In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-542V
(to be published)
*************************
* Chief Special Master Corcoran
*
ASHLEY AMERICA, *
* Filed: January 4, 2022
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington,
DC, for Petitioner
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DENYING ENTITLEMENT 1
On April 17, 2017, Maria and Rui America, on behalf of their then-minor child, Ashley,
filed a Petition under the National Vaccine Injury Compensation Program (the “Vaccine
Program” 2), alleging that as a result of receiving the human papillomavirus (“HPV”) and influenza
(“flu”) vaccines, Ashley developed neurocardiogenic syncope (“NCS”). Petition (ECF No. 1)
1
This Decision will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access
to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published
Ruling’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has
fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
Otherwise, the entire Decision will be available to the public in its current form. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
(“Pet.”) at 1–2. Ms. America became the named petitioner after she turned 18 years old. ECF No.
8. She has since restricted her claim to alleging only an off-Table significant aggravation claim of
her preexisting NCS. ECF No. 55 at 13.
Having reviewed the record, all expert reports, the parties’ briefs, the medical records, and
associated literature, I hereby deny an entitlement award. As discussed in greater detail below,
Petitioner has not preponderantly established that the HPV vaccine (the primary allegedly-causal
vaccine focused upon by her expert) can aggravate NCS, or that it did so to Ms. America in the
relevant timeframe.
I. Factual Background
Pre-Vaccination Health History
Ms. America was born on January 28, 1996. Pet. at 1. Her medical history was significant
for hypothyroidism, obesity, hyperlipidemia/hypertriglyceridemia, anxiety disorder, thyroid
nodule, and (most significant for purposes of this case) episodic syncope. Ex. 3 at 7. Her syncope
episodes consisted of occasional convulsive arm movements, but were largely characterized by
instances where her eyes were rolling back as she fell to the floor, losing consciousness for a few
seconds, and then regaining consciousness when one of her parents lowered her head or put some
salt on her tongue. Ex. 8 at 39. After these episodes, she would recover almost immediately, but
she would not feel like herself for several minutes. Id. Ms. America’s first such syncopal episode
is reported to have occurred in 2009, during the first week of her menstrual cycle, where she
collapsed while standing in a hot kitchen. Ex. 10 at 1. She had four additional episodes from 2010
to September 2014. Id at 1–2. The 2010 and July 2011 episodes involved heat, like her first
episode. Id.
After the August 2013 episode, Ms. America was seen by Karameh Hawash, M.D., a
neurologist, at Boston Children’s Hospital, who deemed them syncopal in nature rather than
evidence of seizure activity. Ex. 8 at 39–40. Ms. America was thereafter reportedly referred for
cardiology evaluation, but no documentation was recorded. Id. After the September 2014 episode
(which occurred twenty-four days before her first receipt of the HPV vaccine), Ms. America was
taken to the emergency room at Faxton St. Luke’s in New Hartford, New York. Ex. 5 at 287. She
was diagnosed with a sinus infection and syncope. Id. at 286, 288. A CT scan performed on
September 26, 2014, revealed partial opacification of the left mastoid air cells, but other test results
were deemed normal. Ex. 5 at 307. Prior to this final pre-vaccination episode, Ms. America
reported that she felt an “itch in [her] brain,” which she stated had not occurred during any of the
previous episodes. Ex. 5 at 301. She also reported that her episodes typically occurred around
menstruation. Ex. 5 at 287. Ms. America’s mother informed treaters that she had experienced
similar symptoms as a child. Id.
2
During these episodes, Ms. America’s family had moved several times. Ex. 8 at 39; Ex. 10
at 1–2. In July 2011, the family relocated from Portugal to Massachusetts; then from Massachusetts
to Sauquoit, New York in September 2013; and then finally from Sauquoit to Westmoreland, New
York in September 2014. 3 Ex. 10 at 1–2. Ms. America’s mother stated that these moves were
“somewhat stressful” for her daughter. Id. at 2. Moreover, Dr. Hawash documented that Ms.
America’s family planned to move again. Ex. 8 at 39. Dr. Hawash also documented that at that
time, Ms. America’s parents had lost their jobs, and that one of her brothers had been diagnosed
with bipolar disorder. Id.
Receipt of the HPV Vaccine
Ms. America received her first HPV vaccine dose (along with the flu vaccine) on October
20, 2014, from her primary care physician, Dr. Quazi Islam, M.D. Ex. 1 at 1. The following day,
she felt dizzy at school and went to the nurse’s office, where she passed out. Ex. 5 at 278. That
same day she had also started taking Levothyroxine. Id. at 278. She was sent to Faxton St. Luke’s
emergency room and was diagnosed with vertigo. Id. at 268.
The next day, October 22, 2014, Ms. America passed out again and went back to Faxton
St. Luke’s emergency room, where she complained of dizziness, shortness of breath, and a
headache. Ex. 5 at 225. The physicians believed she had syncope. Id. at 226. While at the hospital
Ms. America had another episode and passed out again, but her vitals remained stable. Id. at 241.
Testing performed on Ms. America at this time was not fully corroborative of syncope. Her
blood pressure was 137/74 while laying down, 143/74 standing, and 138/60 standing. Ex. 5 at 238.
In cases of typical vasovagal syncope, however, a patient’s blood pressure and heart rate would
fall, which differs from what happened to Ms. America on this visit. Id. at 241. In addition, during
the episode in question a nurse conducted a “drop test,” 4 but Ms. America moved her hand to avoid
hitting herself. Id. After this episode, the emergency room physician suggested a mental health
evaluation, and diagnosed Ms. America with a potential conversion disorder. 5 Id. at 266. Ms.
3
Ms. America had a previous history of losing consciousness when she was living in Portugal and was apparently
evaluated for seizures, although prior work-up records were not documented. Ex. 8 at 39. A neurologist in Portugal
determined that she did not have seizures. Id.
4
A drop test involves a treater holding a patient’s hand over her head, and then dropping the hand to see if the patient
is truly unconscious. Ex. 5 at 241. If so, the hand would strike her head; if not, she would move her hand to avoid
hitting herself. Id.
5
Conversion disorder is “a mental disorder characterized by conversion symptoms (loss or alteration of voluntary
motor or sensory functioning suggesting physical illness, such as seizures, paralysis, dyskinesia, anesthesia, blindness,
or aphonia) having no demonstrable physiological basis and whose psychological basis is suggested by (1)
exacerbation of symptoms at times of psychological stress, (2) relief from tension or inner conflicts (primary gain)
provided by the symptoms, or (3) secondary gains (support, attention, avoidance of unpleasant responsibilities)
3
America’s mother has alleged that over the following days Petitioner experienced four additional
episodes (on October 23, 27, 30, and 31, respectfully), but she was not again taken to the
emergency room. Ex. 10 at 2.
At the start of the following month - November 6, 2014 - Ms. America visited Ramzi
Nassif, M.D., a cardiologist, for a work-up, which included physical examination,
electrocardiogram, and echocardiogram. Ex. 7 at 4–6. Ms. America’s blood pressure at that time
was 130/76 laying down, 112/76 sitting, and 110/78 standing. Id. at 2. She weighed 200 pounds
with a body mass index 6 (“BMI”) of 36.6. Id. at 3. Dr. Nassif also ordered an event monitor to
evaluate her for arrhythmia, and it demonstrated a normal sinus rhythm with a rate of 60. Id. at 4,
6. There were no auto-triggered events, but occasional isolated premature atrial contractions. Id.
at 5–6. During this time, Ms. America’s mother witnessed an episode and filmed it. Ex. 7 at 6. Dr.
Nassif proposed the video taken of the episode was suggestive of a partial complex seizure, though
there were no changes in heart rate. Id.
Petitioner’s mother has alleged that less than a week later, on November 12, 2014, her
daughter complained of a severe headache and dizziness after picking her up from school. Ex. 10
at 2. On November 13, 2014, Dr. Islam performed an ultrasound evaluation of the thyroid, where
a solid hypoechoic nodule was present on the right lobe of her thyroid. Ex. 5 at 170. The cardiac
echocardiogram also showed trace to mild regurgitation in all valves. Ex. 7 at 5. Petitioner’s mother
maintains that her daughter had three additional episodes thereafter, beginning that same day,
although medical records do not corroborate these assertions. Ex. 10 at 2.
The following month, on December 2, 2014, Ms. America underwent evaluation by Allen
Gerber, M.D., a neurologist, who saw nothing of concern. Ex. 8 at 5. On December 6, 2014, Ms.
America underwent additional testing, which included a normal sleep study. Ex. 8 at 24–25. It
revealed no evidence of obstructive sleep apnea, however, and it showed a normal 24-hour
ambulatory EEG. Id. A few days after, on December 11, 2014, Petitioner purportedly experienced
yet another episode, but again opted not to seek treatment at the emergency room. Ex. 10 at 3.
Increase in Observed Symptoms, 2014 to 2015
Throughout the course of 2015, Ms. America is alleged (primarily by her mother) to have
experienced over 20 additional syncopal episodes. Ex. 10 at 3. However, the medical record in this
case largely provides no clear evidence of an etiology or other explanation for these occurrences.
provided by the symptoms.” See Dorland's Illustrated Medical Dictionary (33d ed. 2020) at 543 [hereinafter
Dorland's].
6
An individual's BMI is a measure of body fat and is a formula for determining obesity. See Mosby’s Medical
Dictionary (10th ed. 2017) at 228.
4
From January 14-15, 2015, Ms. America had a 24-hour ambulatory EEG and a continuous EKG
recorded, but no interictal epileptiform morphologies were identified, and no electrographic
seizures were seen. Ex. 8 at 23. The overseeing neurologist, Anthony Ritaccio, M.D., concluded
that the study was normal. Id.
On February 10, 2015, Ms. America had a follow-up appointment with Dr. Gerber, who
reported that Ms. America’s 24-hour Holter, 24-hour EEG, cardiology consult, and sleep study
were normal. Ex. 8 at 4. Ms. America and her mother brought in several videos purportedly
showing her experiencing seizures. Id. In the videos, Ms. America had twitching in either hand
and she would enter a state that appeared as if she were sleeping, and then would completely pass
out. Id. Her mother appeared to slap her to wake her up. Id. Dr. Gerber stated that “one time she
awoke because the slap was too heavy and another time, she appeared to awake when the dog
greets her.” Id. Dr. Gerber opined, however, that these events most likely represented
pseudoseizures. 7 Id. Dr. Gerber increased her Keppra dosing as an anti-epileptic therapy. Id.
On March 31, 2015, Ms. America saw ophthalmologist Patrick Costello, M.D., who
reported that her evaluation was normal. Ex. 8 at 37. On April 23, 2015, she received her second
HPV vaccine dose. Ex. 1 at 1. After this second dose, Petitioner is alleged to have experienced six
additional episodes over the following months. Ex. 10 at 3. There is, however, limited record
corroboration for these subsequent events—and no proof establishing an event close-in-time to
this second dose.
From June 2-4, 2015, Ms. America underwent a long-term video Epilepsy Monitoring Unit
(“EMU”) study using a digital video EEG for assessment. Ex. 8 at 20–22. Her Keppra medication
was stopped during this procedure. Id. at 20. Her prior routine EEG was normal. Id. Observing
neurologist Kevin McMahon, M.D., wrote at this time that no interictal epileptiform discharges
occurred during the EEG. Id. at 21. Ms. America’s first episode during the study occurred on June
3, 2015, where the following information was provided:
On June 3, 2015 at 08:43:48 the [Ms. America] was lying in bed with her eyes closed. At
08:44:03 the mother was sitting at [her] bedside, [and] asked her if she could speak but she
shook her head, "no". Her mother then pushed the event button. Approximately 10 seconds
later, a nurse entered the room and asked her a series of orientation questions; however,
the patient did not answer any of these questions nor follow[ed] commands. The nurse also
attempted to raise her arm [] on multiple occasions. The patient just dropped it to the bed
and remained motionless for the majority of the event with her eyes closed. Throughout
7
A pseudoseizure is “an attack resembling an epileptic seizure but being a type of conversion disorder; it lacks the
electroencephalographic characteristics of epilepsy and the patient may be able to stop it by an act of will.” Dorland's
at 1522.
5
the event she did not answer to voice or follow any verbal commands. The event appeared
to be over at 08:45:00 when she resumed speaking and following commands appropriately.
Id. Dr. McMahon wrote that there were no correlative EEG changes before, during, or after the
event. Id. Dr. McMahon’s determination was thus that Ms. America’s EEG was normal, and that
she had likely experienced a non-epileptic event. Id. Based on these findings, Dr. McMahon
recommended that Ms. America see a psychiatrist and be taken off her anti-epileptic medication.
Id. Bridget Frawley, M.D., a neurologist, who reviewed the study alongside Dr. McMahon, agreed
with his findings. Id. at 22.
Treatment in 2016 and Beyond
Ms. America had subsequent psychiatric evaluations in January and February 2016, and
the relevant treaters opined that she might be experiencing an adjustment disorder. Ex. 11 at 15–
16, 18–19, 27–28. In May 2016, however, Ms. America was discharged for non-compliance of
attendance at her therapy sessions, as she had not contacted her clinician for two months. Ex. 11
at 27–28.
Ms. America appears to have continued throughout this period to report episodes of
syncope. Ex. 5 at 4–34. In August 2016, emergency medical services were called to her school for
concern of a possible seizure. Id. at 4. She stated that she had a lump on the right side of her neck
that was causing her to be “more dizzy than normal.” Id. at 13.
In the Fall of 2016, Ms. America began community college. Ex. 12 at 1. The Coordinator
of Accessibility Resources in the Office of Services to Students with Disabilities described Ms.
America’s episodes as being non-responsive, with Ms. America unmoving and displaying shaking
limbs plus muscle tension, and the events being preceded by pallor and “limited facial expression.”
Id. at 2. The episodes would last ten seconds to two minutes, and were brought on by bright lights
or flickers on computer screens. Id. Afterwards, Petitioner would complain of fatigue, tingling,
numbness, extreme pain, dizziness, poor concentration, and memory problems. Id. She also
reported accompanying migraines. Id. This reportedly led to increased avoidance of social
involvement due to potential “seizure triggers.” Id.
In late January 2018, Ms. America’s primary care physician, Dr. Islam, obtained lab studies
during a routine physical examination. Ex. 15 at 1–3. Abnormal findings included a complete
blood count with a low mean corpuscular volume and mean corpuscular hemoglobin, an abnormal
lipid panel, and a low vitamin D level. Ex. 14 at 1–10. She was given a prescription for vitamin D
50,000 units to be taken once weekly. Ex. 15 at 1–2.
6
Neurology Consults with Petitioner’s Causation Expert
Ms. America has had two consulting sessions with her causation expert, Dr. Svetlana
Blitshteyn, M.D., since the date of the case’s initiation in April 2017. See Consult, dated December
23, 2017, filed as Ex. 13 (ECF No. 24-3) (“Blitshteyn First Consult”); Consult, dated April 4, 2018,
filed as Ex. 16 (ECF No. 26-2) (“Blitshteyn Second Consult”).
The first, one-hour telephonic consultation occurred in December 2017. Blitshteyn First
Consult at 1–3. Dr. Blitshteyn described Ms. America’s medical history as “daily syncope,
constant headaches, dizziness, balance difficulty, and recurrent numbness of the legs and arms.”
Id. at 1. Further, Ms. America informed Dr. Blitshteyn that after she received the first HPV vaccine
dose in October 2014, she had dizziness and was instructed by a nurse to lie down for 15 minutes.
Id. However, she stated the dizziness “never resolved, [and] she has been dizzy ever since.” Id.
She reported episodes of syncope, sometimes supine, lasting up to 30 minutes. Id.
Dr. Blitshteyn’s working diagnosis was NCS, an autonomic nervous system disorder,
migraine with and without aura, and chronic daily headaches. Blitshteyn First Consult at 2. She
proposed that perhaps Ms. America previously had experienced mild recurrent syncope, but that
the HPV vaccination exacerbated it, coupled with other neurologic manifestations. Id. at 2. To rule
out secondary causes, Dr. Blitshteyn recommended Ms. America undergo a large number of
antibody and serum tests, and also undergo a “tilt table” test to evaluate the degree of Ms.
America’s orthostatic intolerance. 8 Id. at 2. She also proposed a corticosteroid course and some
non-pharmacologic interventions (exercise, increased salt and fluid intake, etc.). Id. It does not
appear from the record in this case, however, that the tilt table test ever occurred.
Several months later, on April 4, 2018, Dr. Blitshteyn held a follow-up telephone
consultation and evaluation with Ms. America and her mother. Blitshteyn Second Consult at 1–3.
During the call, Ms. America complained of syncope occurring every two weeks, headaches
occurring every other day, dizziness, photophobia, phonophobia, and recurrent numbness. 9 Id. at
8
A tilt table test is used to evaluate syncope by measuring heart rate and blood pressure in response to the body's
change in position. Tilt Table Test, Mayo Clinic, https://www mayoclinic.org/tests-procedures/tilt-tabletest/about/pac-
20395124 (last accessed Nov. 19, 2021). During the test, the patient lies flat on a table for around 15 minutes. Id. The
table is then quickly tilted upright to change the body's position from lying down to standing up. Id. The table generally
remains upright for 45 minutes to allow the doctor to monitor the patient's cardiovascular response. Id.
