VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00970
Package ID: USCOURTS-cofc-1_19-vv-00970
Petitioner: K.A.
Filed: 2019-07-05
Decided: 2022-04-26
Vaccine: varicella, MMR, hepatitis A, Hib, DTaP, Prevnar
Vaccination date: 2016-07-11
Condition: encephalopathy, encephalitis, and audio neuropathy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On July 5, 2019, Tiffany Adams, proceeding pro se, filed a petition on behalf of her minor child, K.A., alleging that the Varicella, MMR, Hepatitis A, Hib, DTaP, and Prevnar vaccines administered on July 11, 2016, caused or significantly aggravated encephalopathy, encephalitis, and audio neuropathy. K.A. was born on June 20, 2015, and had a normal newborn screen. She experienced enteroviral meningitis as a newborn in July 2015, which resolved to baseline. Developmental assessments prior to the vaccinations were generally normal. Ten days after the July 2016 vaccinations, K.A. was seen for decreased hearing and warmth, and later that day presented to the emergency room with clinginess, subjective fever, hearing loss, and vomiting. Her temperature was recorded at 105.9 degrees Fahrenheit, and she was diagnosed with a viral illness. Subsequent medical records documented concerns about hearing, speech delay, persistent serous otitis media requiring ear tubes, normal auditory brainstem response testing, enlarged tonsils and adenoids, and an evaluation consistent with Autism Spectrum Disorder and Global Developmental Delay. A VAERS report filed on May 4, 2017, indicated that the DTaP, HIB, Hep A, MMR, Prevnar 13, and VZV caused a "permanent disability," noting that the day after the vaccines, K.A. stopped responding to sounds. A neurological consultation in July 2017 noted developmental delay and autism spectrum disorder, recommending continued therapy and further studies. An MRI spectroscopy in August 2017 was noted as "normal" overall, though it showed some white matter signal abnormality compatible with gliosis. A repeat MRI in August 2018 showed stable findings consistent with remote insult and mild delay of white matter myelination. In September 2018, K.A.'s pediatrician noted a medical exemption due to Autism and encephalopathy which "may have been related to vaccines given at 15 months." Correspondence in October 2018 with a physician noted that K.A.'s developmental issues were "neurological in origin and therefore, represent, an encephalopathy," and recommended continued therapies. K.A.'s genetic testing, including microarray, fragile X, MECP2, and autism panel, was normal. Mitochondrial whole genome sequencing was also negative. The public decision does not describe K.A.'s counsel's specific withdrawal process beyond stating counsel moved to withdraw and that petitioner proceeded pro se. Special Master Daniel T. Horner dismissed the petition on April 26, 2022. The Special Master found no Table encephalopathy or encephalitis because K.A. did not have an altered level of consciousness, no doctor diagnosed her with acute encephalopathy, and there was no evidence of brain inflammation. The Special Master also found that the medical records did not present a medical theory causally connecting the vaccinations to the alleged injuries, nor a logical sequence of cause and effect. The decision noted that while some treating physicians referenced prior vaccinations or expressed suspicion of a possible vaccine-related encephalopathy, none causally attributed the vaccinations as the cause of the claimed injuries. The Special Master further noted that K.A.'s treating physicians alternatively diagnosed her with autism, and her medical records reflected ongoing evaluation and treatment for the same. The decision referenced prior litigation denying entitlement in cases alleging vaccine-related autism. The Special Master also dismissed the petition for failure to prosecute, noting that petitioner had been given ample opportunity, over 22 months, to provide an expert opinion supporting her claim but failed to do so. Despite being ordered to file an expert report in June 2020, and later given a final 90-day period after proceeding pro se to file an expert opinion or a written brief, petitioner did not comply or respond. The Special Master concluded that petitioner's failure to produce an expert report and failure to respond to the Order to Show Cause constituted a failure to prosecute. No compensation was awarded.

