VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01031
Package ID: USCOURTS-cofc-1_18-vv-01031
Petitioner: Vicki Schumacher
Filed: 2018-07-16
Decided: 2020-09-10
Vaccine: influenza
Vaccination date: 2016-10-11
Condition: Guillain-Barré Syndrome
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Vicki Schumacher filed a petition on July 16, 2018, alleging that an influenza vaccination received on October 11, 2016, caused her to develop Guillain-Barré Syndrome (GBS). The case was initially accompanied by medical records, and respondent declined settlement. Petitioner was ordered to file an expert report on vaccine causation, which she did. However, the Special Master noted issues with the reported onset of symptoms and the progression of the condition, ordering a supplemental expert report. For nearly a year, petitioner requested extensions of time, during which her counsel was unable to contact her and ultimately sought to withdraw. The Special Master issued an Order to Show Cause, noting the lack of additional evidence and the unlikelihood of establishing causation. Petitioner failed to respond to this order. The case was ultimately dismissed for failure to prosecute and for insufficient proof, as the medical records and expert report did not establish that the GBS was actually caused by the flu vaccine, particularly given the disputed onset of symptoms.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01031-0
Date issued/filed: 2020-10-07
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 9/10/2020) regarding 41 DECISION of Special Master. Signed by Special Master Thomas L. Gowen. (hs) Service on parties made.
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Case 1:18-vv-01031-UNJ Document 43 Filed 10/07/20 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 10, 2020
* * * * * * * * * * * * *
VICKI SCHUMACHER, * UNPUBLISHED
*
Petitioner, * No. 18-1031V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Dismissal; Failure to Prosecute;
AND HUMAN SERVICES, * Insufficient Proof.
*
Respondent. *
* * * * * * * * * * * * *
Michael A. Galasso, Robbins, Kelly, Patterson & Tucker, LPA, Cincinnati, OH, for petitioner.
Ryan D. Pyles, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION1
On July 16, 2018, Vicki Schumacher (“petitioner”)2, timely filed a petition pursuant to the
National Vaccine Injury Compensation Program.3 Petitioner alleges that as a result of receiving an
influenza (“flu”) vaccination on October 11, 2016, she developed Guillain-Barré Syndrome (“GBS”).
The petition was accompanied by medical records. The information in the record does not establish
entitlement to compensation.
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2 This petition was originally filed by Eric W. Goering, Trustee, on behalf of petitioner. ECF No. 1. The case was
re-captioned on October 4, 2018. See Order to Amend Case Caption (ECF No. 16).
3 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.

Case 1:18-vv-01031-UNJ Document 43 Filed 10/07/20 Page 2 of 3
I. Procedural History
Petitioner filed her petition on July 16, 2018, alleging that she suffered Guillain-Barre syndrome as a
result of receiving the influenza (“flu”) vaccination administered on October 11, 2016. Amended Petition
(ECF No. 10).
On May 9, 2019, respondent filed a status report stating that the record had been reviewed and
based on the current record, “declines to entertain settlement negotiations,” and requested time to file his
Rule 4(c) report. Status Report (ECF No. 27). I ordered petitioner to file an expert report addressing
vaccine causation. Petitioner filed an expert report from Dr. Arthur Hughes, M.D. on July 3, 2019.
Petitioner’s Exhibit (“Pet. Ex.”) 11.
On July 26, 2019, a status conference was held in this case. I ordered petitioner to file a
supplemental expert report or a corrected report from Dr. Hughes, clarifying petitioner’s onset of
symptoms and explain the prolonged progression of her symptoms until the diagnosis. See Scheduling
Order (ECF No. 32). For a year, petitioner requested, and was granted, additional time to file a
supplemental expert report. See Petitioner (“Pet.”) Motion (“Mot.”) for Extension of Time (ECF Nos. 33-
36). Petitioner never produced a supplemental expert report from Dr. Hughes or another expert.