9
In her initial report, Dr. Blitshteyn stated that there were also two additional follow-up telephonic consultations, held
on February 16, 2018, and July 11, 2018. Ex. 17 at 3. However, no records were ever filed confirming that in fact
these consultations occurred. During the purported February 16, 2018 consultation, Dr. Blitshteyn alleges that that
Ms. America “reported 40% improvement in her symptoms with non-pharmacologic therapy alone, and with the
addition of Florinef, all of her symptoms have improved significantly, including daily headache and syncope.”
7
1. Dr. Blitshteyn’s working diagnosis was NCS, migraine with and without aura, chronic daily
headaches, and vitamin D deficiency. Id. at 2. But the nature of this follow-up was almost identical
to the first neurology consult in terms of recommendations as Ms. America had not undergone any
of the diagnostic tests ordered in Dr. Blitshteyn’s first consult back in December 2017. Id. at 2.
II. Expert Reports
A. Petitioner’s Expert – Svetlana Blitshteyn, M.D.
Dr. Blitshteyn, a neurologist specializing in autonomic disorders, conducted the
aforementioned telephone neurology consults and prepared two written causation reports as well.
Report, dated September 10, 2018, filed as Ex. 17 (ECF No. 29-2) (“Blitshteyn First Rep.”);
Report, dated March 5, 2019, filed as Ex. 39 (ECF No. 36-2) (“Blitshteyn Second Rep.”). Dr.
Blitshteyn opines that Ms. America had NCS, and that the HPV vaccine more likely than not was
the causative factor in the exacerbation of it. Blitshteyn First Rep. at 6–7; Blitshteyn Second Rep.
at 4.
Dr. Blitshteyn obtained her undergraduate degree in biochemistry from the State University
of New York at Buffalo, and her medical degree from the State University of New York School
of Medicine and Biomedical Sciences. CV, filed as Ex. 38 (ECF No. 32-4) (“Blitshteyn CV”) at
1. She is a Clinical Assistant Professor of Neurology at the State University of New York at Buffalo
School of Medicine and Biomedical Sciences. Blitshteyn CV at 1. She is also the Director and
Founder of the Dysautonomia Clinic, where she provides neurologic care to adolescents and adults
with autonomic and other neurologic disorders. Id. Dr. Blitshteyn became licensed to practice
medicine in New York State in 2007, and became board certified in Neurology by the American
Board of Psychiatry and Neurology in 2010. Id. Dr. Blitshteyn has also published in peer-reviewed
scientific literature and co-authored a book on autonomic disorders. Id. at 6–8.
First Expert Report
Dr. Blitshteyn relied on a common definition for syncope embraced by the Heart Rhythm
Society: “a transient loss of consciousness associated with inability to maintain postural tone, rapid
and spontaneous recovery and the absence of clinical features specific for another form of transient
loss of consciousness, such as epileptic seizures.” Blitshteyn First Rep. at 4; Chew et al., Vasovagal
Syncope in 2016: The Current State of the Faint, Arrhythmia: Open Access 1–4, 1 (2016), filed as
Ex. 18 on Sept. 14, 2018 (ECF No. 30-2) (“Chew”). 10 Specifically, she defined vasovagal syncope
Blitshteyn First Rep. at 3. However, During the July 11, 2018 consultation, Ms. America supposedly reported that
she had occasional headaches, but dizziness, palpitations, nor syncope. Id.
10
Petitioner filed the Chew article twice—as Exhibits 18 and 46.
8
(a term Dr. Blitshteyn proposed was synonymous with NCS) as a syndrome that typically “1)
occurs with upright posture greater than 30 seconds, or with exposure to emotional stress, pain, or
medical settings; 2) features diaphoresis, warmth, nausea, and pallor; 3) is associated with
hypotension and relative bradycardia, when known; and 4) is followed by fatigue.” Blitshteyn First
Rep. at 4; Chew at 2. The NCS diagnosis usually rests on an individual’s medical history and
physical examination, and thus does not typically require further investigation or corroboration in
Dr. Blitshteyn’s view. First Blitshteyn Rep. at 4.
Although NCS often occurs after prolonged standing or sitting, it can be triggered even in
the supine position, which Dr. Blitshteyn viewed as likely having occurred during Petitioner’s
hospitalization at the EMU, when she experienced an episode of unresponsiveness while her EEG
remained normal. Chew at 2; Ex. 5 at 225. Treatment for NCS involves both non-pharmacologic
measures and drugs akin to what Petitioner received (and which in this case proved efficacious).
Chew at 3; Blitshteyn First Rep. at 3–4.
Based on an in-depth overview of Petitioner’s medical history, Dr. Blitshteyn embraced
the NCS diagnosis, opining as well that the HPV vaccine had a causal role. Blitshteyn First Rep.
at 2–3. Dr. Blitshteyn highlighted several records of significance. Id. at 2, 4. Petitioner only
experienced a total of five syncope episodes between 2009 and September of 2014, and overall
was generally healthy. Id. at 5; Ex. 10 at 1–2. Additionally, Petitioner had no documented
symptoms of chronic dizziness, headache, presyncope or fatigue prior to vaccination. Blitshteyn
First Rep. at 5. Yet, only one day after vaccination, Petitioner began to experience recurrent
episodes of syncope—six in the ten days thereafter. Id. at 2. She also developed a chronic headache
condition, which she had not experienced before vaccination.
Then, at Petitioner’s subsequent visits to cardiologist Dr. Nassif, Petitioner’s displayed
blood pressure was 130/76 with a heart rate of 68 bpm while laying down, but her blood pressure
decreased to 110/78 with a heart rate of 68 bpm when standing. Ex. 7 at 2. And although the results
of the 30-day cardiac event monitor (reviewed on December 18, 2014) demonstrated no evidence
of cardiac arrhythmia, Petitioner’s symptoms were deemed consistent with vasovagal syncope. Id.
at 6. Ms. America’s visits to neurologist Dr. Gerber were also considered by Dr. Blitshteyn to be
highly relevant to causation. Although Dr. Gerber had entertained the possibility that Ms.
America’s symptoms could reflect a seizure disorder, he ultimately concluded that his initial
impression (that her multiple episodes of loss of consciousness sounded “more like cardiac”) was
correct. Ex. 8 at 4-6, 23.
The record also (in Dr. Blitshteyn’s view) established that Petitioner had experienced
orthostatic hypotension, which occurs when an individual experiences (upon standing) a decline
in blood pressure coupled with dizziness or other syncopal-like symptoms. 11 Petitioner’s history
11
Dorland’s at 894.
9
revealed continued episodes of presyncope with a normal heart rate and rhythm. Blitshteyn First
Rep. at 4. According to the Heart Rhythm Society, syncopal episodes can be associated with
normal sinus rhythms, possibly due to several disorders such as orthostatic hypotension. Chew at
2. Dr. Blitshteyn specifically proposed that Ms. America evidenced orthostatic hypotension upon
physical examination at Ms. America’s cardiology evaluation on November 6, 2014 (although the
record itself from Dr. Nassif’s work-up at that time did not so conclude). Ex. 7 at 5.
Further evidence in the record of the HPV vaccine’s causal role could, in Dr. Blitshteyn’s
view, be seen after Petitioner’s second dose on April 23, 2015. Thereafter, Petitioner continued to
have episodes of syncope at a greater frequency (occurring on average about once a week) than
what she had experienced in the past. Blitshteyn First Rep. at 4; Ex. 10 at 3.
Approximately two years later, Dr. Blitshteyn herself was consulted in this action in
December 2017. Blitshteyn First Rep. at 3. Based on the telephone consult, she reached the
working diagnosis that Petitioner had NCS and a chronic headache condition. Blitshteyn First
Consult at 2. At the next consult in February 2018, Petitioner then reported that her symptoms had
improved significantly with medication and non-pharmacologic therapy. 12 Blitshteyn First Rep. at
3. On her most recent follow-up consultation on July 11, 2018, Ms. America reported having only
occasional headaches, but no dizziness, palpitations, or syncope. 13 Id. And ultimately, a variety of
alternative causes—seizure disorder, cardiac arrhythmia. and psychiatric disorders—had been
considered but ruled out for Ms. America through appropriate testing and consultations. 14 Ex. 7 at
4, 6; Ex. 8 at 21, 23.
Dr. Blitshteyn next explained the basis for her opinion that NCS could be vaccine-caused
or aggravated. She differentiated the kind of acute/abrupt syncope known to occur after virtually
any vaccination (recognized as the most common vaccination adverse event) from recurrent
syncope, acknowledging that evidence for the latter was much harder to find. Blitshteyn First Rep.
at 5. However, Dr. Blitshteyn nevertheless proposed that reliable scientific and medical evidence
could establish an association between the HPV vaccine and NCS, even though the incidence of
chronic and recurrent syncope after vaccination was currently unknown. Id.; B. Slade et al.,
Postlicensure Safety Surveillance for Quadrivalent Human Papillomavirus Recombinant Vaccine,
302 JAMA 750–57, 753–56 (2017), filed as Ex. 19 on Sept. 14, 2018 (ECF No. 30-3) (“Slade”)
(concluding that most of the reported rates of adverse events following vaccination were not
12
No medical records were filed confirming that this consultation occurred.
13
No medical records were filed confirming that this consultation occurred.
14
It was unclear from the medical records whether psychiatric disorders were in fact “ruled out,” as Ms. America
never completed her psychologic treatment—but the records from the sessions she did attend include nascent treater
views that her symptoms were reflective of some kind of mental health issue. Ex. 11 at 15–16, 18–19, 27–28.
10
greater than the background rates of other vaccines, although the authors note disproportionate
reporting of syncope and venous thromboembolic events).
Dr. Blitshteyn did not offer independent support directly establishing that chronic,
recurrent syncope can occur after vaccination. Blitshteyn First Rep. at 5. But she noted that a
variety of related autonomic disorders, such as Postural Tachycardia Syndrome (“POTS”) or
autonomic neuropathy, featuring similar symptoms, had been reported to occur after receipt of
various vaccines. See, e.g., S. Vernino et al., Autonomic Ganglia: Target and Novel Therapeutic
Tool, Neurology 1–11, 1, 2, 5 (2009), filed as Ex. 20 on Sept. 14, 2018 (ECF No. 30-4)
(“Vernino”). Although a precise incidence of these disorders after vaccination is unknown, this
was in Dr. Blitshteyn’s view likely because many patients are undiagnosed or misdiagnosed with
other conditions involving altered consciousness and awareness.
Another study similarly looked at passive surveillance evidence derived from the U.S.
Vaccine Adverse Event Reporting System (“VAERS”). 15 DuVernoy et al., Hypotonic–
Hyporesponsive Episodes Reported to the Vaccine Adverse Event Reporting System (VAERS),
1996–1998, Pediatrics 1–9 (2000), filed as Ex. 22 on Sept. 14, 2018 (ECF No. 30-6)
(“DuVernoy”). But DuVernoy is less supportive of causation than asserted because it in fact
observed that children with hypotonic-hyporesponsive episodes experienced only benign, self-
limited, nonrecurrent episodes after vaccination. DuVernoy at 8. DuVernoy otherwise focused on
the administration of the DTaP vaccine and other vaccines like Hepatitis A and B for young
children—not the HPV vaccine. Id. at 6.
Dr. Blitshteyn noted in particular that the HPV vaccine was specifically recognized as a
possible trigger of several specific autonomic disorders, such as POTS, complex regional pain
syndrome (“CRPS”), and small fiber neuropathy. Blitshteyn First Rep. at 5. She herself was the
author of a relevant item of literature, involving a case series of six patients who developed POTS
after HPV vaccination. S. Blitshteyn, Postural Tachycardia Syndrome Following Human
Papillomavirus Vaccination, European Journal of Neurology 135–39, xx (2014), filed as Ex. 21
on Sept. 14, 2018 (ECF No. 30-5) (“Blitshteyn Article”). Two of the relevant patients discussed in
the Blitshteyn Article had also been diagnosed with NCS. Blitshteyn Article at 1–2. 16
15
VAERS is a database maintained by the Center for Disease Control (“CDC”) to compile information from reports
about reactions to immunizations listed on the Vaccine Injury Table, 42 U.S.C. § 300aa–14(a).
16
Dr. Blitshteyn also referenced a study purporting to find that recurrent syncope was more likely to occur in patients
who had received the HPV vaccine than in the age-matched controls who did not. Blitshteyn First Rep. at 6; D. Geier
& M. Geier, Quadrivalent Human Papillomavirus Vaccine and Autoimmune Adverse Events: A Case–Control
Assessment of the Vaccine Adverse Event Reporting System (VAERS) Database, Env’t & Autoimmunity 46–54, 49
(2016), filed as Ex. 37 on Sept. 14, 2018 (ECF No. 32-3) (the “Geier Article”). I note, however, that the authors of the
Geier Article have been almost wholly discredited as experts in the Vaccine Program. See, e.g., Hooker v. Sec'y of
Health & Hum. Servs., No. 02-472V, 2017 WL 3033940, at *17 (Fed. Cl. Spec. Mstr. Apr. 11, 2017) (noting the
complete lack of qualifications of David Geier and the condemnations of Dr. Geier the medical boards and subsequent
revocation of his medical license in 2012); King v. Sec'y of Health & Hum. Servs., No. 03-584V, 2011 WL 5926126,
11
In addition, articles from Japan, Denmark, Spain, 17 and Italy all reported larger numbers
of young women developing autonomic disorders like POTS after receiving the HPV vaccine. See,
e.g., T. Kinoshita, Peripheral Sympathetic Nerve Dysfunction in Adolescent Japanese Girls
Following Immunization with the Human Papillomavirus Vaccine, Internal Med. 2185–200, 2185
(2014), filed as Ex. 23 on Sept. 14, 2018 (ECF No. 30-7) (“Kinoshita”) (Japan); L. Brinth et al.,
Orthostatic Intolerance and Postural Tachycardia Syndrome as Suspected Adverse Effects of
Vaccination against Humanpapilloma Virus, Vaccine 1–4, 1 (2015), filed as Ex. 24 on Sept. 14,
2018 (ECF No. 30-8) (“Brinth I”) (Denmark); M. Martinez-Lavin, HPV Vaccination Syndrome: A
Questionnaire-Based Study, Clinical Rheumatology 1–4, 1 (2015), filed as Ex. 25 on Sept. 14,
2018 (ECF No. 30-9) (“Martinez-Lavin”) (Spain); B. Palmieri, Severe Somatoform and
Dysautonomic Syndromes after HPV Vaccination: Case Series and Review of Literature, Env’t &
Autoimmunity 1–11, 9 (2016), filed as Ex. 26 on Sept. 14, 2018 (ECF No. 30-10) (Italy).
There are, however, deficiencies in each of these articles (observed in comparable prior
Vaccine Program cases in which they have been relied upon), calling into question the evidentiary
weight they merit. For example, Brinth I and Martinez-Lavin utilized subjective self-reporting
questionnaires to record the purported autonomic symptoms, even though there is evidence that
autonomic symptoms are prone to exaggerated self-reporting that cannot be correlated to objective
findings. See Balasco v. Sec'y of Health & Hum. Servs., No. 17-215V, 2020 WL 1240917, at *31
(Fed. Cl. Spec. Mstr. Feb. 14, 2020). The Martinez-Lavin article even noted that a “clear limitation
of [the] study is the lack of direct medical examination of affected individuals.” Martinez-Lavin at
3 (emphasis added).
Kinoshita, which proposed an association between the HPV vaccine and injuries involving
the sympathetic nerve system, like POTS, has equally been called into question. See Combs v.
Sec'y of Health & Hum. Servs., No. 14-878V, 2018 WL 1581672, at *7, 18 (Fed. Cl. Spec. Mstr.
Feb. 15, 2018). Kinoshita also involved a limited number of case studies, making it difficult to
draw reliable causal conclusions from its determinations. See R.V. v. Sec'y of Health & Human
Servs., No. 11–504V, 2016 WL 3882519, at *41 (Fed. Cl. Spec. Mstr. Feb. 19, 2016), mot. for rev.
denied, 127 Fed. Cl. 136 (2016). Indeed, Petitioner herself has filed literature that directly opposes
at *15 (Fed. Cl. Sept. 22, 2011) (finding it noteworthy that the Geiers have had a long track record of producing data
analyses and articles supportive of the theory that vaccines can contribute to causing autism, but which have been
persistently found to be severely defective); Doe/03 v. Sec'y of HHS, 2007 WL 2350645, at *3 (Fed. Cl. Spec. Mstr.
July 31, 2007) (“I found that the articles authored by Dr. Geier unpersuasive and not scientifically sound. . . I am also
aware that Dr. Geier is trained as a geneticist and obstetrician, not an immunologist, epidemiologist, or rheumatologist,
and that my fellow special masters and several other judges have opined unfavorably on his qualifications and
testimony as an expert.”); Daly v. Sec'y of HHS, No. 90–590V, 1991 WL 154573, at *7 (Cl. Ct. Spec. Mstr. July 26,
1991) (calling into question Dr. Mark Geier’s qualifications, credibility, and credentials as early as 1991).
Although Dr. Blitshteyn stated that the relevant article involved a study in Mexico, in fact it involved subjects from
17
Valencia, Spain.
