Greene v. Hhs

Case: 20-1544    Document: 36    Page: 1   Filed: 12/28/2020

        NOTE: This disposition is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit

                    ROY GREENE,




    Appeal from the United States Court of Federal Claims
 in No. 1:11-vv-00631-MMS, Chief Judge Margaret M.

                Decided: December 28, 2020

    ROY GREENE, Spring, TX, pro se.

     HEATHER LYNN PEARLMAN, Vaccine/Torts Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent-appellee. Also represented by
Case: 20-1544    Document: 36     Page: 2    Filed: 12/28/2020

 2                                            GREENE   v. HHS

 Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
           Opinion for the court filed PER CURIAM.
     Dissenting opinion filed by Circuit Judge O’MALLEY.
     Roy Greene sought compensation under the National
 Childhood Vaccine Injury Act of 1986 (Vaccine Act), 42
 U.S.C. §§ 300aa-1 to -34, based on his claim that the teta-
 nus-diphtheria (Td) vaccine he received in July 2009
 caused his brachial neuritis. The special master first con-
 cluded that Mr. Greene did not meet a precondition for in-
 voking a presumption of causation under the relevant
 provision of the Vaccine Injury Table, a ruling not at issue
 here. The special master then considered whether, without
 the aid of the Table presumption, Mr. Greene had proved
 that the vaccine caused his condition. The special master
 found that Mr. Greene did not prove actual causation and
 so was not entitled to recover under the Vaccine Act. The
 United States Court of Federal Claims (Claims Court) af-
 firmed the special master’s denial of recovery. Applying
 the required deferential standard of review to the special
 master’s findings, we affirm.
     On July 22, 2009, Mr. Greene received treatment at
 Clear Lake Regional Medical Center for a puncture wound
 on his hand. As part of that treatment, he received a Td
 vaccination. About six weeks later, Mr. Greene began ex-
 periencing symptoms of brachial neuritis. 1

     1    The Vaccine Injury Table identifies brachial neuri-
 tis, in relevant part, as “dysfunction limited to the upper
 extremity nerve plexus (i.e., its trunks, divisions, or
 cords),” marked upon onset by “severe aching pain in the
 shoulder and upper arm.” 42 C.F.R. § 100.3(c)(6).
Case: 20-1544      Document: 36     Page: 3    Filed: 12/28/2020

 GREENE   v. HHS                                              3

     In 2011, Mr. Greene filed this action in the Claims
 Court against the Secretary of Health and Human Ser-
 vices, seeking relief under the Vaccine Act, § 300aa-11, and
 alleging that the Td vaccine he received caused his brachial
 neuritis. Initially, Mr. Greene asserted both (1) a claim un-
 der the Vaccine Injury Table, 42 C.F.R. § 100.3(a)(I)(B),
 which provides for a presumption of causation when bra-
 chial neuritis symptoms begin within twenty-eight days of
 the Td vaccination date, and (2) a non-Table claim, for
 which Mr. Greene had to establish actual causation of the
 brachial neuritis. In 2015, after an evidentiary hearing,
 the special master found that Mr. Greene’s symptoms of
 brachial neuritis began no earlier than forty-one days after
 vaccination—more than the twenty-eight days specified in
 the Table, and on that basis dismissed Mr. Greene’s Table
 claim. Greene v. Sec’y of Health & Human Servs., No. 11-

2015 WL 9056034

, at *1 (Fed. Cl. Spec. Mstr. July
 31, 2015).
      Mr. Greene continued to pursue his theory of actual
 causation under our three-part approach laid out in Althen
 v. Secretary of Health & Human Services, 

418 F.3d 1274

 (Fed. Cir. 2005). In support of his claim, Mr. Greene filed
 several expert reports, including two from Dr. Thomas W.
 Wright, and, at the special master’s direction, a report from
 Dr. Marcel Kinsborne. The Secretary moved for a ruling in
 its favor on the record, which the special master granted in
 May 2017.
     Mr. Greene sought reconsideration under Vaccine Rule
 10(e), attaching a second report from Dr. Kinsborne and
 eighteen scientific articles, as well as a letter from Dr. Vera
 Byers. The special master granted reconsideration, but
 again denied entitlement, explaining that the “record does
 not support [his] allegation that his Td vaccine more likely
 than not caused his brachial neuritis.” Greene v. Sec’y of
 Health & Human Servs., No. 11-631V, 

