# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 9-180V Filed: August 29, 2014

* * * * * * * * * * * * * * * * * * * * * * * * * PUBLISHED JUSTIN W. GERHARDT, * * Special Master Corcoran Petitioner, * * Entitlement; Ruling on the Record;

v. * Tetanus-dip htheria (“Td”) vaccine; * measles-mumps-rubella (“MMR”)

SECRETARY OF HEALTH * vaccine; meningococcal vaccine; AND HUMAN SERVICES, * he patitis A vaccine; hepatitis B * vaccine; influenza vaccine; encephalitis Respondent. *

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

Richard Gage , Richard Gage P.C. (WY), Cheyenne, WY, for Petitioner

Julia McInerny , U.S. Dep’t of Justice, Washington, DC, for Respondent

RULING ON ENTITLEMENT 1

On March 23, 2009, Justin Gerhardt filed th is action seeking compensation under the National Vaccine Injury Compensation Program (“the Program” 2 ). ECF No. 1 (“Petition”). Petitioner alleges that he suffere d encephalitis as a result of the tetanus-diphtheria (“Td”), measlesmumps-rubella (“MMR”), meningococcal, hepatitis A, hepatitis B, and trivalent influenza (“flu”)

vaccines he received. Id. at 1-2.

After Petitioner filed medical records in support of his claim, Respondent recommended against compensation in her Rule 4(c) Report filed August 28, 2009. See Respondent’s Rule 4(c) Report, (ECF No. 15) at 2, 14. The parties subsequen tly attempted to resolve this matter informally for over three years, to no avail. See Order (ECF No. 71) at 1. Once it was evident that settlement was not possible, the special master previously responsible for this case issued a scheduling order setting deadlines for the submission of Pe titioner’s and Respondent’s expert reports.

1 Because this ruling contains a reasoned explanation for my action in this case, it will be posted on the website of the

United States Court of Federal Claims in accordance with the E-Government Act of 2002, Pub. L. No . 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa12(d)(4)(B), however, the parties may object to the inclusi on of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has 14 days within which to re quest redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in su bstance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the ruling will be available to the public. Id.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No . 99-660, 100 Stat. 3758 (codified as amended, 42 U.S.C. §§ 300aa-10 - 34 (200 6)) [hereinafter “Vaccine Act” or “the Act”]. Individual

section references he reafter will be to § 300aa of the Act.2 On November 1, 2013, Petitioner filed an expert report from his treating physician, Renata Engler, M.D. ECF No. 84. Respondent was ordered to file a responsive expe rt report by January 15, 2014. ECF No. 85. But on that date, Respondent inst ead filed a supplemental Rule 4(c) Report containing a motion for a ruling on th e record. ECF No. 90 (“Mot.”). In it, Respondent asserted that “[P]etitioner has not shown by a preponderance of the evidence that [his vaccines] . . . caused his injuries, notwithstanding the submission of Dr. Engl er’s report,” but that Respondent would not be “spend[ing] its limited resources in further defense of this case.” Mot. at 8. As such, Respondent requested that I issue a ruling on the record. Id

.

On March 12, 2014, Petitioner responded to Respondent’s motion (ECF No. 91 (“Opp.”)) and also filed the package inserts for the hepatiti s A, hepatitis B, and MMR vaccines he received. ECF No. 92. Petitioner argued that he had satisfi ed his burden because his treating physicians opined that his vaccinations caused his injuries. Opp. at 5- 7. Petitioner also assert ed that the opinion of Dr. Engler, one of his treating phy sicians, is particularly persuasive because Dr. Engler is “one of the foremost experts on vaccines and vaccine injuries.” Id. at 7. As further corroborative proof Petitioner pointed to encephalitis being a listed side effect on the hepatitis A, hepatitis B, and MMR vaccine package inserts he submitted. Id. at 10 (citing Exs. 38 at 6, 39 at 7, and 40 at 7).

A status conference in this matter was held on April 23, 2014, during which I ordered Petitioner to supplement Dr. Engler’s report for the purpose of addressing certa in deficiencies in her initial report, such as its failure to set forth a specific theory for how th e vaccines received by Mr. Gerhardt could have caused his encephalitis. In accordance with my order, Petitioner filed a supplemental report on June 23, 2014. ECF No. 94. The matter is now ri pe for adjudication. See Vaccine Rule 20(b)(1). Based on a review of the entire record as required by the Vaccine Act (§ 300aa-13(a)(1)), I find that Petitio ner is entitled to compensation.

I. Factual Background

A. Summary of Petitioner’s Medical History

The factual summary herein is derived from unrebutted materials submitted by the parties and constituting the record before me . On January 21, 2007, Petitioner (age 23) began Officers

Candidate School with the United States Marine Co rps in Quantico, Virginia. Ex. 1 at 3. He was in “good health and [at an] optimal fitness level.” Id

.

As part of his initial basic training, Mr. Gerh ardt received the hepatitis A and hepatitis B vaccines on January 21, 2007. 3 Ex. 11 at 64. He next receiv ed the Td, MMR, meningococcal, inactivated poliovirus, and flu vaccines on January 22, 2007. Id. at 63-65. Soon thereafter, on January 25, 2007, Petitioner was observed to be disoriented when walking. Id. at 253, 257. In particular, he experienced “a sudden [loss of consciousness] 4 while standing in formation, followed

3 Petitioner was given the Twinrix bivalent vaccine, whic h is a combination of the hepatitis A and B vaccines.

4 The exact nature of this even is unclear. Some records indicate that Petitioner did not experience a loss of consciousness but was instead not feeling well and was therefore pulled out of formation and sent to the clinic. See Ex.3 by a reported fever, seizure like ac tivity and alteration in cognitive skills.” Ex. 18 at 97. Petitioner presented to the medical clinic at Quantico, where he was noted to have difficulty finding words and

was unable to remember his birthdate or Social Security number. Ex. 11 at 253.

Petitioner was subsequently tr ansferred to the emergency depa rtment of Potomac Hospital, where he was admitted with the complaint of a “change in mental status.” Ex. 2 at 1, 5. Mr.

Gerhardt knew his name and the then-current month and year, but he could not remember his birthdate or where he went to college. Id. at 5. Petitioner was then transferred to Bethesda National Naval Medical Center (“NNMC”) in Bethesda, Ma ryland (now part of Walter Reed National Military Medical Center). Id. at 16. There he was treated with acyclovir 5 due to “high suspicion” of a herpes simplex virus infection. Ex. 3 at 12.

