United States Court of Appeals 

for the Federal Circuit ______________________

EILISE MORIARTY, A MINOR, BY HER PARENTS

AND NATURAL GUARDIANS, MARIE LOUISE 

MORIARTY, AND STEPHEN MORIARTY,

Petitioners-Appellants

v.

SECRETARY OF HEALTH AND HUMAN 

SERVICES,

Respondent-Appellee

______________________

2015-5072

______________________

Appeal from the United States Court of Federal 

Claims in No. 1:03-vv-02876-TCW, Judge Thomas C. 

Wheeler.

______________________

Decided: April 6, 2016

______________________

CLIFFORD JOHN SHOEMAKER, Shoemaker and Associates, Vienna, VA, argued for petitioners-appellants.

GLENN ALEXANDER MACLEOD, Vaccine/Torts Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent-appellee. Also 

represented by ALEXIS B. BABCOCK, CATHARINE E. REEVES,

VINCENT J. MATANOSKI, RUPA BHATTACHARYYA, BENJAMIN 

C. MIZER.
2 MORIARTY v. HHS

______________________

Before MOORE, CLEVENGER, and REYNA, Circuit Judges.

MOORE, Circuit Judge.

Marie Louise and Stephen Moriarty (the “Moriartys”), 

on behalf of their daughter Eilise, appeal the judgment of 

the Court of Federal Claims that affirmed a special master’s decision denying their petition for compensation 

under the National Childhood Vaccine Injury Compensation Program, 42 U.S.C. § 300aa–1 to –34 (2006) (“Vaccine 

Act”). We vacate and remand for further proceedings.

BACKGROUND

Eilise Moriarty was born in August 1996. Prior to receiving the vaccination at issue in this case, Eilise had 

problems with her gross motor skills and language development and was diagnosed with hypotonia and developmental delay. But, following focused therapy to improve 

her fine motor and speech skills, Eilise showed dramatic 

improvement by October 2000. 

On January 2, 2001, Eilise received three vaccinations, including her second dose of the measles, mumps, 

and rubella (“MMR”) vaccine. Five days later, Eilise’s 

elder brother witnessed her arching her back, thrusting 

her head back, rolling her eyes, and her left side jerking 

in a strange, almost rhythmic pattern. Eilise’s brother 

did not know what was happening at the time, but, after 

having seen his sister have a number of seizures, he later 

testified that Eilise had a seizure that day. The Moriartys, who did not witness this seizure, noted that Eilise 

was feverish and lethargic that night. Eilise went to 

school the next day, but came home early and was running a fever in the late afternoon. Over the next two 

weeks, Eilise attended school but was tired and lethargic.

On January 23, 2001, Eilise had a grand mal seizure 

at school and was taken to a hospital. She had another 
MORIARTY v. HHS 3

seizure there the following day. She was transferred to 

another hospital where she underwent magnetic resonance imaging (“MRI”) and electroencephalogram (“EEG”) 

testing. Eilise’s MRI results were generally normal, but 

her EEG results were abnormal, which the clinician noted 

were “consistent with a clinical diagnosis of epilepsy.” 

J.A. 600–01. Eilise continued to have seizures over the 

next two days while her doctors adjusted her medication. 

Once Eilise’s seizures were under control, she was discharged on January 28, 2001. Dr. Elgin, a pediatric

neurologist, noted at Eilise’s discharge that she had a 

“new onset of seizure disorder” and that “there seem to be 

no precipitating factors causing the seizures.” J.A. 10. 

Two days later, Dr. Vining, a neurologist at Johns Hopkins Medical Center, examined Eilise and her medical 

records and noted that she had a new onset of seizures

with unknown etiology.

Eilise’s seizures continued to worsen throughout the 

spring of 2001. Eilise was hospitalized twice for seizures 

in March 2001. Some of these seizures were “drop attacks” where Eilise would drop her head suddenly and 

sometimes her entire body would collapse. During this 

time, Dr. Elgin expressed her concern in a clinic report 

that, while she showed some signs of improvement, Eilise 

may have Lennox-Gastaut syndrome, which is a form of 

age-dependent epileptic encephalopathy.1 A second EEG 

test performed during one of Eilise’s March hospital stays 

was consistent with her having a clinical seizure disorder.

