1 

# In the United States Court of Federal Claims

O FFICE OF 

### S PECIAL 

### M ASTERS 

### No. 12

- 742V
E

- Filed: September 16, 2015

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

*
SYNDEY RICH

, * UNPUBLISHED

* Petitioner, * Special Master Hamilton

- Fieldman

*

v. *
* Finding of Fact; Influenza (“Flu”) Vaccine;

* Acute Disseminated Encephalomyelitis
SECRETARY OF HEALTH * (“ADEM”); Timing of Onset of Symptoms; AND HUMAN SERVICES, * Contemporaneous Medical Records Versus

Respondent. * Testimony.

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

Andrew Downing , Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Sarah Duncan , United States Department of Justice, Washington, DC, for Respondent.

FINDING OF FACT 1

On November 1, 2012, Sydney Rich (“Petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program 2 (the “Program”). Petitioner alleged that, as a

1 Because this f

inding of fact contains a reasoned explanation for the action in this case, the undersigned intends to post this order on the United States Court of Federal Claims’ website, in
accordance with the E

- Government Act of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899,
291 3 (codified as amended at 44 U.S.C. § 3501 and note (2006)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent wi th the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material will be deleted from public acces s.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 10 et seq. (hereinafter Vaccine Act or the Act ). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.2

result of receiving an influenza (“flu” ) vaccination on September 26, 2010 3

, s he developed Acute Disseminated Encephalomyelitis (“ADEM”)

. 4 See Petition (Pet.) at 1

, ECF No. 1

.

The matter is before the undersigned at this time for a fact ruling on the question of the timing of ADEM symptom onset. T he undersigned conducted a fact hearing on October 30, 2014, at which Petitioner , her mother, Heather Rich, her college roommate, Caramia Enrich, and
her former supervisor, Aurora Tapia

- Contreras, testified. See Transcript (“Tr.”) at 3.

Respondent asserted that Petitioner’s medical records do not show complaints consistent
with ADEM until after Petitioner was hospitalized for pneumonia and a pneumothorax 5 on December 27, 2010, and that the undersigned should therefore find that symptom onset of Petitioner’s allegedly vaccine

- caused ADEM is on or after that date. Rule 4(c) Report, EC F No. 37, at 9

- 10. Petitioner conceded that her medical records were primarily focused on her pulmonary complaints, and that they do not affirmatively reflect any neurological problems prior to Petitioner’s admission to the hospital on December 27, 2010. See generally Petitioner’s Pre

Hearing Submission, ECF No. 61. However, Petitioner asserted that she has presented evidence in the form of affidavits and hearing testimony to rebut the presumptive accuracy of the medical
records . Petitioner stated that her evidence shows that she was experiencing symptoms such as dizziness, nausea, lightheadedness, weakness, difficulty with word finding, heaviness in her limbs, and pain in her legs prior during the fall of 2010, and that she had reasonable explanations
f or why those symptoms were not discussed with any of her medical providers. I d .; Pet. Ex. 1 at
2

- 3; Pet. Ex. 16 at 1

- 2; Pet. Ex. 3 at 1

- 2 ; Pet. Ex. 4 at 7; Pet. Ex. 15 at 2

.

3 Because w ritten records were missing, Respondent questioned whether Petitioner actually received the vaccine alleged to have caused her injury. See Order, April 25, 2013. A fact hearing was held on June 24, 2013 about this issue and t he undersigned issued an “Ord er and Ruling on Facts Pertaining to Petitioner’s Receipt of a Covered Vaccination” on July 26, 2013 [hereinafter “Order and Ruling”]. That Order concluded that Petitioner received the influenza vaccine on September 26, 2010, as stated in the Petition. O rder and Ruling at 10; ECF No. 35.

4 ADEM is an inflammation involving the brain and spinal cord. Dorland’s: Dorland’s Illustrated Medical Dictionary , 613 (32nd. ed. 2012). The typical cause is an acute viral infection and “it is believed to be a manifestation of an autoimmune attack on the myelin of the central nervous system.” Id. The symptoms “appear rapidly, beginning with encephalitis

- like

symp toms such as fever, fatigue, headache, nausea, and vomiting.” Furthermore, many patients experience neurological symptoms including confusion, visual blurring, weakness, and
drowsiness. See Acute Disseminated Encephalomyelitis (ADEM), Cleveland Clinic, l ast reviewed on August 22, 2014, available at: http://my.clevelandclinic.org/service s/neurological_institute/mellen

- center

- multiple

sclerosis/diseases

- conditions/hic

- acute

- disseminated

- encephalomyelitis

.

5 A pneumothorax is “an accumulation of air or gas in the pleural space.” Dorland’s: Dorland’s Illustrated Medical Dictionary , 1476 (32 nd ed. 2012).3

B ased on the reco rd as a whole, t he undersigned finds that the symptoms of Petitioner’s
ADEM began on or after her December 27, 2010 hospitalization for pneumonia and pneumothorax

.

I. Procedural History

On November 1, 2012, Petitioner filed a Petition alleging that a flu vaccination
administered in 2010 ca used Petitioner to develop ADEM . Pet. at 1

- 4. This case was initially assigned to Speci al Master Denise Vowell; the case was transferred to the undersigned on March 4, 2013. See Notices of Assignment, filed November 1, 2012 and March 4, 2013.

