VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01122
Package ID: USCOURTS-cofc-1_16-vv-01122
Petitioner: Karen L. Christner
Filed: 2016-09-12
Decided: 2020-05-01
Vaccine: influenza
Vaccination date: 2013-09-13
Condition: pain, weakness, and limitations in her legs, and paraplegia; transverse myelitis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Karen Christner filed a petition on September 12, 2016, alleging that she received an influenza vaccine on September 13, 2013, and subsequently developed pain, weakness, and limitations in her legs, leading to paraplegia and a diagnosis of transverse myelitis (TM). Medical records indicated an abrupt onset of symptoms on May 8, 2014, eight months after vaccination, though Ms. Christner's affidavits suggested an earlier onset within a couple of months. Despite multiple medical visits between December 2013 and May 2014, no TM-related complaints were documented. Her treating neurologists could not establish a causal link between the vaccine and her TM. The case faced procedural challenges, including inconsistencies in the reported onset date and the eventual death of Ms. Christner in July 2018. After a remand from the Court of Federal Claims to address the substitution of her estate administrator, Rebecca Hoffman, the case proceeded. Ultimately, the petitioner, through her estate administrator, moved to voluntarily dismiss the claim, stating that proof of entitlement under the Vaccine Injury Compensation Program could not be established due to insufficient evidence of a Table Injury or actual causation. The case was dismissed for insufficient proof.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01122-2
Date issued/filed: 2019-02-11
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 1/15/2019) regarding 71 DECISION of Special Master. Signed by Special Master Mindy Michaels Roth. (mw) Service on parties made.
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Case 1:16-vv-01122-VJW Document 72 Filed 02/11/19 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1122V
(Filed: January 15, 2019)
* * * * * * * * * * * * * * *
KAREN L. CHRISTNER, * UNPUBLISHED
*
Petitioner, *
* Dismissal; Death of Petitioner;
v. * Lack of Proper Petitioner;
* Court of Federal Claims Rule 25
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Braden Blumenstiel, Esq., Blumenstiel Falvo, LLC, Dublin, OH, for petitioner.
Darryl Wishard, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.
DECISION1
Roth, Special Master:
On September 12, 2016, Karen Christner (“Ms. Christner” or “petitioner”) timely filed a
petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §
300aa-10, et seq.2 (“Vaccine Act” or “Program”). Petitioner alleges that she received an influenza
vaccine on September 13, 2013, and thereafter suffered from “pain, weakness, and limitations in
her legs,” and paraplegia. Petition at ¶¶4, 5. The petition must be dismissed due to the lack of a
proper plaintiff to maintain the action.
1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).

Case 1:16-vv-01122-VJW Document 72 Filed 02/11/19 Page 2 of 5
I. Procedural History
The petition was filed on September 12, 2016, along with petitioner’s first affidavit, filed
as Pet. Ex. 1. ECF No. 1. Petitioner filed medical records on November 2, 2016. Pet. Ex. 1-5, ECF
No. 7. The initial status conference was held on December 8, 2016. During the conference, it was
noted that the medical records and petitioner’s affidavit were inconsistent with respect to the onset
of petitioner’s symptoms. Petitioner was ordered to file a status report indicating how she intended
to proceed. Scheduling Order, ECF No. 9. On March 8, 2017, petitioner filed a status report which
advised that she planned to file an expert report in support of her claim. ECF No. 17.
Petitioner filed additional medical records on December 19, 2016; March 3, 2017; March
9, 2017; and May 18, 2017. See Pet. Ex. 6-7, ECF No. 10; Pet. Ex. 9-13G, ECF No. 15; Pet. Ex.
13-19, ECF No. 19; Pet. Ex. 20, ECF No. 28. Petitioner filed a supplemental affidavit on January
6, 2017, as Pet. Ex. 8.3 ECF No. 14.
On September 19, 2017, petitioner filed expert reports from Dr. Kisanuki (Pet. Ex. 21), Dr.
Racke (Pet. Ex. 22), and Dr. Miller (Pet. Ex. 23). ECF Nos. 39-40. These reports were discussed
during a status conference held on September 27, 2017. I noted Dr. Kisanuki and Dr. Racke,
petitioner’s treating physicians, both stated that they could not connect petitioner’s receipt of the
flu vaccine to her onset of TM eight months later. Scheduling Order at 1, ECF No. 42. Furthermore,
the report authored by Dr. Miller was based on the facts as stated in petitioner’s affidavit, which
were not supported by the contemporaneous medical records. Id.
Respondent filed his Rule 4(c) Report on October 4, 2017, which stated that petitioner had
presented insufficient evidence to meet the Althen criteria. ECF No. 46. Respondent further
asserted that the petition lacked a reasonable basis. Id. at 13. Respondent filed a journal article, R.
