VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-01811
Package ID: USCOURTS-cofc-1_21-vv-01811
Petitioner: Yuqing Wu
Filed: 2021-09-03
Decided: 2023-11-06
Vaccine: influenza
Vaccination date: 2018-09-13
Condition: chronic encephalopathy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On September 3, 2021, Jian Qian, acting as legal guardian for Yuqing Wu, filed a petition alleging that Ms. Wu, who was 93 years old at the time, suffered chronic encephalopathy and a subsequent cascade of illnesses as a result of an influenza vaccination administered on September 13, 2018. The petition also indicated that at least one other unspecified vaccine was administered at that time. The respondent was the Secretary of Health and Human Services. The Special Master, Daniel T. Horner, dismissed the case. The procedural history revealed that the petitioner was given two years to file complete medical records but failed to do so despite multiple court orders and warnings. Initially, the petition included only abstracts of hospital records and lacked evidence of the vaccination itself. A history from the day after the alleged vaccination mentioned a flu shot, but this was inconsistent with other allegations. The medical records showed prior hospitalizations for various conditions, including dementia and sepsis. A later diagnosis of encephalopathy in May 2020 was attributed to a stroke, not the vaccine. The petitioner filed a letter from Dr. WenCheng Jen, who opined that the vaccinations "more likely than not" caused a cascade of abnormalities, including contributing to Ms. Wu's stroke and heart disease. However, the Special Master found Dr. Jen's opinion unpersuasive due to a lack of specific medical theory, inconsistency with the medical records, and failure to establish a logical sequence of cause and effect. The Special Master determined that the petitioner failed to prosecute the case by not providing necessary documentation and also failed to demonstrate entitlement to compensation on the merits, as the evidence did not establish a vaccine-related injury or causation. The case was dismissed on November 6, 2023.

Theory of causation field:
Petitioner Jian Qian, on behalf of 93-year-old Yuqing Wu, alleged that an influenza vaccination on September 13, 2018, caused chronic encephalopathy and a cascade of illnesses. The petition also mentioned an unspecified additional vaccine. The Special Master, Daniel T. Horner, dismissed the case due to failure to prosecute and failure to demonstrate entitlement. The petitioner failed to provide complete medical records over two years, despite multiple court orders. The medical records showed prior conditions including dementia and sepsis. A later encephalopathy diagnosis was attributed to stroke. Dr. WenCheng Jen opined that the vaccines caused a "cascade of abnormalities" and contributed to stroke and heart disease, but this opinion was deemed unpersuasive due to lack of specific medical theory, inconsistency with records, and failure to establish a logical sequence of cause and effect. The Special Master found no Table Injury claim was available as the specific vaccines (pertussis, measles, mumps, rubella) were not pleaded or evidenced. Causation-in-fact was not established as the alleged encephalopathy during the September 2018 hospitalization was attributed by treating physicians to sepsis or hypotension, not the vaccine, and Ms. Wu's mental status returned to normal. A later encephalopathy diagnosis was attributed to stroke. The petitioner failed to preponderantly establish the fact of vaccination and did not demonstrate a cognizable injury or a vaccine-caused encephalopathy. The case was dismissed on November 6, 2023.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-01811-0
Date issued/filed: 2023-11-06
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 10/11/2023) regarding 37 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (sh) Service on parties made. Petitioner served via first class mail on 11.07.2023 (cam). Modified on 11/7/2023 (cam).
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Case 1:21-vv-01811-UNJ Document 39 Filed 11/06/23 Page 1 of 15
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1811V
YUQING WU, by her legal guardian,
Special Master Horner
JIAN QIAN,
Filed: October 11, 2023
Petitioner,
v.
Reissued for Public Availability:
November 6, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Yuqing Wu, by Jian Qian, San Gabriel, CA, pro se petitioner.
Mary Eileen Holmes, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On September 3, 2021, petitioner Jian Quian, acting on behalf of Yuqing Wu,
filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa, et
seq. (2012),2 alleging that Ms. Wu, 93 years of age at the time, suffered injuries,
including chronic encephalopathy, as a result of her September 13, 2018 influenza
(“flu”) vaccination. (ECF No. 1.)3 Petitioner also indicates that at least one other
unspecified vaccine was administered at that time. (Id. at 1.) Based on the petitioner’s
description of Ms. Wu’s medical course, the petition further contends that Ms. Wu
suffered “a cascade of illnesses that ensued from the vaccinations.” (Id. at 3.) For the
reasons set forth below, this case is now DISMISSED.
I. Procedural History
As noted above, this case was initially filed on September 3, 2021. (ECF No. 1.)
Accompanying the petition were documents marked as Exhibits 1-10. Exhibit 1 is a
copy of Ms. Wu’s photo identification. Exhibits 2-8 are select records from Ms. Wu’s
1 Pursuant to Vaccine Rule 18(b), this Decision was initially filed on October 11, 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.
2 Within this decision, all citations to § 300aa are in reference to the relevant sections of the National
Childhood Vaccine Injury Act.
3 “ECF No.” refers to the location of each document on the court’s electronic docket.
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various encounters at the San Gabriel Valley Medical Center. Exhibit 9 is an August 4,
2021 letter from Ms. Wu to Zhenghong Yuan, M.D., requesting her medical records
accompanied by an acknowledgment of receipt (but without records). Exhibit 10 is an
authorization for release of Ms. Wu’s medical records from Optum seeking records from
Drs. Chan, Young, and Yang that was signed and dated by Ms. Wu on August 16, 2021
(but, again, without records). Petitioner also filed a motion for leave to proceed in forma
pauperis.4
This case was originally assigned to another special master. (ECF Nos. 7-8.)