2017 WL 5382856

 at *7 (Fed. Cl. Spec. Mstr. Sept. 26, 2017). On appeal, how-
 ever, the Claims Court vacated the decision, as having
Case: 20-1544     Document: 36     Page: 4    Filed: 12/28/2020

 4                                              GREENE   v. HHS

 rested on an incorrect legal standard, and remanded for
 further proceedings. Greene v. Sec’y of Health & Human

136 Fed. Cl. 445

, 453–54 (2018).
     On remand, the special master denied the Secretary’s
 motion for a ruling on the record, but authorized the Sec-
 retary to file an expert report, which the Secretary had not
 previously done. Greene v. Sec’y of Health & Human Servs.,
 No. 11-631V, 

2018 WL 3238611

, at *1 (Fed. Cl. Spec. Mstr.
 May 7, 2018). The Secretary submitted a report from Dr.
 Eric Lancaster, to which Mr. Greene responded with his
 own reports from Dr. Kinsborne, as well as a new report
 from Dr. Lawrence Steinman. In August 2019, the special
 master held a hearing to evaluate Mr. Greene’s claim of ac-
 tual causation. Greene v. Sec’y of Health & Human Servs.,
 No. 11-631V, 

2019 WL 4072110

, at *1 (Fed. Cl. Spec. Mstr.
 Aug. 2, 2019).
     At the hearing, Mr. Greene’s experts, Drs. Steinman
 and Kinsborne, compared brachial neuritis to Guillain-
 Barré syndrome (GBS). They cited scientific literature for
 the proposition that both GBS and brachial neuritis are au-
 toimmune conditions with a common pathogenesis. And
 they testified that—because six weeks was a reasonable
 time of onset for GBS—brachial neuritis could also develop
 in that timeframe.

Id. at *3–10.

      The Secretary’s expert, Dr. Lancaster, rejected the
 analogy between GBS and brachial neuritis, testifying that
 GBS differs from brachial neuritis in several important re-

Id. at *11.

Specifically, he stated that brachial neu-
 ritis tends to be an “axonal” injury with a “localized nature
 of the inflammation,” whereas GBS is primarily considered
 a “demyelination” injury that tends to be multifocal or bi-

Id. Next, Dr. Lancaster

testified that Mr. Greene’s
 medical records were consistent with brachial neuritis, ra-
 ther than GBS, stating that the “electrodiagnostic test re-
 sults . . . suggested to him the presence of ‘severe axonal

Id. at *12.

Dr. Lancaster also observed that no
Case: 20-1544      Document: 36    Page: 5    Filed: 12/28/2020

 GREENE   v. HHS                                            5

 one who treated Mr. Greene for brachial neuritis had indi-
 cated that his condition may have been caused by his Td
 vaccine, and he opined that there may have been other trig-
 gers for the condition, such as an injury Mr. Greene suf-
 fered in early September 2009.

Id. On August 2,

2019, the special master found that Mr.
 Greene had not met his burden of proving actual causation.

Id. at *22.

The special master stated that forty-one days
 was not a medically acceptable timeframe for the vaccine
 to have caused the brachial neuritis.

Id. at *21.

In his de-
 cision, he explained that Dr. Lancaster’s testimony persua-
 sively undermined the reliance on GBS by Mr. Greene’s
 experts for their opinions about Mr. Greene’s brachial neu-

Id. at *19–20.

Next, the special master articulated
 several independent bases for his conclusion that “[t]he rec-
 ord provides no objective evidence whatsoever—direct, cir-
 cumstantial, or otherwise—that [Mr. Greene] was
 experiencing an autoimmune-derived injury attributable
 to vaccination,” including that (1) Mr. Greene did not ex-
 hibit any symptoms until September 2009, when he went
 to an emergency room with acute pain consistent with bra-
 chial neuritis, (2) “nothing from the pre- or post-vaccina-
 tion record suggest[s] that an autoimmune reaction was
 brewing in a subclinical form,” and (3) Mr. Greene’s treat-
 ing doctors never “implicated the tetanus vaccine as caus-
 ative of his injuries” or suggested intravenous
 immunoglobin treatment.

Id. at *21.

On those bases, the
 special master concluded that Mr. Greene had not estab-
 lished either a proximate temporal relationship between
 his vaccination and his brachial neuritis (one requirement
 of Althen) or a logical cause-and-effect sequence between
 his vaccination and his brachial neuritis onset (another re-
 quirement of Althen).

