# In th e United States Court of Federal Cl aims

No. 11-631V (F iled Under Seal: F ebruary 27, 2018) (Reissued for Publication: March 14, 2018) 1

************************************* ROY GREENE, *

* Petitioner, * Vaccine Act; Motion for Review; Tetanus-

* Diphtheria Vaccine; B rachial Neuritis;

v. * Causation-in-F act; Althen Prong Three;

* Motion for Reconsideration Under Vaccine SECRETARY OF HEAL TH AND * Rule 10(e) HUMAN SERVI CES, *

* Respondent. *

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

Richard Gag e, Chey enne, W Y, for petitioner.

Robert P. Coleman I I I , United States Department of J ustice, W ashing ton, DC, for respondent.

OP INION AND ORDER

SWEENEY , J udg e
Petitioner Roy

Greene seeks compensation under the National Childhood Vaccine I njury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34 (2012), for an alleg ed vaccine-caused injury . B efore the court is petitioner’s motion for review of the special master’s decision deny ing compensation. B ecause the special master applied the incorrect leg a l standard when evaluating the evidence offered by

petitioner, the court g rants petitioner’s motion and vacates the special master’s decision.

I. BACK G ROUND
Petitioner filed a petition for compensation under the Vaccine Act on September 29, 2011, alleg ing that he developed brachial neuritis as a result of a J uly 22, 2009 tetanus-diphtheria

1 Vaccine Rule 18(b), contained in Appendix B of the Rules of the United States Court of F ederal Claims, affords each party fourteen day s in which to object to the disclosure of (1) trade secrets or commercial or financial information that is privileg ed or confidential or (2) medical information that would constitute “a clearly unwarranted invasion of privacy .” Neither party objected to the public disclosure of any information contained in this opinion.(“Td”) vaccination. 2 He asserted two theories of recovery : first, that he was entitled to

compensation pursuant to the Vaccine I njury Table, which provides that brachial neuritis that develops between two and twenty -eig ht day s after receiving a vaccine containing

tetanus tox oid is a compensable injury ; and second, that he was entitled to compensation because the Td vaccine actually

caused his brachial neuritis.

The special master held a fact hearing in March 2015 to determine the onset date of petitioner’s brachial neuritis. I n a J uly 31, 2015 decision, the special master found that petitioner’s sy

mptoms beg an no earlier than September 1, 2009–forty -one day s after the Td vaccination. B e cause petitioner’s sy mptoms arose after the time period prescribed in the Vaccine I njury Table, the special master dismissed petitioner’s Table claim.

Over the nex t two y ears, in an effort to resolve petitioner’s remaining claim of actual causation, petitioner filed two expert reports from Thomas W . W rig ht, M.D., and the parties eng ag ed in settlement discussions. I n September 2016, the special master learned that the settlement discussions had not been successful because respondent rejected as inadequate petitioner’s showing that forty -one day s was a medically acceptable time frame for the Td vaccine to cause brachial neuritis. Thus, the special master directed petitioner to file a supplemental ex pert report. I n early 2017, petitioner filed an ex pert report from Marcel Kinsbourne, M.D.

I n March 2017, respondent filed a motion for a ruling on the record, to which petitioner responded the following

month. I n a May 26, 2017 decision, the special master found that the record did not support petitioner’s claim that the Td vaccine caused his brachial neuritis because petitioner could not establish, more probably than not, that a forty -one-day period between the vaccination and the first sy mptoms of the injury

was medically

acceptable.

On J une 16, 2017, petitioner filed a motion for reconsideration pursuant to Vaccine Rule 10(e), as well as a supplemental ex pert report from Dr. Kinsbourne and supporting documentation (including eig hteen medical and scientific articles and a letter/report from Vera S. B y e rs, M.D., Ph.D.). I n his motion, petitioner arg ued that he had provided sufficient evidence to establish that a forty -one-day onset period was medically acceptable, but that if the special master continued to deem the ex isting evidence insufficient, Dr. Kinsbourne’s supplemental ex pert report and supporting

documentation would establish the medical acceptability of the onset period.