Following the filing of P etitioner’s medical records and aff idavits , the undersigned determined that a fact hearing regarding whether Petitioner received the vaccine in question was

necessary. See Order, ECF No. 22, at 1. A video conference fact hearing took place in Washington, DC on June 24 , 2013. Tr. at 1

- 7. On July 26, 2013, the undersigned made a determination that “Petitioner ... has established by preponder ant evidence that she received the
influenza vaccination at Memorial Christian Church in Oklahoma City, Oklahoma on S eptember 26, 2010.” Order and Ruling on Facts Pertaining to Petitioner’s Receipt of a Covered Vaccination [hereinafter “Order and Ruling”] , ECF No. 35

, at 10. T he undersigned also noted
that Petitioner had begu n to suffer from symptoms

, including fatigue and weakness

, shortly after receiving the vaccination in September 2010; however, she had a positive H1N1 test after she was hospitalized for ADEM in January 2011. Id.

On September 10, 2013, Respo ndent filed a Rule 4(c) Report in which she denied that Petitioner had presented a reputable medical theory, evidence of “a logical sequence of cause and effect,” or evidence of a “medically appropriate te mporal relationship” between Petitioner’s vaccine and her alleged injury. Rule 4 Report, ECF No. 37

, at 9

- 10. Respondent identified a dearth of documented neurological sym ptoms in the medical records prior to Petitioner’s hospitalization for pneumonia and pneumothorax on December 27, 2010, , and she articulated a theory of alternative causation. Id . at 10

- 11. Respondent did not believe that this case was appropriate for compensation. Id. at 11.

During a status conference that took place on September 19, 2013, the undersigned discussed the status of the case with the parties, who agreed to explore settlement while simultaneously preparing for a trial. See Order, ECF No. 38. Petitioner filed an expert report from Dr. David Siegler on December 9, 2013. Pet. Ex. 18 , ECF No. 39

. Between the filing of Petitioner’s expert report and Respondent’s exper t report, Petitioner identified missing medical records and filed them on July 28, 2014. Pet. Ex. 23, ECF No. 52. On September 5, 2014, Respondent filed an expert report from Dr. Michael Kohrman. Respondent’s Exhibit (“Resp. Ex.”) A , ECF No. 55

. Follow ing a status conference that took place on September 16, 2014, the parties agreed that the date of onset was still in contention and agreed that an onset hearing be
held

. See Order, ECF No. 56.

On October 9, 2014, Petitioner filed a Pre

- Hearing Submission. Petitioner’s Pre

- Hearing
Submission

, ECF No. 61. Petitioner alleged that her symptoms began earlier than January 7, 2011, when she was diagnosed with ADEM. Id. at 1. She stated that circums tantial evidence,4

including testimony and affidavits, show that Petitioner began to show symptoms of ADEM “within weeks of receiving the influenza vaccination on September 26, 2010.” Id. at 6. An Onset Hearing took place on October 30, 2014 in Oklahom a C ity, Oklahoma. See Order, ECF
No. 63.

I. The Record

a. Medical Records

Petitioner filed several medical records fro m various treating physicians. Petitioner had a

pre

- existing diagnosis, as early as 2004, of asthma, for which she was prescribed a variety of medication including Pulmicort, Singula i r, Symbicort, Advair, and Albuterol. See Pet. Ex. 4 at 51; see generally Pet. Ex. 4

. However, Petitioner did not always take the prescribed medication.
See Pet. Ex. 4 at 15, 16. Pulmonary testing conducted in 2004 , 2006, and 2010 consistently
indicated that Petitioner had a pulmonary obstruction and low vital capacity. Pet. Ex. 4 at 30,
47

- 48, 60. Otherwise, Petitioner appeared healthy and was followed frequently by her pediatrician, Dr. Colleen Dooley. See generally Pet. Ex. 4.

Petitioner received flu vaccines in 2005, 2006, 2007, 2008, and 2009, and she did not report any adverse reactions to the se flu vaccine s . Pet. Ex. 4 at 37

- 38, 42. On September 26, 2010, Petitioner received the flu vaccine at issue . Order and Ruling at 10.

About two weeks after vaccination, on October 8, 2010, Petitioner went to her pediatrician, Dr. Dooley, because she was having trouble breathing at night and was unable to get Advair, her asthma medication. Pet. Ex. 4 at 8. She was “using inhaler ‘a lot.’” Id. Although her mother often accompanied her to medical appointments, Tr. at 20, t he records reflect that Petitioner was “unaccompanied” at this visit.” Id

. Dr. Dooley’s impression was that
Petitioner was havin g an exacerbation of he r asthma and she prescribed asthma medic ation, in addition to giving Petitioner some samples. Id. Petitioner went to Dr. Dooley again on October 23, 2010 ; her mother was at this visit . Pet. Ex. 4 at 7. During the visit, Petitioner again complained about her asthma and she stated that she could not afford her medication. Id. Dr. Dooley’s impression was that Petitioner was suffering from asthma and prescribed he r
p rednisone and Singula i r. Id. The medical records from Dr. Dooley do not document that Petitioner complained of symptoms of fatigue, heavy legs, difficulty concentrating , or dizziness. See generally Pet. Ex. 4. Another visit with Dr. Dooley was not noted until April 8, 2011. 6 See
Pet. Ex s. 5 , 6

.