In April and May 2001, Eilise underwent various 

tests to determine her continued eligibility for special 

education services. Eilise’s test results showed that she 

 

1 The Vaccine Injury Table, 42 U.S.C. § 300aa–

14(b)(3)(A), defines “encephalopathy” as “any significant 

acquired abnormality of, or injury to, or impairment of 

function of the brain.”
4 MORIARTY v. HHS

was delayed, especially verbally. In June 2001, Eilise was 

admitted to Johns Hopkins Hospital because of intractable seizures and to begin a ketogenic diet. Eilise was a 

“super-responder” to the ketogenic diet, and in October 

2001, Eilise became seizure-free. Eilise stayed on the 

ketogenic diet for over two years, remaining seizure-free, 

before tapering off the diet. Eilise’s treating neurologist 

during this time, Dr. Rubenstein, diagnosed her with 

“[s]tatic encephalopathy of unknown etiology” and 

“[i]ntractable seizures, resolved with ketogenic diet.” J.A. 

396–97, 400–01. 

In 2003, the Moriartys filed a petition under the Vaccine Act, alleging that Eilise suffered from autism as a 

result of her vaccinations. Eilise’s petition was grouped 

and stayed with other autism cases pending resolution of 

lead cases in the omnibus autism proceedings. While her 

petition was stayed, Eilise underwent examinations by a 

clinical psychologist, an occupational therapist, and a 

speech and language pathology clinician, all of whom 

noted in the background sections of their reports that 

Eilise’s seizures were attributed to her second MMR 

vaccination. After decisions in the lead autism cases, the 

Moriartys amended Eilise’s petition to remove the reference to autism, alleging instead that Eilise suffered from 

a “seizure disorder and encephalopathy.” In May 2013, a 

special master held a hearing where Eilise’s parents and 

brother testified, along with Eilise’s expert, Dr. Shafrir, 

and the government’s expert, Dr. MacDonald (both pediatric neurologists). At the time of this hearing, Eilise was 

17 years old but was reading at an “easy” fifth grade level 

and had third grade level math skills. During the posthearing briefing process, Eilise’s petition was re-assigned 

to a new special master because the previous one’s service 

term ended. Both parties declined the new special master’s offer of another hearing.

The special master denied Eilise’s petition. He determined that the Moriartys failed to prove either the first 
MORIARTY v. HHS 5

or second prongs of our three part test in Althen v. Secretary of Health and Human Services, 418 F.3d 1274 (Fed. 

Cir. 2005), as required for Eilise’s “off-Table” injury. 

Regarding prong one, which requires a petitioner to show 

a medical theory causally connecting the vaccination at

issue to the injury, Althen, 418 F.3d at 1278, the special 

master noted that the Moriartys’ theory connecting Eilise’s MMR vaccination to her condition had “evolved” 

over time, ultimately becoming that the MMR vaccine 

triggered an immune-mediated reaction that led to epileptic encephalopathy. Eilise’s expert, Dr. Shafrir, cited 

eight articles in his second report supporting this point, 

but the special master declined to consider the contents of 

that report or all of the cited articles because the Moriartys “did not elicit testimony from Dr. Shafrir about these 

articles as part of the direct examination.” J.A. 19. 

Instead, the special master limited his consideration to 

only two of the articles cited in Dr. Shafrir’s second expert 

report, on the basis that the government had crossexamined Dr. Shafrir about their contents. The special 

master also noted that the government’s expert, 

Dr. MacDonald, testified that “there is no evidence to 

support the conclusion that the MMR vaccine can cause 

autoimmune epileptic encephalopathy.” J.A. 22. Ultimately, the special master determined that Dr. Shafrir 

was unpersuasive, and consequently concluded that the 

Moriartys failed to meet Althen prong one by “fail[ing] to 

demonstrate that the MMR vaccine can cause an autoimmune epileptic encephalopathy.” J.A. 22. 