Vaccine Rule 10(e)(3) provides that a “special master has the discretion to g rant or deny

” a motion for reconsideration “in the interest of justice.” I f a special master g rants a motion for reconsideration, Vaccine Rule 10(e)(3)(A) provides that “the special master must file an order

2 The court derives much of the backg round from the special master’s September 26, 2017 decision. See g enerally Greene v. Sec’y of HHS, No. 11-631V, 2017 W L5382856 (F ed. Cl. Spec. Mstr. Sept. 26, 2017). The remaining backg round is taken from the docket of the case.

-2-withdrawing the challeng ed decision” and that the withdrawn decision “becomes void for all

purposes and the special master must subsequently enter a superseding

decision.” Pursuant to Vaccine Rule 10(e)(3)(A)(ii), “[ t] he special master may not . . . issue a superseding decision reaching a different result from the orig inal decision without affording the nonmoving party

an opportunity

to respond to the moving party ’s argu ments.”
The special master g

ranted petitioner’s motion for reconsideration in a J une 19, 2017 order, which provided:

ORDER GRANTI

NG PETI TI ONER’S MOTI ON F OR RECONSI DERATI O N

On May 26, 2017, Iissued a decision deny ing Petitioner’s request for compensation and dismissing his claim. ECF No. 93. Petitioner then filed a motion for reconsideration of my decision on J une 16, 2017, alongwith a supplemental (albeit unauthoriz ed) ex pert report and several items of previously -unfiled medical literature. ECF Nos. 94-97.

Ihereby g rant the motion for reconsideration. According ly , the clerk of the Court is hereby

instructed to withdraw the orig inal decision issued on May 26, 2017.

Iwill discuss the nex t steps for resolving this claim with the parties during the status conference currently set for J une 28, 2017.

I n accordance with this order, the docket entry for the May

26, 2017 decision was amended to reflect that the decision had been withdrawn. Specifically
, the following lang uag e was added at the beg inning of the docket entry : “**VACATED PURSUANT TO ORDER . . . OF 6/19/2017.**”

The special master conducted a status conference with the parties on J une 28, 2017, and issued an order later that day memorializ ing the proceeding s:

The status conference was held to discuss Petitioner’s recent motion for reconsideration and supporting materials filed on J une 16, 2017. . . .

. . . [ A fter I

g ranted Respondent’s motion for a ruling on the record]
, Petitioner filed a fourth supplemental expert report and numerous additional pieces of literature aimed at bulwarking the onset/timing issue. Althoug h these materials were filed late, I have determined that in fairness to Petitioner I must at least consider them (althoughIwill weig h their persuasiveness ag a inst the fact of their dilatory

submission), and therefore I am reconsidering

my dismissal decision.

-3-Prior to deciding reconsideration, however, I informed the parties that I would g ive them one final opportunity to eng ag e in litig ative risk settlement neg otiations. . . . I f petitioner cannot compromise on the amount of requested damag e s, he risks a determination on reconsideration that the new evidence is simply too dilatory

to chang e my

previous decision. . . .

I f the parties fail to reach an ag reement, Respondent will have the opportunity

to submit an opposition to Petitioner’s motion for reconsideration.

