VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-00903
Package ID: USCOURTS-cofc-1_16-vv-00903
Petitioner: Miriana Rodriguez Burgos
Filed: 2016-07-29
Decided: 2021-02-05
Vaccine: varicella
Vaccination date: 2013-08-22
Condition: cerebritis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Miriana Rodriguez Burgos alleged that the varicella, HPV, and meningococcal conjugate vaccinations she received on August 22, 2013, caused her to develop cerebritis. Her petition was filed on July 29, 2016. The Secretary contested entitlement, and the parties obtained conflicting expert opinions. Petitioner's expert, Dr. Shafrir, opined that the diagnosis was cerebritis/cerebellitis or disseminated varicella vaccine-strain viral disease. Respondent's expert, Dr. Sweeney, suggested a mycoplasma infection with post-infectious symptoms, noting a lack of MRI changes or elevated white blood cell counts. Another expert for the Secretary, Dr. Gans, also opined that the illness was compatible with a mycoplasma infection and that neurologic changes 43 days post-vaccination could not be attributed to the vaccine. After being ordered to file an expert report addressing these opinions, Ms. Burgos did not present one. On December 8, 2020, Ms. Burgos moved to dismiss her petition, stating she was unable to secure further evidence to prove entitlement. The court granted the motion, dismissing the case with prejudice for insufficient proof, as Ms. Burgos did not establish by preponderant evidence that she suffered from a Table injury or effectively rebut the opinion that a mycoplasma infection was the likely cause of her illness.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-00903-0
Date issued/filed: 2021-02-05
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 1/12/2021) regarding 122 DECISION of Special Master Signed by Special Master Christian J. Moran. (jmw) Service on parties made.
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Case 1:16-vv-00903-UNJ Document 123 Filed 02/05/21 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
MIRIANA RODRIGUEZ *
BURGOS, *
* No. 16-903V
Petitioners, * Special Master Christian J. Moran
*
v. *
* Filed: January 12, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioners;
Darryl R. Wishard, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Miriana Rodriguez Burgos (“Petitioner”) alleged that the varicella, human
papillomavirus (“HPV”), and meningococcal conjugate (“MCV”) vaccinations she
received on August 22, 2013, caused her to develop cerebritis. Pet., filed July 29,
2016, at Introduction. On December 8, 2020, petitioner moved for a decision
dismissing her petition. This motion is granted and the petition is dismissed.
1 The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services). 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 1:16-vv-00903-UNJ Document 123 Filed 02/05/21 Page 2 of 4
I. Procedural History
The petition was filed on July 29, 2016.2 After reviewing petitioner’s initial
medical records, the Secretary filed his Rule 4(c) report on August 22, 2017,
contesting entitlement.
After additional records were filed, petitioner filed an expert report
supporting her claim from Dr. Shafrir, a neurologist. Exhibit 40 (filed Aug. 1,
2018). At the outset of his discussion, Dr. Shafrir noted that petitioner’s condition
could only be partially extracted due to lack of typed records and undecipherable
handwritten records from treaters. Dr. Shafrir opined that petitioner’s initial rash
was most likely related to the breakthrough varicella as a result of the vaccine
strain. Dr. Shafrir further explained that every treater mentioned a diagnosis of
varicella cerebritis, which was aggressively and effectively treated. As such, Dr.
Shafrir proposed differential diagnoses, including (1) cerebritis / cerebellitis; (2)
disseminated varicella vaccine-strain viral disease; and (3) acute cerebellar ataxia.
In response, the Secretary filed an expert report from Michael Sweeney, also
a pediatric neurologist. Exhibit A (filed Oct. 16, 2018). Dr. Sweeney opined that
petitioner’s most likely diagnosis is an acute mycoplasma infection with
subsequent secondary systemic post-infectious symptoms. In disputing the
cerebritis / cerebellitis diagnosis, Dr. Sweeney noted the lack of MRI changes or
elevated white blood cell count in the spinal fluid. Dr. Sweeney further stated that
the numerous MRI scans of the brain did not demonstrate the presence of signal
change suggestive of an inflammatory process. Without elevated inflammatory
markers, Dr. Sweeney found petitioner’s expert’s diagnoses unlikely.