12
reliance on this set of articles, since none of them used control subjects, and ultimately do not stand
as robust proof in support of causation. Z. Chustecka, Case Reports of 'Syndrome' Appearing After
HPV Vaccination, Medscape 1–4, 1 (2018), filed as Ex. 28 on Sept. 14, 2018 (ECF No. 31-3)
(“Chustecka”).
Dr. Blitshteyn did acknowledge that some later articles expressly rebutted her causation
contentions. See R. Chandler et al., Current Safety Concerns with the Human Papillomavirus
Vaccine: A Cluster Analysis of Reports in VigiBase, Drug Safety 81–90 (2017), filed as Ex. 29 on
Sept. 14, 2018 (ECF No. 31-4) (“Chandler”). Chandler references the fact that the European
Medicines Agency (“EMA”) had concluded that there was no evidence of an increased prevalence
of POTS or CRPS after HPV vaccination, regardless of the findings in articles like Brinth I or
Kinoshita. Chandler at 82. 18 Dr. Blitshteyn, however, argued that such studies were not rigorous
enough to eliminate the possibility of an HPV vaccine association. Blitshteyn First Rep. at 5.
Next, Dr. Blitshteyn outlined potential mechanisms for how the HPV vaccine might
produce dysautonomic conditions like NCS. Although the pathogenesis of new-onset chronic and
recurrent NCS after HPV vaccination is unknown, she opined that molecular mimicry (in which
antibodies generated by vaccination would cross-react against potential targets of the autonomic
or vascular components due to antigenic similarity/homology) was the most probable mechanism.
See, e.g., Blitshteyn First Rep. at 5–6; Blitshteyn Article at 138; Vernino at 5. To support this
contention, she referenced a study where NCS and other comparable orthostatic intolerance
disorders, like POTS, were viewed as potentially reflective of autoimmune disease processes. M.
Ruzieh et al., The Role of Autoantibodies in the Syndromes of Orthostatic Intolerance: A
Systematic Review, 51 Scandinavian Cardiovascular J. 243–47 (2017), filed as Ex. 31 on Sept. 14,
2018 (ECF No. 31-6).
In particular, Dr. Blitshteyn highlighted literature discussing anti-adrenergic
autoantibodies as potentially causal of some kinds of dysautonomia or orthostatic injuries. X. Yu
et al., Autoantibody Activation of Beta-adrenergic and Muscarinic Receptors Contributes to an
"Autoimmune" Orthostatic Hypotension: Reception Autoantibodies in Orthostatic Hypotension, J.
Am. Soc’y Hypertension 1–10 (2012), filed as Ex. 32 on Sept. 14, 2018 (ECF No. 31-7) (“Yu”);
H. Li et al., Agonistic Autoantibodies as Vasodilators in Orthostatic Hypotension: A New
Mechanism, 59 Hypertension 1–18 (2012), filed as Ex. 33 on Sept. 14, 2018 (ECF No. 31-8) (“Li”).
Adrenergic receptors in the autonomic nervous system play a role in modulating cardiovascular
function and reaction, and so “antagonists” to these receptors (which would potentially include
18
Petitioner never filed the official report from the EMA. Another Program decision has noted, however, that after
Brinth I the EMA conducted a study finding “that the incidence rate for the number of patients with post-vaccination
POTS (1 reported per 10,000) proved to be smaller than predicted, resulting in an assessment that disputed associating
the HPV vaccine to POTS.” McKown v. Sec'y of Health & Hum. Servs., No. 15-1451V, 2019 WL 4072113, at *29
(Fed. Cl. Spec. Mstr. July 15, 2019).
13
autoantibodies capable of a cross-reaction) could interfere with the receptors, resulting in syncopal
symptoms or other orthostatic problems. Blitshteyn First Rep. at 5–6. Additionally, Li found that
75 percent of studied patients (with orthostatic hypotension (15 out of a total sample of 20)
possessed autoantibodies specific to beta 2-adrenergic or M3 muscarinic receptors. Li at 5.
However, articles like Li and Yu remain silent on how the HPV vaccine might produce the
autoantibodies they discuss. Additionally, Dr. Blitshteyn admitted that (at least as of the filing date
of her first report) there were no testing facilities in the United States that could identify the
presence of adrenergic and muscarinic antibodies; indeed, these antibodies were seldom tested in
other countries. Blitshteyn First Rep. at 6. Nevertheless, Dr. Blitshteyn proposed that these studies
pointed to a possible autoimmune explanation for some kinds of dysautonomia that could bear on
this matter.
Other literature, Dr. Blitshteyn noted, provided alternative mechanisms for how the HPV
vaccine could cause the injury at issue. One case study, for example, showed that vaccinated
patients with neurologic symptoms developed abnormalities in their spinal fluid consistent with
neuro-inflammation and neuro-immune processes. Y. Takahashi, Immunological Studies of
Cerebrospinal Fluid from Patients with CNS Symptoms after Human Papillomavirus Vaccination,
J. Neuroimmunology 71–78, 77–78 (2016), filed as Ex. 34 on Sept. 14, 2018 (ECF No. 31-9)
(focusing on patients with central nervous system symptoms after HPV vaccination). Dr.
Blitshteyn also brought up an animal study suggesting that HPV vaccines may cause brain changes
through anti-HPV antibodies cross-reacting to protein structures in the brain. R. Inbar, Behavioral
Abnormalities in Female Mice Following Administration of Aluminum Adjuvants and the Human
Papillomavirus (HPV) Vaccine Gardasil, Env’t & Autoimmunity 1–14, 8 (2016), filed as Ex. 35
on Sept. 14, 2018 (ECF No. 31-10) (studying whether vaccine adjuvants and vaccines could induce
autoimmune and inflammatory manifestations resulting in a few instances of symptoms like
syncope and a single diagnosis of POTS).
There were also case reports referenced by Dr. Blitshteyn in which patients displayed post-
vaccination syncopal symptoms comparable to Petitioner’s experience. Blitshteyn First Rep. at 6.
In particular, Dr. Blitshteyn highlighted a case series report from Denmark consisting of 53
patients presenting with symptoms of dysautonomia after HPV vaccination. L. Brinth, Suspected
Side Effects to the Quadrivalent Human Papilloma Vaccine, Danish Med. J. 1–5 (2015), filed as
Ex. 36 on Sept. 14, 2018 (ECF No. 32-2) (“Brinth II”). A quarter of the studied patients in Brinth
II experienced typical dysautonomic symptoms; 45 percent of that subgroup reported syncope,
while all complained of a new-onset headache. 19 Brinth II at 2. Another figure cited in Brinth II
indicated that 98 percent of the entire sample (52 out of 53 patients) reported that their activities
19
Additionally, Dr. Blitshteyn reported that 96 percent of the 53 patients experienced dizziness, including syncope,
although this could not be confirmed in Brinth II. Blitshteyn First Rep. at 6.
14
of daily living were seriously affected, and 75 percent had to quit school for more than 2 months
due to their symptoms. Id. at 3.
Finally, Dr. Blitshteyn discussed the timeframe in which Ms. America experienced her
post-vaccination syncope, deeming it medically acceptable. Blitshteyn First Rep. at 6–7. The
Petitioner’s increased tempo of symptoms occurred within days of the first and second HPV
vaccine doses, a timeframe that was in Dr. Blitshteyn’s view consistent with how long the immune
challenge would take to become pathologic. 20 Id. at 7. Dr. Blitshteyn also claimed that Ms.
America’s history arguably revealed a re-challenge 21 because her syncope and chronic daily
symptoms worsened more demonstrably and quickly after the second dose from April 2015,
resulting in admission to the EMU study just 6 weeks after vaccination. Ex. 8 at 20–22. (As the
above review of the record shows, however, evidence of the onset of symptoms after the second
dose is far thinner in the record than the evidence of a reaction after the first dose, and thus Dr.
Blitshteyn seems to rely on the contentions of fact witnesses like Petitioner’s mother for this aspect
of her opinion).
Second Expert Report
Dr. Blitshteyn’s second report largely attempted to respond to the contentions of
Respondent’s expert. 22 Blitshteyn Second Rep. at 1–6. Dr. Blitshteyn argued that there was “clear
evidence” that Ms. America had recurrent NCS, and that her symptoms became much more severe
and complex after receiving the HPV vaccine. Id.
20
Dr. Blitshteyn did not support this argument with any citations to medical literature.
21
As noted in prior cases, “[c]hallenge-rechallenge happens when a person (1) is exposed to one antigen, (2) reacts to
that antigen in a particular way, (3) is given the same antigen again, and (4) reacts to that antigen similarly. Typically,
the second reaction is faster and more severe.” Nussman v. Sec'y of Health & Human Servs., 83 Fed. Cl. 111, 119
(Fed. Cl. 2008) (internal citations omitted) (quoting Nussman v. Sec'y of Health & Human Servs., No. 99-500V, 2008
WL 449656, at *9 (Fed. Cl. Spec. Mstr. Jan. 31, 2008)).
22
Dr. Blitshteyn’s second report also tried to clarify the importance of her role as a neurologist, differentiating the
scope of her relevant expertise from Dr. Boris’s pediatric cardiology qualifications. Blitshteyn Second Rep. at 1. She
allowed that Dr. Boris was clearly familiar with POTS, since children and adolescents present with its typical features
and manifestations and thereafter seek cardiac specialists. Id. However, because Ms. America did not present with
typical features of POTS or NCS, Dr. Blitshteyn maintained that neurologists like herself were better trained to
investigate the etiology and differential diagnosis of such symptoms, which often require detailed evaluation workups.
Id. To support her point she referenced two pieces of evidence, only one of which was filed. See D. Hindley et al.,
Diagnoses Made in a Secondary Care ‘‘Fits, Faints, and Funny Turns’’ Clinic, Arch. Dis. Child 214–18 (2006), filed
as Ex. 40 on March 15, 2019 (ECF No. 37-2). Dr. Blitshteyn argued that Dr. Boris’s lack of expertise in this kind of
neurologic presentation might explain why he attributed Ms. America’s “atypical” spells to psychogenic causes, while
neglecting a number of important neurologic etiologies. Blitshteyn Second Rep. at 1.
Ultimately, this is not a case in which competing expertise was the basis for my conclusion to give one side’s expert
opinion more weight. To the contrary—even had I concluded that Dr. Blitshteyn’s expertise on the relevant topic
exceeded that of Dr. Boris, I would still determine that her opinion was consistently unreliable.
15
Dr. Blitshteyn made four arguments to challenge Dr. Boris’s diagnosis of psychogenic
pseudosyncope (“PPS”) 23 or conversion disorder and support her own diagnosis of NCS. First, she
noted that Ms. America’s cardiologists and neurologists seemed to concur that her episodes were
due to syncope rather than reflective of some other condition, like seizures. Blitshteyn Second Rep.
at 2. Second, based on Ms. America’s multiple evaluations, there was no support for a diagnosis
of PPS or conversion disorder, which directly conflicted with Dr. Boris’s opinion. Id. at 2, 5. Third,
Ms. America had improved with targeted therapies for NCS, which would not have occurred if her
episodes were psychogenic. Id. at 2. Fourth, evaluation by a psychiatrist and psychologist between
2015 and 2016 ruled out conversion disorder. Id. at 1. (This argument is inaccurate, as medical
records indicated that Ms. America had a working diagnosis of conversion disorder that was never
refuted, with Petitioner failing to complete this aspect of her treatment). Ex. 11 at 15, 20, 27.
In discussing other possible diagnoses, Dr. Blitshteyn expressed her understanding as to
why some treaters believed Ms. America had adjustment disorder. Petitioner was a young woman
dealing with chronic and disabling symptoms that prevented her from attending school or
participating in extra-curricular activities. Blitshteyn Second Rep. at 1–2. However, Dr. Blitshteyn
emphasized, the definition and clinical features of an adjustment disorder diagnosis, which do not
include episodes of loss of consciousness or altered awareness. M.G. Carta et al., Adjustment
Disorder: epidemiology, diagnosis and treatment, Clinical Prac. & Epidemiology in Mental Health
1–15, 2–3 (2009), filed as Ex. 41 on March 15, 2019 (ECF No. 37-3).
Additionally, this diagnosis did not include chronic dizziness or exercise intolerance.
Blitshteyn Second Rep. at 2. A conversion disorder diagnosis would require symptoms that could
not be “explained by a neurological or other medical condition or another mental health disorder.”
Functional Neurologic Disorders/Conversion Disorder, Mayo Clinic 1–6, 2,
https://www.mayoclinic.org/diseases-conditions/conversion-disorder/diagnosis-treatment/drc-
20355202 (last visited Nov. 3, 2021), filed as Ex. 42 on Mar. 15, 2019 (ECF No. 37-4). But Ms.
America’s symptoms could be explained by another neurological disorder—NCS. Blitshteyn
Second Rep. at 2. Further, conversion disorder also involved evidence of premorbid personality
and significant stressors, and Dr. Blitshteyn could not find either factor in Petitioner’s history. 24
Id. Additionally, she noted that Ms. America’s psychiatrist never suggested a conversion disorder
diagnosis, which Dr. Blitshteyn argued was because Ms. America’s only significant stressor was
23
PPS has been defined as “a syndrome of apparent but not true loss of consciousness that may occur in the absence
of identifiable cardiac, reflex, neurological, or metabolic causes.” W. Shen et al., 2017 ACC/AHA/HRS Guideline for
the Evaluation and Management of Patients With Syncope, Circulation e60–e122, e66 (2017), filed as Ex. A, Tab 1
on Feb. 25, 2019 (ECF No. 34-2) (“Shen”). This type of syncope occurs among adolescents, and is the second most
common type of syncope after neurally mediated syncope, occurring in 8-15 percent of cases. Id. at e89.
24
Dr. Blitshteyn did not mention, however, the several instances in which Ms. America’s family moved, even though
her mother had admitted that the moves were “somewhat stressful” for her daughter. Ex. 8 at 39; Ex. 10 at 1–2.
16
recurrent syncope and chronic symptoms that prevented her from her normal level of functioning
in society. Id.
Dr. Blitshteyn also defended herself against Dr. Boris’s contention that Dr. Blitshteyn’s
failure to ensure that Petitioner underwent a tilt table test meant that his preferred diagnosis (PPS)
could not be excluded in favor or some kind of NCS. Boris First Rep. at 7. In Dr. Blitshteyn’s
view, Ms. America’s presentation did not justify such testing given her evident clinical features
and established vital signs. 25 Blitshteyn Second Rep. at 5; Chew at 2; C. Chen-Scarabelli & T.
Scarabelli, Neurocardiogenic Syncope, BMJ 336–41, 338 (2004), filed as Ex. 47 on Mar. 15, 2019
(ECF No. 37-9) (“Chen-Scarabelli”).
Dr. Blitshteyn further disputed Dr. Boris’s contention that post-vaccination autonomic
disorders usually do not have an autoimmune basis, connecting her rebuttal of this assertion with
her discussion of likely causal mechanisms such as molecular mimicry. Blitshteyn Second Rep. at
2. She noted that she had directly written on the topic, outlining evidence of autoimmunity in post-
HPV vaccination autonomic disorders such as NCS and POTS. S. Blitshteyn et al., Autonomic
Dysfunction and HPV Immunization: An Overview, Immunologic Res. 744–54 (2018), filed as Ex.
C, Tab 8 on Aug. 8, 2019 (ECF No. 72-7) (“Blitshteyn & Brinth”). 26 While Dr. Blitshteyn did not
contest the overall safety of HPV vaccines, she maintained that a small number of patients can
develop significant and disabling autonomic dysfunction after vaccination - as in the case of Ms.
America. Blitshteyn & Brinth at 744–45. Dr. Blitshteyn also reiterated her prior point that testing
for most of the antibodies relevant to her proposed causal mechanism (in particular the adrenergic
antibodies) was unavailable in the United States (and hence their presence was generally difficult
to confirm—even where an autoimmune process was a likely explanation for NCS, as here).
Blitshteyn Second Rep. at 2.
Many disease processes, she argued, were understood to be mediated by an autoimmune
process involving molecular mimicry—a fact she noted that Dr. Boris also seemed to accept, based
on certain items of literature he filed. Blitshteyn Second Rep. at 2; P. Offit & C. Hackett,
Addressing Parents’ Concerns: Do Vaccines Cause Allergic or Autoimmune Diseases?, Pediatrics
653–59, 655 (2003), filed as Ex. A, Tab 6 on February 25, 2019 (ECF No. 34-7) (“Offit &
Hackett”). In particular, a number of autoimmune disorders thought to be caused in some cases by
25
Dr. Blitshetyn assessed the bedside vital signs from the orthostatic hypotension detected at a cardiology evaluation
by Dr. Nassif on November 6, 2014. Ex. 7 at 4–6.
26
Petitioner failed to file this piece of literature, but Respondent filed it as part of her case.
17
vaccination, such as Guillain-Barré syndrome 27 (“GBS”) and transverse myelitis 28 (“TM”), are
theorized to involve a small amount of antigen causing a robust and rapid autoimmune response,
where antibodies produced in reaction to the vaccine’s antigen attack the peripheral nervous
system—in the case of GBS—or central nervous system—in the case of TM. Blitshteyn Second
Rep. at 2.