(first and third emphasis added). The parties were unable to reach a settlement, and thus respondent filed a response to petitioner’s motion for reconsideration on Aug ust 23, 2017.
On September 26, 2017, the special master issued a “Decision on Reconsideration Deny ing Entitlement.” At the outset of the decision, he stated that he had withdrawn his earlier entitlement decision “to evaluate the merits of the reconsideration request.” Greene, 2017 W L 5382856, at *1. Then, in a section containing the case’s factual and procedural history , the special master indicated that he was “incorporat[ ing ] by reference” the facts and procedural history set forth in his withdrawn decision. I d. He also succinctly described the conclusion he reached in the withdrawn decision, indicating that he had cautioned petitioner that he could not “rely on a timeframe set for a Table claim to justify the timeframe for a comparable non-Table claim,” that petitioner’s ex perts nevertheless relied solely on the Vaccine I

njury Table’s twenty

eig ht-day time frame to support the reasonableness of a forty -one-day time frame, that “neither of Petitioner’s ex perts offered any substantiation for why

41 day s was medically

acceptable,” and that petitioner’s ex perts “merely set forth an opinion on timeframe based on their ipse dix it.” I d. at *2.

The special master then described the arg uments advanced by

petitioner in his motion for reconsideration and the new evidence submitted by petitioner in conjunction with his motion. W ith respect to the latter, the special master remarked:

[ O] f the 19 [ documents] filed [ in support of Dr. Kinsbourne’s supplemental ex pert report] , only

seven directly

involve brachial neuritis or an arg uably parallel condition. Some are inapposite case studies in which the affected individual

ex p erienced a possible vaccine-related reaction far sooner than relevant herein. Dr. Kinsbourne nevertheless arg ues that the risk interval incorporated into the Table’s brachial neuritis claim would have been long er if the relevant studies when the Table claim was created had not over-relied on such limited instances (or ex cluded long er timeframe occurrences outrig h t). Of course, in making that arg ument, Petitioner was once ag ain attempting to leverag e the adequacy of the Table timeframe in his favor–a posture I have already rejected in my initial entitlement decision.

-4-Dr. Kinsbourne also attempts to analog iz e brachial neuritis to other

autoimmune diseases such as [ Guillain-B arré sy ndrome (“GB S”)]
, g iven the fact the both involve peripheral nerve damag e, and possibly the same autoimmune targ et and/or antibodies. B ut to do so, he invoked scientific or medical literature that upon close inspection was not reliable for the purpose cited. Thus, Dr. Kinsbourne cites [ an article by R. Verma] (“Verma”) as helping establish the association between GB S and brachial neuritis mechanistically (and therefore in turn allowing for the conclusion that timeframes associated with one could be applied to the other). Verma, however, not only involved a three-person case study (a ty pe of evidence that [ Vaccine] Prog ram case law g enerally g ives less weig ht), but addressed brachial neuritis arising after an active deng ue fever infection rather than post-vaccination. And each case study evaluated in Verma involved post-infectious onset occurring in a far more acute manner than herein.

I n seeking to establish a long er timeframe for Td-induced brachial neuritis, Petitioner offered some reliable items of literature discussing the timeframes accepted in the medical community for autoimmune illnesses. [ A n article by A. Rowhani-Rahbar (“Rowhani-Rahbar”)] proposed risk interval estimates for two adverse events following

vaccine administration–febrile seizures and acute disseminated encephalomy elitis (“ADEM”). F or ADEM (the closest analog to Petitioner’s brachial neuritis, g iven its neurolog ic nature), Rowhani-Rahbar concluded that the likely

time period from vaccination to onset “best substantiated by available biolog ical and epidemiolog ic data” was five to 28 days. A secondary
, long er interval of two to 42 day s was also deemed “biolog ically plausible,” and therefore worthy of consideration in order to fully assess a potential safety problem, but was more uncertain, since “there mig ht be reason to suspect that most of the ex cess risk, if any , is concentrated in a much shorter period of time.” This secondary

interval has nevertheless been found persuasive by other special masters despite its admitted foundational limitations.

I d. at *3 (citations and footnote omitted).