Id. at *20–21.

      Mr. Greene sought review in the Claims Court, which
 affirmed the special master’s decision. Greene v. Sec’y of
 Health & Human Servs., 

146 Fed. Cl. 655

(2020). Although
 the court determined that some of the special master’s
Case: 20-1544     Document: 36      Page: 6   Filed: 12/28/2020

 6                                              GREENE   v. HHS

 findings of fact were arbitrary and capricious (e.g., regard-
 ing the experts’ credentials), it ultimately decided that
 those findings were “unnecessary for [the special master’s]
 conclusion that [Mr. Greene] did not establish that the Td
 vaccine caused his brachial neuritis.”

Id. at 665–66.

 Claims Court concluded that, although it “likely would
 have reached a different conclusion on the merits of [Mr.
 Greene’s] claim” had it been the finder of fact, it could not
 disturb the special master’s decision under the governing
 deferential standard of review.

Id. at 669.

    Mr. Greene filed a timely notice of appeal on March 6,
 2020. We have jurisdiction under 42 U.S.C. § 300aa-12(f).
      For Vaccine Act claims, we review the Claims Court’s
 decision de novo, “‘applying the same standard of review as
 [that court] applied to its review of the special master’s de-
 cision.’” Lozano v. Sec’y of Health & Human Servs., 

958 F.3d 1363

, 1368 (Fed. Cir. 2020) (quoting Griglock v. Sec’y
 of Health & Human Servs., 

687 F.3d 1371

, 1374 (Fed. Cir.
 2012)). Although we review any legal rulings de novo, the
 standard of review for factual matters is highly deferential.

Id. We determine only

“whether the special master’s find-
 ings were arbitrary and capricious.” Lampe v. Sec’y of
 Health & Human Servs., 

219 F.3d 1357

, 1360 (Fed. Cir.
 2000). “We do not reweigh the factual evidence, assess
 whether the special master correctly evaluated the evi-
 dence, or examine the probative value of the evidence or
 the credibility of the witnesses.” Porter v. Sec’y of Health
 & Human Servs., 

663 F.3d 1242

, 1249 (Fed. Cir. 2011); see
 also Cedillo v. Sec’y of Health & Human Servs., 

617 F.3d 1328

, 1338 (Fed. Cir. 2010). At least here, where the chal-
 lenge involves a weighing of evidence, “reversible error is
 extremely difficult to demonstrate if the special master has
 considered the relevant evidence of record, drawn plausible
 inferences and articulated a rational basis for the decision.”
Case: 20-1544      Document: 36     Page: 7    Filed: 12/28/2020

 GREENE   v. HHS                                              7


Lampe, 219 F.3d at 1360

(internal quotation marks omit-
      Under the Vaccine Act, the burden of proof on whether
 the vaccine actually caused the injury rests with the claim-
 ant, who “must show that the vaccine was ‘not only a but-
 for cause of the injury but also a substantial factor in bring-
 ing about the injury.’” 

Lozano, 958 F.3d at 1368

–69 (quot-
 ing Shyface v. Sec’y of Health & Human Servs., 

165 F.3d 1344

, 1352 (Fed. Cir. 1999)). To do so, a claimant must
 prove, by a preponderance of the evidence, three elements
 specified in Althen:
     (1) a medical theory causally connecting the vac-
     cine 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 proxi-
     mate temporal relationship between vaccination

injury. 418 F.3d at 1278

. For the first element, the claimant must
 demonstrate that the vaccine at issue can cause the injury
 alleged. Pafford v. Sec’y of Health & Human Servs., 

451 F.3d 1352

, 1355–56 (Fed. Cir. 2006). For the second ele-
 ment, the claimant “must show that the vaccine was the
 ‘but for’ cause of the harm.”

Id. at 1356.

For the third ele-
 ment, the claimant must prove “that the onset of symptoms
 occurred within a timeframe for which, given the medical
 understanding of the disorder’s etiology, it is medically ac-
 ceptable to infer causation in-fact.” de Bazan v. Sec’y of
 Health & Human Servs., 

539 F.3d 1347

, 1352 (Fed. Cir.
     In this case, the special master agreed that Mr. Greene
 proved the first element, citing expert testimony and the
 “ample prior decisions associating vaccines containing a
 tetanus component with brachial neuritis.” Greene, 

2019 WL 4072110

, at *16. But the special master found that Mr.
 Greene had not proved the other two Althen elements—a
Case: 20-1544     Document: 36      Page: 8   Filed: 12/28/2020

 8                                              GREENE   v. HHS

 logical cause-and-effect sequence and a proximate tem-
 poral relationship between the vaccine and injury.