The special master also determined that the Moriartys failed to prove Althen prong two, which requires 

showing a logical sequence of cause and effect showing 

that the vaccination at issue was the reason for the injury. See Althen, 418 F.3d at 1278. He explained that, even 

if the Moriartys had met their burden to prove Althen 

prong one, they failed to show that Eilise suffered from 

autoimmune epileptic encephalopathy. He discounted 
6 MORIARTY v. HHS

Dr. Shafrir’s testimony that Eilise suffered from this 

condition because “Dr. Shafrir was relying upon his 

‘clinical experience’ and the sequence of events in which 

the vaccination preceded Eilise’s January 7, 2001 seizure.” J.A. 24. Dr. MacDonald testified that patients 

with autoimmune epileptic encephalopathy “most commonly present with ‘lethargy, behavioral issues, confusion, speech loss, aphasia, a whole host of cognitive 

problems, balance problems, hemiparesis’” and that 

autoimmune encephalopathy “may include” various 

objective evidence such as “brain swelling on an MRI 

scan.” J.A. 24. The special master noted that “it is unusual for a disease not to have any typical clinical symptoms” and found Dr. MacDonald “more credible [than 

Dr. Shafrir] when he provided a list of clinical signs and 

diagnostic assessments” for autoimmune epileptic encephalopathy. J.A. 25. He cited Dr. MacDonald’s testimony that Eilise did not have autoimmune epileptic 

encephalopathy “because in his experience, patients are 

‘desperately sick’ if they have immune-mediated encephalopathies that result in seizures” and stated that 

“Dr. MacDonald’s suggestion that an autoimmune process 

is likely to cause changes on neuroimaging studies rings 

true.” Id. He found that the treatment ordered by Eilise’s 

treating doctors “tends to support Dr. MacDonald’s opinion,” id., and that, ultimately, Dr. MacDonald was more 

persuasive on this point than Dr. Shafrir. 

Finally, the special master determined that the Moriartys met their burden to prove Althen prong three by 

showing a proximate temporal relationship between 

Eilise’s vaccination and her injury. The Court of Federal 

Claims affirmed the special master’s decision. The Moriartys appeal. We have jurisdiction under 42 U.S.C. § 

300aa–12(f).
MORIARTY v. HHS 7

DISCUSSION

We review the Court of Federal Claims’ decisions in 

Vaccine Act cases de novo, applying the same standard 

used by that court to review the special master’s determination. Moberly ex rel. Moberly v. Sec’y of Health & 

Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010). We 

only set aside findings of fact or conclusions of law that 

are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C. § 300aa–

12(e)(2)(B); Moberly, 592 F.2d at 1321.

Under the Vaccine Act, there are two types of injuries: 

“Table” and “off-Table.” 42 U.S.C. §§ 300aa–11(c)(1)(C)(i), 

300aa–11(c)(1)(C)(ii). Causation is presumed for Table 

injuries when a specified condition follows the administration of a specified vaccine within a specified period of 

time. Moberly, 592 F.3d at 1321 (citing 42 U.S.C. 

§§ 300aa–11(c), 300aa–14). All other injuries are offTable injuries where the petitioner has to prove causation 

by a preponderance of the evidence. Althen, 418 F.3d at 

1278. The parties do not dispute that Eilise’s injury is in 

the off-Table category, meaning that, in order to receive 

compensation for Eilise’s injuries, the Moriartys must:

[S]how by preponderant evidence that the vaccination brought about her injury by providing: (1) 

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

and effect showing that the vaccination was the 

reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination 

and injury. 

Id. Only the first and second prongs of the Althen test are 

at issue in this appeal because the special master found, 

and the parties do not dispute, that the Moriartys proved 

the third prong of the Althen test.
8 MORIARTY v. HHS

I.

The Moriartys argue that the special master erred in 

determining that they did not meet their burden to prove 

Althen prongs one and two for numerous reasons. With 

respect to prong one, the Moriartys argue, inter alia, that 

the special master erred by not considering the whole of 

the record, which includes Dr. Shafrir’s second expert 

report and the scientific articles discussed in that report. 

The government counters that a review of the special 

master’s decision shows that he considered both 

Dr. Shafrir’s testimony and Dr. Shafrir’s filed expert 

reports and the literature cited therein. We hold, as 

explained below, that the special master erred by failing 

to consider the entire record, including Dr. Shafrir’s 

second expert report and the articles he cited, which is 

relevant medical and scientific evidence present in the 

record.

