Petitioners, Gus Deribeaux and Kimberly Burshiem, on behalf of their daughter, Madison Deribeaux, seek review of Special Master Lord’s December 9, 2011 decision denying compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34, established by 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-l to -34) (“Vaccine Act”). Petitioners filed for compensation on March 11, 2005, alleging that Madison was injured by the diphtheria, tetanus, and acellular pertussis (“DTaP”) vaccine she received on March 29, 2002. Special Master Millman first heard petitioners’ ease and granted entitlement to compensation. After new evidence emerged during the damages phase, the case was transferred to Special Master Lord, who held an additional hearing and subsequently denied relief on the ground that respondent, the Secretary of Health and Human Services, proved by a preponderance of the evidence that a factor unrelated to the vaccine, namely Madison’s genetic mutation, caused her injury.
Petitioners timely filed a motion for review under § 300aa-12(e) of the Vaccine Act, claiming that Special Master Lord’s decision was arbitrary, capricious, not in accordance with law, and an abuse of discretion. See Mot. for Review (docket entry 115, Jan. 9, 2012). Petitioners assert that the special master’s decision should be set aside and a new decision should be entered in petitioners’ favor or, in the alternative, that the Court should remand the case back to the special master for further consideration. Id. at 2.
I. Background
A. Madison’s Medical History
Madison Deribeaux was born on August 19, 2001. Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., No. 05-306V,
Madison was at the hospital for several days during which she suffered no additional seizures and her electroencephalogram (“EEG”) and computerized tomography (“CT”) tests were reported normal. Id. Additionally, an April 4, 2002 magnetic resonance imaging (“MRI”) of Madison’s brain was reported normal. Id. After this initial visit to the hospital, Madison experienced seizures throughout the year that were often, though not always, accompanied by a fever. Id. at *3-5. On April 16, 2002, an immunologist observed the temporal association between Madison’s seizures and her vaccinations. Id. at *4. Through April 18, 2002, Madison’s MRI and EEG test results were reported as normal. Id. A January 2003 EEG was also reported as normal. Id. at * 5.
In April 2003, Madison was admitted to the hospital with “recurrent convulsive episodes.” Id. Her discharge note stated that Madison had a seizure disorder that began two days after the DTaP vaccination, “with subsequent admission and treatment for atypical Kawasaki disease.”
In April 2004, Madison was observed to have “delayed fíne motor skills, poor attention, and hyperactive behavior.” Id. at *6 (citing Pet’rs’ Ex. 6, at 10; Pet’rs’ Ex. 4, at 163). In February 2005, while at the hospital for treatment, it was observed that Madison’s development stopped after her first year. Id. Madison continued to experience seizures through 2005. Id.
In December 2005, genetic testing revealed that Madison had a “DNA sequence variation in [her] SCN1A gene.” Id. at *7. The laboratory report stated that the mutation was not inherited and arose de novo. Id. An SCN1A mutation has been associated with Dravet’s Sydrome (“DS”), which is also known as Severe Myoclonic Epilepsy of Infancy (“SMEI”).
B. Procedural History
On March 11, 2005, before Madison’s genetic mutation was discovered, petitioners filed a petition for compensation on behalf of Madison pursuant to the Vaccine Act. Id. at *1. The petition alleged that Madison’s seizure disorder resulted from the DTaP vaccine she received. Id. On September 20, 2007, a hearing was held before Special Master Millman. Id.
At this hearing, petitioners and respondent each presented two experts. Petitioners presented the testimony of Dr. Tornatore, “an associate professor of neurology at Georgetown University School of Medicine ... [who] serves as director of its neurology residеncy program.” Id. at *9. Dr. Torna-tore is board certified in neurology. Id. Dr.
Petitioners also presented the testimony of Dr. Joseph Bellanti, “a professor of pediatrics in microbiology and immunology at Georgetown University School of Medicine.” Id. Similar to Dr. Tornatore, Dr. Bellanti’s testimony was that “the vaccinations Madison received triggered an inflammatory response that cascaded into all the conditions from which she suffered.” Id.
