VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-01455
Package ID: USCOURTS-cofc-1_15-vv-01455
Petitioner: Stephanie DiMasi
Filed: 2015-12-02
Decided: 2019-11-07
Vaccine: influenza
Vaccination date: 2012-12-04
Condition: small fiber neuropathy and postural orthostatic tachycardia syndrome (POTS)
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Stephanie DiMasi alleged that an influenza vaccination administered on December 4, 2012, caused her small fiber neuropathy and postural orthostatic tachycardia syndrome (POTS). The case proceeded as an off-Table claim, with Ms. DiMasi arguing causation-in-fact. However, the Special Master found that Ms. DiMasi's medical records indicated symptoms related to small fiber neuropathy and POTS predated the vaccination, dating back to at least 2008. Because Ms. DiMasi explicitly stated she was not pursuing a significant aggravation claim, and the evidence showed pre-existing conditions, her claim for compensation was denied. Judgment was entered on December 11, 2019. Ms. DiMasi later sought relief from judgment, alleging attorney abandonment and missed deadlines. The Special Master denied these motions, finding no extraordinary circumstances or attorney abandonment, and that Ms. DiMasi had not diligently acted to preserve her rights. This decision was subsequently reviewed and upheld by the Court of Federal Claims, which found no abuse of discretion in the Special Master's denial of relief.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-01455-0
Date issued/filed: 2019-12-16
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 11/07/2019) regarding 89 DECISION of Special Master. Signed by Special Master Christian J. Moran. (abs) Service on parties made.
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Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
STEPHANIE DIMASI, * No. 15-1455V
* Special Master Christian J. Moran
Petitioner, *
* Filed: November 7, 2019
v. *
* Entitlement, motion for ruling on the
SECRETARY OF HEALTH * record, influenza (“flu”) vaccination,
AND HUMAN SERVICES, * small fiber neuropathy, postural
* orthostatic tachycardia syndrome
Respondent. * (“POTS”)
* * * * * * * * * * * * * * * * * * * * *
Howard S. Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Stephanie DiMasi alleged that an influenza vaccination was the “causation-
in-fact” of her small fiber neuropathy and postural orthostatic tachycardia
syndrome (“POTS”). Pet’r’s Am. Mot., July 7, 2019, at 1. Ms. DiMasi has
specifically denied that her conditions pre-dated the influenza vaccination and,
relatedly, does not allege a significant aggravation claim. Id. at 21. Following the
submission of expert reports, the parties agreed that the record was complete. Ms.
DiMasi declined to offer any oral testimony at a hearing and moved for a ruling on
the record.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website (https://www.uscfc.uscourts.gov/aggregator/sources/7). Thus, anyone can access the
decision via the internet. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a
motion proposing redaction of medical information or other information described in 42 U.S.C. §
300aa-12(d)(4). Any redactions ordered by the special master will appear in the document
posted on the website.

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 2 of 9
The evidence supports a finding that Ms. DiMasi’s conditions pre-dated the
influenza vaccination. Thus, Ms. DiMasi has not established that she is entitled to
compensation.
I. Factual Overview2
Because whether Ms. DiMasi’s symptoms existed before the vaccination is
critical, her pre-vaccination medical history is presented more extensively.
A. Before the December 4, 2012 vaccination
At a hospital admission on March 19, 2008, Ms. DiMasi reported near
syncope and premature ventricular contractions. Exhibit 6 at 52, exhibit 11 at 11.
The record noted that Ms. DiMasi had an event monitor to track the status of her
heart. Id. A subsequent MRI of Ms. DiMasi’s internal auditory canals and brain
along with an ultrasound of Ms. DiMasi’s lower extremities were found to be
normal. Exhibit 11 at 13 (March 2008 ultrasound), 14 (April 2008 MRI).
In May and June 2009, Ms. DiMasi engaged in physical therapy to address
cervical/thoracic spine issues. Exhibit 15 at 1-3. At an August 11, 2009
appointment with Dr. Fischer, a neurologist, Ms. DiMasi reported headaches that
interrupted her sleep. Id. at 3. The record for Ms. DiMasi’s appointment listed
many problems, including peripheral neuropathy, palpitations, premature
ventricular contractions, and migraine headaches. Id.
On November 2, 2009, Ms. DiMasi was again admitted to the hospital for
near syncope and a history of palpitations was noted. Exhibit 16 at 12-13, 27, 34.
On December 7, 2009, Ms. DiMasi saw Dr. Rho complaining of intermittent
episodes of mild dizziness for the last month. Exhibit 15 at 6. Dr. Rho attributed
her symptoms to migraine-associated vertigo. Id.