      On appeal, Mr. Greene principally argues that the spe-
 cial master failed to account adequately for specific pieces
 of evidence, including Mr. Greene’s full medical history and
 certain medical literature relevant to the six-week time
 from vaccine to the onset of brachial neuritis in his case.
 Inf. Br. for Pet. at *1–2. Mr. Greene also seeks relief on the
 grounds that (1) his counsel did not follow his instructions,
 (2) he did not receive a jury trial, and (3) he is entitled to

Id. We review these

contentions in turn, applying
 the required deferential standard of review to factual find-
 ings of the special master. 2
      Regarding Mr. Greene’s challenge to the special mas-
 ter’s treatment of evidence, we note first that Mr. Greene
 cannot now challenge the special master’s 2015 finding
 that the date of onset of his brachial neuritis was forty-one

     2    Mr. Greene mentions certain other contentions
 that, in the Claims Court, did not appear in his counsel-
 signed Memorandum of Objections, but only in an adden-
 dum that the Claims Court rejected because it was not
 signed by counsel (when Mr. Greene was represented). See
 Inf. Br. at *1; Pet. Addendum at *1–2 (filed Sept. 9, 2019).
 Because Mr. Greene has not shown error in the Claims
 Court’s rejection of the addendum, we do not consider con-
 tentions that appeared only in that document.
      In response to Mr. Greene’s request for access to cer-
 tain trial-court record material now that he is proceeding
 pro se, we ordered the government to supply him two tran-
 scripts from the proceedings before the special master, and
 the government did so. We provided Mr. Greene an oppor-
 tunity to file a new brief, but he did not file one.
Case: 20-1544      Document: 36    Page: 9    Filed: 12/28/2020

 GREENE   v. HHS                                            9

 days after vaccination. Although Mr. Greene testified that
 his symptoms began earlier, he did not contest the special
 master’s finding as to the date of onset before the Claims
 Court. Memorandum of Objections for Pet. at 4 n.3 (“While
 Mr. Greene does not agree with [the date of onset as deter-
 mined by the special master], Mr. Greene is not challeng-
 ing the ruling.”). Arguments not properly preserved are
 forfeited. R. Ct. Fed. Cl., Appendix B, Vaccine Rule 8(f)(1)
 (“Any fact or argument not raised specifically in the record
 before the special master will be considered waived and
 cannot be raised . . . on review of a special master’s deci-
     Mr. Greene contends that the special master did not
 consider his “[f]ull medical [h]istory.” Inf. Br. at *1. But
 he has not so demonstrated. The special master considered
 Mr. Greene’s medical records in his decision, noting that
 September 2009 was the first time Mr. Greene experienced
 symptoms of brachial neuritis, that there was no indication
 in the records of any subclinical form of brachial neuritis,
 and that Mr. Greene’s treating physicians never suggested
 in the records any link between his Td vaccine and his bra-
 chial neuritis. Greene, 

2019 WL 4072110

, at *21. Mr.
 Greene has not shown a material failure to consider medi-
 cal records that would affect resolution of the causation is-
 sue once, as required, the binding determination of date of
 onset is accepted.
     Mr. Greene suggests that the special master did not
 consider certain medical-record information. But as to
 some of the information he now cites, the Secretary states
 that the information was not before the special master, and
 Mr. Greene has not indicated, let alone shown, otherwise.
 See Br. of Resp. at 7 (discussing amount of tetanus in Mr.
 Greene’s body and number of tetanus-containing vaccines
 he received). In any event, Mr. Greene has not shown that
 the special master failed to consider medical-record
Case: 20-1544    Document: 36     Page: 10   Filed: 12/28/2020

 10                                           GREENE   v. HHS

 information that was before him and material to causation
 given the date of onset.
      The only medical-record information Mr. Greene iden-
 tifies as placed before the special master is the record in-
 formation considered at the special master’s hearing to
 determine the date of onset of Mr. Greene’s symptoms. See
 Addendum for Pet. at *2. Mr. Greene notes that the special
 master credited the records of physician Dr. Jeffery Watts,
 but required testimony about other treating physicians’
 records needing clarification—notably, those of Dr. Chu.