Experimental models confirmed the reliability of the autoimmune-by-molecular mimicry
mechanistic theory, and amino acid sequence homology between HPV vaccine components and
the adrenergic receptors on nerves (the likely locus of cross-reactive attack, assuming here that the
cause of Petitioner’s NCS was driven by an autoimmune process) sufficient for a cross-reaction to
occur. Blitshteyn Second Rep. at 2. This could be demonstrated by Basic Local Alignment Search
Tool (“BLAST”) searches. Id. 29 She went so far as to opine that there was significant homology
between components of the HPV vaccine and the adrenergic receptors, which could result in
exacerbation of preexisting NCS via amplification of the adrenergic antibodies triggered by the
HPV vaccine. Id. at 5. 30
Ultimately, based on the medical record in this case, Dr. Blitshteyn deemed it likely that
the HPV vaccine had triggered or exacerbated Ms. America’s NCS. Blitshteyn Second Rep. at 5.
Ms. America had experienced a significant increase in frequency of episodes following
vaccination. Id. Petitioner’s course was distinguishable from situational syncope (an isolated
episode of syncope in response to a stimulus like an injection), as Dr. Boris proposed, and instead
was more akin to a chronic, if preexisting, neurologic disorder, such as NCS, that worsened due to
vaccination. Id.
Lastly, Dr. Blitshteyn again discussed the timeframe in which Petitioner experienced post-
vaccination syncope, repeating her view that it had occurred in a medically acceptable period based
on how long it would take for HPV vaccine-triggered autoantibodies to be created. She referenced
a treatise on vaccines from the Institute of Medicine (“IOM”), which in her recollection stated
27
GBS is defined as “rapidly progressive ascending motor neuron paralysis of unknown etiology, frequently seen after
an enteric or respiratory infection. An autoimmune mechanism following viral infection has been postulated.”
Dorland’s at 802.
28
MT is described as “myelitis in which the functional effect of the lesions spans the width of the entire cord at a
given level.” Dorland’s at 1201.
29
BLAST searches allow for an analysis of homology between two proteins, an understanding of where the
homologies were located, and thus (in theory) a determination of whether this degree of homology was sufficient to
trigger a clinical disease. S. Altschul, Basic Local Alignment Search Tool, J. Molecular Biology 403–410, 404 (1990),
filed as Ex. 43 on Mar. 15, 2019 (ECF No. 37-5).
30
To support some of her homology contentions, Dr. Blitshteyn also referenced personal communication with Dr.
Lawrence Steinman (a neurologist who frequently offers testimony about molecular mimicry in Program cases) in
March 2019 but did not file any proof to corroborate her assertions about these purported conversations.
18
“[t]he lag phase is generally 1 to 3 days; the logarithmic phase of the secondary antibody response
occurs over the next 3 to 5 days.” 31 Blitshteyn Second Rep. at 3. As a result, the HPV vaccine
could initiate a vigorous recall response within 1 to 3 days, triggering an exacerbation of
preexisting NCS. Id. Additionally, she once again asserted that there was evidence of a “re-
challenge” after receipt of the second HPV dose. Id.
B. Respondent’s Expert – Jeffrey R. Boris, M.D.
Dr. Boris, a pediatric cardiologist and Clinical Professor of Pediatrics at The Children’s
Hospital of Philadelphia and The Perelman School of Medicine at the University of Pennsylvania,
prepared two written reports for Respondent. Report, dated February 25, 2019 filed as Ex. A (ECF
No. 34-8) (“Boris First Rep.”); Report, dated July 30, 2019 filed as Ex. C (ECF No. 42-13) (“Boris
Second Rep.”). Dr. Boris did not accept NCS as the proper diagnosis for Petitioner’s symptoms,
arguing instead that she had PPS, and he disputed that the HPV vaccine could have caused it, or
that it did in this case within the relevant timeframe. Boris First Rep. at 4–6; Boris Second Rep. at
5.
Dr. Boris received his undergraduate degree in biology from Washington University in St.
Louis in 1987, and his medical degree from Washington University School of Medicine in 1991.
CV, filed as Exhibit B on February 25, 2019 (ECF No. 34-8), updated as Exhibit D on Mar. 8,
2021 (ECF No. 58-1) (“Boris CV”) at 1. He completed his training in 1997 and has practiced
pediatric cardiology since. Boris First Rep. at 1. He became board certified in Pediatric Cardiology
in 1998 and in General Pediatrics in 1995 by the American Board of Pediatrics. Id.; Boris CV at
2. He has cared for patients in an outpatient clinic and served as a consult for inpatient cardiology
service. Boris First Rep. at 1. He manages patients with dizziness, NCS, postural orthostatic
tachycardia syndrome (“POTS”), and disorders of the autonomic nervous system. Id. At the time
of writing his report in 2019, Dr. Boris had diagnosed and cared for approximately 550 patients
with dizziness and syncope, and approximately 950 patients with POTS in the last 11 years. Id. He
has authored or co-authored eight articles in the peer-reviewed literature on disorders of autonomic
function. Id.; Boris CV at 11-12.
First Expert Report
Dr. Boris’s first report contained a description of syncope and definitions of its different
types. Boris First Rep. at 1–4. Dr. Boris defined syncope as “an abrupt, transient, complete loss of
consciousness, associated with inability to maintain postural tone, with rapid and spontaneous
recovery.” Id. at 3; Shen at e64. The most common type of syncope, neurally mediated syncope, 32
31
Dr. Blitshteyn filed nothing to support this contention.
32
Neurally mediated syncope is “a serious type of vasovagal syncope precipitated by a stimulus that causes either
bradycardia, or a decrease in vascular tone, or both at once.” Dorland’s at 1788.
19
features an acute drop in blood pressure and cerebral perfusion. Shen at e89. This type of syncope
is most common among adolescent females, in as much as 75 percent of cases. Id. Dr. Boris also
discussed PPS, defining it as “a syndrome of apparent but not true loss of consciousness that may
occur in the absence of identifiable cardiac, reflex, neurological, or metabolic causes.” Id. at e66.
PPS occurs among adolescents, and is the second most common form, occurring in 8-15 percent
of cases. 33 Id. at e89.
Next, Dr. Boris reviewed the connection between the HPV vaccine and different types of
syncope. Boris First Rep. at 4. In 15 percent of patients, the HPV vaccine has been associated with
neurally-mediated syncope occurring close-in-time to vaccination (meaning within the first two
hours of administration), but not beyond this short timeframe. Shen at e89. Other studies reached
the same conclusion, noting that younger women were more likely to have a higher incidence of
vaccine-related adverse events, but that post-vaccination syncope far more often than not occurred
on the same day as vaccination. See, e.g., J. Gee et al., Quadrivalent HPV Vaccine Safety Review
and Safety Monitoring Plans for Nine-Valent HPV Vaccine in the United States, 12 Hum. Vaccine
Immunotherapeutics 1406–1417, 1407 (2016), filed as Ex. A, Tab 4 on Feb. 25, 2019 (ECF No.
34-5) (“Gee”); N.P. Klein et al., Safety of Quadrivalent Human Papillomavirus Vaccine
Administered Routinely to Females, Archives Pediatrics & Adolescent Med. 1140–1148, 1148
(2012), filed as Ex. A, Tab 5 on Feb. 25, 2019 (ECF No. 34-6) (“Klein”); A. Naleway et al.,
Reported Adverse Events in Young Women Following Quadrivalent Human Papillomavirus
Vaccination, J. Womens Health 425–432, 428 (2012), filed as Ex. A, Tab 3 on Feb. 25, 2019 (ECF
No. 34-4) (“Naleway”). Indeed, as Dr. Boris pointed out, the Slade article cited by Petitioner found
90 percent of syncopal events occurred on the same day of vaccination. Slade at 753. Slade also
noted that most rates of adverse events following vaccination were not greater than the background
rates compared with other vaccines, including that of autoimmune disorders (although syncope
was a disproportionately-reported adverse event in general). Id. at 750, 753.
Based on an in-depth overview of Petitioner’s medical history (Boris First Rep. at 1–3),
Dr. Boris accepted that Petitioner had experienced some episodes of neurally mediated syncope
when she was younger. Boris First Rep. at 4. Her post-vaccination symptoms, however, were in
his opinion more consistent with a diagnosis of PPS, also referred to as conversion disorder. Id. In
so opining, Dr. Boris noted that Petitioner’s earlier episodes had resolved quickly and were often
associated with a warm environment. Id. Post-vaccination episodes, however, were
distinguishable—lasting up to 30 minutes but with reported normal levels of
electroencephalography, blood pressure, and electrocardiographic monitoring. Id. Additionally,
during at least one witnessed episode in the hospital, Ms. America was able to respond to questions
by shaking her head. Id.; Ex. 8 at 21. She was also able to avoid self-injury when her hand was
33
Dr. Boris also mentioned other less-common syncopal variants, like cardiac syncope and arrhythmias, although they
are not relevant to this matter. Boris First Rep. at 3–4.
20
dropped over her face during the drop test performed in October 2014, around the time of her first
post-vaccination incident. Boris First Rep. at 4; Ex. 5 at 226. Had she experienced true cerebral
hypoperfusion, she would have been unable to respond to external stimuli and could not have
controlled her limbs. Boris First Rep. at 4. Thus, a psychogenic cause more likely explained such
syncopal episodes. Id.
Dr. Boris questioned Dr. Blitshteyn’s contrary diagnosis. Boris First Rep. at 4. He
questioned whether enough testing or clinical results existed to support post-vaccination NCS (and
rule out PPS). Ex. 11 at 15, 20, 27. For example, no tilt table testing to confirm the diagnosis had
been performed, despite the widely-recognized utility of such evidence. Chew at 2. Chew also
stated that a “recorded ECG can help provide insight into the etiology of syncope . . . However, a
syncopal episode associated with normal sinus rhythm [such as was documented in the patient]
may be due to . . . psychogenic pseudosyncope.” Id. Here, ECG evidence was only recorded on
November 6, 2014 at a sinus rhythm of 64 bpm, and on December 21, 2015 at a sinus rhythm of
84 bpm. Ex. 7 at 3, 8–9. Dr. Boris also questioned Dr. Blitshteyn’s invocation of Chew in support
of the argument that syncope could occur in the supine position (as was reported to have occurred
with Ms. America). Chew at 2. However, Dr. Boris noted, Dr. Blitshteyn left out the fact that
syncope would occur in a supine position usually after “exposure to medical or dental situations,
pain, or scenes of injury.” Id. Yet Ms. America was not recorded as having experienced any of
these situations prior to her episodes. Boris First Rep. at 6–7. Chew also stated that
“[u]nconsciousness usually lasts less than 1 to 2 minutes, but full recovery can be delayed. . . .”
Chew at 2. This differs from Ms. America’s episodes, which reportedly lasted far longer. See, e.g.,
Blitshteyn First Consult at 1.
Dr. Boris then outlined his understanding regarding the required conditions for an
autoimmune disease to occur and weighed the different kinds of evidence that might bear on
vaccine causation. He maintained that autoimmune diseases were premised on four conditions in
most cases:
First, self-reactive (auto-reactive) T or B cells must be present… Second, self-antigens
must be presented to the immune system in quantities sufficient to cause autoreactive cells
to divide and mature. Third, additional signals such as cytokines are required to activate
autoreactive T and B cells. Fourth, regulatory T cells must fail to control destructive
autoimmune responses.
Offit & Hackett at 654. Acute rheumatic fever, for example, is well understood to be an
autoimmune-mediated process. There, an initial streptococcal bacterial infection “provides a large
quantity of antigens that are similar to self (in a patient who is genetically predisposed) over a
prolonged period of time,” with the antibodies produced in reaction to these antigens (encouraged
by an immune process) initiating a subsequent pathogenic cross-reaction. Boris First Rep. at 5.
21
However, Dr. Boris emphasized, the pathogenic process that drives rheumatic fever differs from
the usual immune response to vaccination, because over the comparatively short period of time
post-vaccination, only a small amount of antigens are presented, and cytokines associated with an
initial innate response to a vaccine are not routinely produced in chronic form either. Id. Thus,
vaccination will not in most cases present the kind of conditions required to produce an
autoimmune process, even under Dr. Blitshteyn’s theory. Id. at 6.
Dr. Boris also specifically disputed Dr. Blitshteyn’s contention that the HPV vaccine could
cause NCS, or that syncope could be understood to be a “post-vaccination autonomic disorder.”
Boris First Rep. at 5. First, he questioned whether the evidence from Petitioner’s medical history
could support the contention that an antibody-driven autoimmune cross-reaction had occurred. Dr.
Blitshteyn herself admitted that, "currently, there is no available testing facility in the United States
for the adrenergic and muscarinic antibodies…” Blitshteyn First Rep. at 6. As Ms. America had
no demonstrated autoantibodies that could have produced her symptoms in the manner proposed,
so Dr. Boris argued that she had no proof of an autoimmune disorder at all, much less one due to
the HPV vaccine. Boris First Rep. at 5.
Second, Dr. Boris questioned the reliability of the independent medical literature offered
to support a connection between the HPV vaccine and Petitioner’s symptoms. In particular, the
theories embraced in Dr. Blitshteyn’s medical literature lacked corroboration in a clinical scenario.
Vernino, for example, did not involve post-vaccination syncope, but autoimmune autonomic
ganglionopathy—a version of a severe, rapidly progressing autonomic failure characterized by
orthostatic hypotension plus other symptoms: gastrointestinal dysmotility, anhidrosis, bladder
dysfunction, sicca symptoms, and impaired pupillary light reflex. Vernino at 2–3, 5. Ms. America
showed no symptoms of an autoimmune autonomic ganglionopathy other than orthostatic
hypotension. Boris First Rep. at 5. Kinoshita involved not only a distinguishable demographic
sample (adolescent Japanese girls), but also had failed to identify the autoantibodies to the
acetylcholine receptor deemed to be the target for an autoimmune attack in cases of autonomic
dysfunction, and otherwise did not reliably support causation. Boris First Rep. at 5; Kinoshita at
2185, 2199. Indeed, Kinoshita’s authors searched for the relevant autoantibodies, but did not locate
them in the studied sample. Kinoshita at 2199.
Another article referenced by Dr. Blitshteyn could do no more than deem causation to be
“suspected,” using that very word in its title. L. Brinth et al., Orthostatic Intolerance and Postural
Tachycardia Syndrome as Suspected Adverse Effects of Vaccination Against Humanpapilloma
Virus, Vaccine 1–4, 1 (2015), filed as Ex. 24 on Sept. 14, 2018 (ECF No. 30-8) (“Brinth & Pors”).
And other articles, like DuVernoy, involved a sample of patients significantly younger than
Petitioner. DuVernoy at 3 (studying patients had a median age of four months old, with the oldest
only nine); Boris First Rep. at 5.
22
Petitioner’s medical history also undermined the conclusion that her post-vaccination
syncopal episodes were due to the HPV vaccines she received. Boris First Rep. at 6.
Unquestionably, Ms. America had experienced several episodes of syncope prior to vaccination,
so the HPV vaccine could not have initiated the condition. Id.; Ex. 10 at 1. And even if her course
seemed to worsen post-vaccination, this temporal relationship was insufficient to establish a
logical sequence of cause and effect. Id. This was especially so given Dr. Boris’s contention that
Petitioner could not be properly diagnosed with NCS to begin with. Boris First Rep. at 6.
Finally, Dr. Boris discussed the timeframe in which Ms. America experienced post-
vaccination syncope. As noted above, Dr. Boris allowed that reliable medical and scientific
authority supported a very short (virtually immediate) timeframe for syncope associated with HPV
vaccination. 34 J. Schiller et al., Human Papillomavirus Vaccines, Vaccines 430–55, 448 filed as
Ex. A, Tab 8 on October 25, 2021 (ECF No. 60-2) (“Schiller”) (noting that syncope would be
expected to occur within 15 minutes of receipt of HPV vaccine). Ms. America’s symptoms,
however, were reported to have first increased in tempo or degree 24 to 48 hours after
immunization, with recurrent syncope over the years thereafter. Ex. 10 at 2.
A longer timeframe lacked reliable medical support. Boris First Rep. at 6. In particular, it
was contrary to persuasive evidence that the first type of antibody immunoglobulin created after
vaccination, IgM, would not likely appear until three days post-vaccination. C. Siegrist, Vaccine
Immunology, Section 1: General Aspects of Vaccination 16–34, 24 filed as Ex. A, Tab 7 on
October 25, 2021 (ECF No. 60-1) (“Siegrist”). Moreover, medical literature did not otherwise
support an association between IgM and autonomic targets, like adrenergic or muscarinic
receptors, which if interfered with would adversely affect blood pressure (and thus produce
syncope). Id. But the medical records established that Ms. America’s blood pressure remained
stable during her episodes. Ex. 7 at 2. It simply would take longer for the immune system to
produce the antibodies theorized to be causal herein than a day—even though the record suggested
that was when Ms. America’s exacerbation began.
This timeframe deficiency could not, in Dr. Boris’s view, be saved by focusing on a
different class of antibodies, IgG, as some of the literature offered by Dr. Blitshteyn did, to
establish a faster process. Yu at 1, 10; Blitshteyn First Rep. at 6. Dr. Boris reasoned that such
contentions actually created a more difficult timeline for Petitioner, since other literature
concluded that IgG antibodies could not appear until day seven post-vaccination, and are not even
at peak titer until approximately 30 days post-vaccination. Siegrist at 24; Boris First Rep. at 6. And
although Dr. Blitshteyn cited Brinth & Pors, which had a reported temporal relationship of zero to
34
Dr. Boris stated that syncope typically occurs between 15 minutes to 2 hours after vaccine administration, although
he did not fully corroborate this timeframe with literature. Boris First Rep. at 6. Petitioner, however, submitted
literature that supported the contention that 90 percent of syncopal events occur on the same day of vaccination. Slade
at 753–54.