Baxter et al., Acute Demyelinating Events Following Vaccines: A Case-Centered Analysis, 63 CLIN
INFECT DIS 11: 1456-62 (2016) (Resp. Ex. A); a short biography of Dr. Miller and a list of his
publications from the Northwestern website (Resp. Ex. B); an article on the symptoms and causes
of transverse myelitis from the Mayo Clinic website (Resp. Ex. C); a short biography of Dr. Racke
from The Ohio State University website (Resp. Ex. D); a PubMed generated list of publications
by Dr. Racke (Resp. Ex. E); and a short biography of Dr. Kisanuki from The Ohio State University
website (Resp. Ex. F). ECF No. 46.
Braden Blumenstiel substituted in as attorney of record on November 6, 2017 in place of
attorney James Blumenstiel. ECF No. 47. A status conference was held on November 20, 2017,
during which I again discussed the medical records, including the eight-month gap between
petitioner’s receipt of the influenza vaccine and the first documentation of her onset of symptoms
on May 8, 2014. More specifically, that the medical records reflect no complaints until May 8,
2014, associated with her presentation to the emergency room at which time she advised medical
3 Petitioner’s first affidavit placed the onset of her symptoms “around Christmas of 2013,” but her
supplemental affidavit placed onset of her symptoms “…within two months of [her] flu vaccination on
September 13, 2013….” See Pet. Ex. 1 at ¶12, ECF No. 1; Pet. Ex. 8 at ¶11, ECF No. 14. However, neither
of these affidavits explained why petitioner reported an onset of symptoms “that morning” when she
presented to the emergency room on May 8, 2014, nine months after her vaccination. See Pet. Ex. 1 at 1-3,
ECF No. 7.
2

Case 1:16-vv-01122-VJW Document 72 Filed 02/11/19 Page 3 of 5
personnel of onset earlier that morning that had progressed. Scheduling Order at 1, ECF No. 48;
see also Pet. Ex. 1 at 1-3. Petitioner’s counsel was advised that, “even if one were to accept the
timing as presented by petitioner in her affidavit…a three month onset is not supported by the
relevant medical literature.” Id.
On December 20, 2017, petitioner filed a status report and a Motion for Extension of Time
until January 5, 2018, to advise how petitioner intended to proceed. ECF No. 51. This request was
granted. Non-PDF Order, issued Dec. 20, 2017.
On January 8, 2018, petitioner filed a status report which advised that she would like to
confer with an expert and participate in an onset hearing wherein petitioner could testify “regarding
the onset of her symptoms and the impact they have had on her activities of daily life.” Pet. S.R.
at 2, ECF No. 52.
A status conference was held on February 20, 2018. During the conference, I explained
that, while I am sympathetic to petitioner’s condition and appreciated the limitations with which
petitioner now lives, it is unlikely that an onset hearing would benefit petitioner, as it may result
in further inconsistencies in petitioner’s representation of the onset of her symptoms. Additionally,
any testimony from petitioner regarding the impact of her TM on her daily life would be proof of
damages, not onset or entitlement. Scheduling Order at 1-2, ECF No. 57. I also explained the
different ways to exit the Vaccine Program. Petitioner’s counsel requested time to confer with his
client and determine the appropriate avenue for dismissal of petitioner’s claim. Id. at 2.
Petitioner filed a status report on March 26, 2018, advising that she would like respondent
to file a motion to dismiss. Pet. S.R. at 1, ECF No. 60. Petitioner explained that she would like the
opportunity to respond to respondent’s arguments regarding her claim.
On March 27, 2018, respondent filed a Motion for Summary Judgment rather than a Motion
to Dismiss. ECF No. 61. Petitioner filed a response on April 10, 2018. ECF No. 62. On July 25,
2018, I issued an Order denying summary judgment noting that there was a genuine issue of
material fact in dispute which needed to be determined – the date of onset of petitioner’s
symptoms. See Order at 3, ECF No. 63.
A status conference was held on September 5, 2018, during which petitioner’s counsel
requested and was granted a final 30 days to file any additional evidence in support of her claim
before respondent filed a Motion to Dismiss. Scheduling Order, ECF No. 65.
On October 4, 2018, petitioner’s counsel filed a status report advising that petitioner had
passed away several months prior and requesting a status conference to discuss how to proceed.4
ECF No. 66. On October 5, 2018, respondent filed his Motion to Dismiss. ECF No. 67.