The special master required petitioner to file documentation proving that he is the legal
representative of Ms. Wu. (ECF No. 9.) On October 12, 2021, petitioner filed a
document signed by both Ms. Wu and Mr. Qian and styled as “Notice of appointment of
Mr. Jian Qian as legal representative and/or guardian for Petitioner.” (ECF No. 11.)
Thereafter, on December 16, 2021, the special master held a status conference.
(ECF No. 12.) She provided petitioner with information on the Vaccine Program and
encouraged him to secure counsel. (ECF No. 13, p. 1.) In that regard, petitioner was
ordered to file a status report providing an update on his search for counsel by no later
than January 31, 2022. (Id. at 2.)
During the status conference, the special master also indicated that the medical
records filed with the petition (i.e., Exhibits 2-8) were only abstracts of Ms. Wu’s hospital
encounters and not complete medical records. (Id. at 1-2.) The special master also
observed that there are significant gaps between the encounters for which records had
been filed. (Id.) The special master advised that petitioner’s filings were insufficient and
instructed petitioner to file “all of Ms. Wu’s medical records, not just discharge
summaries of her hospitalizations, for a three-year period prior to vaccination and all
medical records from after vaccination.” (Id.) The special master further cautioned that
petitioner’s allegation of a post-vaccination encephalopathy appeared to be inconsistent
with the records that had been filed. (Id. at 1.)
The case was reassigned to the undersigned on February 4, 2022. (ECF No. 14-
15.) On February 7, 2022, petitioner filed a status report outlining various attempts to
secure both counsel and a medical doctor to opine on the case. (ECF No. 16.)
Petitioner indicated he was unsuccessful in both searches and attributed his lack of
success to indifference and lack of incentive on the part of potential counsel and
experts. (Id.) On February 9, 2022, I issued a Scheduling Order based on my review of
petitioner’s status report and the record to date. (ECF No. 17.)
In the February 9, 2022 Scheduling Order, I included a detailed review of each of
the medical records that had been filed to date, specifically reiterating the previously
assigned special master’s concern that the records are not complete. (Id. at 1-3.) I also
included for petitioner’s benefit an explanation of the legal standard for a finding of
entitlement to compensation in this program. (Id. at 3-4.) I noted that Ms. Wu’s medical
records reflect that the September 2018 illness petitioner alleges to have been the
4 Petitioner’s motion to proceed in forma pauperis is hereby GRANTED.
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beginning of Ms. Wu’s vaccine-related injury was instead diagnosed as sepsis. (Id. at
4.) I further explained:
[W]ithout interim primary care or specialist records, [Ms. Wu’s] emergency
department records are indicative only of acute episodes with little basis for
connecting emergency encounters occurring months apart. None of the
medical records filed to date suggest that any of Ms. Wu’s treating
physicians felt that her September 2018 presentation, or any subsequent
presentation, was causally related to her vaccination(s).
. . .
. . . [T]he medical records that have been filed so far show episodic
acute presentations over years, a pattern that is not necessarily unexpected
in a patient of over 90 years of age. In considering whether and how to
proceed, petitioner should take note that, despite any personally held view,
Ms. Wu’s medical history does not appear inherently suspicious for an
external trigger to explain her deterioration in health.
(Id. at 4-5.)
I acknowledged petitioner’s search for counsel and explained that I “do not
discourage petitioner from continuing that pursuit.” (Id. at 5.) However, I indicated that
“at this time . . . the filing of further medical records will be critical to any further
meaningful progress in this case.” (Id.) I set a 90-day deadline for petitioner to file
“complete medical records from each and every one of Ms. Wu’s treating physicians
dating from September of 2015 to the present.” (Id. at 6.) I stressed that, because he is
unrepresented by counsel, petitioner “remains solely responsible for meeting all
deadlines and filing obligations pursuant to this order and any other order issued by the
undersigned.” (Id. at 6.)
On May 9, 2022, petitioner filed a lengthy status report covering a number of
items. (ECF No. 19.) First, petitioner included a paragraph of argumentation regarding
whether Ms. Wu’s sepsis diagnosis is compatible with vaccine causation. (Id. at 1.)
Second, petitioner included a paragraph indicating that records by Drs. Chan and
Young would not be informative because they were seen only on “more or less say-so
occasions,” during which petitioner did not report Ms. Wu’s more serious vaccine-
related problems in light of these doctors being seen only on a temporary basis. (Id. at
1-2.) Third, petitioner provided an “addendum” to his prior status report delineating
further unsuccessful efforts to retain counsel and confirming he would cease seeking
counsel. (Id. at 2-3.) Fourth, petitioner indicated that he was filing an opinion letter by
WenCheng Jen, M.D., to support his claim. (Id. at 2.) Petitioner indicated that he had
requested that Dr. Jen secure Ms. Wu’s records from her primary care physician, Dr.
Yuan. (Id.) Petitioner represented that his filing included the following: (1) Optum
medical records; (2) Dr. Jen’s PCP records; (3) Dr. Jen’s Opinion; and (4) the status
report itself. (Id. at 3.) Finally, petitioner indicated that he had specific questions
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regarding his burden of proof as discussed in my February 9, 2022 Scheduling Order.
