In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. xx-xxxV

Filed: May 6, 2015

Redacted and Reissued: May 8, 2015

Not to be Published

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J.K., *

*

 Petitioner, *

*

 v. * Influenza (“flu”) and hepatitis A vaccines;

* seizure; no sequelae; no expert report;

SECRETARY OF HEALTH * petitioner moves for decision on the

AND HUMAN SERVICES, * written record; dismissed

*

 Respondent. *

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Myles D. Jacobson, Northampton, MA, for petitioner.

Lisa A. Watts, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION1

On September 8, 2014, petitioner sued under the National Childhood Vaccine Injury Act, 

42 U.S.C. §§ 300aa-10–34 (2006), alleging that either or both influenza (“flu”) and hepatitis A 

vaccines he received on September 21, 2011 caused him to have a seizure the next day. 

Evidence in the record shows that petitioner never had any subsequent seizures, although 

he is prone to blacking out after he smokes marijuana. Petitioner never filed an expert report 

 

1 Because this decision contains a reasoned explanation for the special master’s action in this case, the 

special master intends to post this decision on the United States Court of Federal Claims’ website, in 

accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 

2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the 

public unless they contain trade secrets or commercial or financial information that is privileged and 

confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted 

invasion of privacy. Petitioner made a timely motion to redact the case number and petitioner’s name 

from the decision on May 7, 2015. The undersigned grants petitioner’s motion and reissues this redacted 

decision.
2

supporting his allegation that either one or both of his vaccinations caused his seizure. 

Moreover, he has not proven that he had more than six months of sequelae as the Vaccine Act 

requires. A number of the illnesses of which he complains, such as anxiety and panic attacks, 

pre-date his vaccinations.

On May 5, 2015, petitioner filed a status report, in lieu of a motion, stating he “wishes the 

Special Master to rule on his Petition based on the existing record.”

The undersigned GRANTS petitioner’s “motion” and DISMISSES this case for failure 

to prove that either one or both flu and hepatitis A vaccines caused petitioner’s seizure.

FACTS

Petitioner was born on July 8, 1993.

On September 21, 2011, he received flu and hepatitis A vaccines. Med. recs. Ex. 17, at 7, 

8.

On September 22, 2011, Margate Fire Rescue Field Notes record a fall/seizure/hematoma 

over petitioner’s right eye. Med. recs. Ex. 2, at 1.2 He had a history of gastroenteritis and was 

on Zytec and Prevacid. Id. Petitioner’s father found him unconscious on the floor seizing. Id. 

The EMTs gave him 5 mg of Valium, and petitioner’s seizure stopped. Id. Petitioner vomited 

and was suctioned. Id. He was intubated and taken to North Broward Medical Center. Id. 

On May 29, 2012, Dr. Ridwan Lin of Broward Health North Clinic wrote a letter 

describing his May 11, 2012 visit with petitioner. Med. recs. Ex. 3, at 1. Dr. Lin noted that 

petitioner had been hospitalized at North Broward Medical Center in September 2011 after a 

generalized seizure. Id. Petitioner had received flu vaccine before the seizure, but “it was 

unclear whether they were related.” Id. Petitioner’s EEG was normal. Id. Petitioner’s brain 

MRI was normal. Id. Petitioner was prescribed Ritalin, but he self-discontinued. Id. A repeat 

EEG in December 2011 showed some slowing but no epileptiform activity. Id. Petitioner had 

been doing well neurologically with no recurrent seizure. Id. Petitioner had multiple other 

complaints, including anxiety and panic attacks. Id. He had been diagnosed with severe anxiety 

disorder and sees a psychiatrist. Id. Petitioner also had headache, insomnia, and pain in his 

knees. Id. He claimed he had thyroid abnormalities. Id. He had a history of food poisoning 

and gastroenteritis. Id. Petitioner had used marijuana. Id. On physical examination, petitioner 

did not have swelling in his knees. Id. He had a depressed mood. Id. Dr. Lin’s diagnosis was 

single episode generalized seizure possibly related to flu vaccine. Id. at 2. Petitioner had no 

epileptiform activity. Id. Dr. Lin recommended petitioner see a psychiatrist to manage his 

anxiety and panic attacks. Id.