Theory of causation field:
Petitioner alleged that Varicella, MMR, Hepatitis A, Hib, DTaP, and Prevnar vaccines administered on July 11, 2016, to K.A. (age 1.06 years) caused encephalopathy, encephalitis, and audio neuropathy. The petition was dismissed on April 26, 2022, by Special Master Daniel T. Horner for insufficient proof and failure to prosecute. K.A. was born June 20, 2015, and had neonatal enteroviral meningitis that resolved. Pre-vaccine development was generally normal. Post-vaccination, K.A. presented with hearing concerns, fever, vomiting, and was diagnosed with viral illness. Later, she had speech delay, hearing deficit, and persistent serous otitis media. Evaluations were consistent with Autism Spectrum Disorder and Global Developmental Delay. The Special Master found no Table encephalopathy or encephalitis as K.A. lacked altered consciousness, an encephalopathy diagnosis, or evidence of brain inflammation. The medical records did not provide a medical theory connecting the vaccines to the alleged injuries or a logical sequence of cause and effect. Treating physicians noted temporal association or suspicion but did not causally link the vaccines. Petitioner failed to file an expert report or brief despite multiple orders and extensions, leading to dismissal for failure to prosecute. Petitioner's counsel was Tiffany Adams (pro se), and respondent's counsel was Matthew Murphy. No award was made.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00970-1
Date issued/filed: 2022-05-23
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 04/26/2022) regarding 51 DECISION of Special Master, Signed by Special Master Daniel T. Horner. (sw) Service on parties made; petitioner served via first class mail. (dls)
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Case 1:19-vv-00970-UNJ Document 52 FiledR 0E5I/2S3S/U22E D P FagOeR 1 P oUf 1B0LICATION
MAY 23 2022
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-970V
Filed: April 26, 2022
UNPUBLISHED
Special Master Horner
TIFFANY ADAMS, on behalf of K.A., a
minor,
Dismissal; Insufficient Proof;
Petitioner,
Vaccine Rule 21
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Tiffany Adams, Danville, KY, pro se petitioner.
Matthew Murphy, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On July 5, 2019, Tiffany Adams (“petitioner”) filed a petition on behalf of her
minor child, K.A., alleging that K.A. suffered encephalopathy, encephalitis, and audio
neuropathy caused-in-fact, or significantly aggravated by,2 K.A.’s Varicella, MMR,
Hepatitis A, Hib, DTaP, and Prevnar vaccinations administered on July 11, 2016. (ECF
No. 1 (“Pet”).) For the reasons discussed below, this petition is now dismissed.
I. Procedural History
Petitioner filed K.A.’s medical records and an affidavit between September of
2019 and February of 2020. (ECF Nos. 9-22.) Respondent filed his Rule 4(c) report
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 Although petitioner pleaded “significant aggravation” in the alternative, she pleaded facts that are not
compatible with such a claim. Specifically, petitioner states “prior to receiving the MMR, Varicella,
Hepatitis A, Hib, DTaP, [and] Prevnar on July 11, 2016 vaccination(s), petitioner did not suffer from
encephalopathy or any serious related disabilities.” (See Petition at ¶ 5.)
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Case 1:19-vv-00970-UNJ Document 52 Filed 05/23/22 Page 2 of 10
recommending against compensation on June 22, 2020. (ECF No. 26.) Following the
government’s filing of the respondent’s report, I ordered petitioner to file an expert report
supporting her claim. (Sched. Order (NON-PDF), 6/25/2020.) Petitioner’s prior counsel
moved for six motions for extension of time to file the required expert report. (ECF Nos.
27, 30-34.)
Petitioner’s counsel represented that an expert was initially retained to begin
drafting a report, but withdrew for reasons unrelated to the case. (ECF No. 31.) A
second expert was reportedly retained by April of 2021, but that expert needed
additional information from petitioner. (ECF No. 33.) However, petitioner reportedly
became unresponsive to counsel at that time. (Id.) Although petitioner’s expert
reportedly completed a review of the case, petitioner remained unresponsive to her prior
counsel and counsel indicated on August 12, 2021, that he intended to withdraw as
counsel. (ECF Nos. 34-35.) On October 25, 2021, petitioner’s prior counsel advised
that he had resumed contact with petitioner, but that petitioner was seeking other
counsel. (ECF No. 39.)