In later medical records, Ms. DiMasi asserts that she received the 2011
influenza vaccination and reported that she had mild tachycardia, lightheadedness,
and dizziness for 30 minutes. Exhibit 17 at 28 (July 14, 2015 appointment with
Dr. Cros). Ms. DiMasi has not submitted any medical records to document her
2 The undersigned has reviewed all the records. However, this decision does not recite all
of them.
2

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 3 of 9
2011 influenza vaccination or instances where she reported the alleged symptoms
at any point soon after the 2011 vaccination.
At an April 18, 2012 follow-up appointment with Dr. Fischer, Ms. DiMasi
complained of “intermittent tingling behind her knees and upper calves,
particularly when she sits for prolonged periods of time.” Exhibit 15 at 17. In the
record for the visit, a “neurology problem list” identifies migraine headache,
fibromyalgia, and intermittent vertigo. Id. At an August 14, 2012 visit with Dr.
Fisher, Ms. DiMasi described an incident in May with a “headache loss of
memory,” possibly a syncopal event, that may have been caused by alcohol
consumption. Id. at 21. Ms. DiMasi said she was assessed at a local hospital after
this incident, but Dr. Fischer noted that he did not have the records for that visit.
Id.3
On December 4, 2012, Ms. DiMasi received an influenza vaccination.
Exhibit 3. She then saw several doctors in December 2012.
B. After the December 4, 2012 vaccination
On December 5, 2012, Ms. DiMasi saw her primary care provider, Dr. Sen,
and reported some tachycardia and a “weird” sense of throat tightening. Exhibit 6
at 46. Dr. Sen noted that Ms. DiMasi had a history of premature ventricular
contractions, determined that the EKG did not have the same results, and
transferred Ms. DiMasi to the hospital via ambulance for further testing. After
spending the night at the emergency room, Ms. DiMasi was discharged with a
diagnosis of tachycardia. Exhibit 13 at 12. On December 8, 2012, Ms. DiMasi
returned to the hospital complaining of neurological symptoms in her left leg.
Exhibit 6 at 48. She was discharged with a diagnosis of elevated blood pressure.
Exhibit 13 at 15.
Ms. DiMasi went back to see Dr. Sen on December 10, 2012, complaining
of dizziness, left leg neurological symptoms, weakness, and palpitations. Exhibit 6
at 48. On December 12, 2012, Ms. DiMasi visited Dr. Stone, a cardiologist, who
noted that she had fewer palpitations since stopping caffeine. Exhibit 5 at 4.
3 It does not appear that the medical records for this hospital visit are in the record.
3

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 4 of 9
Ms. DiMasi saw Dr. Chen at a neurology outpatient clinic on December 19,
2012, and reported that “immediately after the flu shot she had a sensation of
dizziness, tachycardia, shakiness, generalized weakness and tingling behind the
right knee.” Exhibit 13 at 17. After the vaccination, Ms. DiMasi said she “was
monitored for 1 - 1/2 hours and her blood pressure was noted be elevated along
with tachycardia. The symptoms subsided a little bit and she was discharged
home.” Id. In his impressions, Dr. Chen found it “hard to explain what could
cause such a rapid response.” Id. at 18.
On December 27, 2012, at a follow-up with Dr. Fischer, Ms. DiMasi
described an “immediate response” after the vaccination, “within a few minutes,”
of a rapid heart rate, dizziness, tingling and numbness rising from left leg up her
back. Exhibit 7 at 1. In his assessment, Dr. Fischer noted that “given the unilateral
nature of the symptoms, it is somewhat difficult to understand how the injection
could result in these symptoms.” Id. at 4. This December 27, 2012 appointment
with Dr. Fischer was the last appointment in December 2012.
Ms. DiMasi’s symptoms continued in waxing and waning course without
much clarity on a diagnosis throughout 2013.4 On May 19, 2014, Dr. Gorson, a
neurologist, suggested that a diagnosis of POTS could possibly explain Ms.
DiMasi’s recurrent tachycardia and dizziness. Exhibit 10 at 2.
On May 20, 2015, Dr. Kaplan, a neurology resident, offered an alternative
opinion that Ms. DiMasi’s symptoms were the result of an HSV-2 recurrence.
Exhibit 8 at 1-3. Another alternative explanation was offered on June 2, 2015, by
Dr. Shoap, a cardiologist, who knew Ms. DiMasi personally from working
together. Dr. Shoap was “convinced that this is all anxiety, hyperventilation –
psychoneurotic and is not ‘organic.’” Exhibit 14 at 108.
On August 8, 2016, Dr. Bhattacharyya, a neurologist, stated Ms. DiMasi’s
course of symptoms “would best fit with post-flu small fiber neuropathy,” but
noted that they were still “work[ing] to figure out her syndrome.” Exhibit 21 at 4.
