VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01888
Package ID: USCOURTS-cofc-1_20-vv-01888
Petitioner: Virginia Rossiter
Filed: 2020-12-07
Decided: 2022-11-04
Vaccine: influenza
Vaccination date: 2018-09-10
Condition: Sudden Sensorineural Hearing Loss
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Virginia Rossiter filed a petition alleging that she suffered Sudden Sensorineural Hearing Loss as a result of receiving an influenza vaccine and a Shingrix vaccine on September 10, 2018. She initially filed her petition pro se but later obtained counsel. The case involved a covered influenza vaccine and an uncovered Shingrix vaccine administered on the same day, presenting a challenge in differentiating causation. Rossiter acknowledged the difficulty in proving that the covered influenza vaccine was the cause of her injury, stating that she would be unable to prove entitlement to compensation. She filed an expert report which indicated that either vaccine could have caused her autoimmune condition, but did not establish that the covered flu vaccine was more likely than not the cause. Consequently, Rossiter filed a motion to dismiss her own petition, recognizing that proceeding further would be unreasonable and a waste of resources. The Special Master granted her motion, dismissing the petition and entering judgment against her. The dismissal was based on insufficient proof of causation for the alleged injury from the covered vaccine.

Theory of causation field:
Off-Table

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_20-vv-01888-0
Date issued/filed: 2022-12-08
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/4/2022) regarding 36 DECISION of Special Master Signed by Special Master Thomas L. Gowen. (hs) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-01888-UNJ Document 42 Filed 12/08/22 Page 1 of 3
the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 4, 2022
* * * * * * * * * * * * * Unpublished
VIRGINIA ROSSITER, *
* No. 20-1888V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Dismissal Decision;
AND HUMAN SERVICES, * Insufficient Proof.
*
Respondent. *
* * * * * * * * * * * * *
Andrew D. Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for petitioner.
Naseem Kourosh, U.S. Dept. of Justice, Washington, D.C., for respondent.
DISMISSAL DECISION1
On December 7, 2020, Virginia Rossiter (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petition (ECF No. 1) Petitioner initially filed
her petition pro se. Petitioner alleged that as a result of receiving a covered influenza (“flu”)
vaccine and an uncovered Shingrix (Shingles) vaccine on September 10, 2018, she suffered from
Sudden Sensorineural Hearing Loss. Petitioner’s (“Pet.”) Motion for Dismissal (“Mot.”) (ECF
No. 35). The information in the record does not establish entitlement to compensation.
On February 3, 2022, I held a status conference with petitioner and recommended that
she seek an attorney who is familiar with the Vaccine Program to assist her with her claim.
Scheduling Order (ECF No. 24). On February 22, 2022, petitioner filed a motion to substitute
counsel and Mr. Andrew Downing entered his appearance on behalf of petitioner. Pet. Motion to
Substitute Counsel (ECF No. 25).
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.

Case 1:20-vv-01888-UNJ Document 42 Filed 12/08/22 Page 2 of 3
On May 3, 2022, petitioner filed a status report stating that “petitioner acknowledges
receipt of a covered and an uncovered vaccination and needs to differentiate vaccination through
expert testimony,” and requested a sixty-day deadline to file an expert report. Pet. Status Report
(ECF No. 28). The Court ordered petitioner to file the outstanding medical records and a
supplemental statement of completion. Scheduling Order (Non-PDF, May 4, 2022).
On September 24, 2022, petitioner filed updated medical records and re-filed previously
filed exhibits. Pet. Exs. 1-7. Petitioner filed a report from Dr. David Axelrod on October 27,
2022 to address vaccine causation. Pet. Ex. 8 (ECF No. 34).
On November 3, 2022, petitioner filed a motion for a decision dismissing the petition.
Pet. Mot. Petitioner states, “An investigation of the facts and science supporting her case has
demonstrated to petitioner that she will be unable to prove that she is entitled to compensation in
the Vaccine Program.” Pet. Mot. at ¶ 1. Further, petitioner states that, “The primary issue was
not whether vaccination generally could cause Sudden Sensorineural Hearing Loss, but which
vaccination that petitioner received was the trigger. This is due to the fact that she received a
covered vaccine (“influenza”) and an uncovered vaccine (shingles) on the same date.” Id.
Petitioner states that “to proceed further would be unreasonable and would waste the resources of
the Court, the Respondent, and the Vaccine Program.” Id. at ¶ 2. Petitioner understand that a
decision by the Special Master dismissing her petition will result in a judgment against her and
that she has been advised that such a judgment will end all of her rights in the Vaccine Program.
Id. at ¶ 3. Further, petitioner understands that she may apply for attorneys’ fees and costs once
her case is dismissed and judgment is entered against her. Id. at ¶ 4. Petitioner also understand
that respondent reserves the right, pursuant to § 300aa-15(e), to question the good faith and
reasonable basis of her claim and to oppose, if appropriate, her application for fees and costs. Id.
Petitioner intends to protect her right to file a civil action in the future. Id. at ¶ 5.
To received compensation in the Vaccine Program, petitioners have the burden of
proving either: (1) that the vaccinee suffered a “Table Injury,” i.e., an injury beginning within a
specified period of time following receipt of a corresponding vaccine listed on the Vaccine
Injury Table or (2) that the vaccinee suffered an injury that was caused-in-fact by a covered
vaccine. §§13(a)(1)(A); 11(c)(1). In this case, petitioner was alleging an off-Table injury
therefore must demonstrate that the covered vaccine she received caused her alleged vaccine-
related injury. Petitioner filed an expert report from Dr. David Axelrod, who stated that
petitioner developed “autoimmune sensorineural hearing loss,” and determined that either the
covered flu vaccine or the uncovered Shingrix vaccine could have caused petitioner’s
autoimmune condition. Pet. Exhibit (“Ex.”) 8. Further, petitioner stated in her motion that
“there was no way medically or scientifically to demonstrate that the influenza (covered)
vaccination was more likely than not the culprit” for petitioner’s alleged injury. Pet. Mot. at ¶ 1.
As petitioner cannot received compensation on a claim based on a non-covered vaccine through
the Vaccine Program, and the opinion of the medical expert does not support vaccine causation,
this case must be dismissed. See e.g. Cielencki v. Sec’y of Health & Human Servs., No. 15-
632V, 2015 WL 10767150, at *3 (Fed. Cl. Spec. Mstr. Dec. 22, 2015) (dismissing petition that
involves Pneumovax).
2

Case 1:20-vv-01888-UNJ Document 42 Filed 12/08/22 Page 3 of 3
Petitioner’s motion for a decision dismissing her petition is GRANTED and the petition
is hereby DISMISSED. The Clerk of the Court shall enter judgment accordingly.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3