Not long after his transfer to NNMC, Mr. Gerhardt’s treating physicians began to suspect a relationship between his vaccinations and his il lness. His diagnosis on admission to NNMC was “[u]nspecified non-arthropod-borne vi ral diseases of the central ne rvous system.” Ex. 11 at 85. The results from Mr. Gerhardt’s magnetic resonan ce imaging (“MRI”), electroencephalography (“EEG”), and cerebrospinal fluid (“ CSF”) tests were normal, however. Id. at 136; see also Ex. 1 at 7. As a result, Mr. Gerhardt’s treating physicians (in connection with an infectious disease consultation performed on January 30, 2007) “favor[ed] post-immunization effect given [petitioner’s] . . . normal CSF analys is, MRI and EEG.” Ex. 11 at 136.

Petitioner also underwent an allergy/imm unology consultation on January 30th. Ex. 11 at 136. The treating physicians who saw him at that time stated as follows:

[a]gree[d] that post-vaccination encephalitis is in the differential, however for the most part, this remains a diagnosis of exclusion. While epidemiologically, there has been little to support a definative [sic] cause and effect vaccination/meningo-ecephalitis [sic] connection, there are none-the-less scattered case reports . While the onset of symptoms (2 days) 6 was rapid, it does not rule out entirely an autoimmune mediat ed process especially in a previously vaccinated patient. . . . Given th e normal contrast/non-contrast MRI, [acute disseminated encephalomyelitis] and other de myelinating conditions seem[] less likely. Because of the temporal association, a V accine Adverse Event Report is appropriate.

Id.

11 at 257. Other records indicate that he experienced the loss of consciousness no t in formation but as he was walking

down a hall. See Ex. 11 at 253.

5 Acyclovir is “a synthetic acyclic purine nucleoside with se lective antiviral activity against herpes simplex virus (types 1 and 2, human herpes virus 3, Epstein-Barr virus, and cytomegalovirus) . . . used in the treatment of genital and mucocutaneous herpes virus infections in certain patients.” Dorland’s Illustrated Medical Dictionary (32d ed. 2012) at 24 [hereinafter Dorland’s ].

6 In asserting that Mr. Gerhardt experienced the onset of his encephalitis within two days of his vaccinations, this particular medical record is contradicted by contemporaneous records indicating (as noted above) that Petitioner
experienced his first symptoms on January 25, 2007 – no sooner than three days af ter receiving the hepatitis A and B

vaccinations on Janu ary 22nd. Ex. 11 at 63-65, 253, 257.4 Mr. Gerhardt thereafter underwent a neur ology consultation on January 31, 2007. Ex. 11 at 140. His treating physicians concluded that Petitione r’s symptoms were “not . . . neurologic in nature,” and opined that “[d]ue to [Petitioner’s ] normal EEGs, labs, PE, and basically normal mneuropsych [sic] testing, we do not feel that [there is] . . . an organic cause for [Petitioner’s] . . . mental status changes.” Id. His diagnosis was “encephalopathy [not otherwise specified] . . . possibly related to vaccine (MMR or Td).” Id. at 145. Tests for herpes simplex virus, West Nile virus, St. Louis encephalitis virus, eastern equine encephalitis virus, and mononucleosis virus were negative. Id. at 102. On the other hand, Mr. Gerhardt’s “[Chlamydophila] pneumonia IgG was noted to be elevated,” which “likely re present[ed] [a] prior infection.” Id . But Petitioner’s primary care team later noted on February 3, 2007, that th e “elevated C. pneumoni ae titer [was] likely insignificant given negative IgM titer.” Id. at 153. 7

Mr. Gerhardt was subsequently determined to be fit for duty and discharged from NNMC on February 5, 2007. Ex. 11 at 102, 144. His infectious disease physicians remained “concerned about a possible immunization reaction in light of [Petitione r’s] . . . [vaccinations] that were given 4 days prior to presentation,” but now seemed inclined to believe that it was “very unlikely that [Petitioner’s symptoms] . . . were re lated to his recent immunizations.” Id. at 102.

Shortly after his initial discharge from the NNMC, Mr. Gerhardt became ill again, and on February 27, 2007, he returned to the NNMC for a second time. During this hospital visit, Mr. Gerhardt presented or was diagnosed with a numbe r of health issues, incl uding, among other things, chronic/major depression, cognitive disorder, abdominal pain, post-vaccination encephalitis, anxiety disorder, polyuria, insomnia, memory lapses or lo ss, conversion disorder, ch ronic fatigue syndrome, and sleep disorders. Ex. 18 at 95-99. In the subs equent months, Mr. Gerhardt underwent physical therapy to address his bodily im pairments. Ex. 4 at 1-13. Over ti me, he reported some improvement in his motor coordination and overall physical health. Id. at 1-2 and 12.

In May of 2007, Petitioner’s family contacted the Vaccine Healthcare Center Network at Walter Reed Army Medical Center (“the VHC”) for an evaluation, “hoping to determine if the vaccines [he] . . . received just pr ior to symptom onset played a role in his . . . condition.” Ex. 1 at 7. As a result of his family’s out reach, Mr. Gerhardt received a comprehensive evaluation at the VHC beginning in July 2007. Ex. 1 at 2; Ex. 11 at 7. Dr. Engler (Mr. Gerh ardt’s present expert) and Dr.

Limone Collins of VHC took lead roles in the eval uation. As Dr. Engler documented at that time:

[a]cute illness and current inflammatory immune markers suggest there is an [sic] physiologic basis for this patient’s disability with outstanding questi on of an infectious etiology versus a hypersensitivity reaction to mu ltiple vaccines. The rece nt literature reports of Chlamydia infection and encephalopathy are part icularly [intriguing] since this suggests a possible treatment option since definitive treatment was never provided during

7 IgG and IgM are medical abbreviations referring to two different classes (isotypes) of immunoglobulin: Gamma and Mu, respectively. Immunoglobulin is any of the structurally related glycoproteins that function as antibodies, and is divided into five isotypes based on structure and biologic activity. Dorland’s at 919. “The presence of IgM antibodies is indicative of an active infection. By cont rast, a response that is solely of the IgG isotype is considered to indicate a

resolved infection.” Principle and Practice of Infectious Diseases 64 (7th ed. 2010).5 hospitalization. Although there was a 4-fold ti ter increase it remains open to question whether or not this was an [epi -phenomenon] due to broad immune activation or if this is a

true acute infection.

