1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

No. 99-0855V

(Filed: May 16, 2013)

TO BE PUBLISHED1

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

BRIAN FRANKLIN and ANDREA *

FRANKLIN, as legal representatives of *

Scott P. Franklin, a minor, *

*

Petitioners, * Vaccine Act Entitlement;

v. * Causation-in-fact;

* Vaccination/Encephalopathy

* Causation Issue;

* Vaccination/Autism

SECRETARY OF HEALTH * Causation Issue.

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Gregory Kincaid and Allen Coon, Olathe, Kansas, for Petitioners.

Vincent Matanoski, Lynn Ricciardella, and Heather Pearlman, Washington, DC, for Respondent.

DECISION

HASTINGS, Special Master. 

This is an action in which the Petitioners, Brian and Andrea Franklin, seek an award 

under the National Vaccine Injury Compensation Program (hereinafter “the Program”2

 1 Because I have designated this document to be published, this document will be made available 

to the public unless petitioner files, within fourteen days, an objection to the disclosure of any 

material in this decision that would constitute “medical files and similar files the disclosure of 

which would constitute a clearly unwarranted invasion of privacy.” See 42 U.S.C. § 300aa12(d)(4)(B); Vaccine Rule 18(b). 

), on 

2 The applicable statutory provisions defining the Program are found at 42 U.S.C. §300aa-10 et

seq. (2006). Hereinafter, for ease of citation, all “§“references will be to 42 U.S.C. (2006). I will 

also sometimes refer to the Act of Congress that created the Program as the “Vaccine Act.” 
2

account of an ongoing severe neurodevelopmental disorder in their son, Scott, that has been 

characterized as an Autism Spectrum Disorder (“ASD”). For the reasons set forth below, I 

conclude that the Petitioners are not entitled to an award on Scott’s behalf.

I

THE APPLICABLE STATUTORY SCHEME AND CASE LAW

Under the National Vaccine Injury Compensation Program, compensation awards are 

made to individuals who have suffered injuries after receiving vaccines. In general, to gain an 

award, a petitioner must make a number of factual demonstrations, including showing that an 

individual received a vaccination covered by the statute; received it in the United States; suffered 

a serious, long-lasting injury; and has received no previous award or settlement on account of the 

injury. Finally--and the key question in most cases under the Program--the petitioner must also 

establish a causal link between the vaccination and the injury. In some cases, the petitioner may 

simply demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be 

shown that the vaccine recipient suffered an injury of the type enumerated in the “Vaccine Injury 

Table,” corresponding to the vaccination in question, within an applicable time period following 

the vaccination also specified in the Table. If so, the Table Injury is presumed to have been 

caused by the vaccination, and the petitioner is automatically entitled to compensation, unless it 

is affirmatively shown that the injury was caused by some factor other than the vaccination. 

(§300aa-13(a)(1)(A); § 300aa-11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B).)

In other cases, however, the vaccine recipient may have suffered an injury not of the type

covered in the Vaccine Injury Table. In such instances, an alternative means exists to 

demonstrate entitlement to a Program award. That is, the petitioner may gain an award by 

showing that the recipient’s injury was “caused-in-fact” by the vaccination in question. (§ 300aa13(a)(1)(A); § 300aa- 11(c)(1)(C)(ii).) In such a situation, of course, the presumptions available 

under the Vaccine Injury Table are inoperative. The burden is on the petitioner to introduce 

evidence demonstrating that the vaccination actually caused the injury in question. (Althen v. 

HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005); Hines v. HHS, 940 F.2d 1518, 1525 (Fed. Cir. 

1991).) The showing of “causation-in-fact” must satisfy the “preponderance of the evidence” 

standard, the same standard ordinarily used in tort litigation. (§ 300aa 13(a)(1)(A); see also 

Althen, 418 F.3d at 1278; Hines, 940 F.2d at 1525.) Under that standard, the petitioner must 

show that it is “more probable than not” that the vaccination was the cause of the injury. (Althen, 

418 F.3d at 1279.) The petitioner need not show that the vaccination was the sole cause or even 

the predominant cause of the injury or condition, but must demonstrate that the vaccination was 

at least a “substantial factor” in causing the condition, and was a “but for” cause. (Shyface v. 

HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).) Thus, the petitioner must supply “proof of a logical 

sequence of cause and effect showing that the vaccination was the reason for the injury;” the 

logical sequence must be supported by “reputable medical or scientific explanation, i.e., evidence 

in the form of scientific studies or expert medical testimony.” (Althen, 418 F.3d at 1278; Grant v. 

HHS, 956 F.2d 1144, 1148 (Fed. Cir. 1992).)

The Althen court also provided additional discussion of the “causation-in-fact” standard, 

as follows:
3

Concisely stated, Althen’s burden is to show by preponderant evidence that the 

vaccination brought about her injury by providing: (1) a medical theory causally 

connecting the vaccination and the injury; (2) a logical sequence of cause and 

effect showing that the vaccination was the reason for the injury; and (3) a 

showing of a proximate temporal relationship between vaccination and injury. If 

Althen satisfies this burden, she is “entitled to recover unless the [government] 

shows, also by a preponderance of evidence, that the injury was in fact caused by 

factors unrelated to the vaccine.”

(Althen, 418 F.3d at 1278 (citations omitted).) The Althen court noted that a petitioner need not

necessarily supply evidence from medical literature supporting the petitioner’s causation 

contention, so long as the petitioner supplies the medical opinion of an expert. (Id. at 1279-80.)

The court also indicated that, in finding causation, a Program fact-finder may rely upon 

“circumstantial evidence,” which the court found to be consistent with the “system created by 

Congress, in which close calls regarding causation are resolved in favor of injured claimants.” 

(Id. at 1280.)

Since Althen, the Federal Circuit has addressed the causation-in-fact standard in several

additional rulings, which have affirmed the applicability of the Althen test, and afforded further

instruction for resolving causation-in-fact issues. In Capizzano v. HHS, 440 F.3d 1317, 1326 

(Fed. Cir. 2006), the court cautioned Program fact-finders against narrowly construing the 

second element of the Althen test, confirming that circumstantial evidence and medical opinion, 

sometimes in the form of notations of treating physicians in the vaccinee’s medical records, may 

in a particular case be sufficient to satisfy that second element of the Althen test. Both Pafford v.

HHS, 451 F.3d 1352, 1355 (Fed. Cir. 2006), and Walther v. HHS, 485 F.3d 1146, 1150 (Fed. Cir. 

2007), discussed the issue of which party bears the burden of ruling out potential non-vaccine 

causes. DeBazan v. HHS, 539 F.3d 1347 (Fed. Cir. 2008), concerned an issue of what evidence 

the special master may consider in deciding the initial question of whether the petitioner has met 

her causation burden.

Another important aspect of the causation-in-fact case law under the Program concerns 

the factors that a special master should consider in evaluating the reliability of expert testimony 

and other scientific evidence relating to causation issues. In Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court listed certain factors that federal 

trial courts should utilize in evaluating proposed expert testimony concerning scientific issues. In 

Terran v. HHS, 195 F.3d 1302, 1316 (Fed. Cir. 1999), the Federal Circuit ruled that it is 

appropriate for special masters to utilize Daubert’s factors as a framework for evaluating the 

reliability of causation in- fact theories presented in Program cases. One of the factors listed in 

Daubert is whether the scientific theory “has been subjected to peer review and publication.” 

(509 U.S. at 593.) The Court noted that while publication does not “necessarily” correlate with 

reliability, since in some instances new theories will not yet have been published, nevertheless 

“submission to the scrutiny of the scientific community is a component of ‘good science,’” so 

that the “fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, 

though not dispositive, consideration in assessing the scientific validity” of a theory. (Id. at 593-

94.)
4

II

FACTS AND PROCEDURAL HISTORY

A. Facts

Petitioners’ son, Scott Franklin, was born on July 2, 1995, and released from the hospital 

on July 3, 1995. (Ex. 1, pp. 2-3.) On July 8, 1995, Scott was returned to the hospital due to a 

high bilirubin level in order to undergo incubator light treatment, but was subsequently released 

as a well-baby. (Id.

3

) The records of Scott’s visits to his pediatrician during his first 15 months 

of life appear to indicate generally normal health and development. (Ex. 3, pp. 9-17.)

On October 7, 1996, at age 15 months, Scott received two immunizations--a measles, 

mumps, and rubella (“MMR”) inoculation, and a “Tetramune”4 inoculation, at Dr. Seibel’s 

office. (Ex. 3.2, p. 1.) Scott returned to Dr. Seibel ten days later, on October 17, 1996. (Ex. 3.4, 

p. 1.) The pediatrician’s notes concerning that visit indicate that Scott was “pulling at his ears,” 

was “fussy,” had “loose stools,” and had “low grade,” apparently meaning a slight fever. (Id.) 

The notes made by Scott’s mother concerning the same visit indicate that Scott was exhibiting 

symptoms including, “appetite/diarrhea/tired/fever/grouchy/gassy/yellow/red spots.” (Ex. 46, p. 

7.) Dr. Seibel concluded from the symptoms that Scott was “teething.” (Ex. 3.4, p. 1.)

On July 16, 1997, during a two-year well-child visit to Dr. Seibel, the notation indicates 

that Scott had previously spoken, but was now not speaking. (Ex. 3.5, p. 1.) According to the 

record of that visit, Scott was not taking any medications, had no illness, and had not had any 

reactions to his immunizations. (Id.) It was recommended that Scott’s parents contact Dr. Seibel 

if improvement in speech did not occur in the following two to three months. (Id.)