Because Dr. Shafrir and Dr. Sweeney drew different conclusions about Ms.
Burgos’s medical condition, the parties were directed to seek more information
from doctors who treated her. Order, issued Oct. 30, 2018. The parties received
more information from some, but not all, doctors who possessed first-hand
information about Ms. Burgos’s medical condition. See Pet’r’s Status Rep., filed
Jun 14, 2019.
At the parties’ request, the undersigned assessed the evidence that the parties
had submitted. Order, issued Aug. 12, 2019; see also Vaccine Rule 5 (authorizing
2 The original petitioner was Ramonita Burgos Cancel, the mother of Miriana Rodriguez
Burgos. After Ms. Burgos reached the age of majority, she became the petitioner. Order, issued
Aug. 23, 2019. Whether Ms. Cancel or Ms. Burgos was the petitioner does not affect the
outcome.
2

Case 1:16-vv-00903-UNJ Document 123 Filed 02/05/21 Page 3 of 4
special masters to present tentative conclusions). Specifically, the undersigned
noted: questions about the appropriate diagnosis, including a mycoplasma
infection as well as the brevity of the experts’ Althen analysis.
In response, the Secretary obtained a supplemental report from Dr. Sweeney.
Exhibit J. Maintaining his original diagnosis, Dr. Sweeney addressed problems
with petitioner’s theory. Dr. Sweeney dismissed the disseminated varicella
vaccine-strain viral disease diagnosis based on the lack of laboratory abnormalities
supporting that conclusion. Similarly, Dr. Sweeney stated that the acute cerebellar
ataxia was possible, but the lack of documentation made this diagnosis unclear.
The Secretary also filed a report from Hayley Gans, a specialist in infectious
diseases. Exhibit K. Dr. Gans opined that petitioner’s illness is compatible with a
mycoplasma infection. This conclusion was based on physical exam findings and
laboratory findings. Dr. Gans also stated that neurologic changes 43 days after
vaccination cannot be attributed to the vaccine based on case reports which show
onset in the first two weeks.
After a status conference to discuss these recent expert reports, Ms. Burgos
was ordered to file an expert report. Order, dated Jan. 29, 2020. Ms. Burgos did
not present the report from an expert to address Dr. Gans’s report.
During an August 14, 2020 status conference, petitioner’s counsel advised
that Ms. Burgos would be seeking alternative counsel. Subsequently, petitioner
indicated that new counsel would not be sought. Ultimately, on December 8, 2020,
petitioner filed a motion to dismiss, stating that she was unable to secure further
evidence required by to prove entitlement. The Secretary did not file a response to
this motion. This matter is now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner must prove either 1) that the
vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine
Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee
suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A)
and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award
based solely on the petitioner’s claims alone. Rather, the petition must be
supported by either medical records or by the opinion of a competent physician.
§ 300aa-13(a)(1).
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Case 1:16-vv-00903-UNJ Document 123 Filed 02/05/21 Page 4 of 4
In this case, petitioner filed medical records and expert reports in support of
her claim, but nonetheless, wishes to have her claim dismissed and judgment
entered against her. Though petitioner did not cite an authority for her motion, the
undersigned will construe this as a motion filed pursuant to 42 U.S.C. § 300aa—
21(b) (regarding involuntary dismissal), given petitioner’s clear intent that a
judgment issue in this case, protecting her right to file a civil action in the future.
See Pet’rs’ Mot., filed December 08, 2020, ¶ 3.
To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, petitioner did not establish, by preponderant evidence,
that she suffers from disseminated varicella vaccine-strain viral disease as defined
in 42 C.F.R § 100(c)(11). In addition, petitioner did not effectively rebut Dr.
Gans’s persuasive opinion that a likely cause of any illness is an infection with
Mycoplasma pneumoniae.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall
enter judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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