On October 26, 2021, I issued an Order notifying petitioner that her claim is
currently incomplete; that she has been provided a substantial amount of time to prove
her case; that she had until January 4, 2022, to file a motion to substitute counsel; and
that if she failed to file a motion to substitute that I would entertain a motion to withdraw
by her current counsel and designate petitioner as a pro se petitioner. I explained that
It has now been well over one year since petitioner was ordered to file an
expert report supporting her claim and no expert report has been filed.
Moreover, petitioner is currently represented by counsel experienced in
litigating cases in this program. Petitioner’s current counsel has advised that
this case has already been reviewed by an expert without any resulting
report. I also note that counsel has represented that petitioner’s failure to
communicate with counsel has contributed to delays in this case.
(ECF No. 40, p. 3.) I advised that “I will not allow this case to sit unresolved indefinitely”
and that, in light of the history of the case, I intended to issue an “Order to Show Cause”
why this case should not be dismissed. (Id. at 4.) Petitioner did not effectuate any
substitution of counsel and I granted her counsel’s motion to withdraw on January 10,
2022.3 (ECF No. 46.)
An Order to Show Cause why this case should not be dismissed was also issued
on January 10, 2022, giving petitioner a final period of 90 days to either file an expert
opinion supporting her claim or submit a written brief pursuant to Vaccine Rule 8(d)
explaining why she feels compensation is appropriate in this case. (ECF No. 49.) I
3 As part of his subsequent motion to withdraw, petitioner’s counsel confirmed that “[c]ounsel for petitioner
diligently and repeatedly contacted petitioner to discuss the Order, including sending her a copy of the
Order via certified, regular and electronic mail, calling client (7) times and sending her (3) follow up e-
mails.” (ECF No. 41, p. 2.) Petitioner’s counsel represented that his certified mailing confirmed
petitioner’s receipt of the order on November 9, 2021. He further indicated that petitioner contacted him
on December 30, 2021, and informed him that she wished to proceed as a pro se petitioner. (Id.)
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Case 1:19-vv-00970-UNJ Document 52 Filed 05/23/22 Page 3 of 10
explained that “[a]bsent the granting of a motion for extension of time, the deadline set
by this order will represent petitioner’s final opportunity to file a medical opinion
supporting her claim or to explain pursuant to Vaccine Rule 8(d) why she otherwise
believes she is entitled to compensation. If petitioner fails to comply with this order, this
case will be involuntarily dismissed for failure to prosecute.” (Id. at 4 (original emphasis
omitted).) I instructed that petitioner could show good cause for a motion for extension
of time if she could provide a written statement by a medical expert indicating that he or
she is willing to opine and that a complete report would be forthcoming. (Id.)
The April 11, 2022 deadline set by the Order to Show Cause passed and
petitioner did not file an expert report or any other response. Petitioner has not
otherwise been in contact with the Court in any other manner.
II. Factual History as Reflected in the Medical Records
K.A. was born on June 20, 2015, vaginally, at 40 2/7 weeks, with no
complications. (Ex. 9, p. 17, 20.) K.A.’s newborn screen was normal. (Ex. 5, p. 37.)
Petitioner, K.A.’s mother, had a history of gestational diabetes, hypothyroidism,
sarcoidosis, GERD, obesity, hypertension, depression, and urticaria. (Ex. 9, p. 10; Ex.
4, pp. 8-9, 43, 130.)
On July 7, 2015, K.A. sought emergency treatment at the University of Kentucky
Medical Center for a temperature of 101.8 degrees. (Ex. 5, pp. 40-41.) The emergency
room practitioners completed a full septic workup. (Id.) K.A.’s lumbar puncture
displayed an elevated white blood cell count and she was started on Ampicillin,
Cefotaxime, and Acyclovir. (Id. at 40.) K.A.’s PCR for enterovirus was positive. (Id.)
K.A. was discharged on July 8, 2015, with a diagnosis of enteroviral meningitis, and
instructed to seek follow-up evaluation with her pediatrician. (Id.)
Following her emergency room visit, on July 17, 2015, K.A. sought evaluation
with her pediatrician, Kristine Anido, M.D. (“Dr. Anido”) at White House Clinics. (Ex. 5,
pp. 17-18.) Since discharge, petitioner reported that K.A. had returned to baseline. (Id.)
K.A.’s physical examination was normal. (Id.)