 

2 Petitioner initially used letters to designate exhibits instead of numbers. See Order, Nov. 25, 2014, ECF 

No. 10 (re-designating the lettered exhibits as numbered exhibits).
3

On June 1, 2012, petitioner saw Dr. Lin again. Med. recs. Ex. 5, at 3. Dr. Lin wrote that, 

since his past visit, petitioner had had episodes of blacking out where he fell. Id. He denied loss 

of consciousness. Id. He had no visual loss, language disturbance, focal weakness, or sensory 

loss. Id. Dr. Lin wrote, “These episodes occur after he smokes marijuana.” Id. Petitioner still 

had anxiety and panic attacks and pain in his wrists and knees. Id. He had an appointment to see 

a rheumatologist. Id. He was no longer taking Topamax. Id. Dr. Lin’s diagnosis was falls, but 

he was not clear if they were syncopal spells. Id. at 4. He advised petitioner against continuing 

to smoke marijuana. Id. He prescribed a repeat EEG and recommended petitioner see a 

psychiatrist for anxiety and panic attacks. Id.

On November 12, 2013, Dr. Lin wrote that a rheumatologist diagnosed petitioner with 

fibromyalgia. Id. at 5. Petitioner said his pediatrician diagnosed him with a thyroid disorder. Id. 

Petitioner said he yawned a lot. Id. 

On January 27, 2014, petitioner had an initial psychiatric evaluation at University 

Hospital and Medical Center with Dr. Robert Antoine. Med. recs. Ex. 13, at 12. Petitioner had a 

history of paranoid type schizophrenia, aggressive and impulsive behaviors, irrationality, 

threatening his father, delusions, paranoia, somatic preoccupations, medication noncompliance, 

disorganized thought processes, self-mutilation, and was smoking one gram per day of marijuana 

to gain weight. Id. at 12–13. Petitioner started smoking marijuana when he was 16 or 17 years 

old (in 2009 or 2010 before his 2011 vaccinations). Id. at 13. He stopped three months ago. Id. 

Petitioner’s mother had manic depression and died when he was five years old. Id. His father 

used to grow cannabis before stopping three years ago after petitioner went to the police. Id. 

Petitioner’s speech was rambling. Id. He had somatic preoccupations, and his judgment and 

insight were poor. Id. Dr. Antoine diagnosed petitioner with schizophrenia, and wanted to rule 

out schizoaffective disorder, bipolar disorder with psychosis, cannabis-induced psychotic 

disorder, and/or eating disorder not otherwise specified. Id. 

From January 18 to 25, 2014, petitioner was at University Hospital and Medical Center. 

Id. at 52. Dr. Tanveer Sobhan wrote that petitioner was focused on food. Id. He was 

hyperverbal, tangential, and paranoid. Id. He had cravings for marijuana. Id.

From March 21, 2014 to September 9, 2014, a total of 173 days, petitioner was at New 

Directions for Young Adults, diagnosed with schizoaffective disorder, bipolar type. Med. recs. 

Ex. 12, at 1. He had a continued lack of commitment to sobriety. Id. at 2. He needed insight 

into his problem with substance abuse. Id.

DISCUSSION

To satisfy his burden of proving causation in fact, petitioner must prove by preponderant 

evidence: “(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 
4

showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y 

of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion 

in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):

A persuasive medical theory is demonstrated by “proof of a logical 

sequence of cause and effect showing that the vaccination was the 

reason for the injury[,]” the logical sequence being supported by a 

“reputable medical or scientific explanation[,]” i.e., “evidence in 

the form of scientific studies or expert medical testimony[.]”

418 F.3d at 1278.

Without more, “evidence showing an absence of other causes does not meet petitioners’ 

affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal 

association is not sufficient to prove causation in fact. Id. at 1148.

Petitioner must show not only that but for either or both flu and hepatitis A vaccines, he

would not have seized, but also that either or both vaccines was a substantial factor in causing his 

seizure. Shyface v. Sec’y of HHS 165 F.3d 1344, 1352 (Fed. Cir. 1999).

Moreover, even if petitioner proved that either or both flu and hepatitis A vaccines 

caused his seizure one day later, he would still have to prove that he had more than six months of 

sequelae. 42 U.S.C. § 300aa-11(c)(1)(D)(i).

The Vaccine Act does not permit the undersigned to rule for petitioner based on his

claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa13(a)(1). In this case, petitioner’s medical records do not substantiate petitioner’s claim of 

causation both in terms of causation of his one seizure and of his having sequelae for more than 

six months. Moreover, petitioner has not filed an expert medical opinion substantiating his claim

of causation in fact.

The undersigned GRANTS petitioner’s motion for a decision on the written record and 

DISMISSES this case for petitioner’s failure to prove by a preponderance of the evidence the 

matters required in the petition. 42 U.S.C. § 300aa-13(a)(1).

CONCLUSION

This petition is DISMISSED. In the absence of a motion for review filed pursuant to 

RCFC, Appendix B, the clerk of the court is directed to enter judgment herewith.3

 

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or 

jointly, filing a notice renouncing the right to seek review. 
5

IT IS SO ORDERED.

May 8, 2015 s/Laura D. Millman 

DATE Laura D. Millman

 Special Master