Scott visited Dr. Seibel on May 2, 1998, when it was noted that he was only saying two 

words, “does not establish eye contact,” and “appears to ‘tune [Dr.Seibel] out.’” At that visit, 

Scott was diagnosed with speech delay. (Ex. 3.5, p. 6.)

Potential developmental delay was addressed at Scott’s three-year well-child examination 

on August 11, 1998. (Ex. 3.5, p 7.) Scott’s mother expressed concerns about Scott’s continued 

minimal speech, as well as difficulties in interacting with others and self-stimulating behavior. 

(Id. at 8.) Dr. Seibel made a referral for an assessment of Scott’s possible developmental delay 

and autism. (Id.)

 3 Petitioners filed Exhibits 1 through 6.1 with the petition, and additional exhibits on several 

occasions thereafter. Respondent filed exhibits labeled from A to CC at various times. “Ex.” 

references will be to those exhibits. “Tr.” references will be to the pages of the transcript of the 

evidentiary hearing held on November 30, 2011.

4 Tetramune is a combined immunization against diphtheria, tetanus, pertussis, and haemophilus 

influenza type B (“Hib”). Dorland’s Illustrated Medical Dictionary (31st ed. 2007), p. 1931.
5

Scott was examined by Dr. Aftab Qadir, at the Arnold Palmer Hospital on September 9, 

1998. (Ex. 5.1, p. 6.) There, his parents reported that Scott “just quit talking” before his sister 

was born, about one year previously. (Id.) The remainder of the history was similar to that given 

to Dr. Seibel during the visit of August 10, 1998, although Mrs. Franklin added that her father 

and brother had “some of the same qualities as her son.” (Id.) The physician’s impression was 

“Pervasive developmental disorder NOS” and “Speech and Language Disorder.” (Id. at 7.)

Dr. John McReynolds evaluated Scott’s symptoms on October 20, 1998, and concluded 

that he suffered from “pervasive developmental disorder and severe language disorder,” but 

declined to identify a cause. (Ex. 31, p. 3.)

On November 12, 1998, Scott was seen by Dr. Michael Pollack for an initial visit at the 

Neurology Clinic of the Nemours Children’s Clinic. (Ex. 3.5, pp. 55-56.) The diagnostic 

impression was “autistic disorder.” (Id. at 56.) Follow-up visits to Nemours Children’s Clinic 

were made on January 6, January 22, and March 1, 1999, in which Scott was evaluated in the 

divisions of Genetics and Metabolism, as well as Gastroenterology. (Ex. 3.5, pp. 49-54.) No 

specific genetic or metabolic cause for Scott’s disorder was identified. (Id.)

On January 13, 1999, Scott was evaluated by Dr. Jeff Bradstreet. (Ex. 6, p. 1.) 

Dr. Bradstreet’s diagnosis was “autism.” (Id. at 3.) Dr. Cornelia Franz assessed Scott’s condition 

on February 6, 2001, and identified it as “autism.” (Ex. 28, p. 3.)

The medical records, in general, further indicate that Scott has continued to suffer, since 

that time, from a severe developmental disorder, which has consistently been labeled as “autism”

or as a disorder falling within the autism spectrum. 5

B. Procedural History 

The Petitioners, Andrea and Brian Franklin, filed their Program petition on October 1, 

1999, alleging that Scott’s severe developmental disorder was caused by his MMR vaccination 

of October 7, 1996. Proceedings were delayed for several years at Petitioners’ request, to give 

them time to assemble and file medical records and expert reports. During 1999 to 2002, 

Petitioners filed several expert reports of Dr. Jeff Bradstreet and Dr. John Menkes. (Exs. 6.1, 22, 

23, 26.) Respondent filed “Rule 4 reports” indicating the view that compensation of the case was

not appropriate. (ECF No. 47; ECF No. 50.) Respondent also filed several expert reports, 

opposing Petitioners’ claim. (Exs. A, C, E, G, K.)

 5 “Autism spectrum disorder” is a general classification which includes five different specific

disorders: Autistic Disorder, Childhood Disintegrative Disorder, Asperger’s Syndrome, Rett 

Syndrome, and Pervasive Developmental Disorder Not Otherwise Specified (PDD-NOS). King 

v. HHS, No. 03-584V, 2009 WL 892296 at *5 (Fed. Cl. Spec. Mstr. Feb. 12, 2010). The term 

“autism” is often utilized to encompass all of the five types of disorders falling within the autism 

spectrum. (Id.) Scott’s own disorder has been characterized as “autistic disorder” (Ex. 3.5 at pp. 

55-56); as PDD-NOS (Ex. 5.1, p. 3); or simply as “autism” (Ex. 6, p. 3), all of which labels 

indicate that Scott’s disorder falls within the general category known as “autism” or “autism 

spectrum disorder.”
6

From 2003 until January 15, 2008, there was no activity in the case, again at the 

Petitioners’ request, as the Petitioners chose to await the outcome of the Omnibus Autism 

Proceeding (“OAP”) test cases. The Omnibus Autism Proceeding was a general proceeding 

under the Program in which attorneys representing about 5,000 different Program petitioners 

worked together in an attempt to demonstrate that certain types of vaccines, including the MMR 

vaccine, can cause the neurodevelopmental disorder known as “autism.” 6

On January 15, 2008, Petitioners were ordered to file all medical records relating to 

Scott’s illness, as well as a statement addressing whether they wanted to continue, or await the 

outcome of the OAP. (ECF No. 69.) On February 19, 2008, Petitioners filed a “Statement of 

Compliance,” indicating that they had filed all relevant medical records. (ECF No. 70.)

On June 4, 2008, Petitioners filed an Amendment to their petition, raising an “alternative” 

allegation that if Scott’s developmental disorder was not initially caused by his MMR 

vaccination, it was significantly aggravated by that vaccination. (ECF No. 75.) 

On February 12, 2009, three special masters separately issued decisions in the first three 

“test cases” in the OAP: Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. Cl. Spec. Mstr. 

Feb. 12, 2009); Snyder v. HHS, No. 01-162V, 2009 WL 332044 (Fed. Cl. Spec. Mstr. Feb. 12, 

2009); and Hazlehurst v. HHS, No. 03-654V, 2009 WL 332306 (Fed. Cl. Spec. Mstr. Feb. 12, 

2009). All three decisions determined that the evidence failed to demonstrate any general causal 

connection between the MMR vaccine and the development of autism spectrum disorders. These 

decisions were each subsequently affirmed, on appeal, by three different judges of the U.S. Court 

of Federal Claims. Hazlehurst v. HHS, 88 Fed. Cl. 473 (2009); Snyder v. HHS, 88 Fed. Cl. 706 

(2009); Cedillo v. HHS, 89 Fed. Cl. 158 (2009). Subsequently, the two cases that were appealed 

to the U.S. Court of Appeals for the Federal Circuit, Cedillo and Hazlehurst, were again

affirmed. Cedillo v. HHS, 617 F.3d 1328 (Fed. Cir. 2010); Hazlehurst v. HHS, 604 F.3d 1343 

(Fed. Cir. 2010). (The Snyder case was not appealed to the Federal Circuit.)

In March 2010, the same three special masters issued three more opinions in three more 

OAP “test cases,” this time rejecting the second causation theory presented in the OAP, that

thimerosal-containing vaccines can cause autism. King v. HHS, No. 03-584V, 2010 WL 892296

(Fed. Cl. Spec. Mstr. Mar. 12, 2010); Mead v. HHS, No. 03-215V, 2010 WL 892248 (Fed. Cl. 

Spec. Mstr. Mar. 12, 2010); Dwyer v. HHS, No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. 

Mstr. Mar. 12, 2010). None of those decisions were appealed.

The Petitioners in this case, after the first three OAP test case decisions were issued,

informed the court that they now wished to proceed with their claim, and would be filing a new 

expert opinion in support. On April 26, 2010, Petitioners filed an expert medical report from

Dr. J. Ivan Lopez. (Pet. Ex. 38.) Shortly thereafter, Petitioners filed a supplemental expert report 

from Dr. Lopez, as well as an affidavit from Cornelia Franz, M.D. (Pet. Exs. 39, 42.) 

Respondent filed responsive expert reports from Dr. Neal Halsey and Dr. Max Wiznitzer. (Resp.

 6 For further discussion of the OAP, see Cedillo v. HHS, No. 98-916V, 2009 WL 331968 (Fed. 

Cl. Spec. Mstr. Feb. 12, 2009), at *8-11.
7

Exs. P, Q.) Petitioners filed another supplemental expert report from Dr. Lopez on February 17, 

2011. (Pet. Ex. 43.) 

After Petitioners and Respondent filed their expert reports in 2010 and 2011, I conducted 

an evidentiary hearing on November 30, 2011. At that hearing, Petitioners relied solely on the 

testimony of Dr. Lopez, while Respondent presented oral testimony from Drs. Wiznitzer and 

Halsey. At the hearing, I requested that the parties file post-hearing briefs. Petitioners’ posthearing brief was filed on April 30, 2012, and Respondent’s post-hearing brief was filed on 

July 3, 2012. On August 16, 2012, Petitioners’ counsel informed the court that he did not intend 

to file a post-hearing reply brief. Thus, the case is now ripe for a ruling concerning the issue of 

“entitlement,” i.e., whether Petitioners have demonstrated that they are entitled to a Program 

award on Scott’s behalf.