(Id. at 3-4.) On the same date, petitioner filed 24 pages of records from Optum
(formerly known as Healthcare Partners), San Gabriel, along with a letter from Dr. Jen.
(ECF No. 20 and ECF No. 20-1 respectively.) This filing included some records by Drs.
Chan, Yang, and Young, but it did not include any records by Dr. Jen.
Thereafter, I held a status conference on June 2, 2022, to address petitioner’s
questions and the completeness of the medical records. (ECF No. 22.) During that call,
I noted that petitioner had filed 24 pages of medical records in response to my February
9, 2022 Scheduling Order. Petitioner indicated, however, that his filing should have
included more records, including records by Dr. Jen. (Id. at 1.) I explained to petitioner
that the records he was referencing had not been filed and that he should re-file them to
ensure that they are included in the record. (Id.) I also noted that the records petitioner
filed from Optum all post-dated the vaccinations at issue and that, at a minimum,
records from the encounter where Ms. Wu received the subject vaccinations remained
outstanding. (Id. at 1-2.) Respondent’s counsel further stressed that no records from
any provider had been filed for the period from 2015 to 2018. (Id.) I reiterated that
“petitioner should endeavor to provide complete medical records from each medical
provider Ms. Wu has seen.” (Id. at 2.) I also answered petitioner’s questions regarding
his burden of proof as set forth in Althen v. Secretary of Health & Human Services, 418
F.3d 1274 (Fed. Cir. 2005). (Id. at 2-3.) I ordered petitioner to file outstanding medical
records by no later than August 1, 2022, and indicated that further scheduling would be
determined upon review of those records.
On August 1, 2022, petitioner filed a motion for extension of time due to having
contracted Covid-19, which was granted. (ECF Nos. 23-24.) Thereafter, petitioner’s
medical records were due by November 1, 2022. (ECF No. 24.) However, petitioner’s
November 1, 2022 deadline lapsed without any filing by petitioner. On November 7,
2022, I issued an Order to Show Cause requiring petitioner to “show cause why this
case should not be dismissed” due to petitioner’s failure to meet his filing deadline to file
complete medical records. (ECF No. 25.) I noted that, subsequent to initiating this
case, petitioner had only filed a further 24 pages of medical records despite the case
having been pending for over a year. (Id. at 3-4.) Although I acknowledged that
collecting medical records is challenging for a pro se petitioner, I explained that “this
case cannot be permitted to remain pending indefinitely” and that “leave for additional
time will only be granted if petitioner can demonstrate that reasonable progress is being
made toward completing necessary filings.” (Id. at 4.)
In response to the Order to Show Cause, petitioner filed a status report on
January 9, 2023. (ECF No. 26.) Regarding his noncompliance, petitioner indicated that
he never received “any notification from the Court that there is such a deadline having
been set for petitioner.” (Id. at 1.) Regarding the filing of medical records, petitioner
indicated he is “attaching Ms. Yuqing Wu’s clinical record” from Dr. Jen. (Id.) He
indicated that “[t]his document, of some 71 pages, appears to include a sizeable amount
of information on Ms. Wu’s claimed problems attributable to the vaccine given her.” (Id.)
Petitioner instructed that “[t]he link to this record in the filing appears in the body of the
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email . . . . The link is openable on the model [of computer] petitioner is using, yet may
have presented a problem on another computer such as the Court’s.” (Id.) However,
none of petitioner’s docketed filings in the case included any e-mail or link. Petitioner
further indicated that “petitioner also believes that as the case moves forward, more
records in support of the claims will surface that will meet or nearly meet the standard
criteria set by the law and pointed to by Your Special Master and that will strengthen the
grounds of this petition.” (Id.)
On the same date, petitioner filed a motion for extension of time. (ECF No. 27.)
In his motion, petitioner reiterated that he was unaware of his November 1, 2022 filing
deadline and that he is having difficulty engaging physicians to do the research
necessary to support a vaccine-causation opinion. (Id. at 1.) Thus, he requested
“substantial additional time” to secure a medical opinion. (Id.) Regarding medical
records, petitioner acknowledged that records by Dr. Yuan remain outstanding but
asked direction from the court regarding how to secure records from Dr. Yuan. He also
indicated that “[r]epetitive hospital records can be expected to be obtained in a
foreseeable number of days if cost is not to become a real problem.” (Id.)
On January 30, 2023, petitioner filed an authorization for release of medical
records from Garfield Medical Center. (ECF No. 28.) A handwritten notation indicates
that 166 pages of medical records were e-mailed to petitioner on January 27, 2023. (Id.
at 1.) However, no records from Garfield Medical Center were filed. On February 6,
2023, I granted petitioner’s motion for extension of time and ordered petitioner to file
additional medical records as described in my June 2, 2022 Scheduling Order by no
later than May 8, 2023. (ECF No. 29.) Thereafter, petitioner filed additional medical
records on April 14, 2023. (ECF No. 30.) Specifically, petitioner filed five separate
documents that included a total of about 140 pages of records from San Gabriel Valley
Medical Center.
On May 8, 2023, petitioner filed a motion for extension of time. (ECF No. 31.)