Ex. 11 at 17.

In the ensuing months, Mr. Gerhardt’s case received a great deal of scrutiny from VHC physicians. As the notes of Drs. Engler and Co llins explain, “[d]ue to the unusual and complex elements of [Petitioner’s] . . . case, a multidisciplinary case conference was held on 19 Oct[ober] 2007 with Allergy Immunology, psychiatry, and ne uropsychology to discuss treatment options. Infectious Disease input had also been received.” Ex. 1 at 8. The conferring physicians agreed on a four-part treatment plan of (1) a “30-day antibiotic course to tr eat chlamydia pneumoniae infection in the event the organism still harbored in the cent ral nervous system”; (2) a 10-day trial of steroids “in the event the patient had the rare Hashimoto ’s Encephalopathy”; (3) a trial of intravenous immunoglobulin (“IVIG”) “due to th e presence of circulating immune complexes with question of a complement mediated mechanism for patient’s c ontinued systemic and c ognitive symptoms”; and (4) a “trial of low dose naltrexone targ eting fatigue and sleep disturbance.” Id. at 3. Treatments (2), (3), and (4) were later “delayed” due to Petition er’s urination problems, dry eyes and mouth, and issues with sleeping. Id.

In March 2008, after completing a thorough examin ation and review of Mr. Gerhardt’s case, Drs. Engler and Collins made, among others, 8 three final diagnoses: “1. Suspected hypersensitivity encephalopathy secondary to multiple immunizations . . . 2. Cognitive disorder [not otherwise specified] . . . 3. Chronic Fatigue Syndrome.” Ex. 1 at 11. (Indeed – base d upon the conclusion that Petitioner’s encephalopathy and related illnesses we re vaccine-related, Drs. Engler and Collins went so far as to make the legal recommendation that th e matter was “eligible for referral and review by the Vaccine Injury Compensation Program since th e vaccines involved are part of public health mandatory vaccines.”) Id

.

Mr. Gerhardt’s diminished physical and ment al condition greatly impeded his ability to continue to perform his functions with the Marine Corps. Mr. Gerhardt underwent a psychiatric evaluation in March of 2008, as a result of which Dr. George Brandt determ ined that Petitioner “fail[ed] to meet retention standards,” and referred Petitioner to the Department of Veterans Affairs Physical Evaluation Board (“the PEB”) “for final di sposition.” Ex. 1 at 6. Th ereafter, in April 2008 the PEB began its review of Petitioner’s case. Id. at 1-2. In connection with this review, Drs. Engler and Collins prepared an extensive summ ary of Petitioner’s medical history. Id. at 1-3, 7-9. In it, they noted that Petitioner’s initial diagnoses we re encephalitis post-vaccination, cognitive disorder, and chronic fatigue syndrome ( Id. at 1), and that his discharge diagnosis on February 5, 2007 was viral encephalitis. Id. at 7.

8 Petitioner actually received eleven final diagnoses in tota l as a result of his March 2008 examination. Petitioner was also diagnosed with: immunologic disorder NEC, polyuria, headache syndromes, persistent insomnia, anxiety disorder NOS, idiopathic urticaria, dry eye syndrome, and thyroid function test nonspecific findings. The Comprehensive Summary does not indicate, however, if the diagnoses (inclu ding the primary three refere nced above) were listed in order of significance. Ex. 1 at 11-13.6 In December 2008, the PEB determined that Petitioner was “[u]nfit secondary to Hypersensitivity Encephalopathy with a cognitiv e disorder and chronic fatigue syndrome . . . [because] the medical condition or disease does interfer e significantly with [his] . . . ability to carry out the duties of his office, grade, rank, or rating.” Ex. 1 at 56. Th e PEB specifically noted that the

VHC had:

determined that [Petitioner’s] . . . presenti ng encephalitis and subsequent encephalopathy and currently unfitting cognitive disorder a nd chronic fatigue were the sequelae of a condition classified as possibly associated w ith receipt of multiple immunizations . . .

Id.

On March 7, 2011, Mr. Gerhardt’s recomme nded disposition from the Department of Defense was changed from temporary disability to permanent disability and retirement. Ex. 32. Petitioner was determined to have, among other th ings, “probable hypersen sitivity encephalitis secondary to vaccination” and “cognitive disorder [ not otherwise specified] (status post encephalitis vaccine association).” Id. at 1.

B. Analysis of Infection as Possible Cause of Petitioner’s Encephalitis and Related

Illnesses

As noted above, Mr. Gerhardt’s treating physicians gave careful consid eration to whether his encephalopathy and related illn esses might have been caused by a Chlamydia infection rather than his vaccinations. Thus, in the course of evaluating Mr. Gerhardt’s condition, the VHC

reviewed Petitioner’s overall medical case on September 24, 2007. Ex. 3 at 1-6. The report produced by that review specifically addressed the ro le this infection could have played in causing Mr. Gerhardt’s illnesses, but (a fter evaluation of test results and the medical record) ultimately

discounted it as a factor:

[c]areful review of the patient’s medical reco rds . . . showed a 4-fold increase in Chlamydia pneumoniae titer indicating a po ssible chronic infection which had never been treated with antibiotics. There have been multiple re ports of Chlamydia pneumoniae encephalitis reported in the medical literatu re. Also it was discovered that the patient has positive thyroid autoantibodies which opens the possibility of the rare Hashimoto’s encephalitis. However, a PET scan . . . proved normal, ruling out these 2 entities.

Ex. 3 at 2.

Drs. Engler and Collins’s ultimate diagnosis si milarly took into account the possibility that other causal factors precipitated Mr. Gerhardt’s illnesses – in pa rticular, a possible pre-vaccination Chlamydia infection. But they could not c onclude as such and instead noted that:

although infection during [Petitioner’s] . . . training might have played a role in the presentation of his illness, it was the consensus of the causa lity reviewing group that there is a possible association with the multiple im munizations (using World Health Organization7 definitions for causality assessments 9 ). [Petitioner’s] . . . subsequent conditions may have

resulted from this initial in sult to his central nervous system . . . [T]his encephalopathic event, whether the result of pathogen or aberrant vaccine-as sociated immune activation was

acute.

Ex. 1 at 13.

II. Evidence Offered by Petitioner

In support of his claim, Petitioner offered the following categories of evidence: (a) his medical records, and (b) two expert reports fr om Dr. Engler, one of his treating physicians.