4 These records have been reviewed but are not addressed individually here.
4

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 5 of 9
On October 20, 2016, Dr. Novak, a neurologist, conducted autonomic testing
and a skin biopsy. Based upon the results of that testing, Dr. Novak diagnosed Ms.
DiMasi with (1) small fiber neuropathy, (2) POTS (most likely due to the small
fiber neuropathy), (3) baroreflex failure, and (4) mild autonomic failure (due to
small fiber neuropathy). Exhibit 23 at 9. While Ms. DiMasi has continued to seek
treatment, the medical records described thus far are the most relevant for
adjudicating Ms. DiMasi’s vaccine claim.
II. Procedural History
Ms. DiMasi alleged that the December 4, 2012 influenza vaccination caused
her to develop peripheral neuropathy. Pet., filed Dec. 2, 2015, at 1. Ms. DiMasi
submitted her medical records and a statement of completion on February 19,
2016. After outstanding medical records were identified by the Secretary, Ms.
DiMasi submitted additional records.
On September 19, 2016, the Secretary filed his Rule 4 report recommending
against compensation. In the report, the Secretary noted that Ms. DiMasi had a
complex medical history preceding the vaccination, that she complained of tingling
more than six months before the vaccination, and she reported tingling minutes
after the vaccination. Resp’t’s Rep. at 2, 7-8.
After a few extensions of time, Ms. DiMasi filed an expert report from Dr.
Marcel Kinsbourne on March 27, 2017. Dr. Kinsbourne did not address Ms.
DiMasi’s pre-vaccination medical history that was discussed in the Rule 4 report
and noted Dr. Novak’s diagnosis of small fiber neuropathy5 and POTS. Exhibit 24
at 2, 4. Dr. Kinsbourne concluded that the influenza vaccine caused Ms. DiMasi to
develop small fiber neuropathy within a day. Id. at 8.
Following some additional extensions of time, the Secretary filed an expert
report from Dr. Thomas Leist on October 26, 2017. Dr. Leist detailed Ms.
DiMasi’s pre-vaccination history back to 2008 noting recurring episodes of
syncope/near syncope, palpitations, and tachycardia. Exhibit A at 1-2, 9. Dr. Leist
concluded that Ms. DiMasi had small fiber neuropathy prior to the influenza
vaccination. Id. at 9. Dr. Leist then filed a supplemental expert report to address
diagnosis and medical theory. Exhibit E, filed Jan. 5, 2018. Dr. Leist expanded
5 Dr. Kinsbourne describes Ms. DiMasi’s condition as acute autonomic and sensory
neuropathy (“AASN”), a subset of small fiber neuropathy, but, given the grounds for this
decision, Ms. DiMasi’s condition will be referred to as “small fiber neuropathy” for the sake of
simplicity.
5

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 6 of 9
this opinion to deny that the influenza vaccination significantly aggravated Ms.
DiMasi’s pre-existing small fiber neuropathy. Id. at 1-2.
On May 18, 2018, Ms. DiMasi filed a supplemental expert report from Dr.
Kinsbourne. In the report, Dr. Kinsbourne acknowledged Dr. Leist’s description of
pre-vaccination episodes of syncope/near syncope, palpitations, and tachycardia.
Dr. Kinsbourne explained these problems are not surprising as it is “not unusual
for the onset of POTS to be preceded by miscellaneous episodes of dysautonomia.”
Exhibit 25 at 2.
At a status conference on May 30, 2018, the parties decided to explore
settlement before proceeding with further litigation. After submitting progress
reports on settlement, a status conference was held on October 3, 2018, to discuss
next steps. The Secretary stated his intent to defend the case, and Ms. DiMasi
requested adjudication of the case based on the existing record, without any oral
testimony taken at a hearing. Thus, the undersigned issued an order for
submissions describing in detail the preferred components of the parties’ filings.
Order, issued Oct. 4, 2018.
After Ms. DiMasi had submitted a motion for ruling on the record, the
Secretary had submitted a response, and Ms. DiMasi concluded with a reply, a
status conference was held on May 29, 2019. The undersigned noted several
aspects of the filings that did not comply with the October 4, 2018 order for
submissions. A new briefing schedule was set to allow the parties to remedy their
submissions. Order, issued May 29, 2019.
On July 7, 2019, Ms. DiMasi filed an amended motion for ruling on the
record. The Secretary filed an amended response on August 9, 2019. Ms. DiMasi
did not file a reply. This matter is now ripe for adjudication.