Petitioner’s motion asserts that his filings of January 30, 2023, and April 14, 2023,
provided the court with complete records from both Garfield Medical Center and San
Gabriel Valley Medical Center. (Id. at 1.) Petitioner represented that his May 9, 2022,
and January 9, 2023, filings provided complete medical records for both WenCheng
Jen, M.D., and the Optum organization. (Id.) Petitioner further indicated that “[b]y this
submission, the Court is to receive records from Jaime Henriquez, MD, and from Thein
Htay, MD with Henry C. Yee medical group, though the actual doctor we saw on our
sole visitation to the Henry C. Yee medical group was not Dr. Henry C. Yee himself.”
(Id.) Accompanying the motion was a four-page record of an encounter with Dr.
Henriquez of February 27, 2023, and a two-page record of an encounter of February 16,
2023, signed by Dr. Yee. (ECF Nos. 31-1; 31-2.) Petitioner’s motion suggested he is
moving to “the next challenge” of forwarding medical records to medical experts to
obtain a supporting medical opinion. (ECF No. 31.)
On May 12, 2023, I issued an order granting petitioner’s motion for extension of
time. (ECF No. 32.) However, I explained of petitioner’s motion that, despite never
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having confirmed complete records were filed, “petitioner’s stated efforts appear to have
shifted toward seeking a medical opinion supporting this claim. Petitioner’s motion
appears to request additional time for that purpose rather than for filing additional
medical records.” (Id. at 2.) I described in detail what records have been received by
the court and what records petitioner represented were filed but were not. Specifically, I
noted that petitioner had not filed any records from Garfield Medical Center and had not
filed any records by Dr. Jen despite representing that he had done so. (Id. at 1-2.) I
stressed that all filings must be PDF documents. I ordered petitioner to file, by no later
than June 12, 2023, complete medical records from Garfield Medical Center and Dr.
Jen along with a statement indicating whether petitioner believes all necessary medical
records have been filed. (Id. at 2.)
Petitioner’s June 12, 2023 filing deadline lapsed without any filing by petitioner.
On June 21, 2023, I issued an Order to Show Cause. (ECF No. 33.) I advised that
“[p]etitioner shall read this order carefully as compliance with this order is required to
avoid involuntary dismissal of this petition.” (Id. at 1.) I attached a courtesy copy of the
May 12, 2023 Order and required petitioner to show cause why the case should not be
dismissed by completing the filing required by the May 12, 2023 Order. Petitioner’s
show cause deadline was August 21, 2023. (Id.)
On July 24, 2023, the Clerk of Court docketed that the Order to Show Cause had
been returned to the court as “unclaimed” and “unable to forward.” (ECF No. 34.) In an
order dated July 26, 2023, I noted that the certified mail tracking number docketed by
the Clerk of Court showed that the petitioner had not responded to a notice left at the
delivery address to schedule redelivery. (ECF No. 35.) I directed the Clerk to resend
the Order to Show Cause by first class mail. I noted that if petitioner has any questions
about the Order to Show Cause or the order instructing redelivery, he should contact my
chambers promptly. (Id.)
Petitioner’s August 21, 2023 show cause deadline lapsed without any filing by
petitioner. Accordingly, on September 11, 2023, I issued an order advising petitioner
that “[p]etitioner is hereby put on notice that the undersigned intends to issue a decision
involuntarily dismissing this case pursuant to Vaccine Rule 21(b). . . . Absent action by
petitioner, this decision will issue on Wednesday, October 11, 2023.” (ECF No. 36.) I
explained the procedural history of the case leading up to the June 21, 2023 Order to
Show Cause, including the fact that the May 12, 2023 Order had specifically identified
filing deficiencies petitioner needed to correct. (Id. at 1-2.) I indicated that “[p]etitioner’s
failure to file complete medical records despite having been provided two years within
which to do so, his failure to respond to multiple court orders, including an Order to
Show Cause that specifically warned him his petition was in danger of involuntary
dismissal, and his complete lack of contact with the court for approximately four months
subsequent to his May 8, 2023 filing, all contribute to a failure to prosecute.” (Id. at 2.)
Petitioner still has not had any contact with the court subsequent to his May 8,
2023 filing.
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II. Medical Records
Before Ms. Wu’s vaccination date, the medical records submitted to the court
show she was admitted to the hospital on February 21, 2016, March 3, 2017, and May
21, 2018. (Ex. 2, p. 1 (ECF No. 30-2, p. 1); Ex. 3, p. 1 (ECF No. 30-3, p. 1); Ex. 4, p. 1
(ECF No. 30-4, p. 1).) On February 21, 2016, Ms. Wu was admitted to the emergency
department at San Gabriel Valley Medical Center with chest pain, exaggerated
hypertension, dizziness, nausea, vomiting, diabetes, and fatigue. (Ex. 2, p. 5.) This
record describes Ms. Wu’s past medical history to include “angina, arthritis, coronary
artery disease, dementia, Diabetes Type II, gastroesophageal reflux disease,
hypertension, postmenopausal, and urinary problems.” (Id. at 3.) She was discharged
on February 24, 2016, after receiving cardiac enzyme tests, an EKG, and an MRI, all
which revealed no acute issues. (Id. at 15.) On March 3, 2017, Ms. Wu presented to
the emergency department again with increasing weakness and left hip pain and saw
Dr. Frederick Levin. (Ex. 3, p. 2.) He noted that his diagnostic impression included an
altered mental status. (Id.) During this encounter, Ms. Wu was diagnosed with
“pneumonia,” “osteoarthritis,” “diffuse cortical atrophy, chronic small vessel ischemic
disease of the white matter, and chronic opacification of the paranasal sinuses.” (Id. at
9-11.) Finally, on May 21, 2018, Ms. Wu presented to the hospital with lateral chest wall
pain. (Ex. 4, p. 2.) After reviewing her EKG, chest x-ray, and labs, the treating
physician determined there was “no evidence of any abnormality whatsoever.” (Id. at
4.)