23
30 days between vaccination and onset of symptoms, the same article concluded that even if there
were symptoms that occurred in temporal association between the vaccine and the injury, that was
by itself not reliable evidence of a causal link. Brinth & Pors at 1.
Second Expert Report
After vouching for his expertise in response to Dr. Blitshteyn’s attacks, 35 Dr. Boris’s
second report defended his PPS counter-diagnosis. Boris Second Rep. at 4. In his view, it could be
a difficult diagnosis to obtain, especially when treaters were unfamiliar with how to assess its
presence. Boris Second Rep. at 4. As many as 50 percent of patients carrying a final diagnosis of
PPS had earlier been diagnosed with vasovagal syncope or NCS. K. Walsh et al., Psychogenic
Pseudosyncope: Not Always a Diagnosis of Exclusion, Pacing Clinical Electrophysiology 480–86,
481, 484 (2018), filed as Ex. C, Tab 16 on Aug. 8, 2019 (ECF No. 42-10) (“Walsh”). Walsh
specifically observed that individuals diagnosed with PPS often reported multiple episodes of
syncope per year, distinguishing them from those with true NCS. Walsh at 484. Ms. America has
similarly claimed to experience several episodes of syncope each year, noting 13 events in 2014
and 20 events in 2015. Ex 10 at 2–3.
Dr. Boris also questioned whether the NCS diagnosis was ever adequately corroborated.
Boris Second Rep. at 4. Given Petitioner’s convoluted history, Dr. Boris maintained a tilt table test
should have been performed to confirm the diagnosis. V. Raj et al., Psychogenic Pseudosyncope:
Diagnosis and Management, Autonomic Neuroscience 66–72, 66, 68 (2014), filed as Ex. C, Tab
17 on Aug. 8, 2019 (ECF No. 42-11) (“Raj”) (“[t]he incidence of PPS is likely under-recognized
and the disorder is under-investigated in the unexplained syncope population, yet it can be
diagnosed accurately with a focused history and confirmed with investigations including head-up
tilt testing . . . .”). Dr. Blitshteyn’s conclusion that confirmatory testing was not required relied on
an article published in 2004, while the preponderance of medical literature describing evaluation
and management of PPS, like Raj, had been published ten years or more after. Compare Chen-
Scarabelli at 336 with Raj at 66; see also S. Ninni et al., Usefulness of Head-Up Tilt Test Combined
with Video Electroencephalogram to Investigate Recurrent Unexplained Atypical Transient Loss
of Consciousness, Archives Cardiovascular Disease 82–94, 90–92 (2019), filed as Ex. C, Tab 18
on Aug. 8, 2019 (ECF No. 42-12). The prevailing scientific and medical view underscored the
need for tilt table testing, but such proof was wholly absent in this case.
Other record evidence was deemed by Dr. Boris to more directly rebut the proposed NCS
diagnosis. During the October 22, 2014 visit to Faxton St. Luke’s emergency room, for example
(occurring two days post-vaccination), Ms. America purported to have experienced a syncopal
35
In particular, he articulated his expertise as a pediatric cardiologist, contesting Dr. Blitshteyn’s view that only an
expert with a neurologic background could opine reliably on the case. Boris Second Rep. at 1.
24
episode, but displayed while supine a blood pressure reading that was significantly elevated
(actually hypertensive in Dr. Boris’s view) for any patient’s age. Boris Second Rep. at 1; Ex 5 at
225, 238, 241. Such a reading was inconsistent with a diagnosis of NCS, which would require a
finding of hypotension (low blood pressure). Shen at e66. In addition, Petitioner’s other vital signs
(in particular her heart rate), did not change. Boris Second Rep. at 1; B. Grubb BP et al., Syncope
and Seizures of Psychogenic Origin: Identification with Head-Upright Tilt Table Testing, Clinical
Cardiology 839-42, 841 (1992), filed as Ex. C, Tab 3 on Aug. 8, 2019 (ECF No. 42-2). Petitioner
at this time also underwent a drop test but was able to move her hand before hitting her face, which
suggested that she had not completely lost consciousness (as would be the case for true NCS). Ex.
5 at 241.
Ms. America’s November 2014 visit was similarly inconsistent with the purported NCS
diagnosis. Boris Second Rep. at 4; Ex. 7 at 2. Although Dr. Blitshteyn maintained that on this visit
Ms. America displayed evidence of orthostatic hypotension, Petitioner’s measured blood pressure
at this time was 130/76 laying down, 112/76 sitting, and 110/78 standing, while her heart rate
measurements were 68 laying down, 64 sitting, and 68 standing. Ex. 7 at 2. In Dr. Boris’s view,
the supine blood pressure finding was a hypertensive measurement given Petitioner’s age, gender,
and height, and therefore should have been repeated to confirm orthostatic hypotension but was
not. Boris Second Rep. at 4. This was especially important here, since blood pressure readings in
a person of Petitioner’s weight and BMI were fraught with error. See, e.g., N. Anast et al., The
Impact of Blood Pressure Cuff Location on the Accuracy of Noninvasive Blood Pressure
Measurements in Obese Patients: An Observational Study, Canadian J. Anaesthesiologists 298–
306, 299 (2016), filed as Ex. C, Tab 14 on Aug. 8, 2019 (ECF No. 42-8); E. Umana et al.,
Comparison of Oscillometric and Intraarterial Systolic and Diastolic Blood Pressures in Lean,
Overweight, and Obese Patients, Angiology 41–45, 44 (2006), filed as Ex. C, Tab 15 on Aug. 8,
2019 (ECF No. 42-9). Otherwise, because Ms. America’s heart rate did not change from supine to
seated position to standing in the face of presumed orthostasis, the NCS diagnosis was ultimately
not well supported. Ex. 7 at 2; Boris Second Rep. at 4.
In the following year (June 2-4, 2015), Ms. America underwent a long-term video EMU
study using a digital video EEG for assessment. Ex. 8 at 20–22. During the assessment, Ms.
America had another purported episode, yet her EEG remained normal, and she was able to shake
her head “no” when asked if she could speak, which once again indicated that she had not
completely lost consciousness. Id. Dr. Boris characterized Petitioner’s EEG findings as consistent
with a study demonstrating that patients with PPS had a normal EEG prior to, during, and after an
episode. S. Benbadis & R. Chichkova, Psychogenic Pseudosyncope: An Underestimated and
Provable Diagnosis, Epilepsy & Behav. 106–10, 107 (2006), filed as Ex. C, Tab 4 on Aug. 8, 2019
(ECF No. 42-3). Thus, the medical record undercut Dr. Blitshteyn’s assertion that there was no
evidence that Ms. America was experiencing PPS or conversion disorder. Boris Second Rep. at 2.
25
Dr. Boris agreed that Ms. America showed improvement on fludrocortisone therapy, 36 but
disputed that this fact supported the NCS diagnosis, since other factors also likely contributed to
the reduction of her symptoms. Boris Second Rep. at 2. Petitioner had, for example, begun non-
pharmacologic therapy and routine exercise. See Blitshteyn Second Consult at 2. In addition, Ms.
America was previously diagnosed with hypovitaminosis D in January 2018, and started on
supplemental vitamin D therapy, which also could have contributed to her improved symptoms.
Ex. 15 at 1–2. A vitamin D deficiency was associated with orthostatic hypotension. See, e.g., M.
Antiel et al., Iron Insufficiency and Hypovitaminosis D in Adolescents with Chronic Fatigue and
Orthostatic Intolerance, Southern Med. J. 609-11, 610 (2011), filed as Ex. C, Tab 5 on Aug. 8,
2019 (ECF No. 42-4); F. Ometto et al., Hypovitaminosis D and Orthostatic Hypotension: A
Systemic Review and Meta-Analysis, J. Hypertension 1036-043, 1038 (2016), filed as Ex. C, Tab
6 on Aug. 8, 2019 (ECF No. 42-5). The supplemental vitamin D therapy could take several months
to resolve the effects of the hypovitaminosis, and the timing in this case coincided with the
initiation of fludrocortisone and exercise therapy. Boris Second Rep. at 2.
At the same time, a lack of clear record support for the PPS diagnosis from counseling Ms.
America received did not defeat its reasonability. Boris Second Rep. at 1. Dr. Boris noted the
finding of one article that “psychological factors and trauma are not always reported by patients,
nor are they specific to conversion disorder, and many patients with conversion symptoms may
not have identifiable psychological stressors.” M. Tannematt et al., Managing Psychogenic
Pseudosyncope: Facts and Experiences, Cardiology J. 658-64, 660 (2014), filed as Ex. C, Tab 1
on Aug. 8, 2019 (ECF No. 42-1). He also observed that Dr. Blitshteyn had incorrectly claimed that
Ms. America had no significant stressors in her life, when in fact the record established that she
had moved multiple times from 2010 to 2014.
Dr. Boris then reiterated points he had made in his first report about Petitioner’s causation
theory, denying that her injury was attributable to a vaccine-caused autoimmune process. Boris
Second Rep. at 2–3. In particular, he attacked Dr. Blitshteyn’s contention that homology between
amino acid sequences in components of the HPV vaccine and the alpha-adrenergic receptor was
sufficient for a cross-reaction autoimmune attack via molecular mimicry. Medical literature
actually established that homologic similarity was common in human biology, yet did not
frequently or inevitably lead to autoimmune disease or process. Boris Second Rep. at 2-3; B. Trost
et al., Bacterial Peptides are Intensively Present Throughout the Human Proteome, Self/Nonself
71–74, 73 (2010) filed as Ex. C, Tab 7 on Aug. 8, 2019 (ECF No. 42-6) (“past and present data
tend to exclude a causal mechanistic role for molecular mimicry in the genesis of autoimmunity”).
He also noted that Dr. Blitshteyn herself allowed for the fact that proof was ultimately lacking in
support of her theory. Boris Second Rep. at 3; Blitshteyn & Brinth at 750, 751 (calling for “further
36
Fludrocortisone is sold under the brand name Florinef. Turkupolis v. Sec'y of Health & Hum. Servs., No. 10-351V,
2014 WL 2872215, at *2 n.4 (Fed. Cl. Spec. Mstr. May 30, 2014). Drs. Boris and Blitshteyn use both terms
interchangeably throughout their expert reports. Blitshteyn Second Rep. at 1; Boris Second Rep. at 2.
26
investigation to determine the prevalence and possible causation between these post-vaccination
syndromes and HPV vaccines,” and admitting that the case reports referenced in the article to
support its contention “rank low in evidence-based medicine hierarchy”).
At the same time, ample reliable medical literature rebutted the contention that the HPV
vaccine—or vaccination of any kind—was associated with syncopal conditions of dysautonomia.
Boris Second Rep. at 4; Klein at 1148; Gee at 1414. Dr. Boris maintained that Dr. Blitshteyn was
conflating association with causation, based primarily on the temporal relationship between
Petitioner’s reported increase in symptoms tempo and her vaccination. Boris Second Rep. at 3–4.
Finally, Dr. Boris repeated his prior contention that the timeframe for Petitioner’s post-
vaccination onset was not medically acceptable, based on Dr. Blitshteyn’s conclusion that
Petitioner had experienced syncopal worsening a day after receiving the HPV vaccine. Boris
Second Rep. at 3 He noted again that it would take approximately three days for the most
immediately-produced antibodies to appear (and this class of antibody was not likely involved in
any cross-reaction against the alpha-adrenergic receptor). Boris Second Rep. at 3; Siegrist at 24.
The different kind of autoantibodies more likely to be the cause of a cross-reaction under
Petitioner’s theory, by contrast, would take up to seven days to appear, and would not peak in
numbers until 30 days post-vaccination. Siegrist at 24. And a speedier process was also not
possible in this case, given that there was no evidence Petitioner already possessed the relevant
autoantibody and/or was experiencing an autoimmune-caused form of syncope before vaccination.
Boris Second Rep. at 3.
III. Procedural History
As noted above, the case was initiated in the spring of 2017. Early on in its course, the
special master to whom the Petition had been originally assigned deemed the matter to lack
reasonable basis, because it was unclear whether Petitioner alleged epileptic or non-epileptic
seizures, or if she was simply feigning seizures. ECF No. 12. Although these concerns nearly
resulted in the claim’s outright dismissal, they were addressed sufficiently to move forward. ECF
No. 16.
Following the filing of pertinent medical records and an affidavit, Petitioner offered Dr.
Blitshteyn’s first expert report in September 2018, with Respondent’s first expert report from Dr.
Boris filed in the winter 2019, followed by both sides offering an additional supplemental report.
This matter was reassigned to me in July 2020, and I ordered Respondent to file her Rule 4(c)
Report and for the parties to decide whether they wanted the case to be resolved on the record or
through a hearing. Thereafter, Respondent filed her Rule 4(c) Report and the parties elected to
resolve the matter on the record. ECF Nos. 50, 52. Petitioner filed a motion in support of her claim
on January 8, 2021. ECF No. 55 (“Mot.”). Respondent reacted, requesting dismissal in a brief filed
27
on March 8, 2021. ECF No. 57 (“Opp.”). Subsequently, the Petitioner filed a reply. ECF No. 59
(“Reply”). The matter is now ripe for resolution.
IV. Parties’ Arguments
Ms. America’s brief clarifies that she is asserting only an off-Table significant aggravation
claim for NCS or vasovagal syncope exacerbated by the HPV vaccine. Mot. at 8. She argues that
she meets the first three prongs of the significant aggravation standard set in Loving v. Sec’y of
Health & Hum. Servs., 86 Fed. Cl. 135, 144 (2009) because she suffered episodes of syncope prior
to vaccination, but the episodes increased in frequency after vaccination, drastically impacting her
life for the worse. Id. at 8, 9. Scientific literature, she purports, supports her contention that HPV
vaccines can cause autonomic disorders, via the medically-reliable mechanistic theory of
molecular mimicry. Id. at 9–11. Her NCS symptoms match those in other reported cases of
autonomic issues after the HPV vaccine, such as that in Denmark. Id. 11–12; Brinth II at 2–3.
Finally, the timing of her onset—one day after receiving her first HPV vaccine (and then two days
after receiving her second dose in April 2015)—constitutes a medically-acceptable timeframe.
Mot. 12–13. Ms. America also asserts that her claim is not comparable to Combs v. Sec'y of Health
& Hum. Servs., No. 14-878V, 2018 WL 1581672 (Fed. Cl. Feb. 15, 2018), as Respondent argues.
Reply at 3–6.
Respondent questions the factual basis for the alleged injury, maintaining that Ms. America
actually suffers from PPS or conversion disorder. Opp. at 16–25. However, even if Petitioner could
establish a diagnosis of NCS or vasovagal syncope, and that her condition worsened after
vaccination, the claim still fails under Loving prongs four through six. Id. at 25. Under Loving
prong four, Petitioner has not preponderantly established a reliable medical theory casually
connecting her HPV vaccination to exacerbation of vasovagal syncope, relying instead on broad
generalizations and contentions inconsistent with what the medical record actually reveals. Id. at
25–32. Under Loving prong five, the record does not support the conclusion that the HPV vaccine
likely caused her injury. Id. at 32–33. Under Loving prong six, onset of symptoms one day after
vaccination is too soon given Petitioner’s embrace of molecular mimicry as driving the antibody
attack on the relevant nerve receptor targets. Id. at 33–35. Respondent also compares this claim to
that in Combs, where a comparable theory was rejected in a case involving the HPV vaccine. Id.
at 26.
28
V. Applicable Legal Standards
A. Petitioner’s Overall Burden in Vaccine Program Cases
To receive compensation in the Vaccine Program, a petitioner must prove either: (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of the vaccinations in question within a statutorily prescribed period of time
or, in the alternative, (2) that his illnesses were actually caused by a vaccine (a “Non-Table
Injury”). See Sections 13(a)(1)(A), 11(c)(1), and 14(a), as amended by 42 C.F.R. § 100.3; §
11(c)(1)(C)(ii)(I); see also Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed.
Cir. 2010); Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1320 (Fed. Cir. 2006). 37
In this case, Petitioner does not assert a Table claim.
For both Table and Non-Table claims, Vaccine Program petitioners bear a “preponderance
of the evidence” burden of proof. Section 13(1)(a). That is, a petitioner must offer evidence that
leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the burden to persuade the judge of the fact’s
existence.” Moberly, 592 F.3d at 1322 n.2; see also Snowbank Enter. v. United States, 6 Cl. Ct.
476, 486 (1984) (mere conjecture or speculation is insufficient under a preponderance standard).
Proof of medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d
867, 873 (Fed. Cir. 1991). In particular, a petitioner must demonstrate that the vaccine was “not
only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.”
Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344,
1352–53 (Fed. Cir. 1999)); Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed.
Cir. 2006). A petitioner may not receive a Vaccine Program award based solely on his assertions;
rather, the petition must be supported by either medical records or by the opinion of a competent
physician. Section 13(a)(1).
In attempting to establish entitlement to a Vaccine Program award of compensation for a
Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal
Circuit in Althen v. Sec'y of Health and Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005): “(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
proximate temporal relationship between vaccination and injury.” Each Althen prong requires a
different showing and is discussed in turn along with the parties’ arguments and my findings.
