VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01671
Package ID: USCOURTS-cofc-1_19-vv-01671
Petitioner: Valerie Hester for ESTATE OF MARION HESTER
Filed: 2019-10-28
Decided: 2021-08-09
Vaccine: influenza
Vaccination date: 2017-10-24
Condition: influenza A, uncontrolled diabetes, and renal failure
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Valerie Hester, on behalf of the Estate of Marion Hester, filed a petition on October 28, 2019, alleging that Marion Hester passed away as a result of an influenza vaccination administered on October 24, 2017. Ms. Hester was 72 years old at the time of vaccination. Her petition stated that the flu vaccine exaggerated her pre-existing conditions, leading to her death. Ms. Hester's medical history included uncontrolled high blood pressure, severely uncontrolled diabetes, stage 3-4 chronic kidney disease, high cholesterol, gout, left hand swelling, left knee pain, hirsutism, a fall associated with slurred speech, and uterine fibroids. On December 3, 2017, Ms. Hester reported flu-like symptoms for one week, including malaise, cough, congestion, decreased mobility, and increased edema in her ankles, and was hospitalized. She was treated for community-acquired pneumonia, possible gout flare versus diabetic neuropathy, poorly controlled diabetes, hypertension, acute kidney failure, and deconditioning. She was prescribed gabapentin for suspected diabetic neuropathy and antibiotics for pneumonia. She experienced significant improvement in foot pain after being prescribed prednisone, but this worsened her blood sugar, requiring an insulin drip. She was discharged to home care. On January 18, 2018, Ms. Hester was treated for lower back pain and a possible urinary tract infection. She returned to the hospital later that day due to vomiting and was admitted until January 25, 2018. During this admission, she tested positive for influenza A and received Tamiflu and supportive care. Her diabetes was noted as uncontrolled. She complained of pain in the soles of her feet, and her anemia worsened. She lost 20 pounds in the past month. Her discharge diagnoses included influenza A, out-of-control diabetes, hypertension, intractable vomiting with nausea, and acute renal failure superimposed on stage 3 chronic kidney disease. On January 25, 2018, Ms. Hester was found unresponsive and EMS pronounced her deceased. Her death certificate listed influenza A as the immediate cause of death, with an approximate interval of onset to death of five days. Uncontrolled diabetes and renal failure were listed as other significant conditions contributing to death. The petitioner alleged that Ms. Hester's symptoms were consistent with Guillain-Barre syndrome (GBS), although she was never diagnosed with GBS. The Special Master repeatedly granted extensions for the petitioner to file an expert report, which is necessary to prove causation in vaccine injury cases, especially for off-Table claims. The petitioner failed to file the required expert report by multiple deadlines and did not respond to an Order to Show Cause issued on May 3, 2021. Consequently, the Special Master Nora Beth Dorsey dismissed the case for failure to prosecute and insufficient proof, noting that the medical records did not support a Table injury or demonstrate causation for an off-Table injury. The public decision does not describe the petitioner counsel, respondent counsel, or the specific mechanism of injury alleged beyond the exacerbation of pre-existing conditions and the speculative mention of GBS.

Theory of causation field:
Petitioner Valerie Hester, on behalf of the Estate of Marion Hester, filed a petition alleging that Marion Hester, age 72, died as a result of an influenza vaccination administered on October 24, 2017. The petitioner alleged the flu vaccine exaggerated Ms. Hester's pre-existing conditions, leading to her death, and suggested Guillain-Barre syndrome (GBS) as a possible, though undiagnosed, condition. Ms. Hester's death certificate listed influenza A as the immediate cause of death, with uncontrolled diabetes and renal failure as contributing conditions. The case was dismissed by Special Master Nora Beth Dorsey on August 9, 2021, for failure to prosecute and insufficient proof. The dismissal was based on the petitioner's failure to file a required expert report to establish causation, despite multiple extensions and an Order to Show Cause. The Special Master noted that the medical records did not support a Table injury or demonstrate causation for an off-Table injury. No specific experts were named in the public decision, and the mechanism of injury was not established due to the lack of an expert report. The petitioner was represented pro se, and respondent counsel was Sarah Duncan from the U.S. Department of Justice. No award was made as the case was dismissed.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01671-0
Date issued/filed: 2021-08-09
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 7/14/2021) regarding 34 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (mca) Service on parties made. Petitioner served via e-mail.