Ms. Wu allegedly received multiple vaccinations, including a flu vaccination, on
September 13, 2018, though no records have been filed to evidence this. The next day,
on September 14, 2018, Ms. Wu was admitted to the hospital due to a fever, nausea,
vomiting, and loose stool. (Ex. 5, p. 5; ECF No. 30-5, p. 1.) These records do note a
reported history of Ms. Wu having received a flu vaccination the day prior. (Ex. 5, p.
13.) Ms. Wu was diagnosed with sepsis, mental status changes, hypotension,
leukocytosis, and diabetes. (Id. at 16.) Her chest x-ray revealed “mild cardiomegaly
and possible early heart failure.” (Id.) Her altered mental state was believed to be
attributable to either her sepsis or her hypotension. (Id. at 18.) She was admitted to the
ICU, treated with IV antibiotics, and counseled regarding her bradycardia and
hypotension. (Id.) Ms. Wu regained her normal mental state during her hospitalization.
(Id. at 23.) Based on the records filed, Ms. Wu was not diagnosed with encephalopathy
during this hospitalization.
On October 30, 2018, Ms. Wu saw her primary care physician, Dr. Kenneth
Chan, for a follow up appointment regarding her hypertension and suspected glaucoma.
(ECF No. 20, p. 22-23.) Ms. Wu was reportedly “relatively healthy” and there was no
discussion of her September 14, 2018 hospitalization. (Id. at 22.) No concerns were
noted regarding her mental status, and she was noted on physical exam to be in no
acute psychiatric distress and with normal affect. (Id. at 23.) Ms. Wu saw Dr. Chan
again on December 4, 2018, to address her constipation. (Id. at 15-16.) No other
concerns were documented. (Id.) Ms. Wu was not diagnosed by Dr. Chan with
encephalopathy at either of these visits.
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Ms. Wu was admitted to the hospital on December 21, 2018, for “rapid heart rate,
hypotension, [and] generalized weakness.” (Ex. 6, p. 12; ECF No. 30-6, p. 31.) Ms. Wu
was diagnosed with “acute non-ST-elevation myocardial infarction, lactic acidosis,
dehydration, generalized weakness, [and] hypoproteinemia.” (Ex. 6, p. 20.) She was
referred to Dr. Grace Huang for a cardiology consultation, given IV fluids, and started on
aspirin and atorvastatin. (Id.) Ms. Wu followed up with Dr. Chan on January 24, 2019,
regarding her diagnosis of coronary heart disease in the native artery following her visit
to the hospital. (ECF No. 20, p. 13.) She was clinically stable, “awake and alert,” and in
no acute distress. (Id.) Dr. Chan gave her refills of her medication including Plavix,
aspirin, and atorvastatin. (Id.) There is no indication that Ms. Wu was diagnosed with
encephalopathy during her admission or at her subsequent encounter with Dr. Chan.
Ms. Wu saw Dr. David Yang for a follow up appointment on February 1, 2019.
(Id. at 11-12.) On physical examination, Ms. Wu was “alert and oriented x3” and in no
apparent distress, though she was observed to be “elderly, frail.” (Id. at 12.) She was
to return in six months. (Id. at 11.) She was seen again by Dr. Yang for further follow up
on October 18, 2019, and reported “[n]o major problems since last visit.” (Id. at 8.)
On May 30, 2020, Ms. Wu was admitted to the hospital with slurred speech. (Ex.
7, p. 2.) She was diagnosed with “encephalopathy secondary to stroke.” (Id. at 37.) A
year later, on May 26, 2021, Ms. Wu was admitted to the hospital again for slurred
speech. (Ex. 8, p. 10; ECF No. 30-7, p. 17.) The emergency department physician
noted that her son, who brought her into the hospital, reported “similar symptoms
presented over 1 year ago which resulted in presumptive diagnosis of TIA.” (Ex. 8, p.
10.) Ms. Wu underwent a “complete transthoracic echocardiogram” which found normal
left ventricular function, mild mitral regurgitation, and mild tricuspid regurgitation. (Id. at
16.) The emergency room doctors reported baseline dementia, usual confusion, and no
new neurological defects. (Id. at 17.) Ms. Wu had a follow up encounter with Dr. Yang
on June 19, 2020, at which time she was “without complaints.” (ECF No. 20, pp. 4-7.)
Nearly three years later, in February of 2023, Ms. Wu was seen by two
cardiologists, Drs. Yee and Henriquez, for follow up after an unspecified hospitalization
for paroxysmal atrial fibrillation. (ECF No 31-1; 31-2.)
III. Letter from WenCheng Jen, M.D.
In support of his case, petitioner has filed the opinion of Dr. WenCheng Jen.