O n November 10, 2010, P etitioner visited the on

- campus health center at the University of Oklahoma, where she lived and attend ed school, with complaints of coughing and trouble breathing. See generally Pet. Ex. 15. On the Center’s symptom checklist, Petitioner reported that she had a fever, night sweats, a sore throat, a headach e and ear ache/pain, a cough that was interfering with her sleep , and muscle aches , but that her symptoms were “somewhat improving”. Id. at 2

. Exam notes documented wheezing, a red pharynx, and mucus and sinus issues; a D octor of Osteopathic Medicine at the health center, Stephanie Par ker, diagnosed

6 Petitioner’s affidavit states that she “ended up going to the doctor in Oklahoma City” after the November 10, 2010 clinic visit, but no records of such a visit were provided. Pet. Ex. 1 at 2.5

Petitioner with b ronchitis and asthma. Id . Petitioner was given a nebulizer treat ment at the clinic, after which she felt “bett er” according to L. Cushman, R.N

. Id. Petitioner was sent home
with a lbuterol for additional nebulizer treatments, and antibiotics. Id

. Again, the records do not document symptoms of extreme fatigue, “heaviness,” dizziness, difficulty concentrating, or sensitivity to light.

On December 27, 201 0, Petitioner presented to the emergency r oom at Integris Baptist Medical Center with “wheezing, dyspnea 7 . . . shortness of breath, [and] chest tightness starting yesterday.” Pet. Ex. 5 at 9. She denied weak ness or fatigue; her neurologic examination was
normal. Id. at 47

- 49. She reported that she had had a recent upper respiratory infection (“URI”),

a runny nose, and congestion

, and that the onset of symptoms had been one day prior. Id. The physician noted tha t she was experiencing a severe asthma exacerbation; however, she appeared alert and oriented, despite being in moderate distress and anxious. Id. at 10. Dr. John Huff noted
that Petitioner had a computerized tomography (“CT”) scan in the emergency r oom that “show[ed] an extensive right upper lo be pneumonia as well as trace anterior right upper lob e pneumothorax.” Id. at 4 6

- 4 7. Petitioner was admitted to the intensive care unit (“ICU”) and was given antibiotics, corticosteroids, and bronchodilators. Id . at 50. He r diagnoses included community

- acquired pneumonia, right small pneumothorax, asthma exacerbation, a left lower lobe pulmonary nodule, allergic rhinitis, and hypoxemia 8

. Id. at 49

- 50. I nfluenza, both type A and B, was ruled out through a l aboratory test performed on December 27, 2010. Id. at 390.

The following day, on December 28, 2010, a right chest tube wa s placed for her pneumothorax. Pet. Ex. 5 at 374. As the pneumothora x began to resolve, Petitioner continued to have trouble breathing and she was intubated. Id. at 41, 362. A bronchoscopy was p e r formed on December 29, 2010 and “ showed severe bronchitis.” Id . at 41.

Petitioner’s condition continued to worsen. Pet. Ex. 5 at 41

- 42. Following the
br onchoscopy , “[t]ube feeding was initiated. She had decreased responsiveness over the next few days. Her sedatives were decreased; however, she continued to have decreased mental
status.” Id. T he results of neurological exams were “extremely abnormal

, ” as was an MRI of her cervical spine. Id. It was noted that the findings of her MRI “were consistent with acute disseminated encephalomyopathy.” Id. A brain MRI conducted on January 6, 2011 showed

, among other things

, an “[ a ] cute infarction of the splenium of the corpus callosum with areas of diffusion restriction, T2 alteration, and abnormal contrast enhancement within pons . . . cervical spine cord may relate to hypoxic injury. Additional considerations include demyelinating process or vasculiti s .” Pet. Ex. 5 at 368 . A physician who saw Petitio ner to manage her tracheostomy tube, Dr. Maplani, interpreted her results to show “an acute infarction of the corpus callosum with involvement of the pons in the right cerebellum. She had progression of the cervical spine ischemic injury and now has a high spinal cord injury as a result.” Pet. Ex. 7 at 8

.

7 Dyspnea is defined as “breathlessness or sho rtness of breath; difficult or labored respiration.” Dorland’s: Dorland’s Illustrated Medical Dictionary , 582 (32nd ed. 2012).

8 Hypoxemia is “deficient oxygenation of the blood.” Dorland’s: Dorland’s Illustrated Medical Dictionary , 908 (32nd ed. 2012).6

Petitioner was examined by infectious disease specialist Aline Brown, M.D., on January 7, 2011. Pet. Ex. 5 at 173. Dr. Brown’s diagnosis was ADEM “ which is usually post

infectious.” Id. She recommended a sputum test, l aboratory results from which showe d a positive H1N1 9 result as of January 7, 2011. Id. at 42 ; Pet. Ex. 17 at 1

- 3

. Petitioner was started on Tamiflu, in addition to the many medications she was already taking. Id. She started on a four day course of Intravenous Immu noglobulin (“IVIG”) treatment on January 13, 2011. Id. at 42. When doctors attempted to wean her from the venti lator, she was unable to be weaned and a tracheostomy was performed. Id; Pet. Ex. 22 at 1. The chest tube was discontinued on February 8, 2011, after doctors determined that her pneumothorax had resolved

, and her ventilator was discontinued the next day. Pet Ex. 5 at 42

.

Several physicians attributed her condition to the H1N1 virus, for which she tested positive for on January 7, 2011. Pet. Ex. 17 at 2. Dr. William B. Schueler, a professor at the University of Oklahoma Health Sciences Center, opined that Petitioner had “some paralysis secondary to the swine flu in January 2011.” Pet. Ex. 6 at 24. Another physician, Dr. Jenny Lee, opined that Petitioner had an asthma exacerbation that “turned into bronchitis a nd then pneumonia. This in turn was complicated by a ‘collapsed lung’ which required a chest tube and intubation and ventilator assistance (Dec. 28, 2010). During her recovery she contracted the ‘swine flu’ (Jan 2011) which turned into encephalitis.” Pe t. Ex. 6 at 27.