We start with the language of the statute, which instructs that “[c]ompensation shall be awarded under the 

[Vaccine Act] to a petitioner if the special master or court 

finds on the record as a whole” that the petitioner has met 

his evidentiary burdens. 42 U.S.C. § 300aa–13(a)(1). The 

statute then identifies matters to be considered by a 

special master in determining whether to award compensation, which include any medical records or reports 

“contained in the record regarding the nature, causation, 

and aggravation of the petitioner’s . . . injury” as well as 

“all other relevant medical and scientific evidence contained in the record.” Id. § 300aa–13(b). This section also 

requires that special masters “shall consider the entire 

record and the course of the injury” when evaluating the 

weight to be afforded to any medical records or reports 

present in the record. Id. Thus, this statutory language 

indicates that a special master, reviewing the entire 

record of the case before him, must consider all relevant

medical and scientific evidence contained in the record, 

which includes any relevant medical records or reports. It 
MORIARTY v. HHS 9

also instructs that the special master “shall” consider the 

entire record, which includes this relevant evidence, when 

assigning the weight given to particular evidence. With 

this statutory guidance in mind, we now turn to the 

specific issues in this case.

The issue in this case is whether the special master

erred by failing to consider relevant medical and scientific 

evidence contained in the record. We conclude that he 

has. The special master erred in concluding that he need 

only review evidence of record which was the subject of 

testimony at the hearing. 

We generally presume that a special master considered the relevant record evidence even though he does not 

explicitly reference such evidence in his decision. Hazelhurst v. Sec’y of Health & Human Servs., 604 F.3d 

1343, 1352 (Fed. Cir. 2010). However, this presumption 

does not apply, as in this case, where a special master

indicates otherwise. Id. In his decision, the special 

master recognized that Dr. Shafrir discussed a connection 

between measles vaccination and encephalopathy in his 

second expert report. J.A. 18 n.11. He noted that 

Dr. Shafrir relied on and discussed several articles in this 

report before stating the opinion that Eilise’s epileptic 

encephalopathy sits within the spectrum of MMR vaccine 

encephalopathy. Id. But the special master never considered Dr. Shafrir’s testimony contained in his second expert 

report in reaching his decision that the Moriartys had 

failed to prove Althen prong one. This report is relevant 

medical or scientific evidence and it is part of the record 

in this case. Instead, the special master refused to consider both Dr. Shafrir’s written testimony and the articles 

he relied upon in this report solely because he did not

testify about them at the hearing. The special master

wrote:

Although Dr. Shafrir had cited various articles in 

support of his opinion in his second report, exhibit 
10 MORIARTY v. HHS

37, petitioners did not elicit testimony from 

Dr. Shafrir about these articles as part of the direct examination. When an expert does not explain the relevance of the article, a special master

is not required to interpret the study without the 

benefit of the expert’s guidance. Moberly v. Sec’y 

of Health & Human Servs., 85 Fed. Cl. 571, 598 

(2009), aff’d, 592 F.3d 1315 (Fed. Cir. 2010). 

J.A. 19 (footnote omitted). The special master then addressed only two of the articles cited in Dr. Shafrir’s 

report because he found that the “lack of direct testimony 

from Dr. Shafrir was ameliorated to some extent because 

the Secretary and the presiding special master inquired 

about a few of the articles that Dr. Shafrir cited.” Id. 

There is thus no indication that the special master considered Dr. Shafrir’s written testimony in his second 

report and the articles cited therein, and there is, in fact, 

an affirmative indication that he did not do so.

Additional statements indicate that the special master did not consider Dr. Shafrir’s written testimony in his 

report or the articles he cited. In denying the Moriartys’ 

petition, the special master faulted them for “fail[ing] to 

demonstrate how the measles vaccine would cause an 

autoimmune epileptic encephalopathy,” and “elicit[ing] 

very little testimony about the basis for Dr. Shafrir’s 

opinion that the measles vaccine can cause an epileptic 

encephalopathy.” J.A. 18–19; see also J.A. 22 

(“[P]etitioners failed to demonstrate that the MMR vaccine can cause an autoimmune epileptic encephalopathy.”). And the special master relied on Dr. MacDonald’s

testimony that “there is no evidence to support the conclusion that the MMR vaccine can cause autoimmune 

epileptic encephalopathy.” J.A. 22. The special master

could not conclude that there is no evidence to support the 

conclusion that the MMR vaccine can cause autoimmune 

epileptic encephalopathy unless he was refusing to consider the articles cited by Dr. Shafrir in his second expert 
MORIARTY v. HHS 11

report. One such article, a five-page article by Weibel et 

al.,2 cited and explained by Dr. Shafrir in his second 

report, teaches the very point that the special master

faulted the Moriartys for failing to present evidence to 

establish—that the MMR vaccine can cause autoimmune 

epileptic encephalopathy. 