On August 27, 2015, K.A. returned to Dr. Anido’s office for a well-child visit. (Ex.
5, pp. 11-15.) K.A. passed a developmental assessment and was diagnosed with reflux
and placed on Ranitidine. (Id.) K.A. was also diagnosed with ankyloglossia [tongue
unable to protrude completely]. (Id.) K.A. also received vaccinations in connection with
the visit. (Id.) On November 2, 2015, K.A. returned to Dr. Anido for her four-month
well-child examination. (Ex. 5, pp. 6-9.) K.A. passed her developmental assessment.
(Id.)
On January 4, 2016, during K.A.’s sixth-month well-child examination with
Joshua Wiglesworth, M.D. (“Dr. Wiglesworth”), she was developmentally appropriate,
including vocalizing single consonants, smiling, and turning to sounds. (Ex. 5, pp. 47-
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Case 1:19-vv-00970-UNJ Document 52 Filed 05/23/22 Page 4 of 10
50.) K.A.’s GERD improved and she no longer required medications. (Id.) She
received her routine vaccinations that day. (Id.)
On January 29, 2016, at age seven months, K.A. began treatment with Nurse
Practitioner, Ruth Nelson Crab Orchard Primary Care. (Ex. 3, pp. 9-11.) K.A. sought
treatment for an ear check and petitioner noted that K.A. was pulling at her teeth at
times. (Id.) A developmental assessment was not conducted during that visit. (Id.)
On March 25, 2016, K.A. had her nine-month physical with Nurse Nelson. (Ex. 3
at 19.) K.A. stood holding on, fed herself, sat without support, and jabbered
mama/dada. (Id.) On June 22, 2016, K.A. had a twelve-month physical wherein the
petitioner reported that K.A. was healthy, but there was not a detailed developmental
assessment. (Ex. 3 at 18.) However, the physical assessment indicated that K.A. was
developing normally for a one-year old. (Id.)
On July 11, 2016, K.A. received the subject vaccinations, including MMR,
varicella, Hepatitis A, Hib, DTaP, and Prevnar at Lincoln County Health Department in
Stanford, Kentucky. (Ex. 2, p. 1.)
On July 21, 2016, K.A. sought treatment at Crab Orchard Primary Care because
petitioner was concerned about K.A.’s decreased hearing and noted that K.A. was warm
the night before. (Ex. 3, pp. 3-4.) K.A. exhibited decreased hearing, and she was
referred to an audiologist. (Id.) Later the same day, K.A. went to the emergency room
at University of Kentucky Medical Center for clinginess, subjective fever, hearing loss,
and one episode of vomiting. (Ex. 8, pp. 17-18.) The emergency room physician
documented that she was appearing ill, but in no acute distress. (Id.) K.A.’s
temperature was 105.9 and she was given Tylenol and hydrated. (Id.) K.A. was
discharged the same day and diagnosed with a viral illness. (Id.)
On September 9, 2016, K.A. returned to Nurse Nelson at Crab Orchard Primary
Care for hearing concerns. (Ex. 3, pp. 5-6.) Petitioner reported that K.A. was not
talking or responding to noise. (Id. at 5.) Nurse Nelson diagnosed K.A. with speech
delay and a hearing deficit, and referred her to an ENT. (Id.) On November 3, 2016,
K.A. presented to Drs. McDowell and Hignight, ENT. (Ex. 10, p. 1.) Petitioner noted
that K.A. had hearing loss shortly after her one-year vaccinations. (Id.) On November
18, 2016, K.A. had tubes inserted into her ears for persistent serous otitis media at
Ephraim McDowell Regional Medical Center. (Ex. 7, p. 3.)
On February 17, 2017, K.A. presented to the University of Kentucky
ENT/Otolaryngology Clinic to have an auditory brainstem response evaluation for her
history of speech and language delay. (Ex. 1, p. 3.) K.A.’s test was normal bilaterally.
(Id.) On April 18, 2017, K.A. presented to ENT, Dr. McDowell. (Ex. 10, p. 2, 16.) K.A.
had significant symptoms of sleep disordered breathing with markedly enlarged tonsils
and adenoids. (Id.) Dr. McDowell noted that K.A. was scheduled to have a
tonsillectomy and adenoidectomy on April 24, 2017. (Id.)