Id. Mr. Greene has

not shown error in this regard, much
 less error material to the causation question. The special
 master had good reason to scrutinize Dr. Chu’s records be-
 cause they, unlike Dr. Watts’s records, suggested conflict-
 ing symptom-appearance dates.           Ruling Regarding
 Findings of Fact, No. 11-631V, ECF No. 56, at *12 (July 31,
 2015). Dr. Chu, in his testimony, explained the different
 date references as applying to an incident, on one hand,
 and symptom appearance, on the other. See Testimony of
 Dr. Chu, ECF No. 53, Tr. 23–24, 27 (Mar. 25, 2015). The
 special master reasonably credited the explanation in find-
 ing the date of onset. Mr. Greene has not shown otherwise.
 He also has not shown how requiring Dr. Watts to testify
 as to the accuracy of his records could cast doubt on the
 special master’s inferences drawn from the records dis-
 cussed or why even if one adopted Mr. Greene’s interpreta-
 tion of Dr. Chu’s records, the special master had to view
 those records, dated over a month after Mr. Greene first
 reported to the emergency room with symptoms of brachial
 neuritis, should be considered as more persuasive than the
 contemporaneous records from Mr. Greene’s other treating
 physicians, all of whom indicated that the symptoms began
 in September 2009. See Cucuras v. Sec’y of Health & Hu-
 man Servs., 

993 F.2d 1525

, 1528 (Fed. Cir. 1993) (Contem-
 poraneous “[m]edical records, in general, warrant
 consideration as trustworthy evidence.”).
Case: 20-1544      Document: 36    Page: 11    Filed: 12/28/2020

 GREENE   v. HHS                                            11

     Mr. Greene has not shown lack of substantial evidence
 to support the determination of what those records as a
 whole showed or failed to show about a cause-effect connec-
 tion between the vaccine and the brachial neuritis in Mr.
 Greene’s case. The Claims Court concluded that one of the
 special master’s three subsidiary findings was deficient—
 the finding that it was significant that the records did not
 reveal “subclinical” evidence of brachial neuritis. Greene,

2019 WL 4072110

, at *21. But the Claims Court also con-
 cluded that the other two findings about the records were
 adequately supported and themselves allowed the special
 master to find that the records as a whole undermined ra-
 ther than supported the claim of causation of the injury by
 the vaccine. We agree.
       The special master found that Mr. Greene did not ex-
 perience symptoms of brachial neuritis until September
 2009, nearly six weeks after receiving his Td vaccine but
 only days after suffering an injury from physical exertion,
 thus presenting a plausible alternative cause.

Id. at *21– 22.

The special master also found that Mr. Greene’s medi-
 cal records indicated that none of Mr. Greene’s treating
 doctors had suggested in the records that his symptoms
 were caused by his Td vaccine.

Id. Such “medical records

 . . . are favored in vaccine cases, as treating physicians are
 likely to be in the best position to determine whether ‘a log-
 ical sequence of cause and effect show[s] that the vaccina-
 tion was the reason for the injury.’” Capizzano v. Sec’y of
 Health & Human Servs., 

440 F.3d 1317

, 1326 (Fed. Cir.
 2006) (alteration in original) (quoting 

Althen, 418 F.3d at 1280

); see also 

Cucuras, 993 F.2d at 1528

. The special mas-
 ter’s findings are plausibly drawn from the records as a
 whole. See 

Cedillo, 617 F.3d at 1338

. We reject Mr.
 Greene’s challenge to the special master’s determination
 that Mr. Greene did not establish a logical cause-and-effect
 relationship between vaccine and injury by a preponder-
 ance of the evidence.
Case: 20-1544    Document: 36     Page: 12    Filed: 12/28/2020

 12                                            GREENE   v. HHS

      Mr. Greene argues that the special master did not ad-
 equately consider certain medical literature bearing on
 whether he established a proximate temporal relationship
 between his vaccine and his brachial neuritis under the
 third requirement of Althen. 3 We reject this contention on
 its merits, while noting that, in any event, the special mas-
 ter’s finding as to the cause-and-effect relationship inde-
 pendently supports affirmance here.
     In his decision, the special master thoroughly reviewed
 several of the articles presented by the parties and the tes-
 timony given by their experts. Greene, 

2019 WL 4072110

 at *3–13. On that basis, the special master found that, for
 brachial neuritis, an onset no earlier than six weeks after
 the vaccine was not temporally proximate. In particular,
 the special master relied on his finding that Dr. Lancaster
 credibly showed that the studies on which Mr. Greene prin-
 cipally relied—which concerned the onset of GBS—were
 not a persuasive foundation for a finding that six weeks
 was temporally proximate for brachial neuritis, a different

Id. at *16–21.