After describing

the parties’ arg

uments on reconsideration, the special master set forth his analy sis. He beg a

n by noting that he would be apply ing the standard set forth in Vaccine Rule 10(e)(3) for ruling

on a motion for reconsideration (the “interest-of-justice standard”),

ex p laining : “Althoug h Ivoluntarily withdrew my

earlier decision, I

shall still apply

and consider the standards for reconsideration, since the underly ing merits of Petitioner’s request have not y et been resolved.” I d. at *4. Then, after setting forth the standard, he stated: “Having reviewed the materials offered by

Petitioner relevant to onset, I do not find that he has established persuasive g rounds for reversing

my earlier entitlement decision, and therefore I will reinstitute my initial decision deny

ing compensation.” I d.

-5-The special master proceeded to ex plain his decision in more detail. In itially , he found that “Petitioner was unreasonably dilatory in substantiating the long -identified deficiencies” in his showing that forty -one day s was a medically acceptable time period between a Td vaccination and the onset of brachial neuritis. I d. at *5. Then, noting that he was “loathe to reject Petitioner’s reconsideration request solely on the unjustifiably

dilatory nature of [ that] showing ,” the special master “reviewed and considered the 20-plus pieces of literature, plus supplemental report, filed after [ his withdrawn] Decision, to evaluate if they fill[ ed] the evidentiary

hole in [ Petitioner’s] overall showing

. ” I d . at *6. He found that they did not:

Petitioner has offered little evidence directly relevant to the injury at issue–a failing not completely fatal to his claim, but still a factor to be taken into account in determining

how much weig ht to g ive the evidence offered overall. He has offered case studies which larg ely underscore the reliability of the Table’s timeframe, but do not bulwark his claims that a long e r period is acceptable. He has also made an inadequately specific showing

with respect to either the illness in question or the Td vaccine. And he has done all the above utiliz ing an ex pert, Dr. Kinsbourne, who has not been demonstrated to have specific, applicable

ex p erience with peripheral neuropathies of any kind, or brachial neuritis itself, sufficient to render his interpretation of the facts of this case or backg round science persuasive in the absence of other direct convincing proof.

B y contrast, there is applicable law relating to what is medically reasonable for onset of post-vaccination brachial neuritis–but it is not favorable to Petitioner. F o r ex ample, in Garner . . . , I considered a claim that the Hepatitis A and B vaccines caused Parsonag e-Turner Sy ndrome (a parallel descriptor for brachial neuritis). The earliest onset possible in Garner was 45 day s after vaccination . . . . Respondent’s expert, however, arg ued that the condition was far more acute in nature (and in terms of the causative mechanism), making in his opinion four weeks the outer limit for latency . Ifound this point to be dispositive . . . . Nothing Petitioner has argued in this case is any more persuasive than what I have previously

rejected in like circumstances.

Iacknowledg e that Petitioner has offered some reliable evidence supporting the medical acceptability of a 41-day

onset for other autoimmune conditions. Rowhani-[ Rahbar] , for ex ample, supports the assertion that an autoimmune process could beg in in the same timeframe that [ Petitioner]

ex p erienced. B ut the fact that this article does not involve brachial neuritis, or any comparable peripheral neuropathic injury , does somewhat limit its applicability

. More g enerally
, it is too sweeping to maintain that there is a sing le temporal y ardstick applicable to any autoimmune illness. To so arg ue is to ig nore the different way s in which specific kinds of injuries unfold. . . . Petitioner’s showing is thus too nonspecific to the injury at issue, even if it is based in reliable science.

-6-I d. (citations omitted). Considering his procedural and substantive objections tog e ther, the

special master stated:

Althoug h Ihave attempted to avoid resolving this reconsideration request solely on the basis of Petitioner’s untimely acts, my weig hing of the late-filed substantive evidence is nevertheless reasonably informed by the temporal circumstances of its filing

. I f Petitioner had been able to marshal more straig htforward and/or compelling evidence supporting

the conclusion that the timing of onset of his brachial neuritis was medically acceptable–either due to directly on-point literature or by

citing prior decisions involving the same injury –the streng th of that showing would not be as diminished by its dilatory character. Here, however, the evidence is mix ed at best, and requires too much reliance on timeframes relevant to disting uishable autoimmune illnesses. Such evidence is thus insufficiently novel or persuasively

striking enoug h on its own to ig nore its unjustifiably

late assertion.