Weibel analyzed data from claims submitted to the 

National Vaccine Injury Compensation Program—claims 

such as the one the Moriartys filed for Eilise here. The 

objective of this article is “[t]o determine if there is evidence for a causal relationship between acute encephalopathy followed by permanent brain injury or death 

associated with the administration of . . . [the] combined 

measles, mumps, and rubella vaccine.” J.A. 1459. The 

authors explain that encephalopathy has occurred in a 

number of cases following measles infection and that 

pleocytosis (i.e., an increase in the number of white blood 

cells in the cerebral spinal fluid (“CSF”)) is reported in 

about 20% of these patients. White blood cells, also called 

leukocytes, are part of the immune system, and an increase in their number can indicate, inter alia, an immune system disorder or that the body is fighting off an 

infection. The authors go on to explain on the first page of 

 

2 Robert E. Weibel, Vito Caserta, David E. Benor, & 

Geoffrey Evans, Acute Encephalopathy Followed by Permanent Brain Injury or Death Associated With Further 

Attenuated Measles Vaccines: A Review of Claims Submitted to the National Vaccine Injury Compensation Program, 101(3) PEDIATRICS 383–87 (1998) (“Weibel”). We 

note that the authors all work at either the Division of 

Vaccine Injury Compensation, National Vaccine Injury 

Compensation Program within the Health Resources and 

Services Administration, or the Office of the General 

Counsel at the Department of Health and Human Services.
12 MORIARTY v. HHS

this article that, in cases of post-measles-infection encephalopathy where pleocytosis is present, “the absence of 

a detectable virus in the brain is obscure, but may be 

suggestive of an autoimmune encephalopathy.” Id. (emphasis added). The authors then explain that prior case 

reports and review articles suggest that similar neurologic complications can also follow administration of a 

measles vaccine. Thus, this article squarely addresses the 

same disease allegedly suffered by Eilise: autoimmune 

encephalopathy caused by administration of a measles 

vaccine.

Based on their results, the Weibel authors concluded 

that their data “suggests that a causal relationship between measles vaccine and encephalopathy may exist as a 

rare complication of measles immunization.” J.A. 1459. 

In reaching this conclusion, they found that most of the 

children3 who suffered acute encephalopathy after receiving a measles vaccine also exhibited seizures (34 out of 

48) and nearly half developed a seizure disorder (23 out of 

48). They also found that 11 of the 40 children (about 

28%) for whom CSF analysis had been performed exhibited pleocytosis. In discussing their data, the authors state 

that “[m]anifestations of acute encephalopathy including 

loss of consciousness, ataxia, seizures, and pleocytosis

among these 48 children is similar to the clinical features 

of acute encephalopathy described after natural measles 

and other live measles vaccines.” J.A. 1462 (emphasis 

added). 

This article unmistakably talks about Eilise’s injury. 

It suggests that the measles vaccine can cause encephalo-

 

3 The study’s inclusion criteria were that the child

suffered an acute encephalopathy of undetermined cause 

within two to fifteen days of receiving a measlescontaining vaccine followed by permanent brain impairment or death.
MORIARTY v. HHS 13

pathy, and it reports that the clinical features of this 

encephalopathy include seizures (i.e., epileptic encephalopathies) in a subset of children. Moreover, the article 

explains that infection with the measles virus may cause 

an autoimmune encephalopathy in some situations, and 

that the medical evidence suggests that similar complications can occur following the measles vaccine. It also 

reports that, as with natural measles infections, measles 

vaccines are associated with pleocytosis in a subset of 

patients. It cannot be reasonably disputed that this 

article constitutes relevant scientific evidence.

Thus, to the extent that the special master’s recitation of Dr. MacDonald’s testimony that there is “no evidence” to support causation is a factual finding, that 

factual finding is not supported—and, indeed, is contradicted—by the evidence in the record. In ignoring Weibel

and Dr. Shafrir’s discussion of it in his second expert 

report, the special master ignored relevant record evidence that tends to prove the very point that the special 

master faulted the Moriartys for failing to prove. 

