VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-01783
Package ID: USCOURTS-cofc-1_18-vv-01783
Petitioner: Edward Francis Upton
Filed: 2018-11-19
Decided: 2020-10-20
Vaccine: influenza
Vaccination date: 2015-10-19
Condition: Guillain-Barré syndrome
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Edward Francis Upton filed a petition on November 19, 2018, alleging that he developed Guillain-Barré syndrome (GBS), specifically a Miller Fisher variant, as a result of an influenza vaccination he received on October 19, 2015. Mr. Upton, who was 63 years old at the time of vaccination, claimed that his symptoms began 38 days after vaccination, on November 26, 2015, with increasing weakness in his hands, muscle soreness, and tingling. He reported difficulty holding objects and balance problems. His medical records indicated a long history, spanning years prior to vaccination, of fluctuating generalized weakness, neurological and muscular problems in his lower back and legs, distal paresthesias, muscle twitches, and easy fatigability. At one point, Amyotrophic Lateral Sclerosis (ALS) was considered but ruled out. The first medical record after vaccination was from an emergency room visit on January 28, 2016, where he complained of generalized weakness and slurred speech. He was admitted to the hospital, and a diagnosis of Miller Fisher variant of GBS was made, with a recorded history of symptoms dating back two days prior to admission. The medical records noted his pre-existing long history of fluctuating generalized weakness. The diagnosis date was consistently reported as January 2016. Mr. Upton's petition was filed under the National Childhood Vaccine Injury Act. The respondent was the Secretary of Health and Human Services. The case was before Special Master Christian J. Moran. Mr. Upton requested multiple extensions to file outstanding medical records and a statement of completion. Despite these extensions and subsequent orders, he failed to submit all requested medical records and did not respond to an order to show cause by September 8, 2020. The Special Master noted that the submitted information did not support an on-Table GBS claim, as the diagnosis occurred in January 2016, outside the Table's 3-42 day window following the October 19, 2015 vaccination. Even if Mr. Upton's alleged symptom onset in November 2015 were credited, the medical records did not mention symptoms until the January 28, 2016 emergency room visit, with only a two-day history recorded. The Special Master found that Mr. Upton had not persuasively shown the January 2016 medical records were erroneous and that his affidavits alone, even if credited, did not necessarily mean he was suffering from GBS at the alleged earlier onset. For an off-Table claim, the Special Master found that Mr. Upton presented no expert testimony or other evidence to establish a medical theory connecting the flu vaccine to his GBS, nor did he address a logical sequence of cause and effect or a proximate temporal relationship outside of his on-Table claim. Consequently, the case was dismissed for failure to prosecute and for insufficient proof. The Clerk was ordered to enter judgment accordingly. Petitioner counsel was Matthew J. Plache. Respondent counsel was Lara A. Englund.

Theory of causation field:
Petitioner Edward Francis Upton, age 63, received an influenza vaccine on October 19, 2015. He alleged developing Guillain-Barré syndrome (GBS), specifically a Miller Fisher variant, with symptom onset on November 26, 2015 (38 days post-vaccination). The medical records indicated a pre-existing, long-standing history of fluctuating generalized weakness and neurological issues. Mr. Upton was diagnosed with GBS in January 2016, which is outside the 3-42 day window for GBS under the Vaccine Injury Table. The public decision does not describe the specific medical theory or expert testimony presented by the petitioner to connect the vaccine to the GBS. The Special Master noted the absence of expert testimony to establish a medical theory for an off-Table claim. The case was dismissed for failure to prosecute and insufficient proof, as the petitioner did not comply with court orders to submit outstanding medical records and failed to provide evidence supporting causation. Special Master Christian J. Moran issued the decision on October 20, 2020. Petitioner counsel was Matthew J. Plache, and respondent counsel was Lara A. Englund.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-01783-0
Date issued/filed: 2020-10-20
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 09/24/2020) regarding 37 DECISION of Special Master. Signed by Special Master Christian J. Moran. (hh) Service on parties made.
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Case 1:18-vv-01783-UNJ Document 38 Filed 10/20/20 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
EDWARD FRANCIS UPTON, *
* No. 18-1783V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: September 24, 2020
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Decision dismissing case;
* failure to prosecute.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Matthew J. Plache, Law Office of Matthew J. Plache, Wolfeboro, NH, for
petitioner;
Lara A. Englund, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Edward Francis Upton filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §300a-10 through 34 (2012) on November 19, 2018. The
petition alleged that he developed Guillain-Barré syndrome as a result of the
influenza (“flu”) vaccination he received on October 19, 2015. The information in
the record, however, does not show entitlement to an award under the Program.
