VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01242
Package ID: USCOURTS-cofc-1_18-vv-01242
Petitioner: D.R.
Filed: 2018-08-20
Decided: 2021-04-02
Vaccine: influenza
Vaccination date: 2015-10-20
Condition: cerebellar ataxia
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On August 20, 2018, Elizabeth Salazar filed a claim on behalf of her minor son, D.R., alleging that a human papillomavirus (HPV) vaccine administered on August 21, 2015, caused permanent blindness, and an influenza vaccine received on October 20, 2015, caused neurological injuries leading to a diagnosis of cerebellar ataxia. The case was initially assigned to Special Master Sanders, who encouraged the petitioner to retain counsel. Following missed deadlines and failure to respond to Orders to Show Cause, the case was reassigned to Special Master Horner. Special Master Horner reviewed the medical records and advised the petitioner that an expert opinion would likely be necessary to prove her claim. The respondent filed a Rule 4(c) report recommending against compensation. The petitioner was granted several extensions to file an expert report but repeatedly failed to meet deadlines. Medical records indicated that D.R.'s condition was Spinocerebellar Ataxia Type 7 (SCA-7), a progressive genetic condition, with physicians opining it was not vaccine-related. A chiropractor suspected vaccine contribution via heavy metal toxicity, but this opinion was deemed outside her qualifications. Despite being informed of the need for an expert opinion and being given an extended period to secure one, the petitioner failed to file any expert report. The public decision does not describe the onset or specific symptoms of D.R.'s condition, nor does it detail the specific treatments received. The case was dismissed for failure to prosecute and insufficient proof, as the medical records did not contain preponderant evidence of a vaccine-caused injury, and no expert medical opinion was filed to support the allegations. Special Master Daniel T. Horner issued the decision on April 2, 2021. Petitioner counsel was Elizabeth Salazar, proceeding pro se. Respondent counsel was Althea Walker Davis.

Theory of causation field:
Petitioner Elizabeth Salazar, on behalf of minor D.R., alleged that an August 21, 2015 HPV vaccine caused permanent blindness and an October 20, 2015 influenza vaccine caused neurological injuries leading to cerebellar ataxia. The case was dismissed for failure to prosecute and insufficient proof. The medical records indicated D.R.'s condition was Spinocerebellar Ataxia Type 7 (SCA-7), a progressive genetic condition, with physicians like Dr. Parnes opining it was genetic and not vaccine-related. A chiropractor, Sherry Durrett, suspected vaccine contribution via heavy metal toxicity, but this was outside her qualifications. Dr. Akbar, another neurologist, reiterated the genetic nature of SCA7. Petitioner represented that Dr. Guillory was willing to support vaccine causation, but no report was filed. The Special Master noted that Dr. Guillory's existing records related to treatment and one record mentioned aggravation by environmental toxicity, but no causal opinion regarding vaccines was expressed. Petitioner was repeatedly given extensions to file an expert report, but failed to do so, leading to dismissal. The decision was issued by Special Master Daniel T. Horner on April 2, 2021. Petitioner was pro se, represented by Elizabeth Salazar. Respondent counsel was Althea Walker Davis.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01242-0
Date issued/filed: 2021-04-02
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 2/16/2021) regarding 43 DECISION of Special Master Signed by Special Master Daniel T. Horner. (jas) Service on parties made. Copy sent to petitioner via email on 4/2/21. Modified on 4/2/2021 (jas).
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Case 1:18-vv-01242-UNJ Document 46 Filed 04/02/21 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1242V
Filed: February 16, 2021
UNPUBLISHED
REISSUED FOR PUBLICATION
APR 2 2021
OSM
U.S. COURT OF FEDERAL CLAIMS
ELIZABETH SALAZAR, parent of D.R., Special Master Horner
a minor,
Petitioner, Dismissal Decision; Human
v. Papillomavirus Vaccine;
Influenza Vaccine;
SECRETARY OF HEALTH AND Spinocerebellar Ataxia Type
HUMAN SERVICES, 7 (SCA-7); Cerebellar Ataxia;
Order to Show Cause;
Respondent. Insufficient Proof; Failure to
Prosecute
Elizabeth Salazar, pro se, Houston, TX, for petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On August 20, 2018, petitioner filed this claim on behalf of her minor son, D.R.,
alleging that a human papillomavirus (“HPV”) vaccine received on August 21, 2015,
caused him to suffer permanent blindness and that an influenza (“flu”) vaccine, received
on October 20, 2015, caused him neurological injuries that lead to his diagnosis of
cerebellar ataxia. (ECF No. 1.) 2 For the reasons discussed below, this petition is now
dismissed.
I. Procedural History
This case was originally assigned to Special Master Sanders. (ECF No. 5.)
Special Master Sanders held an initial status conference and gave petitioner an
opportunity to retain counsel to represent her in this case. (ECF No. 9.)
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
2 “ECF No.” refers to the location of each document on the court’s electronic docket for this case.
1