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On May 4, 2017, a VAERS report was completed indicating that the DTaP, HIB,
Hep A, MMR, Prevnar 13, and VZV caused a “permanent disability.” (Ex. 6, pp. 697-
699.) Specifically, the VAERS report notes that “the second day after vaccines, [K.A.]
stopped responding to sounds.” (Id.)
On June 19, 2017, K.A. had an autism evaluation at Cincinnati Children’s
Hospital. (Ex. 6, pp. 2-6.) K.A.’s evaluation was consistent with the diagnosis of
Autism Spectrum Disorder and Global Developmental Delay. (Id.)
On July 19, 2017, K.A. saw Mark Schapiro, M.D. (“Dr. Schapiro”) at Cincinnati
Children’s for a neurological consultation due to developmental regression, global
developmental delay, and mixed receptive and expressive language disorder. (Ex. 1,
pp. 12-15.) K.A. was receiving speech, occupational, and developmental therapy from
Kentucky First Steps. (Id.) Following his evaluation, Dr. Schapiro felt that K.A. had
developmental delay and autism spectrum disorder. (Id.) Dr. Schapiro also noted that
“if her primary care team has concerns about future immunizations, then they should
consider referral to Infectious Disease for guidance on future immunizations.” (Id.) Dr.
Schapiro recommended continued therapy, video EEG for staring spells, and follow-up
with neurology as needed. (Id.) He also recommended several studies to look for a
possible cause for the developmental regression, including an MRI spectroscopy,
metabolic work-up, mitochondrial work-up, and TSH. (Id.) K.A.’s EEG that day was
normal. (Ex. 6, p. 157.)
On July 21, 2017, K.A. had her two-year examination with Praveena Salins, M.D.
(“Dr. Salins”). (Ex. 1, pp. 42-45.) K.A. was non-verbal and autistic. (Id.) Dr. Salins’
assessment was autistic disorder. (Id.)
On August 5, 2017, K.A. presented for an MRI spectroscopy, which showed a
focus of T2/FLAIR hyperintense signal in the left periatrial white matter with associated
periventricular white matter volume loss compatible with gliosis from remote insult or
injury, and also a discrete multicystic T2 hyperintense lesion in the left posterior
periventricular white matter. (Ex. 1, p. 17.) However, overall, the radiologist noted
K.A.’s MRI spectroscopy was “normal.” (Id.)
On February 6, 2018, K.A. presented to Rehabilitation Services at Ephraim
McDowell Health for evaluation of autism and global developmental delays. (Ex. 1, pp.
20-24.) Following evaluation, the assessment exhibited that K.A. had autism with
delayed play skills, delayed self-regulation, and sensory processing and fine motor
delays. (Id. at 21.) Occupational therapy was recommended. (Id.)
K.A.’s autism genetic panel was completed on March 27, 2018 and was negative.
(Ex. 6, pp. 680-681.)
On June 14, 2018, K.A. saw Nurse Practitioner, Karen Burkett (“NP Burkett”) with
developmental and behavioral pediatrics at Cincinnati Children’s Hospital. (Ex. 6, pp.
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291-292.) NP Burkett ordered additional testing including an intellectual disability panel,
mitochondrial panel, and a genetics panel. (Id.)
On August 17, 2018, K.A. had a repeat brain MRI, which showed stable
multiloculated CSF fields, slightly dilated occipital horn of the left lateral ventricle with
adjacent punctate foci of T2/FLAIR signal abnormality in the left trigonal white matter
consistent with remote insult, mild delay of white mater myelination, and sinus findings.
(Ex. 6, p. 352.) On August 21, 2018, petitioner and Mark Schapiro, M.D. (“Dr.
Schapiro”) discussed the repeat MRI and Dr. Schapiro noted that the repeat MRI did not
show a tumor. (Ex. 6, p. 595.)
K.A. presented for her three-year-old physical with Dr. Salins on September 14,
2018. (Ex. 1, pp. 48-50.) K.A. had severe speech disturbance, autistic disorder, and
global developmental delay. (Id.) As to vaccinations, Dr. Salins noted that K.A. “has [a]
medical exemption due to Autism and encephalopathy which may have been related to
vaccines given at 15 months.” (Id.)