A. Petitioner’s Medical Records

Mr. Gerhardt asserts that his medical reco rds provide “overwhelming evidence” that the

vaccines he received in Janua ry 2007 caused his injuries. See Opp. at 8. Specifically, Petitioner pointed to his medical records from the acute phase of his i llness between January 2007 and May 2007 as proof of causation. Id. at 6-7. Petitioner also pointe d to the evaluation VHC personnel performed in July 2007, and the subsequent ev aluations the PEB conducted in April 2008 and November 2008, as corroborative evidence th at his vaccines cau sed his injuries. Id. at 7. Petitioner argued that these records provide proof of causation as he was cons istently “diagnosed . . . with a postimmunization encephalitis and encepha lopathy” by his treating physicians. Id.

B. Petitioner’s Expert, Dr. Engler

In addition, Mr. Gerhardt al so filed a brief expert report from Dr. Engler, his treating physician, on November 1, 2013. Ex. 36. Dr. Engler received a bachel or’s degree in Biology and Humanities from Stanford University in 1971, and received her medical degree from Georgetown University School of Medicine in 1975. Ex. 37 (Dr. Engler’s CV) at1. Dr. Engler completed a twoyear residency in internal medicine at NNMC in 1980. Id. She then completed a two-year fellowship in allergy-immunology at Walte r Reed Army Medical Center in 1982. Id.

Dr. Engler has been a profe ssor of medicine and pediatrics at the Uniformed Services University of the Health Sciences since 1994. Id. From 2001 through 2013, Dr. Engler was the

director of the VHC. Id. Since 2013, she has been a volunteer at Walter Reed Army Medical Center in the allergy-immunology department. Id. She is board-certified in allergy-immunology and internal medicine, and has taught and conducted extensive research in the fields of immunology, allergology, and vaccinology. See id. at 3-22.

9 Respondent submitted the World Health Organization’s (“WHO”) definitions of ca usation as Respondent’s Exhibit A.

The WHO defines a possible causal relationship between a vaccine and an injury as being a “clinical event with a reasonable time relationship to vaccine ad ministration, but which could also be ex plained by concurrent disease or other drugs or chemicals.” Ex. A at 2. By contrast, WHO’s definition of a probable causal relationship is a “clinical event with a reasonable time relationship to vaccine administration; is unlikely to be attributed to concurrent disease or other drugs or chemical.” Id.8 Dr. Engler opined in her first report that Pe titioner’s “vaccines probably played a critical role in the development of [his] . . . severe ne urologic deficits.” Ex. 36 at 1. To explain her conclusion, Dr. Engler stated that “the v accines administered contain adjutants [sic] 10 that could trigger an inflammatory/autoimmune process.” Id. Dr. Engler further opined that “[a]lthough infection . . . might have played a role in the pres entation of [Petitioner’s] . . . illness, there was no

direct evidence of an acute infection” at the time of vaccination, presumably based upon the test results obtained when Mr. Gerhardt first presente d with symptoms of his illness after vaccination,

such as the CSF test. Id. Dr. Engler thus argued that the lack of evidence of infection, coupled with “the presence of circulating im mune complexes (C3d-binding assay) 11 further support[s] a likely pathogenesis of injury that involves immune infl ammation rather than dir ect infection injury.” Id . In Dr. Engler’s view, the timing of Mr. Gerhardt’s symptoms with his vaccinations, and then his subsequent hospitalization, were “co nsistent with the vaccines as a potential causative agent.” Id.

Dr. Engler acknowledges but disposes of possible alternative cau sal factors for Mr. Gerhardt’s illnesses. Thus, she noted that th ere was “a question about a Chlamydia pneumoniae infection” being present at the time of onset of his condition, but also observed that an unnamed infectious disease consultant concluded on January 30, 2007 that Petitioner’s condition was not caused by that infection. Id. Dr. Engler further noted that this infectious disease consultant concluded that, in fact, Petitioner’s “clinical pr esentation was linked to vaccine related immune

inflammation.” Id. 12

Dr. Engler also submitted a one-page supplemen tal report, dated June 20, 2014, intended to address concerns I expressed abou t omissions in her initial report. ECF No. 94-1 (Ex. 41). In it, she explained that Mr. Gerhardt was diagnosed with encephalitis, defining the illness as an “inflammation of the brain [that] can be caused by infections . . . and in association with immune reactions to other triggers including drugs and vaccines.” Id. at 1. Vaccines, Dr. Engler stated, can activate the immune system to i nduce protective responses that in some cases may be self-reactive, damaging the host’s nerve tissue and causing au toimmune inflammatory diseases, such as

10 It is likely Dr. Engler meant to use the term “adjuvant,” which is defined as a nonspecific stimulator of the immune

response. Dorland’s at 32.

11 C3d (complement component 3) is a B-cell growth factor serum protein generated by inactivation of C3b (a constituent of the classical pathway C5 convertase). Dorland’s at 393. An increase in the C3 levels generally can be indicative of the existence of an inflammatory illness. Mosby’s Manual of Diagnostic and Laboratory Tests 188 (3rd ed. 2006).

12 Dr. Engler‘s first report also cited the fact that that the “[Food and Drug Administration (the “FDA”)] approved package inserts for both hepatitis B and tetanus vaccines descri be[] a risk of encephalopathy and convulsions .” Ex. 36 at 1. As exhibits attached to his filing in opposition to Respondent’s motion for a ruling on the record, Petitioner included the package inserts from hepatitis A, hepatitis B, and MMR v accines, holding them out as corroborative evidence that

the vaccines he received were in fact cau sative. ECF No. 92. But statements contai ned in vaccine package inserts do not constitute reliable proof of causation, an d certainly cannot be deemed admissions that the vaccines in question harmed a particular petitioner. See Werderitsh v. Sec'y of Health & Human Servs. , No. 99–319V, 2005 WL 3320041, at * 8 (Fed. Cl. Spec. Mstr. Nov. 10, 2005) (quoting 21 C.F.R. § 600.80( l) as saying “[a] report or information submitted by a

licensed manufacturer . . . does not necessari ly reflect a conclusion by the license d manufacturer or FDA that the report or information constitutes an admission that the biological product caused or contributed to an adverse effect”). I accordingly do not give this particular evidence much weight in my analysis.9 encephalitis. Id. Molecular mimicry is a potential mechanism for these adverse events. Id. In such cases, a vaccine specifically activates cross-reactive T-cells or antibodies that initiate a process which ultimately injures the host’s nerve tissues. Id.