37
Decisions of special masters (some of which I reference in this ruling) constitute persuasive but not binding
authority. Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit rulings
concerning legal issues are binding on special masters. Guillory v. Sec’y of Health & Hum. Servs., 59 Fed. Cl. 121,
124 (2003), aff’d 104 F. Appx. 712 (Fed. Cir. 2004); see also Spooner v. Sec’y of Health & Hum. Servs., No. 13-159V,
2014 WL 504728, at *7 n.12 (Fed. Cl. Spec. Mstr. Jan. 16, 2014).
29
Under Althen prong one, petitioners must provide a “reputable medical theory,”
demonstrating that the vaccine received can cause the type of injury alleged. Pafford, 451 F.3d at
1355–56 (citations omitted). To satisfy this prong, a petitioner’s theory must be based on a “sound
and reliable medical or scientific explanation.” Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d
543, 548 (Fed. Cir. 1994). Such a theory must only be “legally probable, not medically or
scientifically certain.” Id. at 549.
However, the Federal Circuit has repeatedly stated that the first prong requires a
preponderant evidentiary showing. See Boatmon v. Sec'y of Health & Hum. Servs., 941 F.3d 1351,
1360 (Fed. Cir. 2019) (“[w]e have consistently rejected theories that the vaccine only “likely
caused” the injury and reiterated that a “plausible” or “possible” causal theory does not satisfy the
standard”); see also Moberly v. Sec'y of Health & Hum. Servs., 592 F.3d 1315, 1321 (Fed. Cir.
2010); Broekelschen v. Sec'y of Health & Hum. Servs., 618 F.3d 1339, 1350 (Fed. Cir. 2010). This
is consistent with the petitioner's ultimate burden to establish his overall entitlement to damages
by preponderant evidence. W.C. v. Sec'y of Health & Hum. Servs., 704 F.3d 1352, 1356 (Fed. Cir.
2013) (citations omitted). If a claimant must overall meet the preponderance standard, it is logical
that they be required also to meet each individual prong with the same degree of evidentiary
showing (even if the type of evidence offered for each is different).
Petitioners may offer a variety of individual items of evidence in support of the first Althen
prong, and are not obligated to resort to medical literature, epidemiological studies, demonstration
of a specific mechanism, or a generally accepted medical theory. Andreu v. Sec'y of Health & Hum.
Servs., 569 F.3d 1367, 1378–79 (Fed. Cir. 2009) (citing Capizzano, 440 F.3d at 1325–26). No one
“type” of evidence is required. Special masters, despite their expertise, are not empowered by
statute to conclusively resolve what are essentially thorny scientific and medical questions, and
thus scientific evidence offered to establish Althen prong one is viewed “not through the lens of
the laboratorian, but instead from the vantage point of the Vaccine Act's preponderant evidence
standard.” Andreu, 569 F.3d at 1380. Nevertheless, even though “scientific certainty” is not
required to prevail, the individual items of proof offered for the “can cause” prong must each
reflect or arise from “reputable” or “sound and reliable” medical science. Boatmon, 941 F.3d at
1359–60.
The second Althen prong requires proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner’s medical records. Althen, 418 F.3d at 1278; Andreu,
569 F.3d at 1375–77; Capizzano, 440 F.3d at 1326; Grant v. Sec'y of Health & Hum. Servs., 956
F.2d 1144, 1148 (Fed. Cir. 1992). In establishing that a vaccine “did cause” injury, the opinions
and views of the injured party's treating physicians are entitled to some weight. Andreu, 569 F.3d
at 1367; Capizzano, 440 F.3d at 1326 (“medical records and medical opinion testimony are favored
in vaccine cases, as treating physicians are likely to be in the best position to determine whether a
30
‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury’”)
(quoting Althen, 418 F.3d at 1280). Medical records are generally viewed as particularly
trustworthy evidence, since they are created contemporaneously with the treatment of the patient.
Cucuras v. Sec'y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
However, medical records and/or statements of a treating physician's views do not per se
bind the special master to adopt the conclusions of such an individual, even if they must be
considered and carefully evaluated. Section 13(b)(1) (providing that “[a]ny such diagnosis,
conclusion, judgment, test result, report, or summary shall not be binding on the special master or
court”); Snyder v. Sec'y of Health & Hum. Servs., 88 Fed. Cl. 706, 746 n.67 (2009) (“there is
nothing . . . that mandates that the testimony of a treating physician is sacrosanct—that it must be
accepted in its entirety and cannot be rebutted”). As with expert testimony offered to establish a
theory of causation, the opinions or diagnoses of treating physicians are only as trustworthy as the
reasonableness of their suppositions or bases. The views of treating physicians should also be
weighed against other, contrary evidence also present in the record—including conflicting
opinions among such individuals. Hibbard v. Sec'y of Health & Hum. Servs., 100 Fed. Cl. 742,
749 (2011) (not arbitrary or capricious for special master to weigh competing treating physicians'
conclusions against each other), aff'd, 698 F.3d 1355 (Fed. Cir. 2012); Veryzer v. Sec'y of Health
& Hum. Servs., No. 06–522V, 2011 WL 1935813, at *17 (Fed. Cl. Spec. Mstr. Apr. 29, 2011),
mot. for review den'd, 100 Fed. Cl. 344, 356–57 (2011), aff'd without opinion, 475 F. App’x. 765
(Fed. Cir. 2012).
The third Althen prong requires establishing a “proximate temporal relationship” between
the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to the
phrase “medically-acceptable temporal relationship.” Id. A petitioner must offer “preponderant
proof that the onset of symptoms occurred within a timeframe which, given the medical
understanding of the disorder's etiology, it is medically acceptable to infer causation.” de Bazan v.
Sec'y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what is
a medically acceptable timeframe must also coincide with the theory of how the relevant vaccine
can cause an injury (Althen prong one's requirement). Id. at 1352; Shapiro v. Sec'y of Health &
Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons. den'd after remand, 105 Fed. Cl. 353 (2012),
aff'd mem., 2013 WL 1896173 (Fed. Cir. 2013); Koehn v. Sec'y of Health & Hum. Servs., No. 11–
355V, 2013 WL 3214877 (Fed. Cl. Spec. Mstr. May 30, 2013), mot. for review den'd (Fed. Cl.
Dec. 3, 2013), aff'd, 773 F.3d 1239 (Fed. Cir. 2014).
B. Standard for Significant Aggravation Claim
Where a petitioner alleges significant aggravation of a preexisting condition, the Althen
test is expanded, and the petitioner has additional evidentiary burdens to satisfy. Loving v. Sec’y
of Health & Hum. Servs., 86 Fed. Cl. 135, 144 (2009). In Loving, the Court of Federal Claims
31
combined the Althen test with the test from Whitecotton v. Sec’y of Health & Hum. Servs., 81 F.3d
1099, 1107 (Fed. Cir. 1996), which related to on-Table significant aggravation cases. The resultant
“significant aggravation” test has six components, which require establishing:
(1) the person’s condition prior to administration of the vaccine, (2) the person’s current
condition (or the condition following the vaccination if that is also pertinent), (3) whether
the person’s current condition constitutes a ‘significant aggravation’ of the person's
condition prior to vaccination, (4) a medical theory causally connecting such a
significantly worsened condition to the vaccination, (5) a logical sequence of cause and
effect showing that the vaccination was the reason for the significant aggravation, and (6)
a showing of a proximate temporal relationship between the vaccination and the
significant aggravation.
Loving, 86 Fed. Cl. at 144; see also W.C., 704 F.3d at 1357 (holding that “the Loving case provides
the correct framework for evaluating off-table significant aggravation claims”). In effect, the last
three prongs of the Loving test correspond to the three Althen prongs.
In Sharpe v. Sec’y of Health & Hum. Servs., 964 F.3d 1072 (Fed. Cir. 2020), the Federal
Circuit further elaborated on the Loving framework. Under Prong (3) of the Loving test, the
Petitioner need not demonstrate an expected outcome, but merely that her current-post vaccination
condition was worse than pre-vaccination. Sharpe, 964 F.3d at 1081. And a claimant may make
out a prima facie case of significant aggravation overall without eliminating a preexisting condition
as the potential cause of her significantly aggravated injury (although the Circuit’s recasting of the
significant aggravation standard still permits Respondent to attempt to establish alternative cause,
where a petitioner’s showing is enough to make out a prima facie case and thereby shift the burden
of proof to Respondent). Id. at 1083.
C. Law Governing Analysis of Fact Evidence
The process for making determinations in Vaccine Program cases regarding factual issues
begins with consideration of the medical records. Section 11(c)(2). The special master is required
to consider “all [ ] relevant medical and scientific evidence contained in the record,” including
“any diagnosis, conclusion, medical judgment, or autopsy or coroner's report which is contained
in the record regarding the nature, causation, and aggravation of the petitioner's illness, disability,
injury, condition, or death,” as well as the “results of any diagnostic or evaluative test which are
contained in the record and the summaries and conclusions.” Section 13(b)(1)(A). The special
master is then required to weigh the evidence presented, including contemporaneous medical
records and testimony. See Burns v. Sec'y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir.
1993) (determining that it is within the special master's discretion to determine whether to afford
greater weight to contemporaneous medical records than to other evidence, such as oral testimony
32
surrounding the events in question that was given at a later date, provided that such determination
is evidenced by a rational determination).
As noted by the Federal Circuit, “[m]edical records, in general, warrant consideration as
trustworthy evidence.” Cucuras, 993 F.2d at 1528; Doe/70 v. Sec'y of Health & Hum. Servs., 95
Fed. Cl. 598, 608 (2010) (“[g]iven the inconsistencies between petitioner's testimony and his
contemporaneous medical records, the special master's decision to rely on petitioner's medical
records was rational and consistent with applicable law”), aff'd, Rickett v. Sec'y of Health & Hum.
Servs., 468 F. App’x 952 (Fed. Cir. 2011) (non-precedential opinion). A series of linked
propositions explains why such records deserve some weight: (i) sick people visit medical
professionals; (ii) sick people attempt to honestly report their health problems to those
professionals; and (iii) medical professionals record what they are told or observe when examining
their patients in as accurate a manner as possible, so that they are aware of enough relevant facts
to make appropriate treatment decisions. Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V,
2013 WL 1880825, at *2 (Fed. Cl. Spec. Mstr. Apr. 10, 2013); Cucuras v. Sec'y of Health & Hum.
Servs., 26 Cl. Ct. 537, 543 (1992), aff'd, 993 F.2d at 1525 (Fed. Cir. 1993) (“[i]t strains reason to
conclude that petitioners would fail to accurately report the onset of their daughter's symptoms”).
Accordingly, if the medical records are clear, consistent, and complete, then they should
be afforded substantial weight. Lowrie v. Sec'y of Health & Hum. Servs., No. 03–1585V, 2005 WL
6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). Indeed, contemporaneous medical records
are often found to be deserving of greater evidentiary weight than oral testimony—especially
where such testimony conflicts with the record evidence. Cucuras, 993 F.2d at 1528; see also
Murphy v. Sec'y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d
1226 (Fed. Cir. 1992), cert. den'd, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States
v. United States Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral
testimony which is in conflict with contemporaneous documents is entitled to little evidentiary
weight.”)).
However, the Federal Circuit has also noted that there is no formal “presumption” that
records are accurate or superior on their face when compared to other forms of evidence. Kirby v.
Sec’y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). There are certainly situations
in which compelling oral testimony may be more persuasive than written records, such as where
records are deemed to be incomplete or inaccurate. Campbell v. Sec'y of Health & Hum. Servs., 69
Fed. Cl. 775, 779 (2006) (“like any norm based upon common sense and experience, this rule
should not be treated as an absolute and must yield where the factual predicates for its application
are weak or lacking”); Lowrie, 2005 WL 6117475, at *19 (“[w]ritten records which are,
themselves, inconsistent, should be accorded less deference than those which are internally
consistent”) (quoting Murphy, 23 Cl. Ct. at 733)). Ultimately, a determination regarding a witness's
credibility may be required when determining the weight that such testimony should be afforded.
33
Andreu, 569 F.3d at 1379; Bradley v. Sec'y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed.
Cir. 1993).
When witness testimony is offered to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez, 2013 WL 1880825, at *3 (citing Blutstein v. Sec'y of Health & Hum. Servs.,
No. 90–2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the
accuracy and completeness of medical records, the Court of Federal Claims has listed four possible
explanations for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person's failure to recount to the medical professional everything that happened
during the relevant time period; (2) the medical professional's failure to document everything
reported to her or him; (3) a person's faulty recollection of the events when presenting testimony;
or (4) a person's purposeful recounting of symptoms that did not exist. La Londe v. Sec'y of Health
& Hum. Servs., 110 Fed. Cl. 184, 203–04 (2013), aff'd, 746 F.3d 1334 (Fed. Cir. 2014). In making
a determination regarding whether to afford greater weight to contemporaneous medical records
or other evidence, such as testimony at hearing, there must be evidence that this decision was the
result of a rational determination. Burns, 3 F.3d at 417.
D. Analysis of Expert Testimony
Establishing a sound and reliable medical theory often requires a petitioner to present
expert testimony in support of his claim. Lampe v. Sec’y of Health & Hum. Servs., 219 F.3d 1357,
1361 (Fed. Cir. 2000). Vaccine Program expert testimony is usually evaluated according to the
factors for analyzing scientific reliability set forth in Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 594–96 (1993). See Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1339 (Fed.
Cir. 2010) (citing Terran v. Sec’y of Health & Hum. Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999).
Under Daubert, the factors for analyzing the reliability of testimony are:
(1) whether a theory or technique can be (and has been) tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3) whether
there is a known or potential rate of error and whether there are standards for
controlling the error; and (4) whether the theory or technique enjoys general
acceptance within a relevant scientific community.
Terran, 195 F.3d at 1316 n.2 (citing Daubert, 509 U.S. at 592–95).
However, in the Vaccine Program the Daubert factors play a slightly different role than
they do when applied in other federal judicial settings—e.g., the district courts. Typically, Daubert
factors are employed by judges (in the performance of their evidentiary gatekeeper roles) to
exclude evidence that is unreliable or could confuse a jury. By contrast, in Vaccine Program cases
34
these factors are used in the weighing of the reliability of scientific evidence proffered. Davis v.
Sec'y of Health & Hum. Servs., 94 Fed. Cl. 53, 66–67 (2010) (“uniquely in this Circuit, the Daubert
factors have been employed also as an acceptable evidentiary-gauging tool with respect to
persuasiveness of expert testimony already admitted”). The flexible use of the Daubert factors to
evaluate the persuasiveness and reliability of expert testimony has routinely been upheld. See, e.g.,
Snyder, 88 Fed. Cl. at 742–45. In this matter (as in numerous other Vaccine Program cases),
Daubert has not been employed at the threshold, to determine what evidence should be admitted,
but instead to determine whether expert testimony offered is reliable and/or persuasive.
Respondent frequently offers one or more experts in order to rebut a petitioner’s case.
Where both sides offer expert testimony, a special master's decision may be “based on the
credibility of the experts and the relative persuasiveness of their competing theories.”
Broekelschen v. Sec'y of Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (citing
Lampe, 219 F.3d at 1362). However, nothing requires the acceptance of an expert's conclusion
“connected to existing data only by the ipse dixit of the expert,” especially if “there is simply too
great an analytical gap between the data and the opinion proffered.” Snyder, 88 Fed. Cl. at 743
(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 146 (1997)); see also Isaac v. Sec'y of Health & Hum.
Servs., No. 08–601V, 2012 WL 3609993, at *17 (Fed. Cl. Spec. Mstr. July 30, 2012), mot. for
review den'd, 108 Fed. Cl. 743 (2013), aff'd, 540 F. App’x. 999 (Fed. Cir. 2013) (citing Cedillo,
617 F.3d at 1339). Weighing the relative persuasiveness of competing expert testimony, based on
a particular expert's credibility, is part of the overall reliability analysis to which special masters
must subject expert testimony in Vaccine Program cases. Moberly, 592 F.3d at 1325–26
(“[a]ssessments as to the reliability of expert testimony often turn on credibility determinations”);
see also Porter v. Sec'y of Health & Hum. Servs., 663 F.3d 1242, 1250 (Fed. Cir. 2011) (“this court
has unambiguously explained that special masters are expected to consider the credibility of expert
witnesses in evaluating petitions for compensation under the Vaccine Act”).
E. Consideration of Medical Literature
Both parties filed numerous items of medical and scientific literature in this case, but not
every filed item factors into the outcome of this Decision. While I have reviewed all the medical
literature submitted in this case, I discuss only those articles that are most relevant to my
determination and/or are central to Petitioner’s case—just as I have not exhaustively discussed
every individual medical record filed. Moriarty v. Sec’y of Health & Hum. Servs., 844 F.3d 1322,
1328 (Fed. Cir. 2016) (“[w]e generally presume that a special master considered the relevant record
evidence even though he does not explicitly reference such evidence in his decision”) (citation
omitted); see also Paterek v. Sec’y of Health & Hum. Servs., 527 F. Appx. 875, 884 (Fed. Cir.
2013) (“[f]inding certain information not relevant does not lead to—and likely undermines—the
conclusion that it was not considered”).