On October 9, 2018, petitioner and Julia Anixt, M.D. (“Dr. Anixt”) corresponded
regarding K.A.’s developmental regression. (Ex. 1, pp. 30-36.) Dr. Anixt noted that
K.A.’s genetic testing, including a microarray, fragile X, MECP2, and her autism panel
was normal. (Id. at 34.) Dr. Anixt’s noted that her developmental issues were
“neurological in origin and therefore, represent, an encephalopathy.” (Id.) Dr. Anixt
recommended continued additional therapies. (Id.)
On October 30, 2018, K.A.’s mitochondrial whole genome sequencing was
completed, and no mutation was identified. (Ex. 6, pp. 446-450.)
On February 8, 2019, K.A. saw Dr. Salins as petitioner reported that she was not
sleeping well for the past three months. (Ex. 1, p. 51.) Dr. Salins diagnosed K.A. with
sleep disturbance. (Id.)
III. K.A.’s Medical Records Do Not Preponderantly Support Petitioner’s
Claim
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). 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
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Case 1:19-vv-00970-UNJ Document 52 Filed 05/23/22 Page 7 of 10
an 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).
Here, petitioner has not alleged a Table injury, and the medical record evidence
does not support such a claim. Encephalopathy and encephalitis are Table injuries for
vaccines containing whole cell pertussis bacteria, extracted or partial cell pertussis
bacteria, or specific pertussis antigen(s), including, DTaP within 72 hours of vaccination,
and for vaccines containing measles, mumps, and rubella virus or any of its
components, including MMR within five-to-15 days following vaccination. See 42 C.F.R.
§ 100.3. However, K.A. never had an altered level of consciousness, and accordingly,
would not meet the criteria for an acute encephalopathy; nor did any of her doctors
diagnose her with an acute encephalopathy. See 42 C.F.R. § 100.3(c)(2)(i)(A)(1).
Moreover, she did not have evidence of encephalitis, which requires evidence of an
inflammatory process within the brain by way of detection of an abnormal white blood
count in the CSF, EEG findings consistent with encephalitis, or neuroimaging studies
consistent with an encephalitis. See 42 C.F.R. § 100.3(c)(3)(i)(A)(B). None of this is
evidenced in KA’s history. Thus, even if petitioner pled Table injuries in this case, the
evidence does not support such claims.
With respect to petitioner’s cause-in-fact claim, K.A.’s medical records present
neither a medical theory causally linking her subject vaccinations to her alleged injuries
of encephalopathy, encephalitis, and audio neuropathy, nor a logical sequence of cause
and effect showing that the vaccines were the reason for her alleged injuries. Petitioner
also has not offered any evidence to show that the onset of K.A.’s alleged vaccine
injuries occurred in a timeframe within which vaccine causation could be ascribed.
While some of K.A.’s treating medical providers reference the fact of K.A.’s prior
vaccinations, or express suspicion of a possible, prior vaccine-related encephalopathy
(see Ex. 1, p. 48), none of them causally attribute the vaccinations as the cause of her
claimed injuries.4 Rather, K.A.’s treating physicians alternatively diagnosed her with
autism and her medical records reflect ongoing evaluation and treatment for the same.
4 Medical records and/or statements of a treating physician do not per se bind the special master to adopt
the conclusions of such an individual, even if they must be considered and carefully evaluated. See 42
U.S.C. §300aa-13(b)(1) (providing that “[a]ny such diagnosis, conclusion, judgment, test result, report, or
summary shall not be binding on the special master or court”); Snyder v. Sec'y of Health & Human Servs.,
88 Fed. Cl. 706, 746 n.67 (2009) (“there is nothing ... that mandates that the testimony of a treating
physician is sacrosanct—that it must be accepted in its entirety and cannot be rebutted”). In fact, if the
treating physician is simply recognizing a temporal association, it offers little to nothing on the question of
causation. Isaac v. Sec’y of Health and Human Servs., No. 08-601V, 2012 WL 3609993, at *26 (Fed. Cl.