Dr. Engler did not specify which of the vaccines Mr. Gerhardt received caused his encephalitis. Id. However, she noted that encephalitis has been “reported in association” with the hepatitis B and Tb vaccines (both of which Mr. Gerhardt received). Id. She concluded that “it is more probable than not that the combination of vacci nes contributed significantly to the onset of the patient’s illness.” Id. at 1-2.

III. Respondent’s Contentions

Respondent’s arguments against an entitlement award are wholly contained in her two Rule 4(c) Reports. The thrust of Respondent’s overall position is that Pet itioner has not provided preponderant evidence that his vaccin es caused him neurological injuries. See Respondent’s Report at 12; Mot. at 6. Respondent asse rts that Petitioner’s treating physic ians never “definitively stated that [P]etitioner’s symptoms were, more likely than not , caused in fact by his receipt of vaccines . . . . Rather, the[ir] ultimate conclusion . . . was that there was a possible – not probable – connection between [P]etitioner’s symptoms and his vaccinations.” Respondent’s Report at 13.

Respondent’s supplemental Rule 4(c) Report and accompanying motion sets forth Respondent’s reaction to Dr. Engler ’s opinion. Respondent asserted that the opinion is insufficient to support Petitioner’s claim (Mot . at 6) because Dr. Engler “does not elaborate as to which vaccines petitioner received, if any, contain adjuvants, nor does she articulate a viable theory of inflammatory/autoimmune response caused generally by adjuvants or specifically by the vaccines

here.” Id. Further, “Dr. Engler likewi se fails to discuss a mechan ism as to how [the] proposed immune inflammation resulted in encephalopathy in this case,” and fails to demonstrate how the timing of the onset of Petitioner’s symptoms was appropriate. Id . Simply stated, Respondent maintained that Dr. Engler relies primarily on the temporal relationship between Petitioner’s vaccinations and the onset of his illnesses to op ine that a relationship existed between the two. Id. at 7. Respondent also argued that “there is no eviden ce to support [Dr. Engler’s] . . . position that an immune response can be triggere d within twenty-four hours from exposure to vaccine antigens.” Id

.

In addition, Respondent disagreed with Dr. Engl er’s view that Petiti oner’s records do “not support an infectious etiology for . . . [his] encephalitis.” Id . Rather, Respondent claimed that Petitioner’s elevated Chlamydia pneumonia titer s suggest “a potential alternate cause.” Id

.

IV. Legal Standards Governing Program Entitlement Claims

To receive compensation under the Program, a pe titioner must prove either: (1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of the vaccinations in question, or (2) that his illnesses were actually caused by a vaccine (a category of claim often generically re ferred to as a “non-Table injury”). See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1); 300aa-14(a), as amended by 42 C.F.R. § 100.3; 300aa-11(c)(1)(C)(ii)(I); see10 also Moberly v. Sec’y of Health & Human Servs ., 592 F.3d 1315, 1321 (Fed. Cir. 2010); Capizzano v. Sec’y of Health & Human Servs ., 440 F.3d 1317, 1320 (Fed. Cir. 2006). 13

The Vaccine Act requires a petitioner to esta blish his entitlement to a Program award by a preponderance of the evidence. § 300aa-13(a)(1). This means that a petitioner must demonstrate that it is “more likely than not” that the vaccine at issue caused his injury. Moberly , 592 F.3d at 1322

n.2. Proof of medical cert ainty is not required. Bunting v. Sec’y of Health & Human Servs ., 931 F.2d 867, 873 (Fed. Cir. 1991). In pa rticular, a petitioner must demo nstrate that the vaccine was “not only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.” Moberly , 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Human Servs ., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Human Servs ., 451 F.3d 1352, 1355 (Fed. Cir. 2006). In determining the persuasiveness of th e evidence, the special master must assess “the record as a whole” and may not find that a petiti oner has established an entitlement to compensation based solely on his own claims “unsubstantiate d by medical records or by medical opinion.” § 13(a)(1).

Petitioner does not allege a Table injury in this case, and I do not fi nd support in the record in any event that would allow a compensation award on such grounds. 14 Petitioners such as Mr. Gerhardt attempting to establish an non-Table inju ry must typically satisfy (by a preponderance of the evidence) the three prongs set fo rth by the Federal Circuit in the Althen decision: (1) a medical theory causally connecting the vaccination to the injury ( i.e. , that the vaccine “can cause” the injury); (2) a logical sequence of cause and effect showing the vaccination was the reason for the injury ( i.e. , that in this case the vaccine “did cause” the injury); and (3) a proximate temporal relationship between the vaccination and the injury. Althen , 418 F.3d at 1279. A petitioner who successfully does so has carried hi s burden – at which poi nt the burden shifts to the Respondent to demonstrate by preponderant evidence that the petitioner’s injury is “due to factors unrelated to the administration of the vaccine.” § 300aa-13(a)(1)(B) (emphasis added). And where, as is the case here, a petitioner alleges that his receipt of a numbe r of vaccines caused his illnesses, the failure to identify or single out one of the vaccines as the predominating fact or in his alleged injury is not fatal to the claim, so long as all of the vaccin es in question are covere d under the Vaccine Act. Doe/74 v. Sec’y of Health & Human Servs. , No. _____V, 2010 WL 2788239, at *9 (Fed. Cl. Spec. Mstr. June 28, 2010).

13 Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding authority. Hanlon v. Sec’y of Health & Human Servs. , 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit decisions are binding on special masters. Guillory v. Sec’y of Health & Human Servs. , 59 Fed. Cl. 121, 124 (2003), aff’d , 104 F. App’x 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Human Servs. , No. 13-159V, 2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).

14 There is a Table injury sp ecified for the MMR vaccine wh ere a petitioner establishes he experienced encephalitis with onset occurring within five to fifteen days af ter vaccination. 42 C.F. R. § 100.3(a)(III)(B). Petitioner has not alleged, however, such a claim, nor has he attempted to prove that his illnesses were specifically the result of the MMR vaccination he received – and even if he had, the medical r ecords establish that Mr. Gerhar dt’s first symptoms occurred three days after his last vaccinations, which would be to o soon to meet the requirements for this Table injury.11 The case law permits petitioners to rely upon a variety of different kinds of proof in attempting to substantiate a Program claim. Fo r example, as the Federal Circuit has noted, contemporaneous medical records “warrant consideration as trus tworthy evidence.” Cucuras v. Sec’y of Health & Human Servs. , 993 F.2d 1525, 1528 (Fed. Cir. 1993). The Federal Circuit added that “[t]he records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper tr eatment hanging in the balance, accuracy has an extra premium.” Id.