I d. (emphasis added).

Thus, at the end of his decision, the special master concluded:

The record does not support Petitioner’s alleg ation that his Td vaccine more likely

than not caused his brachial neuritis 41 day s following the vaccination. Petitioner has not established entitlement to compensation, and therefore I must DI SMI SS the claim.

I n the absence of a timely -filed motion for review . . . , the Clerk shall enter judg ment in accordance with this decision.

I d. at *7. Notably , the special master did not direct the clerk to reinstate or refile his withdrawn decision (or to remove the tex t from the docket entry for the May

26, 2017 decision indicating that the decision had been withdrawn 3 ). Nor does the withdrawn decision appear on the website of the United States Court of F ederal Claims (“Court of F ederal Claims”) or in the online databases maintained by

W estlaw and L ex isNex is.

Petitioner timely

filed a motion for review of the special master’s September 26, 2017 decision on reconsideration, which respondent opposes. Upon reviewing the record that was before the special master and hearing argument on F e bruary

13, 2018, the court is prepared to rule.

3 I nstead, a note was added to the docket entry for the May

26, 2017 decision to indicate that the entry

was modified on September 26, 2017 “to correct docket tex t and to remove restriction on [ the] attachment.”

-7-II. DISCUSSION

A. Standard of

Review

The Court of F e d e r al Claims has jurisdiction to review the record of the proceeding s before a special master, and upon such review, may :
(A) uphold the finding s of fact and conclusions of law of the special master and sustain the special master’s decision,

(B ) set aside any

finding s of fact or conclusion of law of the special master found to be arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own finding s of fact and conclusions of law, or

(C) remand the petition to the special master for further action in accordance with the court’s direction.

42 U.S.C. § 300aa-12(e)(2). The standards set forth in section 12(e)(2)(B ) “vary in application as well as deg ree of deference. . . . F act finding s are reviewed . . . under the arbitrary and capricious standard; leg al questions under the ‘not in accordance with law’ standard; and discretionary

ruling s under the abuse of discretion standard.” Munn v. Sec’y of HHS, 970 F .2d 863, 870 n.10 (F ed. Cir. 1992).

I n the instant case, petitioner enumerates, pursuant to Vaccine Rule 24, two objections to the special master’s September 26, 2017 decision. F irst, petitioner contends that “[ t] he special master erred as a matter of law in apply ing the standard for considering a motion for reconsideration under Vaccine Rule 10(e) to his actual consideration of the case on the merits after g ranting a Vaccine Rule 10(e) motion.” Mot. 1. Second, petitioner asserts that “[ t] he special master erred as a matter of law by increasing

the burden of proof on Petitioner to supply direct evidence instead of circumstantial evidence of a medically appropriate time frame for onset . . . .” I d. Petitioner according ly requests that the “Court rule that Petitioner has made a leg ally adequate showing

of causation and remand this case [ to the special master] for a determination of damag es.” I d. at 20. Petitioner further requests that the “Court order that this case be reassig

ned to a new special master.” I d.

B. The Special Master’s Application of the Interest-of

-Justice Standard Was Legal Error
Petitioner first argues that the special master, in his September 26, 2017 decision, should not have applied the interest-of-justice standard because the special master had already ruled on petitioner’s motion for reconsideration on J une 19, 2017. Respondent disag rees, asserting that the special master explained in his J une 28, 2017 order that he considered the merits of petitioner’s motion for reconsideration to be unresolved, and that the special master’s application of the interest-of-justice standard in his September 26, 2017 decision did not prejudice

-8-petitioner. 4 As ex plained below, the court concludes that the special master erred by apply ing the interest-of-justice standard in his September 26, 2017 decision, and that in doing so, he prejudiced petitioner.