On February 17, 2011, Petitioner was transferred to Jim Thorpe Reh abilitation (“Jim Thorpe”)

, where she remained until March 25, 2011. Id. at 28 , 42 . H er discharge diagnoses, as reported on her discharge summary from Integris Baptist Me dical Center, were: acute hypoxemic respiratory failure, community

- acquire d pneumonia, H1N1 influenza, asthma exacerbation, right pneumothorax, hypertension, acute disseminated encephalomyelitis, central hypothermia, critical illness myopathy 10 , anxiety, mi ld protein

- calorie malnutrition, and mild oropharyngeal dysphagia 11

. Id. at 40

- 43

.

Petitioner continued to receive treatment from home health aides following her discharge from Jim Thorpe. See generally Pet. Ex. 6. She continues to require a wheelchair, as seen at the onset hearing, and she requires assistance for many activities of daily living. Tr. at 5 ; Pet. at 4

.

9 H1N1 is a seasonal flu virus with several sever e complications such as pulmonary and cardiac
conditions. See John G. Barlett, MD, 2009 H1N1 Influenza

– Just the Facts: Clinical Features and Epidemiology

, Medscape , last reviewed on November 23, 2009 , a vailable at: http://www.medscape.com/viewarticle/709540_4 ; see also H1N1 (originally referred to as Swine Flu), Flu.gov, available at: http://www.flu.gov/about_the_flu/h1n1/

.

10 Critical illness myopathy is defined as “severe muscle weakness, hypotonia, and depressed tendon reflexes of many different muscles . . . in some it may be a complication of therapy with
corticosteroids or neuro

- muscular blocking agents, but in others the cause is unknown.” Dorland’s: Dorland’s Illustrated Medical Dictionary , 1224 (32nd ed. 2012).

11 Dysphagia is defined as “difficulty in swallowing”; oropharyngeal dysphagia refers to “difficulty initiating the swallowing process.” Dorland’s: Dorland’s Illustrated Medical Dictionary , 579 (32nd ed. 2012).7 b. Affidavits

In addition to the medical records, Petitioner f iled several affidavits. Petitioner ’s own
A ffidavit was filed on December 5, 2012. See Pet. Ex. 1 , ECF No. 5

- 1

. In this affidavit,
Petitioner stated that a few weeks after vaccination 12 , she would get “fatigued easily.” Pet

. Ex. 1
at 2 . Additionally, s he stated that she was lethargic, fatigued, and frequently had headaches. Id.
S he explained that she didn’t tell her mother about her health be cause she suspected that her
mother would make her return home from her on

- campus housing and go to the doctor. Id. at 2.
Ho wever, one day she felt dizzy, light

- headed, weak, and nauseous and she told her mother , who urged her to come home. Id. After seeking treatment at the on

- campus health center, she stated that her symptoms continu ed, but she didn’t tell her mother

. Id.

Petitioner filed an affidavit authored by her college roommate, Carami a Testa, on December 5, 2012. See Pet

. Ex. 3, ECF No. 5

- 3. Ms. Testa recounted that Petitione r was healthy and active prior to vaccination, but that “[a] few weeks after getting the flu shot, Sydney started showing symptoms of something being wrong.” Id. at 1. Th e specific symptoms she discussed included fatigue and headaches. Id. at 1

- 2. Ms. Testa noted a particular occasion, Halloween 2010, where Petitioner appeared ill and fatigued. Id . at 2. The affidavit describes that she thought Petitioner’s symptoms seemed to worsen until the semester ended and Sydney was hospitalized. Id. at 2

- 4

.

Petitioner also filed an affidavit from witness Aurora Tapia

. 13 See Pet. Ex. 24 , ECF No.
60 . Ms. Tapia affirmed that she “specifically recall [ed ] when Sy d n ey got her flu shot, ” and that
she “recall[ed ] her symptoms starting shortly thereafter .” Pet. Ex. 24 at 1

. According to Ms. Tapia, Petitioner’s symptoms included headaches, dizziness, fatigue, and acting different than usual; she specified that these symptoms started in late October of 2010 and into November of
2010. Id. at 1. She indicat ed that she was responsible for training Petitioner at Panera Bread, their mutual place of employment, and she noticed Petitioner was slow to complete tasks following receipt of the vaccine at issue here. Id.

Finally, Petitioner filed an affidavit authored by her mother, Heather Rich, on May 2,
2013. Pet

. Ex. 16, EC F No. 23. According to Ms. Rich, Petitioner received the flu vaccination on September 26, 2010, and Petitioner’s symptoms, including fatigue, headaches, and trouble sleeping, began “[a] couple of weeks later.” Id. at 1. Other symptoms Ms. Rich noted included trouble speaking in complete sentences, weakness, lack of energy, and headaches. Id. at 1

- 2.
Ms. Rich believed that t hese symptoms were attributable to Petitioner’s asthma. Id. at 2.

c. Testimony

i. Sydney Rich

Petitioner testified as to the date of onset of her symptoms at the hearing

12 In her affidavit, Petitioner never gives a date, or range or dates, for the onset of her symptoms.
See Pet. Ex. 1, ECF No. 5

- 1.

13 Aurora Tapia testified under the name Aurora Tapia

- Contreras at th e hearing

. Tr. at 73.8

on October 30, 2014. She explained that

, prior to vaccination, she was involved with a sorority
at the University of Oklahoma and felt healthy. Tr. at 129

- 31. Although she used her rescue
inhaler a few times during the move

- in process, this was not abnormal , as she regularly use d her
rescue in haler a couple of times a week. Tr. at 130.