III. Standards for Adjudication
The authority giving special masters the discretion to either hold an
evidentiary hearing or to decide the case on the written record is 42 U.S.C. §
300aa-12(d)(3)(B)(v) (promulgated as Vaccine Rule 8(c) & (d)), which was cited
by the Federal Circuit in D'Tiole v. Sec'y of Health & Human Servs., 726 F. App'x
809, 812 (Fed. Cir. 2018) (holding that a special master did not abuse his discretion
by deciding a case without holding an evidentiary hearing).
Petitioners are required to prove their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(a)(1). The preponderance of the evidence
standard, in turn, has been interpreted to mean that a fact is more likely than not.
6

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 7 of 9
Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir.
2010). Proof of medical certainty is not required. Bunting v. Sec’y of Health &
Human Servs., 931 F.2d 867, 873 (Fed. Cir. 1991).
Distinguishing between “preponderant evidence” and “medical certainty” is
important because a special master should not impose an evidentiary burden that is
too high. Andreu v. Sec'y of Health & Human Servs., 569 F.3d 1367, 1379-80
(Fed. Cir. 2009) (reversing special master's decision that petitioners were not
entitled to compensation); see also Lampe v. Sec'y of Health & Human Servs., 219
F.3d 1357 (Fed. Cir. 2000); Hodges v. Sec'y of Health & Human Servs., 9 F.3d
958, 961 (Fed. Cir. 1993) (disagreeing with dissenting judge's contention that the
special master confused preponderance of the evidence with medical certainty).
IV. Analysis
Initially, both parties accept Dr. Novak’s October 20, 2016 diagnosis of Ms.
DiMasi to include small fiber neuropathy and POTS. Pet’r’s Am. Mot. at 7;
Resp’t’s Am. Resp. at 7-8 (citing exhibit 23 at 9 (Dr. Novak’s records)). However,
the parties disagree on when Ms. DiMasi first developed these conditions. If the
petitioner’s injury was present before the vaccine was administered, it is not
necessary to conduct a complete analysis pursuant to Althen v. Sec’y of Health &
Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Locane v. Sec'y of Health &
Human Servs., 685 F.3d 1375, 1380-81 (Fed. Cir. 2012). Thus, a critical question
is when Ms. DiMasi first displayed symptoms of small fiber neuropathy and/or
POTS.
For the diagnostic criteria of small fiber neuropathy, both Ms. DiMasi and
the Secretary rely on the Lacomis article (exhibit 24-M).6 Pet’r’s Am. Mot. at 7;
Resp’t’s Am. Resp. at 12. Lacomis states that individuals with small fiber
neuropathy present with tingling, burning, prickling, shooting pain or aching, and
sometimes can experience numbness, tightness, or coldness rather than pain.
Exhibit 24-M at 2. For the diagnostic criteria of POTS, both Ms. DiMasi and the
Secretary rely on the Grubb article (exhibit 24-H).7 Pet’r’s Am. Mot. at 8; Resp’t’s
Am. Resp. at 13. Grubb states that individuals with POTS present with
tachycardia, palpitations, tremulousness, nausea, sweating, and increased blood
pressure. Exhibit 24-H at 2. Grubb notes additional symptoms for POTS, notably
6 David Lacomis, Small-Fiber Neuropathy, 26 Muscle Nerve 173-88 (2002).
7 Blair P. Grubb et al., The Postural Tachycardia Syndrome: A Concise Guide to
Diagnosis and Management, 17(1) J. Cardiovasc. Electrophysiol. 108-12 (2006).
7

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 8 of 9
including lightheadedness, near syncope, and syncope, with more than half of
patients suffering from migraine headaches. Id. at 1.
Relying on Dr. Leist, the Secretary argues that Ms. DiMasi’s pre-vaccination
medical history of syncope/near syncope, palpitations, and tachycardia establishes
that Ms. DiMasi had small fiber neuropathy and POTS since at least 2008.8
Resp’t’s Am. Resp. at 13; exhibit A at 9; exhibit E at 1. Reviewing these pre-
vaccination symptoms, Ms. DiMasi first reported an episode of near syncope on
March 19, 2008, another episode of near syncope on November 2, 2009, and a
possibly alcohol-induced syncope in May 2012. Exhibit 6 at 52; exhibit 16 at 12;
exhibit 15 at 21. On August 11, 2009, Ms. DiMasi complained to Dr. Fischer of
headache issues and her problem list included palpitations and migraine headaches.
Exhibit 15 at 3. On December 7, 2009, Ms. DiMasi complained to Dr. Rho of
intermittent mild dizziness for the last month, a reoccurring problem that had
returned. Dr. Rho attributed the dizziness to migraine-associated vertigo. Id. at 6.