The experts put forward by respondent testified that the vaccine did not cause Madison’s condition. Dr. Russell Snyder, a neurologist who is board certified in neurology, pediatries, and pediatric neurology, testified that Madisоn’s condition “could be explained completely by Kawasaki disease” and that there was no evidence that Madison’s initial seizure resulted in brain damage. Id. He testified that “DTaP vaccination can cause febrile seizures but not chronic seizure disorders in children.” Id. Additionally, Dr. Snyder noted the relationship between SCN1A mutations and DS. Id. at *11. He explained that, with an SCN1A mutation, the vaccine could have caused a fever that resulted in the initial seizure, but the fever “would not be a ‘cause’ of the child’s neurological problems.” Id.
Dr. Brian Ward was the second of respondent’s experts before Special Master Mill-man. Dr. Ward, “an infectious disease specialist from McGill University,” testified that Madison’s condition was caused by enterovi-rus. Id. He opined that her initial seizure was not related to the vaccination. Id. Additionally, although he agreed that the vaccination could have caused a fever, he stated that it would not have caused brain damage. Id.
After reviewing the testimony and all the evidence, Special Master Millman concluded that petitioners had established causation and were entitled to compensation. Deribeaux ex rel. Deribeaux v. Sec’y of Dept. of Health & Human Servs., No. 05-306V,
During the damages phase, petitioners produced medical records at the request of respondent. These records, previously undisclosed, included documents relating to Madison’s diagnosis of DS and the opinions of her treating physicians that DS caused her seizures. Deribeaux,
After respondent moved to reopen the entitlement phase, the case was transferred to Special Master Lord. Id. at *1. Special Master Lord dеtermined that the evidence presented before Special Master Millman was “sufficient to set forth Petitioners’ prima facie case, and to shift the burden of proof to the Secretary to establish alternative causation.” Id. at *3. Accordingly, Special Master Lord limited the proceedings before her, including briefing and a hearing, to the issue of whether respondent carried her burden to show alternative causation. Id.
During the second set of proceedings, petitioners’ expert, Dr. Tornatore, stated that his opinion expressed during the first proceedings was unchanged by the evidence of Madison’s DS. Id. at *6, *12. Respondent presented the testimony of an additional expert not involved in the first hearing, Dr. Gerald Raymond. Id. at *12. “Dr. Raymond opined that the sole cause of Madison’s neurological disorders was her genetic mutation, and that vaccination neither caused nor aggravated her condition.” Id. (citing Resp’t’s Ex. RR, at 6).
After reviewing the briefs of the parties, the testimony of both exрerts, the findings of Special Master Millman, and the plethora of medical literature presented by both sides, Special Master Lord determined that respondent carried her burden to demonstrate al
Pursuant to Vaccine Rule 23 of Appendix B of the Rules of the Court of Federal Claims, on January 9, 2012 petitioners filed a motion for review in the Court of Federal Claims requesting the court to “set aside the Decision and that a decision be entered in Petitioners’ favor or in the alternative that the Court remand the case back to the Special Master for further consideration.” Mot. for Review 2. Respondent filed a response in opposition to petitioners’ motion for review on February 8, 2012 (docket entry 117). A hearing was held on April 30, 2012.
II. Jurisdiction and Standard of Review
Pursuant to the Vaccine Act, the Court of Federal Claims has jurisdiction to review decisions of special masters. 42 U.S.C. § 300aa-12(e). After reviewing a motion for review, the Court of Federal Claims may do one of three things: it may (1) “uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision”; (2) “set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law”; or (3) “remand the petition to the special master for further action in accordance with the court’s direction.” Id. § 300aa-12(e)(2)(A)-(C).