There are three errors with respect to the special 

master’s assertion that he was not required to consider 

the medical and scientific evidence of record. First, the 

special master’s holding that he could decline to review 

such evidence is legally erroneous. The special master

held: “When an expert does not explain the relevance of 

the article, a special master is not required to interpret 

the study without the benefit of an expert’s guidance. 

Moberly v. Sec’y of Health & Human Servs., 85 Fed. Cl. 

571, 598 (2009), aff’d, 592 F.3d 1315 (Fed. Cir. 2010).” 

The Moberly decision does not support the special master’s claim that he may refuse to consider relevant scientific and medical evidence of record merely because it is 

not explained by an expert. In fact, such a holding would 

be in direct conflict with the governing statute which 

requires the special master to consider all relevant medical and scientific evidence of record. As a preliminary 
14 MORIARTY v. HHS

matter, we note that the Federal Circuit decision in 

Moberly did not address this issue at all. The Court of 

Federal Claims decision explained only that “a special 

master may interpret and apply the conclusions of a 

medical study introduced into the record by a party, 

without the guidance of expert witnesses.” Moberly, 85

Fed. Cl. at 598. The Court of Federal Claims further 

stated although the special master may interpret a medical study without assistance of any expert, it is possible 

that a special master could conclude that “a particular 

study, or aspects of a study” may not be able to be understood absent such assistance and in those circumstances a 

special master could decline to interpret that portion of 

the study which he cannot understand. Id. Nowhere does 

the Court of Federal Claims (or our own court in its 

decision on the appeal) state that a special master is not 

required to consider a reference. Indeed, such a holding 

would be contrary to the statutory requirement that the 

special master consider the record as a whole, including 

all relevant scientific and medical evidence. A special 

master is required to consider all relevant medical and 

scientific evidence of record. And he is obligated to consider such evidence even if it is not explained by the 

testimony of an expert. However, if the technical complexity of a particular study is such that the relevance of 

the medical study or its particular findings cannot be 

understood by the special master without expert assistance that was not provided, then the special master may 

conclude that this evidence or portion of the evidence is 

entitled to little or no weight. And of course this sort of 

factual determination would be reviewed under the arbitrary and capricious standard on appeal. But the special 

master made no such finding in this case. In this case, 

the special master found that he was not required to 

consider the articles which the expert, Dr. Shafrir, did not 

discuss in his oral testimony at the hearing. He stated 

that “[a]lthough Dr. Shafrir had cited various articles in 

support of his opinion in his second report, exhibit 37, 
MORIARTY v. HHS 15

petitioners did not elicit testimony from Dr. Shafrir about 

these articles as part of the direct examination. . . . The 

lack of direct testimony from Dr. Shafrir was ameliorated 

to some extent because the Secretary and the presiding 

special master inquired about a few of the articles 

Dr. Shafrir cited.” J.A. 19. The special master then only 

discussed the articles which Dr. Shafrir had offered oral 

testimony about. The special master was not free to 

decline to review the other medical and scientific articles 

in the record simply because the expert had not testified 

to them on direct or cross examination. 

Second, the special master was clearly erroneous in 

his assessment of which medical and scientific articles 

Dr. Shafrir had offered testimony on. Since the special 

master considered only oral testimony and not the expert 

report of Dr. Shafrir he clearly erred in his review of the 

Shafrir testimony. The special master did not consider 

Dr. Shafrir’s discussion of the relevance of these articles 

in his expert report. For example, Dr. Shafrir opined in 

his report “that Eilise’s epileptic encephalopathy sits 

within the spectrum of MMR vaccine encephalopathy” 

and explained that Weibel describes “one side of the 

spectrum” where measles vaccination was followed by 

permanent brain injury or death and that these authors 

concluded that the data they analyzed “suggests that 

causal relationship between measles vaccine and encephalopathy may exist as rare complications of measles 

immunization.” J.A. 1382. This is not a case where the 

expert simply cited a large number of references in a 

voluminous expert report without providing any guidance 

as to their relevance. The exact opposite is true—

Dr. Shafrir’s second report is a total of eight pages and 

cites a total of eight articles. And the report does not 

simply cite the eight articles without explanation, leaving 

it to the special master to determine the articles’ relevance. Rather, it explains the relevance of each article 

and provides a numbered list summarizing Dr. Shafrir’s 
16 MORIARTY v. HHS

conclusions based on these articles. It cannot be said that 

Dr. Shafrir provided no guidance as to the relevance of 

these articles. He did, and he did it concisely in his 

second report. 