Ms. DiMasi complained of intermittent tingling behind her knees and upper calves
to Dr. Fischer on April 18, 2012. Exhibit 15 at 17. Dr. Fischer noted that Ms.
DiMasi experienced the tingling “particularly when she sits for prolonged periods
of time.” Id. The use of “particularly” indicates that Ms. DiMasi had been
experiencing tingling for long enough to recognize patterns of when the sensation
would come and go.
Dr. Kinsbourne acknowledges Dr. Leist’s citing of pre-vaccination episodes
of syncope/near syncope, palpitations, and tachycardia, stating that “[it] is not
unusual for the onset of POTS to be preceded by miscellaneous episodes of
dysautonomia.” Exhibit 25 at 2. Moreover, Dr. Kinsbourne notes that migraines,
which Ms. DiMasi had since at least 2008, are a “frequent concomitant of POTS,”
and that “small fiber neuropathy and POTS are frequent associates.” Exhibit 24 at
6. Dr. Kinsbourne categorically stated that “there had been no record of Ms.
DiMasi experiencing symptoms of neuropathy before the vaccination.” Exhibit 25
at 2. However, Dr. Leist noted that Ms. DiMasi’s pre-vaccination medical history
included peripheral neuropathy, exhibit A at 1 (citing exhibit [15] at 3, Aug. 11,
2009 appointment), and opined, as detailed above, that Ms. DiMasi had small fiber
neuropathy for at least a few years before the vaccination.
In her amended motion for ruling on the record, Ms. DiMasi does not
address any of her medical history before 2012. See Pet’r’s Am. Mot.
8 The medical records in this case only go back to 2008.
8

Case 1:15-vv-01455-AOB Document 91 Filed 12/16/19 Page 9 of 9
The undersigned finds that the evidence supports Ms. DiMasi having
symptoms related to her small fiber neuropathy and POTS before the December 4,
2012 influenza vaccination. The presence of problems before a vaccination could
serve as a predicate for an alternative cause of action—that the vaccination
significantly aggravated the pre-existing problem. However, Ms. DiMasi
explicitly stated that she is not pursuing a significant aggravation claim. Pet’r’s
Am. Mot. at 21. Thus, the undersigned will not address whether Ms. DiMasi’s pre-
existing symptoms worsened after the vaccination.
V. Conclusion
The evidence supports Ms. DiMasi having symptoms related to her small
fiber neuropathy and POTS before the December 4, 2012 influenza vaccination.
Thus, because Ms. DiMasi has pre-existing symptoms and declined to allege a
significant aggravation claim, she is foreclosed from receiving compensation for
her vaccine claim. Ms. DiMasi’s petition for compensation is DENIED for
insufficient evidence.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
9

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DOCUMENT 2: USCOURTS-cofc-1_15-vv-01455-2
Date issued/filed: 2022-04-19
Pages: 6
Docket text: JUDGE VACCINE UNREPORTED OPINION AND ORDER reissued (Originally filed April 4, 2022) 129 ORDER DENYING 123 Motion for Review and the 122 decision of the Special Master denying petitioner's motion for relief from judgment is SUSTAINED. Signed by Judge Armando O. Bonilla. (ead) Service on parties made.
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Case 1:15-vv-01455-AOB Document 132 Filed 04/19/22 Page 1 of 6
In the United States Court of Federal Claims
No. 15-1455V
(Filed: April 4, 2022)
*Reissued on: April 19, 2022
NOT FOR PUBLICATION
)
)
S TEPHANIE DIMASI,
)
Petitioner,
)
v.
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent.
)
Stephanie V. DiMasi, pro se petitioner.
Claudia B. Gangi, Senior Trial Attorney, Torts Branch, Civil Division, U.S. Department of
Justice, Washington, D.C., for respondent.
OPINION AND ORDER
BONILLA, Judge.
Petitioner Stephanie V. DiMasi filed a petition under the National Childhood Vaccine
Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (2012), seeking compensation for
injuries she allegedly sustained following an influenza vaccine administered on December 4,
2012. The Special Master issued a decision denying entitlement on November 7, 2019.
Judgment was entered on December 11, 2019, after petitioner did not file a motion for review.
Petitioner subsequently moved for relief from judgment pursuant to Rule 60(b) of the Rules of
the United States Court of Federal Claims (RCFC), arguing that her former counsel abandoned
her and caused petitioner to miss the filing deadline. The Special Master denied the motion on
November 10, 2021.
Pursuant to Rule 36 of the Vaccine Rules of the Court of Federal Claims (Vaccine Rules),
RCFC App. B., petitioner now seeks this Court’s review of the Special Master’s denial of her
motion for relief from judgment. Because petitioner failed to timely seek review of the Special
Master’s November 7, 2019 entitlement decision, the sole issue properly before this Court is
whether the Special Master abused his discretion in denying petitioner’s motions to reopen and
for reconsideration on November 10, 2021. For the reasons set forth below, the Court concludes
that the Special Master did not. Accordingly, petitioner’s motion for review is denied.