     Mr. Greene suggests a failure on the part of the special
 master to consider certain significant medical literature.
 “We generally presume that a special master considered
 the relevant record evidence even though he does not ex-
 plicitly reference such evidence in his decision.” Moriarty
 v. Sec’y of Health & Human Servs., 

844 F.3d 1322

, 1328
 (Fed. Cir. 2016); see also Hazlehurst v. Sec’y of Health &
 Human Servs., 

604 F.3d 1343

, 1352 (Fed. Cir. 2010) (same).

      3  Mr. Greene describes this literature as addressing
 “Parsonage Turner Syndrome.” Inf. Br. at *1. The parties
 and their experts agree that some medical literature refers
 to brachial neuritis by that name. See Greene, 

2019 WL 4072110

, at *1 n.3.
Case: 20-1544      Document: 36   Page: 13    Filed: 12/28/2020

 GREENE   v. HHS                                           13

 And here, Mr. Greene has not shown that the special mas-
 ter failed to consider any literature that was presented to
 the special master and needed to be discussed, over and
 above the literature that was discussed, in order for a find-
 ing to be sufficiently supported.
      The only literature that Mr. Greene has identified as
 not adequately addressed is not helpful to his case or is
 merely cumulative of the literature that the special master
 did discuss. Specifically, Mr. Greene identifies: (1) pages
 taken from a report on the 1966 “proceedings of the inter-
 national conference on tetanus,” Addendum for Pet. at *8–
 11; (2) a 1948 study discussing “Shoulder-Girdle” syndrome
 and its relationship to “injection of serum,”

id. at *12–17; (3)

a 1985 study reviewing medical personnel for compli-
 ance with tetanus vaccination guidelines

, id. at *18–21; (4)

 a sentence from the abstract of an investigation of the “de-
 toxification mechanism of formaldehyde-treated tetanus

id. at *22–23;

and (5) a page from the New England
 Journal of Medicine (dated 1969) that discusses the preva-
 lence of tetanus and suggests a schedule for vaccination

, id. at *28.

This literature, even if properly raised, focuses
 on the pathology of tetanus and the proper dosage and pro-
 cedures for administering a Td vaccine. None of the docu-
 ments even mentions GBS or brachial neuritis, let alone
 provides evidence that symptoms like Mr. Greene’s could
 arise within forty-two days from receiving a Td vaccine.
     Therefore, Mr. Greene has not shown how the special
 master’s finding about temporal proximity could reasona-
 bly have been altered by this literature, given what Mr.
 Greene’s experts said about this literature and the special
 master’s crediting of Dr. Lancaster’s response to Mr.
 Greene’s evidence. The evidence Mr. Greene says was not
 adequately considered was, in context, essentially redun-
 dant of or irrelevant to the evidence the special master ex-
 pressly discussed.
Case: 20-1544    Document: 36      Page: 14    Filed: 12/28/2020

 14                                             GREENE   v. HHS

     Mr. Greene also challenges the special master’s consid-
 eration of expert testimony pertaining to the relationship
 between brachial neuritis and GBS. Inf. Br. at *1 (citing
 Addendum for Pet. at *2). He argues specifically that Dr.
 Lancaster “never gave the differences between Parsonage
 Turner Syndrome, [b]rachial [n]euritis, and GBS.” Adden-
 dum for Pet. at *2. Mr. Greene contends that this is error
 because the special master ultimately found that GBS and
 brachial neuritis were sufficiently different, such that evi-
 dence that GBS could occur more than six weeks after Td
 vaccination was not helpful in determining a medically rea-
 sonable date of onset for brachial neuritis.

Id. Contrary to Mr.