We have never held that the relevance of particular 

articles cited by an expert in a report must be explained 

in the form of the expert’s testimony at a hearing in 

Vaccine Act cases. Indeed, such a holding would be 

contrary to the broad statutory instruction that the special master consider the entire record, including all relevant medical and scientific evidence contained in that 

record, which includes expert reports such as the one at 

issue here. Such a holding would also be contrary to the 

Court of Federal Claims’ Vaccine Rule 8, which provides 

that “[i]n receiving evidence, the special master will not 

be bound by common law or statutory rules of evidence 

but must consider all relevant and reliable evidence 

governed by principles of fundamental fairness to both 

parties.” Hazelhurst, 604 F.3d at 1349 (quoting Vaccine 

R. 8(b)(1) (2009)). Vaccine Rule 8 also explains the forms 

in which parties may present such evidence, namely “in 

the form of documents, affidavits, or oral testimony which 

may be given in person or by telephone, videoconference, 

or videotape.” Vaccine R. 8(b)(2). As this rule instructs, 

traditional rules of admissibility of evidence that apply in 

district court actions do not apply in Vaccine Act proceedings. See Hazelhurst, 604 F.3d at 1349. The use of more 

flexible evidentiary rules, like the statutory instruction to 

consider the entire record, is consistent with the purpose 

of the Vaccine Act, which established “a no-fault compensation program ‘designed to work faster and with greater 

ease than the civil tort system.’” Bruesewitz v. Wyeth 

LLC, 562 U.S. 223, 228 (2011) (quoting Shalala v. Whitecotton, 514 U.S. 268, 269 (1995)). 

Moreover, we have repeatedly endorsed a special 

master’s reliance on both the reports and testimony of 

expert witnesses. See, e.g., Hazelhurst, 604 F.3d at 1349–
MORIARTY v. HHS 17

50 (finding no error in the “special master’s decision to 

admit and consider [an expert’s] testimony and reports”); 

Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 

1355, 1365 (Fed. Cir. 2012) (affirming a special master’s 

decision where an expert’s “report and testimony made 

clear” that whether the petitioner suffered a particular 

injury was a necessary component of her case). Here, the 

special master’s decision indicates that he did not consider either the explanations regarding the relevance of 

articles that Dr. Shafrir offered in his report or the articles themselves solely because Dr. Shafrir did not testify 

on these points at the hearing. In so doing, the special 

master erred.

Finally, contrary to the special master’s assertion, 

Dr. Shafrir testified on direct about at least three of the 

references cited in his second report when explaining his 

opinion regarding Eilise’s injury and its causation.4 For 

example, Dr. Shafrir testified on direct that:

So I think that what Eilise suffered, based on a 

case report that we also had that was published 

with similar onset of epileptic encephalopathy after the measles vaccine that the same immune 

mechanism that produced the [acute disseminated 

encephalomyelitis], that produced the cerebral 

ataxia, also it produced here a specific immune 

mediated epileptic encephalopathy on top of what 

she had before.

J.A. 210. And he further testified that “there is the entity 

of immune mediated epileptic encephalopathy exists in 

quite significant numbers. We have specific support 

describing the same thing in others -- I think it was a 

young man.” J.A. 211. In his second report, Dr. Shafrir 

 

4 The special master found there was oral testimony about only two of the articles. J.A. 19.
18 MORIARTY v. HHS

cited and explained the relevance of a case report5 involving a child who “developed epileptic encephalopathy on 

day 14th [sic] after measles immunization.” J.A. 1384. He 

explained that this child “developed rapid nodding of the 

head” and, as his seizures increased in frequency, they 

“occasionally produced falls.” Id. He noted that this child 

was “finally diagnosed with Lennox-Gastaut syndrome” 

and that, even so, the child’s neuroimaging and other 

immunological studies were normal. Id. The case report 

identified the affected child as “a 2-year-old boy with 

Lennox-Gastaut syndrome,” J.A. 1488, consistent with 

Dr. Shafrir’s testimony that the case report involved a 

“young man.” Dr. Shafrir explained that this child had 

not responded as well as Eilise to various seizure medications. Dr. Shafrir similarly testified about at least two 

other articles cited and explained in his second expert 

report.6

 

5 Tatsuya Ishikawa, Chizuko Ogino, & Sangmi 

Chang, Case Report: Lennox-Gastaut syndrome after a 

further attenuated live measles vaccination, 21 Brain & 

Development 563–65 (1995).