I. Procedural History
On November 19, 2018, Mr. Upton filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10 et seq., alleging that he
suffered from Guillain-Barré Syndrome (“GBS”) as a result of the influenza (“flu”)
vaccine he received on October 19, 2015. See Petition.
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 1:18-vv-01783-UNJ Document 38 Filed 10/20/20 Page 2 of 6
After being ordered to file medical records and a statement of completion,
Mr. Upton requested, and was granted, five motions for extension of time. He then
filed some medical records and statement of completion on April 12, 2019. The
Secretary filed a status report on May 21, 2019, listing outstanding medical records
for Mr. Upton to file. On July 11, 2019, the case was reassigned to the
undersigned. Since the reassignment, Mr. Upton has filed more but not all of the
medical records requested by the Secretary. The Secretary filed a status report on
January 2, 2020, listing medical records still outstanding.
After a status conference held on March 12, 2020, the undersigned ordered
Mr. Upton to file the remaining requested medical records and a status report
addressing the sets of records identified in the Secretary’s January 2, 2020 status
report (or in the alternative, a records request for any records that were
unobtainable), by April 27, 2020. CM/ECF No. 33. Mr. Upton did not meet this
deadline. After a status conference held on May 5, 2020, Mr. Upton was again
ordered to file these medical records, or proof of a records request for any
unobtainable records, by May 12, 2020. Mr. Upton again did not meet this
deadline and was reminded of the overdue filing in an email from chambers on
May 27, 2020. After Mr. Upton’s counsel did not respond to this email, the
undersigned issued an order extending the deadline until June 19, 2020. To date,
Mr. Upton has not filed the ordered medical records or status report.
The undersigned then issued an order to show cause on July 10, 2020. In
that order, Mr. Upton was instructed to show cause as to why this case should not
be dismissed by September 8, 2020. To date, Mr. Upton has not responded.
II. Medical History
As described in the procedural history, Mr. Upton has not complied with
orders to submit records. However, the submitted information supports the
following abbreviated chronology.
Before vaccination, Mr. Upton had a history of neurological issues and “a
long history (years) of fluctuating generalized weakness.” Exhibit 1 at 36.
Specifically, in years prior to his vaccination, he had been “treated for neurological
and muscular problems in his lower back and legs.” Pet. ¶ 3. His medical records
from Reno Neurological also chronicle pre-vaccination neuromuscular issues. See,
e.g., exhibit 4 at 9 (describing Mr. Upton on February 24, 2014, as “a 63-year-old
male who I have seen in the distant past for a variety of complaints to include
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Case 1:18-vv-01783-UNJ Document 38 Filed 10/20/20 Page 3 of 6
distal paresthesias, muscle twitches, easy fatigability, and paresthesias . . . no
definite neuromuscular diagnosis to date”). Exhibit 7 and exhibit 9 document his
pre-vaccination history of similar symptoms, albeit without a clear diagnosis. See,
e.g., exhibit 7 at 4 (Mayo Clinic 2014); exhibit 9 at 7 (neurologist Dr. Louie
records from 2011). Amyotrophic lateral sclerosis (“ALS”) was at one point
considered as a possible diagnosis for Mr. Upton’s symptoms of “twitching in his
left low back,” but was eventually ruled out. Exhibit 7 at 4 (“He has been
evaluated by several neurologists not only in the Reno, Nevada, area but also at
UCSF as the patient at one point had been given a diagnosis of ALS based on an
EMG . . . A diagnosis of ALS has been refuted not only by a local neurologist but
also by a neurologist at UCSF and Forbes North.”). This pre-vaccination history of
symptoms Mr. Upton attributes to his GBS is evident in other medical records
filed, including records from his visits to a sleep specialist 2 days after his
vaccination, in which a long-term history of generalized weakness is suggested.
See exhibit 3 at 16 (“I am constantly on the verge of sleep when inactive. My
muscles feel exhausted.”).
Mr. Upton received the allegedly causative flu vaccination on October 19,
2015. Mr. Upton alleges that 38 days after his vaccination, he began experiencing
symptoms of GBS on November 26, 2015. Pet. ¶ 4. He states that he first noticed
“a growing weakness in his hands, muscle soreness and tingling” during the
Thanksgiving holiday. Id. ¶¶ 4-5. Specifically, he states that he first experienced
“a severely painful sensation in [his] right hand” while shaking a friend’s hand at a
Thanksgiving gathering. Exhibit 6 (Pet’r’s Aff.) ¶ 9. He further states that, “[i]n in
the ensuing weeks, [he] began noticing a growing weakness in [his] hands, muscle
soreness and tingling. [He] began to experience difficulty holding objects and
noticed [he] was dropping things. [He] also began having balance problems.” Id.
¶ 10. He also documents the worsening of his symptoms following the alleged
initial onset at Thanksgiving. Id. ¶¶ 12-19.