Greene’s assertion, the special master
 expressly addressed the differences between GBS and bra-
 chial neuritis (the latter also named Parsonage Turner
 Syndrome). The special master, in reviewing Dr. Lancas-
 ter’s testimony, noted that “Dr. Lancaster . . . took issue
 with the efforts of [Mr. Greene’s] experts to borrow GBS
 onset timeframes for this case, stressing the differences in
 the two conditions.” Greene, 

2019 WL 4072110

, at *11; see
 also Testimony of Dr. Lancaster, ECF No. 139, Tr. 87–90
 (May 9, 2019) (explaining the “several important differ-
 ence” between GBS and brachial neuritis). The special
 master devoted two full paragraphs of his opinion to Dr.
 Lancaster’s testimony about the distinctions between GBS
 and brachial neuritis (relating to their distinct pathologies
 and their defining symptoms). Greene, 

2019 WL 4072110

 at *11. That testimony provides support for the special
 master’s determination that “[d]espite some of their com-
 mon features, GBS is simply not sufficiently comparable to
 brachial neuritis to apply the same onset timeframe to

Id. at *18.

Because the special master considered
 and weighed evidence concerning the relationship between
 GBS and brachial neuritis, we do not disturb his findings
 as to their dissimilarities or the reasonableness of forty-two
 days as the time of onset for brachial neuritis.
Case: 20-1544      Document: 36    Page: 15     Filed: 12/28/2020

 GREENE   v. HHS                                             15

     We conclude that the special master did not commit re-
 versible error in finding no proven temporal proximity un-
 der Althen.
     Mr. Greene raises several other issues on appeal, none
 of which calls for disturbing the judgment on appeal.
     First, he argues that he was entitled to a jury trial. Inf.
 Br. at *2. But the Vaccine Act does not authorize juries to
 hear entitlement claims. Rather, in enacting the Vaccine
 Act, Congress authorized special masters at the Office of
 Special Masters to adjudicate claims to entitlement. 42
 U.S.C. § 30aa-12. Nor does the jury-trial right stated in the
 Seventh Amendment to the Constitution apply to a mone-
 tary claim such as this one brought against the United
 States as sovereign. See Lehman v. Nakshian, 

453 U.S. 156

, 160 (1981); Galloway v. United States, 

319 U.S. 372

 388–89 (1943); Washington Int’l Ins. Co. v. United States,

863 F.2d 877

, 878–79 (Fed. Cir. 1988).
      Next, Mr. Greene argues that he is entitled to an award
 of litigation costs and fees under the Vaccine Act, 42 U.S.C.
 § 300aa-15(e). Inf. Br. at *1–2. His request for fees and
 costs, however, is still pending in the Claims Court and is
 not properly part of the present appeal.
     Finally, Mr. Greene expresses dissatisfaction with his
 counsel’s conduct during the proceedings before the special
 master and the Claims Court. Inf. Br. at *1. He did not
 properly present this grievance to the Claims Court, how-
 ever, and the issue is therefore not preserved for purposes
 of this appeal. Vaccine Rule 8(f)(1). Timely initial presen-
 tation to the trial court of such a claim is especially im-
 portant given the Supreme Court’s long recognition of a
 strong rule that “each party is deemed bound by the acts of
 his lawyer-agent.” Link v. Wabash R.R. Co., 

370 U.S. 626

 634 (1962); see also Pioneer Investment Servs. Co. v.
Case: 20-1544    Document: 36      Page: 16   Filed: 12/28/2020

 16                                            GREENE     v. HHS

 Brunswick Assocs. Ltd. Partnership, 

507 U.S. 380

, 397
 (1993); Smith v. Ayer, 

101 U.S. 320

, 326 (1879).
    For the foregoing reasons, the judgment of the Claims
 Court is affirmed.
      The parties shall bear their own costs on appeal.
Case: 20-1544   Document: 36      Page: 17   Filed: 12/28/2020

         NOTE: This disposition is nonprecedential.

    United States Court of Appeals
        for the Federal Circuit

                     ROY GREENE,




    Appeal from the United States Court of Federal Claims
 in No. 1:11-vv-00631-MMS, Chief Judge Margaret M.

 O’MALLEY, Circuit Judge, dissenting.
     Because I agree with the United States Court of Fed-
 eral Claims that the special master’s credibility findings
 were arbitrary and capricious and because multiple other
 findings are unsupported by the record, I would reverse the
 special master’s determination and remand. I, accord-
 ingly, respectfully dissent.

Add comment