(ECF No. 20-1.) Dr. Jen states, “It is my opinion that some two vaccines that were
injected into Ms. Yuqing Wu on September 13, 2018 have, more likely than not, caused
the cascade of abnormalities that ensued.” (Id.) He postulated that Ms. Wu’s
vaccination “contributed to the advancement of her stroke heart diseases later like the
non-ST elevation myocardial infarction (NSTEMI) and the stroke” in addition to her state
of confusion. (Id.) Dr. Jen stated that the vaccination created “the high potential for
decompensation and/or shock during” Ms. Wu’s September 2018 appointments and
“the high probability of cardiopulmonary collapse with the high risk of morbidity and
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mortality that were manifest over” Ms. Wu’s December 2018 hospitalization. (Id.) He
explained, “I notice that her unusual confusional state and her significantly decreased
level of consciousness have lasted for more than one half year since the vaccination
date.” (Id.) Dr. Jen did not provide any further explanation or medical evidence to
support his opinion.
IV. Analysis
a. Petitioner Has Failed to Prosecute this Petition
Vaccine Rule 2(c)(2)(A) requires petitioner to include with the petition “a certified
copy of all available medical records supporting the allegations in the petition.” The rule
specifies that this includes records pertaining to the vaccination itself, the alleged injury,
and post-vaccination treatment. Respondent’s obligation under the Vaccine Rules to
provide a report setting forth his position in this case is premised on petitioner having
satisfied all required documentary submissions. See Vaccine Rule 4(c)(1). Vaccine
Rule 21(b) 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.”
In this case, as discussed more thoroughly in the procedural history above,
petitioner has been permitted a full two years within which to file required medical
records. When this case was reassigned to the undersigned, I issued an extensive
order detailing my review of the records and explaining the need for additional records.
(ECF No. 17.) Thereafter, I held a status conference with petitioner to further explain
his filing obligations. (ECF No. 22.) After petitioner filed some additional records, a
further order was issued explaining the remaining filing deficiencies. (ECF No. 32.)
When petitioner did not comply with his subsequent filing deadline, an order to show
cause issued explaining the case was at risk of involuntary dismissal for failure to
prosecute. (ECF No. 33.) When petitioner failed to respond to the order to show cause,
a further order was issued warning petitioner that this case would be dismissed on
October 11, 2023, if petitioner took no action. (ECF No. 36.)
Petitioner’s failure to file complete medical records despite having been provided
two years within which to do so, his failure to respond to multiple court orders, including
an Order to Show Cause that specifically advised him his petition was in danger of
involuntary dismissal, and his complete lack of contact with the court, now for
approximately five months subsequent to his May 8, 2023 filing, all contribute to a
failure to prosecute.
b. Petitioner Has Had a Full and Fair Opportunity to Develop the Record
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
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evidentiary hearing. However, special masters are also tasked with giving each party a
“full and fair opportunity” to develop the record of the case. Vaccine Rule 3(b)(2).
For the reasons discussed above, I have concluded that the record of this case is
incomplete due to petitioner’s failure to prosecute. However, under the specific
circumstances of this case, I also conclude, for many of the same reasons discussed
above, that I have provided petitioner a full and fair opportunity to develop the record.
In particular, although he has not filed complete records that would facilitate
respondent’s comprehensive review of Ms. Wu’s medical history, petitioner did initially
file with his petition the medical records that he asserts support his underlying factual
allegations. Additionally, after I explained his burden of proof in my February 9, 2022
Scheduling Order, he further filed a medical opinion by Dr. WengCheng Jen that he
asserts is supportive of his claim. To the extent these filings are insufficient, petitioner
was given ample notice of the deficiencies. To the extent petitioner sought to file
additional medical records by Dr. Jen and Garfield Medical Center that may have been
relevant to his claim, he was advised of his failure to accomplish any filing of those
documents and given the opportunity to correct his errors.
Accordingly, it is also appropriate to reach the merits of this case at this time
based on the existing record.
c. Petitioner Has Not Demonstrated Entitlement to Compensation
i. Legal Standard
Under the National Vaccine Injury Compensation Program, compensation
awards are made to individuals who have suffered injuries after receiving vaccines.
See § 300aa-13. In general, to gain an award, a petitioner must make a number of
factual demonstrations, including showing that an individual received a vaccination
covered by the statute; received it in the United States; suffered a serious, long-
standing injury; and has received no previous award or settlement on account of the
injury. See § 300aa-11. Finally – and the key question in most cases in the Program –
the petitioner must also establish a causal link between the vaccination and the injury.
To receive compensation in the Vaccine Program, petitioner must prove either (1) that
Ms. Wu suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to a covered vaccine, or (2) that Ms. Wu suffered an injury that was
actually caused by a covered vaccine. See § 300aa-13(a)(1)(A); § 300aa-11(c)(1). To
satisfy the 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, 418 F.3d at 1278.
Petitioner “must specify [Ms. Wu’s] 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
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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)). “[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)). 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.
The Vaccine Act states that the special master shall not find entitlement to
compensation “based on the claims of a petitioner alone, unsubstantiated by medical
records or by medical opinion.” § 300aa-13(a)(1). Nonetheless, special masters are
not bound by the reports, summaries, or conclusions contained in the medical records.
§ 300aa-13(b)(1). Rather, the special master must consider the entire record. Id.
Petitioner has the burden of demonstrating the facts necessary for entitlement to an
award by a “preponderance of the evidence.” § 300aa-13(a)(1)(A). Under that
standard, the existence of a fact must be shown to be “more probable than its
nonexistence.” In re Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring).
ii. Failure to Establish Receipt of a Covered Vaccine
As a threshold issue, in order to state a claim under the Vaccine Act, petitioner
must establish that Ms. Wu received a vaccine set forth within the Vaccine Injury Table.