Petitioner stated that her first symptom was “feeling tired” and it began a few weeks after vaccination, in mid

- October. Tr. at 137

- 38 , 162 . Petitioner clarified that when she said she was “feeling tired,” her “body started feeling heavier than it did [before she experi enced this symptom]” and her legs were heavy. Tr. at 137, 162

- 63. The next symptoms she began to experience were headaches and dizziness and she recalled that these began in early to mid

November. Tr. at 139 , 162 . Although she attempted to use her rescue inhaler and experienced
some initial relie f, it did not continue to alleviate her sym p toms. Tr. at 138

- 39. Petitioner explained that after experiencing the first symptoms, she never improved and her symptoms
worsened over time. Tr. at 165.

Counsel attempted to clarify the specific time of o nset ; Petitioner specifically recalled having symptoms during Halloween of 2010. Tr. at 139

- 40. The symptoms she remembered included being exhausted, feeling “heavy”, having difficulty breathing and headaches. Id . She
stated th at while experiencing these sym p t oms, she spoke to her mother but didn’t tell her mother
about her ailments because she was afraid she would be forced to seek medical treatment. Tr. at
140

- 41

. One of her last symptoms, bein g bothered by light, began “[l]ate November into
Dece mber

. ” Tr. at 145. By the finals period, at the beginning of December 2010, Petitioner was “exhausted all the time. [Her] body felt so heavy. [She] was tired. [She] was having trouble breathing. [She] was having headaches, dizziness on a daily basis. And [she] couldn’t hardly
focus at all.” Tr. at 158. A couple of weeks before she was hospitalized, on December 27, 2010,
she felt unusually irritable and emotional. Tr. at 159

- 60

. Until this time, however, she was still
able to function. Tr. at 160 . She could still drive; she could carry things. Id

.

Petitioner was questioned about her doctors’ visits. She stated that she visited her primary care physician, Dr. Col l een Dooley, on October 8, 2010, without her mother. Tr. at 142. She explaine d that she didn’t discuss the symptoms she was experiencing and that she was given asthma medication, but didn’t take it. Tr. at 142

- 43. She went back to Dr. Dooley with her mother on October 23, 2010 , and was given more medication, which she finally did take. Tr. at
143. S he went to the on

- campus infirmary on November 10, 2010. Tr. at 146. In between these appointments, Petitioner testified that her symptom s were worsening, that “it was so hard to
function ,” and that she “was so scared.” Id

. Even then, however, she did not discuss these symptoms with the medical personnel at either Dr. Dooley’s office or at the on

- campus health
center. Tr . at 146

- 52

. W hen given a checklist at the on

- campus health center, however,
Petitioner checked the boxes for muscle aches and headaches, which she explained she was experiencing at the time. Tr. at 151

- 52. Petitioner testified that her reasoning for not discussing her other symptoms was that she believed h er symptoms were asthma related, and that she “just
tho ught [she] was going to get better.” Tr. at 169

- 70, 172. She was also worried that the doctor would prescribe steroids for her, which would cause her to gain weight. Tr. at 178.

The mental symptoms Petitioner was experiencing were discussed at the hearing as well. Petitioner stated that she experienced trouble focusing at work and that it took her longer to9

finish tasks than it did before vacci nation, but she didn’t think “it was bad enough that [her] job would be in trouble.” Tr. at 154, 186. S h e was still able to carry her belongings, drive a car, and get in and out of bed, although it became increasingly more difficult. Tr. at 157, 160.

Petitioner testified that many individuals, including her mother, co

- workers, and friends,

were concerne d about her health; she also testified that she was concerned about her own health. Tr. at 180. Despite their concerns and her own

, Petitioner did not discuss her symptoms with medical professionals because “[she] was just naive. [She] was stupid. . . [ she] was just a stupid

teena ger.” Tr. at 180. During the onset hearing, Petitioner stated, multiple times, that she did not report her specific symptoms because she attributed them to her asthma. See, e.g

., Tr. at 188.

ii. Heather Rich

Heather Rich, Pet itioner’s mother, was the first to testify at the onset hearing; she
also testi fied at the previous fact hearing

. 14 Ms. Rich testified that her daughter was healthy in the fall of 2010, aside from the asthma she controlled using medication; however, Ms. Rich testified that Petitioner was not always compliant with taking her prescribed medication. Tr. at 12; 14. Ms. Rich explained that Petitioner had asthma problems “probably every couple of
months” and used a breathing machine to treat these flare

- ups. Tr. at 32. Ms. Rich stated that the symptoms Petitioner usually experiences when in distress due to asthma include trouble breathing, coughing, and wheezing. Tr. at 32

- 33. Typically, she described

, “when [P etitioner] was at her worst she would do two breathing treatments, and she would be fine. It o pened her right up.” Tr. at 62

.

Ms. Rich stated that she had a good relationship wi th her daughter

, and that although
Petitioner live d on

- campus at the Unive rsity of Oklahoma, they spok e daily on the phone. Tr. at
17

. Petitioner called her mother a “helicopter mom” and testified that Ms. Rich was heavily involved in her daughter’s life. Tr. at 62. Ms. Rich explained that she saw Petitioner weekly
because P etitioner came home on the weekends to work at Panera Bread, a local restaurant. Tr.
at 17. The Rich home had “a couple of levels” and Ms. Rich did not notice Petitioner having
trouble w ith the steps when she was home, although she clarified that they we re not often in the
house at the same time . Tr. at 38

- 39.