Spec. Mstr. July 30, 2012); see also Devonshire v. Sec’y of Health and Human Servs., No. 99-031V,
2006 WL 2970418, at *19 (Fed. Cl. Spec. Mstr. Sept. 28, 2006) (medical expert’s “post hoc ergo proptor
hoc reasoning…has been consistently rejected by the Court and is ‘regarded as neither good logic nor
good law’”) (quoting Fricano v. U.S., 22 Cl. Ct. 796, 800 (1991) (emphasis in original)); see also
Stapleford v. Sec’y of Health and Human Servs., No. 03-234V, 2009 WL 1456441, at *17 n.24 (Fed. Cl.
Spec. Mstr. May 1, 2009) (referencing medical record “is quite different from an indication that such
physician has reached a conclusion concerning a causal relationship”) (emphasis in original), aff’d, 89
Fed. Cl. 456 (Fed. Cl. 2009).
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Entitlement has consistently been denied in cases alleging vaccine-related autism
following an extensively litigated omnibus proceeding with six test cases. See e.g.,
Cedillo v. Sec’y of Health & Human Servs., No. 98-916V, 2009 WL 331968 (Fed. Cl.
Spec. Mstr. Feb. 12, 2009), aff’d, 89 Fed. Cl. 158 (2009), aff’d, 617 F.3d 1328 (Fed. Cir.
2010); Hazlehurst v. Sec’y of Health & Human Servs., No. 03-654V, 2009 WL 332306
(Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d 88 Fed. Cl. 473 (2009), aff’d, 604 F.3d 1343
(Fed. Cir. 2010); Snyder v. Sec’y of Health & Human Servs., No. 01-162V, 2009 WL
332044 (Fed. Cl. Spec. Mstr. Feb. 12, 2009), aff’d, 88 Fed. Cl. 706 (2009); King v. Sec’y
of Health & Human Servs., No. 03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar.
12, 2010); Mead v. Sec’y of Health & Human Servs., No. 03-215V, 2010 WL 892248
(Fed. Cl. Spec. Mstr. Mar. 12, 2010); Dwyer v. Sec’y of Health & Human Servs., No. 03-
1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010). And, in any event,
petitioner has offered no theories of causation to suggest K.A.’s autism may have been
vaccine-related.
As noted above, the Vaccine Act itself forbids a special master from ruling in
petitioner’s favor based solely on his or her assertions; rather, the petition must be
supported by either medical records or by the opinion of a competent physician. 42
U.S.C. § 300aa-13(a)(1). Accordingly, petitioner could theoretically have proven a case
by amplifying K.A.’s medical records with additional expert opinion explaining how and
why K.A.’s vaccines should be viewed as a cause of encephalopathy, encephalitis, or
audio neuropathy. However, despite having been given a full and fair opportunity to
submit an expert report, petitioner did not provide such an opinion.
IV. Dismissal Is Also Appropriate for Failure to Prosecute
Special Masters are meant to provide the parties a “full and fair opportunity” to
present their respective cases. See Vaccine Rule 3(b)(2)(emphasis added); see also
Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1365-66 (Fed. Cir.
2020). 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. Additionally, Vaccine Rule 21(b)(1) provides that “[t]he special
master or the court may dismiss a petition or any claim therein for failure of the
petitioner to prosecute or comply with these rules or any order of the special master or
the court.”
Here, petitioner has been provided a full and fair opportunity to develop the
record. Petitioner was provided ample opportunity (22 months in total) to provide an
expert opinion supporting her claim, inclusive of the period during which she was
represented by counsel and the period during which she continued as a pro se
petitioner. However, she did not do so. Moreover, her counsel represented that the
inability to come forward with an expert opinion during that time was directly impacted
by petitioner’s failure to provide a retained expert with necessary information and to
consistently communicate with counsel. The obligation to diligently pursue this claim
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includes an obligation for petitioner to cooperate with her own counsel to prosecute her
case. E.g. Fisher v. Sec'y of Health & Human Servs., No. 10-784V, 2012 WL 2202940
(Fed. Cl. Spec. Mstr. May 10, 2012) (explaining that “[t]hrough her own
unresponsiveness to counsel, petitioner has failed to prosecute her claim. Accordingly,
dismissal is now appropriate.”) Petitioner was first ordered to file an expert report in
June of 2020. Even allowing for the unforeseen exit of her first potential expert,
petitioner’s counsel confirmed that a second expert had been identified by April of 2021.