The court will review the legal conclusions of the special master de novo and will defer to the special master on findings of fact, unless the court determines that such findings are arbitrary or capricious. Porter v. Sec’y of Health & Human Servs.,
(quoting Hines v. Sec’y of Health & Human Servs.,
III. Discussion
In their motion for review, petitioners make three objections to the decision of the special master denying them entitlement to compensation. First, petitioners challenge the special master’s analysis in concluding that respondent met her burden of proof. Petitioners state that a different standard should have been utilized—namely the allegedly higher burden of proof contained in the Restatement (Second) of Torts rather than the three-part test announced by the Federal Circuit in Althen v. Secretary of Health & Human Services,
A. Petitioners’ Objection to the Standard of Proof Used by the Special Master in Finding for Respondent
Pursuant to the Vaccine Act, there are two ways in which a petitioner can show that a vaccine caused his injuries. He may demonstrate that his injury is listed on the Vaccine Injury Table (a Table injury), in which case he will receive a statutory presumption of causation. 42 U.S.C. §§ 300aa-11(c), -14(a). If his injury is not on the Vaccine Injury Table (an off-Table injury), he must prove causation in fact to demonstrate entitlement to compensation. Id. §§ 300aa-11(c), -13(a)(1). In this case, Madison’s condition was off-Table, thus requiring petitioners to prove causation in fact by a preponderance of the evidеnce. Id. § 300aa-13(a)(l).
The Federal Circuit has established a three-prong test that petitioners alleging an offTable injury must satisfy in order to prove
show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.
Id.
Once a petitioner establishes his pri-ma facie ease by satisfying the Althen threeprong test, the burden shifts to the respondent to show by a preponderance of the evidence that the injury is the result of factors unrelated to the vaccine. See 42 U.S.C. § 300aa-13. In order to meet its burden, the government must “identify[] a particular ... factor (or factors) and pres-ente ] sufficient evidence to establish that it was the sole substantial factor in bringing about the injury.” de Bazan v. Sec’y of Health & Human Servs.,
In this case, Special Master Lord determined that, given the evidence presented at the proceeding before Special Master Mill-man, petitioners established their prima facie case of causation and entitlement to compensation. Deribeaux,
Petitioners take issue with the analysis the special master applied when reviewing the evidence respondent presented to show that a factor unrelated to the vaccine caused Madison’s condition. Specifically, they argue that the special master should have applied the standard contained in the Restatement (Second) of Torts as announced in Shyface v. Secretary of Health & Human Services,
concurrent forces may bring about a single harm, requiring weighing the contributing factors: ... “Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of [another factor] insignificant and, therefore, to prevent it from being a substantial factor.”
Id. (quoting Restatement (Second) of Torts § 433 cmt. d).
Petitioners mischaracterize the relationship between the Federal Circuit’s adoption of the Restatement (Second) of Torts in Shy-face and its announcement of the three-part test in Althen. The Restatement standard, as adopted in Shyface, is not at odds with the Althen factors; rather, those factors are themselves derived from the Restatement standard.
In Shyface, the Federal Circuit determined that, to prevail on a рetition for compensation, a petitioner must show “by a preponderance of the evidence, that the vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Shyface,
Accordingly, by applying the Althen factors to respondent’s ease, the spеcial master in fact applied the Restatement standard. Therefore, the Court rejects petitioners’ argument that the special master should have applied the standard announced in Shyface. Indeed, that standard is subsumed within the Althen three-prong test.
To the extent that petitioners are arguing that the special master should have applied a superseding cause analysis, see Mot. for Review 6-8, the Court disagrees. As this court has observed, “the ‘factor unrelated’ defense under the Vaccine Act is not analogous to the defense of ‘superseding cause’ in the common law.” Hammitt,
To the extent that petitioners take issue with the special master’s specific method оf assessing respondent’s ease, namely employing the Althen factors to review respondent’s evidence in support of her theory that a factor unrelated to the vaccine caused Madison’s condition, the Court finds petitioners’ contention unpersuasive. According to statute, the special master was to assess whether respondent showed by “a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition.” 42 U.S.C. § 300aa-13(a)(l). And, as the Federal Circuit has observed, “[t]he special master’s role is to apply the law.” Althen,
Accordingly, Special Master Lord did not act arbitrarily, capriciously, or contrary to law when she employed the Althen factors to analyze whether, after petitioners established their prima facie case, respondent carried her burden to prove that a factor unrelated to the vaccine caused Madison’s injuries.