§ 300aa-11(c). For this reason, petitioner’s allegation of the administration of
unspecified vaccinations in addition to Ms. Wu’s alleged flu vaccination patently cannot
suffice. The flu vaccine that petitioner alleges Ms. Wu received is included on the
Vaccine Injury Table and, therefore, can support a claim if petitioner establishes by
preponderant evidence that the vaccine was administered as alleged. 42 C.F.R. §
100.3.
The fact of a vaccination need not itself be proven by medical records or medical
opinion. See, e.g. Wonish v. Sec’y of Health & Human Servs., No. 90-667V, 1991 WL
83959, at *4 (Cl. Ct. Spec. Mstr. May 6, 1991) (stating, with regard to § 300aa-13(a)(1),
that “[i]t seems obvious then that not all elements must be established by medical
evidence” and that “[v]accination is an event that in ordinary litigation could be
established by lay testimony” as “[m]edical expertise is not typically required.”).
However, the fact of the vaccination must still be preponderantly established. § 300aa-
13(a)(1)(A).
In this case, petitioner has not documented Ms. Wu’s receipt of a flu vaccine by
preponderant evidence. Petitioner alleges the vaccine was administered on September
13, 2018, at the office of Dr. Zhenghong Yuan. (ECF No. 1, p. 1.) However, petitioner
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has not filed any vaccine administration record or any record of the medical encounter
at which petitioner allegedly received the vaccination. Although petitioner has filed
some records from San Gabriel Valley Medical Center electronically signed by Dr.
Yuan, no records have been filed reflecting primary care office visits with Dr. Yuan
despite petitioner having filed confirmation of a records request to Dr. Yuan’s office.
(ECF No. 28.) An emergency room history from the next day does indicate Ms. Wu
received a flu vaccine the day prior (ECF No. 30-5, p. 25; Ex. 5, p. 13.); however, this
history was not consistently stated and is not entirely consistent with petitioner’s
allegation that multiple vaccines were administered (ECF No. 1, ¶ 2.). Moreover, the
absence of either a vaccine administration record or an encounter record from Dr. Yuan
is particularly concerning because no explanation has been provided for its absence
and petitioner alleges multiple vaccinations were administered without being able to
identify all of the vaccines.
iii. Failure to State a Cognizable Injury Regarding the Alleged
“Cascade of Illnesses”
In addition to more specifically asserting the presence of an encephalopathy,
petitioner alleges that Ms. Wu’s flu vaccination resulted in a “cascade of illnesses.”
(ECF No. 1, p. 5.) In support of that allegation, petitioner filed a letter from Dr. Jen,
dated April 22, 2022. (ECF No. 20-1.) The letter states, “It is my opinion that some two
vaccines . . . have, more likely than not, caused the cascade of abnormalities that
ensued, some of which have since become recurrent with her, peaking in the high
potential for decompensation and/or shock during her 9/2018 hospitalization, and in the
high probability of cardiopulmonary collapse with the high risk of morbidity and mortality
that were manifest over her 12/2018 hospitalization, thereby I suspect having
contributed to the advancement of her stroke heart disease later like the non-ST
elevation myocardial infarction (NSTEMI) and the stroke.” (Id.)
Petitioner’s assertion that Ms. Wu experienced a cascade of unspecified
illnesses or abnormalities is insufficient to meet petitioner’s burden of proof with respect
to establishing a cognizable injury. Moreover, the medical records that have been filed
do not support this contention. Ms. Wu’s medical records reflect episodic emergency
department encounters. None of the medical records indicate that any of these
episodes are related to each other or to any unified overarching disease process.
Dr. Jen asserts that the cited abnormalities “peaked” in relation to Ms. Wu’s
hospitalization in September of 2018 (Id.); however, the records petitioner filed for that
hospitalization are not consistent with that opinion (Ex. 5; ECF No. 30-5.). Ms. Wu
presented with a recent history of nausea, vomiting, and diarrhea, followed by fever,
confusion, weakness, and shortness of breath. (ECF No. 30-5, p. 25.) However,
petitioner was diagnosed with sepsis, hypotension/bradycardia, and a mental status
change. (Id. at 28-29.) Although the fact of her alleged flu vaccination was indicated by
history at that time, nothing in the record reflects any medical opinion attributing any of
Ms. Wu’s symptoms to that vaccination. (Ex. 5.) Ms. Wu’s prior history of dementia is
noted, and a CT scan of the brain indicated age-related atrophy and ischemic changes;
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however, her more acute mental status change was attributed to either her sepsis or
hypotension. (Id. at 10, 18.) Regarding her bradycardia and hypotension, early heart
failure was suspected. (ECF No. 30-5, p. 23.) Stroke was ruled out and Ms. Wu’s
mental status returned to normal after treatment with IV antibiotics. (Id. at 29.)
Dr. Jen also asserts that the cited abnormalities affected Ms. Wu’s condition
relative to her December 2018 presentation. (ECF No. 20-1.) Here too, the medical
records are not consistent with this opinion. At that time, Ms. Wu was brought to the
emergency department after having been found by her son with generalized weakness
and altered consciousness. (Ex. 6, p. 12.) In pertinent part, Ms. Wu was diagnosed
with an acute myocardial infarction. (Id. at 20.) Nothing in the records that have been
filed associates Ms. Wu’s December 2018 presentation with either her prior September
2018 diagnosis of sepsis or her alleged vaccination.