Case 1:15-vv-01455-AOB Document 132 Filed 04/19/22 Page 2 of 6
BACKGROUND
The petition in this case was filed on December 2, 2015, by petitioner’s former attorney,
Howard S. Gold. Petitioner alleged that she suffered injuries following an influenza vaccine
administered on December 4, 2012, and that the vaccine was the causation-in-fact of her injuries.
On November 7, 2019, the Special Master issued a decision denying entitlement. DiMasi v.
Sec’y of Health & Hum. Servs., No. 15-1455V, 2019 WL 6878732 (Fed. Cl. Spec. Mstr. Nov. 7,
2019). The Special Master found that petitioner’s pre-December 4, 2012 medical records
documenting symptoms related to her claimed vaccine-induced medical condition, coupled
with petitioner’s decision to forego a significant aggravation claim, barred her claim for
compensation. Id. at *5. A motion for review was not filed and, in accordance with Vaccine
Rule 11(a), judgment was entered on December 11, 2019.1
On September 15, 2020 – nine months after the entry of judgment on petitioner’s
entitlement claim – petitioner moved to proceed pro se and to reopen her case. In support of
her requests for relief, petitioner asserted that her former counsel abandoned her and failed to
timely file a motion for review of the Special Master’s November 7, 2019 entitlement decision.
The Special Master granted petitioner’s motion to substitute counsel and proceed pro se on
September 22, 2020. Thereafter, on June 3, 2021, after initially deferring his ruling on the
motion to reopen to request additional information, including from petitioner’s former counsel,
the Special Master denied the petitioner’s request for relief. On June 25, 2021, in response to
petitioner’s motion for reconsideration, the Special Master vacated the June 3, 2021 order,
and again requested supplemental briefing.
On November 10, 2021, the Special Master issued a final decision denying petitioner’s
motion for reconsideration.2 DiMasi v. Sec’y of Health & Hum. Servs., No. 15-1455V, slip op.
(Fed. Cl. Spec. Mstr. Nov. 10, 2021). In addressing petitioner’s attorney abandonment claim,
the Special Master found that petitioner “has not shown that her attorney’s work was deficient,
let alone so poor that a miscarriage of justice occurred.” Id. at 2. Turning first to petitioner’s
pre-vaccination medical history, the Special Master explained that his independent review of
the medical records, expert reports, and medical literature – not counsel’s representations –
dictated the critical factual findings underlying the entitlement decision (i.e., pre-vaccination
1 In an order dated July 13, 2020, the Special Master granted petitioner’s motion for attorney’s fees and costs in the
aggregate amount of $48,108.49, payable to the Gold Law Firm LLC. DiMasi v. Sec’y of Health & Hum. Servs.,
No. 15-1455V, 2020 WL 4581287 (Fed. Cl. Spec. Mstr. July 13, 2020). The following day, on July 14, 2020,
counsel for petitioner and respondent filed a joint notice not to seek review of the attorney’s fees order and judgment
was immediately entered in the court-ordered amount.
2 The Special Master’s November 10, 2021 order also denied petitioner’s motion for leave to file additional
materials (i.e., approximately 150 pages of proposed exhibits). DiMasi, slip op. at 5-13. Notably, in denying
petitioner’s motion, the Special Master inventoried and reviewed the tendered documents. Id. The Special Master
ultimately determined: “The proposed exhibits (medical records and medical literature) are neither material nor
newly discovered” and, in fact, “many of these medical records, as acknowledged by [petitioner], are already in the
record.” Id. at 13. In light of the Special Master’s thoughtful review and consideration of the documents in issue,
petitioner’s motion is effectively moot. Accordingly, this Court need not address whether the Special Master
abused his discretion in disallowing the petitioner to formally file the additional materials.
2

Case 1:15-vv-01455-AOB Document 132 Filed 04/19/22 Page 3 of 6
symptoms related to the claimed vaccine-caused medical condition). Id. at 15-17. The Special
Master then addressed petitioner’s former counsel’s decisions to request a ruling on the record,
forego a significant aggravation claim, and not file a motion for reconsideration or review of
the November 7, 2019 entitlement decision. Id. at 18-22. In each instance, the Special Master
found that petitioner’s former counsel’s decisions were intentional, tactical, and based upon
the facts presented and the attorney’s efforts to meet his ethical obligations to his client and
the Court. Id. In turn, the Special Master determined that petitioner “did not diligently act to
preserve her rights.” Id. at 22. Accordingly, the Special Master denied petitioner’s request for
extraordinary relief.