B. Petitioners’ Objection to the Special Master’s Reliance on the Expert Testimony of Dr. Raymond
Petitioners’ second objection in their motion for review is that the special master
In support of their position, petitioners argue that the Vaccine Act states that the respondent must demоnstrate legal causation with regard to the injury, and not merely rely on medical opinion to rebut a petitioner’s prima facie case. Id. at 13. Petitioners argue that it was contrary to law for Special Master Lord to rely on the evidence presented by Dr. Raymond, l’espondent’s expert during the second set of proceedings, and to disregard respondent’s other two experts as well as petitioners’ experts and evidence. Id. Petitioners argue that Special Master Lord erred when she “[chose] one expert over another” because the government fails to meet its burden, and compensation must be awarded, when a ease involves conflicting experts and the evidence is “seen in equipoise.” Id. (quoting Harris v. Sec’y of Health & Human Servs.,
“The purpose of the Vaccine Act’s preponderance standard is to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body.” Althen,
In light of the purpose and structure of the Vaccine Program, “[w]here ‘medical evidence [is] not definitive’ the special master may rely heavily on expert medical testimony.” Locane v. Sec’y of Health & Human Servs.,
In this case, Special Master Lord carefully considered all the evidence presented in the course of the litigation. When the case was transferred to her, she limited the proceedings to the issue of whether Madison’s genetic mutation was a factor unrelated to the vaccine that caused her condition. She invited both parties to present evidence and argument in support of their respective positions.
Petitioners’ expert, Dr. Tоrnatore, did not change his testimony from the first proceeding, stating that his opinion was unaffected by the evidence of Madison’s genetic mutation. Deribeaux,
The special master is entitled tо find one expert’s opinion more persuasive than another’s, and there is nothing in the record that suggests that the special master erred when she determined that respondent’s expert’s opinion should be afforded more weight than the other experts’ opinions. This is especially so considering the findings contained in the relevant medical literature the special master reviewed as well as the specific qualifications of Dr. Raymond, who “is one of a limited number of physicians in the United States who holds board certifications in neurology and genetics, as well as special competence in child neurology and clinical genet ics.” Id. at *23. Dr. Tornatore is board certified in neurology, but not in genetics or pediatrics, a distinction that is particularly significant for purposes of this case.
Accordingly, Special Master Lord did not act arbitrarily, capriciously, or contrary to law when, after considering all the evidence and testimony, she found Dr. Raymond’s expert opinion persuasive with regard to the issue of causation. It is within her discretion as a special master to rely on the testimonial evidence of experts and to determine the expert’s persuasiveness. See Broekelschen,
C. Petitioners’ Objection to the Special Master’s Determination that Respondent Proved the Existence of a Sole Substantial Factor Unrelated to the Vaccination
Petitioners’ third objection to the special master’s decision is that the special master’s determination that respondent demonstrated that a sole substantial factor unrelated to the vaccine caused Madison’s condition, and thus satisfied respondent’s burden of proof, was arbitrary, capricious, an abuse of discretion, and contrary to law. Petitioners seem to rest this objection on three theories: (1) respondent conceded that Madison’s first fevеr and seizure were triggered by the vaccine, (2) respondent presented more than one substantial factor unrelated to the vaccine, and (3) the evidence presented before the special master did not support her conclusion that respondent carried her burden.
1. Respondent’s Experts’ Statements that the Vaccine Triggered Madison’s First Fever and Seizure Do Not Render the Special Master’s Decision Arbitrary, Capricious, an Abuse of Discretion, or Contrary to Law
First, petitioners point out that all three of respondent’s experts conceded that the vaccine caused Madison’s first seizure, specifically highlighting Dr. Raymond’s agreement with the special master’s statement that the vaccine “likely contributed to the first febrile seizure.” Mot. for Review 15, 17. Petitioners argue that “it is arbitrary, capricious and an inherent contradiction to state the injury followed the vaccine but was not caused by the vaccine when all parties сoncede the vaccine caused the first seizure.”. Id. at 16.