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Case 1:19-vv-01671-UNJ Document 35 Filed 08/09/21 Page 1 of 5
REISSUED FOR PUBLICATION
AUG 9 2021
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 14, 2021
* * * * * * * * * * * * * * * *
VALERIE HESTER, for ESTATE *
OF MARION HESTER, * UNPUBLISHED
*
Petitioner, * No. 19-1671V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Dismissal Decision; Failure to Prosecute.
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * *
Valerie Hester, pro se, Revere, MA, for petitioner.
Sarah Duncan, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
I. INTRODUCTION
On October 28, 2019, Valerie Hester (“petitioner”), on behalf of the Estate of Ms. Hester,
filed a petition for compensation in the National Vaccine Injury Program (“Vaccine Act” or “the
Program”), 42 U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleged that Ms. Hester passed away
as the result of an influenza (“flu”) vaccination administered on October 24, 2017. Petition at 1
1 Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims’ website in
accordance with the E-Government Act of 2002. 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, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1

Case 1:19-vv-01671-UNJ Document 35 Filed 08/09/21 Page 2 of 5
(ECF No. 1). Petitioner’s petition states, “the flu vaccine exaggerated Ms. Hester’s pre-existing
conditions which led to her death.” Id.
Based on all the reasons set forth below and in the Show Cause Order dated May 3, 2021,
and for failure to comply with the Show Cause Order, the undersigned dismisses this case for
failure to prosecute and insufficient proof.
II. PROCEDURAL HISTORY
Petitioner filed her claim on October 28, 2019, alleging that Ms. Hester passed away as
the result of a flu vaccination administered on October 24, 2017. Petition at 1. Petitioner
submitted proof of vaccination, medical records, and a motion for leave to proceed in forma
pauperis on the same day. See id.; Petitioner’s Exhibits (“Pet. Exs.”) A-F; Motion (“Mot.”) for
Leave to Proceed in forma pauperis, filed Oct. 28, 2019 (ECF No. 2).
On October 31, 2019, the case was reassigned to the undersigned. Notice of
Reassignment dated Oct. 31, 2019 (ECF No. 7). On November 4, 2019, petitioner filed a Letter
regarding Ms. Hester’s medical records. Letter, filed Nov. 4, 2019 (ECF No. 8). Petitioner then
filed additional medical records and a compact disc on December 9, 2019. Pet. Exs. B-C.3
The undersigned held an initial status conference in the case on December 19, 2019. See
Order dated Dec. 19, 2019 (ECF No. 13). The undersigned requested petitioner file additional
medical records, which petitioner did on January 13, 2020. Medical Records, filed Jan. 13, 2020
(ECF No. 14).
Respondent filed respondent’s Rule 4(c) Report on June 29, 2020 recommending against
compensation. Respondent’s Report (“Resp. Rept.”), filed June 29, 2020 (ECF No. 20). On
June 30, 2020, the undersigned ordered petitioner to file an expert report. Order dated June 30,
2020 (ECF No. 21). Petitioner missed her deadline to file an expert report and the undersigned
extended the deadline to October 30, 2020. See Order dated Sept. 2, 2020 (ECF No. 23).
A status conference was held on October 21, 2020 to explain the importance of filing an
expert report in this case. See Order dated Oct. 21, 2020 (ECF No. 26). The expert report
deadline was extended until December 21, 2020. Id. On October 26, 2020, petitioner filed a
response to respondent’s Rule 4(c) Report. Pet. Response to Rule 4(c) Report (“Pet. Response”),
filed Oct. 26, 2020 (ECF No. 27). On November 2, 2020, petitioner refiled the response to
respondent’s report and filed medical records and medical literature. Pet. Response, filed Nov.
