VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00885
Package ID: USCOURTS-cofc-1_20-vv-00885
Petitioner: Gesdia Kelly
Filed: 2020-07-21
Decided: 2023-08-15
Vaccine: MMR
Vaccination date: 2017-08-24
Condition: severe bilateral shoulder pain and chest pain
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Gesdia Kelly filed a claim alleging severe bilateral shoulder pain and chest pain following her July 21, 2017, and August 24, 2017, measles, mumps, and rubella (MMR) vaccinations. The petition was filed on July 21, 2020. Petitioner initially had legal representation, submitting medical records as evidence. Respondent argued that petitioner had not demonstrated a cognizable injury or proven causation. Petitioner's counsel later withdrew, and the court ordered Ms. Kelly, proceeding pro se, to file an expert report to support her claim. Despite multiple extensions and clear warnings, Ms. Kelly failed to file an expert report or any other response to the court's orders. The court noted that prior to vaccination, Ms. Kelly had a history of chest pain evaluations with negative cardiac workups. After vaccination, she presented with chest pain, diagnosed as acute chest wall pain. Her primary care provider noted "other complications following immunization" and prescribed medication, but no upper extremity symptoms were documented at that time. Subsequent evaluations by specialists, including a cardiologist and neurologists, found no cardiac or neurological basis for her reported symptoms, and her primary care providers eventually questioned if her symptoms were psychosomatic. The court found that Ms. Kelly failed to present a cognizable injury and did not meet her burden of proving causation by a preponderance of the evidence, as no diagnosis was ever reached and no expert report was provided. The case was dismissed both on the merits for failure to prove entitlement and for failure to prosecute due to her inaction following counsel's withdrawal and the court's orders.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00885-0
Date issued/filed: 2023-08-15
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 7/21/2023) regarding 62 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (ksb) Service on parties made.
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Case 1:20-vv-00885-UNJ Document 63 Filed 08/15/23 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-885V
GESDIA KELLY,
Filed: July 21, 2023
Petitioner,
v. Reissued for Public Availability:
August 15, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Gesdia Kelly, Linthicum Heights, MD, pro se petitioner.
Dorian Hurley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On July 21, 2020, petitioner filed a claim under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa, et seq. (2012), alleging that she suffered severe pain,
including but not limited to severe bilateral shoulder pain and chest pain, following
receipt of her July 21, 2017, and August 24, 2017, measles, mumps, and rubella
(“MMR”) vaccinations. (ECF No. 1.) For the reasons discussed below, I now find that
petitioner is not entitled to compensation and her petition is dismissed.
I. Procedural History
At the time the petition was initially filed petitioner was represented by counsel.
On petitioner’s behalf, her counsel filed affidavits and medical records marked as
Exhibits 1-19. Petitioner filed a Statement of Completion on April 22, 2022. (ECF No.
23.) On July 14, 2021, respondent filed his Rule 4 Report. (ECF No. 26.) Respondent
recommended that the case be dismissed, contending, inter alia, that petitioner had not
demonstrated a cognizable injury or proven causation-in-fact. (Id. at 12-14.)
Thereafter, petitioner was provided an opportunity to file an amended petition
clarifying the injury at issue as well as additional medical records and an expert report to
1 Pursuant to Vaccine Rule 18(b), this Decision was initially filed on June 21, 2023, and the parties were
afforded 14 days to propose redactions. The parties did not propose any redactions. Accordingly, this
Decision is reissued in its original form for posting on the court’s website.
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support her claim. (ECF No. 27.) Petitioner filed additional medical records and other
documents marked as Exhibits 20-24 and an amended Statement of Completion;
however, petitioner’s counsel filed a motion to withdraw from the case on December 28,
2022, without having been able to secure an expert opinion and without amending the
petition. (ECF No. 45.) I granted the motion on March 16, 2023. (ECF No. 56.) From
the time petitioner was first ordered to file an expert report until counsel filed her motion
to withdraw, petitioner had over a year within which to investigate through counsel
whether an expert report and amended petition could be filed.2
After the withdrawal of petitioner’s former counsel, I issued an Order to Show
Cause directing petitioner to file an expert report supporting her claim by no later than
June 20, 2023. (ECF No. 57, p. 4.) I noted that petitioner had already been given a full
and fair opportunity to secure an expert report and informed her that, based on my
review of the record, “petitioner must file an expert medical opinion to have any
possibility of prevailing.” (Id.) However, in light of her former counsel’s withdrawal, I
allowed petitioner an additional 90 days to obtain and file an expert report. (Id.) I
further explained that petitioner, as a pro se petitioner, was solely responsible for
meeting all deadlines and filing obligations. (Id. at 4-5.) I provided instructions for
seeking additional time and warned petitioner that failure to respond to the Order to
Show Cause would result in involuntary dismissal of petitioner’s claim. (Id. at 1, 4.)