On December 10, 2021, petitioner filed a timely motion for review of the Special
Master’s November 10, 2021 order. 42 U.S.C. § 300aa-12(e); RCFC App. B at Rule 36(b)(6).
ANALYSIS
A. Standard of Review
As recently iterated by this Court:
In evaluating a special master’s decision, the assigned judge may set aside
the ruling only if it is found to be arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. When reviewing a legal determination,
no deference is afforded to the special master’s decision, which the court reviews
de novo; in reviewing a special master’s factual determinations, the court may
only set them aside if they are arbitrary and capricious. The court reviews a
special master’s discretionary rulings under an abuse-of-discretion standard.
In the Rule 60(b) context, the grant or denial of a motion for relief from
judgment is discretionary, and the standard of review on a motion to review
therefore is whether the trial court abused its discretion. An abuse of discretion
exists when the trial court’s decision is clearly unreasonable, arbitrary or fanciful,
or is based on clearly erroneous findings of fact or erroneous conclusions of law.
M.D. (by Dilascio) v. Sec’y of Health & Hum. Servs., 153 Fed. Cl. 544, 558 (2021)
(cleaned up).
B. Attorney Abandonment
Relief from judgment under RCFC 60(b) is reserved for “extraordinary circumstances.”
Perry v. United States, 558 Fed. Appx. 1004, 1006 (Fed. Cir. 2014) (quoting Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (additional citations omitted)). In addressing
allegations of attorney misconduct, more specifically, courts generally have held that attorney
negligence – even conceded “gross negligence” – does not merit relief. G.G.M. (through Mora)
v. Sec’y of Health & Hum. Servs., 122 Fed. Cl. 199, 204-09 (2015). An attorney’s discharge of
their duties must be “so egregious” to leave the unmistakable impression upon the court “that
counsel had effectively abandoned and/or affirmatively misled their clients.” See id. at 205.
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On the record presented, there is no basis to overturn the Special Master’s finding that
petitioner failed to demonstrate attorney abandonment in denying petitioner’s request for relief
from judgment. In examining the attorney-client relationship in issue, the Special Master took
the extraordinary step of soliciting an affidavit from petitioner’s former counsel as well targeted
communications between petitioner and her former counsel. Despite describing the attorney-
client relationship as “difficult,” and noting that “[counsel’s] lack of communication with his
client is arguably problematic” and “unfortunate at times,” the Special Master “d[id] not consider
the circumstances to be exceptional.” DiMasi, slip op. at 25-26.
As outlined above, in addressing petitioner’s arguments related to her former counsel’s
presentation of her pre-vaccination medical history, the Special Master made clear that his
factual findings related to petitioner’s pre-vaccine symptoms were based upon his independent
review of the medical records, expert reports, and medical literature. Id. at 15-17. In reviewing
the record, this Court is particularly troubled by petitioner’s admission that she doctored her
medical records to remove references to the symptoms she reportedly developed immediately
after the administration of the December 4, 2012 vaccine. See id. at 17 (quoting ECF 103
(DiMasi Statement ¶ 4)). Regardless of petitioner’s motive, it was inappropriate and underscores
the Special Master’s finding that the vaccine was not the causation-in-fact of her symptoms.
Further, petitioner’s pre-vaccine symptoms were documented in petitioner’s medical records
prior to December 2012. Put simply, the Special Master’s factual findings on this issue are
neither arbitrary nor capricious.
Turning to the Special Master’s assessment of counsel’s tactical decision to request a
ruling on the record despite petitioner’s request to testify, the record presented belies any claim
of attorney abandonment. On this issue, counsel’s sworn affidavit is most telling:
9. Relying on the Special Masters [sic] opinion that Petitioner appears to have
waived any privilege that may exist, I can state that it was not possible to have
Petitioner testify on issues of onset and medical history in a manner consistent
with my obligations to the client and as an officer of this Court. (emphasis
added).
10. Without attributing any negative intent, Petitioner’s comments regarding her
pre-existing medical history and post-vaccine onset became inconsistent as the
case met resistance from the Sec[retar]y of HHS.
ECF No. 100 (Gold Aff. at ¶¶ 9-10) (emphasis in original), quoted in part in DiMasi,
slip op. at 18. As the Special Master explained, an attorney’s calculated decision not to
seek an entitlement hearing does not constitute attorney abandonment under the exacting
standard required by RCFC 60(b). DiMasi, slip op. at 18 (citing M.D. (by Dilascio),
153 Fed. Cl. at 559-60 (counsel’s decision to waive entitlement hearing, although
“an unusual strategy,” did not constitute attorney abandonment) (additional citations
omitted)).