A status conference was held on October 12, 2018. During the conference, I stated that
prior counsel had advised that petitioner did not have any immediate family. Petitioner’s counsel
stated that he did not believe that an estate had been opened and was unsure whether petitioner had
any surviving relatives. Petitioner’s counsel was ordered to file a status report by November 26,
4 Apparently, petitioner had passed away in July of 2018.
3

Case 1:16-vv-01122-VJW Document 72 Filed 02/11/19 Page 4 of 5
2018, on his efforts to locate a relative or friend that had been appointed to handle the late
petitioner’s affairs. Scheduling Order, ECF No. 68.
On November 28, 2018, petitioner’s counsel filed a status report describing his attempts to
contact the individuals listed in petitioner’s obituary. Petitioner’s counsel advised that he had been
unsuccessful in locating petitioner’s next of kin but would continue his efforts. Status Report, ECF
No. 69.
On November 29, 2018, I issued an Order citing to Rule 25(a)(1) and advising petitioner’s
counsel that the 90-day window for the substitution of the proper party would end on January 2,
2019. I ordered petitioner’s counsel to file a Motion to Substitute a representative for petitioner by
January 2, 2019, or the petition would be dismissed.
Petitioner’s counsel failed to file a Motion to Substitute a representative for petitioner, or
any communication with the Court, by January 2, 2019. As of this date, petitioner’s counsel has
not communicated with the Court. Accordingly, the petition must be dismissed.
II. Legal Standard
The Vaccine Rules do not address the consequences of the death of the petitioner. Thus, in
the absence of any specific direction, the Rules of the Court of Federal Claims (“RCFC”) are
consulted. See Vaccine Rule 1(c). Rule 25 of the RCFC states:
If a party dies and the claim is not extinguished, the court may order substitution of
the proper party. A motion for substitution may be made by any party or by the
decedent’s successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by the decent must be
dismissed.
RCFC Rule 25(a)(1) (emphasis added).
III. Discussion
The Court was notified of petitioner’s death via status report on October 4, 2018, which
triggered the time allotted by RCFC Rule 25 for a motion for substitution to be filed. See ECF No.
66. A motion for substitution was not filed within 90 days of the filing of petitioner’s counsel’s
status report advising of petitioner’s death. Thus, pursuant to Rule 25, the petition must be
dismissed due to the lack of a proper plaintiff to maintain the action.
IV. Conclusion
For the foregoing reason, this case is dismissed.5 In the absence of a timely filed motion
for review pursuant to Vaccine Rule 23, the Clerk is directed to enter judgment consistent with
5 Respondent’s Motion to Dismiss filed on October 5, 2018, is hereby rendered moot. See ECF No. 67.
4

Case 1:16-vv-01122-VJW Document 72 Filed 02/11/19 Page 5 of 5
this decision.6
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
6 Pursuant to Vaccine Rule 11 (a), if a motion for review is not filed within 30 days after the filing of the
special master’s decision, the clerk will enter judgment immediately.
5

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DOCUMENT 2: USCOURTS-cofc-1_16-vv-01122-3
Date issued/filed: 2019-11-12
Pages: 4
Docket text: JUDGE VACCINE REPORTED OPINION re: 71 DECISION of Special Master Signed by Senior Judge Victor J. Wolski. (js) Service on parties made.
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Case 1:16-vv-01122-VJW Document 83 Filed 11/12/19 Page 1 of 4
In the United States Court of Federal Claims
No. 16-1122V
(Filed under seal October 25, 2019)
(Reissued November 12, 2019)†
* * * * * * * * * * * * * * * * * * * * * * * *
*
KAREN L. CHRISTNER, * Vaccine Act; motion for review;
* statement noting death; service
Petitioner, * required upon estate; RCFC 25(a)(3);
* motion for substitution deadline;
v. * remand, 42 U.S.C. § 300aa-12(e)(2)(C).
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * *
Braden Blumenstiel, DuPont and Blumenstiel LLC, of Dublin, Ohio, for
petitioner.
Darryl R. Wishard, Torts Branch, Civil Division, Department of Justice, with
whom were Joseph H. Hunt, Assistant Attorney General, C. Salvatore D’Alessio,
Acting Director, Catharine E. Reeves, Deputy Director, and Gabrielle M. Fielding,
Assistant Director, all of Washington, D.C., for respondent.
ORDER
WOLSKI, Senior Judge.
The motion before the Court, in this case brought under the National Vaccine
Injury Compensation Program, 42 U.S.C. §§ 300aa-10–300aa-15 (Vaccine Act),
concerns whether a special master may dismiss a case via Vaccine Rule 1(c) and
Rule 25(a) of the Rules of the Court of Federal Claims (RCFC) when, following
petitioner’s death, petitioner’s counsel fails to timely file a motion for substitution of
the proper party. Petitioner’s counsel filed a status report on October 4, 2018,
notifying the Special Master that petitioner had died that summer. ECF No. 66.
† Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal
Claims, the parties were given fourteen calendar days in which to object to the
public disclosure of information contained in this opinion prior to its publication. No
objection has been filed. Accordingly, the opinion is reissued for publication.

Case 1:16-vv-01122-VJW Document 83 Filed 11/12/19 Page 2 of 4
The following week, a status conference was held, in which petitioner’s counsel
noted that he did not know if his deceased client had an estate opened or any
surviving relatives. ECF No. 68. On November 28, 2018, petitioner’s counsel filed a
status report recounting his efforts to contact the relatives of petitioner who were
identified in petitioner’s obituary. ECF No. 69. These included Rebecca Hoffman,
for whom a message had been left. Id.
The next day, the Special Master issued an order invoking RCFC 25(a)(1),
which provides that the court may grant a motion for the substitution of the proper
party, but “[i]f the motion is not made within 90 days after service of a statement
noting the death, the action by the decedent must be dismissed.” ECF No. 70 at 1
(quoting RCFC 25(a)(1)). Beginning this 90-day period on the date petitioner’s
counsel filed the status report noting petitioner’s death, the Special Master gave
petitioner’s counsel until January 2, 2019, to file a motion to substitute the proper
party, and stated that failure to timely do so would result in the petition’s dismissal.
ECF No. 70 at 1. After not receiving any word or submission from petitioner’s
counsel by January 15, 2019, the Special Master dismissed the case. ECF No. 71 at
4.
Petitioner’s counsel timely filed a motion for review of the Special Master’s
decision. Pet’r’s Mot. for Review, ECF No. 73. Among other things, petitioner’s
counsel argues that the 90-day period within which one must move for substitution
cannot start before service of the statement noting death upon the decedent’s
successor or representative, citing persuasive authority from two Circuits. Id. at 3–
4 (citing Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990); Fariss v.
Lynchburg Foundry, 769 F.2d 958, 961 (4th Cir. 1985)). These opinions rather
convincingly make the case that the individuals who need to know about the
existence of litigation brought by the decedent are “those empowered to assert any
legal claims of the decedent,” rather than the attorney for the decedent, whose
“agency to act ceases with the death of his client.” Fariss, 769 F.2d at 962.
The government brushes aside these cases, focusing on a textual difference
between RCFC 25(a)(3) and its Federal Rules of Civil Procedure (FRCP)
counterpart. See Resp’t’s Resp. to Pet’r’s Mot. at 9 n.13, ECF No. 76. Our rule
currently reads that “[a] statement noting death must be served in the same
manner” as a motion for substitution, which in turn “must be served on the parties
as provided in RCFC 5.” RCFC 25(a)(3). The current FRCP 25(a)(3), upon which
ours was based, contains the identical language describing the manner of serving
the statement noting death, but specifies that the motion for substitution “must be
served on parties as provided in Rule 5 and on nonparties as provided in Rule 4.”
FRCP 25(a)(3).
On its face, the clause in RCFC 25(a)(3) concerning statements noting death
only addresses the way to serve such statements, not the persons and entities to be
- 2 -

Case 1:16-vv-01122-VJW Document 83 Filed 11/12/19 Page 3 of 4
served. That “manner” is clearly “as provided in RCFC 5.” RCFC 25(a)(3). But the
provision is ambiguous as to whether service must be made only upon the parties,
and not upon other persons, such as the successor or representative who would have
an interest in moving to be substituted for the decedent. Is it reasonable to read the
rule as excluding the need to serve such persons, merely because the motion for
substitution---whose very purpose is to make such persons a party to a case (and
typically comes from them)---is not required to be served upon them? The rule in
the FRCP, which states how service of the motion for substitution must be
accomplished for nonparties, does not pose such a question.
A review of the history of our court’s rule shows that any apparent
substantive divergence between the two is inadvertent. Our initial Rule 25(a),
effective October 1, 1982, was patterned on the then-existing FRCP 25 and did not
limit the service requirement to parties. That version instead required the motion
for substitution and the statement noting death to “be served as provided in Rule 5.”
Rule 25(a)(1) of the United States Claims Court, 1 Cl. Ct. LXIII–LXIV (Oct. 1, 1982).
This same formulation was retained when the rules were updated to conform to
FRCP amendments. See RCFC 25(a)(1), 51 Fed. Cl. XLIX (May 1, 2002). This
language differed slightly from the parallel FRCP provision, which specified service
“upon persons not parties” following the FRCP 4 procedure for personally serving a
summons, see Fariss, 769 F.2d at 961 (quoting then-existing FRCP 25(a)(1))---an
option that was not available to us, as RCFC 4 was narrowly-tailored to reflect the
fact that the United States is the only defendant to be served with a complaint in
our proceedings. Thus, instead of one method for service upon parties, and another
for service upon nonparties, our rule made no such distinction. When our rule was
amended in 2008, the purpose was “to conform to the general restyling of the
FRCP,” and not to substantively alter the relevant provision. RCFC 25, Rules
Comm. Note to 2008 Amendments. Thus, the insertion of the reference to service
“on the parties,” RCFC 25(a)(3), should not be read as eliminating the need to serve
the relevant papers on an estate representative before the deadline for substitution
is triggered.