6 Dr. Shafrir’s hearing testimony specifically mentioned “studies by Gibbs” discussing patients with EEG 

changes. J.A. 209. In his second report, Dr. Shafrir 

identified and explained the relevance of two articles by 

Gibbs et al., pointing out that two patients with measles 

developed a “convulsive” (i.e., epileptic) disorder as documented by their changing EEG test results. J.A. 1383–86. 

And, in fact, the special master recognized that 

Dr. Shafrir included at least one article by Gibbs in his 

second report because he relied on the government’s crossexamination of Dr. Shafrir about that article in his decision.

Dr. Shafrir also testified on direct about “an article on 

acute cerebral ataxia,” explaining that this disorder is 
MORIARTY v. HHS 19

Admittedly, it would have been easier for the special 

master if Dr. Shafrir’s hearing testimony clearly referenced and discussed each of the articles. But that is not a 

basis for the special master to refuse to consider relevant 

scientific evidence in the record where the statutory 

language, and even the Vaccine Rules, instruct that this 

evidence must be considered. Given the statutory mandate to consider all relevant medical and scientific evidence of record, the special master’s refusal to do so is 

arbitrary and capricious. 

The special master’s refusal to consider Dr. Shafrir’s 

second expert report and the references cited in it is 

particularly concerning here given the procedural history 

in this case. As noted above, a different special master

actually held the hearing at which Dr. Shafrir testified. 

We generally give a special master “broad discretion in 

determining credibility because he saw the witnesses and 

heard the testimony.” Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). But 

here that general rule carries less force because the 

special master who decided Eilise’s petition was not 

present at this hearing such that he, like us, only has the 

transcript of that proceeding on which to rely. See Oral 

Argument at 16:00–51, available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

 

“[an]other neuroimmune reaction to the vaccine” that is 

“much less severe” than other disorders. J.A. 210. In his 

second report, Dr. Shafrir explained that “[m]any of the 

clinical phenomena seen with the actual infection with 

measles, mumps, or rubella are seen with the vaccination” 

and that some of these clinical phenomena are “immune 

phenomena such as acute cerebellar ataxia” citing an 

article titled “Gait disturbance interpreted as cerebellar 

ataxia after MMR vaccination at 15 months of age: a 

follow-up study.” J.A. 1382, 1386.
20 MORIARTY v. HHS

15-5072.mp3. In such a situation, consideration of the 

entire record is particularly important in order to avoid 

potentially overlooking relevant material.

II.

As the special master noted, much of the evidence relevant to proving Althen prong one in this case is relevant 

to proving Althen prong two. Thus, the special master’s 

error in not considering relevant evidence with respect to 

Althen prong one affects his analysis with respect to 

prong two as well. Moreover, there is “no reason why 

evidence used to satisfy one of the [Althen] prongs cannot 

overlap to satisfy another prong.” Capizzano v. Sec’y of 

Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 

2006). And, in certain cases, a petitioner can prove a 

logical sequence of cause and effect between a vaccination 

and the injury (Althen prong two) with a physician’s 

opinion to that effect where the petitioner has proved that 

the vaccination can cause the injury (Althen prong one) 

and that the vaccination and injury have a close temporal 

proximity (Althen prong three). Id. While we believe that 

this is one such case, we hesitate to determine that in the 

first instance. We therefore vacate the decision below and 

remand to allow the special master to consider the entire 

record including the relevant medical and scientific evidence, such as Dr. Shafrir’s second report and the articles

cited therein. 

CONCLUSION

For the foregoing reasons, we vacate the decision of 

Court of Federal Claims affirming the decision of the 

special master rejecting the Moriartys’ petition. We 

remand for further proceedings consistent with this 

opinion.

VACATED AND REMANDED
MORIARTY v. HHS 21

COSTS

Costs to the Moriartys.