Case 1:18-vv-01242-UNJ Document 46 Filed 04/02/21 Page 2 of 5
On November 14, 2018, an Order to Show Cause was issued following
petitioner’s missed deadline. (ECF No. 13.) Thereafter, a second Order to Show
Cause was issued following petitioner’s failure to provide a response to the first Order to
Show Cause. (ECF No. 14.) A status conference was held on December 20, 2018.
Petitioner reported that she was proceeding pro se. (ECF No. 15.) Special Master
Sanders explained the medical records that petitioner needed to file in order to pursue
her claim and petitioner agreed to file such records. (Id.) Between February 1, 2019
and March 8, 2019, petitioner filed medical records to support her claim. (ECF Nos. 19-
21.)
On August 28, 2019, this case was reassigned to my docket. (ECF No. 25.)
Upon my review of the records, I held an initial status conference on November 22,
2019. (ECF No. 31.) Based on my review, I explained to petitioner that she may have a
difficult time proving her claim based on D.R.’s medical history and advised that
petitioner will eventually need an expert opinion in order to proceed with her claim.
However, I ordered respondent to provide his Rule 4(c) report to better assist petitioner
in understanding how best to proceed. (Id.) Respondent filed his Rule 4(c) report on
February 11, 2020,3 recommending against compensation and outlining the reasons
therein.
Thereafter, I ordered petitioner to file an expert report to support her claim by no
later than April 24, 2020. (ECF No. 36.) However, on March 9, 2020, petitioner
indicated that she did not receive my order setting this deadline and a courtesy copy of
the order was sent to petitioner, maintaining the April 24, 2020 deadline. (ECF No. 37.)
On April 23, 2020, petitioner contacted my chambers, indicating that she was having a
difficult time meeting her deadline due to the coronavirus outbreak and quarantine.
Accordingly, I extended petitioner’s deadline to file an expert opinion to support her
claim to August 7, 2020. (ECF No. 39.)
Petitioner allowed this August 7, 2020 deadline to lapse without any filing and did
not otherwise file any expert report. I held a status conference on August 26, 2020 to
discuss the appropriate next steps with petitioner. (ECF No. 41.) Petitioner indicated
she wished to proceed with a report from one of D.R.’s treating physicians, Dr. Guillory,
and I set petitioner’s filing deadline at the end of November 2020. I specifically
confirmed with petitioner that she agreed the November 30, 2020 deadline was
reasonable in light of the Covid-19 pandemic and her current circumstances. I further
explained that I had allowed petitioner a generous period of time to seek expert support,
but this case cannot be allowed to remain pending indefinitely and stressed the
importance of meeting deadlines. I cautioned that failure to meet the November 30,
2020 order would result in an Order to Show Cause. Petitioner allowed this deadline to
lapse without completing her filings.
3 The report was filed on January 31, 2020; however, the amended certificate of service was filed on
February 11, 2020.
2

Case 1:18-vv-01242-UNJ Document 46 Filed 04/02/21 Page 3 of 5
On December 4, 2020, an Order to Show Cause was issued that allowed
petitioner one final chance to file an expert opinion to support her claim. (ECF No. 42.)
I explained that petitioner’s deadline of February 4, 2021 would be her last opportunity
to file an expert opinion to support her claim and if one is not filed, petitioner’s claim will
be involuntarily dismissed. (Id.) On January 12, 2021, petitioner contacted chambers
via telephone and indicated that she anticipated submitting a letter from Dr. Guillory by
the deadline. However, petitioner allowed the February 4, 2021 deadline to lapse
without any filing and to date has not filed an expert report or otherwise contacted
chambers.
II. Discussion
In general, to receive compensation in the Vaccine 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 a covered vaccine, or (2) that the vaccinee
suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A)
and 11(c)(1). Petitioner has not alleged any Table Injury. Nor does my review of the
records reveal any such injury.
To satisfy her burden of proving causation in fact, petitioner must show by
preponderant evidence: “(1) a medical theory causally connecting the vaccination and
the injury; (2) a logical sequence of cause and effect showing that the vaccination was
the reason for the injury; and (3) a showing of a proximate temporal relationship
between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d
1274, 1278 (Fed. Cir. 2005). The Vaccine Act also limits compensation only to those
cases that are supported by either medical records or the opinion of a competent
physician. The Vaccine Act states with regard to a finding that petitioner can recover for
his injury that: “The special master or court may not make such finding based on the
claims of a petitioner alone, unsubstantiated by medical records or medical opinion.” 42
U.S.C. § 300aa-13(a)(1).
D.R.’s medical history is well summarized in respondent’s Rule 4 Report. Upon
my review of the medical records filed in this case, I do not see where any of D.R.’s
physicians attributed his condition to any of his vaccinations. This claim alleged that
D.R.’s condition began prior to his August 21, 2015 HPV vaccination, but was
aggravated by both that vaccination and an influenza vaccination administered October
20, 2015. However, the medical records suggest that D.R.’s diagnosis is
Spinocerebellar Ataxia Type 7 (SCA-7) which his physicians have noted to be a
progressive genetic condition. Dr. Parnes, D.R.’s treating pediatric neurologist at the
Pediatric Movement Disorders Clinic at Texas Children’s Hospital, explicitly opined on
March 7, 2018 that “[D.R.]’s condition is related to a genetic variant that is known to
cause SCA7, in the absence of any trigger.” (ECF No. 21, p. 234.) There is some
indication in the records that a Sherry Durrett suspected D.R.’s vaccines to have
contributed to his condition via heavy metal toxicity; however, Ms. Durrett is D.R.’s
3