Accompanying the motion for review was an affidavit from Rebecca Hoffman,
which states that she was appointed administrator of petitioner’s estate on
September 19, 2018. ECF No. 74-1, ¶ 4. She explains that she had not been served
with any document pertaining to this case, including the one treated as the
statement noting the death of petitioner, but has learned of the matter from
petitioner’s counsel, whom she has now authorized to represent the estate. Id.
¶¶ 5–8. The motion for review was filed on behalf of petitioner and petitioner’s
estate, pursuant to this authorization. ECF No. 73 at 1 n.1.
After the briefing was completed on the motion for review, the Federal
Circuit issued an opinion in a vaccine case which, although unpublished and not
precisely on point, is nevertheless very instructive for our purposes. See Moczek v.
- 3 -

Case 1:16-vv-01122-VJW Document 83 Filed 11/12/19 Page 4 of 4
Sec’y of Health & Human Servs., 776 F. App’x 671 (Fed. Cir. 2019). In that case, the
Circuit reversed a special master’s decision to dismiss a case for failure to prosecute
despite the negligence of petitioner’s counsel. Id. at 674–75. Even though there
were “no good reasons” supporting counsel’s delay in responding to the special
master’s orders, the Circuit found the dismissal and the rejection of a request for
relief from judgment to be an abuse of discretion. Id. at 674. The Circuit explained
that “summary dismissal of a Vaccine Act case for failure to prosecute in routine
cases runs counter to the core purposes of the Vaccine Act,” and accordingly limited
summary dismissals to “exceptional cases.” Id. Such cases would involve lengthy
delays, prejudice to the government, bad faith, and a likelihood of repeated
negligence. See id. at 674–75.
Because Ms. Hoffman had not been served with the statement noting death
in this proceeding prior to the case being dismissed, she could hardly be faulted for
failing to file a motion for substitution. The dismissal instead was based on
petitioner’s counsel’s delay in identifying the estate administrator, and thus is more
akin to a dismissal for failure to prosecute. There is no suggestion of negligence in
this case, however, and the Court finds the dismissal difficult to reconcile with the
Circuit’s approach in Moczek. But taking into consideration that the Special Master
was not given the benefit of the caselaw interpreting FRCP 25 which petitioner’s
counsel presented to the Court, and could not have been expected to anticipate the
subsequent precedent issued by the Federal Circuit on the propriety of this type of
summary dismissal, the Court finds that the appropriate course is to remand the
matter pursuant to 42 U.S.C. § 300aa-12(e)(2)(C). See McClendon v. Sec’y of Dep’t of
Health & Human Servs., 23 Cl. Ct. 191, 198–200 (1991) (remanding case because of
a subsequent Federal Circuit decision). Accordingly, the petition is REMANDED
to give the Special Master the opportunity to reconsider her decision to dismiss the
case, in light of the fact that that Ms. Hoffman has since been identified as estate
administrator and with due regard given to the reasoning in Moczek, 776 F. App’x
at 674–75.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
- 4 -

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DOCUMENT 3: USCOURTS-cofc-1_16-vv-01122-4
Date issued/filed: 2020-05-01
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 3/26/2020) regarding 91 DECISION of Special Master. Signed by Special Master Mindy Michaels Roth. (mw) Service on parties made.
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Case 1:16-vv-01122-VJW Document 93 Filed 05/01/20 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1122V
(Filed: March 26, 2020)
* * * * * * * * * * * * * * *
REBECCA HOFFMAN, as administrator * UNPUBLISHED
of the ESTATE OF KAREN *
CHRISTNER, *
*
Petitioner, *
* Dismissal; Insufficient Proof of
v. * Causation; Influenza (“Flu”)
* Vaccine; Transverse Myelitis
SECRETARY OF HEALTH * (“TM”)
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Braden Blumenstiel, Esq., Blumenstiel Falvo, LLC, Dublin, OH, for petitioner.
Darryl Wishard, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.
DECISION1
Roth, Special Master:
On September 12, 2016, Karen Christner (“Ms. Christner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq.2 (“Vaccine Act” or “Program”).3 Ms. Christner alleged that she received an influenza
1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision
will be available to anyone with access to the internet. However, the parties may object to the Decision’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
3 On November 12, 2019, Rebecca Hoffman (“Ms. Hoffman” or “petitioner”), as administrator of the estate
of Karen Christner, was substituted in as the petitioner in this matter. ECF No. 82.