2, 2020 (ECF No. 29); Medical Records and Medical Literature, filed Nov. 2, 2020 (ECF No.
30). Petitioner asserted Ms. Hester’s symptoms were consistent with Guillain-Barre syndrome
(“GBS”), although she was never diagnosed with GBS. Pet. Response at 1-2. Petitioner also
filed two pages of an article authored by Michael Sinyakov, titled Death After a Flu Shot: A
Viewpoint. Michael S. Sinyakov, Death After a Flu Shot: A Viewpoint, Herald Open Access
3 Petitioner filed Exhibits A-F on October 28, 2019 and Exhibits B-C on December 9, 2019. For
purposes of this Decision, the undersigned will refer to the Exhibit letter and ECF docket number
for clarity.
2

Case 1:19-vv-01671-UNJ Document 35 Filed 08/09/21 Page 3 of 5
(2015) (accessed at www.hearldopenaccess.us/openaccess/death-after-a-flu-shot-a-
viewpoint.com).
On December 21, 2020, petitioner missed the deadline to file an expert report and the
undersigned issued an order extending petitioner’s deadline to February 26, 2021. Order dated
Dec. 30, 2020 (ECF No. 31). Petitioner again missed the deadline to file an expert report and the
undersigned extended the deadline once more, stating that failure to file an expert report by April
27, 2021 may result in an Order to Show Cause. Order dated Mar. 1, 2021 (ECF No. 32).
Petitioner missed the April 27, 2021 deadline to file an expert report. On May 3, 2021,
2021, the undersigned issued an Order to Show Cause. Order to Show Cause dated May 3, 2021
(ECF No. 33).
This matter is now ripe for adjudication.
III. RELEVANT FACTUAL SUMMARY
Ms. Hester was 72 years old when she received a flu vaccination on October 24, 2017.
Pet. Ex. A (ECF No. 1); Pet. Ex. B (ECF No. 1). Her medical history was significant for
uncontrolled high blood pressure, severely uncontrolled diabetes, stage 3-4 chronic kidney
disease, high cholesterol, gout, left hand swelling, left knee pain, hirsutism, a fall associated with
slurred speech, and uterine fibroids. Medical Records at 1-40, 45-86 (ECF No. 14). In July
2017, Ms. Hester presented to her primary care provider (“PCP”), Dr. Nicole Swiner,
complaining of left hand pain for a week and received medication for a gout flare. Id. at 45-47.
On December 3, 2017, EMS arrived at Ms. Hester’s residence, where she reported flu-
like symptoms for one week, including malaise, ongoing cough and congestion, decreased
mobility, and increased edema in her ankles. Pet. Ex. B at 1-4 (ECF No. 11). She was
transported to the hospital. Id.
Between December 3-11, 2017, Ms. Hester was hospitalized for community-acquired
pneumonia (“CAP”), a possible gout flare versus suspected diabetic neuropathy, poorly
controlled diabetes, hypertension, acute kidney failure, and deconditioning. Pet. Ex. C at 6, 8-10
(ECF No. 11). On admission, Ms. Hester complained of worsening bilateral tingling in her feet
since Thanksgiving, but strength and sensation were grossly symmetric and intact, and she
moved all extremities well. Id. at 12-16. She was prescribed gabapentin for suspected diabetic
neuropathy and antibiotics for CAP. Id. The following day, Ms. Hester reported that her
breathing was better, but she still complained of severe bilateral foot pain. Id. at 24-32. An X-
ray of the feet was consistent with gout and Ms. Hester began taking prednisone with significant
improvement in pain. Id. The prednisone caused worsening of Ms. Hester’s blood sugar, so an
insulin drip was administered. Id. at 17-21. By December 8, 2017, Ms. Hester had completed
her antibiotics and was starting to walk, and her providers recommended discharge to a skilled
nursing facility. Id. at 38. Ms. Hester declined, but was willing to accept home health care. Id.
at 44-46, 50-52.