Petitioner subsequently allowed her June 20, 2023, show cause deadline to
lapse without completing any filing. On June 21, 2023, I issued a further order putting
petitioner on notice of my intent to issue a decision dismissing this case on today’s date
if she did not take action. (ECF No. 61.) This order gave petitioner a further 30 days to
act in order to prevent issuance of the instant decision. Petitioner again failed to
complete any filing.
In total, petitioner was allowed over two and a half years within which to seek an
expert opinion to support her claim, including seven months from the time her counsel
first advised she would be moving to withdraw and four months from the undersigned’s
issuance of the order to show cause why this case should not be dismissed. Petitioner
was provided multiple notices that her claim was at risk of dismissal. However,
petitioner has had no contact with the court subsequent to her counsel’s withdrawal.
II. Factual History
The following is a very brief summary of petitioner’s post-vaccination medical
history. Although this summary reflects only a broad overview of that history, I have
reviewed all of the medical records and other documents in evidence and have
considered the record as a whole in reaching my conclusion.
2 At one point petitioner’s counsel filed a motion for extension of time indicating that she had lost contact
with petitioner and was concerned the loss of contact might be medically related. (ECF No. 43.)
However, in the subsequently filed motion to withdraw as counsel, petitioner’s counsel confirmed the
resumption of contact, though suggesting that contact had been limited to a “few occasions.” (ECF No.
45-2, p. 2.)
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Prior to the vaccinations at issue, petitioner had a history of presenting to the
emergency department (“ED”) for various conditions, including short-lived, non-radiating
substernal chest pain. (See, e.g., Ex. 4, pp. 544-45, 693-94, 759-61, 823-27.)
However, her work ups were negative for any acute cardiac condition. (Ex. 8, pp. 10-11
(ED encounter 8/7/15); Ex. 4, pp. 825-27 (ED encounter 8/29/16), 760 (ED encounter
9/9/16), 695-96 (ED encounter 10/14/16), 546-47 (ED encounter 4/7/17); Ex. 13, pp. 11-
12 (cardiology consultation 8/30/16), 7 (cardiology consultation 10/5/16).)
On July 21, 2017, and August 24, 2017, petitioner received MMR vaccinations in
her left upper arm. (Ex. 3, pp. 2-5.) On August 28, 2017, petitioner presented to the
Abrazo Arrowhead ER with a chief complaint of “chest pain starting Friday [August 25,
2017] after receiving MMR vaccine on Thursday [August 24, 2017].” (Ex. 4, p. 401.)
Petitioner was diagnosed with “[a]cute chest wall pain” and discharged in stable
condition with instructions to follow up with a primary care provider. (Id. at 404, 417-24.)
The discharge instructions explained that “[c]hest wall pain is pain in or around the
bones and muscles of your chest. Sometimes, an injury causes this pain. Sometimes,
the cause may not be known.” (Id. at 422.)
Eight days later, on September 5, 2017, petitioner was seen by Physician
Assistant James Marczak at Bennett Family Medical Center to establish care as a new
patient. (Ex. 20, p. 73.) PA Marczak assessed petitioner as having chest pain and
“[o]ther complications following immunization.” (Id. at 76.) He noted “MMR post-
marketing has been [sic] reports of neuritis,” prescribed petitioner Neurontin, and
instructed her to return in seven to ten days if her symptoms were not resolved. (Id.)
However, this record included no mention of the upper extremity pain, weakness,
numbness or tingling that petitioner would later report. For example, petitioner first
reported numbness and tingling going up her left arm on October 3, 2017. (Ex. 24, p.
54.)
Bennet Family Medical Center continued treating petitioner symptomatically for a
presumed vaccine reaction without ever identifying a specific injury or etiology.
However, petitioner also sought care from other providers, including Honor Health Deer
Valley Medical Center Emergency Department; Abrazo Scottsdale Emergency
Department; cardiologist David Lin, M.D.; ATI Physical Therapy; neurologist Ahmed El-
Gengaihy, M.D.; neurologist Leo Kahn, M.D.; and Pain Center of Arizona – Deer Valley.
These providers pursued extensive evaluation of petitioner’s alleged symptoms.
As of September 26, 2017, petitioner’s cardiologist, Dr. Lin, found petitioner “to
be stable from a cardiovascular standpoint” and indicated that her “chest pains sound
very atypical for a cardiac etiology.” (Ex. 14, p. 6.) Dr. Lin indicated that her “exam
suggests that there is a musculoskeletal etiology” for her condition and that he was not
aware of the MMR vaccine being able to produce petitioner’s symptoms. (Id.)
Petitioner underwent an EMG/NCS study on January 8, 2018. (Ex. 18, p. 8-9.)
The study was normal, with no electro-physical evidence indicative of a cervical
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radiculopathy, carpal tunnel syndrome, neuropathy, or myopathy. (Id. at 9.) As of
February 16, 2018, petitioner’s neurologist, Dr. Kahn, concluded that there was “no
neurological basis for [petitioner’s] reports of intermittent bilateral upper extremity
paralysis” and that he did “not identify any neurological relationship between the MMR
vaccine and [petitioner’s] clinical symptomatology.” (Ex. 24, p. 95.)