Case 1:16-vv-01122-VJW Document 93 Filed 05/01/20 Page 2 of 6
vaccine on September 13, 2013, and thereafter suffered from “pain, weakness, and limitations in
her legs,” and paraplegia. Petition at ¶¶4, 5. Medical records were filed on November 2, 2016. Pet.
Ex. 1-5, ECF No. 7.
The records filed reflected the following: Ms. Christner received an influenza vaccine on
September 13, 2013, and eight months later, on May 8, 2014, reported an abrupt onset of weakness
and burning in her hips and knees, for which she was hospitalized. She was diagnosed with
transverse myelitis (“TM”). Pet. Ex. 4 at 51; Pet. Ex. 1 at 1-3. Ms. Christner reported to the ER
physicians on May 8, 2014 that her symptoms began that morning. Id. In her affidavit, however,
Ms. Christner stated after she received the flu vaccine, she began to have pain in both legs “over
the next couple of months.” Pet. Ex. 1 at 1, ECF No. 1. She affirmed, “In the winter months,
perhaps December, I began to experience a real weakness in both my legs….” Pet. Aff. ¶¶8-9.
However, between December of 2013 and May 8, 2014, Ms. Christner presented for medical care
on seven occasions. See Pet. Ex. 3 at 109, 129; Pet. Ex. 4 at 61, 62, 156, 157; Pet. Ex. 11 at 13, 18-
19. There is no mention of any complaints associated with her TM at any of those medical visits
during that eight-month period.
At the initial status conference held on December 8, 2016, respondent’s counsel stated that
respondent had reviewed the medical records and would be defending this case. Scheduling Order
at 1, ECF No. 9. It was discussed that the medical records and Ms. Christner’s affidavit were
inconsistent with respect to the onset of her symptoms. Id. Ms. Christner’s counsel advised that
Ms. Christner had contacted him on the eve of the statute of limitations and he had filed the petition
without a thorough review of the medical records, which he stated were still being received. Id.
Ms. Christner was ordered to file a status report indicating how she intended to proceed. Id.
Ms. Christner filed additional medical records on December 19, 2016; March 3, 2017;
March 9, 2017; and May 18, 2017. See Pet. Ex. 6-7, ECF No. 10; Pet. Ex. 9-13G, ECF No. 15;
Pet. Ex. 13-19, ECF No. 19; Pet. Ex. 20, ECF No. 28. Ms. Christner filed a supplemental affidavit
on January 6, 2017, in which she stated “…within two months of my flu vaccination on September
13, 2013, I began to experience aches and stiffness in both of my legs….” Pet. Ex. 8,4 ECF No.
14. On March 8, 2017, she filed a status report which advised that she planned to file an expert
report in support of her claim. ECF No. 17.
On September 19, 2017, Ms. Christner filed expert reports from Dr. Kisanuki (Pet. Ex. 21),
Dr. Racke (Pet. Ex. 22), and Dr. Miller (Pet. Ex. 23). ECF Nos. 39-40. Dr. Kisanuki and Dr. Racke
were petitioner’s treating physicians and experts in neurology and neuromuscular disease. These
reports were discussed during a status conference held on September 27, 2017. It was discussed
with counsel that petitioner’s treating neurologists opined that they could not connect Ms.
Christner’s vaccine to the onset of TM eight months later. Scheduling Order at 1, ECF No. 42. It
was further discussed that Dr. Miller, an expert pediatric rheumatologist retained by Ms. Christner,
4 Petitioner’s first affidavit placed the onset of her symptoms “around Christmas of 2013,” but her
supplemental affidavit placed onset of her symptoms “…within two months of [her] flu vaccination on
September 13, 2013….” See Pet. Ex. 1 at ¶12, ECF No. 1; Pet. Ex. 8 at ¶11, ECF No. 14. However, neither
of these affidavits explained why petitioner reported an onset of symptoms “that morning” when she
presented to the emergency room on May 8, 2014, nine months after her vaccination. See Pet. Ex. 1 at 1-3,
ECF No. 7.
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relied solely on the facts as given in Ms. Christner’s affidavit, which were not supported by the
contemporaneous medical records. Id. Ms. Christner’s counsel was advised that this Court is not
bound by any laws requiring it to accept as true statements made by an injured party, particularly
where they conflict with the contemporaneous medical records. Id. Respondent’s counsel
requested the opportunity to file a Rule 4(c) Report and was given 60 days. Id.
Respondent filed his Rule 4(c) Report on October 4, 2017. Resp. Rpt., ECF No. 46.