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Case 1:19-vv-01671-UNJ Document 35 Filed 08/09/21 Page 4 of 5
On January 9, 2018, Ms. Hester followed up with Dr. Swiner for pneumonia, high blood
sugar, and gout. Medical Records at 41-44 (ECF No. 14). Dr. Swiner advised Ms. Hester to
continue the medications the hospital prescribed and eat balanced meals. Id.
On January 18, 2018, EMS arrived at Ms. Hester’s residence. Pet. Ex. B at 5-10 (ECF
No. 11). Ms. Hester reported nausea, vomiting, and constant, painful pressure in her right lower
back. Id. She was transported to the hospital and diagnosed with lower back pain and a possible
urinary tract infection. Id. She was discharged the same day. Id.
Ms. Hester returned to the hospital later that day due to vomiting, and was admitted until
January 25, 2018. Pet. Ex. C at 554-59, 678 (ECF No. 11). Despite treatment she continued to
dry heave and vomit. Id. at 549-53. She tested positive for influenza A and received Tamiflu
and supportive care. Id. at 554-59, 678. Her diabetes was noted to be uncontrolled. Id. at 572.
On January 23, 2018, Ms. Hester complained of pain in the soles of her feet like during a gout
flare. Id. at 623-24. The following day, Ms. Hester vomited after trying a regular diet and
returned to a liquid diet. Id. at 611, 613-17, 626-29. She continued to have a dry cough but no
fever. Id. Her renal function was stable, her blood sugars were better controlled, and her blood
pressure was controlled on Coreg and amlodipine. Id. Her anemia was worse and she was noted
to have lost 20 pounds in the past month. Id. At discharge, Ms. Hester was referred to home
care services. Id. at 629, 632-35. Her discharge diagnoses included influenza A, out of control
diabetes, hypertension, intractable vomiting with nausea, and acute renal failure superimposed on
stage 3 chronic kidney disease. Id. at 554-59.
On January 25, 2018, EMS arrived at Ms. Hester’s residence, where she was found
unresponsive. Pet. Ex. B at 11-15 (ECF No. 11). Ms. Hester’s death certificate documented the
immediate cause of death as influenza A with the approximate interval of onset to death listed as
five days. Pet. Ex. E (ECF No. 1). Other significant conditions contributing to death were
uncontrolled diabetes and renal failure. Id.
IV. ANALYSIS
When a petitioner fails to comply with Court orders to prosecute her case, the court may
dismiss the case. Sapharas v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 503 (1996); Tsekouras
v. Sec’y of Health & Hum. Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 819 (Fed. Cir. 1993);
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 cases for failure of party to respond to discovery requests). Petitioner’s
failure to file an expert report and failure to file any response to the Order to Show Cause
indicates a disinterest in pursuing the claim. Thus, the undersigned finds it appropriate to
dismiss this case for failure to prosecute.
Additionally, to receive compensation under the Act, a petitioner must prove either (1)
that she suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of her vaccinations, or (2) that she suffered an injury that was actually
caused by a vaccine. See §§ 11(c)(1), 13(a)(1)(A).
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Case 1:19-vv-01671-UNJ Document 35 Filed 08/09/21 Page 5 of 5
Here, a review of the records does not show that the Ms. Hester suffered a “Table
Injury.” Further, although petitioner filed medical records, the records did not include any
documentation that Ms. Hester was ever diagnosed with GBS. Instead, the records show that
petitioner passed away from complications of influenza A, uncontrolled diabetes, and renal
failure. Without an expert report providing evidence of vaccine causation, the undersigned finds
that the record does not support a claim under the Vaccine Act, or otherwise include
preponderant evidence demonstrating that petitioner sustained any vaccine injury.
The undersigned expresses her sympathy for petitioner and her family and the ordeal they
went through, but unfortunately the case cannot proceed without proof of causation.
Thus, this case is dismissed for failure to prosecute and for insufficient proof. The
Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
5