Petitioners may be awarded Program compen sation based on “medical records or . . . medical opinion.” See § 300aa-13(a)(1); Althen , 418 F.3d at 1279-80. Alt hough expert testimony may be helpful in making an entitlem ent ruling, there are no “hard and fast per se scientific or medical rules” for finding cau sation under the Vaccine Act. Knudsen v. Sec’y of Health & Human

Servs. , 35 F.3d 543, 548 (Fed. Cir. 1994). Petitioners may therefore satisfy their burden with circumstantial evidence( Althen , 418 F.3d at 1280) which includes the opinions of treating physicians. Moberly , 592 F.3d at 1325 (holding th at “treating physician evidence . . . [can] support[] the claim of causation”); see also Carter v. Sec’y of Health & Human Servs. , No. 04-1500V, 2007 WL 415185, at *21 n. 25 (Fed. Cl. Spec. Mstr. Jan. 19, 2007). A special master may determine that a petitioner has carried his or her burden of proo f sufficient to receive a Program award even where his or her claim is not supported by conclusive me dical literature, epidemiological studies, and/or general acceptance in the scien tific or medical communities. Andreu v. Sec’y of Health & Human

Servs. , 569 F.3d 1367, 1378 (Fed. Cir. 2009).

V. Analysis

A. Overview of Evidence

There is a discrepancy in this case between the breadth of eviden ce reflected by Mr. Gerhardt’s treatment history (which would typi cally be used to establish the “did cause” Althen prong two) and Dr. Engler’s comparatively sparse e xpert reports (which woul d typically be offered to satisfy the “can cause” Althen prong one). Respondent argues that Petitioner has not presented sufficient preponderant proof to establish that the vaccines he received “can cause” the kinds of encephalitis-oriented injuries 15 he suffered to satisfy the first Althen prong. In particular, Respondent suggested that Dr. E ngler’s opinion is insufficient be cause it “fails to discuss a mechanism as to how proposed immune inflammati on resulted in encephalopa thy in this case.”

Mot. at 6.

Dr. Engler’s initial report pr ovided only a cursory explanation as to how the vaccinations Mr. Gerhardt received could inju re an individual by causing ence phalitis, and did not lay out in detail the reasoning behind the explanation that he provided. Dr. Engler appeared to embrace in part a theory that adjuvants in the vaccines might re sult in the kinds of inju ries experienced here,

15 Although Petitioner characterized his injury in his petition as non-specific “neurological injuries” ( see Petition at 1), Petitioner’s treating physicians described his conditio n more precisely as encephalopathy/encephalitis. See, e.g. , Ex. 32

at 1.12 although she provided no medical lit erature that would explain the mechanism by which such substances could trigger an autoimmune response. Ex. 36 at 1. Dr. Engler do es suggest that test results performed around the time of onset of Mr. Gerh ardt’s illness – and in particular the existence of “circulating immune complexes” discovered as a result of such tests – permit the inference that

immune inflammation rather than an infection was the cause of Mr. Gerhardt’s encephalitis. Id.

The supplemental report filed at my request in June, though also brief, added some needed heft to the first report. Dr. Engler explained the process by which a vaccine could activate the immune system causing an autoimmune inflammatory disease. Ex. 41 at 1. She also opined that immune system responses could be more severe in certain susceptible individuals, and that encephalitis has “been reported” in association with the receipt of tetanus-containing vaccines and the hepatitis B vaccine. Id. And she provided a more detailed explanation of other possible mechanisms by which the vaccines might have caused an autoimmune re sponse leading to Mr. Gerhardt’s encephalitis and related il lnesses, such as molecular mimicry. Id.

Overall, Dr. Engler’s reports do not provide much detail in theorizing how Petitioner’s vaccinations could have caused onset of his encephali tis and related injuries in the short timeframe

at issue. See Respondent’s Mot. at 6-8. Besides being f acially sparse, the re ports are not supported by any medical literatu re that would put flesh on the “bones” of their assertions. Nevertheless, I find that the two expert reports, taken together, se t forth enough of a theory to explain how Mr.

Gerhardt’s vaccination could have harmed him to c onstitute sufficiently reliable evidence satisfying the first prong of Althen

.

It is true that petitioners in the Vaccine Program cannot prevail simply by establishing the mere “possibility” that a vaccine injured them. See Bast v. Sec’y of Health & Human Servs. , --- Fed.Cl. ----, 2014 WL 3719188, at *18 (2014) (“[t]he preponderance of the evidence standard requires more than proof of a mere possibility”). Bu t at the same time, a petitioner need not prove to a scientific degree of certainty that the vaccine at issue could theoretically ha rm an individual. See Knudsen, 35 F.3d at 549 (“requir[ing] identification a nd proof of specific biological mechanisms

would be inconsistent with the purpose and nature of the vaccine compensation program”). Rather – given the Program’s goal of awarding damages to “‘vaccine-injured pers ons quickly, easily, and with certainty and generosity,’” Rooks v. Sec’y of Health & Human Servs. , 35 Fed. Cl. 1, 7 (1996) (quoting H.R. Rep. No. 908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344) – the preponderance standard is a bit more forgiving, even to expert reports (like the ones at issue in this case) that are not accompanied by substantial corr oborative proof from the medical or scientific community. See Andreu, 569 F.3d at 1379 (“a paucity of medi cal literature supporting a particular theory of causation cannot serve as a bar to recovery”) (citations omitted).

I therefore do not discount Dr. Engler’s opinions simply because they are concise. Dr. Engler has advanced a theory of causation in this case. Her s upplemental report did not merely repeat statements contained in her first report but rather expanded on earlier statements just enough to respond to my concerns. I also take note th at Dr. Engler’s credentials (and demonstrated experience with vaccine-related injuries as form er VHC director) are excellent, making her wellqualified to opine as to the matters disputed in this case.13 If the above were not enough, Dr. Engler’s dual role as both Mr. Gerhar dt’s expert and one of his primary treating physicians provides me additional grounds for considering her opinions probative. Treating physicians’ views as to the re lationship between a peti tioner’s vaccination and his subsequent injuries ar e of course usually most probative of the second Althen prong – that the vaccine in question “did cause” the petitioner’s injuries – because those doctors are uniquely positioned to determine whether “a logical seque nce of cause and effect show[s] that the vaccination was the reason for the injury.” Althen , 418 F.3d at 1280. But the same evidence considered with respect to one Althen prong can be applied to another. Capizzano , 440 F.3d at 1326; see also Caves v. Sec’y of Health & Human Servs., 100 Fed. Cl. 119, 145 (2011), aff’d, 463 F. App’x 932 (Fed. Cir. 2012) (although there is an “anal ytical demarcation” between the analysis of

Althen prongs one and two evidence, a treating physicia n’s “statement that a vaccine did in fact cause an injury presupposes that the vaccine is capable of causing that injury”).