Case 1:18-vv-01242-UNJ Document 46 Filed 04/02/21 Page 4 of 5
chiropractor and that opinion is far outside her area of qualification and not credible.4
(ECF No. 19, pp. 293-300.) Presented with Ms. Durrett’s theory, Dr. Akbar, D.R.’s
pediatric neurologist at The Houston Institute of Neurology for Kids, reiterated that
D.R.’s SCA7 is genetic and that the etiology is otherwise unknown. (ECF No. 19, p.
304.) Petitioner has represented that Dr. Guillory is willing to support vaccine-
causation; however, she has not filed any report by him.5
Pursuant to Vaccine Rule 8(a), the special master “will determine the format for
taking evidence and hearing argument based on the specific circumstances of each
case and after consultation with the parties.” Vaccine Rule 8(d) expressly authorizes
the special master to decide a case based on the written record without holding an
evidentiary hearing.6 In this case, the medical records do not contain preponderant
evidence indicating that D.R.’s condition was vaccine-caused, aggravated, or in any
way vaccine-related. Nor has petitioner filed any expert medical opinion to support her
allegations.
Additionally, under Vaccine Rule 21(b), the special master may dismiss a petition
for failure of the petitioner to prosecute or comply with any order of the special master.
In this case, petitioner was given multiple opportunities to address the issues raised in
my previous orders and in respondent’s Rule 4 Report responding to her allegations.
Moreover, I have already provided petitioner a generous one-year period, since
February 2020, within which to secure an expert opinion. Yet, petitioner has been
unable to comply with the order to file an expert report and has, in fact, repeatedly failed
during the pendency of this case to respond to the filing deadlines set by court orders.
I am sensitive to the fact that petitioner previously indicated that she has had
difficulty securing an expert report due to her own personal circumstances related to the
Covid-19 pandemic. Notably, however, while these circumstances could justify a
motion for extension of time, they do not excuse petitioner’s repeated disregard of her
4 This opinion is outside of Ms. Durrett’s area of qualification in multiple respects. First and most basically,
she is not a medical doctor. Nor does the record reflect that she has any qualification in neurology,
genetics, or toxicology.
5 The medical records filed in this case do contain some records by Dr. Guillory, but these records relate
only to treatment, consisting mainly of prescription slips, consent forms, receipts, and lab results. (ECF
No. 20, pp. 13-33; ECF No. 19, pp. 322-25.) One record indicates Dr. Guillory’s opinion that D.R.’s
condition, though progressive, is aggravated by environmental toxicity. (ECF No. 20, p. 33.) However,
neither it nor any other record by Dr. Guillory expresses any causal opinion by Dr. Guillory as to vaccines.
Moreover, standing alone this record lacks sufficient detail and substantiation to be credible. Apart from
being an M.D., Dr. Guillory’s specific qualifications are not disclosed by the existing record.
6 Special masters “must determine that the record is comprehensive and fully developed before ruling on
the record.” Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020)
(citing Simanski v. Sec’y of Health & Human Servs., 671 F.3d 1368, 1385 (Fed. Cir. 2012); Jay v. Sec’y of
Health & Human Servs., 998 F.2d 979, 983 (Fed. Cir. 1993.)); see also Vaccine Rule 8(d); Vaccine Rule
3(b)(2). The parties must have a full and fair opportunity to present their case and develop a record
sufficient for review. Id. Based on the above-described procedural history, I conclude that petitioner has
had a full and fair opportunity to develop a record.
4

Case 1:18-vv-01242-UNJ Document 46 Filed 04/02/21 Page 5 of 5
deadlines. Moreover, petitioner has been allowed a generous period of time to seek out
an expert report and I specifically confirmed with petitioner during our last status
conference that she felt her deadline was reasonable. Additionally, I provided petitioner
clear notice in my December 4, 2020 Order to Show Cause that her case was at risk for
involuntary dismissal. She subsequently indicated to chambers on January 12, 2021,
that she anticipated meeting her Order to Show Cause deadline.
III. Conclusion
This case is now DISMISSED both for failure to prosecute and for insufficient
proof. The clerk of the court is directed to enter judgment in accordance with this
decision.7
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
7 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
5