III

ISSUE TO BE DECIDED

In this case, Petitioners seek a Program award, contending that the developmental 

disorder from which Scott suffers was “caused-in-fact” by an “encephalopathy” resulting from

one of the vaccinations that he received on October 7, 1996. After careful consideration, I 

conclude that Petitioners have failed to demonstrate causation.7

Petitioners’ theory of the case, as presented at the evidentiary hearing and in their posthearing brief, may be briefly summarized as follows. Petitioners contend that Scott’s condition 

of severe developmental delay, described above at pp. 4-5, should not be considered an autism 

spectrum disorder (“ASD”). Petitioners contend that Scott’s condition, instead, was caused by 

an “encephalopathy” (brain injury) resulting from one of the vaccinations that he received on 

October 7, 1996. (See “Petitioners’ Post Trial Memorandum” filed on April 30, 2012, at pp. 17-

21.)

Respondent disagrees, contending that Petitioners have failed to meet the burden of 

proving causation. Respondent argues that Scott’s clinical history, in the days after the 

vaccinations in question, is inconsistent with the “encephalopathy” that Petitioners allege. 

Respondent’s experts believe that Scott has a typical case of ASD, which has nothing to do with 

any vaccinations.

 7 Petitioners have the burden of demonstrating the facts necessary for entitlement to an award by 

a “preponderance of the evidence.” 300aa-13(a)(1)(A). Under that standard, the existence of a 

fact must be shown to be “more probable than its nonexistence.” In re Winship, 397 U.S. 358, 

371 (1970) (Harlan, J., concurring). 
8

After carefully considering all of the evidence in the record, I must reject Petitioners’ 

claim8 that Scott’s severe neurodevelopmental condition, which has been characterized as an 

ASD, was caused by one of his vaccinations. 

IV

SUMMARY OF EXPERT WITNESSES’ QUALIFICATIONS AND OPINIONS

In this case, each side relies upon the expert reports and hearing testimony of medical 

experts. At this point, I will briefly summarize both the qualifications and the opinions of those 

expert witnesses. 

A. Petitioners’ experts

1. Dr. J. Ivan Lopez

Dr. J. Ivan Lopez attended La Salle University School of Medicine from 1977 to 1982. 

(Ex. 44. at 9.) He completed his residency in orthopedic surgery in Mexico City between 1984 

and 1988. (Id. at 3.) He completed his pediatric residency at the University of South Alabama 

Department of Pediatrics from 1992 to 1993, followed by his neurology residency, at the 

University of South Alabama, from 1993 to 1997. (Id. at 2.) From 1997 to 2003, Dr. Lopez 

worked in private practice in both Florida and Georgia. (Id.) He became an Assistant Clinical 

Professor of Pediatrics at Mercer University School of Medicine in 2002, and then an Associate 

Professor of Neurology at the University of South Alabama in 2003, where he continued to work

in various capacities until 2009. During the time of his testimony in this case, Dr. Lopez was an 

Associate Professor of Neurology and Pediatrics at the University of Alabama in Birmingham.

(Id.; Tr. 69.) He is board-certified by the American Board of Psychiatry and Neurology, with a 

special qualification in Child Neurology. (Ex. 44, p. 13.)

Dr. Lopez filed an expert report in this case on April 26, 2010, Exhibit 38; a

supplemental report, on October 12, 2010, Exhibit 42; and an additional supplemental report on 

February 17, 2011, Exhibit 43. Dr. Lopez also testified at the evidentiary hearing in Orlando, 

Florida, on November 30, 2011.

2. Dr. Cornelia Franz

Dr. Franz is a board-certified pediatrician, in practice for 25 years in Orlando, Florida. 

(Ex. 39 at 1.) She attended Wake Forest University as an undergraduate, and subsequently 

received her medical degree from Bowman Gray School of Medicine in Winston-Salem, North 

Carolina. (Id.) She completed her pediatric internship in Lexington, Kentucky. (Id.) Following 

her internship, she did a fellowship in Adolescent Medicine at Cincinnati Children’s Hospital. 

(Id.) Dr. Franz was the founder of The Franz Center in Orlando, Florida, wherein she conducts a 

 8 Petitioners’ claim in this case is solely a “causation-in-fact” claim. They do not argue that Scott 

suffered a “Table Injury” encephalopathy, as that injury is defined in the applicable regulations. 

(See, e.g., “Petitioners’ Post Trial Memorandum,” filed on April 30, 2012.)
9

practice which specializes in general pediatrics. (Id.) She routinely provides vaccines to patients 

as part of pediatric care, and has privileges at the Arnold Palmer Hospital for Children and 

Women in Orlando. (Id.)

3. Summary of opinions of Petitioners’ experts

Petitioners ultimately relied most heavily on the opinion of Dr. Lopez, who was the only 

expert that they presented at the evidentiary hearing. In his three written expert reports (Exs. 38, 

42, 43), and in his hearing testimony (Tr. 68-133, 273-281), Dr. Lopez opined that one of the 

vaccinations that Scott received on October 7, 1996, caused him to suffer an “encephalopathy”--

i.e., a brain injury--which encephalopathy caused Scott’s subsequent developmental disorder.

In his third written report, Dr. Lopez proposed a mechanism by which the vaccination 

caused the brain injury, a process known as “molecular mimicry.” (Ex. 43, p. 1.) In this process, 

he explained, some portion of the vaccine “closely resembles the molecular structure of the 

myelin sheath of the neurons, thereby confusing the immune system of the individual.” (Id.) In 

other words, because of this resemblance, the body’s immune system mistakenly attacks the 

neurons, which are a component of the brain, in what is known as an “autoimmune” process. 

Dr. Lopez also described this process as a “post-vaccination encephalomyelitis,” meaning a 

swelling of the myelin sheath of the brain, due to the misguided attack by the immune system. 

(Ex. 38, p. 2.)

In further explanation, Dr. Lopez opined that Scott’s developmental disorder, while it 

does include symptoms similar to those of autism, should not be characterized as “autism.” 

Dr. Lopez opined that if a cause is known for a disorder such as Scott’s, that disorder is thereby 

disqualified from the category of autism. (Ex. 42, p. 1; Ex. 43, p. 1.)

Petitioners also rely, secondarily, on the opinion of Dr. Franz, who has been Scott’s 

treating pediatrician.9

 9 As noted above, soon after they filed their petition, Petitioners filed written reports of two other 

experts, Dr. James Jeffrey Bradstreet and Dr. John Menkes. (Exs. 6.1, 21, 22, 23, 26.) However, 

as also noted, they then chose not to pursue their case to a ruling at that time, but chose instead to 

wait for the outcome of the Omnibus Autism Proceeding. After the publication of the autism 

“test case” opinions described above (see p. 6), petitioners elected not to rely upon the opinions 

of Dr. Bradstreet and Dr. Menkes, but to instead rely solely upon the opinions of Drs. Lopez and 

Franz. (See, e.g., Tr. 153.) Accordingly, I have not analyzed the opinions of Dr. Bradstreet and 

Dr. Menkes in this Decision. However, I note that I have read the reports of Drs. Bradstreet and 

Menkes, and have found them to be unpersuasive. Moreover, I found those opinions to be 

persuasively refuted by the experts reports of Drs. Wiznitzer and Halsey filed by Respondent, 

particularly Exs. C and E.

 Dr. Franz did not testify at the evidentiary hearing, but supplied an 

affidavit, which stated that “[b]ased on my 25 years of experience as a pediatrician, and after 

reviewing the photographs and DVD footage supplied to me, it is my opinion that Scott Patrick 

Franklin* * * was developing normally and meeting appropriate milestones for his age at 11 

months. He thereafter suffered some form of neurologic injury, which resulted in loss of 

language and regression in behavior and most likely permanent injury to his brain.” (Ex. 39, 
10

p. 2.) Dr. Franz added that Scott’s neurodevelopmental disorder “would be consistent with an 

encephalopathic reaction to vaccination,” and that “more likely than not his neurological damage 

was caused by encephalopathy after vaccination.” (Id.) 

B. Respondent’s experts

Respondent has relied primarily on the expert reports and testimony of two experts, Drs. 

Wiznitzer and Halsey.10

1. Dr. Max Wiznitzer

Dr. Max Wiznitzer is a pediatric neurologist with an active clinical and research practice,

who has diagnosed and treated thousands of children with ASDs. (Tr. 208-10, 213; see also Ex 

BB.) Dr. Wiznitzer received a B.S. in Medical Education in 1975 from Northwestern University. 

(Ex. D at 1.) He received his M.D. from Northwestern University in 1977. (Id.) Dr. Wiznitzer 

completed his residency in pediatrics at the Children’s Hospital Medical Center of Cincinnati 

from 1977 through 1980, and thereafter completed his fellowship in developmental disorders at 

the Cincinnati Center for Developmental Disorders in 1981. (Id.)

Dr. Wiznitzer is board-certified in pediatrics, pediatric neurology, and 

neurodevelopmental disabilities. (Tr. 204.) He is an Associate Professor of Pediatrics, 

Neurology and International Health at Case Western Reserve University School of Medicine, 

and a staff child neurologist at the Rainbow Babies and Children’s Hospital in Cleveland, Ohio. 

(Tr. 202-03.) Dr. Wiznitzer is a member of the American Academy of Neurology, the American 

Academy of Pediatrics (“AAP”), and the Child Neurology Society. (Tr. 204, 206.) He sits on the 

AAP’s Executive Committee for the Council on Children with Disabilities, and is the neurology 

representative to the Autism Subcommittee of the AAP. (Tr. 210-11.) He has also extensively 

researched and published articles and papers on autism. (Tr. 212-13; see also Ex. BB.) 