The symptoms of Petitioner’s ADEM began, according to Ms. Rich, around the “first part of October.” Tr. at 18. Ms. Rich explained that afte r vaccination, Petitioner call ed her mother with complaints of headaches and lack of energy. Id. They spoke about seeing a doctor, but Petitioner “made the comment that she would be fine, that she should probably take her [asthma]
medication.” Id

. Ms. Rich testified that Petitioner t old her that she “was having trouble wa l kin g to class ... her legs were tired ... and ... felt heavy ,” which prompted a visit to her primary care physician , Dr. Dooley, on October 23, 2010. Tr. at 19

- 20 . During this visit, Ms. Rich attended the appointment and gave a history to the physician’s office as “[she] tended to ta lk for Sydney a lot.” Tr. at 20 . The symptoms, such as trouble walking and headaches , were not discussed at this appointment , because Ms. Rich stated that she “though t it was just asthma

. ” Tr. at 21

- 22

,

14 A fact hearing was held on June 24, 2013, to determine whether Petitioner received a flu vaccination. The transcript for the June 24, 2013 will be cited as “Tr. June.” The transcript from the current hearing will be cited as “Tr.”.10

41

. Ms. Rich did not notice any changes in P etitioner’s balance, but she did notice that Petitioner “wasn’t like herself.” Tr. at 41.

Ms. Rich informed the Court that when Pet itioner’s symptoms continued, Ms. Rich urged
her to see at doc tor. Tr. at 24. Petitioner agreed to go to an on

- campus health center a t the end
of November. Tr. at 24 . T he symptoms Ms. Rich recalled that Petitioner had complained of trouble with her legs , headaches, trouble sleeping, and weakness. Tr. at 24

- 25. When they spoke on the phone, Ms. Rich said that Petitioner “was kind of slurring her words a little bit.” Tr. at 25. Ms. Rich explained that the first symptoms she noticed that weren’t typical for an asthma
exacerbation , including slurred speech and the inability to walk to class. Tr. at 40.

Following finals, which Petitioner struggled to complete, she returned home for
Christmas break. Tr. at 26

- 27. During the bre ak, Ms. Rich noticed that Petitioner seemed “different.” Tr. at 27

- 28. Ms. Rich re ceived a ph one call from Petitioner on December 27, 2010, stating that something was wrong and that she needed to be transported to the emergency r oom. Tr. at 28

- 29. Again, Ms. Rich gave medical personnel a history and again she noted that she “tend[s] t o speak up for Sydney.” Tr. at 30.

iii. Aurora Tapia

- Contreras

Aurora Tapia

- Contreras, Petitioner’s supervisor at Panera Bread, testified second at the onset hearing. She stated that she met Petitioner in January of 2009 at their mutual place of employment and “became friends right off the bat.” Tr. at 73

- 74. Ms. Tapia

- Contreras noted that Petitioner began to take shorter, weekend

- only shifts after school sta rted, but she did not notice any physical or mental shortcomings related to her job performance. Tr. at 75

- 76.

In October 2010, Ms. Tapia

- Contreras noted that Petitioner complained that she was not feeling well, and particularly that she complained of headache s, dizziness, and fatigue. Tr. at 77. She first noticed Petitioner’s breathing troubles in mid

- November. Tr. at 89. Furthermore, Ms. Tapia

- Contreras noted that Petitioner’s “mental process was kind of slow” and she had trouble understanding job

- related tasks. Tr. at 79. When discussing her physical performance, Ms. Tapia

- Contreras explained that the job was physical and required Petitioner to stand; however, she did not notice any physical deficits. Tr. at 84

- 85.

A s Petitioner continued t o experience worsening symptoms, Ms. Tapia

- Contreras felt that she needed to cover for Sydney’s inadequate performance; Ms. Tapia

- Contreras explained that she told Petitioner to seek medical treatment “all the time.” Tr. 80

- 83.

iv. Caramia Enrich 15

Caramia E nrich, Petitioner’s high school friend and freshman year roommate, testified. M r s. Enrich stated that

, prior to vaccination, Petitioner did not appea r to have any trouble walking, any dizziness

, or any headaches. Tr. at 98

- 99. She remembers Petitioner getting the vaccination

15 Caramia filed an a ffidavit on December 5, 2012 using her maiden name, Caramia Testa. At the hearing, on October 30, 2014, Caramia was married and testified under her married name,
Caramia Enrich.11

and recounted that she noted Petitioner’s health changing in October 2010. Tr. at 100. The first symptom she noticed was fatigue, at the beginning of October. Tr. at 108, 115. In particular, she
remembered that Petitioner was excited about a trick

- or

- treat event on Halloween, but that at the
end of the event

, Petitioner “was completely drained,” which was un characteristic of Petitioner’s
behavior. Tr. at 100

- 01. She explained that, contrary to t estimony in her own affidavit, Petitioner had complained of dizziness and leg pain immediately preceding Halloween. Tr. at
101 , 122

. The leg pain, as clarified by Mrs. Enrich, was “ not like a shoo ting pain. What she had said was, like, heavy.” Tr. at 1 22.

M r s. Enrich stated that Petitioner’s symptoms worsened in November of 2010 and that “[t]owards November, she was really tired all the time, really fatigued and complaining more about heavy arms and legs and so forth. And I saw more of the dizzines s and heada ches.” Tr. at 103. Although Petitioner complained of dizziness, M r s. Enrich does not remember Petitioner losing her balance or s tumbling . Tr. at 103. Mrs. Enrich recounted that Petitioner spoke to her mother frequently and that “[s]he would talk about how she felt tired . . . [b]ut she was usually pretty quiet about symptoms and so forth.” Tr. at 121.

