex. 21 at 1. 

Finally, other than the records from Dr. Gualtieri, none of the other medical records 

associate the onset of C.C.’s headaches or behavioral problems to the October 30, 2015, flu shot. 

See Pet. Ex. 23 at 23 (appointment dated June 13, 2016, noting that C.C. had significant behavior 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 20 of 23
21

problems in Pre-K with Vanderbilts + ADHD on teacher and parent forms); Pet. Ex. 23 at 22

(C.C. diagnosed with fever and acute pharyngitis on November 7, 2016); Pet. Ex. 23 at 14 (C.C. 

evaluated for a routine child wellness exam on June 14, 2017, and continued diagnosis was 

ADHD). Significantly, none of the records describe a sudden onset severe headache occurring 

on or about November 9, 2015.

To provide corroborating evidence that C.C.’s headaches began after the vaccine at issue 

and consistent with the timeline petitioner provided in her affidavits, petitioner sought to secure 

C.C.’s school records. See Rule 5 Order. After multiple attempts to obtain the school records 

from Amazing Kids Childcare Center, which had closed, petitioner was able to file a letter from 

Ms. Stephanie Hopper, the owner of Amazing Kids daycare. Pet. Ex. 37. In this letter, Ms. 

Hopper wrote that C.C. had been withdrawn from Amazing Kids in October 2015 due to 

behavioral issues. Id. Ms. Hopper stated, “From my memory [C.C] left during the month of 

October 2015 to attend Grace Christian Academy. Based on my memory, [C.C.’s] mother 

moved him to Grace Christian Academy because of his behavior, mother wanted to see if they 

could help with his behavior issues.” Id. Further, Ms. Hopper wrote that she did not recall exact 

dates regarding C.C.’s behavior because “all records of enrollment, withdrawing, attendance and 

discipline were all given to parents when the childcare center closed in December 2015.” Id. 

Ms. Hopper recalled that C.C.’s behavioral issues would “consist of anger outrages, throwing 

chairs, cussing.” Id. She reiterated that all records of major behavioral issues, along with verbal 

conversations with parents in reference to a child’s behavior, were given to parents at the time 

the childcare center closed in December 2015.” Id. No additional records from Amazing Kids 

were filed. 

While Ms. Hopper explained that she was writing from memory, her recollection that 

C.C. was withdrawn from Amazing Kids Childcare Center in October 2015 is consistent with 

C.C.’s medical records. More specifically, it corroborates the history that is recited in the 

medical record from C.C.’s appointment with Dr. Ferreras on December 16, 2015, which 

provides, “[C.C.] was in preschool this year and had to be pulled out by October 2015, because 

of behavioral problems.” Pet. Ex. 3 at 7. 

Furthermore, C.C.’s appointment with neurologist, Dr. Ferreras noted that he had been 

experiencing behavioral issues that at least had developed by October 2015. Dr. Ferreras wrote, 

“He was in preschool this year and has to be pulled out by October 2015 because of behavio ral 

problems.” Pet. Ex. 3 at 7. The history provided to Dr. Ferreras, again by petitioner herself, was 

consistent with Ms. Hopper’s account of when and why C.C. left Amazing Kids preschool. 

While Ms. Hopper wrote that she was writing from memory, the letter was consistent with what 

was recorded in the contemporaneously created medical record from December 16, 2015. 

The only contradictory evidence submitted by petitioner was her two affidavits, which 

were created three and four years after the medical appointments referenced above, and the 

records from Dr. Gualtieri created over two years post vaccination. The history provided by 

petitioner to Dr. Gualtieri was given to him by petitioner less than one month before she filed 

this petition. 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 21 of 23
22

The Federal Circuit has recognized the importance of contemporaneous medical records 

with histories provided for purposes of treatment. “Medical records, in general, warrant 

consideration as trustworthy evidence. The records contain information supplied to or by health 

professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment 

hanging in the balance, accuracy has an extra premium. These records are also generally 

contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 

at 1528. In Kirby, the Federal Circuit clarified that medical records are not presumptively 

accurate and complete as to all [of a] patient’s physical conditions. Kirby v. Sec’y of Health & 

Human Servs, 997 F.3d 1378, 1382-83 (Fed. Cir. 2021). The Circuit held that a reasonable fact 

finder could find that petitioner’s testimony of ongoing pain did not conflict with the records as 

the records are also silent about the nonexistence of such symptoms. Id. at 1383. Further, the 

Circuit acknowledged that the silence in the records could be explained by the fact that petitioner 

had exhausted all available treatment. Id. 

This case, however, does not involve medical records that are silent to the existence of a 

condition, as they were in Kirby. In Kirby, the special master found that the petitioner’s 

testimony did not conflict with medical records that were “silent about the existence of any 

lingering symptoms.” Kirby, at 1382. Instead, this case presents a fact pattern similar to 

Cucuras. In Cucuras, the petitioners testified that their daughter’s seizures began one day after 

receiving the DPT vaccination. 993 F.2d at 1527. However, the contemporaneous medical 

records repeatedly recorded that the child’s symptoms did not present until at least one week 

after the DPT vaccine. Id. at 1527-28. The special master denied compensation, affording more 

weight to the medical records, than the testimony that conflicted with the “contemporaneous 

documentary evidence.” See Kirby, at 997 F.3d at 1382. The Federal Circuit clarified that, “it 

was not erroneous to give greater weight to contemporaneous medical records than to later, 

contradictory testimony.” Id. 

Here, the contemporaneously created medical records consistently describe the onset of 

C.C.’s headaches and behavioral issues as preceding the October 30, 2015 flu shot. Further, the 

medical appointments in November 2015, December 2015, and January 2016, were focused on 

the condition for which treatment was sought, and therefore, it is difficult to conceive that 

petitioner would not have provided the doctors with accurate information about C.C.’s condition, 

particularly if, as claimed, the child developed a severe headache in the day or two before the 

November 10, 2015 appointment. Finally, the letter from Ms. Hopper, provided by petitioner, 

described the onset of C.C.’s behavioral issues and withdrawal from Amazing Kids consistent 

with the contemporaneously created medical records. Thus, the medical records in this case, are 

afforded more weight than petitioner’s contradictory statements provided in her affidavits, and 

the one medical record created two and half years after the vaccination at issue. 

The Vaccine Act expressly bars the court or a special master from [finding a fact] “based 

on the claims of the petitioner alone, unsubstantiated by medical records or by medical opinion.” 

§ 300aa-13(a)(1). Given the weight afforded to the contemporaneous medical records, which 

appear to be clear and consistent, and the importance of providing accurate information to a 

treating physician, I cannot accept the contradictory version of the facts asserted by the petitioner

in the petition and her affidavits. To accept the subsequent version of facts in petitioner’s 

affidavits would require me to disregard all the consistent, contemporaneously created medical 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 22 of 23
23

records and accept a contradictory history. This I will not do. As such, I find that there is 

preponderant evidence that C.C.’s neurological symptoms began before the October 30, 2015,flu 

vaccination, and thus could not have been caused by the vaccine.17 As such, it is necessary to 

dismiss the petition. 

Respondent’s motion is hereby GRANTED, and this petition is DISMISSED. 

IT IS SO ORDERED.

s/Thomas L. Gowen 

Thomas L. Gowen

Special Master

17 See Locane v. Sec’y of Health & Human Servs., 685 F.3d 1375, 1381 (Fed. Cir. 2012) (holding that the Althen 

analysis is inapplicable when the Special Master found that the illness was present before the vaccine was 

administered.) 

Case 1:18-vv-00431-UNJ Document 79 Filed 08/31/22 Page 23 of 23