35
F. Disposition of Case Without Hearing
I am resolving Petitioner’s claim on the filed record, as per the parties’ request. The
Vaccine Act and Rules not only contemplate but encourage special masters to decide petitions on
the papers where (in the exercise of their discretion) they conclude that doing so will properly and
fairly resolve the case. Section 12(d)(2)(D); Vaccine Rule 8(d). The decision to rule on the record
in lieu of hearing has been affirmed on appeal. Kreizenbeck v. Sec’y of Health & Hum. Servs., 945
F.3d 1362, 1366 (Fed. Cir. 2020); see also Hooker v. Sec’y of Health & Hum. Servs., No. 02-472V,
2016 WL 3456435, at *21 n.19 (Fed. Cl. Spec. Mstr. May 19, 2016) (citing numerous cases where
special masters decided case on the papers in lieu of hearing and that decision was upheld). I am
simply not required to hold a hearing in every matter, no matter the preferences of the parties.
Hovey v. Sec’y of Health & Hum. Servs., 38 Fed. Cl. 397, 402–03 (1997) (determining that special
master acted within his discretion in denying evidentiary hearing); Burns, 3 F.3d at 417; Murphy
v. Sec’y of Health & Hum. Servs., No. 90-882V, 1991 WL 71500, at *2 (Fed. Cl. Spec. Mstr. Apr.
19, 1991).
ANALYSIS
I. An Overview of Medical Terms and Relevant Prior Decisions
Syncope has been defined generally as “a transient loss of consciousness associated with
inability to maintain postural tone, rapid and spontaneous recovery and the absence of clinical
features specific for another form of transient loss of consciousness, such as epileptic seizures.”
Chew at 1; see also Shen at e64. The Vaccine Program recognizes a Table claim of post-
vaccination syncope, although it requires establishing that the syncope began within an hour of
receipt of the relevant vaccine. See, e.g., § 100.3(I)(D) and (II)(D). Even in the rare cases when a
petitioner has alleged an off-Table claim based on a syncopal injury, onset has commonly been
found to have begun very close-in-time to vaccination. See, e.g., Vanscoy v. Sec'y of Health &
Human Servs., No. 13–266V, 2013 WL 3871008, at *1 (Fed. Cl. Spec. Mstr. July 3, 2013) (lacking
a definitive timeframe but noting that onset occurred immediately). Literature filed in this case
stands for the proposition that a transient incident of post-HPV vaccine syncope would usually
occur no more than within 15 minutes of vaccine administration. Schiller at 448.
Thus, the most commonly-recognized form of post-vaccination syncope involves an
immediate/acute, one-time reaction—not a chronic condition, as alleged here. Of course, there are
other causes of syncopal episodes, and conditions or illnesses in which it is a recurring event or
symptom. Vasovagal syncope (which the experts in this case agreed could be used as a diagnostic
term synonymously with NCS) is such a condition, and it typically “1) occurs with upright posture
greater than 30 seconds, or with exposure to emotional stress, pain, or medical settings; 2) features
36
diaphoresis, warmth, nausea, and pallor; 3) is associated with hypotension and relative
bradycardia, when known; and 4) is followed by fatigue.” Chew at 2. Program cases 38 have
recognized the existence of recurrent vasovagal syncope as a condition (independent from vaccine
causality). McKown, 2019 WL 4072113, at *46; Combs, 2018 WL 1581672, at *19.
However, there are hardly any persuasive reasoned Program decisions finding that the HPV
vaccine specifically can interfere with any aspect of the nervous system sufficiently to cause any
form of orthostatic intolerance—whether manifesting as vasovagal syncope, POTS, or some other
comparable autonomic dysfunction. On the contrary—the exact opposite conclusion has been
repeatedly reached. See, e.g., E.S v. Sec'y of Health & Hum. Servs., No. 17-480V, 2020 WL
9076620, at *42 (Fed. Cl. Spec. Mstr. Nov. 13, 2020), mot. for review den’d, 154 Fed. Cl. 149
(2021) (“[a]lthough I am considering a large number of alleged injuries [specifically, headaches,
chronic fatigue syndrome, POTS, and small fiber neuropathy] . . . I universally find that Petitioner
has not in any instance established [in this case] that the HPV or flu vaccines “can cause” the
relevant injury”) (emphasis in original); Balasco, 2020 WL 1240917, at *34 (articulating that the
special master “[did] not find preponderant evidence of a reliable medical theory causally
connecting petitioner’s HPV vaccinations to either POTS generally or her own fibromyalgia and/or
vestibular migraines in particular”); Johnson v. Sec'y of Health & Hum. Servs., No. 14-254V, 2018
WL 2051760, at *24 (Fed. Cl. Spec. Mstr. Mar. 23, 2018) (discussing how the petitioner failed to
establish a reliable medical causation theory that the HPV vaccine established autonomic nervous
system or orthostatic intolerance conditions); Combs, 2018 WL 1581672, at *1 (“[p]etitioner's
causation theory—that the HPV vaccine could damage the autonomic nervous system—was
scientifically unreliable and unpersuasive . . . .”); K.L. v. Sec'y of Health & Hum. Servs., No. 12-
312V, 2017 WL 1713110, at *15 (Fed. Cl. Spec. Mstr. Mar. 17, 2017) (noting that respondent
demonstrated more persuasively that there was “no link between a number of neurological events,
including epilepsy, and receipt of the HPV vaccine”), mot. for review den’d, 134 Fed. Cl. 579
(2017); L.A.M. v. Sec'y of Health & Human Servs., No. 11–852V, 2017 WL 527576 (Fed. Cl. Spec.
Mstr. Jan. 31, 2017) (concluding that the HPV vaccine not found to cause POTS); Turkupolis v.
Sec'y of Health & Human Servs., No. 10–351V, 2014 WL 2872215 (Fed. Cl. Spec. Mstr. May 30,
2014) (finding that the HPV vaccine not shown to cause neurocardiogenic syncope). 39
38
As already noted, decisions from different cases do not control the outcome herein. Boatmon, 941 F.3d at 1358-59.
Nevertheless, special masters reasonably draw upon their experience, and those of the other special masters past and
present, in resolving Vaccine Act claims. Doe v. Sec’y of Health & Hum. Servs., 76 Fed. Cl. 328, 338-39 (2007)
(“[o]ne reason that proceedings are more expeditious in the hands of special masters is that the special masters have
the expertise and experience to know the type of information that is most probative of a claim”) (emphasis added).
They would thus be remiss in ignoring prior cases presenting similar theories or factual circumstances, along with the
reasoning employed in reaching such decisions.
39
I also have not identified any reasoned decisions involving the claim that preexisting vasovagal syncope/NCS was
significantly aggravated. At most, a petitioner has previously alleged that a chronic headache condition was aggravated
by the HPV vaccine, among other things, but the claim was not successful. See Salerno v. Sec'y of Health & Hum.
Servs., No. 16-1280V, 2020 WL 3444163, at *8 (Fed. Cl. Spec. Mstr. May 29, 2020).
37
Particularly notable is the fact that in almost all these prior cases, arguments akin to what
are advanced herein were considered but rejected. See, e.g., Balasco, 2020 WL 1240917, at *13,
28, 34 (noting that petitioner (unlike in the present case) had a “positive tilt table test and tested
positive for anti-alpha-1-adrenergic antibodies, anti-beta-2 adrenergic antibodies, and the anti-
muscarinic cholinergic receptor 4 antibodies. . .”, but unsuccessfully established that this raised
the likelihood of autonomic dysautonomia, since there was not enough evidence to support the
reliability or significance of the results); McKown, 2019 WL 4072113, at *50 (stating that
molecular mimicry was not reliably invoked to explain vaccine association with syncopal
symptoms); see also Yalacki v. Sec'y of Health & Hum. Servs., No. 14-278V, 2019 WL 1061429,
at *34 (Fed. Cl. Spec. Mstr. Jan. 31, 2019), mot. for review den’d, 146 Fed. Cl. 80 (2019)
(commenting on petitioner’s theory that the Hep B vaccine could trigger a pathogenic process
resulting in an autoimmune attack leading to an injury, but finding that it was “not enough for a
claimant to invoke the concept of molecular mimicry” as petitioner needed to “cite to evidence,
circumstantial or otherwise, suggesting reason to find it plausible that the proposed autoimmune
cross-reaction triggered by the relevant vaccine does occur”) (emphasis in original); K.L., 2017
WL 1713110, at *14 n.24 (commenting that medical theory using passive surveillance evidence
derived from VAERS for support is “inherently less trustworthy than a retrospective study
observing actual diagnosed instances of illness or conditions . . . following vaccination” because
it contains reports that are unverified or incomplete of adverse events).
Moreover, the same items of literature (like Kinoshita or Brinth I) were offered by these
former, unsuccessful petitioners to establish an association between the HPV vaccine and
dysautonomia, but close review of the articles revealed that they simply did not reliably support
causation. See, e.g., E.S., 2020 WL 9076620, at *45 (“. . . evidence offered to suggest a case study-
oriented association, like Kinoshita, is weak, dependent on self-selected patient populations rather
than scientifically-reliable studies.”); McKown, 2019 WL 4072113, at *29, 51 (noting that
although Brinth I was used to suggest an association between the HPV vaccine and POTS, it
revealed selection bias in the studied patients in its sample, and otherwise suffered from a lack of
reliable scientific basis); Johnson, 2018 WL 2051760, at *17, 24 (articulating that Kinoshita and
Brinth I both involved self-selection and lacked scientifical reliability); Combs, 2018 WL
1581672, at *7 n.12, 18 (stating that the European medical institutions evaluated Kinoshita but
determined that the figure supposedly showing a correlation between HPV vaccination and
autonomic conditions was actually attributable to overreporting rather than a scientifically-based
association).
The parties have anticipated the relevance of these prior determinations and thus addressed
some of them in their briefing, with Petitioner specifically attempting to distinguish Combs, both
in terms of her own pre versus post-vaccination history. Opp. at 26, 32; Reply at 3-6; Combs, 2018
WL 1581672, at *20. However, while Petitioner is correct that these prior cases are not completely
congruent, and that there are differences in the theory presented by Dr. Blitshteyn as well (which
38
are discussed below), decisions like Combs still provide useful guidance on the core causation
element: whether the HPV vaccine “can cause” interference in the autonomic nervous system
sufficient to produce the kinds of symptoms at issue herein. Petitioner’s claim is not automatically
unsuccessful because of its similar contours to these prior determinations—but (as discussed
below) it also is not sufficiently different, reliable, or preponderantly established to result in a
favorable outcome where so many prior petitioners advanced comparable arguments, to no avail.
II. Petitioner Has Not Preponderantly Established the NCS Diagnosis
It is often appropriate for a special master to first determine which alleged injury is best
supported by the evidence before applying the Althen test—particularly when the injury is
disputed—so that “the special master could subsequently determine causation relative to the
injury.” Broekelschen, 618 F.3d at 1346. In some cases, determining the injury obviates entirely
the need for any Althen analysis, since the petitioner’s claim, and causation theory, is dependent
on a finding of a specific injury. Id.
In this case, the parties dispute the proper diagnosis—and indeed it is the case that
Petitioner’s claim relies on a determination that she likely suffered from NCS/vasovagal syncope
post-vaccination. 40 Respondent argues that she actually suffered from PPS or conversion disorder.
The record does not permit me to identify the most proper identifying classification for Ms.
America’s post-vaccination syncopal episodes—but that same record, when evaluated in light of
Dr. Boris’s assertions, does not support Petitioner’s contention that she suffered from NCS after
receipt of the HPV vaccine, for several reasons.
First, there is an overall lack of treater support for Petitioner’s preferred diagnosis. Taken
together, the many physicians that Petitioner saw—including Drs. Nassif, Islam, Gerber, Costello,
and McMahon—largely did not conclude that Petitioner was currently suffering from NCS (let
alone that her symptoms were caused by the HPV vaccine), even though on some occasions some
of them allowed that testing sometimes suggested that episodes were more consistent with a
vasovagal syncope than clearly-rejected explanations, like seizure. Although I am never bound to
accept a treater’s opinion, I may give weight to their views. Snyder, 88 Fed. Cl. at 746 n.67. The
strongest treater support that Petitioner suffered from NCS after the HPV vaccines comes from
40
Although it is somewhat unclear whether Petitioner suffered from NCS prior to vaccination, the definition of NCS
from Chew supports the contention that it is possible, as Petitioner was arguably exposed to emotional stressors, such
as her family’s moves from 2010 to 2014, and a few of her early episodes featured heat. Chew at 2. In addition, Dr.
Boris seems to concede the possibility that the diagnosis had far more validity pre-vaccination. Boris Second Rep. at
4–5. Even so, a finding that Petitioner may have had NCS pre-vaccination would only satisfy the first Loving prong—
and ultimately her claim turns on the determination that the HPV vaccine worsened it. So, the fact that Petitioner did
preponderantly suffer from NCS pre-vaccination would not save her claim if it is also determined she was not likely
experiencing it post-vaccination—meaning nothing could have been significantly aggravated.
39
Petitioner’s expert, Dr. Blitshteyn, whose non-contemporaneous telehealth consuls deserve less
weight (even disregarding her advocacy role in this matter as Petitioner’s causation expert). 41
Second, Petitioner’s testing was inconsistent and incomplete, with important evaluative
measures not performed that could have supported the proposed NCS diagnosis, depending on
their results. Petitioner never completed a tilt table test, for example. While the experts disagreed
whether such a test was necessary (compare Boris First Rep. at 7 with Blitshteyn Second Rep. at
5), there exists broad medical acceptance for the tilt table test as the best clinical test for symptoms
of dysautonomia like POTS. Yalacki, 2019 WL 1061429, at *35. Accordingly, the fact that such
testing never occurred undercuts the NCS diagnosis—even if some weight should also be given to
Dr. Blitshteyn’s contention that other clinical evidence supports it. 42
Third, the record contains evidence supporting PPS as a possible diagnosis that was
ineffectively rebutted by Petitioner. For example, Petitioner’s October 22, 2014 visit to Faxton St.
Luke’s emergency room indicates that Petitioner never lost consciousness as a nurse conducted a
drop test and Petitioner was able to move her hand from hitting herself. Ex. 5 at 241. Additionally,
Petitioner experienced an episode during her June 3, 2015 EMU study where she was able to
understand and respond by shaking her head “no” in answering her mother’s question. Ex. 8 at 20–
22. Again, although I do not find that the record preponderantly supports the PPS diagnosis, such
evidence reduces the persuasiveness of Petitioner’s showing to the contrary.
In reaching my conclusion, I am giving Dr. Boris’s opinion on diagnosis somewhat more
weight—and I do so despite Dr. Blitshteyn’s objections to his qualifications. As a well-
credentialed expert and cardiologist, Dr. Boris was in fact qualified to offer diagnostic opinions
about syncope or dysautonomic/orthostatic intolerance injuries, since such matters involve both
heart rate and blood pressure. Indeed, cardiologists are medically recognized to possess the proper
credentials to make such evaluations, and cardiologists have been used as expert witnesses in cases
alleging injuries comparable to that asserted in this case. See, e.g., E.S., 2020 WL 9076620, at *21;
Yalacki, 2019 WL 1061429, at *10. Even though I cannot conclude Petitioner had PPS, Dr. Boris’s
41
In addition, these two consultations appeared to simply accept Petitioner and her mother’s statements about the
nature of the episodes she reported to have experienced. Blitshteyn First Consult at 1–2; Blitshteyn Second Consult at
1–2. Otherwise, Dr. Blitshteyn’s evaluations were cursory, lacked independent corroboration of her condition, and
involved or relied upon no evident testing to confirm the conclusions reached. Id.
42
Admittedly, there is a parallel lack of diagnostic/evaluative evidence to confirm Dr. Boris’s contention that
Petitioner’s episodes constituted PPS, and this is one reason I do not find that PPS has been preponderantly established
either. However, given Petitioner’s initial burdens to establish matters like her claimed injury, the failure to corroborate
the NCS diagnosis falls on Petitioner. And the fact that Petitioner was recommended to undergo psychiatric testing all
the way back in June 2015 before this claim was initiated, but only attended a total of two documented sessions
(equaling a total of 1 hour and 15 minutes) before being discharged for noncompliance shortly thereafter, reduces the
impact of Petitioner’s arguments that PPS is not itself established by the medical record. Ex. 11 at 15–16, 18–19, 27–
28.
40
assertions about Petitioner’s diagnoses were persuasive, and greatly undercut Dr Blitshteyn’s
diagnostic opinion.
III. Petitioner’s Causation-in-Fact Significant Aggravation Claim Fails
Ms. America’s causation-in-fact claim is rooted in the contention that the HPV vaccine she
received in October 2014 43 caused a significant aggravation of her preexisting NCS symptoms.
Mot. at 13. Because I have determined that she did not likely have post-vaccination NCS, she
cannot prevail in establishing its significant aggravation.
However, even if I had been able to find on this record that Petitioner did likely suffer from
NCS after the first HPV dose (and for purposes of this analysis I will so assume), I could not also
find that she had established that the HPV vaccine could worsen it, or that it did so here. I address
the Loving prongs below in order of their significance to my determination. 44
A. Loving Prong Six: Petitioner Did Not Show A Medically Acceptable Temporal
Relationship Between Her October 2014 Vaccination and Alleged Exacerbation
The timeframe for Petitioner’s onset of increased syncopal episodes after her first HPV
dose—24-48 hours post-vaccination—was too short to be medically acceptable, even accepting
for sake of argument Petitioner’s theory that the vaccine could have exacerbated her NCS via some
autoimmune pathologic process.