Respondent stated that Ms. Christner had presented insufficient evidence to meet the Althen
criteria. Respondent further asserted that the petition lacked reasonable basis, and that “any future
claim for attorneys’ fees and costs must be denied as of September 19, 2017.” Id. at 13.
On November 6, 2017, Braden Blumenstiel replaced James Blumenstiel as the attorney of
record in this matter. ECF No. 47.
A status conference was held on November 20, 2017, the status of this matter was discussed
with Ms. Christner’s current counsel. Scheduling Order, ECF No. 48. A complete summary of Ms.
Christner’s medical records was provided by the undersigned during the conference. Also
discussed were the expert reports filed from Dr. Racke and Dr. Kisanuki. Scheduling Order at 1-
2, ECF No. 48. It was pointed out to counsel that both of Ms. Christner’s treating physicians could
not connect Ms. Christner’s receipt of the influenza vaccine to the onset of TM eight months later.
See Pet. Ex. 21, 22, ECF No. 39. The Federal Circuit has instructed special masters to consider the
view of treating physicians as probative. Capizzano v. Sec’y of Health & Human Servs., 440 F.3d
1317, 1326 (Fed. Cir. 2006) (“…medical records and medical opinion testimony are favored in
vaccine cases, as treating physicians are likely to be in the best position to determine whether ‘a
logical sequence of cause and effect show[s] that the vaccination was the reason for the injury.’”)
(internal citations omitted). It was emphasized that Dr. Racke, in addition to specializing in
neurology, is also a neuroimmunologist deeply involved in the study of multiple sclerosis,
transverse myelitis, other demyelinating disorders, and cytokine regulation. Dr. Racke was in a
unique position to opine on Ms. Christner’s alleged injury, and his opinion would carry great
weight. See Pet. Ex. 22. It was again noted that the report filed by Dr. Miller, a pediatric
rheumatologist, did not meet the Althen criteria, nor did it provide any basis for a causal
relationship between Ms. Christner’s injuries and the vaccine she received. Scheduling Order at 2,
ECF No. 48. Ms. Christner’s counsel was cautioned that reasonable basis had been raised in this
case. Id.
On January 8, 2018, Ms. Christner filed a status report stating that she would like to
“Confer with a medical expert in an attempt to obtain [an] additional and more detailed medical
explanation as to how (or if) the flu vaccine she received in September 2013 could be associated
with the symptoms she later experienced” and “Participate in a date of onset hearing through which
Petitioner can be questioned regarding the onset of her symptoms and the impact they have had on
her activities of daily life.” ECF No. 52.
A status conference was held on February 20, 2018. It was again discussed that Ms.
Christner’s medical records did not support a connection between her receipt of the flu vaccine on
September 13, 2013 and the onset of TM eight months later. Scheduling Order at 1, ECF No. 57.
Counsel was advised that an onset hearing would not benefit Ms. Christner, as it could result in
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further inconsistencies with her previously submitted sworn statements of the onset of her
symptoms. Id. It was again pointed out that Ms. Christner had a number of medical visits between
December of 2013 and May 8, 2014 and did not complain of numbness or weakness at any of those
visits. Id.; see also Pet. Ex. 11 at 13, 18-19; Pet. Ex. 3 at 109-10. Additionally, it was noted that
any testimony from Ms. Christner regarding the impact of her TM on her daily life would be proof
of damages, not onset or entitlement. Id. at 1-2. It was again reiterated that Ms. Christner’s treating
neurologists could not connect Ms. Christner’s receipt of the flu vaccine to her TM. Id. at 2; and
that the report of Dr. Miller did not meet the Althen criteria, nor did it provide any basis for a causal
relationship between Ms. Christner’s TM and the flu vaccine. Id. Counsel was reminded that
respondent had questioned reasonable basis. Id. Counsel requested 30 days to confer with his client
and respondent’s counsel to determine the appropriate avenue for dismissal of Ms. Christner’s
claim. Id. at 3.
After several extensions, on March 26, 2018, Ms. Christner filed a status report advising
that she wished to proceed by having respondent file a motion to dismiss so that she would have
the opportunity to respond to respondent’s arguments regarding her claim. ECF No. 60.
On March 27, 2018, respondent filed a Motion for Summary Judgment rather than a Motion
to Dismiss. ECF No. 61. This Motion was denied based on procedural grounds. See Order, ECF
No. 63.
A status conference was held on September 5, 2018, during which Ms. Christner’s counsel
suggested that there might be additional evidence in this case that had not been filed, despite the
matter being two years old. Scheduling Order at 1, ECF No. 65. Respondent agreed to allow Ms.
Christner time to file any additional evidence in support of her claim before he filed a Motion to
Dismiss. Id.
Petitioner’s counsel filed a status report on October 4, 2018 advising that Ms. Christner
had passed away and no additional documentation would be filed in support of her claim. ECF No.