Eventually, petitioner’s treaters at Bennet Family Medical Center began to
question whether her reported symptoms were psychosomatic. (Ex. 20, p. 72.) Based
on the medical records filed, the etiology for petitioner’s symptoms was never resolved
and petitioner never carried any clear diagnosis for the symptoms she attributed to her
vaccination.
III. Legal Standard
To receive compensation in the Vaccine Program, petitioner must prove either
(1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury
Table – corresponding to a covered vaccine, or (2) that she suffered an injury that was
actually caused by a covered vaccine. See 42 U.S.C. § 300aa–13(a)(1)(A); 42 U.S.C. §
300aa–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).
Petitioner “must specify [her] vaccine-related injury and shoulder the burden of
proof on causation.” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339,
1346 (Fed. Cir. 2010). “Although the Vaccine Act does not require absolute precision, it
does require the petitioner to establish an injury – the Act specifically creates a claim for
compensation for ‘vaccine-related injury or death.’” Stillwell v. Sec’y of Health & Human
Servs., 118 Fed. Cl. 47, 56 (2014) (emphasis omitted) (quoting 42 U.S.C. § 300aa-
11(c)). And, in any event, a petitioner must prove by a preponderance of the evidence
the factual circumstances surrounding her claim. See 42 U.S.C. § 300aa–13(a)(1)(A).
“[T]he function of a special master is not to ‘diagnose’ vaccine-related injuries, but
instead to determine ‘based on the record evidence as a whole and the totality of the
case, whether it has been shown by a preponderance of the evidence that a vaccine
caused the [petitioner]’s injury.’” Andreu ex rel. Andreu v. Sec’y of Health & Human
Servs., 569 F.3d 1367, 1382 (Fed. Cir. 2009) (quoting Knudsen ex rel. Knudsen v.
Sec’y of Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)).
Special masters are charged with adjudicating cases in this program while
“endeavoring to make the proceedings expeditious, flexible, and less adversarial, while
at the same time affording each party a full and fair opportunity to present its case and
creating a record sufficient to allow review of the special master’s decision.” Vaccine
Rule 3(b)(2). However, the Vaccine Act prohibits the undersigned from ruling for
petitioner based solely on her allegations unsubstantiated by medical records or
medical opinion. See 42 U.S.C. § 300aa–13(a)(1). Vaccine Rule 21(b)(1) provides that
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“[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.”
IV. Discussion
Respondent is persuasive in contending that petitioner has not presented a
cognizable injury. In order to present an “injury” cognizable under the Vaccine Act,
“[m]edical recognition of the injury claimed is critical” and petitioner must assert “more
than just a symptom or manifestation of an unknown injury.” Broekelschen, 618 F.3d at
1349. Here, petitioner pleads only symptoms she relates to an unidentified injury
purported to be vaccine-caused, claiming that the nature of her condition is set forth in
her medical records. (ECF No. 1, p. 2.) However, as indicated above, petitioner’s
medical records show that her treating physicians failed to reach a diagnosis or
determine the etiology for her symptoms. Nor did petitioner provide any expert report to
otherwise elucidate the nature of her alleged vaccine-related condition.
Even assuming arguendo that any of petitioner’s reported symptoms did
constitute a cognizable injury in and of themselves, a review of the complete medical
records confirms that they do not support her assertion of vaccine-causation by a
preponderance of the evidence. Although petitioner’s primary care provider noted a
phenomenon of post-vaccinal neuritis and initially suspected a vaccine reaction without
identifying the etiology, this was not borne out by subsequent specialist evaluation and
opinion. Additionally, that primary care practice eventually questioned whether
petitioner’s symptoms were instead psychosomatic. And, again, petitioner did not file a
medical opinion from an expert in support of her allegations.
On the existing record, petitioner has failed to come forward with evidence
sufficient to meet her prima facie burden of proof. Moreover, I have concluded that the
parties have had a full and fair opportunity to develop the record and that it is
appropriate to resolve this case based on the existing record. See 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). Petitioner was advised of the importance of providing an
expert medical opinion to support her allegations and did not submit one despite being
provided that opportunity. She did not ever suggest she was attempting to secure an
expert opinion and did not at any point request additional time to do so. Dismissal is
therefore appropriate on the merits.
Furthermore, even after departure of her counsel, petitioner was provided ample
time to respond to the undersigned’s orders requiring submission of an expert report.
Petitioner was specifically instructed regarding the necessity of following court orders
and how to request additional time if needed. (ECF No. 57.) Accordingly, petitioner’s
total inaction over a period of four months subsequent to counsel’s withdrawal, including
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her failure to either produce the required expert report or otherwise respond to the
court’s orders, constitutes a separate and additional basis for dismissal for failure to
prosecute. See Vaccine Rule 21(b)(1).
V. Conclusion
This case is now DISMISSED. The clerk of the court is directed to enter
judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3 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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