2. Dr. Neal Halsey 

Dr. Halsey received a B.S. in Zoology from the University of Wisconsin in 1967. He 

then received his M.D. from the University of Wisconsin in 1971. (Ex. F at 1.) In 1972, Dr. 

Halsey completed an internship at the Children’s Hospital, Denver, Colorado. (Id.) He was then a 

General Medical Officer of the Indian Health Service at the U.S. Public Health Service Hospital 

in Fort Yates, North Dakota, from 1973 to 1974. (Id.; Tr. 158.) Dr. Halsey completed his 

residency at the University of Colorado Medical Center from 1974 to 1975. (Ex. F at 2.) 

 10 Respondent also filed expert reports of Drs. John MacDonald and John Sever. However, those 

reports primarily were devoted to refuting the petitioners’ early expert reports of Drs. Bradstreet 

and Menkes. Accordingly, while I have read the reports of Drs. MacDonald and Sever, they 

have not played any role in my resolution of this case.
11

Additionally, Dr. Halsey has served as a professor at Tulane University from 1980 

through 1985, in both the Department of Pediatrics and the Department of Tropical Medicine. 

(Id. at 2.) Dr. Halsey also has served at The Johns Hopkins University, School of Hygiene and 

Public Health, from 1985 to present, and works primarily in the International Health Department,

with a primary office in the Institute for Vaccine Safety. (Ex. F at 2; Tr. 159-60.) Dr. Halsey has 

also served in many medical organizations and written many publications regarding

immunization. (See generally Ex. F; Tr. 162.) 

Dr. Halsey is board-certified in pediatrics and in pediatric infectious diseases. (Tr. 158.) 

During Dr. Halsey’s time at the Indian Health Service, he dealt with a measles epidemic and

conducted an investigation about the measles vaccine and its ability to protect against disease. 

(Tr. 159.)

Additionally, Dr. Halsey has written over 200 peer-reviewed publications on vaccinepreventable diseases and immunizations, has authored or co-authored over 40 book chapters 

pertaining to immunizations, and has been a reviewer or editor for dozens of journals. (Tr. 162-

63.) Dr. Halsey has served on advisory committees for the American Academy of Pediatrics, 

particularly the Committee for Infectious Diseases, which he chaired for four years. (Tr. at 162.) 

He has also served ten years in the Centers for Disease Control and Prevention’s Advisory 

Committee for Immunization Practices. (Tr. 162.) Furthermore, Dr. Halsey served seven years 

on the World Health Organization’s Research and Development Committee for the expanded 

program on immunization. (Tr. 161-62.)

3. Summary of opinions of Respondent’s experts

Respondent’s experts strongly disagree with Dr. Lopez’ assertion that any of Scott’s 

vaccinations caused, or have had any effect on, his ongoing developmental disorder. In response 

to Dr. Lopez’ argument that Scott does not have autism, Dr. Wiznitzer testified that Dr. Lopez 

“is totally wrong” in his definition and understanding of autism. (Tr. 226-27.) Dr. Wiznitzer 

testified that, contrary to Dr. Lopez’ testimony, autism is not a “murky” or a “vague” term. (Tr. 

226.) Rather, “[a]utism is a well-defined entity. We know what it is.” (Tr. 226.) Dr. Wiznitzer 

agrees with Scott’s treating physicians, who opined that Scott has an ASD, and explained that 

Dr. Lopez is simply wrong in his contention that for an individual to be considered autistic, the 

cause of the disorder must be unknown. (Tr. 227, 243.) 

Further, both Dr. Wiznitzer and Dr. Halsey strongly disagreed with Dr. Lopez’ opinion 

that Scott suffered an encephalopathy in the ten days after his vaccinations of October 7, 1996. 

Both discussed Scott’s symptoms that were reported during Scott’s return visit on October 17, 

1996, and opined that such symptoms did not indicate that Scott was suffering from an 

encephalopathic process at that time. (Ex. P, p. 1; Ex. Q, p. 3; Tr. 167-71, 240-42, 283-85.)
12

V

RESPONDENT’S EXPERTS WERE FAR MORE PERSUASIVE IN GENERAL

For all of the reasons set forth in this section and the sections of this Decision below, I 

conclude that Petitioners have failed to demonstrate that it is “more probable than not” that 

Scott’s vaccinations of October 7, 1996, played any role in causing or aggravating his severe 

neurodevelopmental disorder. And the first of the reasons for this conclusion is simply that I 

found Respondent’s primary experts, Drs. Wiznitzer and Halsey, to be far more persuasive than 

the experts upon whom Petitioners relied, Drs. Lopez and Franz.

A. Qualifications

In this regard, I start with the qualifications of the opposing experts relative to the issues 

raised by Petitioners’ claim. In short, the credentials of Respondent’s experts are vastly superior. 

Scott is a child who has been given a diagnosis within the autism spectrum by several of his 

treating physicians, and as a part of his opinion in this case Dr. Lopez argues that such autism 

diagnosis is not a proper diagnosis for Scott. However, Dr. Wiznitzer disputes that part of 

Dr. Lopez’s opinion, and, with regards to the topic of autism, Dr. Wiznitzer is far more qualified 

than Dr. Lopez.

Dr. Wiznitzer regularly diagnoses and treats autism as a major part of his everyday 

clinical practice. (Tr. 209, 218.) He has participated with national committees in designing 

protocols for the screening and diagnosis of autism. (Tr. 211.) He has participated in developing 

protocols for treating autism as well. (Tr. 212.) He has participated in major research projects 

concerning autism. (Tr. 212-13.) And he has published articles about autism. (Tr. 213.)

In contrast to Dr. Wiznitzer, Dr. Lopez acknowledged that in his clinical practice, he does 

not treat autism, nor diagnose autism. (Tr. 134, 145.) He has never been involved in studies of 

autism. (Tr. 143.) He has published no articles about autism. (Tr. 144.)

In a similar fashion, Dr. Halsey is far more qualified than Dr. Lopez in terms of 

knowledge of the causation of disease by the measles vaccine and other vaccines. Dr. Halsey is 

board-certified in the area of pediatric infectious disease. (Tr. 158.) In a long and distinguished 

career, he has served in many medical organizations concerning vaccinations. (See generally Ex. 

F; Tr. 162.) He has served as the director of the Institute of Vaccine Safety at the Johns Hopkins 

Hospital. (Tr. 160.) He served for ten years on the Committee on Infectious Disease of the 

American Academy of Pediatrics, including four years as its chair. (Tr. 162.) He served for 

seven years on the immunization committee of the World Health Organization. (Tr. 161-62.) He 

has written more than 200 peer-reviewed publications concerning immunizations and vaccinepreventable diseases, has authored or co-authored over 40 book chapters pertaining to 

immunizations, and has been a reviewer or editor for dozens of medical journals. (Tr. 162-63.)

In contrast to Dr. Halsey, Dr. Lopez claimed no special experience concerning vaccines, 

vaccine-preventable diseases, or vaccine-safety issues. He acknowledged that he has never 
13

studied the measles vaccine, and has published no written material concerning vaccines. (Tr. 

143-144.)

B. General deficiencies in Dr. Lopez’ testimony

But even more importantly than the vast gap in qualifications, between Dr. Lopez and 

Respondent’s primary experts, was the even greater gap in the experts’ ability to explain their 

opinions. The written reports and hearing testimony of both Drs. Wiznitzer and Halsey seemed 

to me to be coherent and logical. In contrast, the written reports of Dr. Lopez were short and not 

well explained, while his hearing testimony was often poorly explained, self-contradictory, and 

less than logical.

In fact, throughout his participation in the case, I often had difficulty understanding 

exactly what the opinion of Dr. Lopez was, much less his reasoning for that opinion. For 

example, Dr. Lopez began his first expert report by quoting a one-paragraph description of a 

well-known condition that was often seen after infection with the wild measles virus, commonly 

known as “measles encephalitis” or “measles encephalopathy.” (See Ex. 38, p. 1, first 

paragraph.11) That caused me, Respondent’s experts, and apparently even Petitioners’ own 

attorney (see, e.g., Tr. 81-82, 93) to believe that Dr. Lopez was identifying Scott’s MMR

vaccination, particularly the measles vaccine, as the culprit in Scott’s disorder, and was opining 

that Scott had suffered from a form of “measles encephalopathy” or “measles encephalitis.”12 

Then, during his hearing testimony on direct exam, Dr. Lopez again referred to the same

description of “measles encephalopathy” with which he had begun his first expert report (Tr. 81, 

line 19, to Tr. 82, line 2), and testified explicitly that such description did fit the description of 

Scott’s case set forth in Scott’s medical records. (Tr. 82, lines 7-11.) Again, this testimony of 

Dr. Lopez made it appear that he was opining that Scott suffered from the well-recognized 

condition of “measles encephalopathy” or “measles encephalitis.”

However, Dr. Halsey, the renowned measles expert, then testified that while “measles 

encephalitis” was well-recognized as occurring after infection by the measles virus, and 

occasionally after exposure to the measles vaccine, in contrast, Scott’s symptoms, as described in 

his visit 10 days after his vaccinations in question, were nothing like the well-recognized 

“measles encephalitis” condition. (Tr. 167-71.)

In response, Dr. Lopez changed or clarified his testimony in a fairly drastic way. 

Suddenly, he now “agreed with Dr. Halsey that Scott didn’t have measles encephalitis.” (Tr. 

274.) Dr. Lopez added that he “didn’t recall” saying that Scott had “measles encephalitis” (id. at 

 11 That paragraph turns out to have been mostly a direct quote from an article by Dr. Menkes, 

which appears at Ex. 22a, p. 681, in this case. However, in his Ex. 38 Dr. Lopez neither used 

quotation marks nor indicated where the material was from.