66. Counsel requested a status conference to discuss how to proceed in light of Ms. Christner’s
death. Id. Apparently, Ms. Christner passed away in July of 2018.
Respondent filed a Motion to Dismiss on October 5, 2018. ECF No. 67.
A status conference was held on October 12, 2018. During the conference, it was noted
that prior counsel had made representations to the Court that Ms. Christner had no family or others
who could assist in caring for her. Scheduling Order at 1, ECF No. 68. Ms. Christner’s counsel
stated that he did not believe that an estate had been opened and was unsure whether Ms. Christner
had any surviving relatives. Id. It was noted that, in light of the reasonable basis challenges in this
case, counsel would be best served by locating a representative for Ms. Christner who could
authorize dismissal of the petition. Counsel was ordered to file a status report by November 26,
2018, advising the Court of his efforts to locate a representative for Ms. Christner. Id.
Ms. Christner’s counsel filed a status report out-of-time on November 28, 2018,
summarizing his efforts to contact the individuals named in Ms. Christner’s obituary. ECF No. 69.
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An Order was issued on November 29, 2018, advising counsel that, if he did not file a
Motion to Substitute a representative for Ms. Christner by January 2, 2019, the petition would be
dismissed. See Scheduling Order at 1, ECF No. 70; RCFC 25(a)(1). Counsel failed to file a Motion
to Substitute a representative for Ms. Christner, or contact the Court in any way, by January 2,
2019. The petition was dismissed on January 15, 2019, at which time counsel still had not
contacted the Court. See Decision at 1, 4, ECF No. 71.
Four weeks later, on February 14, 2019, counsel filed a Motion for Review of the dismissal
Decision, along with an affidavit from Rebecca Hoffman (“Ms. Hoffman” or “petitioner”) which
stated that she had been named the administrator of Ms. Christner’s estate. ECF Nos. 73-74.
On October 25, 2019, the Court of Federal Claims issued an Order remanding this matter
on procedural grounds in light of the fact that Ms. Hoffman had been identified as estate
administrator. Order at 4, ECF No. 78. The Court did not address or discuss the merits of Ms.
Christner’s claim.
A Motion to Substitute Rebecca Hoffman as the petitioner in this matter was filed on
November 12, 2019, and subsequently granted. See ECF Nos. 81-82.
On November 19, 2019, I issued an Order providing a summary of this matter, including
the medical records and expert reports filed. Scheduling Order, ECF No. 84. Petitioner was ordered
to file an affidavit within 60 days “acknowledging that she has received this Order and has
reviewed the evidence in this case and confirming that she understands all of the facts and events
associated with this case.” Id. at 5. Petitioner was to indicate how she intended to proceed. Id.
After missing the deadline for filing her affidavit, petitioner filed a Motion for Extension
of Time until February 4, 2020 to file her affidavit. ECF No. 87. This Motion was granted. Non-
PDF Order, issued Jan. 22, 2020.
Petitioner filed her affidavit out-of-time on February 5, 2020. ECF No. 88. Petitioner stated
in her affidavit that, after reviewing the evidence in this case, she “instructed Braden Blumenstiel
to dismiss the case.” Id. at 1-2. Petitioner was ordered to file a Motion to for a Dismissal Decision
by March 9, 2020. Non-PDF Order, issued Feb. 6, 2020. Petitioner failed to comply with this
deadline. An Order to Show Cause was issued on March 17, 2020. ECF No. 89.
On March 25, 2020, petitioner filed a Motion to Voluntarily Dismiss her claim. ECF No.
90. In her Motion, petitioner stated that “it was determined through conferences with counsel and
an examination of the facts and science supporting this case that petitioner will be unable to prove
decedent is entitled to compensation under the VICP.” Id. at 1.
To receive compensation under the Program, petitioner must prove either 1) that Ms.
Christner suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to her vaccination, or 2) that she suffered an injury that was actually caused by a
vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any
evidence that Ms. Christner suffered a “Table Injury.” Further, the record does not contain
persuasive evidence indicating that Ms. Christner’s alleged injury was vaccine-caused or in any
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way vaccine-related.
Under the Act, 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. § 13(a)(1). In this case, because there are insufficient medical records
supporting the instant claim, a medical opinion must be offered in support. Both of Ms. Christner’s
treating neurologists, Dr. Kisanuki and Dr. Racke, opined that they could not connect Ms.
Christner’s development of TM to her receipt of the flu vaccine eight months earlier.
Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate
either that Ms. Christner suffered a “Table Injury” or that her injuries were “actually caused” by a
vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.5
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
5 Pursuant to Vaccine Rule 11 (a), if a motion for review is not filed within 30 days after the filing of the
special master’s decision, the clerk will enter judgment immediately.
6