Pursuant to Vaccine Rule 10(e)(3), special masters have “the discretion to g rant or deny

” a motion for reconsideration “in the interest of justice.” As the special master noted in his September 26, 2017 decision, there is a paucity of case law construing the interest-of-justice standard. The prevailing

assumption is that the standard “is cong ruent with the ‘manifest injustice’ standard utiliz ed under Rule 59(a) of the Rules of the Court of F ederal Claims, which has been defined to be unfairness that is ‘clearly apparent or obvious.’” Greene, 2017 W L 5382856, at *4 (quoting Amnex , I nc. v. United States, 52 F ed. Cl. 555, 557 (2002)). B ut see Krakow v. Sec’y

of HHS, No. 03-632V, 2010 W L5572074, at *5 (F ed. Cl. Spec. Mstr. Nov. 12, 2010) (“[ T] he ‘interest of justice’ standard is likely less onerous than ‘manifest injustice.’”). According to the special master, “[ a] t bottom, the question is whether reconsideration would provide a Vaccine Act petitioner a full opportunity to prove her case.” Greene, 2017 W L 5382856, at *4. As such, the interest-of-justice standard is separate and distinct from the standard for resolving

the merits of the underly ing claim for compensation. 5

4 Althoug h respondent observes that petitioner did not object to the special master’s characteriz ation of the motion for reconsideration as unresolved, he does not advance a waiver arg ument. According ly , the court need not consider whether petitioner waived his objection.

5 Petitioner seeks compensation under a theory of actual causation. To prove causation under the Vaccine Act, a petitioner must

show by preponderant evidence that the vaccination broug h t about [ his] injury

by providing (1) a medical theory causally connecting the vaccination and the injury ; (2) a log ical sequence of cause and effect showing that the vaccination was the reason for the injury ; and (3) a showing of a prox imate temporal relationship between vaccination and injury

. Althen v. Sec’y

of HHS, 418 F .3d 1274, 1278 (F ed. Cir. 2005). Establishing the third element of the Althen test “requires preponderant proof that the onset of sy mptoms occurred within a timeframe for which, g iven the medical understanding of the disorder’s etiology , it is medically acceptable to infer causation-in-fact.” de B az an v. Sec’y of HHS, 539 F

. 3d 1347, 1352 (F ed. Cir. 2008).

“The determination of causation in fact under the Vaccine Act involves ascertaining whether a sequence of cause and effect is ‘log ical’ and leg ally

probable, not medically or scientifically

certain.” Knudsen v. Sec’y of HHS, 35 F .3d 543, 548-49 (F e d. Cir. 1994). Thus, causation can be established with circumstantial evidence–in other words, with medical records or medical opinion. Althen, 418 F .3d at 1279-80 (citing 42 U.S.C. § 300aa-13(a)(1)). A petitioner “need not produce medical literature or epidemiolog ical evidence to establish

-9-I n his J une 19, 2017 order, the special master unambig u ously and unconditionally

g ranted petitioner’s motion for reconsideration. Althoug h the special master subsequently stated, in his J une 28, 2017 order, that he had not y et “decid[ ed] reconsideration,” the J une 19, 2017 order g ranting reconsideration did not ex plicitly or implicitly

indicate that the motion had not been fully resolved. 6 I n other words, the special master’s J une 28, 2017 statements reg arding the status of petitioner’s motion for reconsideration did not alter the leg al effect of the J une 19, 2017 order g ranting reconsideration. 7 Thus, the special master should not have applied the interest-ofjustice standard in his September 26, 2017 decision. 8

causation,” but “where such evidence is submitted, the special master can consider it in reaching an informed judg ment as to whether a particular vaccination likely caused a particular injury .” Andreu v. Sec’y