Ms. Enrich mentioned that sound and light seemed to bother Petitioner. Tr at 105.
Petitioner would take the stairs to their sixth floor d ormitory room; Ms. Enrich stated that Petitioner was still using the stairs to reach the sixth floor at the end of October. Tr. at 115

- 16. Mrs. Enrich explained that Petitioner’s speech wasn’t slurred, but she seemed incoherent at times and would “easily los[e] her train of thought.” Tr. at 117

- 18.

Petitioner’s trip to the on

- campus health facility was discussed

, and Ms. Enrich recalled that Petitioner wanted to discuss the symptoms she h ad been experiencing including “ how she felt tired at the time, and [that] she really thought her asthma was kick ing up.” Tr. at 118

- 19.
Petitioner purportedly told Mrs. Enrich that the doctors thought she might have bronchitis or the
flu. Tr. at 104. The last time Mrs. Enrich saw Pe titioner before her hospitalization was the day
before Christmas break. Tr. at 110.

II. The Applicable Legal Standards

A petitioner must prove, by a preponderance of the evidence, the factual circumstances surrounding her claim. 42 U.S.C. §300aa

- 13(a)(1) (A). T o meet t he preponderance of the evidence standard, the special master must “believe the existence of a fact is more probable than its nonexistence before [she] may find in favor of the party who has the burden to persuade the [special master] of the fact’s existence. ” In re Winship, 397 U.S. 358, 371

- 72 (197 0) (Harlan, J., concurring, quoting F. James, Civil Procedure

, at 250

- 51 (1965)).

In determining whether a petitioner is entitled to compensation under the Vaccine Act, a special master must consider the record as a whole. 42 U.S.C. §300aa

- 13(a)(1). The special master may not make a finding based on the claims of a petitioner that are not substantiated by medical records or medical opinion. Id. The process of finding facts pursuant to the Vaccine Act begins with analyzing the medical records. 42 U. S.C. §300aa

- 11(c)(2). As set forth in 42
U.S.C. § 300aa

- 13(b )(1) (A), a special master shall consider “all . . . relevant medical or scientific evidence contained in the record,” including “any diagnosis, conclusion, medical judgment . . .12

regarding the nat ure, causation, and aggravation of petitioner’s illness, disability, injury, condition, or death.”

To resolve factual issues, the special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v . Sec’y of Health &
Human Servs.

, 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). “Medical records, in general, warrant consi deration as trustworthy evidence.” Cucuras v. Sec’y of Health & Human Servs. , 993 F.2d 1525, 1528 (Fed. Cir. 1993). Records created contemporaneously with the ev ents they describe are presumed to be accurate

, as individuals seeking treatment will likely report the circumstances relating to their symptoms and h istory accurately to ensure their doctors have all the information necessary to treat their malady. Cucuras, 993 F.2d at 1527

- 28. Similarly, doctors recording their patients’ histories are paying

p articular attention to record such histories accurately so that they will be aware of all of the patient’s aliments in order to effectively treat them. Id. Therefore, particular attention sho uld be paid to contemporaneous medical records and opi n ion s of treating physicians. Capizzano v. Sec’y of Health & Human Servs., 440 F .3d 1317, 1326 (Fed. Cir. 2006); Cortez v. Sec’y of Health & Human Servs., No. 09

- 176V, 2012 WL 4829301, at *6 (Fed. Cl. Spec. Mstr. Aug. 31, 2012).

When considering the weight to be given to oral testimony versus contemporaneous records, “[i]t has generally been held that oral testimony which is in conflict with contemporaneous documents is entitled to little evidentiary weight.” Murphy v. Sec’y of H ealth
& Human Servs.

, 23 Cl.Ct. 726, 733 (1991), aff’d , 968 F.2d 1226 (Fed. Cir.), cert. denied sub nom. Murphy v. Sullivan , 506 U.S. 974 (1992) (citing United States v. United States Gypsum Co., 333 U.S. 364, 396 (1947) (“Where such testimony is in confli ct with contemporaneous documents we can give it little weight

, particularly when the crucial issues involve mixed questions of law and fact.”)

Records that are clear, consistent, and complete should be accorded substantial weight. Lowrie v. Sec’y of Health & Human Servs. , No. 03

- 1585, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). To overcome the presumptive accuracy of the written medical records through testimony, the testimony must be “consistent, clear, cogent, and compelling.” Sanchez v. Sec’y of Health & Human Servs. , No. 11

- 685, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec’y of Health & Human Servs. , No. 90

- 2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).

III. Discussion

“Petitioner alleges that shortly after having received the influenza vaccine on September 26, 2010, she began to experience the onset of neurological symptomology that was subsequently diagnosed as ADEM.” Petitioner’s Pre

- Hearing Submission, ECF No. 61, a t 1.
That “ neurological symptomology” allegedly included “ unprecedented symptoms [of] extreme fatigue, headaches, lack of concentration, dizziness, and feeling nauseous.” Id . at 2; see also Pet. Ex. 1; Pet. Ex. 24.13

At hearing, Petitioner testif ied that she was experiencing this multitude of symptoms before her visits with Dr. Dooley and with the on

- campus health center, but that she did not report these symptoms to the medical professionals. Tr. at 142

- 43, 147

- 48, 150

- 51. Petitioner gave several reasons for not telling her physician ab out these symptoms

-- that she thought the symptoms were related to her asthma, tr. at 169; that the doctors would put her on steroids, which had caused her to gain weight in the past, Tr. at 178; and that her mother “ would make [her] move back home.” Tr. at 165, 171; Pet. Ex. 1 at 2. She also stated that she thought she “was going to get better.” Tr. at 146

- 47.