After that, petitioner has had fully a year to produce a report yet has failed to do so. See
Winner v. Sec'y of Health & Human Servs., No. 00-736V, 2013 WL 6139637 (Fed. Cl.
Spec. Mstr. Oct. 31, 2013) (dismissing a case for insufficient proof where petitioners did
not produce an expert report after five motions for extension of time).
After petitioner and her counsel determined that she would proceed pro se, I
provided petitioner with explicit warning that her case was in jeopardy of dismissal due
to dilatory behavior and allowed her 90 days to either identify an expert to opine or
provide a written brief supporting her claim pursuant to Vaccine Rule 8(d). She did
neither. Nor, in fact, did she provide any response at all or contact the court in any way.
In my October 26, 2021 order giving petitioner time to locate new counsel, I had
cautioned that:
The obligation to prosecute this case is not counsel’s alone. It extends to
petitioner’s own cooperation with counsel to present the evidence
necessary to pursue her claim. Additionally, if petitioner does not retain new
counsel and I allow current counsel to withdraw, then petitioner will become
what is known as a “pro se” or unrepresented petitioner. In that case,
petitioner will become solely responsible for meeting all deadlines and filing
obligations pursuant all orders issued by the undersigned.
(ECF No. 40, p. 3 (emphasis original).)
Subsequently, in my January 10, 2022, Order to Show cause, I specifically
warned that:
Because petitioner is currently proceeding on a pro se basis, petitioner is
solely responsible for meeting all deadlines and filing obligations pursuant
to this order or any other order issued by the undersigned. Petitioner should
read this order carefully as it explains how to avoid involuntary dismissal of
her claim. Pursuant to this order, petitioner must act by no later than
Monday, April 11, 2022.
(ECF No. 49, p. 1 (original emphasis omitted).) Significantly, I also explained to
petitioner how she could avoid dismissal by at a minimum showing good cause for a
motion for extension of time. She did not do so. Additionally, I explained that, even if
she did not produce an expert report, petitioner could advocate for her claim in a written
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brief. She did not do so. These failures are not in keeping with an intention to continue
prosecution of this case.
Accordingly, it is reasonable and appropriate to resolve this case on the existing
record pursuant to Vaccine Rule 8(d) as petitioner has had a full and fair opportunity to
present her case. Moreover, petitioner’s failure to produce an expert report and failure
to respond to the Order to Show Cause constitute a failure to prosecute pursuant to
Vaccine Rule 21(b) that forms a separate basis for dismissal. Tsekouras v. Sec'y of
Health & Human Servs., 26 Cl. Ct. 439 (1992), aff'd, 991 F.2d 810 (Fed. Cir. 1993) (per
curiam), (“[c]ontrolling precedent considers dismissal appropriate when failure to act is
deemed willful, when it is in violation of court orders, when it is repeated, and when
clear warning is given that the sanction will be imposed”); Sapharas v. Sec'y of Health &
Human Servs., 35 Fed. Cl. 503 (1996) (“[n]ot only did petitioner fail to meet the court's .
. . deadline, but he also ignored the chief special master's ‘warning’ order, clearly
placing petitioner on notice that failure to respond to the court's order . . . would result in
dismissal of the claim. The chief special master clearly did not abuse his discretion in
dismissing this case for failure to prosecute”); Corbett ex rel. N.C. v. Sec’y of Health &
Human Servs., 17-460V, 2021 WL 6062952 (Fed. Cl. Spec. Mstr. Dec. 2, 2021)
(dismissing case pursuant to Vaccine Rule 21(b) due to pro se petitioner’s failure to
respond to orders demonstrating an interest in maintaining the case); Garrard v. Sec’y
of Health & Human Servs., 20-1331V, 2021 WL 1235362 (Fed. Cl. Spec. Mstr. Mar. 10,
2021) (same).
V. Conclusion
This case is now DISMISSED both for failure to prosecute and for insufficient
proof. Absent a motion for review, the clerk of the court is directed to enter judgment in
accordance with this decision.5
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
5 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.
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