of HHS, 569 F .3d 1367, 1379 (F ed. Cir. 2009); see also id. at 1380 (remarking that a special master may assess “the relevant scientific data” when determining whether a petitioner has offered a reputable and reliable ex planation supporting his theory of causation); Capiz z ano v. Sec’y

of HHS, 440 F .3d 1317, 1325 (F ed. Cir. 2006) (“[ R] equiring either epidemiolog ic studies, rechalleng e, the presence of patholog ical markers or g e netic disposition, or g eneral acceptance in the scientific or medical communities to establish a log ical sequence of cause and effect is contrary to what we said in Althen[ , and] impermissibly raises a claimant’s burden under the Vaccine Act . . . .”). B ut see L a L o nde v. Sec’y of HHS, 746 F .3d 1334, 1341 (F ed. Cir. 2014) (“I

n Vaccine Act cases, petitioners must proffer trustworthy testimony

from

ex p erts who can find support for their theories in medical literature in order to show causation under the preponderance of the evidence standard. The level of specificity of such support may vary from circumstance to circumstance.”).

6 Other special masters have stated such an intent in orders addressing motions for reconsideration. See, e.g ., Order Granting Recons., J uly

28, 2015, Coz art v. Sec’y of HHS, No. 00-590V (“Petitioner’s motion is GRANTED to the ex tent that the J une 30, 2015 decision is W I THDRAW

N . W h ether petitioners will be entitled to the substantive relief that they request will be determined after further analy sis. Respondent shall file a response to petitioner’s Motion for Reconsideration . . . .”); Order Granting Recons., Mar. 4, 2014, L erwick v. Sec’y of HHS, No. 06-847V (“The Secretary ’s motion is GRANTED to the ex tent that the F ebruary 7, 2014 decision is W I THDRAW

N . W hether the Secretary w ill be entitled to the substantive relief that she requests will be determined after further analy sis. Ms. L erwick shall file a response to the Secretary ’ s Motion for Reconsideration . . . .”).

7 The special master did not amend or reissue his J une 19, 2017 order g

ranting reconsideration to accurately reflect his purported intent.

8 The court also has a housekeeping concern not raised by

petitioner in his motion for review: it is not convinced that the special master’s September 26, 2017 decision constitutes the “superseding

decision” required by

Vaccine Rule 10(e)(3)(A). That rule provides: “I f the special master g rants the motion for reconsideration, the special master must file an order withdrawing the challeng e d decision. The decision, once withdrawn, becomes void for all purposes and the

- 10-F urthermore, the special master’s application of the interest-of-justice standard prejudiced

petitioner. The special master ex plicitly stated in his decision, when assessing the probative value of petitioner’s newly submitted evidence, that his “weighing of the late-filed substantive evidence [ w as] . . . reasonably informed by

the temporal circumstances of its filing
, ” and that had petitioner “been able to marshal more straig htforward and/or compelling evidence supporting the conclusion that the timing of onset of his brachial neuritis was medically acceptable . . . the streng th of that showing would not [ have been] as diminished by its dilatory character.” I d. at *6. W h ile special masters have th e discretion to determine the probative value of evidence, Munn, 970 F .2d at 871, the timing of the submission of an ex pert report and medical and scientific literature should not affect their probative value. B e cause the special master did not weig h all of the evidence offered by petitioner based solely

on its quality , his assessment of the evidence as a whole is compromised, prejudicing petitioner.