It appears that the first medical record after vaccination came from a visit to
an emergency room on January 28, 2016. On January 28, 2016, Mr. Upton visited
the emergency room while on a trip in Florida, complaining of “generalized
weakness and slurred speech since this a.m.” Exhibit 1 at 10. No diagnosis was
made during his initial evaluation and Mr. Upton was admitted to the hospital for
further monitoring. Id. at 15.
A doctor at the University of Miami Hospital recorded a 2-day history of his
symptoms, exhibit 2 at 17, and diagnosed him with “a Miller Fisher variant of the
Guillain-Barré Syndrome,” id. at 22. Mr. Upton’s “long history (years) of
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Case 1:18-vv-01783-UNJ Document 38 Filed 10/20/20 Page 4 of 6
fluctuating generalized weakness” was also noted. Id. at 36. Exhibits 8, 11a, 11b,
and 12 document his GBS treatment following his GBS diagnosis in January 2016.
Though Mr. Upton’s flu vaccination is mentioned in these records, there is no clear
attribution of his GBS to his vaccine. See exhibit 11a at 961. His diagnosis date is
consistently reported as January 2016.
III. Standards for Adjudication
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or 2) that he 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).
When a petitioner (or plaintiff) fails to comply with Court orders to
prosecute her case, the Court may dismiss the case. Sapharas v. Sec’y of Health &
Human Servs., 35 Fed. Cl. 503 (1996); Tsekouras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 810 (Fed. Cir. 1993) (table); Vaccine
Rule 21(c); see also Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180,
1183 (Fed. Cir. 1990) (affirming dismissal of case for failure to prosecute for
counsel’s failure to submit pre-trial memorandum); Adkins v. United States, 816
F.2d 1580, 1583 (Fed. Cir. 1987) (affirming dismissal of case for failure of party to
respond to discovery requests).
IV. Analysis
While Mr. Upton appears to be claiming an on-Table injury, he may also be
asserting an off-Table claim. Therefore, both causes of action are reviewed.
For an on-Table claim, the Vaccine Table affords a presumption of causation
when GBS develops 3-42 days after a flu vaccination. 42 U.S.C. § 100.3(a) ¶ XIV.
In this case, Mr. Upton’s medical records do not support a diagnosis of GBS within
the applicable time frame to establish a Table injury as alleged. He has also been
unresponsive to requests and deadlines set to develop his case with further medical
records or support. Mr. Upton alleges that he began experiencing symptoms of
GBS on November 26, 2015, which was 38 days after his vaccination on October
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19, 2015. Pet. ¶ 4. However, he was not officially diagnosed with GBS until a
hospital admission occurring between January 30, 2016, and February 11, 2016.
Exhibit 2 at 22.
As stated above, the undersigned may not make a finding of causation based
on petitioner’s assertions alone, without support from medical records and/or
expert testimony. 42 U.S.C. § 300aa-13(a)(1); Shyface v. Sec’y of Health &
Human Servs., 165 F.3d 1344, 1349 (Fed. Cir. 1999). Here, though petitioner
alleges his symptoms began in November 2015, and thus that the onset of his GBS
occurred within the time frame prescribed by the Table, there is no mention of his
symptoms in the medical records until his emergency room visit on January 28,
2016, in which a mere 2-day history of symptoms is recorded. Mr. Upton has not
persuasively shown that the January 2016 medical records are erroneous. See
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993)
(reports prepared during medical treatment are presumed reliable). Moreover,
even if Mr. Upton’s affidavits could be credited, the presence of a painful
weakness does not necessarily mean that he was suffering from GBS around
Thanksgiving. Mr. Upton is required to present the report from an expert that he
suffered from GBS at that time. See Waterman v. Sec’y of Health & Human
Servs., 123 Fed. Cl. 564, 574 (2015). Consequently, Mr. Upton has not established
he suffered an on-Table GBS.
As an alternative, Mr. Upton might seek compensation for an off-Table
claim. To establish causation, petitioners bear a burden “to show by preponderant
evidence that the vaccination brought about [the vaccinee’s] injury by providing:
(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).
Mr. Upton has presented no expert testimony or other evidence to establish a
medical theory connecting his flu vaccine to his GBS. Neither has he addressed a
logical sequence of cause and effect, or a proximate temporal relationship outside
of his on-Table claim.
For these reasons, and given that Mr. Upton has not submitted any additional
medical records or expert testimony to support his claim that he suffered GBS
within 3-42 days following his flu vaccination on October 19, 2015, he has failed
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to demonstrate either that he suffered a “Table Injury” or that his injuries were
“actually caused” by a vaccination.
Thus, this case is dismissed for failure to prosecute and 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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