On March 23, 2020, petitioner filed a fourth motion to extend time, stating, “Counsel for
petitioner intends to seek leave of the Court to withdraw. It is unclear at this time whether the
undersigned counsel will be replaced, whether petitioner intends to proceed pro se, or whether dismissal
will be sought.” Pet. Mot. to Extend Time (ECF No. 36). On July 16, 2020, another status conference
was held in this case. During that status conference, petitioner’s counsel Mr. explained that after the
initial status conference, he requested Dr. Eric Gershwin review petitioner’s medical records and provide
an opinion regarding vaccine causation. Counsel explained that Dr. Gershwin declined to provide an
opinion in this case. Mr. Galasso stated that he met with petitioner and her husband, explained the current
status of the case and informed them that he wanted to withdraw from the case. Mr. Galasso stated that
he provided a list of other vaccine attorneys to consult. Counsel stated he has since lost contact with
petitioner. See Show Cause Order (ECF No. 38).
After the status conference, I issued an Order to Show Cause, stating:
Pursuing this claim further will require petitioner to obtain a supplemental expert report in
support of vaccine causation, as well as the additional evidence necessary to support her
allegations of symptom onset. Petitioner has been made aware of her counsel’s intention to
withdraw and has been made aware that she needs to either retain other counsel or pursue this
claim pro se. It has been nearly a year since petitioner has filed any additional evidence to support
her claim.
Order to Show Cause at 3. Further, the Show Cause Order stated, “…it is unlikely that the petitioner will
be able to succeed in establishing vaccine causation in this absent additional evidence.” Id. at 3.
Petitioner was directed to file a supplemental expert report or any additional evidence to support her claim
within thirty days or her claim would be dismissed. Id. Further, the Clerk of the Court was directed to
mail a copy of the Order to Show Cause to her last known address. Petitioner has failed to respond to the
order.
II. Analysis
Petitioner’s claim may properly be dismissed for failure to comply with my orders. A petitioner’s
inaction and failure to abide by a special master’s order risks dismissal of a claim. Tsekouras v. Sec’y of
2

Case 1:18-vv-01031-UNJ Document 43 Filed 10/07/20 Page 3 of 3
Health & Human Servs., 26 Cl. Ct. 439 1992, aff’d per curiam without opin., 991 F.2d 810 (Fed. Cir.
1993); Sapharas v. Sec’y of Health & Human Servs., 35 Fed. Cl 503 (1996); Vaccine Rule 21(b).
Petitioner has failed to comply with the Order to Show Cause, to file additional evidence to support her
claim. Additionally, her counsel asserts that he has been unable to contact her.
Additionally, petitioner’s claim may properly be dismissed on substantive grounds. A petitioner
has the burden of establishing entitlement to compensation through one of two ways. The first way is to
establish that the vaccinee suffered a “Table Injury,” i.e., that he or she received a vaccine listed on the
Vaccine Injury Table and subsequently developed a corresponding injury within a corresponding period
of time. § 300aa-11(c)(1). Here, the evidence does not support that petitioner suffered a Table Injury.
Thus, petitioner must proceed on the second route – she must establish that the vaccine actually
caused (or “caused in fact”) the onset or significant aggravation of a condition suffered by the petitioner.
§ 300aa-13(a)(1)(A). Under the relevant test, petitioner must establish (1) a medical theory; (2) a logical
sequence of cause and effect; and (3) a medically acceptable temporal relationship between the
vaccination and the injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). Here, the medical records and the expert report filed by petitioner do not establish that petitioner’s
GBS was actually caused by the flu vaccine she received on October 11, 2016. After reviewing the
records and the report petitioner filed by Dr. Hughes, I informed petitioner that the onset of petitioner’s
GBS was a significant issue that needed to be addressed by additional evidence. A careful review of her
medical records indicated that her GBS symptoms began within the week before her hospitalization on
January 10, 2017 and not in November as she had claimed. The onset of symptoms within the week prior
to January 10, 2017 appeared particularly plausible as her condition developed from that point in the
manner of a classical GBS presentation. Onset in November to a nadir in mid-January would be
inconsistent with the expected progression of GBS. Petitioner never produced additional evidence, in the
form of witness affidavits that could attest to the onset of petitioner’s symptoms, or an additional expert
report who could explain the long onset of symptoms from the date of vaccination. Therefore, it is
appropriate to dismiss petitioner’s claim for insufficient proof.
III. Conclusion
This case is dismissed for failure to prosecute and for insufficient proof. In the absence of a
motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter
judgment forthwith.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
4 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
3