12 In both his Ex. 38 (p. 1) and during his hearing testimony, Dr. Lopez quoted from the Menkes 

textbook excerpt, in which this well recognized post-measles condition is described as 

“encephalopathy” (see Tr. 81, line 19). However, as Dr. Halsey testified, this condition is more 

often called “measles encephalitis.” (Tr. 169-72, 177.)
14

line 19), and seemed to suggest that if he had so stated, his statement had been a “mistake” (id. at 

line 20). Dr. Lopez then appeared to opine that Scott had suffered a different type of 

encephalopathic reaction to a vaccination, with much less drastic symptoms than those of classic 

“measles encephalitis.” (Tr. 274-79.)

Dr. Lopez also “clarified” at the hearing, under cross-examination, another crucial point 

that was far from clear in his written reports. He explained that it was not necessarily the 

measles vaccine that caused Scott’s condition, but could have been any of the seven separate 

vaccines that Scott received on October 7, 1996. (Tr. 104.) (As noted above, Scott received the 

measles, mumps, and rubella vaccinations, as part of the MMR inoculation, and also the 

diphtheria, tetanus, pertussis, and haemophilus influenza type B vaccinations, as the four 

components of the Tetramune immunization.) This testimony again undermined Dr. Lopez’

reliability as an expert, because he had begun his first expert report with a quotation that seemed 

to attribute Scott’s condition to a measles vaccination, and then specifically indicated in his 

direct examination that Scott suffered from “measles encephalopathy.” (Tr. 93, lines 18-21.) In 

other words, Dr. Lopez’ apparent ambivalence as to whether he was pointing specifically to the

measles vaccine, or generally to any of the seven vaccines, cast doubt on his reliability.

There were other glaring flaws and self-contradictions in Dr. Lopez’ reports and hearing 

testimony that diminished his persuasiveness as an expert. For example, in his first expert report, 

Dr. Lopez stated that there was evidence that Scott was suffering from a condition known as 

subacute sclerosing panencephalitis (“SSPE”). (Ex. 38, p. 2.) But then, in his second report, 

Dr. Lopez discarded that allegation, admitting that Scott did not suffer from SSPE. (Ex. 42, 

p. 1.)

Similarly, Dr. Lopez opined in his second written report that Scott was suffering from an 

“ongoing and persistent autoimmune process.” (Ex. 42, p. 1, part (c).) Yet, in his hearing 

testimony, he changed his opinion on that point as well, stating that Scott was not suffering from 

an ongoing autoimmune process. (Tr. 101.)

There were other major discrepancies in Dr. Lopez’ logic that made him seem, in the 

final analysis, to be very unpersuasive. Two of those flaws will be described at length in the next 

two sections of this Decision. First, Dr. Lopez insisted that Scott’s condition should not be 

labeled “autism,” for a very strange reason, despite the fact that Scott’s treating physicians have 

consistently diagnosed him with autism. (See part VI of this Decision below.) Second, 

Dr. Lopez’ entire opinion is dependent on a description of symptoms that Scott displayed about 

10 days after his vaccinations in question, when in fact such symptoms, as actually described in 

the medical records, seem to be very minor ones. (See part VII of this Decision below.) Again, 

Dr. Lopez’ analysis of these symptoms seemed illogical on its face, even before being 

thoroughly refuted by respondent’s more qualified experts.

In contrast to the vagueness, ambivalence, self-contradiction, and illogic of Dr. Lopez’ 

testimony, the testimony of Drs. Wiznitzer and Halsey was coherent, consistent, and logical 

throughout.
15

To be sure, I do not conclude that Dr. Lopez was intentionally being less than candid and 

honest. Nor do I have any reason to doubt that Dr. Lopez is a competent clinical practitioner in 

his field. My conclusion is simply that, in general, the presentations of Drs. Wiznitzer and 

Halsey in this case were far more persuasive than that of Dr. Lopez. 13

VI

DR. LOPEZ WAS UNPERSUASIVE IN ARGUING THAT AUTISM IS

NOT AN ACCURATE DIAGNOSIS FOR SCOTT

As noted above, a key part of Dr. Lopez’ opinion in this case is that he believes that 

Scott’s neurodevelopmental disorder should not be considered to be within the autism spectrum. 

Dr. Lopez has opined that if one can identify a cause for a neurodevelopmental disorder, which 

he believes that he has for Scott’s disorder (i.e., a vaccination cause), then such disorder should 

not be considered to be autism. (E.g., Ex. 42, p. 1; Ex. 43, p. 1.)

However, based upon the record of this case, I conclude that Dr. Lopez is simply wrong 

on this point.

First, as explained above (pp. 10-12), Dr. Wiznitzer is far better qualified than Dr. Lopez 

to opine concerning the topic of autism. And Dr. Wiznitzer testified persuasively that Dr. Lopez 

is “totally wrong” in his understanding of autism. (Tr. 226.) Dr. Wiznitzer testified that 

Dr. Lopez was incorrect to state that if a specific cause can be identified, then the disorder is 

thereby not autism. (Tr. 227.) Dr. Wiznitzer listed several types of autism for which specific 

causes are known. (Id.) Dr. Wiznitzer testified that autism is clearly the correct diagnosis for 

Scott. (Ex. P, p. 1; Tr. 243.)

Further, Scott’s medical records show that his own treating physicians have consistently 

identified Scott as having a disorder within the autism spectrum. For example, on November 12, 

1998, Scott was given the diagnosis of “autistic disorder” by Dr. Michael Pollack. (Ex. 3.5, p. 

56.) On September 9, 1998, Dr. Aftab Qadir noted that Scott has “pervasive developmental 

 13 I have found two instances in which other special masters of this court have commented on the 

opinions offered by Dr. Lopez in Vaccine Act cases. In Banks v. HHS, 2007 WL 2296047, at 

*13 (Fed. Cl. Spec. Mstr. July 20, 2007), Special Master Abell relied upon the opinion of 

Dr. Lopez, finding him to be “personally and professionally credible.”

On the other hand, a vaccine-causation opinion by Dr. Lopez was recently rejected emphatically 

by Special Master Vowell in Henderson v. HHS, No. 09-616V, 2012 WL 5194060 (Fed. Cl. 

Spec. Mstr. Sept. 28, 2012). In that case, as in this one, Dr. Lopez opined that a 

neurodevelopmental disorder, which had been described as “autism,” should not be considered to 

be autism because Dr. Lopez considered it to have been vaccine-caused. Special Master Vowell 

rejected that opinion as incorrect, just as I do in this case. (2012 WL 594060 at *13, and fn. 49.) 

Referring to Dr. Lopez’ causation opinion in the Henderson case in general, Special Master 

Vowell stated that a “better example of both circular and post hoc, ergo propter hoc reasoning 

would be difficult to find.” (Id. at *3.)
16

disorder NOS,” another diagnosis within the autism spectrum. 14 (Ex. 5.1, p. 3--see also fn. 5

above.) On January 13, 1999, Dr. Jeff Bradstreet stated that Scott’s disorder was “autism.” (Ex. 

6, p. 3.) Dr. Cornelia Franz also diagnosed Scott’s condition as “autism.” (Ex. 28, pp. 1-3.)

In short, the record of this case indicates that Dr. Lopez is quite wrong in this part of his 

opinion. Contrary to the opinion of Dr. Lopez, Scott clearly does suffer, tragically, from a 

disorder within the autism spectrum.

VII

THE EVIDENCE DOES NOT SUPPORT A CONCLUSION THAT

SCOTT’S SYMPTOMS OF OCTOBER 17, 1996, WERE

INDICATIVE OF AN ENCEPHALOPATHY

As explained above, the second major component of Dr. Lopez’ opinion in this case is his 

interpretation of the symptoms that Scott experienced about 10 days after his vaccinations on

October 7, 1996. As noted, Scott returned to Dr. Seibel ten days later, on October 17, 1996, and 

the physician’s notes concerning the visit indicate that Scott was “pulling at his ears,” was 

“fussy,” had “loose stools,” and had “low grade,” apparently meaning a slight fever. (Ex. 3.4, 

p. 1.) The notes made by Scott’s mother concerning the same visit indicate that Scott was 

exhibiting symptoms including, “appetite/diarrhea/tired/fever/grouchy/gassy/yellow-red spots.” 

(Ex. 46, p. 7.) Dr. Lopez has interpreted those symptoms to indicate that Scott was suffering at 

that time from an “encephalopathy”--i.e., a brain injury--caused by a misguided reaction of his 

immune system to one of the seven vaccines that Scott received on October 7. (Exs. 38, 42, 43; 

Tr. 72-73.) However, consideration of the entire record makes me conclude that Dr. Lopez is 

quite mistaken in his interpretation of those symptoms. There are two major reasons for this 

conclusion.

First, Scott’s treating pediatrician at the time, Dr. Siebel, noted those symptoms, but was 

apparently not alarmed at all by them. The pediatrician clearly did not conclude from those 

symptoms that Scott was undergoing an encephalopathy, since he did not send Scott to a hospital 

or to a specialist. Based on those symptoms, the treating pediatrician concluded instead that 

Scott was “teething.” (Ex. 3.4, p. 1.) It is quite dubious that Dr. Lopez’ re-interpretation, years 

later, of the written notations concerning Scott’s symptoms, would be more reliable than the 

assessment of the pediatrician who actually examined Scott at the time.

Further, Dr. Seibel specifically noted on July 16, 1997, 10 months after the shots in 

question, that Scott had not suffered any “immunization reaction.” (Ex. 3.5 at 1.)