III. CONCLUSION

B e cause the special master’s application of the interest-of-justice standard tainted his entire entitlement decision, the court need not address petitioner’s second objection–that the special master improperly increased petitioner’s burden of proving a medically

acceptable time frame for onset by

requiring him to produce direct, rather than just circumstantial, evidence. 9

special master must subsequently enter a superseding decision.” Vaccine Rule 10(e)(3)(A). W h en the special master g r anted petitioner’s motion for reconsideration, he withdrew his initial entitlement decision, rendering that decision “void for all purposes” and trig g ering the requirement to issue a “superseding decision.” B y

definition, a “superseding decision” is a decision that replaces the withdrawn, void decision. See The American Heritag e Colleg e Dictionary

1386 (4th ed. 2004) (defining “supersede” as “[ t] o take the place of; replace”). The special master obviously

intended his September 26, 2017 decision–in which he “incorporated by reference” the facts and procedural history included in his initial entitlement decision and then purported to “reinstitute” the initial entitlement decision–to be a replacement decision. However, the special master’s initial entitlement decision remains “vacated” on the case’s docket and is unavailable on the court’s website or in online databases–circumstances that may be attributable to the fact that the special master did not specifically direct the clerk, in the summation section of his September 26, 2017 decision, to reinstate or reissue his initial entitlement decision. See, e.g
., Coz art v. Sec’y

of HHS, No. 00-590V, 2015 W L 6 7 46499, at *10 (F ed. Cl. Spec. Mstr. Oct. 15, 2015) (“F or the aforementioned reasons, the undersig ned hereby

DENI ES petitioners’ Motion for Reconsideration. The Orig inal Decision will be reinstated and considered filed as of today ’s date, October 15, 2015.”). Consequently , because the September 26, 2017 decision does not contain both the special master’s orig inal finding s and conclusions (in their entirety ) and the special master’s new finding s and conclusions, it appears not to constitute a replacement decision as contemplated by

Vaccine Rule 10(e)(3)(A).

9 I t bears noting , however, that although the special master never ex plicitly stated that petitioner was required to submit direct evidence of a medically acceptable onset period for post-

- 11-Thus, for the reasons stated above, the court G RANTS petitioner’s motion for review,

VACATES the special master’s September 26, 2017 decision, and REMANDS the case to the special master to issue a new entitlement decision. 1 0 I n the new entitlement decision, the special master shall address all of the evidence offered by petitioner in support of his position that a forty -one-day

onset period is medically acceptable, and not just the evidence submitted by petitioner with his motion for reconsideration. See Vaccine Rule 10(e)(3)(A); supra note 8. F urther, the special master shall evaluate that evidence under the proper leg al standard. See supra note 5. F inally , the special master shall issue his new entitlement decision within ninety days of the date of this decision. See 42 U.S.C. § 300aa-12(e)(2); Vaccine Rule 28(b).

IT IS SO ORDERED.
s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

Td vaccination brachial neuritis, and did acknowledg e that petitioner’s “offer[ ing of] little evidence directly

relevant to the injury

at issue [ was] a failing not completely fatal to his claim,” Greene, 2017 W L

5382856, at *6, he strong ly sug g ested that direct evidence from medical or scientific literature was necessary , see, e.g ., id. at *3 (“[ O] f the 19 new items filed, only seven directly involve brachial neuritis or an arg uably parallel condition.” (emphasis added)), *6 (“[ Petitioner] has . . . made an inadequately specific showing

with respect to either the illness in question or the Td vaccine. . . . [ He has] utiliz [ ed] an ex pert, Dr. Kinsbourne, who [ lacks the] specific, applicable ex

perience . . . sufficient to render [ his opinion] persuasive in the absence of other direct convincing

proof. . . . Rowhani-Rahbar . . . does not involve brachial neuritis, or any comparable peripheral neuropathic injury . . . . Petitioner’s showing is thus too nonspecific to the injury

at issue, even if it is based in reliable science. . . . I f Petitioner had been able to marshal more straightforward and/or compelling evidence supporting

the conclusion that the timing of onset of his brachial neuritis was medically acceptable–either due to directly on-point literature or by

citing prior decisions involving the same injury

– the streng th of that showing would not be as diminished by its dilatory

character.” (emphasis added)). Such a requirement would be an improper heig htening of petitioner’s burden of proof.

1 0 The court denies petitioner’s request for an order directing that the case be reassig

ned to another special master.

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