Petitioners also point out that the genetic mutation Madison had “can be present with- ' out a diagnosis of [DS].” Id. They reason that respondent has not adequately shown that Madison’s symptoms would have resulted from this mutation regardless of the vaccine and posit that “the Special Master’s conclusion that Madison was ‘destined from infancy’ to have [DS] ignores actual reality ... and her conclusions are therefore contrary to law.” Id. at 17.
In addition, on this theory and somewhat intertwined with their first objection regard
Respondent argues that, although Dr. Raymond “agreed that the DTaP vaccination likely caused the fever, which brought about Madison’s initial seizure, he emphatically stated that the DTaP fever itself was not the cause of Madison’s seizure disorder.” Resp’t’s Resp. to Pet’rs’ Mot. for Review 18. Respondent then highlights the evidence that Madison’s age was “within the typical onset period for [DS]” and the manifestation of DS was “entirely typical.” Id. Additionally, respondent argues that there was no evidence that the initial seizure altered Madison’s clinical course or resulted in permanent brain damage. Id. at 18-19. In support of the soundness of the evidence, respondent highlights her expert’s qualifications as a child neurologist who often analyzes children who have suffered brain damage.
That respondent’s experts stated that the vaccine caused the initial fever and seizure does not lead the Court to conclude that the special master’s causation determination was erroneous. The evidence reviewed by the special master was sufficient to support her finding that the genetic mutation was a substantial factor unrelated to the vaccine that caused Madison’s condition. That the vaccine triggered the first seizure, a fact that Special Master Lord recognized, Deribeaux,
Petitioners’ second argument is that the respondent has “alleged three ‘sole substantial factors’ unrelated to the vaccine as potential causes of Madison’s injuries.” Mot. for Review 10-11. This, petitioners argue, has the effect of lowering respondent’s burden of proof.
As discussed, the Federal Circuit in de Bazan explained that the government meets its burden of proving a factor unrelated to the vaccine caused the injury “by identifying a particular factor (or factors) and presenting sufficient evidence to establish that it was the sole substantial factor in bringing about the injury.”
With regard to the meaning of the term substantial, the Federal Circuit explained that a petitioner must show that the vaccine was not only a but-for cause of the injury, but was also a substantial factor in bringing about such injury, de Bazan,
This definition of substantial — somewhere between non-negligible and predominant — is applicable to respondent’s burden to prove a sole substantial factor unrelated to the vaccine. Accordingly, a respondent’s burden is to prove that a certain factor is the only substantial factor — one somewhere between non-negligible and predominant — that caused the injury.
Here, althоugh petitioners established their prima facie case, the special master determined that respondent successfully proved by more than preponderant evidence that Madison’s genetic mutation was the sole substantial factor contributing to her disease. Deribeaux,
During oral argument, petitioners implicitly maintained that the weight of the evidence does not support the special master’s conclusion that respondent carried her burden of proof. They emphasized, in particular, that “[tjhere is no one-to-one relationship between Madison Deribeaux’s genetic mutation, and ... [her] seizure disorder.” Transcript of Oral Argument at 12-13, Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., No. 05-306V (Fed.Cl. Apr. 30, 2012). That the mutation necessarily results in DS, petitioners argued, is “total and complete speculation,” and the special master’s reliance on such speculation was erroneous. Id. Petitioners seem to argue that they should prevail because it cannot be said with absolute certainty that Madison, by reason of her genetic mutation, would have experienced the samе symptoms even if she had not been vaccinated.
Special Master Lord rightly recognized in her decision that “[p]roof of an unrelated factor does not, under the Vaccine Act, require absolute certainty.” Deribeaux,
Accordingly, Special Master Lord did not abuse her discretion or act arbitrarily, capriciously, or contrary to law when she determined that respondent met her burden of proving by a preponderance of the evidence that a substantial factor unrelated to the vaccine caused Madison’s injuries.