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A similar analysis and result must be reached with regard to the Special Master’s
evaluation of petitioner’s argument that her former attorney should have pursued a significant
aggravation claim in the alternative to her causation-in-fact claim. As explained by counsel
under penalty of perjury, and adopted by the Special Master, “[petitioner’s] mitigation and/or
denial of pre-existing symptoms negated the ethical and practical possibility of filing a
significant aggravation claim.” ECF 100 (Gold Aff. ¶ 22), quoted in DiMasi, slip op. at 20.
Like counsel’s affirmative litigation decision to waive an entitlement hearing, the Special Master
found that the pleading decision made by petitioner’s former counsel was intentional, tactical,
and based upon the realities of the situation presented and the attorney’s efforts to meet his
ethical obligations to his client and the Court.
Lastly, as aptly described by the Special Master: “[t]he final and most troublesome
issue concerns the lack of communication and lack of an appeal or motion for reconsideration
following the November 7, 2019 [entitlement] decision.” DiMasi, slip op. at 20. More
specifically, the conflicting assertions by petitioner and her former counsel regarding whether
counsel informed his client that he would not file a motion for review and, relatedly, whether
petitioner was made aware of the 30-day filing deadline under Vaccine Rule 23. In assessing
the weight of the evidence supporting petitioner’s and her former counsel’s version of events,
the Special Master reviewed the petitioner’s statement, her former counsel’s affidavit (and
attached call log), and the requested email correspondence between petitioner and her former
counsel “discussing filing an appeal or a motion for review.” See DiMasi, slip op. at 4, 20-22.
The Special Master found:
Ms. DiMasi was on notice of Mr. Gold’s position against filing a motion for
review on November 11, 2019. Ms. DiMasi should have been aware after
November 11, 2019, that Mr. Gold would not be pursuing an appeal absent a
change in circumstances. Given the available communication, it seems unlikely
that Ms. DiMasi could reasonably expect Mr. Gold to take actions toward filing a
motion for review without an affirmative communication from him.
DiMasi, slip op. at 22. As for the 30-day filing deadline, petitioner is adamant that this
information was not disclosed; a claim not rebutted by her former counsel. Compare
ECF 103 (DiMasi Statement ¶ 2) (“No deadlines were mentioned at any point in our
conversations.”) with ECF 100 (Gold Aff. ¶ 8) (“I have no present recollection of whether
I informed Petitioner verbally of any deadline to file said appeal in 2019. No writings
from my office to Petitioner stating this deadline were found.”). After reviewing the
record presented, the Court concludes that the Special Master’s evaluation of the
evidence presented was not arbitrary or capricious.
Characterizing the issue as “a close call,” the Special Master nevertheless concluded
that, on balance, there was insufficient evidence to establish a meritorious claim of attorney
abandonment and, further, that petitioner “did not diligently act to preserve her rights.” DiMasi,
slip op. at 22; e.g., M.D. (by Dilascio), 153 Fed. Cl. at 562-63 (failure to file notice of review
does not merit RCFC 60(b) relief for attorney abandonment). In support of the lack of diligence
finding, the Special Master cited: petitioner’s single (unsuccessful) attempt to contact her
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attorney after he informed her of his unwillingness to seek further review and before the filing
deadline; petitioner’s failure to confirm that her counsel reconsidered his position and would
undertake the continued representation; and petitioner’s failure “to consult the Vaccine Rules to
determine the deadline for the motion for review.” Id.; see Sneed v. McDonald, 819 F.3d 1347,
1354 (Fed. Cir. 2016) (“Where the attorney has not undertaken the representation, reasonable
diligence requires that the client check with the attorney before the statutory filing time is about
to run out to confirm that the attorney will undertake the representation.”).
To be clear, it would have been preferable had counsel sent petitioner a formal letter
memorializing his position that a motion for review lacked merit and would not be filed, and
further informing (or reminding) petitioner of the upcoming filing deadline should she consider
retaining other counsel or proceeding pro se. That said, such conduct is neither required nor the
standard for establishing an attorney abandonment claim for RCFC 60(b) relief. At bottom, the
Special Master did not abuse his discretion in denying petitioner’s requests to reopen and
reconsider the November 7, 2019 entitlement decision.
CONCLUSION
For the reasons stated above, the Court finds that the Special Master’s denial of relief
from judgment was not an abuse of discretion. Accordingly, the petition for review is DENIED
and the November 10, 2021, decision of the Special Master denying petitioner’s motion for relief
from judgment is SUSTAINED.
IT IS SO ORDERED.
/s/Armando O. Bonilla
Armando O. Bonilla
Judge
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