 14 In their post-hearing brief, petitioners point out that one of Scott’s physicians, Dr. Qadir, 

diagnosed him not with “autism” but with “Pervasive Developmental Disorder--NOS”). (Brief 

at p. 7, para. 33; Ex. 5.1, p. 3.) However, “Pervasive Developmental Disorder Not Otherwise 

Specified,” also known as “PDD-NOS,” in fact, is one of the disorders included within the 

autism spectrum. See, e.g., Tr. 262-63; King v. HHS, No. 03-584V, 2010 WL 892296 at *5 (Fed. 

Cl. Spec. Mstr. Feb. 12, 2010).
17

Second, Respondent’s experts were quite persuasive in their opinions that Dr. Lopez’ 

interpretation of Scott’s symptoms was grossly mistaken. Dr. Halsey testified strongly in this 

regard. (Tr. 167-76.) Dr. Halsey noted that the pediatrician’s notation that Scott “drinks well,” 

in the notes of the October 17 visit (Ex. 3.4, p. 1), contradicts Dr. Lopez’ conclusion that Scott 

was suffering from an encephalopathy at that time. (Tr. 168.) Dr. Halsey summarized that 

Dr. Lopez’ interpretation of Scott’s symptoms “just doesn’t make sense; it doesn’t meet 

anybody’s case definition for encephalopathy.” (Tr. 167.) Dr. Halsey explained that an infant’s 

symptoms would have to be much more severe to justify a conclusion that the child was 

undergoing an encephalopathy. (Tr. 168, 170, 171, 200-201.)

Dr. Wiznitzer also testified that the symptoms in Scott’s records do not justify Dr. Lopez’ 

inference of an encephalopathy. (Tr. 240-42.) Dr. Wiznitzer, like Dr. Halsey, pointed to the 

notation that Scott was drinking well at the time, as indicative that Scott was not 

encephalopathic. (Tr. 241.) Dr. Wiznitzer explained that the pediatric records did not indicate 

any impairment of Scott’s consciousness or significant change in his mental status. (Tr. 240-41.) 

He opined that if Scott were actually undergoing an encephalopathy, the pediatrician would have 

recognized it. (Tr. 241.) And he also noted that if Scott had suffered a post-vaccination 

encephalopathy, that would have appeared on Scott’s MRI as damage to the gray matter of his 

brain, which it did not. (Tr. 231-32.)

In this regard, I also note that Dr. Lopez’ testimony on this point changed significantly 

during the evidentiary hearing. As explained above (p. 13), after the measles expert, Dr. Halsey, 

testified that Scott’s symptoms on October 17 could not possibly justify a diagnosis of the wellrecognized condition of “measles encephalitis,” Dr. Lopez then seemed to opine that Scott had a 

different type of reaction to a vaccination, with much less drastic symptoms than those of classic 

“measles encephalitis.” (Tr. 274-79.) However, Dr. Halsey then testified in rebuttal that he also 

disagreed with Dr. Lopez’ new theory that Scott experienced not classic “measles encephalitis,” 

but some type of lesser encephalopathic reaction that could have been caused by any of the seven 

vaccines that Scott received on October 7, 1996. (Tr. 282-86.) Dr. Halsey, with his extensive 

background in the field of vaccines and vaccine safety issues, testified that he knew of no 

evidence whatsoever to support the Dr. Lopez’ theory that one of the vaccines that Scott received 

could have caused an encephalopathy that began with Scott’s very mild symptoms of 

October 17, 1996, but went on to result in Scott’s severe permanent neurodevelopmental 

disorder. (Tr. 283-285.) Dr. Halsey testified that Dr. Lopez’ proposed scenario is neither 

plausible nor reasonable. (Tr. 285, 289-90.)15

In short, based on the record as a whole I must reject the essence of Dr. Lopez’ opinion, 

that based upon the symptoms that Scott experienced about October 17, 1996, he suffered a 

vaccine-caused encephalopathy that also caused his permanent, severe neurodevelopmental 

disorder. That theory of Dr. Lopez seems extremely unlikely on its face, because it is based 

 15 Petitioners asserted in their post-hearing brief that Dr. Halsey “conceded” that it would be 

“plausible” that a vaccine “might” cause an encephalopathy “that occurred within a few days of 

vaccination.” (Post-Trial Memo, p. 11, para. 59; see Tr. 284-85.) But Dr. Halsey then went on 

specifically to explain that there was no reason to suppose that the type of mild symptoms 

displayed by Scott about October 17, 1996, were evidence of an encephalopathy. (Tr. 285, 289-

90.)
18

upon such mild reported symptoms. That theory is also contradicted by the diagnosis of 

“teething” made by Scott’s own treating pediatrician on October 17. (Ex. 3.4, p. 1.) And, 

finally, Dr. Lopez’ theory was convincingly refuted by two well-credentialed experts, 

Drs. Halsey and Wiznitzer. I reject Dr. Lopez’ theory.

VIII

DR. FRANZ’ OPINION DOES NOT CHANGE MY CONCLUSION

As previously noted, Petitioners rely not only upon the expert opinion of Dr. Lopez, but 

also upon the opinion of Dr. Cornelia Franz, who was Scott’s treating pediatrician. Dr. Franz did 

not testify at the evidentiary hearing. Instead, she supplied an affidavit, which stated that 

“[b]ased on my 25 years of experience as a pediatrician, and after reviewing the photographs and 

DVD footage supplied to me, it is my opinion that Scott Patrick Franklin * * * was developing 

normally and meeting appropriate milestones for his age at 11 months. He thereafter suffered 

some form of neurologic injury, which resulted in loss of language and regression in behavior 

and most likely permanent injury to his brain.” (Pet. Ex. 39 at 2.) Dr. Franz added that Scott’s 

neurodevelopmental disorder “would be consistent with an encephalopathic reaction to 

vaccination,” and that “more likely than not his neurological damage was caused by 

encephalopathy after vaccination.” (Id.)

Dr. Franz is a board-certified pediatrician with over 25 years of practice, and has treated 

Scott herself. (Ex. 39, p. 1.) Accordingly, I greatly respect her opinion, and have given it 

careful consideration.16 However, in my final analysis, I find that Dr. Franz’ opinion is strongly 

outweighed by the rest of the evidence in the record concerning the causation issue, particularly 

the testimony of Drs. Halsey and Wiznitzer.

In this regard, I note that not only did Dr. Franz not testify, but she also did not set forth 

in her written opinion any detailed explanation concerning why she believes that Scott’s 

neurodevelopmental disorder was vaccine-caused. (See Ex. 39.)

In support of her opinion, Dr. Franz gave the following explanation in her affidavit. She 

noted that she compared photographs of Scott taken in July of 1996, to photos taken on 

December 25, 1996. (Ex. 39, p. 1, paras. 5-6.) She also compared videos of Scott taken in 

March and June of 1996 with videos taken in May of 1997. (Id. at pp. 2-3, para. 7.) Dr. Franz 

explained that while the July 1996 photos and May/June 1996 videos show a normal child, the 

December 1996 photos and May 1997 videos show a neurologically-damaged child. (Id. at pp. 

 16In Capizzano v. HHS, the U.S. Court of Appeals for the Federal Circuit stressed that “medical 

records and medical opinion testimony are favored in vaccine cases, as treating physicians are 

likely to be in the best position to determine whether “a logical sequence of cause and effect 

shows that the vaccination was the reasons for the injury.’” 440 F. 3d 1317, 1326 (Fed. Cir. 

2006) (emphasis added, citation omitted). Similarly, in several cases, judges of this court have, 

in resolving the Vaccine Act causation issues, relied heavily upon the statements of treating 

physicians contained in the vaccinee’s medical records. See, e.g., Zatuchni v. HHS, 69 Fed. Cl. 

612, 623 (2006); Kelley v. HHS, 68 Fed. Cl. 84, 100 (2005).
19

2-3, paras. 6, 8.) From that difference in the photos and videos, Dr. Franz concluded that Scott 

must have “suffered some form of neurologic injury” in the meantime. (Id. at p. 2, para. 9.) She 

added that such injury “would be consistent with an encephalopathic reaction to vaccination.” 

(Id.)

Dr. Franz, however, did not explain why she believes that the neurological change or 

injury to Scott was caused by a vaccination. She did not explain which vaccine she thought 

might have caused the injury, nor by what mechanism any vaccine might have caused the injury, 

nor why she thinks any of the vaccines in question are capable of causing the type of severe 

neurodevelopmental disorder from which Scott suffers. Given these deficiencies in her affidavit, 

I cannot conclude that she made a persuasive causation argument.

Moreover, I must give Dr. Franz’ opinion far less weight than the opinions of 

Drs. Wiznitzer and Halsey, who not only wrote detailed reports refuting Dr. Franz’ causation 

conclusion, but were willing to testify in order to explain their views at length, and were able to 

do so in a highly persuasive manner.

Dr. Wiznitzer also specifically addressed Dr. Franz’ affidavit in his hearing testimony, 

convincingly pointing out the flaws in Dr. Franz’ approach to the case. (Tr. 244-45, 261-62.) As 

an expert in diagnosing autism--in contrast, there is no evidence that Dr. Franz has any special 

experience concerning autism--Dr. Wiznitzer disagreed with the way in which Dr. Franz used 

photographs to come to a conclusion about Scott. (Tr. 244-45, 258-59.) Dr. Wiznitzer also 

addressed what seems to be the reasoning implied in Dr. Franz’ affidavit--i.e., that because Scott 

seemed normal, then later seemed autistic, he must have suffered a neurological injury in the 

meantime. (Ex. 39, p. 2, para. 9.) Dr. Wiznitzer explained why that is faulty reasoning, and his 

explanation was persuasive. (Tr. 261-62.)