Dr. Jen asserts that Ms. Wu’s confusional state and a decreased level of
consciousness persisted between September and December of 2018 (ECF No. 20-1.);
however, this is also not consistent with the medical records. Ms. Wu was stable and
her mental status recovered when she was discharged in September following her
recovery from sepsis. (Ex. 5, p. 23.) Her subsequent primary care encounters of
October 30, 2018, and December 4, 2018, raised no concerns regarding her mental
status. (ECF No. 20, pp. 15, 22-23.) No medical records were filed reflecting any
deterioration in her health between September and December of 2018. Moreover,
whereas the September 2018 records reflect an altered mental state in the form of a
report of confusion, the December 2018 records reflect a report of diminished
consciousness. (Ex. 6, p. 19.) Even if Ms. Wu did have some ongoing deficits, she has
a confirmed history of dementia predating the alleged vaccination as well as
documented age-related atrophy and ischemic changes to the brain.
Even if Dr. Jen had adequately described the condition(s) he asserts, his opinion
is also insufficient to establish that Ms. Wu suffered any condition caused-in-fact by her
vaccination. See Althen, 418 F.3d at 1278 (requiring that petitioner present a
“persuasive medical theory” that is “supported by ‘reputable medical or scientific
explanation’” (quoting Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148
(Fed. Cir. 1992))). He did not confirm what vaccine(s) Ms. Wu received and he provides
no medical theory that could explain how any particular vaccine, or even vaccinations
broadly, could cause Ms. Wu’s condition. Moreover, although Dr. Jen states that Ms.
Wu’s vaccinations “more likely than not” caused a cascade of abnormalities, he merely
“suspects” that these abnormalities contributed to her later heart attack and stroke.
(ECF No. 20-1; see Boatmon v. Sec’y of Health & Human Servs., 941 F.3d 1351, 1359-
60 (Fed. Cir. 2019) (requiring that the medical opinion be sound and reliable as
“possible” or “plausible” theories are inadequate).) Dr. Jen provides no explanation that
would support a logical sequence of cause and effect explaining how Ms. Wu’s
vaccinations resulted in her condition. Instead, he merely engages in post hoc ergo
propter hoc reasoning. Such reasoning does not support petitioner’s burden of proof.
See Galindo v. Sec’y of Health & Human Servs., No. 16-203V, 2019 WL 2419552, at
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*20 (Fed. Cl. Spec. Mstr. May 14, 2019); Bulman v. Sec’y of Health & Human Servs.,
No. 19-1217V, 2023 WL 5844348, at *14 (Fed. Cl. Spec. Mstr. Aug. 16, 2023).
iv. Failure to Establish Vaccine-Causation of Encephalopathy
Petitioner also contends more specifically that Ms. Wu’s altered mental status as
documented during her September 2018 hospitalization constitutes a vaccine-caused
encephalopathy that also explains subsequent reports of confusion or altered mental
state. (ECF No. 1, p. 2.) Encephalopathy is a Table Injury, and enjoys a causal
presumption, if it occurs within 72 hours of a pertussis-containing vaccine or within 5-15
days of a measles, mumps, or rubella vaccine. 42 C.F.R. § 100.3(a)(II)-(III). Although
petitioner contends multiple vaccinations were administered to Ms. Wu on September
13, 2018, he has not specifically pleaded that she was administered any vaccine
containing pertussis, measles, mumps, or rubella. Even if he had so pleaded, he has
not provided any evidence to support such an allegation. Accordingly, no Table Injury
claim is available to petitioner.
With regard to any possible causation-in-fact claim based on the flu vaccination
alleged, petitioner’s allegation of an encephalopathy is entirely unsupported by any
medical opinion. None of petitioner’s treating physicians diagnosed any vaccine-caused
encephalopathy. Ms. Wu did have an altered mental state in connection with her
September 2018 hospitalization; however, her treating physicians attributed it to either
her sepsis or her hypotension, rather than her reported vaccination. (Ex. 5, p. 18.)
None of Ms. Wu’s medical records reflect any medical opinion suggesting that her
subsequent deficits were related to what she experienced in September of 2018.
Instead, the September 2018 medical record confirms that Ms. Wu’s mental condition
had returned to normal as her sepsis improved. (Id. at 23.). To the extent that Ms.
Wu’s medical records reflect a much later diagnosis of encephalopathy in May of 2020,
that was specifically attributed to her stroke. (Ex. 7, p. 37.) To the extent Dr. Jen offers
a medical opinion asserting Ms. Wu’s symptoms can be attributed to an overarching
disease process, he does not invoke encephalopathy as an explanation. In any event,
his opinion is unpersuasive for the reasons discussed above.
V. Conclusion
Clearly Ms. Wu has experienced several medical setbacks during the years
following her alleged vaccination. For that, petitioner, Ms. Wu, and their entire family,
have my sincere sympathy. However, for all the reasons discussed above, petitioner
has not provided preponderant evidence of any vaccine-related injury over the two
years during which this case has been pending. Petitioner’s failure to produce the
records necessary to fully assess Ms. Wu’s medical history constitutes a failure to
prosecute. That alone warrants dismissal. However, even setting aside petitioner’s
failure to prosecute, he has had a full and fair opportunity to develop the record of this
case. Accordingly, I also confirm that the evidence of record falls short of meeting
petitioner’s burden of proof. Therefore, dismissal is also warranted on the merits
independent of my conclusion that petitioner has failed to prosecute this case.
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This case is now DISMISSED. 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.
15