The medical record in this case robustly esta blishes that Mr. Gerhar dt’s treating physicians (including Dr. Engler) concluded th at his vaccinations caused his en cephalitis and related illnesses. They reached this conclusion, mo reover, only after giving the matter considerable thought and rigorous analysis, weighing thei r diagnoses and discarding thos e that testing did not support. The opinions of treating physicians are generally considered “compe lling” (although not binding) in establishing a Program claim. See, e.g., Zatuchni v. Sec’ y of Health & Human Servs. , 69 Fed. Cl. 612, 623-24 (2006); Capizzano , 440 F.3d at 1326 (“treatin g physicians are likely to be in the best position to determine whether ‘a logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”). And special master s have ruled in favor of petitioners despite the

fact that the evidence is less robust with respect to one (or more) of the three Althen prongs than the other prong(s). See, e.g., Myer v. Sec’y of Health & Human Servs., No. 06-148, 2011 WL 3664358, at *11 (Fed. Cl. Spec. Mstr. July 28, 2011) (citations omitted) (strong evidence under Althen prong two may overcome weaker evidence under prongs one and three). Here, the strength and comprehensiveness of the evidence from Mr. Gerhardt’s treatment history is enough to supplement a less exhaustive expert report offered in support of Althen prong one – especially where, as here, the expert who penned the report was also one of the Petitioner’s primary treating physicians. See § 300aa-13(b)(1)(B)); Capizzano , 440 F.3d at 1320, 1326.

As a backdrop to all of the above, I also take note that Respondent has made no effort to rebut Petitioner’s expert report by providing a report of her ow n, preferring instead to raise questions about the adequacy of proof offered by Petitioner overall. In some cases (such as where the overall record was sparse, or acutely deficient in a specific regard), this approach to defending against a Program claim might be sufficient to carry the day. But Respondent’s failure in this case (which features extensive and undisputed medical r ecords) to attempt to rebut Dr. Engler’s opinions with an expert of her own is a compelling omission. Lankford v. Sec’y of Health & Human Servs.

, 37 Fed. Cl. 723, 726 (Fed. Cl. 1996) (citing Jay v. Sec’y of Health & Human Servs. , 998 F.2d 979 (Fed. Cir. 1993) (“a special master is not free to disregard testimony asser ting that a vaccine-caused encephalopathy occurred where that testimony (i) is presented by a qualified me dical specialist, (ii) reflects a reasoned evaluation of undisputed facts, and (iii) stands uncontradicted by any opposing medical opinion”).14 B. Application of Evidence to Althen Causation Prongs

Based on all of the above, I find that Petitioner has provided sufficient evidence to carry his burden of establishing that it wa s “more likely than not” that the vaccines he received in January 2007 caused the encephalitis and related injuries that he subsequently experienced.

With respect to the first Althen prong, Petitioner offered a medical theory demonstrating that

the vaccines he received could ha ve caused his encephaliti s and related illnesses. The thin nature of Dr. Engler’s expert report (whi ch has not been fully remedied by supplementation) is strengthened by the fairly comprehensive evidence from Mr. Gerhardt’s medical records that his treating physicians (which included his expert as well as other practitioners at Walte r Reed experienced with vaccine-related illnesses) deduced a relationship between the vaccines he received and his illnesses. I thus find that Mr. Gerhardt has provided just enough evidence to satisfy this first prong of his

overall causation burden.

The evidence offered in support of the sec ond prong is considerably stronger. Although the mere temporal association between vaccination and illness, in the ab sence of any other evidence, is insufficient proof of causality ( Moberly, 592 F.3d at 1323), the record he re reveals that the treating physicians’ conclusions were amply tested and suppor ted. For more than a year after Mr. Gerhardt’s vaccinations, Petitioner’s treating physicians personally examined Petitioner and his clinical course, considered whether his vaccinations were causative, and in the end concluded that his illnesses were likely vaccine-caused. See supra pp. 4-7. Corroborating the theory sketched out by the sequence of Petitioner’s illness is the report th at Drs. Engler and Collins completed with the input of their colleagues in April 2008 for Petitioner’s PEB submi ssion. Ex. 1 at 3, 7-10. They, along with several other physicians, 16 including an infectious disease cons ultant, conducted a thorough and extensive examination of Petitioner’s medical records, and caref ully examined Petitioner’s then-current state.

See id. at 5-6.

Notably, Dr. Engler and her colleagues spec ifically considered whether Petitioner’s vaccinations could have caused his injuries. See id. at 7. The first of ten differential diagnoses they made was “[s]uspect hypersensitivity encephalo pathy secondary to multiple immunizations.” Id. at 11. Drs. Engler and Collins thereupon documented th at “it was the consen sus of the causality reviewing group that there is a possible associatio n with the multiple imm unizations” Petitioner had received and his illnesses. They did not reach this determination in a conclusory fashion, moreover. For example, the treating physicia ns initially speculated that Pe titioner’s Chlamydia infection “might have played a role in th e presentation of his illness” ( Id. at 8), but they tested and subsequently disregarded that hypothesis. Afte r observing Petitioner’s elevated Chlamydia IgG titers (which would suggest a reso lved infection) without a corres ponding rise in his IgM titers (which would have, by contrast, s uggested a still-act ive infection) ( see supra note 7), and then reviewing the results of a PET s can of Mr. Gerhardt’s brain, the physicians ruled out a Chlamydia

16 Drs. Engler and Collins and their co lleagues convened a “multidisciplinary case confer ence” on October 19, 2007. The conference was composed of Drs. Engler and Collins and members from the psychiatry and neuropsychology departments. The conference also received the in put of an infectious disease “consultant.” See Ex. 36 at 1. It is unclear from the record, however, the total number of participating physicians.15 infection as the cause of Mr. Gerhardt’s illnesses. See Ex. 3 at 2; Ex. 11 at 153. Petitioner was also tested for the presence of numerous other infecti ous entities capable of ca using neurological issues, such as West Nile virus, Epstein- Barr virus, St. Louis encephalitis virus, Eastern equine encephalitis virus, and mononucleosis virus. All such tests were negative, lending streng th to the diagnosis of vaccine-caused encephalitis.