However, t he medical histories provided during Petitioner’s medical visits, both to Dr. Dooley and to th e on

- campus health center , consistently reflect that her symptoms in the fall of 2010 were related to her asthma and her developing bronchitis/ pneumonia, and not to ADEM

. On October 8, 2010, about two weeks after receiving the vaccine, Petitioner made he r first visit to a medical professional post

- vaccination. S he was unaccompanied by her mother

, who
otherwise tended to speak for her

. Pet. Ex. 4 at 8. Petitioner’s chief complaint was that she was “having trouble breathing at night and hasn’t been able to get Advair [asthma medication].” Pet.
Ex. 4 at 8. Petitioner did not complain of fatigue, “heaviness,” dizziness, sensitivity to light, difficulty remembering things, or completing tasks. Petitioner was given samples of several asthma medications, i d

. , which she did not take. Tr. at 142

- 143.

Petitioner saw Dr. Dooley again on Oc t ober 23, 2010; again her chief complaint was “asthma

-- worse when [she] comes home.” Pet. Ex. 4 at 7. Again, nothing about heaviness, lack of concentration, dizziness, headaches, or nausea. The impression of the treating professional
was asthm a , and Petitioner was again treated with asthma me dication. Id . T his time, she was also given the steroid Predni sone

. Id.

On November 10, 2010, Petitioner saw a medical professional, Stephanie A. Parker, D.O., at the University of Oklahoma Health Services Center. Pet. Ex. 15 at 1. Upon checking in, Petitioner filled out intake forms, including a checklist of symptoms on which she was to mark the symptoms she was experiencing. Id. at 2. Petitioner stated that her worst symptoms were coughing and trouble breathing, but she also indicated that she was experiencing fever, night sweats, sore throat, headache, ea r ache/pain, cough, wheezing, and muscle aches. Id. She stated that her symptoms st arted five days prior and that they were “somewhat improving.” Id.

Petitioner stated in her affidavit that in early November 2010, she felt dizzy, lightheaded, weak, and nauseous, which prompted her to call her mother and make an appointment with the

on

- campus health center. Pet. Ex. 1 at 2. At the hearing, Petitioner testified that she was confused, dizzy, having trouble walking coupled with heavy legs, and had blur ry vision prior to her November 10 appointment. Tr. at 147

- 51. The records from the health center reflect none of those concerns. Petitioner had three separate opportunities to tell someone at the clinic about these symptoms: when she filled out the int ake sheet, when she spoke with the doctor, and when she spoke with the nurse after the first nebulizer treatment, but she did not avail herself of those opportunities. The focus of that visit, as had been the focus of her earlier medical visits, was
exclu sively her difficulty breathing and related issues.14

Petitioner did not see another medical professional until she went to the emergency room at Integris Baptist Hospital on December 27, 2010. Petitioner presented to the emergency room
with shortness of breath, chest tightness, wheezing, and dyspnea which started one day prior.
Pet. Ex. 5 at 9. Even then, Petitioner “denie[d] weakness, fatigue,” “denie[d] nausea,””denie[d] muscle pain or weakness,” Id at 48

- 49, and her responsiveness did not begin to d ecline until several days after her admission for pneumonia, pneumothorax, and hypoxemia. Id. at 41.

Petitioner was familiar with doctors, as she had had asthma, a chronic illness, since childhood and would go to the doctor occasionally for a flare

- up o f asthma or to refill an asthma
related medica tion prescription. Tr. at 126

- 27. Therefore, she was familiar with the practice of visiting a physician and reporting symptoms, particularly when prompted. She continued this practice when she went to colleg e: she went to the doctor three times that first semester, and she reported the symptoms from which she was suffering so that they could be treated. The undersigned is not persuaded that Petitioner would not be forthcoming with her doctors, particularly i f the symptoms were as unprecedented , persistent an d severe as has been described. The undersigned finds that Petitioner reported the symptoms she was experiencing, related to the severe pulmonary illness for which she was eventually hospitalized.

Pe titioner’s medical records clearly document her worsening medical condition throughout the fall of 2010, but the worsening condition that they document is pulmonary. Petitioner has not put forward evidence sufficient to refute the contemporaneous medical
records , which firmly support the onset of the symptoms of ADEM concurrently with or shortly
after Petitioner’s hospitalization for pneumonia, pneumothora x and hypox emia, on or after
December 27, 2010

.

The undersigned has carefully reviewe d the record. Consistent with the foregoing discussion, the undersigned finds that the symptoms of ADEM began concurrently with or shortly after Petitioner’s hospitalization for pneumonia, pneumothorax and hypo x emia, on or
after December 27, 2010

.15

IV. Conclusion

The undersigned has carefully reviewe d the record. Consistent with the foregoing discussion, the undersigned finds that the symptoms of ADEM began concurrently with or shortly after Petitioner’s hospitalization for pneumonia, pneumothora x and hypox emia, on or
after December 27, 2010

.

Petitioner may now proceed with her claim. The parties are ordered to provide this ruling to any expert whom they retain for the pur pose of litigating that claim. The undersigned is unlikely to fi nd persuasive expert opinion that is inconsistent with these findings of fact. See
Burns , 3 F.3d at 417 (special master did not abuse his discretion in refraining from conducting a hearing when the petitioner’s expert “based his opinion on facts not substantiated by the record”) . The parties shall also contact my chambers no later than September 25, 2015 to schedule a telephonic status conference in this case to discuss next steps.

IT IS SO ORDERED.

s/Lisa D. Hamilton

- Fieldman
Li sa D. Hamilton

- Fieldman Special Master