As Dr. Boris persuasively observed, such a short timeframe is in fact contrary to Dr.
Blitshteyn’s theory of molecular mimicry as driving the alleged autoimmune process that led to
Petitioner’s symptoms. Boris First Rep. at 6. This is because the kind of antibodies that would be
generated closest in time to vaccination (the IgM immunoglobulins) would likely take
approximately three days to appear. Siegrist at 24. And the class of autoantibodies more likely to
drive the relevant autoimmune process posited by Dr. Blitshteyn’s theory would take nearly twice
43
Petitioner also seems to suggest in passing that the second dose of the HPV vaccine received in April 2015 similarly
caused a significant aggravation of her NCS (Mot. at 12–13), but as discussed below this assertion is mostly
unsubstantiated.
44
Because I have found that Petitioner has failed to carry three of the Loving prongs, I do not include a discussion of
all six prongs. However, I have already observed that there is far better preponderant support for the finding that
Petitioner had NCS prior to vaccination—thus establishing the first Loving prong. In addition, the record supports the
conclusion that Ms. America had roughly five episodes over a span of five years before her vaccination, all of which
resolved quickly or were associated with a variety of external stressors (temperature, menstruation, infection, etc.).
Ex. 10 at 1–2. After vaccination, by contrast, she suffered up to 20 episodes of syncope in a single year, and these
occurrences were prolonged although not associated with all (or even most) of the criteria relevant to NCS. Id. at 2–
3. Thus, there is a distinct “worsening” post-vaccination sufficient to meet the lenient interpretation of Loving prong
three embraced by the Federal Circuit in Sharpe. I have not found, however, that the post-vaccine NCS diagnosis has
preponderant support—and even if I am in error on that finding, the last three Loving prongs are still not satisfied.
41
as long. Boris First Rep. at 6. Thus, even if it were the case that the HPV vaccine could trigger an
autoimmune reaction in the manner Dr. Blitshteyn proposes, it would not likely occur within a one
or two-day timespan.
Dr. Blitshteyn did not offer sufficient preponderant and reliable scientific or medical
evidence to counter this opinion. Indeed, beyond her conclusory say-so, her timeframe contentions
find scant evidentiary support. Dr. Blitshteyn did not cite to a filed piece of literature to support a
two-day onset. Blitshteyn First Rep. at 6–7; Blitshteyn Second Rep. at 3. She referenced an IOM
treatise on vaccines, which she stated allowed for a recall response within 1 to 3 days, but she did
not file this literature to support her assertion, nor did she argue that the three-day onset discussed
in the alleged article (directly supporting Dr. Boris’s argument) was incorrect. In the end, Petitioner
showed only a temporal observation—not enough to find that the two events were causally linked.
See Grant, 956 F.2d at 1148.
Dr. Blitshteyn also argued that Petitioner experienced a faster immune reaction after her
second dose of the HPV vaccine six months later, in April 2015. Blitshteyn Second Rep. at 3. Yet
there is no medical evidence of Petitioner experiencing syncopal symptoms in an even closer-in-
time period when compared to the one to two-day onset alleged after her first HPV dose in October
2014—as would be expected if the second dose reflected an instance of rechallenge. The primary
mention of subsequent episodes is found in her mother’s affidavit, which states that Petitioner had
six additional episodes over the following months but does not specify exact dates. Ex. 10 at 3. It
was not until June 3, 2015, during Petitioner’s EMU study, where another episode was reported—
but this was approximately two months post-vaccination. A longer time interval between
vaccination and symptoms for a subsequent exposure to the relevant vaccine is not persuasive
evidence that the vaccine was stimulating a pathogenic process due to rechallenge.
B. Loving Prong Four: Petitioner’s Causation Theory was Unreliable
And Unsupported by Sufficient Preponderant Evidence
Petitioner has failed to reliably demonstrate that the HPV vaccine “more likely than not”
can prompt orthostatic intolerance, whether manifesting as POTS, generalized dysautonomia, or
vasovagal syncope as alleged here. I have had multiple opportunities in the past to consider this
causal theory, and have heard numerous experts propose in prior cases that components of the
HPV vaccine can initiate an autoimmune cross-reaction sufficient to impact the autonomic nervous
system and cause syncopal-like symptoms. See, e.g., McKown, 2019 WL 4072113, at *54;
Johnson, 2018 WL 2051760, at *24; Combs, 2018 WL 1581672, at *18–19; K.L., 2017 WL
1713110, at *14–15.
In such cases, I have consistently denied compensation, after considering the same items
of literature offered herein (including Dr. Blitshteyn’s own articles). My reasoning for doing so
42
arises from the determination that (a) orthostatic intolerance (in which the autonomic nervous
system’s background “control”’ over heart rate and blood pressure goes awry) most commonly is
not reflective of an autoimmune disease, but instead is usually attributable to other factors, like
dehydration 45 or physical deconditioning; 46 (b) in the rare instances it might be autoimmune in
nature, there is clinical evidence in an affected patient of other kinds of autonomic dysfunction
symptoms (i.e. bladder control loss); and (c) although it can be plausibly contended that there is a
subset of autonomic dysfunction driven by an autoimmune process (interference with adrenergic
receptors by autoantibodies), this kind of rare condition has not reliably been shown to be
associated with the HPV vaccine. McKown, 2019 WL 4072113, at *48 (noting the existence of
“literature support … for the idea that one particular variant of autonomic neuropathy producing
POTS symptoms might be associated with a particular autoantibody, thereby suggesting
autoimmunity as a plausible pathologic mechanism” in some cases of orthostatic
intolerance/dysautonomia, but that it is extremely uncommon and not likely vaccine-caused).
I have also repeatedly found in such cases that the injured claimant either did not
demonstrably possess true autonomic dysfunction, or that the purported association with
vaccination was merely temporal. See, e.g., McKown, 2019 WL 4072113, at *55 (establishing that
“the lack of evidence that in this timeframe Petitioner was experiencing any autoimmune or
inflammatory process, prevents a finding that the timeframe was medically acceptable”); Yalacki,
2019 WL 1061429, at *35, 37 (indicating in the record that it was unclear with petitioner even had
POTS, and even if it did exist, it predated the Hepatitis B vaccination, but was not exacerbated by
it); Johnson, 2018 WL 2051760, at *22–25 (noting that onset of petitioner’s symptoms was not
within a medically acceptable timeframe to establish that the vaccine caused petitioner’s injuries);
Combs, 2018 WL 1581672, at *19 (finding that petitioner was unable to establish that her
autonomic nervous system was damaged); K.L., 2017 WL 1713110, at *16 (pointing out that
petitioner mainly relied on the temporal association between vaccination and symptoms onset to
support a medically acceptable timeframe).
Of course, this is a different case, and my prior determinations, no matter how relevant or
factually similar, do not compel the outcome herein. But Petitioner’s causation theory as presented
in this case did not break any new ground.
First, Dr. Blitshteyn made assumptions about the general association between the different
forms of dysautonomia that were not well-founded. If anything, there is less associating NCS with
vaccination than other forms of dysautonomia. Blitshteyn Article 1–2; DuVernoy at 8; Vernino at
2, 5. In fact, despite some overlap these conditions have many differences, and orthostatic
45
Dehydration is “the condition that results from excessive loss of body water.” Dorland's at 475.
46
Deconditioning is “a change in cardiovascular function after prolonged periods of weightlessness, probably related
to a shift of a quantity of blood from the lower limbs to the thorax, resulting in reflex diuresis and a reduction of blood
volume.” Dorland's at 469.
43
hypotension and POTS produce different responses in patients in terms of blood pressure and/or
heart rate response. Yu at 2. A syncopal episode may occur without a change in blood pressure or
heart rate. Id. Dr. Blitshteyn also admitted that although syncope occurring immediately after
vaccination is well-recognized as an adverse event, chronic or recurrent syncope is not. Blitshteyn
First Rep. at 5. And certainly, it is not the case that conditions resulting in syncope or POTS are
by definition autoimmune—even Petitioner’s own literature rebuts that contention. Compare id.
with Brinth & Pors at 1 (“[t]hough numerous case reports have caused discussion in the medical
literature as well as in the lay press on a possible association between vaccination and development
of autoimmunity, these do not provide evidence for a causal link”).
Second, the association between the HPV vaccine and vasovagal syncope/NCS has not
been demonstrated by the medical or scientific authority Dr. Blitshteyn offers. Articles like Brinth
I and Kinoshita are too unreliable or have been rebutted by subsequent literature cited by
Petitioner, like Chustecka. Chustecka at 1 (“[h]owever, experts point out that all of these
publications are case reports with no control subjects, and cannot determine causality”). And I
have noted above that the same panoply of literature marshalled in this case to connect the HPV
vaccine with various forms of dysautonomia has shown up over and over again in prior cases but
has been deemed unreliable or unpersuasive. See, e.g., Combs, 2018 WL 1581672, at * 7, 18. In
Combs, for example, I observed that Kinoshita involves a very limited number of case studies, and
(as Dr. Boris noted) different disorders other than the alleged injury, ultimately providing no
evidence of causation. Kinoshita at 15; Boris First Rep. at 5. The new recitation of such previously-
rejected literature in this case, in support of a causation theory markedly similar to past rejected
theories, does not give them a force of persuasiveness as they have never been found to have merit.
In addition, arguments about molecular mimicry driving the purported autoimmune
process herein do not rise beyond plausibility, and are not otherwise bulwarked by reliable
scientific or medical evidence establishing that components of the HPV vaccine might produce an
autoimmune cross-reaction sufficient to adversely interact with adrenergic receptors. As a general
matter, molecular mimicry is not a “one size fits all” theory in any Program case (even if some
experts wield it as such). It is relatively easy for an expert to show (using BLAST searches) 47 that
amino acid sequences in a vaccine’s protein components match self-sequences found within the
relevant human protein. But this does not mean that its invocation in a particular case carries the
day for purposes of proving a persuasive causal theory. McKown, 2019 WL 4072113, at *50 (citing
Devonshire v. Sec'y of Health & Hum. Servs., No. 99-031V, 2006 WL 2970418, at *15 (Fed. Cl.
Spec. Mstr. Sept. 2006)) (“[b]ut merely chanting the magic words ‘molecular mimicry’ in a
Vaccine Act case does not render a causation theory scientifically reliable, absent additional
47
Here, Dr. Blitshteyn has not even provided the underlying BLAST search data results to show the purported
homology. Opp. at 30; Blitshteyn Second Rep at 2–3.
44
evidence specifically tying the mechanism to the injury and/or vaccine in question”) (emphasis in
original), mot. for review den’d, 76 Fed. Cl. 452 (2007)).
Rather, something a bit more specific must be offered—even if certainty remains out of
reach (and of course certainty is not the evidentiary standard in the Program). But not only has
Dr. Blitshteyn not done so, but she focuses on homology between the HPV L1 particle and the
alpha-adrenergic receptor type 1B—even though Petitioner’s literature references beta adrenergic
and muscarinic receptor antibodies as driving the relevant purported autoimmune process. 48 See
Yu at 2; Li at 5. And it is not likely that alpha adrenergic receptor type 1B autoantibodies are even
causative of any condition, as Dr. Boris persuasively argued. Boris Second Rep. at 2–3.
Moreover, the literature offered by Dr. Blitshteyn that discusses alpha adrenergic and
muscarinic receptor antibodies is focused upon addressing the specific symptoms seen in
orthostatic hypotension and POTS—conditions in which positional change (e.g., standing up in
the case of POTS) leads to tachycardia or a blood pressure change, thereby resulting in symptoms.
Yu at 7; Li at 7. But even if it is correct that these receptors are relevant to some uncommon cases
of orthostatic intolerance, it remains unestablished that Petitioner’s own syncopal events were the
product of positional change. Ex. 5 at 206, 241, 247. Thus, not enough has been shown to reliably
establish that the HPV vaccine could promote the kind of highly uncommon, autoimmune-form
dysautonomia driven by adrenergic receptor interference due to a molecular mimicry-caused cross-
reaction.
The case report evidence used to bulwark Petitioner’s claim generally, by associating the
HPV vaccine with comparable injuries, is also wanting. Petitioner attempts to analogize her
symptoms to those in other case reports purportedly linking the HPV vaccine to orthostatic
intolerance, like Brinth II. Mot. at 12; Brinth II at 2. But Brinth II has been criticized for lacking
any control group, and for choosing its subjects to fit the pre-specific hypothesis of an HPV
vaccine-induced illness. See Balasco, 2020 WL 1240917, at *30–31 (noting specifically “that
autonomic symptoms are prone to exaggerated self-reporting that cannot be correlated to objective
findings,” indicating that studies like Brinth II are not an accurate assessment of HPV vaccine-
induced illnesses). Otherwise, it is recognized that case reports provide lukewarm evidentiary
support for causation. See Campbell, 97 Fed. Cl. at 668 (“[c]ase reports do not purport to establish
causation definitively, and this deficiency does indeed reduce their evidentiary value ... [but] the
fact that case reports can by their nature only present indicia of causation does not deprive them
of all evidentiary weight.”). There simply is not enough in this record to accept Petitioner’s
contentions about causation. 49
48
In Dr. Blitshteyn’s first expert report she noted beta 2 adrenergic or M3 muscarinic antibodies, but in her second
report she discussed alpha-adrenergic receptor type 1b. Blitshteyn First Rep. at 5–6; Blitshteyn Second Rep. at 2–3.
49
Petitioner also has not shown that the underlying wild HPV infection is associated with dysautonomia—a kind of
proof that is unquestionably assistive of arguments that a particular vaccine might also cause the same injury, although
45
C. Loving Prong Five: The HPV Vaccine Did Not Likely Worsen Ms. America’s
Syncopal Episodes
The medical record does not support Petitioner’s contention that her post-vaccination NCS
(assuming, again, it existed—a finding I have not made, as noted above) worsened due to the HPV
vaccine. There is no evidence that Ms. America’s treaters ever associated her subsequent episodes
with the vaccination. There is also no evidence of the kind of concurrent symptoms a person with
an autoimmune disease provoking syncopal episodes (and in the manner alleged—by interference
with adrenergic receptors) would display, such as an increased heart rate caused by a change in
body positions resulting in dizziness and lightheadedness. Although this was not specifically tested
for, there were occasions, such as an emergency room visit on October 22, 2014, and an event
monitor ordered on November 6, 2014, which specifically noted an absence of changes of heart
rate during Ms. America’s episodes. Petitioner also does not appear to have possessed the
autoantibodies deemed by Dr. Blitshteyn to be likely causal (although I do take note of Dr.
Blitshteyn’s point that this kind of testing is not commonly performed). Certainly, however,
Petitioner’s treating physicians did not suspect or propose that she suffered from any form of
autoimmune disease that might be vaccine-attributable. While Petitioner may have reported more
syncopal episodes post-vaccination, it has not at all been shown that this increase had any more
than a temporal relationship to the date of vaccine administration.
IV. This Case Was Appropriately Decided on the Papers
In ruling on the record, I am choosing not to hold a hearing, consistent with the wishes of
the litigants. ECF No. 52. Determining how best to resolve a case is a matter that lies generally
within my discretion, and although the parties have not objected to this method of adjudication,
I shall explain why a hearing was not required.
Prior decisions have recognized that a special master’s discretion in deciding whether to
conduct an evidentiary hearing “is tempered by Vaccine Rule 3(b),” or the duty to “afford[] each
party a full and fair opportunity to present its case.” Hovey, 38 Fed. Cl. at 400–01 (citing Rule
3(b)). But that rule also includes the obligation of creation of a record “sufficient to allow review
of the special master’s decision.” Id. Thus, the fact that a claim is legitimately disputed, such that
the special master must exercise his intellectual faculties in order to decide a matter, is not itself
grounds for a trial (for if it were, trials would be required in every disputed case). Special masters
are expressly empowered to resolve fact disputes without a hearing—although they should only
so act if a party has been given the proper “full and fair” chance to prove their claim.
it certainly is not a prerequisite to so arguing. Deshler v. Sec'y of Health & Hum. Servs., No. 16-1070V, 2020 WL
4593162, at *18 (Fed. Cl. Spec. Mstr. July 1, 2020).
46
The present claim could be, and was, resolved fairly without the need for live testimony
from the experts. The parties did not agree on Ms. America’s diagnosis, and while my
determination of that issue bears on the outcome, it was a matter that could be decided on the
basis of the record and written reports, without the need for live testimony. I also do not
exclusively rely on that finding, further diminishing the significance of how I resolved the injury
question, since the case ultimately turned on Petitioner’s inability to meet three of the six Loving
prongs. And resolution of that matter as well could be accomplished based upon the briefs and
written reports (coupled with my extensive prior familiarity with theories for how the HPV
vaccine can cause orthostatic intolerance or syncope, as well as the literature repeatedly offered
to support them). This was not a case where live expert testimony was necessary to explain a
concept, and holding a hearing would not have affected or altered the outcome.
CONCLUSION
The record does not support Petitioner’s contention that the HPV vaccine she received
could, or did, exacerbate her allegedly preexisting NCS. I therefore must DENY entitlement in this
case.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of this decision. 50
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
50
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
47