In short, while I respect the opinion of Dr. Franz’, I found that it was strongly outweighed 

by all of the contrary evidence in this case.

IX

“SIGNIFICANT AGGRAVATION” SUGGESTION

In their “Amendment to Petition” filed on June 4, 2008, Petitioners stated an “alternative” 

position in the case, namely that “in the alternative, if any disease process [already] existed [in 

Scott] at the time of vaccination, the vaccination itself was of substantial significant aggravation 

of such condition.” However, Petitioners since then have argued only that one of Scott’s October 

1996 vaccinations originally caused his neurodevelopmental disorder, and have not argued 

“significant aggravation” as an alternative claim.

Moreover, I find no substantial evidence of “aggravation” in the record. Petitioners 

clearly have failed to demonstrate that Scott’s disorder, be it labeled autism or otherwise, was

aggravated by any vaccination.
20

X

PETITIONERS’ CASE FAILS THE ALTHEN TEST

As noted above, in its ruling in Althen, the U.S. Court of Appeals for the Federal Circuit 

discussed the Acausation-in-fact@ issue in Vaccine Act cases. The court stated as follows:

Concisely stated, Althen=s burden is to show by preponderant evidence that the 

vaccination brought about her injury by providing: (1) a medical theory causally 

connecting the vaccination and the injury; (2) a logical sequence of cause and 

effect showing that the vaccination was the reason for the injury; and (3) a 

showing of a proximate temporal relationship between vaccination and injury. If 

Althen satisfies this burden, she is Aentitled to recover unless the [government] 

shows, also by a preponderance of evidence, that the injury was in fact caused by 

factors unrelated to the vaccine.@

Althen, 418 F.3d 1274, 1278 (Fed. Cir. 2005) (citations omitted). In the pages above, of course, I 

have already set forth in detail my analysis in rejecting Petitioners’ Acausation-in-fact@ theory in 

this case. In this part of my Decision, then, I will briefly explain how that analysis fits 

specifically within the three parts of the Althen test, enumerated in the first sentence of the Althen

excerpt set forth above. The short answer is that I find that Petitioners’ theory in this case clearly 

does not satisfy any of the parts of the Althen test.

A. Relationship between Althen Prongs 1 and 2

One interpretative issue with the Althen test concerns the relationship between the first 

two elements of that test. The first two prongs of the Althen test, as noted above, are that the 

petitioners must provide A(1) a medical theory causally connecting the vaccination and the 

injury,@ and A(2) a logical sequence of cause and effect showing that the vaccination was the 

reason for the injury.@ Initially, it is not absolutely clear how the two prongs differ from each 

other. That is, on their faces, each of the two prongs seems to require a demonstration of a 

Acausal@ connection between Athe vaccination@ and Athe injury.@ However, a number of Program 

opinions have concluded that these first two elements reflect the analytical distinction that has 

been described as the Acan cause@ vs. Adid cause@ distinction. That is, in many Program opinions 

issued prior to Althen involving Acausation-in-fact@ issues, special masters or judges stated that a 

petitioner must demonstrate (1) that the type of vaccination in question can cause the type of 

injury in question, and also (2) that the particular vaccination received by the specific vaccinee 

did cause the vaccinee=s own injury. See, e.g., Kuperus v. HHS, 2003 WL 22912885, at *8 (Fed. 

Cl. Spec. Mstr. Oct. 23, 2003); Helms v. HHS, 2002 WL 31441212, at *18 n.42 (Fed. Cl. Spec. 

Mstr. Aug. 8, 2002). Thus, a number of judges and special masters of this court have concluded 

that Prong 1 of Althen is the Acan cause@ requirement, and Prong 2 of Althen is the Adid cause@

requirement. See, e.g., Doe 11 v. HHS, 83 Fed. Cl. 157, 172-73 (2008); Nussman v. HHS, 83 

Fed. Cl. 111, 117 (2008); Banks v. HHS, 2007 WL 2296047, at *24 (Fed. Cl. Spec. Mstr. 

July 20, 2007); Zeller v. HHS, 2008 WL 3845155, at *25 (Fed. Cl. Spec. Mstr. July 30, 2008). 

And, most importantly, the Federal Circuit confirmed that interpretation in Pafford, ruling 

explicitly that the Acan it?/did it?@ test, used by the special master in that case, was equivalent to 
21

the first two prongs of the Althen test. Pafford v. HHS, 451 F.3d at 1352, 1355-56 (Fed. Cir. 

2006). Thus, interpreting the first two prongs of Althen as specified in Pafford, under Prong 1 of 

Althen a petitioner must demonstrate that the type of vaccination in question can cause the type

of condition in question; and under Prong 2 of Althen that petitioner must then demonstrate that 

the particular vaccination did cause the particular condition of the vaccinee in question.

Moreover, there can be no doubt whatsoever that the Althen test ultimately requires that, 

as an overall matter, a petitioner must demonstrate that it is Amore probable than not@ that the 

particular vaccine was a substantial contributing factor in causing the particular injury in 

question. That is clear from the statute itself, which states that the elements of a petitioner=s case 

must be established by a Apreponderance of the evidence.@ (' 300aa-13(a)(1)(A).) And, whatever 

is the precise meaning of Prongs 1 and 2 of Althen, in this case the overall evidence falls far short 

of demonstrating that it is Amore probable than not@ that any of the vaccines that Scott received 

contributed to the causation of Scott’s tragic neurodevelopmental disorder.

B. Petitioners have failed to establish Prong 1 of Althen in this case

As explained above, under Prong 1 of Althen a petitioner must provide a medical theory 

demonstrating that the type of vaccine in question can cause the type of condition in question. In 

this case, however, the Petitioners have failed to show that any of the vaccines that Scott 

received on October 7, 1996, can cause the type of injury from which Scott actually suffers--i.e., 

an autism spectrum disorder.

To be sure, the evidence in the case confirms that the wild measles virus can cause a wellrecognized condition known as “measles encephalitis” or “measles encephalopathy.” And some 

experts have suggested that the attenuated (weakened) form of the measles virus contained in the 

measles vaccine might also be capable of causing “measles encephalitis,” though that suggestion 

is unproven. (E.g., Tr. 170-71.) However, in this case Petitioners’ own expert Dr. Lopez 

eventually conceded that Scott did not have “measles encephalitis.” (Tr. 274.)

Thus, the Petitioners’ burden in this case under Althen’s Prong 1 would be to show that 

one of Scott’s vaccines can cause the type of neurodevelopmental disorder from which Scott 

actually suffers--i.e., autism. This they have clearly failed to do. As explained above, neither 

Dr. Lopez nor Dr. Franz even asserted, much less demonstrated, that any of the vaccines Scott 

received can cause autism. Accordingly, in this case Petitioners have clearly failed to 

demonstrate Prong 1 of Althen.

C. Petitioners have failed to establish Prong 2 of Althen in this case

Under Prong 2, the Petitioner would need to show that it is “more probable than not” that 

one of Scott’s vaccinations did cause Scott’s own severe neurodevelopmental disorder. But this 

they have failed to do, for all the reasons detailed at pp. 11-19, above. Thus, Petitioners have 

also failed to establish Prong 2 of Althen in this case.

D. Prong 3 of the Althen test 
22

Since I have explained why Petitioners have failed to satisfy either of the first two prongs 

of Althen, I need not discuss why Petitioners’ case also fails to satisfy the third prong.

E. This is not a close case

As noted above, in Althen the Federal Circuit indicated that the Vaccine Act involves a 

“system created by Congress, in which close calls regarding causation are resolved in favor of 

injured claimants.” (418 F. 3d at 1280.) Accordingly, I note here that this case ultimately is not

a close case. For all the reasons set forth above, I found that Dr. Lopez’ theory was not at all 

persuasive, while Respondent’s experts were far more persuasive.

XI

ISSUE OF OAP “GENERAL EVIDENCE,” EXHIBITS Z AND AA

As explained above, Scott has been diagnosed as suffering from the neurodevelopmental 

disorder known as “autism.” For that reason, Petitioners chose, as described above, to delay the 

resolution of their case for several years, to await the outcome of the Omnibus Autism 

Proceeding (OAP). As further described, when the outcome of the OAP test cases was 

unfavorable to the vaccine-causation theories, the Petitioners in this case then chose to rely upon 

the opinions of Drs. Lopez and Franz. In response, Respondent filed the expert reports of Drs. 

Wiznitzer and Halsey, as described, but also sought permission to file certain additional evidence 

from the OAP test cases into the record of this case. Specifically, on August 30, 2011, 

Respondent filed excerpts of OAP hearing testimony given by two of respondent’s experts, 

Dr. Diane Griffin and Dr. Brian Ward. (Exs. Z, AA.) The issue of whether such excerpts were 

appropriate to be considered in this case was discussed at length during several status 

conferences. (See, e.g., my Orders dated March 28, July 5, August 17, and October 27, 2011.) I 

permitted the filing of those two exhibits, over Petitioners’ written objection filed on October 3, 

2011, because those two experts had testified concerning the potential effects of the measles

virus and measles vaccine on the human brain, and Dr. Lopez’ theory appeared, at that time, to 

be that the measles portion of Scott’s MMR vaccination caused his neurodevelopmental disorder 

by damaging his brain.