In summary, Petitioner’s case was reviewed by multiple physicians, including Dr. Engler, an allergist-immunologist and then-Dir ector of the VHC (making her especially qualified to consider the role a vaccination might play in an indivi dual’s subsequent health). Petitioner’s treating physicians were well aware that the onset of Pe titioner’s condition occurr ed shortly after he received multiple vaccinations, but the record does not show that the treating physicians relied solely on the temporal connection between vaccinati on and injury as the basis for their conclusions. Their opinions were also not based on a “simplisti c elimination of other potential causes of the injury.” Moberly , 592 F.3d at 1323. Their careful consider ation of Petitioner’s medical condition and history provides ample reason for me to fi nd their opinions reliable and persuasive. Walther

, 485 F.3d at 1151; see also Myer v. Sec’y of Health & Human Servs. , No. 06-148V, 2011 WL 3664358, at *10-11 (Fed. Cl. Spec. Mstr. July 28, 2011).

I find as well that the third Althen prong is satisfied. It requir es establishing a “proximate temporal relationship” between the vaccination and the injury alleged. Althen , 418 F.3d at 1281. That term has been equated to the phrase “m edically-acceptable tem poral relationship.” Id. To satisfy this Althen prong, a petitioner must offer “prepondera nt proof that the onset of symptoms occurred within a timeframe which, given the medica l understanding of the diso rder’s etiology, it is medically acceptable to infer causation.” de Bazan , 539 F.3d at 1352.

The explanation for what is a medically accepta ble timeframe must coin cide with the theory of how the relevant vaccine can cause an injury ( Althen prong one’s requirement). de Bazan , 539 F.3d at 1352; Shapiro v. Sec’y of Health & Human Servs. , 101 Fed. Cl. 532, 542 (Fed. Cl. 2011), recons. den’d after remand, 105 Fed. Cl. 353 (2012), aff’d mem., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v. Sec'y of Health & Human Servs. , No. 11-355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), motion for review denied (Fed. Cl. Dec. 3, 2013), appeal docketed (Fed. Cir. 2014).

Because Petitioner’s treating physicians cons idered the vaccines to be causative, they necessarily concluded that his injuries manifested within a medically acceptable period. Dr. Engler’s expert reports underscore this conclusion. Exs. 36 and 41. I thus find that Althen prong three is also satisfied.

C. Respondent Has Not Demonstrated an Altern ative Cause for Petitioner’s Illnesses

Having determined that Mr. Gerhardt provid ed sufficient preponderant evidence that his vaccinations caused him to suffer encephalitis and re lated illnesses, the burden shifts to Respondent to establish (also by the same prep onderance of the evidence standard) that Petitioner’s injuries are16 due to “factors unrelated” to the vaccines. 17 C.K. v. Sec’y of Health & Human Servs., 113 Fed. Cl. 757, 766 (2013) (citing Knudsen , 35 F.3d at 547); Deribeaux v. Sec’y of Health & Human Servs., 105 Fed. Cl. 583, 587 (2012), aff’d , 717 F.3d 1363 (Fed. Cir. 2013); see also Knudsen , 35 F.3d at 547; 42 U.S.C. § 300aa–13(a)(1)(B). Respondent can meet her burd en by relying on evidence

derived from the same record that a Petit ioner draws upon to carry his initial burden. 18

Here, Respondent failed to offer record proof su fficient to establish th e existence of a cause

of Petitioner’s illnesses unrelated to the vaccinati ons that he received. At most, she suggests that Petitioner’s Chlamydia infection, which may have been present at the time of vaccination, “is a potential alternate cause.” Respondent ’s Mot. at 7. As noted above, th ere is in the re cord evidence of such an infection, identified around the time Mr. Gerhardt first sought medical treatment after his vaccinations. Moreover, Petitioner’s treating physicians did at one time consider that infection as potentially causative (see Ex. 1 at 3, 15; Ex. 11 at 150), and in itially prescribed antibiotics for

Petitioner to combat the infection. Ex. 1 at 8. But they ultimately abandoned the hypothesis that his neurological complications and other symptoms were caused by a Chlamydia infection, based upon the tests they subsequently performed. See Ex. 3 at 2 (noting that a PET scan ruled out the possibility of Chlamydia-caused encephalitis). B ecause Petitioner’s treating physicians themselves explicitly rejected Respondent’s theory of causation, and because Respondent provides no other evidence or arguments that would cast doubt on the treating physicians’ diagnoses and determinations, Respondent has not met her burde n of establishing an alternative cause for Petitioner’s encephalitis and related illnesses.

17 Although the law pertaining to Respondent’s burden does not come into play because I find that Petitioner carried his initial burden, I reference it here because one of Respondent’s articulated arguments in opposing an entitlement award is that Mr. Gerhardt appears to have suffered from a contemporaneous, or even preexisting, Chlamydia infection. See, e.g.,

Mot. at 7.

18 For instance, in Rupert v. Sec’y of Health & Human Servs. , No. 10-160V, 2014 WL 78526, at *1 (Fed. Cl. Spec. Mstr. Feb. 3, 2014), Petitioner argued receipt of the influenza va ccine caused his Guillain-Barré syndrome (“GBS”), whereas Respondent asserted that Petitioner’s upper respiratory tr act infection, which he developed after his influenza vaccination was the primary cause. Nota bly, the treating physicians in Rupert had unequivocally stated that the likely cause of Petitioner’s GBS was his upper respiratory tract infection. Id. at 2-3, 14-15. Further, they affirmatively stated

that his influenza vaccinatio n did not cause his GBS. Id. at 3, 15. Accordingly, the special master found that Respondent had proven a cause of Petitioner’s GBS un related to his influenza vaccination. Id. at 1.17 CONCLUSION

For the reasons discussed above, I find that Petitioner is entitl ed to compensation because he has met his statutory burden of providing preponde rant evidence that his vaccinations more likely than not caused his encephalitis and related illnesses. In order to guide the parties through the damages phase of the action, a separate damages order will issue.

IT IS SO ORDERED.

/s/Brian H. Corcoran

Brian H. Corcoran Special Master