CONCLUSION
In view of the foregoing, the Court upholds the special master’s findings of fact and conclusions of law as well as the special master’s decision denying petitioners’ claim for compensation under the Vaccine Act. Accordingly, petitioners’ motion for review is DENIED, and Special Master Lord’s December 9, 2011 decision is AFFIRMED.
IT IS SO ORDERED.
. Pursuant to Rule 18(b), Appendix B of the Rules of the Court of Federal Claims, this Opinion and Order is initially being filed under seal. By rule, the parties are afforded fourteen days in which to propose redactions.
. The parties do not dispute the underlying facts of this case, which, for purposes of this Opinion and Order, are taken from the special master's decision, Deribeaux ex rel. Deribeaux v. Secretary of Health & Human Services, No. 05-306V,
."Kawasaki disease is a rare, immune-mediated vasculitis that can affect the skin, heart, mucus membranes, eyes, mouth and central nervous system.” Deribeaux,
. The special master’s decision well explained the results of Madison’s MRI:
Hypomyelinization is the disappearance or inadequate formation of myelin sheaths on nerves. [Dorland’s Illustrated Medical Dictionary 903 (32d ed. 2012)]. (Note "myelinization" and "myelination” are used interchangeably, see id. at 1218). Metabolic disease is a general term for diseases caused by disruption of a normal metabolic pathway because of a genetically determined enzyme defect. Id. at 538. Mitochondrial diseases are a diverse group of mainly multisystemic and maternally inherited disorders caused by mutations of mitochondrial DNA_ Id. at 539. Me-■tachromatic leukodystrophy is an autoso-mal recessive genetic disorder. The infantile form usually begins in the second year of life and is additionally characterized by developmental delay, seizures, optic atrophy, ataxia, weakness, loss of speech, and progressive spastic quadripare-sis. Id. at 1029.
Deribeaux,
. "Enterovirus is a genus of viruses that preferentially inhabit the intestinal tract. Infection is usually asymptomatic or mild but may result in a variety of disease syndromes. Most strains of human enterovirus cause only mild symptoms such as fever.” Deribeaux,
. Gliosis is the overgrowth of certain cells in a damaged area of the brain or spinal cord. Sted-man's Medical Dictionary 812 (28th ed. 2006); see Dorland's Illustrated Medical Dictionary, supra, at 784.
. DS is an epilepsy syndrome that typically presents during the first year of life. Deribeaux,
. Petitioners rely on the Office of Special Master’s decision in Sucker v. Secretary of Health & Human Services, No. 07-0058V,
. Notably, Special Master Lord addressed the question of significant aggravation, an issue not addressed by Special Master Millman. See Deribeaux,
. The Office of Special Masters has previously applied the Althen three-part test when determining if the government met its burden of proof. See, e.g., Stewart v. Sec’y of Health & Human Servs., No. 06-777,
. Because the Court so finds, it need not address the issue of waiver that respondent has identified. See Resp't’s Resp. to Pet’rs’ Mot. for Review 15.
. The Federal Circuit has determined that, in two other cases involving children who received the DTaP vaccine and suffered from DS, the special master did not act arbitrarily or capriciously in finding that Dr. Raymond’s testimony was more persuasive than the testimony of the petitiоners' experts in light of Dr. Raymond's qualifications. Stone,
. See also Hammitt,
. Also in support of their argument that the special master improperly concluded that respondent met her burden even though her experts stated that the vaccine triggered Madison’s first seizure, petitioners cite Harris v. Secretary of Health & Human Services,
Petitioners argue that, in the present case, respondent has likewise failed to prove that Madison’s genetic mutation was the cause of her
. With regard to the timing of the evidence of the genetic mutation, respondent at oral argument stated that the lateness of the mutation evidence "casts doubt on the reliability of the first Special Master’s conclusion that Petitioners had made their prima facie case.” Transcript of Oral Argument at 30, Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., No. 05-306V (Fed.Cl. Apr. 30, 2012). The Court recognizes that respondent's evidence is relevant not only once the burden shifts, but that the special master may also consider evidence offered by the respondent in evaluating the petitioner’s case-in-chief. Stone,