In permitting the filing of those two exhibits, however, I stressed during the status 

conferences that I was not making a final ruling as to whether I would actually utilize those two 

exhibits in deciding the case. That would depend on the evidence that was to be presented at the 

evidentiary hearing on November 30, 2011, and whether the evidence in the two exhibits proved 

to be relevant to Dr. Lopez’ theory as presented at the evidentiary hearing. I further stressed that 

we would revisit the issue of the relevance of the two exhibits at the conclusion of the 

evidentiary hearing, and, if necessary, in the parties’ post-hearing briefs.

17

Ultimately, however, I concluded that the two exhibits in question were not relevant to 

the Petitioners’ theory, as finally clarified by Dr. Lopez during the November 30 hearing. Those 

 17 I note that the evidentiary hearing was originally scheduled for two days, November 30 and 

December 1, 2011, but actually was finished by the close of the first day.
23

exhibits, therefore, played no role whatsoever in my resolution of this case. Once I heard 

Dr. Lopez’ clarification of this theory during the November 30 hearing, and the refutation of that 

theory by Respondent’s experts during that hearing, I concluded that there was no relevance to 

the two exhibits, because, as explained above, Dr. Lopez clarified that his theory was not related 

specifically to the measles vaccine.

Similarly, no expert for either side referred to Exs. Z and AA during the evidentiary 

hearing, and in the post-hearing briefs of both parties, no references were made to Exs. Z and 

AA.

Accordingly, I did not review Exs. Z and AA in the course of resolving this case. Those 

exhibits played no role in my analysis of this case, which was based solely on the presentations 

of the experts upon whom the parties did rely--i.e., Drs. Lopez, Franz, Halsey, and Wiznitzer.18

XII

PETITIONERS’ OTHER ARGUMENTS

I also briefly address several points raised by Petitioners in their post-hearing brief, filed 

on April 30, 2012.

A. “Objective confirmation” argument

For example, Petitioners note, correctly, that no “objective confirmation” is required to 

establish proof of vaccine-causation. (Brief at 22.) However, I have not required any such 

“objective confirmation.” I have required Petitioners only to demonstrate that it is “more 

probable than not” that Scott has a vaccine-caused injury--but they have failed, by far, to do so.

B. “Alternative cause” argument

Petitioners also seem to argue that Respondent failed to pinpoint a cause, other than the 

vaccines, for Scott’s tragic disorder. However, the identification of a cause was never 

Respondent’s burden. Petitioners never came close to fulfilling their burden of establishing a 

prima facie case of causation under the Althen test, so the burden never shifted to Respondent to 

point to an alternative cause.

C. Banks opinion

Petitioners, in addition, discussed at length the case of Banks v. HHS, 2007 WL 2296047, 

2007 U.S. Claims Lexis 254 (Fed. Cl. Spec. Mstr. July 20, 2007.) The Banks opinion is, indeed, 

an interesting one, but in the final analysis it is so different from this case that it offers no 

substantial assistance to Petitioners’ case here.

 18 In other words, I resolved this case solely upon the record of this case, without reference to any 

evidence from the OAP record.
24

To be sure, in Banks, the same Dr. Lopez was the primary expert witness for the 

petitioners, and the special master, based in part upon Dr. Lopez’ testimony, did conclude that an 

infant’s severe neurodevelopmental disorder, which appears to have been a form of autism, was 

caused by an MMR inoculation. But the facts of that case were far different from those here. 

For example, in Banks, the infant experienced a significant seizure, a clear sign of brain 

malfunction, 16 days after the MMR inoculation. (2007 WL 2296047 at *2.) In this case, in 

contrast, Scott exhibited only the very minor symptoms described above, about 10 days postinoculation, which were diagnosed by his pediatrician merely as evidence of “teething.”

As another example, the Banks infant had a brain scan done on the day after the abovementioned seizure, only 17 days post-vaccination, and on that scan positive evidence of a 

demyelinating process was found. (Id. at 3.) In this case, in contrast, there exists no such 

clearcut evidence of brain malfunction in the period soon after inoculation. Further, in Banks, 

the special master found that the infant’s autism was the result of a specific neurologic condition 

known as “ADEM” (id. at *15), and the Respondent’s expert in that case acknowledged that it 

was “biologically plausible” that the measles vaccine could trigger ADEM (id. at 13). No 

similar circumstances exist in this case.

In short, the Banks case involved facts far different from this case. And Dr. Lopez’ 

causation theory offered in Banks appears to have differed greatly from his theory offered in this 

case. Further, in Banks, the special master was not presented with the expert testimony of Drs. 

Wiznitzer and Halsey, which I found to be so persuasive in this case. Accordingly, while I find 

the Banks opinion to be interesting, and I respect the special master who issued it, I do not find 

that the Banks opinion offers any substantial support for the very different causation theory 

advanced by Dr. Lopez under the far different facts of this case.

D. Hannah Poling case

Petitioners also point to a Vaccine Act case involving a child named Hannah Poling, in 

which Hannah’s family received a Program award on her behalf. (Brief at 25-28; see also fn. 1, 

p. 11 of that Brief.) Petitioners argue that Scott’s case is similar to the Poling case. This 

argument, however, is also without merit.

First, Petitioners, rather strangely, do not cite to any opinion or decision, published or 

otherwise, in the Poling case. They did not attempt to file into the record of this case any 

documents from the Poling case, or about Hannah Poling. They do not cite to any part of the 

record of this case in which any of their experts discussed or commented on the Poling case. 

Petitioners’ counsel, rather, simply asserts, without saying why, that “the facts of the Poling case 

are probably familiar to all with any association to the vaccine court.” (Brief at 25.)

Petitioners go on to describe certain facts that they assert to be facts of the Poling case. 

(Id. at 25-26.) They even place quotation marks around a phrase that allegedly describes 

Hannah’s diagnosis, without saying what they are “quoting” from. (Id. at 26.) Petitioners argue 

that the facts of this case and the Poling case are similar to each other, and therefore I should 

make an award on Scott’s behalf.
25

Petitioners’ argument in this regard must be rejected, for many reasons. First, it is highly 

inappropriate as a matter of law that, after the evidentiary record in this Franklin case was

closed, Petitioners should simply allege facts about another case, without stating where they

obtained those alleged facts. I must reject this argument for that reason alone.

Further, a public document relating to that Poling case does in fact exist, which is a 

published opinion relating to a procedural issue in that case--Poling v. HHS, No. 02-1466V, 2008 

WL 1883059 (Fed. Cl. Spec. Mstr. April 10, 2008).19 That published opinion does not set forth 

in any detail the facts of the Poling case, but it does briefly explain that compensation was 

awarded in Poling because the Respondent conceded that the facts of that case demonstrated that 

a vaccination “significantly aggravated an underlying mitochondrial disorder” in Hannah. (Id. at 

*1.)

Thus, from the only published opinion that sheds any light at all on the Poling case, the 

only facts that we know make it clear that the Poling case was, in fact, far different from this 

case--i.e., Hannah Poling had an “underlying mitochondrial disorder.” Such a disorder is not

alleged in Scott’s case. Further, we know that the special master in Poling did not make a 

finding that a vaccine aggravated Hannah’s disorder, but rather the Respondent conceded the 

case, for reasons unexplained.

Therefore, in my view, the Petitioners’ argument in this case concerning the Poling case 

is late, completely unsupported, and offers no support at all for the contention that Scott Franklin

has suffered a vaccine-caused injury.

E. Arguments concerning Dr. Wiznitzer

Petitioners further complain that Dr. Wiznitzer, while clearly an expert on autism, is 

“biased” in that he has frequently testified for the Respondent in Vaccine Act cases, but has

never testified for a petitioner in an actual Vaccine Act hearing. (Brief at 28.) Dr. Wiznitzer 

explained, however, that in a number of cases he was asked to support the Respondent’s position 

in a Vaccine Act case, but could not do so. (Tr. 215-16.) He has also supported vaccinecausation cases of a number of his own patients. (Tr. 214-15.) To be sure, Dr. Wiznitzer clearly 

does not agree with those who believe that a substantial number of cases of autism in this 

country have been caused by vaccinations. However, I have found that, in each case in which he 

has testified before me, Dr. Wiznitzer closely examined the facts of the case, used his 

considerable medical expertise to analyze those facts, and presented his honest opinion 

concerning the case. I do not find that he has been a “biased” witness in this or any other case.

Finally, Petitioners’ brief also argues, without any citation whatsoever to the record in 

this case, that Dr. Wiznitzer erred concerning the issue of “eye contact” by Scott. (Brief at 29.) 

Without citation to the record, I have not located this allegedly mistaken testimony. In any 

event, based on the overall record of this case, I find that Dr. Wiznitzer was a very 

knowledgeable and persuasive witness, far more persuasive than Petitioners’ witnesses.

 19 I also found another published opinion from that same Poling case, but that relates only to an 

attorneys’ fees award. See Poling v. HHS, No. 02-1466V, 2011 WL 678559 (Fed. Cl. Spec. 

Mstr. Jan. 28, 2011).
26

XIII

CONCLUSION

The record of this case demonstrates plainly that Scott Franklin and his family have been 

through a tragic medical ordeal. They are certainly deserving of great sympathy. Congress, 

however, designed the Program to compensate only the individuals whose injuries or deaths can 

be linked causally, either by a Table Injury presumption or “causation-in-fact” evidence, to a 

listed vaccine. In this case, as described above, no such link has been demonstrated. 

Accordingly, I conclude that the Petitioners in this case are not entitled to a Program award.20

 /s/ George L. Hastings, Jr. 

 George L. Hastings, Jr.

 Special Master

 20 In the absence of a timely-filed motion for review of this Decision, the Clerk of the Court shall 

enter judgment accordingly.